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RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

Constitutional Law
Analysis of Rajbala Judgement
Under the guidance of
Dr. Uday Shankar

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Table of Contents
LIST OF CASES REFERRED .................................................................................................................... 1
INTRODUCTION .............................................................................................................................. 2
OBJECT NEXUS TEST- TEST OF EQUALITY UNDER ARTICLE 14 ........................................ 2
VISION AND OBJECTIVE OF ELECTIONS .................................................................................. 8
THE LAW IS VIOLATIVE OF ARTICLE 15 ................................................................................... 9
CONCLUSION ................................................................................................................................. 11
LIST OF BOOKS REFERRED ................................................................................................................. 12

LIST OF CASES REFERRED

S.NO. CASE TITLE CITATION

1. Budhan Choudhry v. The State Of Bihar [1955] 1 S.C.R. 1045

2. Anwar Ali Sarkar v. The State Of West Bengal AIR 1952 CAL 150

3. G.Narayanaswami v. G. Panneerselvam AIR 1972 SC 2284

Union Of India v. Association For Democratic
4. Reform AIR 2002 SC 2112
People's Union Of Civil Liberties v. Union Of
5. India & Anr AIR 2005 SC 2419

6. PUCL v. The Union Of India,2003 AIR 2003 SC 2363

7. PUCL v. The Union Of India,2014 AIR 2014 CHH 133

Supreme Court Advocates-On-Record-
8. Association And Ors v. Union Of India 2015(5) GLT (SC)12
Mohinder Singh Gill v. Chief Election
9. Commissioner (1977) ILR 2DELHI265

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Introduction

More than any other provision in the Constitution. I should think the boldest step taken by

this Assembly is in the matter of universal adult suffrage with a belief in the common man

and in his power to shape the future of the country1 -Alladi Krishnaswamy Ayyar;

Unfortunately ,Six decades after independence the supreme court has given a decision that

has undermined this very boldness that the constituent assembly took while framing the

constitution .The top courts decision on Rajbala case, in which it declared the

disqualifications based on education and other parameters as constitutionally valid ; is

seriously flawed, and has various constitutional infirmities. The apex courts decision goes

against the equality and various other principles embodied in the constitution.

OBJECT NEXUS TEST- TEST OF EQUALITY UNDER ARTICLE 14

The Haryana government amended Section 175 of the Haryana Panchayati raj act,

1994 in the year 2015 to include disqualifications for participation in panchayat elections on

the basis of educational status, defaulting on loans, and having functional toilet facilities at

home which goes against the equality principle of article 14. Article 14 of the Indian

constitution provides the state shall not deny to any person equality before the law or the

equal protection of laws within the territory of India. Similarly, Equality before law

implies the absence of any special privilege by reason of birth, creed or the like, in favour of

individual and the equal subjection of all classes to the ordinary law,-Equal protection of

laws implies the right to equality of treatment in equal circumstances2.To test the validity of

article 14 the supreme court set out a test called as the object nexus test In Budhan

1
CONSTITUENT ASSEMBLY DEBATES, VOL. VIII, PG. 122-4
2
INTRODUCTION TO CONSTITUTION OF INDIA ,DD BASU PAGES 87-88

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Choudhry v. the State of Bihar3 by the following words: In order, to pass the test of

permissible classification two conditions must be fulfilled, namely,

1. the classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from others left out of the group;

and

2. That differentia must have rational relation to the object sought to be achieved

by the statute in question."

And then in Anwar Ali Sarkar vs The State of West Bengal4 the learned judge S.R.

Das, J. further elaborated that The differentia which is the basis of the classification and the

object of the Act are distinct and what is necessary is that there must be nexus between them.

