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An estimated 87-minute read

SC upholds Haryana law for minimum educational qualification for contesting Panchayat elections

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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 671 OF 2015Rajbala & Others … PetitionersVersusState of Haryana & Others … Respondents J U D G M E N TChelameswar, J.1. The challenge is to the constitutionality of the Haryana PanchayatiRaj (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 theGovernment of India Act, 1935 certain local bodies with electedrepresentatives were functioning. Such local bodies did not, however, haveconstitutional status. They owed their existence, constitution andfunctioning to statutes and had been subject to the overall control ofprovincial governments.3. Article 40 of the Constitution mandates-“40. Organisation of village panchayats - The State shall take steps toorganize village panchayats and endow them with such powers and authorityas may be necessary to enable them to function as units of selfgovernment.”To effectuate such obligation of the State, Constitution authorised (evenprior to the 73rd Amendment) State Legislatures under Article 246(3) readwith Entry 5 of List II to make laws with respect to;“5. Local government, that is to say, the constitution and powers ofmunicipal corporations, improvement trusts, districts boards, miningsettlement authorities and other local authorities for the purpose of localself-government or village administration.”Laws have been made from time to time by State Legislatures establishing athree-tier Panchayat system by 1980’s. It was felt desirable that localbodies be given constitutional status and the basic norms regarding theestablishment and administration of a three-tier Panchayati Rajinstitutions be provided under the Constitution. Hence, the 73rd Amendmentof the Constitution by which Part IX was inserted with effect from24.4.1993.4. Under Article 243B[1], it is stipulated that there shall beconstituted in every State, Panchayats at the village, intermediate anddistrict levels (hereinafter collectively referred to as PANCHAYATS) inaccordance with provisions of Part IX. PANCHAYAT is defined under Article243(d)[2].5. The composition of Panchayats is to be determined by the legislatureof the concerned State by law subject of course to various stipulationscontained in Part IX of the Constitution; such as reservations of seats infavour of scheduled castes and scheduled tribes etc. The duration of thePanchayat is fixed under Article 243E for a maximum of five years subjectto dissolution in accordance with law dealing with the subject. There is afurther stipulation under Article 243E that election to constitute aPanchayat be completed before the expiry of its tenure[3].6. The broad contours of the powers and functions of Panchayats are alsospelt out in Article 243G and 243H. Such powers and responsibilities areto be structured by legislation of the State. The establishment of anautonomous constitutional body to superintend the election process to thePANCHAYATS is stipulated under Article 243K.7. The Haryana Panchayati Raj Act, 1994 (hereinafter referred to as “THEACT”) was enacted to bring the then existing law governing PANCHAYATS inthe State in tune with the Constitution as amended by the 73rd amendment.As required under Article 243B[4], a three tier Panchayat system at theVillage, ‘Samiti’ and District level is established under THE ACT withbodies known as Gram Panchayat, Panchayat Samiti and Zila Parishad. Part VChapter XX of THE ACT deals with provisions relating to elections to thePANCHAYATS.8. Section 162 of THE ACT stipulates that PANCHAYAT areas shall bedivided into wards[5].9. Section 165[6] declares that every person entitled to be registeredas voter in the relevant part of the electoral rolls of the Assembly isentitled to be registered as a voter for the purpose of PANCHAYATSelections.10. Section 175 mandates that persons suffering from any one of thedisqualifications mentioned in Section 175 are neither eligible to contestthe election to any one of the offices under the Act nor can they continuein office if they incur any one of the disqualifications, after having beenelected. The categories so specified runs into a long list, such as,convicts of certain categories of offences, adjudicated insolvent, peopleof unsound mind, people who hold any office of profit under any one of thethree categories of Panchayats etc.11. By the IMPUGNED ACT[7], five more categories of persons are renderedincapable of contesting elections for any one of the elected offices underTHE ACT. These categories are: (i) persons against whom charges areframed in criminal cases for offences punishable with imprisonment for notless than ten years, (ii) persons who fail to pay arrears, if any, owed bythem to either a Primary Agricultural Cooperative Society or DistrictCentral Cooperative Bank or District Primary Agricultural Rural DevelopmentBank, (iii) persons who have arrears of electricity bills, (iv) persons whodo 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) issueda notification specifying the election schedule for the PANCHAYATS ofHaryana.13. The three petitioners herein claim to be political activistsinterested in contesting the local body elections, but would now bedisabled to contest as none of them possess the requisite educationalqualification.14. The petitioners challenge the IMPUGNED ACT principally on the groundthat the enactment is violative of Article 14 of the Constitution. It isargued on behalf of the petitioners that (i) the impugned provisions arewholly unreasonable and arbitrary and therefore violative of Article 14 ofthe Constitution. They create unreasonable restrictions on theconstitutional right of voters to contest elections under the ACT[8]; (ii)they create an artificial classification among voters (by demanding theexistence of certain criteria which have no reasonable nexus to the objectsought to be achieved by the ACT), an otherwise homogenous group of peoplewho are entitled to participate in the democratic process under theConstitution at the grass-roots level; and (iii) the classification soughtto be made has no legitimate purpose which can be achieved[9].15. Though not very specifically pleaded in the writ petition, elaboratesubmissions are made on the questions (i) whether the stipulationscontained in the impugned amendment are in the nature of prescription of“qualifications” or “disqualifications” for contesting the elections underTHE ACT; (ii) if the impugned stipulations are in the nature of aprescription of qualifications whether the State legislature is competentto make such stipulations consistent with the scheme of the Constitution,as can be culled out from the language of Article 243F and other relatedprovisions of the Constitution.16. On the other hand, the learned Attorney General appearing for therespondents submitted that nobody has a fundamental right to contest anelection under our Constitution and it is really not necessary in thepresent case to decide whether the right to contest an election to thePANCHAYATS is a constitutional right. He argued that even assuming forthe sake of argument that there is a constitutional right to contest anelection to the PANCHAYATS, such right is expressly made subject toqualifications/disqualifications contemplated under Article 243F whichauthorises the State legislature to prescribe disqualifications forcontesting election to any PANCHAYAT. Prescription of qualifications tocontest an election based on criteria such as minimal educationalaccomplishment etc. cannot be said to be either arbitrary or irrelevanthaving regard to the nature of duties required to be discharged by personselected to any one of the offices under THE ACT.17. The learned Attorney General also submitted that the legislature bestcomprehends the needs of the society[10]. The decision to prescribe such aqualification is in the realm of wisdom of the legislature[11] and theCourts do not sit in review of such wisdom on the ground that thelegislative decision is arbitrary[12].18. Answers to questions raised by the petitioners in this writ petition,in our opinion, inevitably depend upon answer to the question whether rightto vote or the right to contest an election to any of the constitutionalbodies is a constitutional or a statutory right, since the extent to whichcurtailment or regulation of such right is permissible depends upon thenature of the right.19. Prior to the 73rd Amendment of the Constitution, the Constitutioncontemplated elections to the office of the President, Vice-President, thetwo Houses of the Parliament known as Rajya Sabha and Lok Sabha and theState Legislatures. The Legislatures in certain States are bicameral.They are known as Legislative Assembly and Legislative Council while otherStates are unicameral (only the legislative Assembly). After the 73rd and74th Amendments of the Constitution, PANCHAYATS and Municipal bodiesspecified under Parts IX & IXA of the Constitution respectively were addedto the above-mentioned.20. The nature of the right to vote at or the right to contest to any oneof 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 consideredthe validity of the Representation of the People (Third Amendment) Act,2002 (4 of 2002). By the said amendment, a candidate contesting anelection (to which the Representation of the People Act, 1951 applies) isrequired to furnish certain information at the time of filing ofnomination. In that context, Justice P.V. Reddi examined in some detailthe nature of the right to vote in the background of the observations madein two earlier decisions of this Court, in N.P. Ponnuswami v. ReturningOfficer, Namakkal Constituency, Namakkal, Salem, AIR 1952 SC 64 and JyotiBasu & Others v. Debi Ghosal & Others, (1982) 1 SCC 691 and recorded thecategoric conclusion that the “right to vote” if not a fundamental right iscertainly a “constitutional right” and “it is not very accurate to describeit as a statutory right, pure and simple”. The learned Judge recorded nineof 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 orLegislative Assembly is a constitutional right but not merely a statutoryright; freedom of voting as distinct from right to vote is a facet of thefundamental right enshrined in Article 19(1)(a). The casting of vote infavour of one or the other candidate marks the accomplishment of freedom ofexpression of the voter.”A conclusion with which Justice Dharamadhikari expressly agreed[13]. Thethird learned judge Justice M.B. Shah recorded no disagreement.22. Following the PUCL case, one of us held in Desiya Murpokku DravidaKazhagam (DMDK) & Another v. Election Commission of India, (2012) 7 SCC340: “…… every citizen of this country has a constitutional right both toelect and also be elected to any one of the legislative bodies created bythe Constitution …….”.[14] No doubt, it was a part of the dissentingopinion. It was a case dealing with allotment of election symbols and theright of a political party to secure “……. an election symbol on a permanentbasis irrespective of its participation and performance judged by the voteshare it commanded at any election.”[15] Though, the majority held that apolitical party cannot claim an election symbol on a permanent basis unlessit satisfied norms stipulated under the symbols order issued by theElection Commission of India. Their Lordships did not record anydisagreement regarding the conclusion that the right to participate inelectoral process, either as a voter or as a candidate is a constitutionalright.23. Therefore, in our opinion, the question whether the right to vote atan election for either the Lok Sabha or the Legislative Assembly is astatutory right or a constitutional right is no more res integra and standsconcluded by the abovementioned judgments, in PUCL and DMDK cases (supra).24. However, the learned Attorney General brought to our notice certainobservations in some of the judgments to the effect that rights to vote andcontest elections are purely statutory. The context and the precedentiaryvalue of those judgments need examination.25. In Shyamdeo Prasad Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46, aBench of three learned Judges observed:“20. … It has to be remembered that right to contest an election, a rightto vote and a right to object to an ineligible person exercising right tovote are all rights and obligations created by statute….”It was a case dealing with election to the Legislative Council of Biharfrom the Patna Teacher’s Constituency. The limited question before thisCourt was whether the High Court in an election petition could examine thelegality of the inclusion of certain names in the electoral roll? We areof the opinion that the said judgment leaves open more questions than itanswers. The correctness of the judgment requires a more closer scrutinyin an appropriate case for more than one reason. One of them is that theinquiry in the said judgment commenced with the examination of Article 326which has no application to elections to the Legislative Councils. Thetext of Article 326 is express that it only deals with the adult suffragewith respect to Lok Sabha and Legislative Assemblies. In our opinion thestatement (extracted earlier from para 20 of the said judgment) is madewithout analysis of relevant provisions of the Constitution apart frombeing unnecessary in the context of the controversy before the Court and isfurther 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 inIndian Law, that the right to vote and contest elections does not have thestatus of fundamental rights. Instead, they are in the nature of legalrights…….”