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DR.

RAM MANOHAR LOHIYA NATIONAL LAW
UNIVERSITY

2015-16
FINAL DRAFT
CONSTITUTION-II
RAJBALA & ORS. vs. STATE OF HARYANA & ORS.
Writ Petition (Civil) No. 671/2015

SUBMITTED BY:

SUBMITTED TO:

ALOK KUMAR SINGH

DR. ATUL KUMAR TIWARI

ROLL NO: 22

FACULTY OF LAW

SECTION ‘A’

DR. RAM MANOHAR LOHIYA

B.A. LL.B. (hons.), SEMESTER IV

NATIONAL LAW UNIVERSITY

I further extend my thanks to library staff of DR. Jariwala and Associate Professor Dr. 22 . ALOK KUMAR SINGH ROLL NO. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY who helped me in getting all the materials necessary for the project. who have given me golden chance for this research project.ACKNOWLEDGEMENT I am obliged to our Professor C. Atul Kumar Tiwari and. I would also like to thank the almighty and my parents for their moral support and my friends who are always there to extend the helping hand whenever required. M.

... Indira Nehru Gandhi v.................. Sivakumar & Others.. (1973) 4 SCC 225 Krishnamoorthy v. Nawal Kishore Yadav................. (2014) 8 SCC 682.. Referred as: Haryana Panchayati Raj (Amendment) Act......... Prabhakar Rao & Others v.... Namakkal..................5 Writ Petition No....... (2000) 8 SCC 46 State of Andhra Pradesh & Others v.......... McDowell & Co............. (1996) 3 SCC 709 Subramanian Swamy v............ Bar Council of India.. Union of India & Another.................... State of Kerala & Another...................................) & Others v....... Union of India........................ AIR 1957 SC 297 B.........Act Contents Citation. (2003) 8 SCC 369 Jyoti Basu v Debi Ghosal (1982) 1 SCC 691 K................ District Magistrate...... (1983) 1 SCC 305 Desiya Murpokku Dravida Kazhagam (DMDK) & Another v....... (1981) 4 SCC 675 Shyamdeo Prasad Singh v.. 1994……………………………........ Union of India.....K.........Impugned Act Haryana Panchayati Raj Act..... (1975) Supp SCC 1 Javed & Others v....... (1995) 1 SCC 732............... State of Haryana & Others.............. Namakkal Constituency........... (1992) 4 SCC 80........................................... 2015……………....5 Bench.......... Salem      AIR 1952 SC 64 PUCL v Union of India (2003) 4 SCC 399 R... Central Bureau of Investigation & Another......... N.................... (2012) 7 SCC 340 Indian Council of Legal Aid v. Nakara & Others v........ State of Madras........ (2015) 3 SCC 467 Mohan Lal Tripathi v...... Garg v............................ Raj Narain.......CASES REFFERED:     A.... State of Andhra Pradesh & Others.5 ...................................Ponnuswami v Returning Officer.............. Krishna & Others v... Krishna Murthy (Dr....P................ 1985 Supp SCC 432 D..S..5 Case Name... Rai Bareilly & Others.... (2010) 7 SCC 202 Kesavananda Bharati Sripadagalvaru v... Election Commission          of India...S......... Director...........

...........................................................................5 Introduction.................................................................................................................................................................................................. J..........................................6 Issues........................................................................................................................................................................................................13 Conclusion.......................................................................................................................................................................................................................................................16 Citation: (2016) 2 SCC 445 Writ Petition No: 671/2015 Case Name: Rajbala & others vs State of Haryana .......................................................................................8  Abhay Manohar Sapre..............................................................................7 Ratio of the case......8 Judgement................................................................................................................................................ (Concurring).................12 Case comment.............................8  Chelameswar..............................................5 Fact................................... J...............................................................................................Majority/Dissenting/Concurring......................6 The law on point...

