Rajbala & Others Vs. State of Haryana & Others
[Writ Petition (Civil) No. 671 of 2015]
Chelameswar, J.
1. The challenge is to the constitutionality of the Haryana Panchayati Raj (Amendment) Act, 2015 (Act 8 of 2015), hereinafter referred to as the "IMPUGNED ACT".
2. Even prior to advent of the Constitution of India under the Government of India Act, 1935 certain local bodies with elected representatives were functioning. Such local bodies did not, however, have constitutional status. They owed their existence, constitution and functioning to statutes and had been subject to the overall control of provincial governments.
3. Article 40 of the Constitution mandates- "40. Organisation of village panchayats - The State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self government." To effectuate such obligation of the State, Constitution authorised (even prior to the 73rd Amendment) State Legislatures under Article 246(3) read with Entry 5 of List II to make laws with respect to;
"5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration." Laws have been made from time to time by State Legislatures establishing a three-tier Panchayat system by 1980's. It was felt desirable that local bodies be given constitutional status and the basic norms regarding the establishment and administration of a three-tier Panchayati Raj institutions be provided under the Constitution. Hence, the 73rd Amendment of the Constitution by which Part IX was inserted with effect from 24.4.1993.
4. Under Article 243B[1], it is stipulated that there shall be constituted in every State, Panchayats at the village, intermediate and district levels (hereinafter collectively referred to as PANCHAYATS) in accordance with provisions of Part IX. PANCHAYAT is defined under Article 243(d)[2].
5. The composition of Panchayats is to be determined by the legislature of the concerned State by law subject of course to various stipulations contained in Part IX of the Constitution; such as reservations of seats in favour of scheduled castes and scheduled tribes etc. The duration of the Panchayat is fixed under Article 243E for a maximum of five years subject to dissolution in accordance with law dealing with the subject. There is a further stipulation under Article 243E that election to constitute a Panchayat be completed before the expiry of its tenure[3].
6. The broad contours of the powers and functions of Panchayats are also spelt out in Article 243G and 243H. Such powers and responsibilities are to be structured by legislation of the State. The establishment of an autonomous constitutional body to superintend the election process to the PANCHAYATS is stipulated under Article 243K.
7. The Haryana Panchayati Raj Act, 1994 (hereinafter referred to as "THE ACT") was enacted to bring the then existing law governing PANCHAYATS in the State in tune with the Constitution as amended by the 73rd amendment. As required under Article 243B[4], a three tier Panchayat system at the Village, 'Samiti' and District level is established under THE ACT with bodies known as Gram Panchayat, Panchayat Samiti and Zila Parishad. Part V Chapter XX of THE ACT deals with provisions relating to elections to the PANCHAYATS.
8. Section 162 of THE ACT stipulates that PANCHAYAT areas shall be divided into wards[5].
9. Section 165[6] declares that every person entitled to be registered as voter in the relevant part of the electoral rolls of the Assembly is entitled to be registered as a voter for the purpose of PANCHAYATS elections.
10. Section 175 mandates that persons suffering from any one of the disqualifications mentioned in Section 175 are neither eligible to contest the election to any one of the offices under the Act nor can they continue in office if they incur any one of the disqualifications, after having been elected. The categories so specified runs into a long list, such as, convicts of certain categories of offences, adjudicated insolvent, people of unsound mind, people who hold any office of profit under any one of the three categories of Panchayats etc.
11. By the IMPUGNED ACT[7], five more categories of persons are rendered incapable of contesting elections for any one of the elected offices under THE ACT.
These categories are:
(i) persons against whom charges are framed in criminal cases for offences punishable with imprisonment for not less than ten years,
(ii) persons who fail to pay arrears, if any, owed by them to either a Primary Agricultural Cooperative Society or District Central Cooperative Bank or District Primary Agricultural Rural Development Bank,
(iii) persons who have arrears of electricity bills,
(iv) persons who do not possess the specified educational qualification and lastly
(v) persons not having a functional toilet at their place of residence.
12. On 8.9.2015, the second respondent (State Election Commission) issued a notification specifying the election schedule for the PANCHAYATS of Haryana.
13. The three petitioners herein claim to be political activists interested in contesting the local body elections, but would now be disabled to contest as none of them possess the requisite educational qualification.
14. The petitioners challenge the IMPUGNED ACT principally on the ground that the enactment is violative of Article 14 of the Constitution. It is argued on behalf of the petitioners that
(i) the impugned provisions are wholly unreasonable and arbitrary and therefore violative of Article 14 of the Constitution. They create unreasonable restrictions on the constitutional right of voters to contest elections under the ACT[8];
(ii) they create an artificial classification among voters (by demanding the existence of certain criteria which have no reasonable nexus to the object sought to be achieved by the ACT), an otherwise homogenous group of people who are entitled to participate in the democratic process under the Constitution at the grass-roots level; and
(iii) the classification sought to be made has no legitimate purpose which can be achieved[9].
15. Though not very specifically pleaded in the writ petition, elaborate submissions are made on the questions
(i) whether the stipulations contained in the impugned amendment are in the nature of prescription of "qualifications" or "disqualifications" for contesting the elections under THE ACT;
(ii) if the impugned stipulations are in the nature of a prescription of qualifications whether the State legislature is competent to make such stipulations consistent with the scheme of the Constitution, as can be culled out from the language of Article 243F and other related provisions of the Constitution.