. For recording such conclusion reliance was placed on certainobservations 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 wasregarding the legality of Article 243D(6) and Article 243T(6) which enabledreservation of seats in favour of backward classes etc.[16] The challengeto the abovementioned provisions is that they “are violative of principlessuch as equality, democracy and fraternity, which are part of the basicstructure doctrine”.[17]28. The decision in PUCL case was unfortunately not noticed by this Courtwhile deciding K. Krishna Murthy case. Further a specific request “toreconsider the precedents wherein the rights of political participationhave been characterized as statutory rights” was not given anyconsideration[18]. Their Lordships also failed to notice that theobservations made in Mohan Lal case, prior to the 74th Amendment of theConstitution regarding the nature of the electoral rights with regard tothe elections to the Municipal bodies are wholly inapplicable and withoutexamining provisions of the Constitution as amended by the 74th Amendment.29. They relied upon observation[19] from Mohan Lal case, in our opinion,are too sweeping and made without any appropriate analysis of law. Thelimited issue before this Court in Mohan Lal case was the legality of a ‘noconfidence motion’ moved against the President of Rai Bareilly MunicipalBoard who was elected directly by voters of the municipality. The U.P.Municipalities Act provided for removal of the President so elected throughthe process of a no confidence motion moved by the Councilors whothemselves, in turn, are elected representatives of the territorialdivisions of the municipality. The question whether the right to vote inor contest an election is a constitutional or statutory right was not inissue. Mohan Lal case was dealing with provisions of the U.P.Municipalities Act, 1916 as amended by Act 19 of 1990, i.e. prior to 74thAmendment of the Constitution[20]. Therefore, the right to vote andcontest at an election for a municipality was certainly a statutory rightby the date of the judgment[21] in Mohan Lal case.30. Again in Krishnamoorthy v. Sivakumar & Others, (2015) 3 SCC 467, thiscourt observed that the right to contest an election is a plain and simplestatutory right[22].31. We are of the opinion that observations referred to above are inconflict with the decisions of this Court in PUCL case and DMDK case, whichwere rendered after an elaborate discussion of the scheme of theConstitution. We are of the clear opinion that the Constitutionrecognises the distinction between the ‘Right to Vote’ at various electionscontemplated under the Constitution and the ‘Right to Contest’ at suchelections. There are various other electoral rights recognised or createdby the statutes and the Representation of the People Act, 1951 recognisesthe same[23].Right to Vote32. Prior to the 73rd and 74th amendments, the Constitution contemplatedelections to be held to offices of the President and the Vice Presidentunder Articles 54 and 66 respectively. It also contemplated elections tothe two chambers of Parliament i.e. Rajya Sabha and Lok Sabha. A smallfraction of the Members of the Rajya Sabha are nominated by the Presidentwhile other Members are elected[24]. In the case of the Lok Sabha,subject to stipulations contained in Article 331 providing for nominationof not more than two Members belonging to the Anglo Indian Community allother Members are required to be elected. In the case of the LegislativeCouncil, in States where they exist, a fraction of the Members of theCouncil are required to be nominated by the Governor under Article171(2)(e) and the rest of the Members are to be elected from variousconstituencies specified under Article 171 (3)(a), (b), (c), (d).Legislative Assemblies shall consist of only elected members subject toprovisions for nomination contained in Article 333 in favour of the AngloIndian Community.33. The right to vote of every citizen at an election either to the LokSabha or to the Legislative Assembly is recognised under Articles 325 and326 subject to limitations (qualifications and disqualifications)prescribed by or under the Constitution. On the other hand the right tovote at an election either to the Rajya Sabha or to the Legislative Councilof a State is confined only to Members of the Electoral Colleges specifiedunder Article 80(4) & (5) and Article 171 (3)(a), (b), (c), (d)[25]respectively. In the case of election to the Rajya Sabha, the ElectoralCollege is confined to elected members of Legislative Assemblies of variousStates and representatives of Union Territories[26]. In the case of theLegislative Council, the Electoral College is divided into four partsconsisting of; (i) Members of various local bodies specified under Article171 (3)(a); (ii) certain qualified graduates specified under Article 171(3)(b); (iii) persons engaged in the occupation of teaching in certainqualified institutions described under Article 171 (3)(c); and (iv) Membersof 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, neednot be a voter in that category[27].34. The Electoral College for election to the Office of the Presidentconsists of elected members of both Houses of Parliament and electedmembers of the Legislative Assemblies of the State while the ElectoralCollege with respect to the Vice President is confined to Members of bothHouses of Parliament.Right to Contest35. The Constitution prescribes certain basic minimum qualifications anddisqualifications to contest an election to any of the above mentionedoffices or bodies. Insofar as election to the Office of the Presidentand Vice President are concerned, they are contained under Articles 58 and66 respectively. Insofar as Parliament and the State Legislatures areconcerned, such qualifications are stipulated under Articles 84 and 173,and disqualifications under Articles 102 and 191 respectively. TheConstitution also authorises Parliament to make laws prescribing bothfurther qualifications and disqualifications.36. Interestingly, insofar as elections to Office of the President andVice President are concerned, the Constitution does not expressly authoriseeither Parliament or Legislative Assemblies of the State to prescribe anyfurther qualifications or disqualifications to contest an election toeither of these Offices. It stipulates only two conditions which qualifya person to contest those Offices, they are - citizenship of the countryand the minimum age of 35 years. Under Articles 58(1)(c) and 66(3)(c), itis further stipulated that a person who was otherwise eligible to contestfor either of the above mentioned two Offices shall not be eligible unlesshe is qualified for election as a Member of the Lok Sabha or the RajyaSabha respectively.37. An examination of the scheme of these various Articles indicates thatevery person who is entitled to be a voter by virtue of the declarationcontained under Article 326 is not automatically entitled to contest in anyof the elections referred to above. Certain further restrictions areimposed on a voter’s right to contest elections to each of the abovementioned bodies. These various provisions, by implication create aconstitutional right to contest elections to these various constitutionaloffices and bodies. Such a conclusion is irresistible since there would beno requirement to prescribe constitutional limitations on a non existentconstitutional right.38. Articles 84 and 173 purport to stipulate qualifications formembership of Parliament and Legislatures of the State respectively.Articles 102 and 191 purport to deal with disqualifications for membershipof the above mentioned two bodies respectively. All the four Articlesauthorise the Parliament to prescribe further qualifications anddisqualifications, as the case may be, with reference to the membership ofParliament and Legislatures of the State as the case may be.39. The distinction between the expressions qualification anddisqualification in the context of these four Articles is littleintriguing. There is no clear indication in any one of these four Articlesor in any other part of the Constitution as to what is the legaldistinction between those two expressions. In common parlance, it isunderstood that a qualification or disqualification is the existence orabsence of a particular state of affairs, which renders the achievement ofa particular object either possible or impossible. Though there are twosets of Articles purporting to stipulate qualifications anddisqualifications, there is neither any logical pattern in these sets ofArticles nor any other indication which enables discernment of the legaldifference between the two expressions. We reach such a conclusionbecause citizenship of India is expressly made a condition precedent underArticles 84 and 173 for membership of both Parliament and StateLegislatures. Lack of citizenship is also expressly stipulated to be adisqualification for membership of either of the above mentioned bodiesunder Articles 102 and 191. In view of the stipulation under Articles 84and 173 - citizenship is one of the requisite qualifications for contestingelection to either Parliament or the State Legislature, we do not see anyreason nor is anything brought to our notice by learned counsel appearingon either side to again stipulate under the Articles 102 and 191 that lackof citizenship renders a person disqualified from contesting elections tothose bodies. Learned counsel appearing on either side are alsounanimously of the same opinion. We are, therefore, of the opinion that thedistinction between qualifications and disqualifications is purelysemantic[28].40. We, therefore, proceed on the basis that, subject to restrictionsmentioned above, every citizen has a constitutional right to elect and tobe elected to either Parliament or the State legislatures.41. Insofar as the Rajya Sabha and the Legislative Councils areconcerned, such rights are subject to comparatively greater restrictionsimposed by or under the Constitution. The right to vote at an electionto the Lok Sabha or the Legislative Assembly can only be subjected torestrictions specified in Article 326. It must be remembered that underArticle 326 the authority to restrict the right to vote can be exercised bythe ‘appropriate legislature’. The right to contest for a seat in eitherof the two bodies is subject to certain constitutional restrictions andcould be restricted further only by a law made by the Parliament.42. The next question is – whether such constitutional rights exist inthe context of elections to the PANCHAYATS? Having regard to the scheme ofPart IX of the Constitution, the purpose[29] for which Part IX came to beintroduced in the Constitution by way of an amendment, we do not see anyreason 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 isneither a fundamental right nor a common law right. It is a right conferredby a statute. At the most, in view of Part IX having been added in theConstitution, a right to contest election for an office in Panchayat may besaid 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 ofelections to PANCHAYATS. Part IX of the Constitution does not contain anyexpress provision comparable to Article 326 nor does it contain any expressprovisions comparable to Article 84 and Article 173. The text of Article326 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 getelected for PANCHAYATS?ii) In the absence of any express provision, what is the minimum agelimit by which a person becomes entitled to a constitutional right eitherto become a voter or get elected to PANCHAYATS?iii) Are there any constitutionally prescribed qualifications ordisqualifications 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 anyprovision which stipulates that a person to be a voter at elections toPANCHAYAT is required to be either (i) a citizen of India or (ii) of anyminimum age. Similarly, in the context of right to contest an election toPANCHAYATS, Part IX is silent regarding qualifications required of acandidate. All that the Constitution prescribes is disqualification formembership of PANCHAYATS:“243F. Disqualifications for membership. - (1) A person shall bedisqualified for being chosen as, and for being, a member of a Panchayat –if he is so disqualified by or under any law for the time being in forcefor the purposes of elections to the Legislature of the State concerned:Provided that no person shall be disqualified on the ground that he is lessthan twenty-five years of age, if he has attained the age of twenty-oneyears;if he is so disqualified by or under any law made by the Legislature of theState.