1993. 1994 was enacted to bring the then existing law governing Panchayats in the State in tune with the Constitution as amended by the 73rd amendment. constitution and functioning to statutes and had been subject to the overall control of provincial governments. however. Majority/Dissenting/Concurring: Hon'ble Mr.4. districts boards. the constitution and powers of municipal corporations. mining settlement authorities and other local authorities for the purpose of local self-government or village administration. Laws have been made from time to time by State Legislatures establishing a three-tier Panchayat system by 1980’s. Justice Abhay Manohar Sapre. Chelameswar. Justice Abhay Manohar Sapre. There is no dissenting opinion. have constitutional status. Justice J. Example: reservation of seats in favour of SC and ST. Constitution authorised (even prior to the 73 rd Amendment) State Legislatures under Art 246(3) read with Entry 5 of List II to make laws with respect to. Chelameswar pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Panchayat Samiti and Zila Parishad. As required under Art 243B. “Local government. ‘Samiti’ and District level is established under THE ACT with bodies known as Gram Panchayat. Such local bodies did not. Introduction: Even Prior to advent of the Constitution of India under the Government of India Act.” To effectuate such obligation of the State. They owed their existence.The State shall take steps to organize village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. the 73 rd Amendment of the Constitution by which Part IX was inserted with effect from 24. Fact: .Bench: Two judges’ bench. 1935 certain local bodies with elected representatives were functioning. Art 40 of the Constitution mandates. Hon'ble Mr. Part V Chapter XX of THE ACT deals with provisions relating to elections to the Panchayats. a three tier Panchayat system at the Village. The composition of Panchayats is to be determined by the legislature of the concerned State by law subject of course to various stipulations contained in Part IX of the Constitution. Justice Abhay Manohar Sapre also pronounced separate but concurring judgment.“Organisation of village Panchayats . improvement trusts. It was felt desirable that local bodies be given constitutional status and the basic norms regarding the establishment and administration of a three-tier Panchayati Raj institutions be provided under the Constitution. that is to say. Justice J. Hence. The Haryana Panchayati Raj Act.

of persons rendered incapable of contesting elections for any of the elected offices under the ACT. Three petitioners interested in contesting the local body elections. 2015 (Act 8 of 2015) constitutional or not? 1. and 1. (iii) persons who have arrears of electricity bills. 1994. owed by them to either a Primary Agricultural Cooperative Society or District Central Cooperative Bank or District Primary Agricultural Rural Development Bank. no reasonable nexus to the object sought to be achieved. but would now be disabled to contest as none of them possess the requisite educational qualification. violation of Art 14.4 Whether the stipulations contained in the impugned amendment are in the nature of prescription of “qualifications” or “disqualifications” for contesting the elections under THE ACT? .1 The impugned provisions are wholly unreasonable and arbitrary and therefore violates Article 14 of the Constitution. an otherwise homogenous group of people who are entitled to participate in the democratic process under the Constitution at the grass-roots level. no legitimate purpose which sought to be achieved. They create unreasonable restrictions on the constitutional right of voters to contest elections under the ACTS. 2015 passed by state legislature of Haryana which provides five more categories. in the sec 175 of Haryana Panchayati Raj Act. 1.2 They create an artificial classification among voters (by demanding the existence of certain criteria which have no reasonable nexus to the object sought to be achieved by the ACT). Although the challenge did not include first category (persons against whom charges are framed in criminal cases for offences punishable with imprisonment for not less than ten years). if any. Issues: 1.Haryana Panchayati Raj (Amendment) Act. 1. Whether the Haryana Panchayati Raj (Amendment) Act. The petitioners challenge the IMPUGNED ACT on the Arbitrariness.3 The classification sought to be made has no legitimate purpose which can be achieved by THE ACT. (iv) persons who do not possess the specified educational qualification and lastly (v) persons not having a functional toilet at their place of residence. These categories are: (i) persons against whom charges are framed in criminal cases for offences punishable with imprisonment for not less than ten years. (ii) persons who fail to pay arrears.

