validity of Section 175 (1)(v) of the Act which provides
that candidate must possess certain minimum
educational qualification if he/she wants to contest
an election. In my opinion, introduction of such
provision prescribing certain minimum educational
qualification criteria as one of the qualifications for a
candidate to contest the election has a reasonable
nexus with the object sought to be achieved.
8. In fact, keeping in view the powers, authority and
the responsibilities of Panchayats as specified in
Article 243-G so also the powers given to Panchayat
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 educational background to enable him/her to
effectively carry out the functions assigned
Panchyats in Part IX. It is the legislative wisdom to
decide as to what should be the minimum
qualifications, which should be provided in the Act.
No one can dispute that education is must for
both men and women as both together make a healthy
and educated society. It is an essential tool for a
bright future and plays an important role in the
development and progress of the country.
In my view, therefore, Section 175 (v) of the Act is
intra vires the Constitution and is thus
constitutionally valid.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 671 OF 2015
Rajbala & Others … Petitioners
Versus
State of Haryana & Others … Respondents
Dated;December 10, 2015.
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. Page 2
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.
2Page 3
4. Under Article 243B1
, 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
tenure3
.
1 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 not be
constituted in a State having a population not exceeding twenty lakhs
2 Article 243(d). “Panchayat” means an institution (by whatever name called) of selfgovernment
constituted under article 243B, for the rural areas;
3 Article 243E. Duration of Panchayats, etc - (1) Every Panchayat, unless sooner dissolved under any
law for the time being in force, shall continue for five years from the date appointed for its first meeting
and no longer.
(2) No amendment of any law for the time being in force shall have the effect of causing
dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the
expiration of its duration specified in clause ( 1 ).
(3) An election to constitute a Panchayat shall be completed-
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution:
3Page 4
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 243B4
, 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 wards5
.
Provided that where the remainder of the period for which the dissolved Panchayat
would have continued is less than six months, it shall not be necessary to hold any election under this
clause for constituting the Panchayat for such period.
(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its
duration shall continue only for the remainder of the period for which the dissolved Panchayat would
have continued under clause (1) had it not been so dissolved.
4
See Footnote 1
5
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.
4Page 5
9. Section 1656
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 ACT7
, 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
6 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 People Act,
1950, shall be entitled to be registered as a voter in the list of voters for the electoral division to be prepared
under section 164.
7
Initially, an ordinance known as “Haryana Panchayat Raj (Amendment) Ordinance, 2015 was
promulgated on 14.8.2015 now replaced by the Impugned Act which was passed by the Haryana
Legislature on 7.9.2015 and subsequently notified.
5Page 6
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
6Page 7
Constitution. They create unreasonable restrictions on the
constitutional right of voters to contest elections under the
ACT8
; (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
achieved9
.
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
8
“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]
9
“no reasonable nexus between the impugned classifications set out in the impugned Act, and the object of the Act.
That the imposition of disqualifications on the grounds laid down by the impugned Act are entirely irrelevant to, and
have no bearing whatsoever on the ability of potential candidates to effectively discharge their duties and perform their
functions as members/heads of Panchayati Raj institutions.” [See: Ground ‘A’ of the Petition]
7Page 8
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.
8Page 9
17. The learned Attorney General also submitted that the
legislature best comprehends the needs of the society10. The
decision to prescribe such a qualification is in the realm of
wisdom of the legislature11 and the Courts do not sit in review
of such wisdom on the ground that the legislative decision is
arbitrary12
.
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
10 Maru Ram v. Union of India & Others, (1981) 1 SCC 107
11 In Re: The Kerala Education Bill, 1957, (1959) SCR 995
12 State of A.P. & Others v. Mcdowell & Co. & Others, (1996) 3 SCC 709 [See para 43]
9Page 10
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
10Page 11
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
agreed13. 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
13 Para 131. With these words, I agree with Conclusions (A) to (E) in the opinion of Brother Shah, J. and
Conclusions (1), (2), (4), (5), (6), (7) and (9) in the opinion of Brother P.V. Reddi, J.
14
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.
11Page 12
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).
For complete discussion - see paras 86 to 104.
15
Para 57. All these petitions filed either under Article 32 or under Article 136 raise certain
common and substantial questions of law as to the interpretation of the Constitution. The lis, essentially, is
between the Election Commission of India, a creature of the Constitution under Article 324, on the one
hand and various bodies claiming to be political parties and some of their functionaries, on the other hand.
The essence of the dispute is whether a political party is entitled for the allotment of an election symbol on
a permanent basis irrespective of its participation and performance judged by the vote share it commanded
at any election.