The Haryana Panchayati Raj (Amendment) Act, 2015 was formed by 73rd Amendment,

which states that one of the objects of constitutionalizing the Panchayati Raj institutions is to

remedy the insufficient representation of weaker sections like Scheduled Castes, Scheduled

Tribes and women. Furthermore, The Haryana Panchayati Raj (Amendment) Act has

following purposes

1. to create a right of political participation and self-governance by opening up

positions to institutions with statutory power for those hitherto deprived of it;

2. to encourage such constituted bodies to engage in certain activities like

Education, including primary and secondary schools, Poverty alleviation programme, and

promotion of certain other goals

Imposing a restriction on (1) to serve the object of (2) ostensibly is dubious logic. A

statutory amendment, to survive the object-nexus test, ought to be consistent with the

3
[1955] 1 S.C.R. 1045
4
AIR 1952 CAL 150

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corresponding object of the main Statute or the Constitutional Amendment authorizing the

statute. Thus, restricting participation in elections to promote literacy would fail the object-

nexus doctrine of Article 14.

Educational criteria for franchise in elections

The framers of the Constitution did not think it fit to include educational qualification

as necessary for the Members of Legislative Assemblies and Parliament. In constituent

assembly debate regarding disqualifications in elections, T. T. Krishnamachari said that if

politics is indeed the last refuge of a scoundrel or if basic education helps a human being

distinguish between good and bad, right and wrong, why does none of the pertaining articles

to elections of President (Article58), Vice President(Article 66(3)), Member of Lok Sabha,

Rajya Sabha or Member of Legislative Assembly(Articles 84, 102, 173 and 191), not have

education as a qualification or disqualification?5

In the same sense, Alladi Krishnaswamy Ayyar said If democracy is to be broad

based, and the system of governments that is to function is to have the ultimate sanction of the

people as a whole, in a country where the large mass of the people are illiterate, and the

people owning property are so few, the introduction of any property or educational

qualifications for the exercise of the franchise would be a negation of the principles of

democracy. This Assembly deserves to be congratulated on adopting the principle of adult

suffrage.6"

Similarly, Article 171 provides for the composition of Legislative Councils in a State.

It makes separate constituencies of graduates to elect members to the Legislative Council. It

is obligatory to be a graduate to elect a certain proportion of members of the Legislative

Council, but it is immaterial if the person elected is a graduate; based on this article The

5
CONSTITUENT ASSEMBLY DEBATES, VOL. VIII, PG. 222-7
6
CONSTITUENT ASSEMBLY DEBATES, VOL. VIII, PG. 721-4

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Supreme Court ruled in the case of G.Narayanaswami v. G. Panneerselvam7 as: 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 it would be for the members of such a constituency themselves to decide whether

a person who stands for election from their constituency possesses the right type of

knowledge, experience, and wisdom which satisfy certain standards. It may well be that the

Constitution makers, acting upon such a presumption, had intentionally left the educational

qualifications of a candidate for election from the graduate's constituency unspecified.

Furthermore, Literacy is defined in Census operations, as the ability to read and write

with understanding in any language. A person who can merely read but cannot write is not

classified as literate. Any formal education or minimum educational standard is not

necessary to be considered literate. Thus it is clear that determining literacy by education is

itself a flawed approach.

Also, The Haryana Panchayati Raj (Amendment) Act, 2015 mandates that

matriculation is required for a general male candidate, middle pass for a general woman

candidate and Scheduled Caste (SC) male candidate and only Class 5 pass for an SC woman

candidate. Man or woman, SC or general, the functions of a panchayat member is the same.

So if a Class 5 passed candidate is enough to discharge a members function, asking for a

higher qualification of the middle pass and matriculation is arbitrary and anomalous.

Thus, the legislation by creating a priori disqualification clause is treating a

democratic election process as public employment. Even if we consider panchayat elections

as public employment, the law will fail the test of Article 16 which provides equality of

opportunity in public employment.

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AIR 1972 SC 2284

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Providing disqualifications based on education violates the Article 14 as it creates an

unreasonable classification and also violates the basic structure doctrine enshrined Article

368 of the constitution in two ways:

Firstly, the State should not be allowed to introduce extraneous considerations

such as family planning or increasing literacy to justify any legislation. This type of laws

would amount to what is called an unconstitutional condition i.e., subjecting the exercise of

constitutional freedoms to conditions that cannot otherwise be located within the

Constitution.

Secondly, the State should be required to justify the relationship between the

restrictions that it has imposed, and the fundamental place of the electoral process in a

republican democracy. For instance, a law that prohibits persons with criminal convictions

from standing for elections has a demonstrable nexus with the role of elections in the

democratic process. A law that prohibits persons by literacy does not.