(2) If any question arises as to whether a member of a Panchayat hasbecome subject to any of the disqualifications mentioned in clause (1), thequestion shall be referred for the decision of such authority and in suchmanner as the Legislature of a State may, by law, provide.”46. It appears from the above, that any person who is disqualified by orunder any law for the time being in force for the purposes of elections tothe Legislatures of the State concerned is also disqualified for being amember of PANCHAYAT. In other words qualifications and disqualificationsrelevant for membership of the Legislature are equally made applicable byreference to the membership of PANCHAYATS. Though such qualifications anddisqualifications could be stipulated only by Parliament with respect tothe membership of the Legislature of a State, Article 243F authorises theconcerned State Legislature also to stipulate disqualifications for being amember of PANCHAYAT.47. The right to vote and right to contest at an election to a PANCHAYATare constitutional rights subsequent to the introduction of Part IX of theConstitution of India. Both the rights can be regulated/curtailed by theappropriate Legislature directly. Parliament can indirectly curtail onlythe right to contest by prescribing disqualifications for membership of theLegislature of a State.48. It is a settled principle of law that curtailment of any rightwhether such a right emanates from common law, customary law or theConstitution can only be done by law made by an appropriate LegislativeBody. Under the scheme of our Constitution, the appropriateness of theLegislative Body is determined on the basis of the nature of the rightssought to be curtailed or relevant and the competence of the LegislativeBody to deal with the right having regard to the distribution oflegislative powers between Parliament and State Legislatures. It is alsothe settled principle of law under our Constitution that every law made byany Legislative Body must be consistent with provisions of theConstitution.49. It is in the abovementioned background of the constitutional schemethat questions raised in this writ petition are required to be examined.50. Section 173(1)[30] of THE ACT stipulates that every person whose nameis in the “list of voters” shall be qualified “to vote at the election of amember for the electoral division to which such list pertains” unless he isotherwise disqualified. Persons who are qualified to be registered asvoters and “list of voters” are dealt with under Sections 165 and 166, thedetails of which are not necessary for the present purpose. Under Section173(2)[31] every person whose name is in the list of voters subject to afurther condition that he has attained the age of 21 years is qualified tocontest at an election to any PANCHAYAT unless such a person suffers from adisqualification prescribed by law.51. Section 175 of THE ACT stipulates that “No person shall be aSarpanch[32] or a Panch[33] of a Gram Panchayat or a member of a PanchayatSamiti or Zila Parishad or continue as such”, if he falls within the ambitof any of the clauses of Section 175. Section 175 reads as follows:“Section 175. Disqualifications.—(1) No person shall be a Sarpanch or aPanch of a Gram Panchayat or a member of a Panchayat Samiti or ZilaParishad or continue as such who—(a) has, whether before or after the commencement of this Act, beenconvicted—(i) of an offence under the Protection of Civil Rights Act, 1955 (Act 22of 1955 ), unless a period of five years, or such lesser period as theGovernment may allow in any particular case, has elapsed since hisconviction; or(ii) of any other offence and been sentenced to imprisonment for not lessthan six months, unless a period of five years, or such lesser period asthe Government may allow in any particular case, has elapsed since hisrelease; or(aa) has not been convicted, but charges have been framed in a criminalcase for an offence, punishable with imprisonment for not less than tenyears;(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 aGram Panchayat, Panchayat Samiti or Zila Parishad before the commencementof this Act under the Punjab Gram Panchayat Act, 1952 and Punjab PanchayatSamiti Act, 1961, and a period of five years has not elapsed from the dateof such removal, unless he has, by an order of the Government notified inthe Official Gazette been relieved from the disqualifications arising onaccount of such removal from office; or(e) has been disqualified from holding office under any provision of thisAct 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 orinterest in any work done by order of the Gram Panchayat, Panchayat Samitior Zila Parishad;(h) has directly or indirectly, by himself or, his partner share orinterest in any transaction of money advanced or borrowed from any officeror servant or any Gram Panchayat; or(i) fails to pay any arrears of any kind due by him to the GramPanchayat, Panchayat Samiti or Zila Parishad or any Gram Panchayat,Panchayat Samiti or Zila Parishad subordinate thereto or any sumrecoverable from him in accordance with the Chapters and provisions of thisAct, within three months after a special notice in accordance with therules 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 isunder any acknowledgement of allegiance or adherence to a Foreign state; or(l) is disqualified under any other provision of this Act and the periodfor 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 ortenancy 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 ofelection, in unauthorised possession of land or other immovable propertybelonging to the Gram Panchayat, Panchayat Samiti or Zila Parishad; or(o) being a Sarpanch or Panch or a member of Panchayat Samiti or a ZilaParishad has cash in hand in excess of that permitted under the rules anddoes not deposit the same along with interest at the rate of twenty-onepercentum per year in pursuance of a general or special order of theprescribed 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 Parishadhas in his custody prescribed records and registers and other propertybelonging to, or vested in, Gram Panchayat, Panchayat Samiti or ZilaParishad and does not handover the same in pursuance of a general orspecial order of the prescribed authority within the time specified in theorder; or(q) x x x(r) admits the claim against Gram Panchayat without proper authorizationin 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 fora period of six years.(t) fails to pay any arrears of any kind due to him to any PrimaryAgriculture Co-operative Society, District Central co-operative Bank andDistrict Primary co-operative Agriculture Rural Development Bank; or(u) fails to pay arrears of electricity bills;(v) has not passed matriculation examination or its equivalentexamination from any recognized institution/board: Provided that in case of a woman candidate or a candidate belongingto Scheduled Caste, the minimum qualification shall be middle pass: Provided further that in case of a woman candidate belonging toScheduled Caste contesting election for the post of Panch, the minimumqualification shall be 5th pass; or(w) fails to submit self declaration to the effect that he has afunctional toilet at his place of residence.Explanation 1. – A person shall not be disqualified under clause (g) formembership of a Gram Panchayat, Panchayat Samiti or Zila Parishad by reasononly of such person,--(a) having share in any joint stock company or a share or interest in anysociety registered under any law for the time being in force which shallcontract with or be employed by or on behalf of Gram Panchayat, PanchayatSamiti or Zila Parishad; or(b) having a share or interest in any newspaper in which anyadvertisement relating to the affairs of a Gram Panchayat, Panchayat Samitior Zila Parishad may be inserted; or(c) holding a debenture or being otherwise concerned in any loan raisedby 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 inwhich the amount of rent has been approved by the Gram Panchayat, PanchayatSamiti or Zila Parishad in its own case or in any sale or purchase ofimmovable property or in any agreement for such lease, sale or purchase ;or(f) having a share or interest in the occasional sale to the GramPanchayat, Panchayat Samiti or Zila Parishad of any article in which heregularly 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)-A person shall not be deemed to be disqualified if he has paid the arrearsor the sum referred to in clause (i) of this sub-section, prior to the dayprescribed for the nomination of candidates;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 inthe net of those contingencies disqualified from contesting elections.53. At the outset, we must make it clear that neither learned counsel forthe petitioners nor other learned counsel (who were permitted to makesubmissions though they are not parties, having regard to the importance ofthe matter) made any specific submission regarding constitutionality of sub-section (1)(aa) of Section 175 which prescribes that “(1) No person shallbe a ….. or continue as such who … (aa) has not been convicted, butcharges have been framed in a criminal case for an offence, punishable withimprisonment for not less than ten years”. The challenge is confined toclauses (t), (u), (v) and (w) of Section 175(1).54. We first deal with the submission of violation of Article 14 on theground of arbitrariness.55. The petitioners argued that the scheme of the Constitution is toestablish a democratic, republican form of Government as proclaimed in thePreamble to the Constitution and any law which is inconsistent with suchscheme is irrational and therefore ‘arbitrary’.56. In support of the proposition that the Constitution seeks toestablish a democratic republic and they are the basic features of theConstitution, petitioners placed reliance upon His Holiness KesavanandaBharati Sripadagalvaru v. State of Kerala & Another, (1973) 4 SCC 225 para1159 and Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1, paras 563and 578. There cannot be any dispute about the proposition.57. In support of the proposition that a statute can be declaredunconstitutional on the ground that it is arbitrary and therefore violativeof Article 14, petitioners relied upon judgments of this Court reported inSubramanian 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,(1983) 1 SCC 305 and certain observations made by Justice A.C. Gupta in hisdissenting 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 forthe proposition that an enactment could be declared unconstitutional on theground it is “arbitrary”.59. In Subramanian Swamy case, the dispute revolved around theconstitutionality of Section 6A of the Delhi Special Police EstablishmentAct 1946, which was introduced by an amendment in the year 2003. Itstipulated that the Delhi Special Police Establishment shall not conductany ‘enquiry’ or ‘investigation’ into any offence falling under thePrevention of Corruption Act 1988, alleged to have been committed bycertain classes of employees of the Central Government etc. The saidprovision was challenged on the ground it was arbitrary andunreasonable[34] and therefore violative of Article 14. The submission wasresisted by the respondent (Union of India) on the ground that such achallenge is impermissible in view of the decision in State of AndhraPradesh v. McDowell & Co., (1996) 3 SCC 709. But the Constitution Bencheventually declared the impugned provision unconstitutional not on theground of it being arbitrary but on the ground it makes an unreasonableclassification of an otherwise homogenous group of officers accused ofcommitting an offence under the Prevention of Corruption Act without therebeing reasonable nexus between the classification and the object of theAct.[35]60. Coming to the Indian Council of Legal Aid & Advice & Others v. BarCouncil of India & Others, (1995) 1 SCC 732, it was a case where thelegality of a rule made by the Bar Council of India prohibiting theenrolment of persons who completed the age of 45 years was in issue. Therule was challenged on two grounds. Firstly, that the rule was beyond thecompetence of the Bar Council of India as the Advocates Act 1961 did notauthorise the Bar Council of India to prescribe an upper age limit forenrolment. Secondly, that the rule is discriminatory and thirdly, thefixation of upper age limit of 45 years is arbitrary.61. On an examination of the scheme of the Advocates Act, this Court cameto a conclusion that the impugned rule was beyond the rule making power ofthe Bar Council of India and, therefore, ultra vires the Act. This Courtalso held that the rule was “unreasonable and arbitrary”[36].62. We are of the opinion that in view of the conclusion recorded by theCourt that the rule is beyond the competence of Bar Council of India, itwas not really necessary to make any further scrutiny whether the rule wasunreasonable and arbitrary. Apart from that, in view of the conclusionrecorded that the rule was clearly discriminatory, the inquiry whether thechoice of the upper age limit of 45 years is arbitrary or not is once againnot necessary for the determination of the case. At any rate, thedeclaration made by this Court in the said case with regard to a piece ofsubordinate legislation, in our view, cannot be an authority for theproposition that a statute could be declared unconstitutional on the groundthat 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 ofthe State of Andhra Pradesh was 55 till the year 1979. In 1979, it wasenhanced to 58 years. The Government of Andhra Pradesh in February, 1983decided to roll back the age of superannuation to 55 years and tookappropriate legal steps which eventually culminated in passing of Act 23 of1984. The said Act came to be amended by Ordinance 24 of 1984, againenhancing the age of superannuation to 58 years which was followed up byAct 3 of 1985. While enhancing the age of superannuation to 58 for thesecond time by the above-mentioned Ordinance 24 of 1984 and Act 3 of 1985,benefit of the enhanced