12Page 13
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
13Page 14
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
16
Para 12. However, the petitioners raised strong objections against the other aspects of the reservation
policy contemplated under Articles 243-D and 243-T. Initially, they had assailed the reservation of seats in
14Page 15
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 consideration18. 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
favour of women, which has been enabled by Articles 243-D(2) and (3) with respect to rural local bodies,
and by Articles 243-T(2) and (3) with respect to urban local bodies. However, this challenge was given
up during the course of the arguments before this Court and the thrust of the petitioner’s arguments
was directed towards the following two aspects:
• Firstly, objections were raised against Article 243-D(6) and Article 243-T(6) since they
enable reservations of seats and chairperson posts in favour of backward classes, without any
guidance on how to identify these beneficiaries and the quantum of reservation.
• Secondly, it was argued that the reservation of chairperson posts in the manner
contemplated under Articles 243-D(4) and 243-T(4) is unconstitutional, irrespective of whether
these reservations are implemented on a rotational basis and irrespective of whether the
beneficiaries are SCs, STs and women. The objection was directed against the very principle of
reserving chairperson posts in elected local bodies.
17 See Para 13 of K. Krishna Murthy case
18 Para 79. The petitioners have asked us to reconsider the precedents wherein the rights of political
participation have been characterised as statutory rights. It has been argued that in view of the standard
of reasonableness, fairness and non-discrimination required of governmental action under Article 21 of the
Constitution, there is a case for invalidating the restrictions that have been placed on these rights as a
consequence of reservations 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.)
15Page 16
bodies are wholly inapplicable and without examining
provisions of the Constitution as amended by the 74th
Amendment.
29. They relied upon observation19 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
19 Para 2. Democracy is a concept, a political philosophy, an ideal practised by many nations culturally
advanced and politically mature by resorting to governance by representatives of the people elected directly
or indirectly. But electing representatives to govern is neither a ‘fundamental right’ nor a ‘common law
right’ but a special right created by the statutes, or a ‘political right’ or ‘privilege’ and not a ‘natural’,
‘absolute’ or ‘vested right’. ‘Concepts familiar to common law and equity must remain strangers to election
law unless statutorily embodied.’ Right to remove an elected representative, too, must stem out of the
statute as ‘in the absence of a constitutional restriction it is within the power of a legislature to enact a law
for the recall of officers’. Its existence or validity can be decided on the provision of the Act and not, as a
matter of policy.
16Page 17
1990, i.e. prior to 74th Amendment of the Constitution20
.
Therefore, the right to vote and contest at an election for a
municipality was certainly a statutory right by the date of the
judgment21 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 right22
.
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 same23
.
20 Introduced Part IX-A of the Constitution dealing with Municipalities w.e.f. 1.6.1993
21 The judgment of Allahabad High Court is dated 19.2.1991 and the appeal in this Court is decided on
15.5.1992.
22 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…”
23 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:
17Page 18
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 elected24. 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
24 Article 80. Composition of the Council of States.- (1) The Council of States shall consist of (a) twelve
members to be nominated by the President in accordance with the provisions of clause (3); and (b) not
more than two hundred and thirty eight representatives of the States and of the Union territories.
(2) The allocation of seats in the Council of States to be filled by representatives of the States and
of the Union territories shall be in accordance with the provisions in that behalf contained in the fourth
Schedule.
(3) The members to be nominated by the President under sub clause (a) of clause (1) shall consist
of persons having special knowledge or practical experience in respect of such matters as the following,
namely:
Literature, science, art and social service.
(4) The representatives of each State in the council of States shall be elected by the elected
members of the Legislative Assembly of the State in accordance with the system of proportional
representation by means of the single transferable vote.
(5) The representatives of the Union Territories in the council of States shall be chosen in such
manner as Parliament may by law prescribe.
18Page 19
(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
25 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 educational institutions within the State, not lower
in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament;
(d) as nearly as may be, one third shall be elected by the members of the Legislative Assembly of
the State from amongst persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor in accordance with the provisions of clause
(5)
19Page 20
Union Territories26. 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 category27
.
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
26 Article 80(4). The representatives of each State in the council of States shall be elected by the elected
members of the Legislative Assembly of the State in accordance with the system of proportional
representation by means of the single transferable vote.