16. On the other hand, the learned Attorney General appearing for the respondents submitted that nobody has a fundamental right to contest an election under our Constitution and it is really not necessary in the present case to decide whether the right to contest an election to the PANCHAYATS is a constitutional right.
He argued that even assuming for the sake of argument that there is a constitutional right to contest an election to the PANCHAYATS, such right is expressly made subject to qualifications/disqualifications contemplated under Article 243F which authorises the State legislature to prescribe disqualifications for contesting election to any PANCHAYAT. Prescription of qualifications to contest an election based on criteria such as minimal educational accomplishment etc. cannot be said to be either arbitrary or irrelevant having regard to the nature of duties required to be discharged by persons elected to any one of the offices under THE ACT.
17. The learned Attorney General also submitted that the legislature best comprehends the needs of the society[10]. The decision to prescribe such a qualification is in the realm of wisdom of the legislature[11] and the Courts do not sit in review of such wisdom on the ground that the legislative decision is arbitrary[12].
18. Answers to questions raised by the petitioners in this writ petition, in our opinion, inevitably depend upon answer to the question whether right to vote or the right to contest an election to any of the constitutional bodies is a constitutional or a statutory right, since the extent to which curtailment or regulation of such right is permissible depends upon the nature of the right.
19. Prior to the 73rd Amendment of the Constitution, the Constitution contemplated elections to the office of the President, Vice-President, the two Houses of the Parliament known as Rajya Sabha and Lok Sabha and the State Legislatures. The Legislatures in certain States are bicameral. They are known as Legislative Assembly and Legislative Council while other States are unicameral (only the legislative Assembly). After the 73rd and 74th Amendments of the Constitution, PANCHAYATS and Municipal bodies specified under Parts IX & IXA of the Constitution respectively were added to the above-mentioned.
20. The nature of the right to vote at or the right to contest to any one of the abovementioned elections has been a vexed question.
21. A bench of three judges (M.B. Shah, P. Venkatarama Reddi and D.M. Dharamadhikari, JJ.) of this Court in People's Union for Civil Liberties (PUCL) & Another v. Union of India & Another, (2003) 4 SCC 399 considered the validity of the Representation of the People (Third Amendment) Act, 2002 (4 of 2002). By the said amendment, a candidate contesting an election (to which the Representation of the People Act, 1951 applies) is required to furnish certain information at the time of filing of nomination.
In that context, Justice P.V. Reddi examined in some detail the nature of the right to vote in the background of the observations made in two earlier decisions of this Court, in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Namakkal, Salem, AIR 1952 SC 64 and Jyoti Basu & Others v. Debi Ghosal & Others, (1982) 1 SCC 691 and recorded the categoric conclusion that the "right to vote" if not a fundamental right is certainly a "constitutional right" and "it is not very accurate to describe it as a statutory right, pure and simple". The learned Judge recorded nine of his conclusions in para 123. The 2nd conclusion reads as follows:
"(2) The right to vote at the elections to the House of the People or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter." A conclusion with which Justice Dharamadhikari expressly agreed[13]. The third learned judge Justice M.B. Shah recorded no disagreement.
22. Following the PUCL case, one of us held in Desiya Murpokku Dravida Kazhagam (DMDK) & Another v. Election Commission of India, (2012) 7 SCC 340: "........ every citizen of this country has a constitutional right both to elect and also be elected to any one of the legislative bodies created by the Constitution .........".[14] No doubt, it was a part of the dissenting opinion. It was a case dealing with allotment of election symbols and the right of a political party to secure "......... an election symbol on a permanent basis irrespective of its participation and performance judged by the vote share it commanded at any election."[15]
Though, the majority held that a political party cannot claim an election symbol on a permanent basis unless it satisfied norms stipulated under the symbols order issued by the Election Commission of India. Their Lordships did not record any disagreement regarding the conclusion that the right to participate in electoral process, either as a voter or as a candidate is a constitutional right.
23. Therefore, in our opinion, the question whether the right to vote at an election for either the Lok Sabha or the Legislative Assembly is a statutory right or a constitutional right is no more res integra and stands concluded by the abovementioned judgments, in PUCL and DMDK cases (supra).
24. However, the learned Attorney General brought to our notice certain observations in some of the judgments to the effect that rights to vote and contest elections are purely statutory. The context and the precedentiary value of those judgments need examination.
25. In Shyamdeo Prasad Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46, a Bench of three learned Judges observed: "20. .... It has to be remembered that right to contest an election, a right to vote and a right to object to an ineligible person exercising right to vote are all rights and obligations created by statute....." It was a case dealing with election to the Legislative Council of Bihar from the Patna Teacher's Constituency.
The limited question before this Court was whether the High Court in an election petition could examine the legality of the inclusion of certain names in the electoral roll? We are of the opinion that the said judgment leaves open more questions than it answers. The correctness of the judgment requires a more closer scrutiny in an appropriate case for more than one reason. One of them is that the inquiry in the said judgment commenced with the examination of Article 326 which has no application to elections to the Legislative Councils.
The text of Article 326 is express that it only deals with the adult suffrage with respect to Lok Sabha and Legislative Assemblies. In our opinion the statement (extracted earlier from para 20 of the said judgment) is made without analysis of relevant provisions of the Constitution apart from being unnecessary in the context of the controversy before the Court and is further in conflict with the later judgment in PUCL's case.
