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TMI Blog2015 (12) TMI 1685X X X X Extracts X X X X X X X X Extracts X X X X ..... I 714 - SUPREME COURT OF INDIA] examined the question regarding the nature of "Right to Contest" while examining the constitutional validity of certain provisions of The Act. The learned Judge R.C. Lahoti (as his Lordship then was) speaking for the Bench held that right to contest an election is neither a Fundamental Right nor a common right. It is a right conferred by statute. His Lordship went on to hold that "at the most, in view of Part IX having been added in the Constitution, a right to contest the election for an office in Panchayat may be said to be a constitutional right. We are bound by this view taken by a three Judge Bench while deciding this question in this writ petition. In the light of aforementioned two authoritative pronouncements, we are of the considered opinion that both the rights namely "Right to Vote" and "Right to Contest" are constitutional rights of the citizen. Keeping in view the powers, authority and the responsibilities of Panchayats as specified in Article 243-G so also the powers given to Panchayats to impose taxes and utilization of funds of the Panchayats as specified in Article 243-H, it is necessary that the elected representative must have some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectuate 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 [Article 243B. Constitution of Panchayats (1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part (2) Notwithstanding anything in clause ( 1 ), Panchayats at the intermediate level may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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[See Footnote 1], 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 [Section 162. Electoral division: - Every sabha area, block and district shall be divided into wards as referred in sections 8(3), 58(2) and 119(b) of this Act]. 9. Section 165 [Section 165. Persons qualified to be registered as voters.- Every person who is entitled to be registered as voter in the relevant part of the electoral rolls of the Assembly under the Representation of Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners 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 ["That the Respondents have passed the impugned Act and Notification without any consideration, regard or appreciation for the empirical data pertaining to the number of people that would be prevented from contesting Panchayati Raj elections by its actions. That the Respondents' actions have the effect of disqualifying 56.80% of the population who would need to be matriculation pass (69,86,197) and 79.76% of the population who would need to be middle-pass (10,83,052), in order to contest elections. That by its actions, the Respondents have prevented an overwhelming majority of the population from contesting elections, in contravention of Article 14, without any regard for Constitutional principles." [See: Ground 'G' of the Petition]; (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 homogeno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 981) 1 SCC 107]. The decision to prescribe such a qualification is in the realm of wisdom of the legislature [In Re: The Kerala Education Bill, 1957, (1959) SCR 995] and the Courts do not sit in review of such wisdom on the ground that the legislative decision is arbitrary [State of A.P. & Others v. Mcdowell & Co. & Others, (1996) 3 SCC 709 (See para 43)]. 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 Amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o elect and also be elected to any one of the legislative bodies created by the Constitution …….".[Para 101. In my opinion, therefore, subject to the fulfillment of the various conditions stipulated in the Constitution or by an appropriate law made in that behalf, 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-the "straight conclusion" of Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, "that every Indian has a right to elect and be elected-subject to statutory regulation", which rights can be curtailed only by a law made by the appropriate legislation, that too on grounds specified under Article 326 only.] 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."[ For complete discussion - see paras 86 to 104 Para 57. All these petitions filed either under Article 32 or under Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in local self-government. We do not agree with this contention. Para 80. In this case, we are dealing with an affirmative action measure and hence the test of proportionality is a far more appropriate standard for exercising judicial review. It cannot be denied that the reservation of chairperson posts in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and women does restrict the rights of political participation of persons from the unreserved categories to a certain extent. However, we feel that the test of reasonable classification is met in view of the legitimate governmental objective of safeguarding the interests of weaker sections by ensuring their adequate representation as well as empowerment in local self-government institutions. The position has been eloquently explained in the respondents' submissions, wherein it has been stated that "the asymmetries of power require that the chairperson should belong to the disadvantaged community so that the agenda of such panchayats is not hijacked for majoritarian reasons". (Cited from the submissions on behalf of the State of Bihar, p. 49.) ]. Their Lordships also failed to notice that the observations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [Para 60. "The purpose of referring to the same is to remind one that the right to contest in an election is a plain and simple statutory right…"] 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 [Section 123(2). Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right]. Right to Vote 32. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 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) [Article 171(3) Of the total number of members of the Legislative council of a State:] (a) as nearly as may be, one third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify; (b) as nearly as may be, one twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university; (c) as nearly as may be, one twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entatives also for Legislative Councils. The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents.]. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible 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 betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the semi-feudal set-up of Indian politics in which still voice of reason is drowned in an uneven conflict with the mythology of individual infallibility and omniscience. Despite high ideals of constitutional philosophy, rationality in our polity is still subordinated to political exhibitionism, intellectual timidity and petty manipulation. The Seventy-third Amendment of the Constitution is addressed to remedy these evils.] 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 exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Gazett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 unconst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule of law upon which our whole constitutional system is based. In Mardia Chemicals case a three- Judge Bench held Section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to be unreasonable and arbitrary and violative of Article 14 of the Constitution. Section 17(2) provides for condition of deposit of 75% of the amount before an appeal could be entertained. The condition has been held to be illusory and oppressive. Malpe Vishwanath Acharya v. State of Maharashtra [(1998) 2 SCC 1], again a decision of a threeJudge Bench, setting aside the decision of the High Court which upheld the provisions of Sections 5(10)(b), 11(1) and 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 pertaining to standard rent in petitions where the constitutional validity of those provisions was challenged on the ground of the same being arbitrary, unreasonable and consequently ultra vires Article 14 of the Constitution, has come to the conclusion that the said provisions are arbitrary and unreasonable."] and therefore violative of Article 14. The submission was resisted by the respondent (Union of India) on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Central Government in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by the Government, is invalid and violative of Article 14 of the Constitution. As a necessary corollary, the provision contained in Section 26 (c) of the Act 45 of 2003 to that extent is also declared invalid."] 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time. Thus, in our view the impugned rule violates the principle of equality enshrined in Article 14 of the Constitution. ] 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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[(1981) 4 SCC 675] no doubt indicate that the doctrine propounded by this Court in E.P. Royappa v. State of Tamil Nadu & Another [(1974) 4 SCC 3] and Maneka Gandhi v. Union of India & Another [(1978) 1 SCC 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antive 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 [An expression used widely and rather indiscriminately - an expression of inherently imprecise import. The extensive use of this expression, in India r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. . . . . it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can join a safe and solid ground for the authority of Courts of Justice to declare void any legislative enactment."] . 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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) [Section 173 (2). Every person who has attained the age of twenty- one years and whose name is in the list of voters shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected from any electoral division.] 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-à-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/Matric & above 5458464 57% 3489821 70% 1968643 43% 949306 46% 631180 59% 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... women (more than 50% of the otherwise eligible women) in general and scheduled caste women in particular would be disqualified to contest PANCHAYAT elections by virtue of the IMPUGNED ACT. Even with regard to men, the data is not very clear as to how many of the literate men would be qualified to contest the elections for PANCHAYATS at various levels. Because for men belonging to general category (39 lakhs), a uniform requirement of matriculation is prescribed in respect of posts for which they seek to contest. Coming to men candidates belonging to the scheduled caste, a uniform academic qualification of "middle pass" is prescribed. How many men under these categories would be qualified to contest is not clear, as the exact data regarding their respective educational qualifications is not available on the record. 82. Coming to scheduled caste women and the proviso to clause (v) of Section 175(1), though educational qualification required is 5th (primary) pass, such a qualification only entitles them to contest an election for the post of PANCH of a village but to no other post. Therefore, if a scheduled caste woman desires to contest either to the post of SARPANCH or any other po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us observations made by this Court regarding the importance of education for two reasons, firstly, nobody is disputing the general proposition that education plays a great role in the evolution of the personality of a human being. Secondly, none of the cases referred to by the AG dealt with the relevance of education in the context of the right to contest any election contemplated by the Constitution. [See: Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel, (2012) 9 SCC 310; Avinash Mehrotra v. Union of India, (2009) 6 SCC 398; P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537; T.R. Kothandaramam v. T.N. Water Supply & Drainage Board; (1994) 6 SCC 282; Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645; Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, (1991) 2 SCC 716; and State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19].]. 85. The impugned provision creates two classes of voters - those who are qualified by virtue of their educational accomplishment to contest the elections to the PANCHAYATS and those who are not. The proclaimed object of such classification is to ensure that those who seek election to PANCHAYATS have some b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, reject the challenge to clause (v) to Section 175(1). 