A progressive amendment

Most of the non-BJP parties have excoriated the judgement of the Supreme Court that upheld the constitutional validity of a law enacted by the Haryana government, which debars illiterate persons from contesting panchayat polls in the state. Though it is difficult to agree with the apex court that “it is only education which gives a human being the power to discriminate between right and wrong, good and bad”, it cannot be gainsaid that education helps attain higher faculty. Besides, the power of the state legislature to enact such a law cannot be questioned. The court has rightly pointed out that when the Constitution itself stipulated certain disqualifications such as mental fitness and insolvency for occupying some offices, it cannot be said that more disqualifications by a competent legislative body would not be permissible if it does not lead to a situation where holding of elections to these various bodies becomes completely impossible.

The law prescribes minimum educational qualifications and also lays down other criteria that there should be no criminal conviction, pending electricity bills or loan payments and toilet at home is a must. Before Haryana, Rajasthan also made law prescribing minimum educational qualification for zila parishad and panchayat elections, besides debarring the leprosy patients. The singeing criticism of the law setting minimum educational qualification is primarily based on the assumption that it is meant to discriminate against a large section of people, who for reasons beyond their control could not get education. It is being argued that such restrictions are dirty shenanigans used by regressive regimes to keep the underprivileged out of the democratic process, be it the blacks in Jim Crow America or weaker sections in India under the colonial British government. It is true that the blacks were denied their voting right by legal manoeuvring and violence in the United States. In Mississippi, less than 9,000 of the 147,000 eligible African-American voters were registered in 1890 while in Louisiana, where black voters who counted for more than 130,000 in 1896, were reduced to 1,342 by 1904.

In India, voting right was limited to graduates and taxpayers who accounted for approximately 15 per cent though according to some scholars, this percentage was higher. However, the Constituent Assembly, elected on the basis of limited franchise, provided for universal suffrage that was enforced in the first general elections in 1952 itself. Thus, India is an older democracy than the US. The US adopted the full male suffrage in principle with the Fifteenth Amendment to the Constitution in 1870 but it was not enforced in the South until the Voting Rights Act of 1965.

Further, the same Constituent Assembly in India provided for reservation for Scheduled Castes and Scheduled Tribes and also that the state may make any special provision for the advancement of any “socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”. Critics of the law ratiocinate that the Constitution recognises “socially and educationally backward classes” but they are being discriminated against. This logic is misplaced. There was a debate in the Constituent Assembly on the requirement of educational qualification for candidates contesting for Parliament or state Legislative Assembly but it was not prescribed as it would have affected SC/STs and OBCs. However, it creates some anomalies as well. MPs/MLAs take oath that they would bear true faith and allegiance to the Constitution of India and would uphold the sovereignty and integrity of India and faithfully discharge the duty. How can a person bear true faith and allegiance to the Constitution unless they are able to read and understand it?

Though there have been chief ministers and ministers, who received minimal education, and yet they proved to be par excellence. But they are exceptions. The requirement to make and subscribe an oath or affirmation by a candidate for election to Lok Sabha and for a state Assembly and to do it after getting elected before taking the seat in the House was sought to be interpreted as requirement of some educational qualification but the Delhi High Court, in Baljeet Singh vs Election Commission of India (2000), refused to buy the argument. However, there is no bar for Parliament to prescribe any educational qualification. Moreover, things have changed in over six decades, and prescribing some minimum educational qualification now may not be oppressive and discriminatory.

The Haryana law was challenged as being violative of the fundamental right to equality. Supreme Court scanned its previous judgments and concluded that the right to contest elections is a constitutional right, but not a fundamental right. However, the court made the voter’s right a fundamental one by bringing it within ambit of the right to know under Article 19(1) of the Constitution in Union of India vs Association for Democratic Reforms. It directed the Election Commission to call for certain information on affidavit of each candidate contesting for parliamentary or state Assembly elections. To contain the canker of criminalisation, it mandated that such information includes whether the candidate is convicted/acquitted/discharged of any criminal offence in the past, and if convicted, the quantum of punishment; and whether prior to six months of filing of nomination, the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognisance is taken by a court.

Besides, it required the candidates to furnish details about their educational qualification and assets and liabilities. The court categorically held that such a right to know is the foundation for the meaningful exercise of the freedom of speech and expression guaranteed to citizens under Article 19(1)(a) of the Constitution. If the founding fathers of the Constitution did not prescribe any educational qualification for MP/MLA, it does not mean that there cannot be any progress in this regard. In fact, such a legislation by Haryana and Rajasthan should be a precursor to making such a law for contesting Lok Sabha and Assembly elections.

The writer is a senior TV journalist and author

 

 

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