26. In K. Krishna Murthy (Dr.) & Others v. Union of India & Another, (2010) 7 SCC 202 para 77, speaking for a Constitution Bench of this Court, Balakrishnan, CJ. recorded that: "........ it is a well-settled principle in Indian Law, that the right to vote and contest elections does not have the status of fundamental rights. Instead, they are in the nature of legal rights.........". For recording such conclusion reliance was placed on certain observations made in an earlier judgment (decided by a bench of two judges) of this Court in Mohan Lal Tripathi v. District Magistrate, Rai Bareilly & Others, (1992) 4 SCC 80.
27. The challenge before this Court in K Krishna Murthy case was regarding the legality of Article 243D(6) and Article 243T(6) which enabled reservation of seats in favour of backward classes etc.[16] The challenge to the abovementioned provisions is that they "are violative of principles such as equality, democracy and fraternity, which are part of the basic structure doctrine".[17]
28. The decision in PUCL case was unfortunately not noticed by this Court while deciding K. Krishna Murthy case. Further a specific request "to reconsider the precedents wherein the rights of political participation have been characterized as statutory rights" was not given any consideration[18]. Their Lordships also failed to notice that the observations made in Mohan Lal case, prior to the 74th Amendment of the Constitution regarding the nature of the electoral rights with regard to the elections to the Municipal bodies are wholly inapplicable and without examining provisions of the Constitution as amended by the 74th Amendment.
29. They relied upon observation[19] from Mohan Lal case, in our opinion, are too sweeping and made without any appropriate analysis of law. The limited issue before this Court in Mohan Lal case was the legality of a 'no confidence motion' moved against the President of Rai Bareilly Municipal Board who was elected directly by voters of the municipality. The U.P. Municipalities Act provided for removal of the President so elected through the process of a no confidence motion moved by the Councilors who themselves, in turn, are elected representatives of the territorial divisions of the municipality.
The question whether the right to vote in or contest an election is a constitutional or statutory right was not in issue. Mohan Lal case was dealing with provisions of the U.P. Municipalities Act, 1916 as amended by Act 19 of 1990, i.e. prior to 74th Amendment of the Constitution[20]. Therefore, the right to vote and contest at an election for a municipality was certainly a statutory right by the date of the judgment[21] in Mohan Lal case.
30. Again in Krishnamoorthy v. Sivakumar & Others, (2015) 3 SCC 467, this court observed that the right to contest an election is a plain and simple statutory right[22].
31. We are of the opinion that observations referred to above are in conflict with the decisions of this Court in PUCL case and DMDK case, which were rendered after an elaborate discussion of the scheme of the Constitution. We are of the clear opinion that the Constitution recognises the distinction between the 'Right to Vote' at various elections contemplated under the Constitution and the 'Right to Contest' at such elections. There are various other electoral rights recognised or created by the statutes and the Representation of the People Act, 1951 recognises the same[23]. Right to Vote
32. Prior to the 73rd and 74th amendments, the Constitution contemplated elections to be held to offices of the President and the Vice President under Articles 54 and 66 respectively. It also contemplated elections to the two chambers of Parliament i.e. Rajya Sabha and Lok Sabha. A small fraction of the Members of the Rajya Sabha are nominated by the President while other Members are elected[24]. In the case of the Lok Sabha, subject to stipulations contained in Article 331 providing for nomination of not more than two Members belonging to the Anglo Indian Community all other Members are required to be elected.
In the case of the Legislative Council, in States where they exist, a fraction of the Members of the Council are required to be nominated by the Governor under Article 171(2)(e) and the rest of the Members are to be elected from various constituencies specified under Article 171 (3)(a), (b), (c), (d). Legislative Assemblies shall consist of only elected members subject to provisions for nomination contained in Article 333 in favour of the Anglo Indian Community.
33. The right to vote of every citizen at an election either to the Lok Sabha or to the Legislative Assembly is recognised under Articles 325 and 326 subject to limitations (qualifications and disqualifications) prescribed by or under the Constitution. On the other hand the right to vote at an election either to the Rajya Sabha or to the Legislative Council of a State is confined only to Members of the Electoral Colleges specified under Article 80(4) & (5) and Article 171 (3)(a), (b), (c), (d)[25] respectively. In the case of election to the Rajya Sabha, the Electoral College is confined to elected members of Legislative Assemblies of various States and representatives of Union Territories[26]. In the case of the Legislative Council, the Electoral College is divided into four parts consisting of;
(i) Members of various local bodies specified under Article 171 (3)(a);
(ii) certain qualified graduates specified under Article 171 (3)(b);
(iii) persons engaged in the occupation of teaching in certain qualified institutions described under Article 171 (3)(c); and
(iv) Members of the Legislative Assembly of the concerned State. Interestingly, persons to be elected by the electors falling under any of the above- mentioned categories need not belong to that category, in other words, need not be a voter in that category[27].
34. The Electoral College for election to the Office of the President consists of elected members of both Houses of Parliament and elected members of the Legislative Assemblies of the State while the Electoral College with respect to the Vice President is confined to Members of both Houses of Parliament.
Right to Contest
35. The Constitution prescribes certain basic minimum qualifications and disqualifications to contest an election to any of the above mentioned offices or bodies. Insofar as election to the Office of the President and Vice President are concerned, they are contained under Articles 58 and 66 respectively. Insofar as Parliament and the State Legislatures are concerned, such qualifications are stipulated under Articles 84 and 173, and disqualifications under Articles 102 and 191 respectively. The Constitution also authorises Parliament to make laws prescribing both further qualifications and disqualifications.