age of superannuation was given to certainemployees who had retired in the interregnum between 20.2.1983 and23.08.1984; while others were denied such benefit. Prabhakar Rao andothers who were denied the benefit challenged the legislation. This Courtplacing reliance on D.S. Nakara Case concluded that the impugned Actinsofar as it denied the benefit to some of the employees who retired inthe interregnum between two dates mentioned above was unsustainable andheld as follows:-“The principle of Nakara clearly applies. The division of Governmentemployees into two classes, those who had already attained the age of 55 onFebruary 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 anddenying the benefit of the higher age of superannuation to the former classis as arbitrary as the division of Government employees entitled to pensionin the past and in the future into two classes, that is, those that hadretired prior to a specified date and those that retired or would retireafter the specified date and confining the benefits of the new pensionrules to the latter class only. …” (Para 20)The Bench also observed:-“Now if all affected employees hit by the reduction of the age ofsuperannuation formed a class and no sooner than the age of superannuationwas reduced, it was realized that injustice had been done and it wasdecided that steps should be taken to undo what had been done, there was noreason to pick out a class of persons who deserved the same treatment andexclude from the benefits of the beneficent treatment by classifying themas a separate group merely because of the delay in taking the remedialaction already decided upon. We do not doubt that the Judge’s friend andcounselor, “the common man”, if asked, will unhesitatingly respond that itwould be plainly unfair to make any such classification. The commonsenseresponse that may be expected from the common man, untrammeled by legallore and learning, should always help the Judge in deciding questions offairness, arbitrariness etc. Viewed from whatever angle, to our minds,the action of the Government and the provisions of the legislation wereplainly 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 wereplainly arbitrary and discriminatory” in support of their submission thatan Act could be declared unconstitutional on the ground that it isarbitrary.65. We are of the opinion that Prabhakar Rao case is not an authority onthe proposition advanced by the petitioners. The ratio of Prabhakar Raocase is that there was an unreasonable classification between the employeesof the State of Andhra Pradesh on the basis of the date of their attainingthe age of superannuation.66. Observations by Justice Gupta in R.K. Garg Case[37] no doubt indicatethat the doctrine propounded by this Court in E.P. Royappa v. State ofTamil Nadu & Another[38] and Maneka Gandhi v. Union of India & Another[39]that arbitrariness is antithetical to the “concept of equality” is alsorelevant while examining the constitutionality of a statute but suchobservations are a part of the dissenting judgment and not the ratiodecidendi of the judgment.67. Learned Attorney General heavily relied upon para 43 of the State ofAndhra Pradesh & Others v. McDowell & Co., (1996) 3 SCC 709 which dealtwith the question of declaring a statute unconstitutional on the ground itis arbitrary.“43. Sri Rohinton Nariman submitted that inasmuch as a large number ofpersons falling within the exempted categories are allowed to consumeintoxicating liquors in the State of Andhra Pradesh, the total prohibitionof manufacture and production of these liquors is "arbitrary" and theamending Act is liable to be struck down on this ground alone. Support forthis proposition is sought from a judgment of this Court in State of TamilNadu & Ors. v. Ananthi Ammal & Others [(1995) 1 SCC 519]. Before, however,we refer to the holding in the said decision, it would be appropriate toremind ourselves of certain basic propositions in this behalf. In theUnited Kingdom, Parliament is supreme. There are no limitations upon thepower of Parliament. No Court in the United Kingdom can strike down an Actmade by Parliament on any ground. As against this, the United States ofAmerica has a Federal Constitution where the power of the Congress and theState Legislatures to make laws is limited in two ways, viz., the divisionof legislative powers between the States and the federal government and thefundamental rights (Bill of Rights) incorporated in the Constitution. InIndia, the position is similar to the United States of America. The powerof the Parliament or for that matter, the State Legislatures is restrictedin two ways. A law made by the Parliament or the Legislature can be struckdown by courts on two grounds and two grounds alone, viz., (1) lack oflegislative competence and (2) violation of any of the fundamental rightsguaranteed in Part-III of the Constitution or of any other constitutionalprovision. There is no third ground. We do not wish to enter into adiscussion of the concepts of procedural unreasonableness and substantiveunreasonableness - concepts inspired by the decisions of United StatesSupreme Court. Even in U.S.A., these concepts and in particular the conceptof substantive due process have proved to be of unending controversy, thelatest thinking tending towards a severe curtailment of this ground(substantive due process). The main criticism against the ground ofsubstantive due process being that it seeks to set up the courts asarbiters of the wisdom of the Legislature in enacting the particular pieceof legislation. It is enough for us to say that by whatever name it ischaracterized, the ground of invalidation must fall within the four cornersof the two grounds mentioned above. In other words, say, if an enactmentchallenged as violative of Article 14, it can be struck down only if it isfound that it is violative of the equality clause/equal protection clauseenshrined therein. Similarly, if an enactment is challenged as violative ofany of the fundamental rights guaranteed by clauses (a) to (g) of Article19(1), it can be struck down only if it is found not saved by any of theclauses (2) to (6) of Article 19 and so on. No enactment can be struckdown by just saying that it is arbitrary[40]* or unreasonable. Some orother constitutional infirmity has to be found before invalidating an Act.An enactment cannot be struck down on the ground that Court thinks itunjustified. The Parliament and the Legislatures, composed as they are ofthe representatives of the people, are supposed to know and be aware of theneeds of the people and what is good and bad for them. The Court cannot sitin judgment over their wisdom. In this connection, it should be rememberedthat even in the case of administrative action, the scope of judicialreview is limited to three grounds, viz., (i) unreasonableness, which canmore appropriately be called irrationality, (ii) illegality and (iii)procedural impropriety [See Council of Civil Services Union v. Minister forCivil Services (1985 A.C.374) which decision has been accepted by thisCourt as well]. The applicability of doctrine of proportionality even inadministrative law sphere is yet a debatable issue. [See the opinions ofLords Lowry and Ackner in R. v. Secretary of State for Home Department ex pBrind, [1991 AC 696 at 766-67 and 762]. It would be rather odd if anenactment were to be struck down by applying the said principle when itsapplicability even in administrative law sphere is not fully and finallysettled. It is one thing to say that a restriction imposed upon afundamental right can be struck down if it is disproportionate, excessiveor unreasonable and quite another thing to say that the Court can strikedown enactment if it thinks it unreasonable, unnecessary or unwarranted.Now, coming to the decision in Ananthi Ammal, we are of the opinion that itdoes not lay down a different proposition. It was an appeal from thedecision of the Madras High Court striking down the Tamil Nadu Acquisitionof 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 substantiallyunfair to the owners of the land as compared to the procedure prescribed bythe Land Acquisition Act, insofar as Section 11 of the Act provided forpayment of compensation in instalments if it exceeded Rupees two thousand.After noticing the several features of the Act including the one mentionedabove, this Court observed:"7. When a statute is impugned under Article 14 what the court has todecide is whether the statute is so arbitrary or unreasonable that it mustbe struck down. At best, a statute upon a similar subject which derives itsauthority from another source can be referred to, if its provisions havebeen held to be reasonable or have stood the test of time, only for thepurpose of indicating what may be said to be reasonable in the context. Weproceed 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 paragraphmust 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 thereading of the very paragraph in its entirety discloses. The provisionsof the Tamil Nadu Act were contrasted with the provisions of the LandAcquisition Act and ultimately it was found that Section 11 insofar as itprovided for payment of compensation in instalments was invalid. Theground of invalidation is clearly one of discrimination. It must beremembered that an Act which is discriminatory is liable to be labeled asarbitrary. It is in this sense that the expression ‘arbitrary’ was usedin para 7.”68. From the above extract it is clear that courts in this country do notundertake the task of declaring a piece of legislation unconstitutional onthe ground that the legislation is “arbitrary” since such an exerciseimplies a value judgment and courts do not examine the wisdom oflegislative choices unless the legislation is otherwise violative of somespecific provision of the Constitution. To undertake such an examinationwould amount to virtually importing the doctrine of “substantive dueprocess” employed by the American Supreme Court at an earlier point of timewhile examining the constitutionality of Indian legislation. As pointedout in the above extract, even in United States the doctrine is currentlyof 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 processhas no application under the Indian Constitution[41]. As pointed out byFrankfurter, J., arbitrariness became a mantra.69. For the above reasons, we are of the opinion that it is notpermissible for this Court to declare a statute unconstitutional on theground that it is ‘arbitrary’.70. We shall examine the next facet of the challenge i.e. each of thefour impugned clauses have created a class of persons who were eligible tocontest the elections to Panchayats subject to their satisfying therequirements of law as it existed prior to the IMPUGNED ACT but arerendered now ineligible because they fail to satisfy one of the otherconditions prescribed under clauses (t), (u), (v) and (w) of Section 175(1)of the Act. The case of the petitioners is that such a classificationcreated by each of the impugned clauses amount to an unreasonableclassification among people who form one class but for the IMPUGNED ACT,without any intelligible difference between the two classes and suchclassification has no nexus with the object sought to be achieved.71. Learned Attorney General submitted that the object sought to beachieved is to have “model representatives for local self government forbetter administrative efficiency which is the sole object of the 73rdconstitutional amendment”.72. In the light of the above submissions, we shall now deal with thechallenge to each of the abovementioned four clauses.73. Clause (v) prescribes a minimum educational qualification ofmatriculation[42] for anybody seeking to contest an election to any one ofthe offices mentioned in the opening clause of Section 175(1). However,the minimum educational qualification is lowered insofar as candidatesbelonging to scheduled castes and women are concerned to that of “middlepass” whereas a further relaxation is granted in favour of the scheduledcaste woman insofar as they seek to contest for the office of Panch.74. It is argued that stipulation of minimum educational qualificationwould have the effect of disqualifying more than 50% of persons who wouldhave otherwise been qualified to contest elections to PANCHAYATS under thelaw prior to the IMPUGNED ACT. It is further submitted that poorersections of the society, women and scheduled castes would be worst hit bythe impugned stipulation as a majority of them are the most unlikely topossess the minimum educational qualification prescribed in the IMPUGNEDACT.75. On the other hand, it is stated in the affidavit filed on behalf ofrespondent as follows:“10. That as per the National Population Register 2011, total ruralpopulation in the State is 1.65 cr out of which 96 lac are above 20 yearsof age. Further 57% of such population, who are over 20 years of age, iseligible to contest even after the introduction of impugneddisqualification in respect of having minimum education qualification.”76. According to the Annexure-5 (to the said affidavit of therespondents) the details of the educational qualification of the personsabove 20 years of age (under Section 173(2)[43] of THE ACT the minimumqualifying age for contesting any PANCHAYAT election is 21 years) are asfollows: NATIONAL POPULATION REGISTER – 2011 Number of persons above 20 years of age vis-à-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 | |1746815 | | |77.It can be seen from the above extract that the total rural population[44]of the State of Haryana is 1.65 crores approximately. (All figures to bementioned hereinafter are ‘approximate’)78. Of the 1.65 crore rural population, 96 lakhs are in the age group of20 years and above. In other words, dehors the IMPUGNED ACT, 96 lakhswould be eligible to contest elections to various PANCHAYATS subject ofcourse to other qualifications and disqualifications prescribed by law. Ofthe 96 lakhs, 36 lakhs are illiterate and about 5 lakhs are literate butbelow primary level of education. The remaining 54.5 lakhs are educated,though the chart does not clearly indicate the exact break-up of the above54.5 lakhs and their respective educational qualifications i.e. whetherthey are educated up to primary or middle or matriculation level and above. The said 54.5 lakhs constitute 57% of the rural population who areotherwise eligible to contest PANCHAYATS election by virtue of their beingin the age group of 20 years and above. Of the 96 lakhs of ruralpopulation, 50 lakhs are men and 46 lakhs are women. Of them, 35 lakhsmen, 20 lakhs women are literate above primary level, though exact break-upof educational qualification is not available. Even if we assume all the20 lakhs women are matriculate and, therefore, eligible to contest anyelection under THE ACT, they would contribute less than 50% of theotherwise eligible women.79. The abovementioned figures include all classes of the populationincluding scheduled caste.80. Coming to the statistics regarding scheduled caste population, thetotal scheduled caste population of Haryana, it appears, is 21 lakhs ofwhich 11 lakhs are men and 10 lakhs are women of which only 6.3 lakhs menand 3.1 lakhs women constituting 59% and 32% respectively are educated.In other words, 68% of the scheduled caste women and 41% of the scheduledcaste men would be ineligible to contest PANCHAYAT elections.81. An analysis of the data in the above table indicates that a largenumber of women (more than 50% of the otherwise eligible women) in generaland scheduled caste women in particular would be disqualified to contestPANCHAYAT elections by virtue of the IMPUGNED ACT. Even with regard tomen, the data is not very clear as to how many of the literate men would bequalified to contest the elections for PANCHAYATS at various levels.Because for men belonging to general category (39 lakhs), a uniformrequirement of matriculation is prescribed in respect of posts for whichthey seek to contest. Coming to men candidates belonging to the scheduledcaste, a uniform academic qualification of “middle pass” is prescribed.How many men under these categories would be qualified to contest is notclear, as the exact data regarding their respective educationalqualifications is not available on the record.82. Coming to scheduled caste women and the proviso to clause (v) ofSection 175(1), though educational qualification required is 5th (primary)pass, such a qualification only entitles them to contest an election forthe post of PANCH of a village but to no other post. Therefore, if ascheduled caste woman desires to contest either to the post of SARPANCH orany other post at ‘Samiti’ or District level, she must be “middle pass”.The exact number of scheduled caste women who possess that qualification isnot available on record. Even assuming for the sake of argument that alleducated scheduled caste women indicated in the Annexure-5 are middle pass,they only constitute 32% of the scheduled caste women. The remaining 68%of the women would be disqualified for contesting any election under theIMPUGNED ACT.83. The question is - whether the impugned provision which disqualifies alarge number of voter population and denies their right to contest forvarious offices under THE ACT is discriminatory and thereforeconstitutionally invalid for being violative of Article 14.84. The learned Attorney General referred to Section 21 of THE ACT whichcatalogues the functions and duties of Gram Panchayat falling under 30broad heads. To demonstrate the range of those heads, he pointed out someof the duties of a Gram Panchayat[45] and submitted that in the light ofsuch responsibilities to be discharged by members elected to the GramPanchayat, the legislature in its wisdom thought it fit to prescribe aminimum educational qualification and such a prescription cannot be said tobe making an unreasonable classification among the voters attracting thewrath of Article 14. Several judgments of this Court are referred toemphasise the importance of education[46].85. The impugned provision creates two classes of voters - those whoare qualified by virtue of their educational accomplishment to contest theelections to the PANCHAYATS and those who are not. The proclaimed objectof such classification is to ensure that those who seek election toPANCHAYATS have some basic education which enables them to more effectivelydischarge various duties which befall the elected representatives of thePANCHAYATS. The object sought to be achieved cannot be said to beirrational or illegal or unconnected with the scheme and purpose of THE ACTor provisions of Part IX of the Constitution. It is only education whichgives a human being the power to discriminate between right and wrong, goodand bad. Therefore, prescription of an educational qualification is notirrelevant for better administration of the PANCHAYATS. The classificationin our view cannot be said either based on no intelligible differentiaunreasonable or without a reasonable nexus with the object sought to beachieved.86. The only question that remains is whether such a provision whichdisqualifies a large number of persons who would otherwise be eligible tocontest the elections is unconstitutional. We have already examined thescheme of the Constitution and recorded that every person who is entitledto vote is not automatically entitled to contest for every office under theConstitution. Constitution itself imposes limitations on the right tocontest depending upon the office. It also authorises the prescription offurther disqualifications/qualification with respect to the right tocontest. No doubt such prescriptions render one or the other or someclass or the other of otherwise eligible voters, ineligible to contest.When the Constitution stipulates[47] undischarged insolvents or persons ofunsound mind as ineligible to contest to Parliament and Legislatures of theStates, it certainly disqualifies some citizens to contest the saidelections. May be, such persons are small in number. Question is nottheir number but a constitutional assessment about suitability of personsbelonging to those classes to hold constitutional offices.87. If it is constitutionally permissible to debar certain classes ofpeople from seeking to occupy the constitutional offices, numericaldimension of such classes, in our opinion should make no difference fordetermining whether prescription of such disqualification isconstitutionally permissible unless the prescription is of such nature aswould frustrate the constitutional scheme by resulting in a situation whereholding 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) ofSection 175(1) of THE ACT. These two clauses disqualify persons who are inarrears of amounts to cooperative bodies specified in clause (t) and theelectricity bills. These provisions are challenged on the ground that theyimpose unreasonable burden on voters who are otherwise eligible to contestthe election and therefore create an artificial and unreasonableclassification which has no nexus to the objects sought to be achieved bythe ACT.89. Constitution makers recognised indebtedness as a factor which isincompatible in certain circumstances with the right to hold an electedoffice under the Constitution. Article 102(1)(c)[48] and Article191(1)(c)[49] declare that an undischarged insolvent is disqualified frombecoming a Member of Parliament or the State Legislature respectively. Byvirtue of the operation of Article 58(1)(c) and 66(1)(c), the samedisqualification extends even to the seekers of the offices of thePresident and the Vice-President.90. The expression “insolvency” is not defined under the Constitution. Inthe absence of a definition, the said expression must be understood to meana person who is considered insolvent by or under any law made by thecompetent legislature. Sections 6[50] of the Provincial Insolvency Act,1920 and Section 9[51] of the Presidency – Towns Insolvency Act, 1909declare various activities which constitute acts of insolvency. It is anaspect of indebtedness - a specified category of indebtedness. If theConstitution makers considered that people who are insolvent are noteligible to seek various elected public offices, we do not understand whatcould be the constitutional infirmity if the legislature declares peoplewho are indebted to cooperative bodies or in arrears of electricity billsto be ineligible to become elected representatives of the people inPANCHAYATS. It must be remembered that insolvency is a field over whichboth the Parliament as well as the legislatures of the State have alegislative competence concurrently to make laws as it is one of the topicsindicated under Entry 9[52], List III of the Seventh Schedule to theConstitution.91. The submission is that rural India is heavily indebted andparticularly agriculturists who constitute a majority of our ruralpopulation are deeply indebted and reportedly a large number ofagriculturists have been committing suicides as they are not able to bearthe burden of indebtedness. Therefore, prescriptions under clauses (t) and(v) of Section 175(1) of the Act is an arbitrary prescription creating aclass of persons who would become ineligible to contest Panchayat electionsand such classification has no rational nexus to the object of thePanchayati Raj Act whose constitutional goal is to empower the ruralpopulation by enabling them to play a role in the decision making processof the units of local self government, is the contention.92. No doubt that rural India, particularly people in the agriculturalsector suffer the problem of indebtedness. The reasons are many and it isbeyond the scope of this judgment to enquire into the reasons. It is alsoa fact that there have been cases in various parts of the country wherepeople reportedly commit suicides unable to escape the debt trap. But, itis the submission of the respondents that such incidents are verynegligible in the State of Haryana as the agricultural sector of Haryana isrelatively more prosperous compared to certain other parts of the country. We do not wish to examine the statistical data in this regard nor much ofit is available on record. In our view, such an enquiry is irrelevant fordeciding the constitutionality of the impugned provision. We are also notvery sure as to how many of such people who are so deeply indebted would begenuinely interested in contesting elections whether at PANCHAYAT level orotherwise. We can certainly take judicial notice of the fact thatelections at any level in this country are expensive affairs. For thatmatter, not only in this country, in any other country as well they areexpensive affairs. In such a case the possibility of a deeply indebtedperson seeking to contest elections should normally be rare as it would bebeyond the economic capacity of such persons. In our opinion, thechallenge is more theoretical than real. Assuming for the sake of argumentthat somebody who is so indebted falling within the prescription of clauses(t) and (v) of Section 175(1) of the Act is still interested in contestingthe PANCHAYAT elections, nothing in law stops such an aspirant from makingan appropriate arrangement for clearance of the arrears and contestelections. At this stage, an incidental submission is required to beexamined. It is submitted that there could be a genuine dispute regardingthe liability falling under the clauses (t) and (v) and therefore it wouldbe unjust to exclude such persons from the electoral process even before anappropriate adjudication. Justness of such a situation is once again inthe realm of the wisdom of the legislation. We do not sit in the judgmentover the same. But we must make it clear nothing in law prevents anaspirant to contest an election to the PANCHAYAT to make payments underprotest of the amounts claimed to be due from him and seek adjudication ofthe legality of the dues by an appropriate forum. We do not see anysubstance in the challenge to clauses (t) and (v) of Section 175(1) of theAct.93. Clause (w) disqualifies a person from contesting an election to thePanchayat if such a person has no functional toilet at his place ofresidence. Once again the submission on behalf of the petitioners is thata large number of rural population simply cannot afford to have a toilet attheir residence as it is beyond their economic means. To render themdisqualified for contesting elections to the PANCHAYATS would be to make anunreasonable classification of otherwise eligible persons to contestelections to PANCHAYAT and, therefore, discriminatory.94. It is submitted on behalf of respondents that the submission of thepetitioner is without any factual basis. According to statistical dataavailable with the State, there are approximately 8.5 lakhs house holdersclassified as families falling below poverty line (BPL) in the State ofHaryana. It is further submitted that right from the year 1985 there havebeen schemes in