27 G. Narayanaswami v. G. Pannerselvam & Others [(1972) 3 SCC 717]
“Para 14. Whatever may have been the opinions of Constitution-makers or of their advisers,
whose views are cited in the judgment under appeal, it is not possible to say, on a perusal of Article 171 of
the Constitution, that the Second Chambers set up in nine States in India were meant to incorporate the
principle of what is known as “functional” or “vocational” representation which has been advocated by
Guild-Socialist and Syndicalist Schools of Political Thought. Some of the observations quoted above, in
the judgment under appeal itself, militate with the conclusions reached there. All that we can infer from
our constitutional provisions is that additional representation or weightage was given to persons possessing
special types of knowledge and experience by enabling them to elect their special representatives 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.
20Page 21
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
21Page 22
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
22Page 23
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
23Page 24
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 semantic28
.
28
Manoj Narula v. Union of India, (2014) 9 SCC 1
Para 110. Article 84 of the Constitution negatively provides the qualification for
membership of Parliament. This Article is quite simple and reads as follows:
“84. Qualification for membership of Parliament – A person shall not be
qualified to be chosen to fill a seat in Parliament unless he –
(a) is a citizen of India, and makes and subscribes before some person
authorised in that behalf by the Election Commission an oath or affirmation
according to the form set out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Council of States, not less than thirty years
of age, in the case of a seat in the House of the People, not less than twenty-five
years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by
or under any law made by Parliament.”
24Page 25
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
purpose29 for which Part IX came to be introduced in the
29 Bhanumati & Others v. State of U.P., (2010) 12 SCC 1
Para 33. The Panchayati Raj institutions structured under the said amendment are meant to initiate
changes so that the rural feudal oligarchy lose their ascendancy in village affairs and the voiceless masses,
who have been rather amorphous, may realise their growing strength. Unfortunately, effect of these
changes by way of constitutional amendment has not been fully realised in the semi-feudal set-up of Indian
25Page 26
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
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.
26Page 27
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 –
(a) 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;
(b) 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
27Page 28
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.
28Page 29
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
30
Section 173. Persons qualified to vote and be elected. – (1) Every person whose name is in the list of
voters shall, unless disqualified under this Act or any other law for the time being in force, be qualified to
vote at the election of a Member for the electoral division to which such list pertains.
29Page 30
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
Sarpanch32 or a Panch33 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;
31
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
disqualified to be elected from any electoral division.
32
Section 2 (lvi) “Sarpanch” means a Sarpanch of Gram Panchayat elected under this Act.
33
Section 2 (xli) "Panch" means a member of a Gram Panchayat elected under this Act.
30Page 31
(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
31Page 32
(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 cooperative
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
5
th 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)-
32Page 33
(i) 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;
(ii) 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 subsection
(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
33Page 34
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,
34Page 35
(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 unreasonable34 and therefore violative of Article
34 “Para 3(3). …….. The Learned Senior Counsel contends that it is wholly irrational and arbitrary to protect
highly-placed public servants from inquiry or investigation in the light of the conditions prevailing in the country and
the corruption at high places as reflected in several judgments of this Court including that of Vineet Narain. Section 6-
A of the Act is wholly arbitrary and unreasonable and is liable to be struck down being violative of Article 14 of the
Constitution is the submission of learned amicus curiae.
(4). In support of the challenge to the constitutional validity of the impugned provision, besides observations
made in the three-Judge Bench decision in Vineet Narain case reliance has also been placed on various decisions
including S.G. Jaisinghani v. Union of India [(1967) 2 SCR 703], Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC
212], Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722] and Mardia Chemicals Ltd. v. Union of India [(2004)
4 SCC 311] to emphasize that the absence of arbitrary power is the first essential of the 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
35Page 36
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
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.”
35
“Para 64. ……………. We are also clearly of the view that no distinction can be made for certain class of officers
specified in Section 6-A who are described as decision making officers for the purpose of inquiry/investigation into an
offence under the PC Act, 1988. There is no rational basis to classify the two sets of public servants differently on the
ground that one set of officers is decision making officers and not the other set of officers. If there is an accusation of
bribery, graft, illegal gratification or criminal misconduct against a public servant, then we fail to understand as to how
the status of offender is of any relevance. Where there are allegations against a public servant which amount to an
offence under the PC Act, 1988, no factor pertaining to expertise of decision making is involved. Yet, Section 6-A
makes a distinction. It is this vice which renders Section 6-A violative of Article 14. Moreover, the result of the
impugned legislation is that the very group of persons, namely, high ranking bureaucrats whose misdeeds and
illegalities may have to be inquired into, would decide whether the CBI should even start an inquiry or investigation
against them or not. There will be no confidentiality and insulation of the investigating agency from political and
bureaucratic control and influence because the approval is to be taken from the Central Government which would
involve leaks and disclosures at every stage.