Moreover, under Article 21 Right to Education has been made a fundamental right

and it is the responsibility of the state to provide quality education to its subjects. By

delegating this towards individuals, the legislature has enacted an arbitrary act ultra vires to

the constitution.

Poverty and not lack of will the reason for ill iteracy

In the State Of Tamil Nadu & Ors vs K Shyam Sunder & Ors on 9 August 2011, the

Supreme Court observed that, the right of a child should not be restricted only to free and

compulsory education, but should be extended to have quality education without any

discrimination on the ground of their economic, social and cultural background.

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The wordings of the article 21A explicitly mention that "The State shall provide free

and compulsory education to all children of the age of six to fourteen years in such manner as

the State may, by law, determine." The word free clearly implies here that lack of

education is not because of the will of the individual but due to object poverty and other

institutional factors like

1. Poverty (resulting in the shaping of parental motivation in favour of education

of their male offspring, thus implanting gender inequality in the formative years of life)

2. Low quality of schooling.

3. traditional outlook of the lower class in using the services of young children

either for earning some additional money or looking after their younger siblings at home

4. Low allotment of government funds to the education sector

Finally, in the People's Union of Civil Liberties vs Union of India & Anr8, The court

observed that character, sense of devotion to duty and concern for the welfare of the people is

not the monopoly of well-educated persons.

Taking all these in to account, it would be justified If the purpose of the election is to

select the most competent candidate, then conceivably, the legislature may impose a priori

disqualifications on the basis that these qualifications to create a preliminary threshold of

competence, ensuring that people who fall below this threshold arent even eligible to

participate in the process (whether as electors, or as candidates),but the purpose of suffrage is

to give effect to the choice of the people, and hence there is no justification for limiting that

choice on the assumption that by allowing everyone to contest, there is a possibility of the

wrong or less qualified candidates, being chosen.

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AIR 2005 SC 2419

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Vision and objective of elections

In 1919, Ambedkar was called upon to give evidence to the Southborough Committee

on Franchise, which was set up to look into designing a system of representation for the

Indian dominion. According to him The right of representation and the right to hold office

under the State are the two most important rights that make up citizenship.

In Union of India v. Association for Democratic Reforms9, the Supreme Court held

that no law could restrict a voters right to decide for himself whether educational

qualification or property of a person is relevant for the latter to be elected or re-elected as his

representative. Republican democracy is based on the core idea that every citizen has the

freedom to participate in the workings of democracy, whether by voting or by standing for

elected office. Every limitation upon this freedom is problematic. This is especially true when

the restriction affects those most marginalized by the political process.

In Union of India vs Association for Democratic Reforms, the Court held that the

right to vote, while not a fundamental right, was nonetheless a constitutional right, and

through PUCL vs the Union of India, 2003 10to PUCL vs the Union of India, 201411, where

the Court held that the act of voting is an exercise of Article 19(1)(a) freedoms. In

conclusion, a legislative enactment that goes beyond simply regulating the modalities of

voting (and therefore affects the statutory right to vote) and actually disenfranchises

sections of the population (thereby affecting the constitutional freedom of voting) must be

9
AIR 2002 SC 2112
10
AIR 2003 SC 2363
11
AIR 2014 Chh133

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subjected to more rigorous scrutiny than a standard Article 14-rationality review. The logic of

voting applies equally to the logic of running for office.

The right / freedom to vote, and the right/freedom to stand for office are conceptually

inseparable, as they form equally integral parts of the democratic process.Justice

Chelameshwars in his Dissenting Opinion in the Supreme Court Advocates-on-Record-

Association and Ors vs. Union of India(NJAC case)12 (observes in paragraph 85 that,

Undoubtedly, the right created favour of citizens of India to participate in the election

process of the Lok Sabha, and the Legislative Assemblies is an integral part of the basic

feature i.e. democracy.

The Haryana Panchayati Raj(Amendment) Act, 2015 is also violative of the Supreme

Courts own judgment by Justice Krishna Iyer in Mohinder Singh Gill v. Chief Election

Commissioner that the little mans right to rise to Prime Ministership13 or President ship

cannot be wished away.

