[Lastly, the Court failed entirely to ask itself a very basic question: why is it that we have a system of voting, and of elections? Is it to select the “best” candidates, those who can – in the words of the Court – set an “example” to the rest? Or is it to effectuate the peoples’ sovereign, democratic choice, where that choice includes the right to select a candidate who might not be the best, or the most efficient, but who faithfully and truly reflects the voters’ aspirations? At the dawn of our Constitution, by guaranteeing universal suffrage in a country racked with inequality and illiteracy, our framers took a great leap of faith. By allowing the State to artificially curtail the pool of eligible candidates whom the voters could choose from, the Court has radically undermined this faith. The judgment, in essence, is an affront to democracy. (Excerpted from, and highlighted in, the comment at sl. no. II below.)]
I/II. http://thewire.in/2015/12/11/the-supreme-courts-judgement-is-frightening-in-its-implicatons-17131/ A Judgement on Democracy That is Frightening in Its Implicatons BY INDIRA JAISING ON 11/12/2015 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. 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. 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. II. http://scroll.in/article/775203/the-anti-democratic-verdict-of-the-unelected-the-supreme-court-on-the-haryana-panchayati-raj-act OPINION The anti-democratic verdict of the unelected: The Supreme Court on the Haryana Panchayati Raj Act The apex court judgment imposing certain restrictions upon the right to contest Panchayat elections, in essence, is an affront to democracy. Gautam Bhatia · Yesterday · 07:30 pm Earlier this year, the state of Haryana – following the state of Rajasthan – amended its Panchayati Raj Act. Through the Amendment, it introduced certain restrictions upon the right to contest Panchayat elections. These restrictions included the requirement of education (up to a certain level), having a functional toilet in one’s house, and being debt-free. As any student of history knows, educational, property and debt restrictions upon voting and standing for elections, were a standard tool used by regressive States to contain the political power of suppressed constituencies, whether it was the blacks in Jim Crow America, or Indians under the colonial British government. Haryana’s move was promptly challenged in the Supreme Court. In a judgment that came as a surprise to many, on December 10, 2015, the Court rejected the challenge, and upheld the law, disenfranchising a significant number of people. The rights to vote and contest The root of the controversy is a strange anomaly in our Constitution. Despite the fact that our nation is built upon the foundation of republican democracy (which the Supreme Court has held to be part of the Constitution’s basic structure), the rights to vote and contest find no place in the list of fundamental rights guaranteed by Part III of the Constitution. While Article 326 of the Constitution does stipulate that elections must be conducted on the basis of universal suffrage, there is no “fundamental right” to vote, or to stand for election. For this reason, the challengers to Haryana and Rajasthan’s laws could not directly claim the violation of a right; instead, they argued that the law violated Article 14 of the Constitution, which guarantees equal treatment to all. Restrictions based upon education, upon debt, and upon property, placed an unjustified burden upon the class of people that they disenfranchised, and therefore, violated the right to equality. Interestingly, on a survey of its prior jurisprudence, the Court first concluded that the right to contest elections, despite not being a fundamental right, was nonetheless a “constitutional right”. The Court did not explain the distinction between a fundamental right, a constitutional right, and a mere legal right (that can be created and taken away by the simple passage of a law). Presumably, however, a “constitutional right” occupies a place somewhat lower than a “fundamental right” (which can be curtailed only on grounds specified within the Constitution), but somewhat above a legal right. Equality and its discontents It is at this stage, however, that the judgment suddenly changes track. After holding that the right to contest was a constitutional right, the Court moved to examine the Article 14 question. Ordinarily, an Article 14 challenge involves a multi-layered enquiry. Once it is shown that a law creates two classes of persons, whom it treats differently, Article 14 is violated unless it can be shown that the classification follows an “intelligible differentia”, and that it bears a “rational nexus” with a legitimate governmental aim. For instance, the State may place a high rate of tax upon cigarettes. This tax, which burdens smokers more heavily than non-smokers, will be constitutional because the two categories (smokers and non-smokers) are intelligibly different, and because the burden is rationally connected to the State’s legitimate interest in promoting public health. The key question at the bar, therefore, was whether the educational, property and debt restrictions, which created two classes of people (those who could, and those who could not contest), bore any rational nexus with a legitimate government aim. Given that the Court had already held that the right to contest was a “constitutional right”, one would have expected it to hold the government to a strict standard of proof, requiring it to adduce evidence showing that the restrictions were actually