Para 99. In view of our foregoing discussion, we hold that Section 6-A(1), which requires approval of the
Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the
PC Act, 1988 where such allegation relates to (a) the employees of the Central Government of the level of Joint
Secretary and above and (b) such officers as are appointed 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.”
36Page 37
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
.
36 Para 13. The next question, is the rule reasonable or arbitrary and unreasonable? The rationale for the rule, as
stated earlier, is to maintain the dignity and purity of the profession by keeping out those who retire from various
government, quasi-government and other institutions since they on being enrolled as advocates use their past contacts
to canvass for cases and thereby bring the profession into disrepute and also pollute the minds of young fresh entrants
to the profession. Thus the object of the rule is clearly to shut the doors of profession for those who seek entry in to the
profession after completing the age of 45 years. In the first place, there is no reliable statistical or other material placed
on record in support of the inference that ex-government or quasi-government servants or the like indulge in
undesirable activity of the type mentioned after entering the profession. Secondly, the rule does not debar only such
persons from entry in to the profession but those who have completed 45 years of age on the date of seeking enrolment.
Thirdly, those who were enrolled as advocates while they were young and had later taken up some job in any
government or quasi-government or similar institution and had kept the sanad in abeyance are not debarred from
reviving their sanads even after they have completed 45 years of age. There may be a large number of persons who
initially entered the profession but later took up jobs or entered any other gainful occupation who revert to practise at a
later date even after they have crossed the age of 45 years and under the impugned rule they are not debarred from
practising. Therefore, in the first place there is no dependable material in support of the rationale on which the rule is
37Page 38
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
founded and secondly the rule is discriminatory as it debars one group of persons who have crossed the age of 45 years
from enrolment while allowing another group to revive and continue practice even after crossing the age of 45 years.
The rule, in our view, therefore, is clearly discriminatory. Thirdly, it is unreasonable and arbitrary as the choice of
the age of 45 years is made keeping only a certain group in mind ignoring the vast majority of other persons who were
in the service of government or quasi-government or similar institutions at any point of time. Thus, in our view the
impugned rule violates the principle of equality enshrined in Article 14 of the Constitution.
38Page 39
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)
39Page 40
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.
40Page 41
66. Observations by Justice Gupta in R.K. Garg Case37 no
doubt indicate that the doctrine propounded by this Court in
E.P. Royappa v. State of Tamil Nadu & Another38 and
Maneka Gandhi v. Union of India & Another39 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
37 (1981) 4 SCC 675
38 (1974) 4 SCC 3
39 (1978) 1 SCC 248
41Page 42
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
arbitrary40* 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,
40 An expression used widely and rather indiscriminately - an expression of inherently imprecise import.
The extensive use of this expression, in India reminds one of what Frankfurter,J. said in Hattie Mae Tiller
v. Atlantic Coast Line Railroad Co., 87 L.Ed. 610. "The phrase begins life as a literary expression; its
felicity leads to its lazy repetition and repetition soon establishes it as a legal formula, undiscriminatingly
used to express different and sometimes contradictory ideas", said the learned Judge.
42Page 43
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
43Page 44
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 Constitution41. As pointed out by Frankfurter, J.,
arbitrariness became a mantra.
41 In Municipal Committee Amritsar v. State of Punjab, (1969) 1 SCC 475, at para 7, this Court clearly
ruled out the application of the doctrine of “due process” employed by the Court adjudicating the
constitutionality of the legislation.
But the rule enunciated by the American Courts has no application under our
Constitutional set up. The rule is regarded as an essential of the "due process clauses"
incorporated in the American Constitution by the 5th & the 14th Amendments. The Courts in
India have no authority to declare a statute invalid on the ground that it violates the "due
process of law". Under our Constitution, the test of due process of law cannot be applied to
statutes enacted by the Parliament or the State legislatures. This Court has definitely ruled that
the doctrine of "due process of law" has no place in our Constitutional system: A. K. Gopalan
v. State of Madras, 1950 SCR. 88. Kania, C.J., observed (at p. 120):-
"There is considerable authority for the statement that the Courts are
not at liberty 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."
44Page 45
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”.
45Page 46
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 matriculation42 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
42 “(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;”
46Page 47
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-Ã -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% 318126 32%
Total Population above
20 years of age
9613704 4992434 4621270 2055656 1076168 979488
Total Rural Population 16509359 8774006 7735353 3720109 1973294 174681
5
77. It can be seen from the above extract that the total rural
population44 of the State of Haryana is 1.65 crores
43 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.
