the wire

1. A Judgement on
Democracy That is
Frightening in Its
Implicatons
BY INDIRA JA ISING ON 1 1 /12/201 5
The judgment of the Supreme Court in the Raj Bala case deals a near fatal blow to the health of
the Indian democracy. In essence, the court has held that those who have no formal education,
those who have no “functioning toilet” and those who are in rural indebtedness cannot contest an
election for the position of sarpanch.
The judgment effectively disenfranchises – and it recognises this – 68% of Scheduled Caste
women, 41% of Scheduled Caste men and over 50% of all women in Haryana from contesting a
panchayat election. Several other BJP-ruled states including Rajasthan have similar restrictions.
On the one hand, the court has recognised that the right to vote and the right to contest an
election are integrally linked and the one flows from the other, and yet it has held that the right to
vote in an election is based on adult universal franchise but the right to contest an election is not
a universal right. But what is the universal right given to every citizen to vote without the
concomitant right to contest an election and the right to choose a candidate of one’s choice?
While one can disqualify a person from contesting if he or she has a criminal record, can the fact
that you don’t have an education or a “functioning” toilet be equaled with having a criminal
record? Apparently it can, as per the opinion of the Supreme Court of India.
Universal adult franchise, which carries with it the right to contest an election, is so fundamental
to the very concept of republicanism and democracy the world over that no genuinely democratic
country has imposed the requirement of formal education as a pre-condition to contest an
election. Nor is there any such disqualification from contesting an election for MPs and MLAs in
India. Mahatma Gandhi in his concept of Swaraj and self-rule had surely meant self-rule for the
literate self and illiterate self alike. The judgment reinforces the power of the elite and will
concentrate power in entrenched hierarchies.
In the opinion of the apex court, “It is only education which gives a human being the power to
discriminate between right and wrong, good and bad”. To begin with, what is education is not
defined; here it appears to be confined to a formal school education.

2. Secondly, while displaying a touching faith in formal education, the court betrays its innocence
about fact that recent history has shown that highly educated politicians are today being
prosecuted for corruption of a high order. When it comes to toilets, the Supreme Court appears
impressed by the assurances of the Haryana government that it has a scheme under which it
provides an amount of Rs. 12,000/- for the construction of a toilet. Relying on the statement
made by the state that of the 8.5 lakhs house holders classified as families falling below the
poverty line (BPL), 5 lakhs families have availed the benefits of the scheme, the court holds that
the condition of owning a functioning toilet for contesting an election is a reasonable one. The
Court ignores the 2011 census data that more than 29% households in rural areas have no
permanent residence – the homeless surely cannot own a toilet – 27% of the households have
grass or thatched roof homes, 38% have mud floor homes and 25% live in single room
accommodation. Even if one were to take the figures of the state at face value, the toilets still
have open drainage with no underground sewage system to take care of human excreta. More
than 13.7% households do not have drainage facilities and almost two out of three houses have
open drains.
Open pits and sewage tanks are still serviced by manual scavenging, the legacy of the abiding
caste system. Swachha Bharat Mission guidelines themselves prohibit construction of insanitary
latrines. Yet pit latrines and septic tanks are also counted as “functional latrines” from which
excreta is removed by humans, thus qualifying a person to contest an election. The horrible
picture that emerges is of insanitary latrines which can be a bigger threat to health and safety
than no latrines. All this was brought to the notice of the court, of which there is no mention in
the judgment.
In essence, cosmetic considerations seems to have prevailed over constitutional rights. The court
holds, “As rightly pointed by the respondents (State of Haryana), if people still do not have a
toilet it is not because of their poverty but because of their lacking the requisite will.” This is like
saying that people are poor because they want to be poor, unhealthy because they want to be
unhealthy, uneducated because they want to be so . There is not a word in the judgment about the
failure of the state to fulfil its own constitutional obligation to provide education and sanitation
universally. Such tender handling of the state reminds me of the phrase used in the ADM
Jabalpur judgment during the days of the Emergency (1975-77) by the late Justice Chandrachud,
“ I have a diamond-bright, diamond-hard hope” that the state will treat its citizens like a benign
mother.
On rural indebtedness being a disqualification from contesting a election, the petitioners pointed
out that indebtedness was such that it was leading to large scale suicides. The court agreed with
the state that such incidents are “very negligible” in Haryana as the agricultural sector of the state
is relatively more prosperous compared to certain other parts of the country.
As a result of this law, a member of a panchayat who owes money to a private electricity
provider will be disqualified from contesting an election. Panchayats will thus become
instruments of debt recovery for the private sector. Be a “role model”, says the court to the
aspiring sarpanch.

3. An entrenched elite will now take over panchayats. We already see the controversy in Kerala of
the corporate sector capturing power in a panchayat election and the conflict of interest
this brings about.
Perhaps the most frightening thing about the Supreme Court’s judgment is the methodology by
which it has reached its conclusion.
The court was for the first time in its history deciding whether the right to content an election
was a constitutional right. For this reason alone, it was obliged to refer the case to a bench of five
judges as required by Article 145 of the constitution. It did not do so, despite a plea to that effect,
of which there is no mention in the judgment. The judgment is also unacceptable for the reason
that it expresses the view that several earlier judgments of the courts on the concept of the right
to vote were given in ignorance of the correct position in law. However, those judgments too
were binding on this court and for that reason too, if the court disagreed with them, they were
bound to refer the matter to a larger bench. Judicial discipline required that to be done.
Finally this judgment will have to be described as one in which the court has abdicated its
responsibility as a constitutional court for it holds “Justness of such a situation is once again in
the realm of the wisdom of the legislation. We do not sit in judgment over the same.”
Perhaps the public messaging on the Swachha Bharat campaign has entered so deep into the
consciousness of the court that it has become its most prominent ambassador.
Indira Jaising is a Delhi-based lawyer in the Supreme Court. She argued the case against the
Haryana law for the interveners from the State of Rajasthan.
http://thewire.in/2015/12/11/the-supreme-courts-judgement-is-frightening-in-its-implicatons-17131/