To decide I issue it’s necessary to decide whether the right to contest an election to the Panchayat is a constitutional or statutory or fundamental right. subject to part IX of the constitution. (v) has not passed matriculation examination or its equivalent examination from any recognized institution/board: Provided that in case of a woman candidate or a candidate belonging to Scheduled Caste. Since the extent to which curtailment or regulation of such right is permissible depends upon the nature of the right. as can be culled out from the language of Article 243F and other related provisions of the Constitution.1.5 If the impugned stipulations are in the nature of a prescription of qualifications whether the State legislature is competent to make such stipulations consistent with the scheme of the Constitution.—(1) No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who— (t) fails to pay any arrears of any kind due to him to any Primary Agriculture Co-operative Society. The law on point: Section 175 of Haryana Panchayati Raj (Amendment) Act. J. Disqualifications. the minimum qualification shall be middle pass: Provided further that in case of a woman candidate belonging to Scheduled Caste contesting election for the post of Panch. Panchayats and Municipal Bodies specified . By 73rd and 74th Amendments of the constitution. or (u) fails to pay arrears of electricity bills. Right to vote at and right to contest election to Panchayat can be regulated/restricted directly by State legislature. Judgement:  Chelameswar. Ratio of the case: Right to vote and right to contest election are constitutional right. or (w) fails to submit self-declaration to the effect that he has a functional toilet at his place of residence. District Central co-operative Bank and District Primary co-operative Agriculture Rural Development Bank. the minimum qualification shall be 5th pass.

held that statutes cannot be declared unconstitutional on ground of it being arbitrary and therefore violative of article 14 of constitution. 4 399 (2003). Further Bench has clear opinion that the constitution recognises the distinction between the ‘Right to Vote’ and Right to Contest’ at such election. 1 SCC. On the other hand right to vote at an election either to the Rajya Sabha or the legislative Council of the state is confined only to Members of the electoral Colleges specified under Art 80(4) & (5) and Art 171 (3)(a)(b)(c)(d).Reddi held “The right to vote at the elections to the House of the People or Legislative Assembly is a constitutional right but not merely a statutory right. J. But it can be declared unconstitutional on ground of classification created by it being based on unintelligible differentia having no nexus with object sought to be achieved and thus being discriminatory. . Election Commission of India 2 every citizen of this country has a constitutional right both to elect and also be elected to any one of the legislative bodies created by the Constitution. On the question of arbitrariness Chelameswar.under Parts IX & IXA of the constitution. Whereas The Constitution prescribes certain basic minimum qualification and disqualification to contest an election to any of the above mentioned offices. 7 340 (2012). Insofar as parliament and state legislatures are concerned. In case of PUCL v Union of India 1 Justice P. freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Art 19(1) (a). 2 SCC. Such a conclusion is irresistible since there would be no requirement to prescribe constitutional limitations on a non-existent constitutional right. by implication create a constitutional right to contest elections to these various constitutional offices and bodies. Election Commission of India. Since such an exercise implies a value judgement and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the constitution.” Following the PUCL case Desiya Murpokku Dravida Kazhagam (DMDK) & Another v. Desiya Murpokku Dravida Kazhagam (DMDK) & Another v. Right to vote of every citizen at an election either to the Lok Sabha or Legislative assembly is recognised under Art 325 and 326 subject to limitation (qualification and disqualification) prescribed under the constitution. These various provisions.V. PUCL v Union of India. The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.

good and bad. The impugned provision creates two classes of voters .those who are qualified by virtue of their educational accomplishment to contest the elections to the PANCHAYATS and those who are not. It is only education which gives a human being the power to discriminate between right and wrong. The classification in our view cannot be said either based on no intelligible differentia unreasonable or without a reasonable nexus with the object sought to be achieved. The object sought to be achieved cannot be said to be irrational or illegal or unconnected with the scheme and purpose of THE ACT or provisions of Part IX of the Constitution. Supreme Court upholds Haryana panchayat law. December 11. http://www.com/news/national/haryana-law-on-minimumqualification-for-panchayat-polls-valid-says-supreme-court/article7969669. . THE HINDU. prescription of an educational qualification is not irrelevant for better administration of the PANCHAYATS. Therefore.On the analysis of the data in the above indicates that large number of woman and man disqualified to contest Panchayat election by virtue of The IMPUGNED ACT.thehindu. In the Constitution every man that every person who is entitled to vote is not automatically entitled to contest for every office under the 3Krishnadas Rajgopal.ece. 2015. The proclaimed object of such classification is to ensure that those who seek election to PANCHAYATS have some basic education which enables them to more effectively discharge various duties which befall the elected representatives of the PANCHAYATS.