44 The expression “rural population” is used by the respondents in their counter affidavit to mean people
living in areas falling within the territorial limits of some PANCHAYAT.
47Page 48
approximately. (All figures to be mentioned hereinafter are
‘approximate’)
78. Of the 1.65 crore rural population, 96 lakhs are in the
age group of 20 years and above. In other words, dehors the
IMPUGNED ACT, 96 lakhs would be eligible to contest
elections to various PANCHAYATS subject of course to other
qualifications and disqualifications prescribed by law. Of the
96 lakhs, 36 lakhs are illiterate and about 5 lakhs are literate
but below primary level of education. The remaining 54.5
lakhs are educated, though the chart does not clearly indicate
the exact break-up of the above 54.5 lakhs and their
respective educational qualifications i.e. whether they are
educated up to primary or middle or matriculation level and
above. The said 54.5 lakhs constitute 57% of the rural
population who are otherwise eligible to contest PANCHAYATS
election by virtue of their being in the age group of 20 years
and above. Of the 96 lakhs of rural population, 50 lakhs are
men and 46 lakhs are women. Of them, 35 lakhs men, 20
lakhs women are literate above primary level, though exact
break-up of educational qualification is not available. Even if
we assume all the 20 lakhs women are matriculate and,
48Page 49
therefore, eligible to contest any election under THE ACT, they
would contribute less than 50% of the otherwise eligible
women.
79. The abovementioned figures include all classes of the
population including scheduled caste.
80. Coming to the statistics regarding scheduled caste
population, the total scheduled caste population of Haryana, it
appears, is 21 lakhs of which 11 lakhs are men and 10 lakhs
are women of which only 6.3 lakhs men and 3.1 lakhs women
constituting 59% and 32% respectively are educated. In other
words, 68% of the scheduled caste women and 41% of the
scheduled caste men would be ineligible to contest
PANCHAYAT elections.
81. An analysis of the data in the above table indicates that a
large number of 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
49Page 50
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
post at ‘Samiti’ or District level, she must be “middle pass”.
The exact number of scheduled caste women who possess that
qualification is not available on record. Even assuming for the
sake of argument that all educated scheduled caste women
indicated in the Annexure-5 are middle pass, they only
constitute 32% of the scheduled caste women. The remaining
50Page 51
68% of the women would be disqualified for contesting any
election under the IMPUGNED ACT.
83. The question is - whether the impugned provision which
disqualifies a large number of voter population and denies
their right to contest for various offices under THE ACT is
discriminatory and therefore constitutionally invalid for being
violative of Article 14.
84. The learned Attorney General referred to Section 21 of
THE ACT which catalogues the functions and duties of Gram
Panchayat falling under 30 broad heads. To demonstrate the
range of those heads, he pointed out some of the duties of a
Gram Panchayat45 and submitted that in the light of such
responsibilities to be discharged by members elected to the
Gram Panchayat, the legislature in its wisdom thought it fit to
prescribe a minimum educational qualification and such a
45 “Section 21. Functions and duties of Gram Panchayat.—Subject to such rules as may be made, it
shall be the duty of the Gram Panchayat within the limits of the funds at its disposal, to make arrangements
for carrying out the requirements of sabha area in respect of the following matters including all subsidiary
works and buildings connected therewith:--
XI. Non-conventional Energy Sources-
(1) Promotion and Development of non-conventional energy schemes.
(2) Maintenance of community non-conventional energy devices, including
bio-gas plants and windmills.
(3) Propagation of improved chulhas and other efficient devices.
XXI. Social Welfare including Welfare of the Handicapped and Mentally Retarded-
(1) Participation in the implementation of the social welfare programmes
including welfare of the handicapped, mentally retarded and destitute.
(2) Monitoring of the old age and widows pension scheme.”
51Page 52
prescription cannot be said to be making an unreasonable
classification among the voters attracting the wrath of Article
14. Several judgments of this Court are referred to emphasise
the importance of education46
.
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 basic education which enables them
to more effectively discharge various duties which befall the
elected representatives of the PANCHAYATS. The object
sought to be achieved cannot be said to be irrational or illegal
or unconnected with the scheme and purpose of THE ACT or
provisions of Part IX of the Constitution. It is only education
which gives a human being the power to discriminate between
right and wrong, good and bad. Therefore, prescription of an
46 We are of the opinion that it is not really necessary to examine the various 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].
52Page 53
educational qualification is not irrelevant for better
administration of the PANCHAYATS. The classification in our
view cannot be said either based on no intelligible differentia
unreasonable or without a reasonable nexus with the object
sought to be achieved.
