(Back in December, the Rajasthan government had introduced an ordinance imposing educational qualifications as pre-requisites for standing for elected office in local government, days before those elections. The ordinance was challenged before the Supreme Court and the Rajasthan High Court, who failed to decide the case in time for elections. The case is still pending. In the meantime, the Rajasthan government plans to extend the Ordinance to other elected posts in civic bodies. In this guest essay, Ayushi Singhal analyses this issue from the perspective of the State’s constitutional obligation of providing education, and draws lessons from the jurisprudence of the Supreme Court of Pakistan)

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Recently, the State of Rajashtan fixed educational qualifications for the Panchayat elections, wherein it mandated secondary education for contesting in Zila Parishad or Panchayat Samiti polls and passing class VIII for Sarpanch elections (in Scheduled areas of Panchayat, the criterion is relaxed to Class V pass) in the form of the Rajasthan Panchayati Raj (Second Amendment) Ordinance-2014 (‘Panchayati Raj ordinance’). It is now set to prescribe similar criteria for the civic body polls as well, through the same route of ordinance. The problems associated with the Panchayati Raj ordinance have already been discussed on this blog, here, here, here and here. This post analyzes these kinds of educational qualifications from the perspective of the state’s duty to provide education, an outlook which surprisingly was not argued in any of the courts where the Panchayati Raj Ordinance was put under judicial scanner (as has been noticed here before). Inspiration is drawn from a judicial decision in Pakistan where a similar law was introduced in early 2000’s.

Article 45 (as it stood before 86th amendment) of the Indian Constitution put a duty on the state to provide free and compulsory primary education. This duty of the state was transformed to a corresponding right of the citizens in the form of Article 21A of the Constitution in 2002 brought in by the 86th amendment to the Constitution. The consequential legislation envisaged in this regard is the Right to Education Act (‘RTE’) in 2009, which casts an obligation on the government to provide education to all children in the age group of 6-14.

Yet, Rajasthan has one of the lowest levels of literacy (and education) in the country, 61% in the rural areas, with the percentage of literate women being a mere 45% (2011 Census). To enhance the problem, the schools in rural areas have far from satisfactory facilities. Ms. Aruna Roy writes of a graffiti on the wall of a school in Rajasthan, “Saksharta ki kya pehchan? Upar chaddi, niche baniyan (How do you recognise literacy? The shorts above and the vest below).” When she asked of the reason for the graffiti, the villagers replied, “You don’t run schools for our children; teachers are absent because they don’t want to stay in the village. Your transport system does not function. Our eager children remain illiterate. But later when we are tired and worn out, you come to teach us literacy. Please run our schools.” Recently, 17,000 schools were shut in the state, most of which were situated in villages.

The state, by bringing in such educational qualifications for standing in elections, has shirked this responsibility further and has indeed made education a liability rather than a right of the citizens who do not have the resources, social or economic to help the state in fulfilling its duty.

Introduction of the RTE can certainly not be a justification for this qualification. An important point to be considered here is the fact that the minimum age for participating in (Panchayat) elections is 21. Even if we consider that people stand for elections as soon as they turn 21, the people aged 21 presently certainly did not have the state-provided means of education during the years they would have required the same to make them eligible. The RTE has been passed only 6 years back, which is not sufficient time for these people to achieve the qualifications prescribed in the ordinance, even if they start education late in life. Under these circumstances, introduction of such laws is like making fundamental rights/directive principles (‘DPSP’), the liability of a citizen than that of the state. This, according to me, is akin to creating an ex-post facto offence which is certainly unconstitutional.

It is interesting to note that a similar requirement of education was imposed in Pakistan. The consequences of this imposition and their responses in our neighbor country should be a learning lesson for not only the Indian Legislature, but also the Indian judiciary.

Before the Pakistani decisions are detailed upon, it is important to understand the constitutional position of the right to contest elections in Pakistan. Article 17(2) of the Constitution of Pakistan gives “[e]very citizen, not being in the service of Pakistan, … the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan”. The right to contest elections has been held to flow from this right to form political parties (Mian Muhammad Nawaz Sharif v. President of Pakistan, PLD 1993 SC 473), thereby giving it the status of a fundamental right (unlike in India, where it is a mere statutory right). This is subject to Articles 62 and 63 in their Constitution which lay down the qualifications and disqualifications for contesting elections respectively. Article 63(1)(p) allows the Parliament to make laws imposing any qualifications for contesting elections. Now, although the right to contest has been put on a higher pedestal in Pakistan than in India, this should not hamper the present analysis. This is because we seek to limit our investigation only to the differences in approach of the judicial decisions in Pakistan and India on the educational qualifications imposed on contestants in elections vis-à-vis the state’s duty to provide education, which is on an equal footing (in fact it was lesser so in Pakistan at the time the Pakistani decisions were made) in both the countries.