therefore. No doubt such prescriptions render one or the other or some class or the other of otherwise eligible voters. If the Constitution makers considered that people who are insolvent are not eligible to seek various elected public offices. May be. It must be remembered that 4 Articles 102(1) (c) and 191(1) (c). Disqualifications for membership. It also authorises the prescription of further disqualifications/qualification with respect to the right to contest. and for being. . 6 Article 191. Now come to the constitutional validity of clause (t) & (u) of Sec 175(1) of THE ACT. ineligible to contest. Constitution makers recognised indebtedness as a factor which is incompatible in certain circumstances with the right to hold an elected office under the Constitution like Art 102(1) (c) 5& Art 191(1) (c)6 declare that an undischarged insolvent is disqualified from becoming a Member of Parliament or the State Legislature respectively. When the Constitution stipulates4 undischarged insolvents or persons of unsound mind as ineligible to contest to Parliament and Legislatures of the States. such persons are small in number.Constitution. reject the challenge to clause (v) to Section 175(1). 5 Article 102. Disqualifications for membership. Question is not their number but a constitutional assessment about suitability of persons belonging to those classes to hold constitutional offices. We. These provisions are challenged on the ground that they impose unreasonable burden on voters who are otherwise eligible to contest the election and therefore create an artificial and unreasonable classification which has no nexus to the objects sought to be achieved by the ACT. and for being. there is no constitutional infirmity if the legislature declares people who are indebted to cooperative bodies or in arrears of electricity bills to be ineligible to become elected representatives of the people in PANCHAYATS. a member of the Legislative Assembly or Legislative Council of a State – (c) If he is an undischarged insolvent. For determining whether prescription of such disqualification is constitutionally permissible unless the prescription is of such nature as would frustrate the constitutional scheme by resulting in a situation where holding of elections to these various bodies becomes completely impossible. it certainly disqualifies some citizens to contest the said elections.—(1) A person shall be disqualified for being chosen as.—(1) A person shall be disqualified for being chosen as. Constitution itself imposes limitations on the right to contest depending upon the office. a member of either House of Parliament –(c) – if he is an undischarged insolvent.

One of the primary duties of any civic body is to maintain sanitation within its jurisdiction.insolvency is a field over which both the Parliament as well as the legislatures of the State have a legislative competence concurrently to make laws as it is one of the topics indicated under List III of the Seventh Schedule to the Constitution. in our view. the challenge is more theoretical than real. Therefore. It is further submitted that right from the year 1985 there have been schemes in vogue to provide financial assistance to families desirous of constructing a toilet at their residence. But we must make it clear nothing in law prevents an aspirant to contest an election to the PANCHAYAT to make payments under protest of the amounts claimed to be due from him and seek adjudication of the legality of the dues by an appropriate forum. Now come to clause (w) of THE ACT which disqualifies a person from contesting election to the Panchayat if such a person has no functional toilet at his place of residence. classified to be below the poverty line. We are also not very sure as to how many of such people who are so deeply indebted would be genuinely interested in contesting elections whether at PANCHAYAT level or otherwise. We do not see any substance in the challenge to clauses (t) and (v) of Section 175(1) of the Act. According to statistical data available with the State. In our opinion. To the said end if the legislature stipulates that those who are not following basic norms of hygiene are ineligible to become administrators of the civic body and disqualifies them as a class from seeking election to the civic body.2 lakhs households had availed the benefit of the above scheme.5 lakhs households. there are approximately 8. such a policy.5 lakhs house holders classified as families falling below poverty line (BPL) in the State of Haryana. As per the data available with the State. approximately 7. according to the respondents if any person in the State of Haryana is not having a functioning toilet at his residence it is not because that he cannot afford to have a toilet but because he has no intention of having such facility at his residence. . can neither be said to create a class based on unintelligible criteria nor can such classification be said to be unconnected with the object sought to be achieved by the Act. Those who aspire to get elected to those civic bodies and administer them must set an example for others. nothing in law stops such an aspirant from making an appropriate arrangement for clearance of the arrears and contest elections. Even though we consider it as for the sake of argument that who is indebted falling within the prescription of clauses (t) and (v) of Section 175(1) of the Act is still interested in contesting the PANCHAYAT elections. of the abovementioned 8.