88. We shall now deal with the challenge to clauses (t) and (v) of Section 175(1) of THE ACT. These two clauses disqualify persons who are in arrears of amounts to cooperative bodies specified in clause (t) and the electricity bills. These provisions are challenged on the ground that they impose unreasonable burden on voters who are otherwise eligible to contest the election and therefore create an artificial and unreasonable classification which has no nexus to the objects sought to be achieved by the ACT. 89. Constitution makers recognised indebtedness as a factor which is incompatible in certain circumstances with the right to hold an elected office under the Constitution. Article 102(1)(c) [Article 102. Disqualifications for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament - **** **** **** **** **** **** (c) - if he is an undischarged insolvent; ] and Article 191(1)(c) [Article 191. Disqualifications for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Counc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the insolvency notice) as provided in sub-section (3) and the debtor does not comply with that notice within the period specified therein: Provided that where a debtor makes an application under sub-section (5) for setting aside an insolvency notice- (a) in a case where such application is allowed by the District Court, he shall not be deemed to have committed an act of insolvency under this sub- section; and (b) in a case where such application is rejected by the District Court, he shall be deemed to have committed an act of insolvency under this sub- section on the date of rejection of the application or the expiry of the period specified in the insolvency notice for its compliance, whichever is later: ] of the Provincial Insolvency Act, 1920 and Section 9 [Section 9. Acts of insolvency.- (1) A debtor commits an act of insolvency in each of the following cases, namely;- a) if, in the States or elsewhere, he makes a transfer of all or substantially all his property to a third person for the benefit of his creditors generally; b) if, in the States or elsewhere, he makes a transfer of his property or of any part thereof with intent to defeat or delay his creditors; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gory of indebtedness. If the Constitution makers considered that people who are insolvent are not eligible to seek various elected public offices, we do not understand what could be the constitutional infirmity if the legislature declares people who are indebted to cooperative bodies or in arrears of electricity bills to be ineligible to become elected representatives of the people in PANCHAYATS. It must be remembered that insolvency is a field over which both the Parliament as well as the legislatures of the State have a legislative competence concurrently to make laws as it is one of the topics indicated under Entry 9 [Bankruptcy and Insolvency.] , List III of the Seventh Schedule to the Constitution. 91. The submission is that rural India is heavily indebted and particularly agriculturists who constitute a majority of our rural population are deeply indebted and reportedly a large number of agriculturists have been committing suicides as they are not able to bear the burden of indebtedness. Therefore, prescriptions under clauses (t) and (v) of Section 175(1) of the Act is an arbitrary prescription creating a class of persons who would become ineligible to contest Panchayat ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wisdom of the legislation. We do not sit in the judgment over the same. But we must make it clear nothing in law prevents an aspirant to contest an election to the PANCHAYAT to make payments under protest of the amounts claimed to be due from him and seek adjudication of the legality of the dues by an appropriate forum. We do not see any substance in the challenge to clauses (t) and (v) of Section 175(1) of the Act. 93. Clause (w) disqualifies a person from contesting an election to the Panchayat if such a person has no functional toilet at his place of residence. Once again the submission on behalf of the petitioners is that a large number of rural population simply cannot afford to have a toilet at their residence as it is beyond their economic means. To render them disqualified for contesting elections to the PANCHAYATS would be to make an unreasonable classification of otherwise eligible persons to contest elections to PANCHAYAT and, therefore, discriminatory. 94. It is submitted on behalf of respondents that the submission of the petitioner is without any factual basis. According to statistical data available with the State, there are approximately 8.5 lakhs house holde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of the above scheme. Therefore, according to the respondents if any person in the State of Haryana is not having a functioning toilet at his residence it is not because that he cannot afford to have a toilet but because he has no intention of having such facility at his residence. It is very forcefully submitted by the learned Attorney General that a salutary provision designed as a step for eliminating the unhealthy practice of rural India of defecating in public, ought not to be invalidated. 95. It is a notorious fact that the Indian [In England this habit existed till 15th Century at least, "poor sanitation made London a death-trap. Without any kind of sewage system, the streets stank to high heaven, whereas human excrement was systematically collected in Chinese cities and used as fertilizer in outlying paddy fields. In the days when Dick Whittington was lord mayor - four times between 1397 and his death in 1423 - the streets of London were paved with something altogether less appealing than gold.", [Niall Ferguson, Civilization : The West and the Rest , (First Edition, Penguin Press, 2011)] page 23] population for a long time had this unhealthy practice of defecating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of the two rights of the citizen - "Right to Vote" and "Right to Contest" viz- whether they are statutory right or constitutional right? 3. A three Judge Bench in PUCL vs. Union of India [(2003) 4 SCC 399] examined the question regarding nature of "Right to Vote". The learned Judge P.V. Reddi, in his separate opinion, which was concurred by Justice D.M. Dharmadhikari, examined this question in great detail and in express terms, answered it holding that the "Right to Vote" is a constitutional right but not merely a statutory right. We are bound by this view taken by a three Judge Bench while deciding this question in this writ petition. 4. Similarly, another three Judge Bench in Javed vs. State of Haryana [(2003) 8 SCC 369] examined the question regarding the nature of "Right to Contest" while examining the constitutional validity of certain provisions of The Act. The learned Judge R.C. Lahoti (as his Lordship then was) speaking for the Bench held that right to contest an election is neither a Fundamental Right nor a common right. It is a right conferred by statute. His Lordship went on to hold that "at the most, in view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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