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Bizarre Chelameswar SC judgment disenfranchises, holds: Arbitrariness no ground to strike down law

Toilet election law not arbitrary, holds SC
Toilet election law not arbitrary, holds SC

In a judgment that is sure to surprise many, Justice J Chelameswar of the Supreme Court has held that arbitrariness cannot be a ground to strike down a law.

He held so while refusing to strike down the Haryana Panchayati Raj (Amendment) Act, 2015, in Rajbala vs State of Haryana, delivered yesterday.

The Act created five new categories of persons rendering them incapable of contesting elections for any of the elected offices under the Act: (i) persons against whom charges are framed in criminal cases for offences punishable with imprisonment for not less than 10 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.

The petitions challenged the validity of all five categories except the first, even though the three petitioners before the court mainly lacked the requisite educational qualification to contest local body elections.

Click here to read our report of some of the petitioner’s arguments.

Although the petitioners had challenged the Act on various grounds, Justice Chelameswar confined himself to three major challenges, namely that:

(i) the impugned provisions (laying down the new categories of disqualification) are wholly unreasonable and arbitrary and, therefore, violative of Article 14 of the Constitution: they create unreasonable restrictions on the constitutional right of voters to contest elections under the Act.

(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 achieved.

While Justice Chelameswar rejected the contention that the classification is unreasonable, saying there is a reasonable nexus between the object sought to be achieved by the Act and the categories created, he did not try to refute the petitioners that the categories are not arbitrary, as they claim.

Instead, his answer was that ‘arbitrariness’ is a value judgment, and judges are not expected to test the validity of a law on the basis of their value judgments.

Strangely, even the AG, who represented the State of Haryana, did not make any submissions on why ‘arbitrariness’ per se cannot be a ground for striking down a law.

Premiere doctrine

It is the first time the Supreme Court has specifically held that arbitrariness cannot be a ground for striking down a law.

Justice Chelameswar specifically considered five previous instances which bordered on striking down laws on the ground of arbitrariness, and reasoned why they could not assist the petitioners in this case.

Justice Chelameswar devoted considerable part of his judgment to discussing the question whether right to vote and right to contest are Constitutional rights, although there was no serious disagreement on this between the petitioners and the respondents on this issue. His answer, after a painstaking academic discussion, is that they are Constitutional rights, and therefore, restrictions on these rights, backed by the Constitutional provisions, are reasonable.


But what about the petitioners’ grievance that these categories are violative of the basic features of the Constitution, which include universal adult franchise and equality of elective posts? After all, if a candidate is free to contest the assembly or Lok Sabha election, without having to fulfil any of these categories, why should it become mandatory for a candidate contesting the local elections? Justice Chelameswar has no answer for this specific question.

He has adopted the easy way of repeating the arguments advanced by the respondents on why the categories make sense, rather than answer the specific grounds of challenge, invoked by the petitioners.

Justice Chelameswar’s view that it is only education which gives a human being the power to discriminate between right and wrong, good and bad, is debatable.

Although he concedes that a large number of persons would be disqualified from contesting because of the educational qualification, he says it is not irrelevant for better administration of Panchayats.

As Brinda Karat pointed out in this article, it was the unlettered Kondh tribal communities of Odisha, and their elected panchayat representatives and gram sabhas, who refused to give consent for a project to one of the most powerful mining companies.

Having failed the constitutional challenge to a discriminatory law, the petitioners and the intervenors have no option but to turn to politics and seek people’s support in other forums to expose the flaws in the Supreme Court’s judgment, and to reverse the categories, introduced by the state assembly, which were widely criticized as “elitist”.

Chelameswar Rajbala judgment Arbitrariness is no ground for striking down law

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