The Supreme Court on Monday said that Haryana’s imposition of minimum educational qualifications for panchayat poll contestants are strictly against the right to equality. Further the court asked the state to withdraw its notification by Tuesday.
The bench of Justices J. Chelameshwar and A.M. Sapre were of the view, “If you think this is a progressive legislation, why not Parliament do so (enact a law prescribing educational norms for MPs)?” Further they added that even after 65 years since India got Independence more than 50 per cent of our population is illiterate and these are the only ways to prevent people from contesting the polls.
As per the 2011 census figures India’s overall literacy is 73 per cent while the rural literacy is 67.8 per cent.
Although the court, prima facie, found the Haryana Panchayati Raj (Amendment) Act 2015 a violation of Article 14, which prescribes equality before law, yet it stopped short of quashing the provision.
Instead, it gave attorney-general Mukul Rohatgi, who was representing the state BJP government, time till tomorrow to clarify whether his client would withdraw its September 8 gazette notification implementing the new law. Rohatgi called the amendment a “progressive move” and further encouraged the court rejoinder on why Parliament hadn’t adopted it.
He was of the view, “Maybe Parliament will take a lead (cue) from the state legislation,” the attorney-general said. But sensing the court’s mood, he agreed to get back tomorrow with a decision on the notification’s possible withdrawal.”
If in case Haryana agrees to follow the notification, the amendment will always remain on the statute book, but in limbo. But if in case Haryana chooses to fight, then it will be a long court battle to determine whether the amendment is unconstitutional and should be suppressed.
The court on September 17, 2015 issued the notification stating that to cast a vote the candidates belonging to General category should have cleared matriculation and those belonging to Scheduled Caste and Scheduled Tribe should have passed Class 8. Panchayat polls in Haryana are scheduled to be conducted on October 4, 11 and 18. The court was hearing a plea from aggrieved candidates. Upon the notification issued by the court Rohatgi had pleaded that the stay had created confusion among the voters.
To this the bench gave the reply, “Confusion was created by your law, not by our order. Your law will not stand scrutiny of Article 14.”
If the state government is to be believed then they are of the opinion that the amendment act does not violate ‘Article 14’ because ‘Article 21A’ of the constitution makes basic education a fundamental right. But in contrast, “the right to contest an election is neither a fundamental right nor a common law right; it is a right conferred by a special statute”.
The application submitted by the state in lieu of the stay orders issued on September 17 states that most illiterate panchayat representatives depended heavily on government officials or their relatives and friends, who often took advantage of this.