36. Interestingly, insofar as elections to Office of the President and Vice President are concerned, the Constitution does not expressly authorise either Parliament or Legislative Assemblies of the State to prescribe any further qualifications or disqualifications to contest an election to either of these Offices. It stipulates only two conditions which qualify a person to contest those Offices, they are - citizenship of the country and the minimum age of 35 years. Under Articles 58(1)(c) and 66(3)(c), it is further stipulated that a person who was otherwise eligible to contest for either of the above mentioned two Offices shall not be eligible unless he is qualified for election as a Member of the Lok Sabha or the Rajya Sabha respectively.
37. An examination of the scheme of these various Articles indicates that every person who is entitled to be a voter by virtue of the declaration contained under Article 326 is not automatically entitled to contest in any of the elections referred to above. Certain further restrictions are imposed on a voter's right to contest elections to each of the above mentioned bodies. These various provisions, by implication create a constitutional right to contest elections to these various constitutional offices and bodies. Such a conclusion is irresistible since there would be no requirement to prescribe constitutional limitations on a non existent constitutional right.
38. Articles 84 and 173 purport to stipulate qualifications for membership of Parliament and Legislatures of the State respectively. Articles 102 and 191 purport to deal with disqualifications for membership of the above mentioned two bodies respectively. All the four Articles authorise the Parliament to prescribe further qualifications and disqualifications, as the case may be, with reference to the membership of Parliament and Legislatures of the State as the case may be.
39. The distinction between the expressions qualification and disqualification in the context of these four Articles is little intriguing. There is no clear indication in any one of these four Articles or in any other part of the Constitution as to what is the legal distinction between those two expressions. In common parlance, it is understood that a qualification or disqualification is the existence or absence of a particular state of affairs, which renders the achievement of a particular object either possible or impossible. Though there are two sets of Articles purporting to stipulate qualifications and disqualifications, there is neither any logical pattern in these sets of Articles nor any other indication which enables discernment of the legal difference between the two expressions.
We reach such a conclusion because citizenship of India is expressly made a condition precedent under Articles 84 and 173 for membership of both Parliament and State Legislatures. Lack of citizenship is also expressly stipulated to be a disqualification for membership of either of the above mentioned bodies under Articles 102 and 191.
In view of the stipulation under Articles 84 and 173 - citizenship is one of the requisite qualifications for contesting election to either Parliament or the State Legislature, we do not see any reason nor is anything brought to our notice by learned counsel appearing on either side to again stipulate under the Articles 102 and 191 that lack of citizenship renders a person disqualified from contesting elections to those bodies. Learned counsel appearing on either side are also unanimously of the same opinion. We are, therefore, of the opinion that the distinction between qualifications and disqualifications is purely semantic[28].
40. We, therefore, proceed on the basis that, subject to restrictions mentioned above, every citizen has a constitutional right to elect and to be elected to either Parliament or the State legislatures.
41. Insofar as the Rajya Sabha and the Legislative Councils are concerned, such rights are subject to comparatively greater restrictions imposed by or under the Constitution. The right to vote at an election to the Lok Sabha or the Legislative Assembly can only be subjected to restrictions specified in Article 326. It must be remembered that under Article 326 the authority to restrict the right to vote can be exercised by the 'appropriate legislature'. The right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law made by the Parliament.
42. The next question is - whether such constitutional rights exist in the context of elections to the PANCHAYATS? Having regard to the scheme of Part IX of the Constitution, the purpose[29] for which Part IX came to be introduced in the Constitution by way of an amendment, we do not see any reason to take a different view.
43. On the other hand, this Court in Javed & Others v. State of Haryana & Others, (2003) 8 SCC 369, held that "right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right ...." .
44. We need to examine contours of the two rights, i.e. the right to vote (to elect) and the right to contest (to get elected) in the context of elections to PANCHAYATS. Part IX of the Constitution does not contain any express provision comparable to Article 326 nor does it contain any express provisions comparable to Article 84 and Article 173.
The text of Article 326 does not cover electoral rights with respect to PANCHAYATS.
Therefore, questions arise:
i) Whether a non-citizen can become a voter or can contest and get elected for PANCHAYATS?
ii) In the absence of any express provision, what is the minimum age limit by which a person becomes entitled to a constitutional right either to become a voter or get elected to PANCHAYATS?
iii) Are there any constitutionally prescribed qualifications or disqualifications for the exercise of such rights?
Questions No.(i) and (ii) do not arise on the facts of the present case. Therefore, we desist examination of these questions.
45. In contradiction to Article 326, Constitution does not contain any provision which stipulates that a person to be a voter at elections to PANCHAYAT is required to be either (i) a citizen of India or (ii) of any minimum age. Similarly, in the context of right to contest an election to PANCHAYATS, Part IX is silent regarding qualifications required of a candidate.
All that the Constitution prescribes is disqualification for membership of PANCHAYATS:
"243F. Disqualifications for membership. -
(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat - if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; if he is so disqualified by or under any law made by the Legislature of the State.
(2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide."
46. It appears from the above, that any person who is disqualified by or under any law for the time being in force for the purposes of elections to the Legislatures of the State concerned is also disqualified for being a member of PANCHAYAT. In other words qualifications and disqualifications relevant for membership of the Legislature are equally made applicable by reference to the membership of PANCHAYATS. Though such qualifications and disqualifications could be stipulated only by Parliament with respect to the membership of the Legislature of a State, Article 243F authorises the concerned State Legislature also to stipulate disqualifications for being a member of PANCHAYAT.