which should be provided in the Act.For the above-mentioned reasons.C.Reddi holding the Right to Vote is a constitutional right but not merely a statutory right. It is right conferred by statute. (Concurring) In PUCL v Union of India7: Justice P. Moreover. 8 369 (2003). Therefore. Thus “Right to Vote” and “Right to Contest” are constitutional rights of the citizen of India. he/she is disqualified to contest the election. In fact.V. It is the legislative wisdom to decide as to what should be the minimum qualifications. Coming now to the question of constitutional validity of Section 175 (1) (v) of the Act which provides that candidate must possess certain minimum educational qualification if he/she wants to contest an election. which provides that if a person has no functional toilet at his place of residence. the State 7SCC. Introduction of such provision prescribing certain minimum educational qualification criteria as one of the qualifications for a candidate to contest the election has a reasonable nexus with the object sought to be achieved. Now coming to the question regarding constitutionality of Section 175(w) of the Act. keeping in view the powers. and the same is dismissed. we see no merit in this writ petition. At the most. 8SCC. J. Section 175 (v) of the Act is intra vires the Constitution and is thus constitutionally valid.Lahoti states that “Right to Contest” an election is neither a fundamental right nor a common right.  Abhay Manohar Sapre. . this provision too has reasonable nexus and does not offend any provision of the Constitution. In my view. This provision in my view is enacted essentially in the larger public interest and is indeed the need of the hour to ensure its application all over the country and not confining it to a particular State. in view of part IX having been added in the Constitution. a right to contest the election for an office in Panchayat may be said to a Constitutional Right. In Javed v State of Haryana8: Justice R. authority and the responsibilities of Panchayats as specified in Art 243-G so also the powers given to Panchayats to impose taxes and utilization of funds of the Panchayats as specified in Art 243-H. Javed v State of Haryana. it is necessary that the elected representative must have some educational background to enable him/her to effectively carry out the functions assigned to Panchyats in Part IX. supra note.

” B. 2015. no unpaid electricity bills.9 Minimum education qualifications to contest in Haryana Panchayat Election Category General – Male General – Female SC – Male SC – Female Qualification Matriculation (10th class) Middle School (8th pass) Middle School (8th pass) 5th pass “My feeling is that every man is intelligent enough to understand exactly what he wants.R. but I won’t necessarily have the knowledge of how a tube well works or what are the issues that Dalits face in villages. but knowledge.com/india/report-minimum-qualifications-set-as-haryana-passes-Panchayati-raj-bill2122985 (last visited Mar 18. minimum educational qualifications for contesting Panchayat election in Haryana. Education is a very ambiguous term – I might be a research scholar. . no pending loans to agricultural cooperatives. This state law mandates a toilet at home. none the less he may be very intelligent. Ambedkar that we should pay heed to. has the knowledge of both. Therefore. So who do you think is better 9Minimum qualifications set as Haryana passes Panchayati Raj Bill. 2016).dnaindia. there arise no ground to challenge this provision as being unreasonable in any manner. which is the defining component. Literacy has not much bearing on this point. a man may be illiterate. On the other hand. DAILY NEWS AND ANALYSIS (2015). the writ petition deserved to be dismissed and is accordingly dismissed. Act. a Dalit who has no education but is living in a village. It’s not education. http://www.having provided adequate financial assistance to those who do not have toilet facility for construction of toilet. The House was informed that Haryana has become the second state after Rajasthan to fix educational and other qualifications for the candidates contesting Panchayati Raj Election elections. Case comment: The Supreme Court upheld the constitutionality of the Haryana Panchayati Raj (Amendment).Ambedkar It is these words of Dr.

