Lawyer Indira Jaising has filed a review petition requesting the Supreme Court to a take a fresh look at the deeply disturbing endorsement that a two-judge bench gave to Haryana’s shocking decision to impose educational qualifications on candidates standing for election to panchayats.
The basis of our democracy is adult franchise with everyone having the right to one vote and no one having the right to more than one vote. The obverse of this right is that everyone has the right to stand in any election except those who are specifically debarred by The Representation of the People Act, 1951. That Act seeks to disqualify for various periods those who have been found guilty of criminal offences. It does not prescribe any educational or other qualification for any member of legislative assembly (MLA), member of Parliament (MP), minister, chief minister/prime minister or even the President. It is, therefore, deeply unfair that two-thirds of those who had been elected to Haryana’s panchayats have found themselves unable to run again, thanks to the new disqualifications now introduced.
Principal among these is educational qualifications. The Constitution lays on the state the Directive Principle that primary education should be provided to all. The state, whether in Haryana or the country, has failed to fulfil this objective despite nearly seven decades of the Constitution. To punish the unfortunate citizen, who has not been provided the minimum education that the state is obliged to provide, and not the state for this failing, is a travesty of natural justice. Equally, after years of the Total Sanitation Campaign and, more recently, the Swachh Bharat Abhiyan, the state has failed to ensure that toilets are built in every home. Once again, for its own failure of governance, Haryana has chosen to punish those who have the greatest difficulty and the least incentive to fulfil this absurd condition (that poll contestants have a functional toilet at home), which has nothing to do with the democratic values of electability or the right to run.
Moreover, there is state illiteracy in not comprehending the vast technical literature of recent years that clearly establishes that the core of the problem lies not in the physical provision of toilets but in motivating those who have such toilets to actually use them.
Gross social insensitivity of the kind that characterized the suicide of the Hyderabad University student, Rohith Vemula, and the heart-rending suicide note he left behind, is also evident in the Haryana government’s decision. Those most left behind in the national campaign for education and sanitation are precisely those who belong to the disadvantaged communities of the Scheduled Castes, the Scheduled Tribes and women of all castes and classes. Indeed, the very term “Other Backward Classes" refers to those who are categorised as “socially and educationally backward".
The Sachar Committee has established beyond an iota of doubt that the Muslim community as a whole has an enormous educational lag to make up. Thus the upper caste-inclined Bharatiya Janata Party government of Rajasthan has revealed all its social prejudices and communal bias in facilitating the election of Hindu upper caste men—its vote bank—by eliminating in one authoritarian stroke the right of the deprived and the disadvantaged to field their most electable candidates. The fact that those now disqualified are among the “most electable" has been proved by the other fact that in the last elections, some 67% of those whom the people chose to represent them are now barred from even standing for election. Their lack of educational qualifications was well-known to the voters at that time. Yet, they chose them because, of all the candidates available, including the better educated ones, the people felt that those they elected—particularly at the community level of the gram panchayat—were the ones most dedicated to the welfare of the village as a whole. In many cases, they rejected better-educated upper caste, upper- class candidates because these candidates belonged to the village elite and the voter feared elite capture of the panchayat if they were preferred. What the Haryana government has now given its caste and community support base is the Hindutva ideal of a born elite grabbing the levers of political, economic, social and executive power.
Several studies have shown that Scheduled Caste/Scheduled Tribe women, often less educated than their upper caste sisters, have benefited most from the opportunities for social and political advancement, as well as economic and administrative empowerment, opened by Panchayati Raj. This is not surprising if one reflects that poor Scheduled Caste/Scheduled Tribe women have to be in the public domain and negotiate their way past dominant and domineering men for sheer livelihood, from which upper-caste and upper-class village women are largely insulated. Thus, for example, in Karnataka, whereas reservations for Scheduled Caste/Scheduled Tribe women within the Scheduled Caste/Scheduled Tribe quota are fixed at 33%, the share of Scheduled Caste women elected has been 54% and as high as 65% (or double the quota) for Scheduled Tribe women. Many, perhaps most, of these Karnataka women would not have been allowed to even run for the Haryana elections.
Overcoming gender discrimination has been the most beneficial spin-off of constitutional Panchayati Raj. With about 1.4 million women in our 250,000 democratically elected institutions of local self-government, there are more elected women in India alone than in the rest of the world put together. Nearly 86,000 of them hold office in the panchayats as president or vice-president at all three levels of the district, the block/taluka and the village. It is an achievement in gender empowerment without precedent in history or parallel in the world.
Yet, as the large number of uncontested women’s seats, including reserved seats for Scheduled Caste/Scheduled Tribe women, in Haryana shows, the new Haryana conditions viciously discriminate against women at a time when their general performance has been so encouraging that some 14 states have followed Nitish Kumar’s example in raising women’s reservations to 50%.
Is any of this just? Is any of this fair? Is any of this an exemplar of justice as understood by the highest court in our land? Indira Jaising’s review petition deserves the support of the Supreme Court.
Mani Shankar Aiyar is a Rajya Sabha member, a senior Congress leader and a former Union minister.