47. The right to vote and right to contest at an election to a PANCHAYAT are constitutional rights subsequent to the introduction of Part IX of the Constitution of India. Both the rights can be regulated/curtailed by the appropriate Legislature directly. Parliament can indirectly curtail only the right to contest by prescribing disqualifications for membership of the Legislature of a State.
48. It is a settled principle of law that curtailment of any right whether such a right emanates from common law, customary law or the Constitution can only be done by law made by an appropriate Legislative Body. Under the scheme of our Constitution, the appropriateness of the Legislative Body is determined on the basis of the nature of the rights sought to be curtailed or relevant and the competence of the Legislative Body to deal with the right having regard to the distribution of legislative powers between Parliament and State Legislatures. It is also the settled principle of law under our Constitution that every law made by any Legislative Body must be consistent with provisions of the Constitution.
49. It is in the abovementioned background of the constitutional scheme that questions raised in this writ petition are required to be examined.
50. Section 173(1)[30] of THE ACT stipulates that every person whose name is in the "list of voters" shall be qualified "to vote at the election of a member for the electoral division to which such list pertains" unless he is otherwise disqualified. Persons who are qualified to be registered as voters and "list of voters" are dealt with under Sections 165 and 166, the details of which are not necessary for the present purpose. Under Section 173(2)[31] every person whose name is in the list of voters subject to a further condition that he has attained the age of 21 years is qualified to contest at an election to any PANCHAYAT unless such a person suffers from a disqualification prescribed by law.
51. Section 175 of THE ACT stipulates that "No person shall be a Sarpanch[32] or a Panch[33] of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such", if he falls within the ambit of any of the clauses of Section 175. Section 175 reads as follows:
"Section 175. Disqualifications.-
(1) No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who-
(a) has, whether before or after the commencement of this Act, been convicted-
(i) of an offence under the Protection of Civil Rights Act, 1955 (Act 22 of 1955 ), unless a period of five years, or such lesser period as the Government may allow in any particular case, has elapsed since his conviction; or
(ii) of any other offence and been sentenced to imprisonment for not less than six months, unless a period of five years, or such lesser period as the Government may allow in any particular case, has elapsed since his release; or
(aa) has not been convicted, but charges have been framed in a criminal case for an offence, punishable with imprisonment for not less than ten years;
(b) has been adjudged by a competent court to be of unsound mind; or
(c) has been adjudicated an insolvent and has not obtained his discharge; or
(d) has been removed from any office held by him in a Gram Panchayat, Panchayat Samiti or Zila Parishad under any provision of this Act or in a Gram Panchayat, Panchayat Samiti or Zila Parishad before the commencement of this Act under the Punjab Gram Panchayat Act, 1952 and Punjab Panchayat Samiti Act, 1961, and a period of five years has not elapsed from the date of such removal, unless he has, by an order of the Government notified in the Official Gazette been relieved from the disqualifications arising on account of such removal from office; or
(e) has been disqualified from holding office under any provision of this Act and the period for which he was so disqualified has not elapsed; or
(f) holds any salaried office or office of profit in any Gram Panchayat, Panchayat Samiti, or Zila Parishad; or
(g) has directly or indirectly, by himself or his partner any share or interest in any work done by order of the Gram Panchayat, Panchayat Samiti or Zila Parishad;
(h) has directly or indirectly, by himself or, his partner share or interest in any transaction of money advanced or borrowed from any officer or servant or any Gram Panchayat; or
(i) fails to pay any arrears of any kind due by him to the Gram Panchayat, Panchayat Samiti or Zila Parishad or any Gram Panchayat, Panchayat Samiti or Zila Parishad subordinate thereto or any sum recoverable from him in accordance with the Chapters and provisions of this Act, within three months after a special notice in accordance with the rules made in this behalf has been served upon him;
(j) is servant of Government or a servant of any Local Authority; or
(k) has voluntarily acquired the citizenship of a Foreign State or is under any acknowledgement of allegiance or adherence to a Foreign state; or
(l) is disqualified under any other provision of this Act and the period for which he was so disqualified has not elapsed; or
(m) is a tenant or lessee holding a lease under the Gram Panchayat, Panchayat Samiti or Zila Parishad or is in arrears of rent of any lease or tenancy held under the Gram Panchayat, Panchayat Samiti or Zila Parishad; or
(n) is or has been during the period of one year preceding the date of election, in unauthorised possession of land or other immovable property belonging to the Gram Panchayat, Panchayat Samiti or Zila Parishad; or
(o) being a Sarpanch or Panch or a member of Panchayat Samiti or a Zila Parishad has cash in hand in excess of that permitted under the rules and does not deposit the same along with interest at the rate of twenty-one percentum per year in pursuance of a general or special order of the prescribed authority within the time specified by it; or
(p) being a Sarpanch or Panch or a Chairman, Vice-Chairman or Member, President or Vice-President or Member of Panchayat Samiti or Zila Parishad has in his custody prescribed records and registers and other property belonging to, or vested in, Gram Panchayat, Panchayat Samiti or Zila Parishad and does not handover the same in pursuance of a general or special order of the prescribed authority within the time specified in the order; or
(q) x x x
(r) admits the claim against Gram Panchayat without proper authorization in this regard;
(s) furnishes a false caste certificate at the time of filing nomination:
Provided that such disqualifications under clauses (r) and (s) shall be for a period of six years.