86. The only question that remains is whether such a
provision which disqualifies a large number of persons who
would otherwise be eligible to contest the elections is
unconstitutional. We have already examined the scheme of
the Constitution and recorded that every person who is
entitled to vote is not automatically entitled to contest for
every office under the Constitution. Constitution itself imposes
limitations on the right to contest depending upon the office.
It also authorises the prescription of further
disqualifications/qualification with respect to the right to
contest. No doubt such prescriptions render one or the other
or some class or the other of otherwise eligible voters,
ineligible to contest. When the Constitution stipulates47
undischarged insolvents or persons of unsound mind as
ineligible to contest to Parliament and Legislatures of the
47 Articles 102(1)(c) and 191(1)(c).
53Page 54
States, it certainly disqualifies some citizens to contest the
said elections. May be, such persons are small in number.
Question is not their number but a constitutional assessment
about suitability of persons belonging to those classes to hold
constitutional offices.
87. If it is constitutionally permissible to debar certain
classes of people from seeking to occupy the constitutional
offices, numerical dimension of such classes, in our opinion
should make no difference for determining whether
prescription of such disqualification is constitutionally
permissible unless the prescription is of such nature as would
frustrate the constitutional scheme by resulting in a situation
where holding of elections to these various bodies becomes
completely impossible. We, therefore, 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
54Page 55
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)48 and Article 191(1)(c)49 declare that an undischarged
insolvent is disqualified from becoming a Member of
Parliament or the State Legislature respectively. By virtue of
the operation of Article 58(1)(c) and 66(1)(c), the same
disqualification extends even to the seekers of the offices of the
President and the Vice-President.
90. The expression “insolvency” is not defined under the
Constitution. In the absence of a definition, the said
expression must be understood to mean a person who is
considered insolvent by or under any law made by the
48 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;
49 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 Council of a State –
**** **** **** **** **** ****
(c) if he is an undischarged insolvent.
55Page 56
competent legislature. Sections 650 of the Provincial
Insolvency Act, 1920 and Section 951 of the Presidency –
Towns Insolvency Act, 1909 declare various activities which
constitute acts of insolvency. It is an aspect of indebtedness -
a specified category of indebtedness. If the Constitution
50 Section 6. Acts of insolvency.—(1) A debtor commits an act of insolvency in each of the following
cases, namely:-
(a) if, in India 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 India or elsewhere, he makes a transfer of his property or of any part thereof with
intent to defeat or delay his creditors;
(c) if in India or elsewhere, he makes any transfer of his property, or of any part thereof,
which would, under this or any other enactment for the time being in force, be void as fraudulent
preference if he were adjudged an insolvent;
(d) if with intent to defeat or delay his creditors,-
(ι) he departs or remains out of the territories to which this Act extends;
(ιι) he departs from his dwelling-house or usual place of business or otherwise
absents himself;
(ιιι) he secludes himself so as to deprive his creditors of the means of
communicating with him;
(e) if any of his property has been sold in execution of the decree of any Court for the
payment of money;
(f) if he petitions to be adjudged an insolvent under the provisions of this Act;
(g) if he gives notice to any of his creditors that he has suspended, or that he is about to
suspend, payment of his debts; or
(h) if he is imprisoned in execution of the decree of any Court for the payment of money.
(2) Without prejudice to the provisions of sub-section (1), a debtor commits an act of
insolvency if a creditor, who has obtained a decree or order against him for the payment of money (being a
decree or order which has become final and the execution whereof has not been stayed), has served on him
a notice (hereafter in this section referred to 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:
51 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;
(c) if, in the States or elsewhere, he makes any transfer of his property or of any part
thereof, which would, under this or any other enactment for the time being in force, be void as
fraudulent preference if he were adjudged an insolvent;
(d) if, with intent to defeat or delay his creditors,--
56Page 57
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
(i) he departs or remains out of the States,
(ii) he departs from his dwelling-house or usual place of business or otherwise
absents himself,
(iii) he secludes himself so as to deprive his creditors of the means of
communicating with him;
(e) if any of his property has been sold or attached for a period of not less than
twenty-one days in execution of the decree of any Court for the payment of money;
(f) if he petitions to be adjudged an insolvent;
(g) if he gives notice to any of his creditors that he has suspended, or that he is
about to suspend, payment of his debts;
(h) if he is imprisoned in execution of the decree of any Court for the payment of
money.