The vision of democracy as envisaged by our founding fathers is one based not on

ensuring the most competent candidate wins (by whatever a priori definition of

competence), but on giving effect to the peoples choice. Apparently, prior screening out of

candidates violates that principle. Thus providing disqualifications based on education

defeats the very purpose of the democratic form of the electoral process as envisaged by our

founding fathers and also goes against Equality Principles of Art 14.

12
2015(5) GLT (SC)12
13
(1977) ILR 2Delhi265

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The law is violative of Article 15

Article 243D (4) of the Constitution of India provides that not less than one-third of

the total number of offices of Chairpersons in Panchayats at each level shall be reserved for

women. However, the actual number of offices reserved is determined by the provisions of

the Panchayati Raj Act of each State. As per 2011 census, The Haryana Panchayati

Raj(Amendment) Act, 2015 leaves 68 per cent of the Scheduled Caste women unable to

participate and thus creating a discrimination among the most weaker section of schedule

caste women.

When there are no educational qualifications at the Union and the State Government

level for Ministers of Legislative Assembly and Ministers of Parliament, such a rule for the

most vulnerable sections at the rural level who have the least educational qualifications is a

grave injustice meted to them. The introduction of such inequitable disqualification criteria

excludes the bulk of the non-literate women from the possibility of exercising their political

right to contest elections.

Disqualification based on education would render renders 68% of schedule caste

women ineligible thereby affecting the most oppressed section of society. Thus the legislation

completely violates the special rights provided to women under Article 15.

The requirement of a functional toilet at home:

A functional toilet requires it is understood as, a simple flush system and lots of

water. There is no data produced by the State of Haryana that a pipeline is available to all the

people in their State. Without a pipeline, it is impossible to install a functional toilet.

Moreover imposing toilet requirement would amount to property restrictions and which is

against electoral process envisaged in the constitution on requirement that a person going to

contest panchayat polls should have electricity bill arrears.

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A Person may not be able to pay his bill on time due to poverty, or for the mere

reason that the bill was not delivered by the electricity authorities on time; or the meter is

faulty, or the possibility of wrong calculation of arrears or the person is bonafide unaware of

his dues.

The impugned legislation is creating anomalous situation about

disqualifications

Article 243-F (1) (a) mandate that the disqualifications for an MLA and a panchayat

member should be the same under the Constitution and the Representation of the People Act,

1951. The Haryana Panchayati Raj (Amendment) Act, 2015 violates this principle by creating

an anomalous situation; through allowing a person facing disqualification in panchayat

elections to contest the elections for MP and MLA.

In Minerva Mills Ltd. & Ors. v. Union of India & Ors14Chandrachud, CJ., writing the

judgment for the majority of the Judges of the Constitution Bench, has held that Articles 14,

19 and 21 of the Constitution constitute the golden triangle which affords to the people of this

country an assurance that the promise held forth by the Preamble will be performed by

ushering an egalitarian era through the discipline of fundamental rights, that is, without

emasculation of the rights to liberty and equality which alone can help preserve the dignity of

the individual.

Conclusion
In conclusion, the supreme needs to review its judgement in the Rajbala case as the

disqualifications based on education and other parameters does not confirm to the various

tests propounded by the court in establishing the validity of a legislation under article

14.Moreover the entire legislation also violates the rights of women under article 15 and

14
AIR 1986 SC 2030

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freedoms provided under article 19.Thus in the best interest of the nations democracy the

supreme court need to constitute a larger bench to look to the issues raise and overrule its

earlier judgement to save democratic ideals of this great nation .

LIST OF BOOKS REFERRED

S.NO Book Title

M.P. Jain, Indian Constitutional Law, 265
1. (6th Ed., Lexis Nexis Butter WorthsWadhwa 2011)

Constitution of India, P.M.Bakshi,Universal Law PublishingCompany,12th

2.
Edition
Constitutional Law of India, (In 3 Volumes, Reprint), Universal Law
3.
Publishing
4. Introduction to Indian Constitution ,D D Basu

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