(t) fails to pay any arrears of any kind due to him to any Primary Agriculture Co-operative Society, District Central co-operative Bank and District Primary co-operative Agriculture Rural Development Bank; or
(u) fails to pay arrears of electricity bills;
(v) has not passed matriculation examination or its equivalent examination from any recognized institution/board: Provided that in case of a woman candidate or a candidate belonging to Scheduled Caste, the minimum qualification shall be middle pass: Provided further that in case of a woman candidate belonging to Scheduled Caste contesting election for the post of Panch, the minimum qualification shall be 5th pass; or
(w) fails to submit self declaration to the effect that he has a functional toilet at his place of residence.
Explanation 1. - A person shall not be disqualified under clause (g) for membership of a Gram Panchayat, Panchayat Samiti or Zila Parishad by reason only of such person,--
(a) having share in any joint stock company or a share or interest in any society registered under any law for the time being in force which shall contract with or be employed by or on behalf of Gram Panchayat, Panchayat Samiti or Zila Parishad; or
(b) having a share or interest in any newspaper in which any advertisement relating to the affairs of a Gram Panchayat, Panchayat Samiti or Zila Parishad may be inserted; or
(c) holding a debenture or being otherwise concerned in any loan raised by or on behalf of any Gram Panchayat, Panchayat Samiti or Zila Parishad; or
(d) being professionally engaged on behalf of any Gram Panchayat, Panchayat Samiti or Zila Parishad as a Legal Practitioner; or
(e) having any share or interest in any lease of immovable property in which the amount of rent has been approved by the Gram Panchayat, Panchayat Samiti or Zila Parishad in its own case or in any sale or purchase of immovable property or in any agreement for such lease, sale or purchase ; or
(f) having a share or interest in the occasional sale to the Gram Panchayat, Panchayat Samiti or Zila Parishad of any article in which he regularly trades or in the purchase from the Gram Panchayat of any article, to a value in either case not exceeding in any year one thousand rupees.
Explanation 2. - For the purpose of clause (1)- A person shall not be deemed to be disqualified if he has paid the arrears or the sum referred to in clause (i) of this sub-section, prior to the day prescribed for the nomination of candidates;
x x x."
52. By the IMPUGNED ACT five more contingencies specified in clauses (aa), (t), (u), (v) and (w) have been added which render persons falling in the net of those contingencies disqualified from contesting elections.
53. At the outset, we must make it clear that neither learned counsel for the petitioners nor other learned counsel (who were permitted to make submissions though they are not parties, having regard to the importance of the matter) made any specific submission regarding constitutionality of sub- section (1)(aa) of Section 175 which prescribes that "(1) No person shall be a ...... or continue as such who .... (aa) has not been convicted, but charges have been framed in a criminal case for an offence, punishable with imprisonment for not less than ten years". The challenge is confined to clauses (t), (u), (v) and (w) of Section 175(1).
54. We first deal with the submission of violation of Article 14 on the ground of arbitrariness.
55. The petitioners argued that the scheme of the Constitution is to establish a democratic, republican form of Government as proclaimed in the Preamble to the Constitution and any law which is inconsistent with such scheme is irrational and therefore 'arbitrary'.
56. In support of the proposition that the Constitution seeks to establish a democratic republic and they are the basic features of the Constitution, petitioners placed reliance upon His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Another, (1973) 4 SCC 225 para 1159 and Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1, paras 563 and 578. There cannot be any dispute about the proposition.
57. In support of the proposition that a statute can be declared unconstitutional on the ground that it is arbitrary and therefore violative of Article 14, petitioners relied upon judgments of this Court reported in Subramanian Swamy v. Director, Central Bureau of Investigation & Another, (2014) 8 SCC 682, Indian Council of Legal Aid v. Bar Council of India, (1995) 1 SCC 732, B. Prabhakar Rao & Others v. State of Andhra Pradesh & Others, 1985 (Supp) SCC 432 and D.S. Nakara & Others v. Union of India, (1983) 1 SCC 305 and certain observations made by Justice A.C. Gupta in his dissenting judgment in R.K. Garg v. Union of India, (1981) 4 SCC 675.
58. In our opinion, none of the abovementioned cases is an authority for the proposition that an enactment could be declared unconstitutional on the ground it is "arbitrary".
59. In Subramanian Swamy case, the dispute revolved around the constitutionality of Section 6A of the Delhi Special Police Establishment Act 1946, which was introduced by an amendment in the year 2003. It stipulated that the Delhi Special Police Establishment shall not conduct any 'enquiry' or 'investigation' into any offence falling under the Prevention of Corruption Act 1988, alleged to have been committed by certain classes of employees of the Central Government etc. The said provision was challenged on the ground it was arbitrary and unreasonable
[34] and therefore violative of Article 14.
The submission was resisted by the respondent (Union of India) on the ground that such a challenge is impermissible in view of the decision in State of Andhra Pradesh v. McDowell & Co., (1996) 3 SCC 709. But the Constitution Bench eventually declared the impugned provision unconstitutional not on the ground of it being arbitrary but on the ground it makes an unreasonable classification of an otherwise homogenous group of officers accused of committing an offence under the Prevention of Corruption Act without there being reasonable nexus between the classification and the object of the Act.[35]
60. Coming to the Indian Council of Legal Aid & Advice & Others v. Bar Council of India & Others, (1995) 1 SCC 732, it was a case where the legality of a rule made by the Bar Council of India prohibiting the enrolment of persons who completed the age of 45 years was in issue. The rule was challenged on two grounds. Firstly, that the rule was beyond the competence of the Bar Council of India as the Advocates Act 1961 did not authorise the Bar Council of India to prescribe an upper age limit for enrolment. Secondly, that the rule is discriminatory and thirdly, the fixation of upper age limit of 45 years is arbitrary.
