Arguments in Rajbala vs State of Haryana began in Court No.6 before justices J Chelameswar and AM Sapre on Wednesday, 7 October with petitioners’ counsel, Kirti Singh making her submissions first.

She was followed by senior advocates, Sanjay Parikh and Indira Jaising on 8 October.

Jaising, who began her arguments at 2 p.m. was still on her feet, when the court rose for the day at 4 p.m.

In this case, petitioners challenged the Haryana Government’s amendments to the Haryana Panchayati Raj Act, carried out on 7 September, prescribing for candidates contesting for offices in local bodies, minimum educational qualifications, possessing a pucca toilet, and not having defaulted on any bank loan or electricity due.

Thus general category candidates require a minimum qualification of Class X pass, while men contesting in SC and women in general category need to be class VIII pass, and women in SC category need to be class V pass to be eligible.

The Supreme Court has stayed the amendments passed by the state assembly on 17 September.

The petitioner, Rajbala, does not fulfil the minimum educational qualification as prescribed, and therefore, finds herself disqualified from contesting the elections.

Jaising subjected Article 326 of the Constitution to considerable scrutiny, saying that this was the only article which talked of adult suffrage.

Going into the etymology of the word ‘suffrage’, she referred to its Latin origin, which meant right to vote, and voice vote. She then referred to the belated grant of suffrage to women in the United States, saying they had to wait till the First World War, when their labour was required.

She then referred to India’s decision to opt for adult suffrage right from independence, and said it was possible, because we were gifted with this Constitution.

Saying that Article 326 is the least explored provision in the Indian Constitution, she said its interpretation involves a substantial question of law, that may be dealt with a Constitution Bench of five Judges.

When Justice Chelameswar suggested that as the counsel for an intervener (rather than the petitioner), her proposal for reference may not carry weight, she said she would, in any case, express her view, and if the bench feels on its own that such a reference is justified, then it could do so.

When further queried by Justice Chelameswar when a reference to a Constitution bench may be justified, she cited three grounds, namely, ambiguity of a Constitutional provision, inability to construe its correct meaning, or when the provision is silent on some aspect.

She then said Article 326 read with Articles 243C (Composition of Panchayats) and 243F (Disqualification for membership) needs to be interpreted in order to arrive at the correct meaning of universal adult suffrage (UAS). Although Article 326 does not use the expression UAS, it is implicit in it, as it says, ‘every person has a right to be on the electoral roll’.

Arguing that right to vote is a Constitutional right, she said the notions of eligibility, and the grounds of disqualification mentioned in it are changing. That was why perhaps Parliament has not yet passed a law on the question of disqualification, she suggested.

She then submitted that when the State says a candidate should have a degree, then it adds to the list of qualifications, which is currently confined to just two, namely citizenship and age, and thereby would be destroying the UAS According to her, Article 243F (b) should be interpreted in its true spirit and in consonance with Article 326, so as to keep in tact UAS The requirement of UAS must be read into both Articles 243C and 243F, she said.

When Justice Chelameswar suggested that incorporating UAS in Article 243F would not create a problem, she contended that by adding educational qualification, the state is disenfranchising, and providing additional qualification, which is not there in the Constitution, is ultra vires of Article 243B

She argued that there is no endowment in law to provide additional qualification for the candidates.

There is lack of legislative competence, she claimed.

She then submitted that even if the object of the Haryana legislation is desirable, the means to achieve the object must also be constitutional. “Your mandate is not to encourage education, but to encourage representative institutions”, she further clarified.

The legislative mandate to encourage education should be achieved through the Right to Education Act, rather than a legislation meant to bring about local self government, she explained.

She submitted that a person, in order to suffer disqualification, must have committed some fault, which would invite such disqualification. Not having an additional qualification, and an educational qualification is not a fault on my part, she said, while pointing to the State’s failure to provide universal education.

Jaising then referred to the Supreme Court’s judgment in Javed vs UOI, wherein the court upheld an amendment passed by the Haryana assembly disqualifying those who have more than two children from contesting local bodies’ elections.

“It was wrongly decided,” she said, and asked what is the relevance of population control to local-self government. She said although she is tempted to call the judgment “unconstitutional”, she would not call it so, and term it “plainly erroneous”.

Justice Chelameswar, in a lighter vein, said she could say, “may not be synonymous with constitutional truth”, as suggested by a scholar to describe such judgments.

She asked the bench to reconsider this judgment, even if it partly agrees with her.

Jaising will continue her submissions on Tuesday, 13 October.

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