vogue to provide financial assistance to families desirousof constructing a toilet at their residence[53]. In the initial days ofsuch a scheme Rs.650/- was given by the State and from time to time theamount was revised and at present Rs.12000/- is provided by the State toany person desirous of constructing a toilet. As per the data availablewith the State, of the abovementioned 8.5 lakhs households, classified tobe below the poverty line, approximately 7.2 lakhs households had availedthe benefit of the above scheme. Therefore, according to the respondentsif any person in the State of Haryana is not having a functioning toilet athis residence it is not because that he cannot afford to have a toilet butbecause he has no intention of having such facility at his residence. Itis very forcefully submitted by the learned Attorney General that asalutary provision designed as a step for eliminating the unhealthypractice of rural India of defecating in public, ought not to beinvalidated.95. It is a notorious fact that the Indian[54] population for a long timehad this unhealthy practice of defecating in public. The Father of theNation wrote copiously on this aspect on various occasions. He took upwith a missionary zeal the cause to eradicate this unhealthy practice. Atsome point of time, he even declared that the priority of this countryshould be to get rid of such unhealthy practice than to fight forindependence. It is unfortunate that almost a hundred years after Gandhijistarted such a movement, India is still not completely rid of suchpractice. The reasons are many. Poverty is one of them. However, thisunhealthy practice is not exclusive to poorer sections of rural India. Ina bid to discourage this unhealthy practice, the State has evolved schemesto provide financial assistance to those who are economically not in aposition to construct a toilet. As rightly pointed by the respondents, ifpeople still do not have a toilet it is not because of their poverty butbecause of their lacking the requisite will. One of the primary duties ofany civic body is to maintain sanitation within its jurisdiction. Thosewho aspire to get elected to those civic bodies and administer them mustset an example for others. To the said end if the legislature stipulatesthat those who are not following basic norms of hygiene are ineligible tobecome administrators of the civic body and disqualifies them as a classfrom seeking election to the civic body, such a policy, in our view, canneither be said to create a class based on unintelligible criteria nor cansuch classification be said to be unconnected with the object sought to beachieved by the Act.96. For the above-mentioned reasons, we see no merit in this writpetition, and the same is dismissed. ….………………………….J. (J. Chelameswar) …….……………………….J. (Abhay Manohar Sapre)New Delhi;December 10, 2015 REPORTABLE [ IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION WRIT PETITION No.671 OF 2015Rajbala & Ors. …..….Petitioner(s) VERSUSState of Haryana & Others ……Respondent(s) J U D G M E N TAbhay Manohar Sapre, J.1. I have had the advantage of going through the elaborate, wellconsidered and scholarly draft judgement proposed by my esteemed brotherJasti Chelmeswar J. I entirely agree with the reasoning and the conclusion,which my erudite brother has drawn, which are based on remarkablyarticulate process of reasoning. However, having regard to the issuesinvolved which were ably argued by learned counsel appearing in the case, Iwish to add few lines of concurrence.2. While examining the question of constitutionality of the impugnedamendment made under Section 175 (1) of the Haryana Panchayati Raj Act (forshort “the Act”), which are under attack in this writ petition, thequestion arose regarding the true nature of the two rights of the citizen -"Right to Vote" and "Right to Contest" viz- whether they are statutoryright 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 learnedJudge P.V. Reddi, in his separate opinion, which was concurred by JusticeD.M. Dharmadhikari, examined this question in great detail and in expressterms, answered it holding that the "Right to Vote" is a constitutionalright but not merely a statutory right. We are bound by this view taken bya 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 question regarding the nature of "Right toContest" while examining the constitutional validity of certain provisionsof 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 aFundamental 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 havingbeen added in the Constitution, a right to contest the election for anoffice in Panchayat may be said to be a constitutional right. We are boundby this view taken by a three Judge Bench while deciding this question inthis writ petition.5. In the light of aforementioned two authoritative pronouncements, weare 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 alsoincidentally made some observations on these two issues, which we feel werenot in conformity with the law, laid down in the aforementioned twodecisions.7. Coming now to the question of constitutional validity of Section 175(1)(v) of the Act which provides that candidate must possess certainminimum educational qualification if he/she wants to contest an election.In my opinion, introduction of such provision prescribing certain minimumeducational qualification criteria as one of the qualifications for acandidate to contest the election has a reasonable nexus with the objectsought to be achieved.8. In fact, keeping in view the powers, authority and theresponsibilities of Panchayats as specified in Article 243-G so also thepowers given to Panchayats to impose taxes and utilization of funds of thePanchayats as specified in Article 243-H, it is necessary that the electedrepresentative must have some educational background to enable him/her toeffectively carry out the functions assigned to Panchyats in Part IX. Itis the legislative wisdom to decide as to what should be the minimumqualifications, which should be provided in the Act.9. No one can dispute that education is must for both men and women asboth together make a healthy and educated society. It is an essential toolfor a bright future and plays an important role in the development andprogress of the country.10. In my view, therefore, Section 175 (v) of the Act is intra vires theConstitution and is thus constitutionally valid.11. Now coming to the question regarding constitutionality of Section175(w) of the Act, which provides that if a person has no functional toiletat 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 anyprovision of the Constitution.12. Indeed, there are no grounds much less sustainable grounds availableto the petitioners to question the validity of this provision. Thisprovision in my view is enacted essentially in the larger public interestand is indeed the need of the hour to ensure its application all over thecountry and not confining it to a particular State. Moreover, the Statehaving provided adequate financial assistance to those who do not havetoilet facility for construction of toilet, there arise no ground tochallenge this provision as being unreasonable in any manner. Since thisissue 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 learnedbrother, I also hold that Section 175 (v) is intra vires the Constitutionand is thus constitutionally valid.14. In my view, therefore, the writ petition deserves to be dismissed andis accordingly dismissed. As a consequence, interim order stands vacated. ..……..................................J. [ABHAY MANOHAR SAPRE] New Delhi; December 10, 2015.-----------------------[1] Article 243B. Constitution of Panchayats (1) There shall be constituted in every State, Panchayats at thevillage, intermediate and district levels in accordance with the provisionsof this Part (2) Notwithstanding anything in clause ( 1 ), Panchayats at theintermediate level may not be constituted in a State having a populationnot exceeding twenty lakhs[2] Article 243(d). “Panchayat” means an institution (by whatever namecalled) of self- government constituted under article 243B, for the ruralareas;[3] Article 243E. Duration of Panchayats, etc - (1) Every Panchayat,unless sooner dissolved under any law for the time being in force, shallcontinue for five years from the date appointed for its first meeting andno longer. (2) No amendment of any law for the time being in force shall havethe effect of causing dissolution of a Panchayat at any level, which isfunctioning immediately before such amendment, till the expiration of itsduration 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 ofits dissolution: Provided that where the remainder of the period for which thedissolved Panchayat would have continued is less than six months, it shallnot be necessary to hold any election under this clause for constitutingthe Panchayat for such period. (4) A Panchayat constituted upon the dissolution of a Panchayatbefore the expiration of its duration shall continue only for the remainderof the period for which the dissolved Panchayat would have continued underclause (1) had it not been so dissolved.[4] See Footnote 1[5] Section 162. Electoral division: – Every sabha area, block anddistrict shall be divided into wards as referred in sections 8(3), 58(2)and 119(b) of this Act.[6] Section 165. Persons qualified to be registered as voters.- Everyperson who is entitled to be registered as voter in the relevant part ofthe 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 votersfor 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 ImpugnedAct which was passed by the Haryana Legislature on 7.9.2015 andsubsequently notified.[8] “That the Respondents have passed the impugned Act and Notificationwithout any consideration, regard or appreciation for the empirical datapertaining to the number of people that would be prevented from contestingPanchayati Raj elections by its actions. That the Respondents’ actionshave the effect of disqualifying 56.80% of the population who would need tobe matriculation pass (69,86,197) and 79.76% of the population who wouldneed to be middle-pass (10,83,052), in order to contest elections. That byits actions, the Respondents have prevented an overwhelming majority of thepopulation from contesting elections, in contravention of Article 14,without any regard for Constitutional principles.” [See: Ground ‘G’ of thePetition][9] “no reasonable nexus between the impugned classifications set out inthe impugned Act, and the object of the Act. That the imposition ofdisqualifications on the grounds laid down by the impugned Act are entirelyirrelevant to, and have no bearing whatsoever on the ability of potentialcandidates to effectively discharge their duties and perform theirfunctions as members/heads of Panchayati Raj institutions.” [See: Ground‘A’ of the Petition][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][13] Para 131. With these words, I agree with Conclusions (A) to (E) inthe 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 ofthe various conditions stipulated in the Constitution or by an appropriatelaw made in that behalf, every citizen of this country has a constitutionalright both to elect and also be elected to any one of the legislativebodies created by the Constitution—the “straight conclusion” of MohinderSingh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, “that everyIndian has a right to elect and be elected—subject to statutoryregulation”, which rights can be curtailed only by a law made by theappropriate legislation, that too on grounds specified under Article 326only. For complete discussion - see paras 86 to 104.[15] [16] Para 57. All these petitions filed either under Article 32 orunder Article 136 raise certain common and substantial questions of law asto the interpretation of the Constitution. The lis, essentially, isbetween the Election Commission of India, a creature of the Constitutionunder Article 324, on the one hand and various bodies claiming to bepolitical parties and some of their functionaries, on the other hand. Theessence of the dispute is whether a political party is entitled for theallotment of an election symbol on a permanent basis irrespective of itsparticipation and performance judged by the vote share it commanded at anyelection.[17] Para 12. However, the petitioners raised strong objections againstthe other aspects of the reservation policy contemplated under Articles 243-D and 243-T. Initially, they had assailed the reservation of seats infavour of women, which has been enabled by Articles 243-D(2) and (3) withrespect to rural local bodies, and by Articles 243-T(2) and (3) withrespect to urban local bodies. However, this challenge was given upduring the course of the arguments before this Court and the thrust of thepetitioner’s arguments was directed towards the following two aspects: Firstly, objections were raised against Article 243-D(6) and Article243-T(6) since they enable reservations of seats and chairperson posts infavour of backward classes, without any guidance on how to identify thesebeneficiaries and the quantum of reservation. Secondly, it was argued that the reservation of chairperson posts inthe manner contemplated under Articles 243-D(4) and 243-T(4) isunconstitutional, irrespective of whether these reservations areimplemented on a rotational basis and irrespective of whether thebeneficiaries are SCs, STs and women. The objection was directed againstthe very principle of reserving chairperson posts in elected local bodies.