needed in the context of ensuring the integrity of the electoral process, or necessary for performing the functions asked of elected representatives. The Court, however, did no such thing. On the question of education, it simply noted that education is required for distinguishing between right and wrong, and between good and bad. On the basis of this gross stereotype, and without examining any evidence about the actual functioning of Panchayati Raj institutions on the ground, the Court in one fell swoop disenfranchised a large section of the population who had lacked the privilege needed to access education in a country as riddled with poverty and exclusion as India. The Court’s treatment of the debt and property (toilet) questions was even more cavalier. On the first, the Court held – astonishingly – that since elections were an expensive affair, persons in debt were unlikely to even try and contest – and that consequently, the question was more “theoretical” than real. In any event, the Court held, debt-free citizens could serve as an “example” to the rest of the community, and that therefore, there was nothing wrong with excluding the indebted from fighting elections. Once again, the Court’s observation reflects a very basic moral and intellectual failure. The positing of indebtedness as an individual choice, which reflects personal weakness of character (which, in turn, makes one unfit to serve as an elected representative) ignores the fact that the cause of indebtedness – and primarily, rural indebtedness – is primarily structural, not individual. It could arise out of crop failure, a bad monsoon, and above all else, the absence of any viable social safety net provided by the State. Much like in the case of education, the Court perversely penalised the most vulnerable members of society for having been failed by the State and the community. The Court’s reasoning on toilets reflected a similar (classist) bias: pointing to the government’s extensive toilet program (and ignoring evidence to the contrary), the Court ended with a bizarre generalisation, stating that if persons do not possess a toilet in their house, it is not because of their povery, but because of a “lack of will.” In sum, the Court’s analysis makes a mockery of one of the foundational rights of the Constitution: the right to equality. By upholding the deprivation of the important constitutional right to contest elections on the basis of stereotypes and generalisations, the Court has abdicated its basic role as the guardian and sentinel of fundamental rights. Discrimination in intent and effect There is one other sin of omission in the Court’s judgment. The restrictions, while based on ostensibly “neutral” criteria such as education, debt, and property, in effect would operate to exclude the most vulnerable sections of society – such as women, and lower castes. The discriminatory effect of seemingly neutral laws has been understood and acted upon by Courts all over the world. The highest courts of Canada, South Africa, and the United Kingdom, when scrutinising laws for compliance with the principle of non-discrimination, do not merely ask whether, by its very words, the law burdens women, or blacks, or homosexuals, but whether it does so in its effects. At the root of this is the understanding that discrimination is not always the result of perverse individual motivation, but arises out of structures and institutions that are designed in such a manner that unfairly burden already vulnerable communities. For instance, the denial of pregnancy leave in the workplace, while seemingly only targeting people who get pregnant, ultimately acts as a serious disincentive for women who are attempting to balance a career and a family. In recent years, the Indian judiciary has also caught up with international developments, and has begun to hold that discrimination must be examined from the perspective of both intention, and effect. Unfortunately, in its Panchayati Raj judgment, the Court entirely ignored the effect of the restrictions upon the political participation of lower castes and of women, two groups that the Constitution specifically singles out for protection and advancement. Why Vote? ***Lastly, the Court failed entirely to ask itself a very basic question: why is it that we have a system of voting, and of elections? Is it to select the “best” candidates, those who can – in the words of the Court – set an “example” to the rest? Or is it to effectuate the peoples’ sovereign, democratic choice, where that choice includes the right to select a candidate who might not be the best, or the most efficient, but who faithfully and truly reflects the voters’ aspirations? At the dawn of our Constitution, by guaranteeing universal suffrage in a country racked with inequality and illiteracy, our framers took a great leap of faith. By allowing the State to artificially curtail the pool of eligible candidates whom the voters could choose from, the Court has radically undermined this faith. The judgment, in essence, is an affront to democracy.*** [Emphasis added.] Gautam Bhatia is a practicing lawyer in Delhi. His book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (OUP 2015) will be available in bookstores from 14 December. He assisted the petitioners in this case, challenging the constitutionality of the Panchayati Raj amendments. -- Peace Is Doable -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. To post to this group, send an email to [email protected]. Visit this group at https://groups.google.com/group/greenyouth. For more options, visit https://groups.google.com/d/optout.