61. On an examination of the scheme of the Advocates Act, this Court came to a conclusion that the impugned rule was beyond the rule making power of the Bar Council of India and, therefore, ultra vires the Act. This Court also held that the rule was "unreasonable and arbitrary"[36].
62. We are of the opinion that in view of the conclusion recorded by the Court that the rule is beyond the competence of Bar Council of India, it was not really necessary to make any further scrutiny whether the rule was unreasonable and arbitrary. Apart from that, in view of the conclusion recorded that the rule was clearly discriminatory, the inquiry whether the choice of the upper age limit of 45 years is arbitrary or not is once again not necessary for the determination of the case. At any rate, the declaration made by this Court in the said case with regard to a piece of subordinate legislation, in our view, cannot be an authority for the proposition that a statute could be declared unconstitutional on the ground that in the opinion of the Court the Act is arbitrary.
63. Now we shall examine Prabhakar Rao case. The facts of the case are that the age of superannuation of employees of the State of Andhra Pradesh was 55 till the year 1979. In 1979, it was enhanced to 58 years. The Government of Andhra Pradesh in February, 1983 decided to roll back the age of superannuation to 55 years and took appropriate legal steps which eventually culminated in passing of Act 23 of 1984. The said Act came to be amended by Ordinance 24 of 1984, again enhancing the age of superannuation to 58 years which was followed up by Act 3 of 1985.
While enhancing the age of superannuation to 58 for the second time by the above-mentioned Ordinance 24 of 1984 and Act 3 of 1985, benefit of the enhanced age of superannuation was given to certain employees who had retired in the interregnum between 20.2.1983 and 23.08.1984; while others were denied such benefit. Prabhakar Rao and others who were denied the benefit challenged the legislation. This Court placing reliance on D.S. Nakara Case concluded that the impugned Act insofar as it denied the benefit to some of the employees who retired in the interregnum between two dates mentioned above was unsustainable and held as follows:-
"The principle of Nakara clearly applies. The division of Government employees into two classes, those who had already attained the age of 55 on February 28, 1983 and those who attained the age of 55 between February 28, 1983 and August 23, 1984 on the one hand, and the rest on the other and denying the benefit of the higher age of superannuation to the former class is as arbitrary as the division of Government employees entitled to pension in the past and in the future into two classes, that is, those that had retired prior to a specified date and those that retired or would retire after the specified date and confining the benefits of the new pension rules to the latter class only. ...." (Para 20) The Bench also observed:-
"Now if all affected employees hit by the reduction of the age of superannuation formed a class and no sooner than the age of superannuation was reduced, it was realized that injustice had been done and it was decided that steps should be taken to undo what had been done, there was no reason to pick out a class of persons who deserved the same treatment and exclude from the benefits of the beneficent treatment by classifying them as a separate group merely because of the delay in taking the remedial action already decided upon.
We do not doubt that the Judge's friend and counselor, "the common man", if asked, will unhesitatingly respond that it would be plainly unfair to make any such classification. The commonsense response that may be expected from the common man, untrammeled by legal lore and learning, should always help the Judge in deciding questions of fairness, arbitrariness etc. Viewed from whatever angle, to our minds, the action of the Government and the provisions of the legislation were plainly arbitrary and discriminatory." (Para 20)
64. Petitioners placed reliance on the last sentence which said that the "action of the Government and the provisions of the legislation were plainly arbitrary and discriminatory" in support of their submission that an Act could be declared unconstitutional on the ground that it is arbitrary.
65. We are of the opinion that Prabhakar Rao case is not an authority on the proposition advanced by the petitioners. The ratio of Prabhakar Rao case is that there was an unreasonable classification between the employees of the State of Andhra Pradesh on the basis of the date of their attaining the age of superannuation.
66. Observations by Justice Gupta in R.K. Garg Case[37] no doubt indicate that the doctrine propounded by this Court in E.P. Royappa v. State of Tamil Nadu & Another[38] and Maneka Gandhi v. Union of India & Another[39] that arbitrariness is antithetical to the "concept of equality" is also relevant while examining the constitutionality of a statute but such observations are a part of the dissenting judgment and not the ratio decidendi of the judgment.
67. Learned Attorney General heavily relied upon para 43 of the State of Andhra Pradesh & Others v. McDowell & Co., (1996) 3 SCC 709 which dealt with the question of declaring a statute unconstitutional on the ground it is arbitrary.
"43. Sri Rohinton Nariman submitted that inasmuch as a large number of persons falling within the exempted categories are allowed to consume intoxicating liquors in the State of Andhra Pradesh, the total prohibition of manufacture and production of these liquors is "arbitrary" and the amending Act is liable to be struck down on this ground alone. Support for this proposition is sought from a judgment of this Court in State of Tamil Nadu & Ors. v. Ananthi Ammal & Others [(1995) 1 SCC 519]. Before, however, we refer to the holding in the said decision, it would be appropriate to remind ourselves of certain basic propositions in this behalf. In the United Kingdom, Parliament is supreme.
There are no limitations upon the power of Parliament. No Court in the United Kingdom can strike down an Act made by Parliament on any ground. As against this, the United States of America has a Federal Constitution where the power of the Congress and the State Legislatures to make laws is limited in two ways, viz., the division of legislative powers between the States and the federal government and the fundamental rights (Bill of Rights) incorporated in the Constitution. In India, the position is similar to the United States of America.
The power of the Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by the Parliament or the Legislature can be struck down by courts on two grounds and two grounds alone, viz.,
(1) lack of legislative competence and
(2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision.