[18] See Para 13 of K. Krishna Murthy case[19] Para 79. The petitioners have asked us to reconsider the precedentswherein the rights of political participation have been characterised asstatutory rights. It has been argued that in view of the standard ofreasonableness, fairness and non-discrimination required of governmentalaction under Article 21 of the Constitution, there is a case forinvalidating the restrictions that have been placed on these rights as aconsequence of reservations in local self-government. We do not agree withthis contention. Para 80. In this case, we are dealing with an affirmative actionmeasure and hence the test of proportionality is a far more appropriatestandard for exercising judicial review. It cannot be denied that thereservation of chairperson posts in favour of candidates belonging to theScheduled Castes, Scheduled Tribes and women does restrict the rights ofpolitical participation of persons from the unreserved categories to acertain extent. However, we feel that the test of reasonable classificationis met in view of the legitimate governmental objective of safeguarding theinterests of weaker sections by ensuring their adequate representation aswell as empowerment in local self-government institutions. The position hasbeen eloquently explained in the respondents’ submissions, wherein it hasbeen stated that “the asymmetries of power require that the chairpersonshould belong to the disadvantaged community so that the agenda of suchpanchayats is not hijacked for majoritarian reasons”. (Cited from thesubmissions on behalf of the State of Bihar, p. 49.)[20] Para 2. Democracy is a concept, a political philosophy, an idealpractised by many nations culturally advanced and politically mature byresorting to governance by representatives of the people elected directlyor indirectly. But electing representatives to govern is neither a‘fundamental right’ nor a ‘common law right’ but a special right created bythe statutes, or a ‘political right’ or ‘privilege’ and not a ‘natural’,‘absolute’ or ‘vested right’. ‘Concepts familiar to common law and equitymust remain strangers to election law unless statutorily embodied.’ Rightto 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 alegislature to enact a law for the recall of officers’. Its existence orvalidity can be decided on the provision of the Act and not, as a matter ofpolicy.[21] Introduced Part IX-A of the Constitution dealing withMunicipalities w.e.f. 1.6.1993[22] The judgment of Allahabad High Court is dated 19.2.1991 and theappeal in this Court is decided on 15.5.1992.[23] Para 60. “The purpose of referring to the same is to remind one thatthe right to contest in an election is a plain and simple statutory right…”[24] Section 123(2). Undue influence, that is to say, any direct orindirect interference or attempt to interfere on the part of the candidateor his agent, or of any other person with the consent of the candidate orhis election agent, with the free exercise of any electoral right:[25] Article 80. Composition of the Council of States.- (1) The Councilof States shall consist of (a) twelve members to be nominated by thePresident in accordance with the provisions of clause (3); and (b) not morethan two hundred and thirty eight representatives of the States and of theUnion territories. (2) The allocation of seats in the Council of States to be filled byrepresentatives of the States and of the Union territories shall be inaccordance with the provisions in that behalf contained in the fourthSchedule. (3) The members to be nominated by the President under sub clause (a)of clause (1) shall consist of persons having special knowledge orpractical 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 shallbe elected by the elected members of the Legislative Assembly of the Statein accordance with the system of proportional representation by means ofthe single transferable vote. (5) The representatives of the Union Territories in the council ofStates shall be chosen in such manner as Parliament may by law prescribe.[26] Article 171(3) Of the total number of members of the Legislativecouncil of a State: (a) as nearly as may be, one third shall be elected by electoratesconsisting of members of municipalities, district boards and such otherlocal authorities in the State as Parliament may by law specify; (b) as nearly as may be, one twelfth shall be elected by electoratesconsisting of persons residing in the State who have been for at leastthree years graduates of any university in the territory of India or havebeen for at least three years in possession of qualifications prescribed byor under any law made by Parliament as equivalent to that of a graduate ofany such university; (c) as nearly as may be, one twelfth shall be elected by electoratesconsisting of persons who have been for at least three years engaged inteaching in such educational institutions within the State, not lower instandard than that of a secondary school, as may be prescribed by or underany law made by Parliament; (d) as nearly as may be, one third shall be elected by the members ofthe Legislative Assembly of the State from amongst persons who are notmembers of the Assembly; (e) the remainder shall be nominated by the Governor in accordancewith the provisions of clause (5)[27] Article 80(4). The representatives of each State in the council ofStates shall be elected by the elected members of the Legislative Assemblyof the State in accordance with the system of proportional representationby means of the single transferable vote.[28] 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 underappeal, it is not possible to say, on a perusal of Article 171 of theConstitution, that the Second Chambers set up in nine States in India weremeant to incorporate the principle of what is known as “functional” or“vocational” representation which has been advocated by Guild-Socialist andSyndicalist Schools of Political Thought. Some of the observations quotedabove, in the judgment under appeal itself, militate with the conclusionsreached there. All that we can infer from our constitutional provisionsis that additional representation or weightage was given to personspossessing special types of knowledge and experience by enabling them toelect their special representatives also for Legislative Councils. Theconcept of such representation does not carry with it, as a necessaryconsequence, the further notion that the representative must also possessthe very qualifications of those he represents.[29] Manoj Narula v. Union of India, (2014) 9 SCC 1 Para 110. Article 84 of the Constitution negatively provides thequalification for membership of Parliament. This Article is quite simpleand reads as follows: “84. Qualification for membership of Parliament – A person shall notbe qualified to be chosen to fill a seat in Parliament unless he – is a citizen of India, and makes and subscribes before some personauthorised in that behalf by the Election Commission an oath or affirmationaccording to the form set out for the purpose in the Third Schedule; is, in the case of a seat in the Council of States, not less thanthirty years of age, in the case of a seat in the House of the People, notless than twenty-five years of age; and possesses such other qualifications as may be prescribed in thatbehalf by or under any law made by Parliament.”[30] Bhanumati & Others v. State of U.P., (2010) 12 SCC 1 Para 33. The Panchayati Raj institutions structured under the saidamendment are meant to initiate changes so that the rural feudal oligarchylose their ascendancy in village affairs and the voiceless masses, who havebeen rather amorphous, may realise their growing strength. Unfortunately,effect of these changes by way of constitutional amendment has not beenfully realised in the semi-feudal set-up of Indian politics in which stillvoice of reason is drowned in an uneven conflict with the mythology ofindividual infallibility and omniscience. Despite high ideals ofconstitutional philosophy, rationality in our polity is still subordinatedto political exhibitionism, intellectual timidity and petty manipulation.The Seventy-third Amendment of the Constitution is addressed to remedythese evils.[31] Section 173. Persons qualified to vote and be elected. – (1) Everyperson whose name is in the list of voters shall, unless disqualified underthis Act or any other law for the time being in force, be qualified to voteat the election of a Member for the electoral division to which such listpertains.[32] Section 173(2). Every person who has attained the age of twenty-one years and whose name is in the list of voters shall, unlessdisqualified under this Act or under any other law for the time being inforce, be disqualified to be elected from any electoral division.[33] Section 2 (lvi) “Sarpanch” means a Sarpanch of Gram Panchayatelected under this Act.[34] Section 2 (xli) "Panch" means a member of a Gram Panchayat electedunder this Act.[35] “Para 3(3). …….. The Learned Senior Counsel contends that it iswholly irrational and arbitrary to protect highly-placed public servantsfrom inquiry or investigation in the light of the conditions prevailing inthe country and the corruption at high places as reflected in severaljudgments of this Court including that of Vineet Narain. Section 6-A of theAct is wholly arbitrary and unreasonable and is liable to be struck downbeing violative of Article 14 of the Constitution is the submission oflearned amicus curiae. (4). In support of the challenge to the constitutional validity ofthe impugned provision, besides observations made in the three-Judge Benchdecision in Vineet Narain case reliance has also been placed on variousdecisions 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 ofarbitrary power is the first essential of the rule of law upon which ourwhole constitutional system is based. In Mardia Chemicals case a three-Judge Bench held Section 17(2) of the Securitisation and Reconstruction ofFinancial Assets and Enforcement of Security Interest Act, 2002 to beunreasonable and arbitrary and violative of Article 14 of the Constitution.Section 17(2) provides for condition of deposit of 75% of the amount beforean appeal could be entertained. The condition has been held to be illusoryand oppressive. Malpe Vishwanath Acharya v. State of Maharashtra [(1998) 2SCC 1], again a decision of a threeJudge Bench, setting aside the decisionof 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 constitutionalvalidity of those provisions was challenged on the ground of the same beingarbitrary, unreasonable and consequently ultra vires Article 14 of theConstitution, has come to the conclusion that the said provisions arearbitrary and unreasonable.”[36] “Para 64. ……………. We are also clearly of the view that nodistinction can be made for certain class of officers specified in Section6-A who are described as decision making officers for the purpose ofinquiry/investigation into an offence under the PC Act, 1988. There is norational basis to classify the two sets of public servants differently onthe ground that one set of officers is decision making officers and not theother set of officers. If there is an accusation of bribery, graft, illegalgratification or criminal misconduct against a public servant, then we failto understand as to how the status of offender is of any relevance. Wherethere are allegations against a public servant which amount to an offenceunder the PC Act, 1988, no factor pertaining to expertise of decisionmaking is involved. Yet, Section 6-A makes a distinction. It is this vicewhich renders Section 6-A violative of Article 14. Moreover, the result ofthe impugned legislation is that the very group of persons, namely, highranking bureaucrats whose misdeeds and illegalities may have to be inquiredinto, would decide whether the CBI should even start an inquiry orinvestigation against them or not. There will be no confidentiality andinsulation of the investigating agency from political and bureaucraticcontrol and influence because the approval is to be taken from the CentralGovernment which would involve leaks and disclosures at every stage. Para 99. In view of our foregoing discussion, we hold that Section6-A(1), which requires approval of the Central Government to conduct anyinquiry or investigation into any offence alleged to have been committedunder the PC Act, 1988 where such allegation relates to (a) the employeesof the Central Government of the level of Joint Secretary and above and (b)such officers as are appointed by the Central Government in corporationsestablished by or under any Central Act, government companies, societiesand local authorities owned or controlled by the Government, is invalid andviolative of Article 14 of the Constitution. As a necessary corollary, theprovision contained in Section 26 (c) of the Act 45 of 2003 to that extentis also declared invalid.”