(2) Without prejudice to the provisions of sub- section (1), a debtor commits an act of
insolvency if a creditor, who has obtained a decree or order against him for the payment of money (being a
decree or order which has become final and the execution whereof has not been stayed), has served on him
a notice (hereafter in this section referred to 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 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 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:
Provided further that no insolvency notice shall be served on a debtor residing, whether
permanently or temporarily, outside India, unless the creditor obtains the leave of the Court therefor.
57Page 58
of the topics indicated under Entry 952, 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
elections and such classification has no rational nexus to the
object of the Panchayati Raj Act whose constitutional goal is to
empower the rural population by enabling them to play a role
in the decision making process of the units of local self
government, is the contention.
92. No doubt that rural India, particularly people in the
agricultural sector suffer the problem of indebtedness. The
reasons are many and it is beyond the scope of this judgment
to enquire into the reasons. It is also a fact that there have
been cases in various parts of the country where people
52 9. Bankruptcy and Insolvency.
58Page 59
reportedly commit suicides unable to escape the debt trap.
But, it is the submission of the respondents that such
incidents are very negligible in the State of Haryana as the
agricultural sector of Haryana is relatively more prosperous
compared to certain other parts of the country. We do not
wish to examine the statistical data in this regard nor much of
it is available on record. In our view, such an enquiry is
irrelevant for deciding the constitutionality of the impugned
provision. We are also not very sure as to how many of such
people who are so deeply indebted would be genuinely
interested in contesting elections whether at PANCHAYAT level
or otherwise. We can certainly take judicial notice of the fact
that elections at any level in this country are expensive affairs.
For that matter, not only in this country, in any other country
as well they are expensive affairs. In such a case the
possibility of a deeply indebted person seeking to contest
elections should normally be rare as it would be beyond the
economic capacity of such persons. In our opinion, the
challenge is more theoretical than real. Assuming for the sake
of argument that somebody who is so indebted falling within
the prescription of clauses (t) and (v) of Section 175(1) of the
59Page 60
Act is still interested in contesting the PANCHAYAT elections,
nothing in law stops such an aspirant from making an
appropriate arrangement for clearance of the arrears and
contest elections. At this stage, an incidental submission is
required to be examined. It is submitted that there could be a
genuine dispute regarding the liability falling under the
clauses (t) and (v) and therefore it would be unjust to exclude
such persons from the electoral process even before an
appropriate adjudication. Justness of such a situation is once
again in the realm of 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
60Page 61
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 holders classified as families
falling below poverty line (BPL) in the State of Haryana. It is
further submitted that right from the year 1985 there have
been schemes in vogue to provide financial assistance to
families desirous of constructing a toilet at their residence53. In
53 Paras 4 & 5 of the Addl. Affidavit of Respondents 1 to 3
4. That the main objective of the programme is to ensure access of toilets to all rural
families so as to achieve Open Defecation Free (ODF) status. For this purpose, both the Center
and State of Haryana have also been providing financial incentive to the people below poverty line
(BPL) in the rural areas of State of Haryana. Besides few other Above Poverty Line (APL)
household categories namely, all SCs, small farmers, marginal farmers, landless labourers with
homestead, physically handicapped and women headed households were also identified for the
purpose of granting financial incentive since 01.04.2012 under the said scheme.
5. That the financial incentive is also being provided to Below Poverty Line (BPL)
households for the construction and usage of individual household latrines (IHHL) in recognition
of their achievements. In Haryana total rural BPL households are 8,56,359 and against it,
7,21,038 households have been provided incentive for the construction of IHHL. Similarly,
Above Poverty Line (APL) households restricted to SCs/STs, small and marginal farmers, landless
labourers with homestead, physically handicapped and women headed households have also been
provided financial assistance w.e.f. 04.04.2012. Presently, w.e.f. 02.10.2014 the financial
incentive is being given to above category of households @ Rs.12000 (Rs.9000 from Centre and
Rs.3000 from State Government). Out of 30,67,907 rural households 25,84,810 i.e. 84% have
IHHLs. Out of which 23,60,318 IHHLs have been build under Rural Sanitation Programmes since
1999, of which 8,82,012 have been given incentive money at various rates prevailing at different
times.
61Page 62
the initial days of such a scheme Rs.650/- was given by the
State and from time to time the amount was revised and at
present Rs.12000/- is provided by the State to any person
desirous of constructing a toilet. As per the data available
with the State, of the abovementioned 8.5 lakhs households,
classified to be below the poverty line, approximately 7.2 lakhs
households had availed the 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 Indian54 population for a
long time had this unhealthy practice of defecating in public.
