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A Half-Run Thing

The SC underlined the efficacy of the legislature

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A Half-Run Thing
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Like all good lawyers, Attorney-General Mukul Rohatgi is seldom at a loss for words. While arguing in defence of the amendment passed by the Haryana assembly before the Supreme Court in September 2015, he waxed eloquent.  “Panch­ayats”, he said, “are like mini state governments...they ought to take part in economic reforms. How can that be accomplished when officials put thumb impressions and later dispute such impressions or say we don’t know what we signed?”

“What’s wrong in prescribing a minimum educational criteria? This is a progressive step. Parliament should also take a lead from this,” the A-G went on to argue. The bench, headed by Justice J. Chelam­eswar, was far from convinced though. “Will it not violate Article 14 (of the Constitution, guaranteeing right to equality)? Do you realise what part of our population is illiterate?...We have serious doubts over educational qualification being made an eligibility criterion,” the judges observed.

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But by December the judges had changed their mind. They agreed with Rohatgi when he argued that “nobody has a fundamental right to contest an election under the Constitution”. The right to vote, the bench held, is a ‘constitutional right’ but the right to contest is a ‘statutory right’. With that ruling, the bench overturned what the Supreme Court itself had earlier upheld, that “every citizen has a constitutional right to elect and also be elected”.

The legislature, the judges concurred with Rohatgi, best comprehended the needs of society. And it was not for the court to question its wisdom, opined Justice Chelameswar in his judgement.

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Justice Chelameswar, who has quite a reputation for giving dissenting judgements, had also gone against the majority opinion on the National Judicial Appointments Commission (NJAC) Act when it was turned down by a five-judge bench of the SC. For the court to say that a law was ‘arbitrary’ would imply a value judgement, he had felt.

A law duly passed by the legislature could be struck down by the courts only on two grounds, he pointed out. First, if there is lack of legislative competence; and secondly if the law violates any of the fundamental rights. “There is no third ground,” he emphasised.

An affidavit filed by the Haryana government claimed that the state had 96 lakh voters above the age of 20 and that of them 41 lakh (15 lakh men and 26 lakh women) were illiterate. The affidavit, however, provided no break-up of previous office-bearers of panchayats—whether they were illiterate or had studied up to class V, VIII or class X. It would have shown how serious and prevalent lack of education was in the state so as to prompt the assembly to endorse the amendment.

If one adds people who have had a few years of schooling but have not progressed beyond class IV and hence are now ineligible for contesting, the number of voters in Haryana deemed to be disqualified could be as high as a shocking 50 per cent. Debarring half the electorate from contesting panchayat polls, 65 years after the Constitution guaranteed universal adult suffrage, must count as a tectonic shift. While a more elite argument has won the present battle, the last word on the issue may not have been heard.

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