11 It is one but there are many example in this country where an illiterate Panchayat doing good work compare to a well-educated Panchayat. Now come to the problem which arises after this judgement and clearly be seen in Haryana Panchayat Election. But what happens in reality? Whether Supreme Court statement.682 panches. http://www. MY VIEW: WHY AMBEDKAR WOULDN’T BE PROUD OF THE SC VERDICT ON HARYANA PANCHAYAT ELECTION THE BETTER INDIA LOGO (2015). I am sure that a lot of scientists and inventors would not have been college dropouts. .equipped to solve village level problems — a person with a PhD. Surely He/she is more productive than a man who simply holding just 10 th pass mark sheet. is right? Because here using word education seems to me a vague term. 2015. 93 sarpanches and 46 members of 10 Sajal Manchanda. 2016). Around 15.thebetterindia. We have to take account of the man who is illiterate but has experience in field. 11 Bhanupriya Rao. female gram Panchayat a ‘model village’. WHY ASHUBI KHAN’S PIONEERING RUN ENDS TODAY INDIA SPEND (2016). We have to check our education criteria whether it is sufficient to call one educated only by just passing 10th class.10 We could see this start of the new era in the politics where perhaps all persons belong to the well-educated background and we can hope where corruption and other social evil will be vanished. How could you decide whether only by passing 10 th class give you understanding of how one should behave or work? Many graduates and Post graduates are found guilty of corruption and other crime.com/special-reports/why-ashubi-khans-pioneering-run-ends-today-13263 (last visited Mar 18. “it is only education which gives a human being the power to discriminate between right or wrong. or the person who has gained hands-on knowledge by being a part of the community all his life? If education was so important.indiaspend. http://www. It is ironical that Panchayat leaders who have been at the forefront of improving school infrastructure should be debarred from contesting elections for lack of education. Haryana government declared Neemkhada and its illiterate.com/40117/supreme-court-verdict-haryana-panchayat-electionseducation-ambedkar/ (last visited Feb 28. Now take the example of the Neemkhada. 2016). good and bad”.

there wasn’t a single school in my village).com/india/report-795-turnout-in-1st-phase-of-haryanapanchayat-poll-2164258 (last visited Mar 18. Here legislature prescribe the education criteria as a one of the ground for disqualification in the election because the proclaimed object of such classification is to ensure that those who seek election to Panchayats have some basic 12 79.Panchayat Samitis were elected unopposed12. We can sense the scarcity of tools for getting from this statement: “Ab hum anpadh hain. 2016). supra note.” an angry Ram Pyari.5% turnout in 1st phase of Haryana panchayat poll. (Am I at fault if I am illiterate? In my time. a dalit.” There were not sufficient means to get education before the Right of Children to Free and Compulsory Education Act 2009. . Bench upholding is popular among the urban elites that educational. http://www.dnaindia.13 Conclusion: Supreme Court in its decision held that legislature has right to prescribe minimum qualification for contesting election. DAILY NEWS AND ANALYSIS (2016). economic and social criteria for eligibility to contest Panchayat elections should be there. We are acknowledging the fact that we need this act because we are recognising that there are some insufficiency in providing the education and for a poor people it’s hard to get education. But come to the argument of poor that “people do not choose to be illiterate. and the most vocal member of the Neemkheda Panchayat. 13 Rao. toh isme hamri ke galti hai? Humre jamane mein toh sakool hi na tho.

After this decision one can ask whether this is government by the people.education which enables them to more effectively discharge various duties which befall the elected representative of Panchayat. by the people. making laws at state and centre level.democracy-building. deciding what is good for economy of India. .html (last visited Mar 27. for the people14. 2016). . But if we see that one who. 14 A Short Definition of Democracy. debating foreign policies at international level.info/definitiondemocracy. http://www. are not bind by such minimum educational boundaries so why on the Panchayat level? Where education (only as 10th pass) come into play deciding or knowing about what is the need of the society. Democracy is government of the people.