The Father of the Nation wrote copiously on this aspect on
various occasions. He took up with a missionary zeal the
54 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
62Page 63
cause to eradicate this unhealthy practice. At some point of
time, he even declared that the priority of this country should
be to get rid of such unhealthy practice than to fight for
independence. It is unfortunate that almost a hundred years
after Gandhiji started such a movement, India is still not
completely rid of such practice. The reasons are many.
Poverty is one of them. However, this unhealthy practice is
not exclusive to poorer sections of rural India. In a bid to
discourage this unhealthy practice, the State has evolved
schemes to provide financial assistance to those who are
economically not in a position to construct a toilet. As rightly
pointed by the respondents, if people still do not have a toilet
it is not because of their poverty but because of their lacking
the requisite will. One of the primary duties of any civic body
is to maintain sanitation within its jurisdiction. Those who
aspire to get elected to those civic bodies and administer them
must set an example for others. To the said end if the
legislature stipulates that those who are not following basic
norms of hygiene are ineligible to become administrators of the
civic body and disqualifies them as a class from seeking
election to the civic body, such a policy, in our view, can
63Page 64
neither be said to create a class based on unintelligible criteria
nor can such classification be said to be unconnected with the
object sought to be achieved by the Act.
96. For the above-mentioned reasons, we see no merit in this
writ petition, and the same is dismissed.
….………………………….J.
(J. Chelameswar)
…….……………………….J.
(Abhay Manohar Sapre)
New Delhi;
December 10, 2015
64Page 65
REPORTABLE [
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
WRIT PETITION No.671 OF 2015
Rajbala & Ors. …..….Petitioner(s)
VERSUS
State of Haryana & Others ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. I have had the advantage of going through the
elaborate, well considered and scholarly draft
judgement proposed by my esteemed brother Jasti
Chelmeswar J. I entirely agree with the reasoning and
the conclusion, which my erudite brother has drawn,
which are based on remarkably articulate process of
reasoning. However, having regard to the issues
involved which were ably argued by learned counsel
appearing in the case, I wish to add few lines of
concurrence.
65Page 66
2. While examining the question of constitutionality
of the impugned amendment made under Section 175
(1) of the Haryana Panchayati Raj Act (for short “the
Act”), which are under attack in this writ petition, the
question arose regarding the true nature 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
66Page 67
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.
5. 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.
6. Indeed, my learned brother rightly took note of
the few decisions, which had while deciding the main
questions involved in those cases also incidentally
67Page 68
made some observations on these two issues, which
we feel were not in conformity with the law, laid down
in the aforementioned two decisions.
7. Coming now to the question of constitutional
validity of Section 175 (1)(v) of the Act which provides
that candidate must possess certain minimum
educational qualification if he/she wants to contest
an election. In my opinion, introduction of such
provision prescribing certain minimum educational
qualification criteria as one of the qualifications for a
candidate to contest the election has a reasonable
nexus with the object sought to be achieved.
8. In fact, 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 educational background to enable him/her to
effectively carry out the functions assigned to
Panchyats in Part IX. It is the legislative wisdom to
68Page 69
decide as to what should be the minimum
qualifications, which should be provided in the Act.
9. No one can dispute that education is must for
both men and women as both together make a healthy
and educated society. It is an essential tool for a
bright future and plays an important role in the
development and progress of the country.
10. In my view, therefore, Section 175 (v) of the Act is
intra vires the Constitution and is thus
constitutionally valid.
11. Now coming to the question regarding
constitutionality of Section 175(w) of the Act, which
provides that if a person has no functional toilet at his
place of residence, he/she is disqualified to contest the
election. In my view, this provision too has reasonable
nexus and does not offend any provision of the
Constitution.
12. Indeed, there are no grounds much less
sustainable grounds available to the petitioners to
question the validity of this provision. This provision
69Page 70
in my view is enacted essentially in the larger public
interest and is indeed the need of the hour to ensure
its application all over the country and not confining it
to a particular State. Moreover, the State having
provided adequate financial assistance to those who
do not have toilet facility for construction of toilet,
there arise no ground to challenge this provision as
being unreasonable in any manner. Since this issue
has already been elaborately dealt with by my learned
brother, therefore, I do not wish to add anything more
to it.
13. In the light of the foregoing discussion agreeing
with my learned brother, I also hold that Section 175
(v) is intra vires the Constitution and is thus
constitutionally valid.
14. In my view, therefore, the writ petition deserves
to be dismissed and is accordingly dismissed. As a
consequence, interim order stands vacated.
..……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
December 10, 2015.
No comments:
Post a Comment