[37] Para 13. The next question, is the rule reasonable or arbitraryand unreasonable? The rationale for the rule, as stated earlier, is tomaintain the dignity and purity of the profession by keeping out those whoretire from various government, quasi-government and other institutionssince they on being enrolled as advocates use their past contacts tocanvass for cases and thereby bring the profession into disrepute and alsopollute the minds of young fresh entrants to the profession. Thus theobject of the rule is clearly to shut the doors of profession for those whoseek entry in to the profession after completing the age of 45 years. Inthe first place, there is no reliable statistical or other material placedon record in support of the inference that ex-government or quasi-government servants or the like indulge in undesirable activity of the typementioned after entering the profession. Secondly, the rule does not debaronly such persons from entry in to the profession but those who havecompleted 45 years of age on the date of seeking enrolment. Thirdly, thosewho were enrolled as advocates while they were young and had later taken upsome job in any government or quasi-government or similar institution andhad kept the sanad in abeyance are not debarred from reviving their sanadseven after they have completed 45 years of age. There may be a large numberof persons who initially entered the profession but later took up jobs orentered any other gainful occupation who revert to practise at a later dateeven after they have crossed the age of 45 years and under the impugnedrule they are not debarred from practising. Therefore, in the first placethere is no dependable material in support of the rationale on which therule is founded and secondly the rule is discriminatory as it debars onegroup of persons who have crossed the age of 45 years from enrolment whileallowing another group to revive and continue practice even after crossingthe age of 45 years. The rule, in our view, therefore, is clearlydiscriminatory. Thirdly, it is unreasonable and arbitrary as the choice ofthe age of 45 years is made keeping only a certain group in mind ignoringthe vast majority of other persons who were in the service of government orquasi-government or similar institutions at any point of time. Thus, in ourview the impugned rule violates the principle of equality enshrined inArticle 14 of the Constitution.[38] (1981) 4 SCC 675[39] (1974) 4 SCC 3[40] (1978) 1 SCC 248[41] An expression used widely and rather indiscriminately - anexpression of inherently imprecise import. The extensive use of thisexpression, in India reminds one of what Frankfurter,J. said in Hattie MaeTiller v. Atlantic Coast Line Railroad Co., 87 L.Ed. 610. "The phrasebegins life as a literary expression; its felicity leads to its lazyrepetition and repetition soon establishes it as a legal formula,undiscriminatingly used to express different and sometimes contradictoryideas", said the learned Judge.[42] In Municipal Committee Amritsar v. State of Punjab, (1969) 1 SCC475, at para 7, this Court clearly ruled out the application of thedoctrine of “due process” employed by the Court adjudicating theconstitutionality of the legislation. But the rule enunciated by the American Courts has no applicationunder our Constitutional set up. The rule is regarded as an essential ofthe "due process clauses" incorporated in the American Constitution by the5th & the 14th Amendments. The Courts in India have no authority to declarea 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 tostatutes enacted by the Parliament or the State legislatures. This Courthas definitely ruled that the doctrine of "due process of law" has no placein 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 Courtsare not at liberty to declare an Act void because in their opinion it isopposed to a spirit supposed to pervade the Constitution but not expressedin words. . . . . it is only in express constitutional provisions limitinglegislative power and controlling the temporary will of a majority by apermanent and paramount law settled by the deliberate wisdom of the nationthat one can join a safe and solid ground for the authority of Courts ofJustice to declare void any legislative enactment."[43] “(v) has not passed matriculation examination or its equivalentexamination from any recognized institution/board: Provided that in case of a woman candidate or a candidate belongingto Scheduled Caste, the minimum qualification shall be middle pass: Provided further that in case of a woman candidate belonging toScheduled Caste contesting election for the post of Panch, the minimumqualification shall be 5th pass;”[44] Section 173 (2). Every person who has attained the age of twenty-one years and whose name is in the list of voters shall, unlessdisqualified under this Act or under any other law for the time being inforce, be qualified to be elected from any electoral division.[45] The expression “rural population” is used by the respondents intheir counter affidavit to mean people living in areas falling within theterritorial limits of some PANCHAYAT.[46] “Section 21. Functions and duties of Gram Panchayat.—Subject tosuch rules as may be made, it shall be the duty of the Gram Panchayatwithin the limits of the funds at its disposal, to make arrangements forcarrying out the requirements of sabha area in respect of the followingmatters 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 andMentally Retarded- (1) Participation in the implementation of the social welfareprogrammes including welfare of the handicapped, mentally retarded anddestitute. (2) Monitoring of the old age and widows pension scheme.”[47] We are of the opinion that it is not really necessary to examine thevarious observations made by this Court regarding the importance ofeducation for two reasons, firstly, nobody is disputing the generalproposition that education plays a great role in the evolution of thepersonality of a human being. Secondly, none of the cases referred to bythe AG dealt with the relevance of education in the context of the right tocontest any election contemplated by the Constitution. [See: Bhartiya SevaSamaj Trust v. Yogeshbhai Ambalal Patel, (2012) 9 SCC 310; AvinashMehrotra v. Union of India, (2009) 6 SCC 398; P.A. Inamdar v. State ofMaharashtra, (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 SecondaryEducation v. K.S. Gandhi, (1991) 2 SCC 716; and State of J&K v. TrilokiNath Khosa, (1974) 1 SCC 19].[48] Articles 102(1)(c) and 191(1)(c).[49] Article 102. Disqualifications for membership.—(1) A person shallbe disqualified for being chosen as, and for being, a member of eitherHouse of Parliament – **** **** **** **** **** **** (c) – if he is an undischarged insolvent;[50] Article 191. Disqualifications for membership.—(1) A person shall bedisqualified for being chosen as, and for being, a member of theLegislative Assembly or Legislative Council of a State – **** **** **** **** **** **** (c) if he is an undischarged insolvent.[51] Section 6. Acts of insolvency.—(1) A debtor commits an act ofinsolvency in each of the following cases, namely:- (a) if, in India or elsewhere, he makes a transfer of all orsubstantially all his property to a third person for the benefit of hiscreditors generally; (b) if, in India or elsewhere, he makes a transfer of his propertyor of any part thereof with intent to defeat or delay his creditors; (c) if in India or elsewhere, he makes any transfer of hisproperty, or of any part thereof, which would, under this or any otherenactment for the time being in force, be void as fraudulent preference ifhe were adjudged an insolvent; (d) if with intent to defeat or delay his creditors,- he departs or remains out of the territories to which this Actextends; he departs from his dwelling-house or usual place of business orotherwise absents himself; he secludes himself so as to deprive his creditors of the means ofcommunicating with him; (e) if any of his property has been sold in execution of the decreeof any Court for the payment of money; (f) if he petitions to be adjudged an insolvent under theprovisions of this Act; (g) if he gives notice to any of his creditors that he hassuspended, 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 forthe payment of money. (2) Without prejudice to the provisions of sub-section (1), adebtor commits an act of insolvency if a creditor, who has obtained adecree or order against him for the payment of money (being a decree ororder which has become final and the execution whereof has not beenstayed), has served on him a notice (hereafter in this section referred toas the insolvency notice) as provided in sub-section (3) and the debtordoes 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- in a case where such application is allowed by the District Court, heshall not be deemed to have committed an act of insolvency under this sub-section; and 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 theperiod specified in the insolvency notice for its compliance, whichever islater:[52] Section 9. Acts of insolvency.- (1) A debtor commits an act ofinsolvency in each of the following cases, namely;- if, in the States or elsewhere, he makes a transfer of all orsubstantially all his property to a third person for the benefit of hiscreditors generally; if, in the States or elsewhere, he makes a transfer of his propertyor of any part thereof with intent to defeat or delay his creditors; if, in the States or elsewhere, he makes any transfer of his propertyor of any part thereof, which would, under this or any other enactment forthe time being in force, be void as fraudulent preference if he wereadjudged an insolvent; if, with intent to defeat or delay his creditors,-- he departs or remains out of the States, he departs from his dwelling-house or usual place of business orotherwise absents himself, he secludes himself so as to deprive his creditors of the means ofcommunicating with him; if any of his property has been sold or attached for a period of notless than twenty-one days in execution of the decree of any Court for thepayment of money; if he petitions to be adjudged an insolvent; if he gives notice to any of his creditors that he has suspended, orthat he is about to suspend, payment of his debts; if he is imprisoned in execution of the decree of any Court for thepayment of money. (2) Without prejudice to the provisions of sub- section (1), adebtor commits an act of insolvency if a creditor, who has obtained adecree or order against him for the payment of money (being a decree ororder which has become final and the execution whereof has not beenstayed), has served on him a notice (hereafter in this section referred toas the insolvency notice) as provided in sub- section (3) and the debtordoes 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-- in a case where such application is allowed by the Court, he shallnot be deemed to have committed an act of insolvency under this sub-section; and in a case where such application is rejected by the Court, he shallbe deemed to have committed an act of insolvency under this sub- section onthe date of rejection of the application or the expiry of the periodspecified in the insolvency notice for its compliance, whichever is later: Provided further that no insolvency notice shall be served on adebtor residing, whether permanently or temporarily, outside India, unlessthe creditor obtains the leave of the Court therefor. [53] 9. Bankruptcy and Insolvency.[54] Paras 4 & 5 of the Addl. Affidavit of Respondents 1 to 3 That the main objective of the programme is to ensure access oftoilets to all rural families so as to achieve Open Defecation Free (ODF)status. For this purpose, both the Center and State of Haryana have alsobeen providing financial incentive to the people below poverty line (BPL)in the rural areas of State of Haryana. Besides few other Above PovertyLine (APL) household categories namely, all SCs, small farmers, marginalfarmers, landless labourers with homestead, physically handicapped andwomen headed households were also identified for the purpose of grantingfinancial incentive since 01.04.2012 under the said scheme. That the financial incentive is also being provided to Below PovertyLine (BPL) households for the construction and usage of individualhousehold latrines (IHHL) in recognition of their achievements. In Haryanatotal rural BPL households are 8,56,359 and against it, 7,21,038 householdshave been provided incentive for the construction of IHHL. Similarly,Above Poverty Line (APL) households restricted to SCs/STs, small andmarginal farmers, landless labourers with homestead, physically handicappedand women headed households have also been provided financial assistancew.e.f. 04.04.2012. Presently, w.e.f. 02.10.2014 the financial incentive isbeing given to above category of households @ Rs.12000 (Rs.9000 from Centreand Rs.3000 from State Government). Out of 30,67,907 rural households25,84,810 i.e. 84% have IHHLs. Out of which 23,60,318 IHHLs have beenbuild under Rural Sanitation Programmes since 1999, of which 8,82,012 havebeen given incentive money at various rates prevailing at different times.[55] In England this habit existed till 15th Century at least, “poorsanitation made London a death-trap. Without any kind of sewage system,the streets stank to high heaven, whereas human excrement wassystematically collected in Chinese cities and used as fertilizer inoutlying paddy fields. In the days when Dick Whittington was lord mayor –four times between 1397 and his death in 1423 – the streets of London werepaved with something altogether less appealing than gold.”, [NiallFerguson, Civilization : The West and the Rest , (First Edition, PenguinPress, 2011)] page 23-----------------------70
Mohit Singh

Mohit Singh

Mohit Singh is an advocate at the Supreme Court of India.

Mohit Singh

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