There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process).
The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the Legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterized, the ground of invalidation must fall within the four corners of the two grounds mentioned above.
In other words, say, if an enactment challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary[40]* or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act.
An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz.,
(i) unreasonableness, which can more appropriately be called irrationality,
(ii) illegality and
(iii) procedural impropriety [See Council of Civil Services Union v. Minister for Civil Services (1985 A.C.374) which decision has been accepted by this Court as well].
The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. [See the opinions of Lords Lowry and Ackner in R. v. Secretary of State for Home Department ex p Brind, [1991 AC 696 at 766-67 and 762]. It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. Now, coming to the decision in Ananthi Ammal, we are of the opinion that it does not lay down a different proposition.
It was an appeal from the decision of the Madras High Court striking down the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Acts 1978 as violative of Articles 14, 19 and 300A of the Constitution. On a review of the provisions of the Act, this Court found that it provided a procedure which was substantially unfair to the owners of the land as compared to the procedure prescribed by the Land Acquisition Act, insofar as Section 11 of the Act provided for payment of compensation in instalments if it exceeded Rupees two thousand. After noticing the several features of the Act including the one mentioned above, this Court observed:
"7. When a statute is impugned under Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis.
44. It is this paragraph which is strongly relied upon by Shri Nariman. We are, however, of the opinion that the observations in the said paragraph must be understood in the totality of the decision. The use of the word 'arbitrary' in para 7 was used in the sense of being discriminatory, as the reading of the very paragraph in its entirety discloses.
The provisions of the Tamil Nadu Act were contrasted with the provisions of the Land Acquisition Act and ultimately it was found that Section 11 insofar as it provided for payment of compensation in instalments was invalid. The ground of invalidation is clearly one of discrimination. It must be remembered that an Act which is discriminatory is liable to be labeled as arbitrary. It is in this sense that the expression 'arbitrary' was used in para 7."
68. From the above extract it is clear that courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is "arbitrary" since such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution.
To undertake such an examination would amount to virtually importing the doctrine of "substantive due process" employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation. As pointed out in the above extract, even in United States the doctrine is currently of doubtful legitimacy. This court long back in A.S. Krishna & Others v. State of Madras, AIR 1957 SC 297 declared that the doctrine of due process has no application under the Indian Constitution[41]. As pointed out by Frankfurter, J., arbitrariness became a mantra.
69. For the above reasons, we are of the opinion that it is not permissible for this Court to declare a statute unconstitutional on the ground that it is 'arbitrary'.
70. We shall examine the next facet of the challenge i.e. each of the four impugned clauses have created a class of persons who were eligible to contest the elections to Panchayats subject to their satisfying the requirements of law as it existed prior to the IMPUGNED ACT but are rendered now ineligible because they fail to satisfy one of the other conditions prescribed under clauses (t), (u), (v) and (w) of Section 175(1) of the Act. The case of the petitioners is that such a classification created by each of the impugned clauses amount to an unreasonable classification among people who form one class but for the IMPUGNED ACT, without any intelligible difference between the two classes and such classification has no nexus with the object sought to be achieved.
71. Learned Attorney General submitted that the object sought to be achieved is to have "model representatives for local self government for better administrative efficiency which is the sole object of the 73rd constitutional amendment".
72. In the light of the above submissions, we shall now deal with the challenge to each of the abovementioned four clauses.
73. Clause (v) prescribes a minimum educational qualification of matriculation[42] for anybody seeking to contest an election to any one of the offices mentioned in the opening clause of Section 175(1). However, the minimum educational qualification is lowered insofar as candidates belonging to scheduled castes and women are concerned to that of "middle pass" whereas a further relaxation is granted in favour of the scheduled caste woman insofar as they seek to contest for the office of Panch.
74. It is argued that stipulation of minimum educational qualification would have the effect of disqualifying more than 50% of persons who would have otherwise been qualified to contest elections to PANCHAYATS under the law prior to the IMPUGNED ACT. It is further submitted that poorer sections of the society, women and scheduled castes would be worst hit by the impugned stipulation as a majority of them are the most unlikely to possess the minimum educational qualification prescribed in the IMPUGNED ACT.
75. On the other hand, it is stated in the affidavit filed on behalf of respondent as follows: "10. That as per the National Population Register 2011, total rural population in the State is 1.65 cr out of which 96 lac are above 20 years of age. Further 57% of such population, who are over 20 years of age, is eligible to contest even after the introduction of impugned disqualification in respect of having minimum education qualification."
76. According to the Annexure-5 (to the said affidavit of the respondents) the details of the educational qualification of the persons above 20 years of age (under Section 173(2)[43] of THE ACT the minimum qualifying age for contesting any PANCHAYAT election is 21 years) are as follows:
National Population Register - 2011
Number of Persons above 20 Years of age Vis-A-Vis Their Educational Qualification
Total Population
SC Population
Total
Males
Females
Total
Males
Females
Illiterate
3660892
38%
1211555
24%
2449337
53%
980908
48%
367755
34%
613153
63%
Unspecified Literate & below primary
494348
5%
291058
6%
203290
4%
125442
6%
77233
7%
48209
5%
Primary/Middle/ Metric & above
5458464
57%
3489821
70%
1968643
43%
949306
46%
631180
59%
318126
32%
Total population above 20 years of age
9613704
4992434
4621270
2055656
1076168
979488
Total Rural Population
16509359
8774006
7735353
3720109