In the 2002 general elections, Pakistan’s President then, General Pervez Musharraf amended the Constitution (Chief Executive Order No.7/2002), bringing a requirement of a bachelor’s degree for the contestants of the National Assembly elections in Pakistan. This effectively disqualified 97% of the country and 29% of the sitting members from contesting elections. This further led to peculiar problems apart from the ones already discussed on this blog, including puppet candidates/relatives standing on behalf of an uneducated politician, politicians procuring fake degrees etc.

On being challenged in the Pakistan Supreme Court, the amendment was validated in a decision in 2002 (Muslim League v. Chief Executive of Islamic Republic of Pakistan, 2002 SCC OnLine Pak SC 5). The same arguments of reduction in corruption and improvement in political selection as have been taken by Rajasthan’s government were also taken by the then government of Pakistan. It was further argued that the political history of Pakistan which is replete with examples of politicians not complying with their constitutional and statutory duties, mandates the application of this qualification. It appears that the court tilted in favor of the state only because of the policy behind the promulgation without actually justifying it on constitutional principles. On the question of whether the qualification infringes upon the fundamental right to contest in elections, the court justified it on the basis of the power given to the Parliament under Article 63(1)(p) of the Constitution to make laws in this regard, without justifying the same on the grounds of sovereignty and integrity of Pakistan as required by Article 17(2). On the challenge on the grounds of infringement of right to equality, the court held that there exists a reasonable nexus and intelligible differentia in the division of citizens in this manner, it “being a step towards transformation of the political culture” and since “it equally applies to all the graduates and does not discriminate any graduate or create a class within the graduates.” It was believed that there is a necessity to bring in such a law taking into notice the “utter disregard for the parliamentary values and deliberate attempt to injure the soul of democracy” by the elected politicians.

This reasoning appears to be dubious considering that the discrimination doesn’t have to be disproved between the people who have been qualified for contesting the elections, but between those who have been qualified and those who haven’t. For instance if one has to prove that a policy of qualifying only left handed people from contesting elections is not discriminatory, one has to prove that it does not discriminate between left-handed and right-handed people [or any two citizens placed equally otherwise] and not that it does not discriminate between two left-handed people.

Incidentally, during the course of the instant case, an argument was also made on the lines that the government has not provided adequate facilities for education in certain areas and hence the candidates in such areas should be exempt from the application of the qualification, but akin to the decision in Rajasthan HC, the same was rejected for the lack of supporting data.

However, unlike the Indian courts (as of now), the Pakistan Supreme Court corrected its decision. In 2008, the decision was reversed by a 7 judge bench holding it to be ultra vires Articles 17(2) and 25 of the Constitution (right to form political parties from which flows the right to contest and the right to equality), since it was not in pursuance of protecting the integrity and sovereignty of Pakistan and nor did it satisfy the twin test of intelligible differentia and reasonable nexus.

The judgment inter alia held that the qualification was unreasonable since only 6.9% of the registered voters and 2.6% of the population were allowed to contest the election and therefore is violative of the fundamental right to equality. The judgment also recognized the failure of government to provide education, implicit in the amendment providing for educational qualification, which is against the very idea of democracy. The court recognized that the qualification was a way of shifting the liability of the state on the citizens,

“[According to] Article 37 of the Constitution [of Pakistan], the State was obliged, inter alia, to promote with special care the education and economic interests of backward classes or areas, remove illiteracy and provide free and compulsory secondary education within minimum possible period. To achieve these objectives no time limit was fixed whereas the condition of being a graduate was imposed instantly. Under Article 30(2) of the Constitution, validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the principles of policy and that no action shall lie against the State … Thus, the inaction of the State in not providing equal opportunities of education in the country does not entail any penal consequences. Nevertheless, the inaction of citizens in not acquiring educational qualification has been made punishable instantly and the non-graduates deprived of contesting election. Indeed, this is an anomalous situation.” (emphasis added)

The judgment also termed this to be a form of electoral apartheid. It is remarkable that the Pakistan Supreme Court ruled in this manner back in 2008, when there was no fundamental RTE in the Constitution of Pakistan, unlike the Indian courts, who had the RTE for their backing in ruling upon similar legislation. It was only later in 2010, that the RTE was introduced in their Constitution taking the same from the Principles of Policy in their Constitution (akin to DPSP in India).

As described earlier, not only was this argument not raised in the courts in India, the judiciary also failed to recognize it, when it rejected the petition challenging the ordinance for lack of data supporting disqualification of a large number of people and resultant discrimination.

There are certainly lessons to be learnt from this reasoning in the Indian context. Harm caused to democracy because of the Panchayati Raj Ordinance in the rural areas is irreparable at least till 2020, which is when the next elections will be held. However, unquestionably something can be done to dissuade the state from bringing similar qualifications for the municipal level elections. In the case of the 2014 ordinance, only 4 days were given to the prospective contestants to pass their grades (while this is enough time to construct toilets as prescribed in the previous ordinance on this subject, it is certainly not enough to get qualified). The present government is planning to repeat this by introducing an ordinance pertaining to educational qualifications to contest civic polls literally days before the elections. The judiciary should step in and decide the pending December petition swiftly, in order to avoid a similar situation, where the contestants will again be prohibited from participating for another 5 years.

Original author: gautambhatia1988