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Thursday, April 19, 2018

A body blow to justice

Apex court’s decision on Haryana panchayat poll qualifications is disappointing. Parliament must intervene

Written by Mani Shankar Aiyar | Updated: December 12, 2015 12:00:05 am
Instituting such an exclusionary principle goes against the spirit of the Indian Constitution. Someone should have shown the SC reams of statistics to show that at every level of education and in every part of the country, girls have far less access to education than do boys.

The Supreme Court endorsement of the Haryana government’s decision to prescribe educational qualifications for candidates contesting panchayat polls is the most retrograde step taken in the history of panchayati raj.

Parliament passed the 73rd and 74th Amendments in December 1992, with no one suggesting then, or during the long years of debate and discussion that preceded their passage, that such qualifications should be introduced.

Gandhiji must be horrified. He wanted panchayats to be the foundation of our democracy — at a time when literacy
and educational rates were far, far below where they stand today.

The assumption was that the qualifications and restrictions prescribed in the Representation of the People Act, 1950, would constitute the framework within which state panchayat elections would be held. It boggles the mind that the SC should consider educational qualifications as justified for panchayat representatives, but not for MLAs and MPs. Since representatives elected to state assemblies or Parliament are principally required to consider, deliberate on and decide intricate, complicated legislation, one would have thought educational qualifications, if required at all, would be far more stringent for these positions than for those who deal with neighbourhood issues in their respective villages.

If the argument is that educational qualifications are not necessary for legislators but for panchayat representatives because the latter deal with executive matters, it follows that educational qualifications are even more required for state and Central ministers than for panchayat representatives. But apart from the provision that ministers have to be elected members of legislatures, there is nothing in our law to suggest that you should be a PhD to be PM, an MA to be a chief minister or cabinet minister, or a BA to be a state minister. In fact, many of our prime ministers have not been graduates. And only one can be said to have attained academic distinction before he became PM. Indeed, one of the most distinguished chief ministers we have ever had, K. Kamaraj, did not even complete his schooling. That did not stop him from becoming a legend in his lifetime and leading Tamil Nadu to the very top position in administration anywhere in the country. In Haryana, he would have been banned from contesting panchayat elections.

If these very high offices do not require minimum educational qualifications, it seems a terrible travesty of justice that persons without the prescribed educational qualifications be barred from election to panchayats, let alone being elected office bearers. The injustice of this is only aggravated when one notes that those now barred in Haryana fall below the minimum educational qualifications principally because the state has failed to fulfil its obligations under the directive principles of state policy. They are being punished for no fault of their own. It is not that they refused to be educated. It is that the state failed to provide them the facilities to study, and is now thwarting their desire to serve their communities by banning them from even standing in, let alone winning, elections to local bodies.

The gender injustice is particularly glaring. Someone should have shown the SC reams of statistics to show that at every level of education and in every part of the country, girls have far less access to education than do boys. By a gargantuan effort under the UPA’s Sarva Shiksha Abhiyan, this problem is being addressed. But there are miles to go before we sleep. It is not only a question of facilities, but also of societal attitudes. Girls have to overcome barrier after barrier to even secure enrolment in primary classes. At every higher level of education, from primary to secondary and then higher secondary to college, they have to be both persistent and fortunate to secure the opportunity. The problem gets worse as one descends the economic ladder, as also between social and religious communities. The Haryana decision reflects an anti-women, anti-OBC and anti-Scheduled Caste/ Tribe bias in its bizarre view that educational qualifications are necessary to fight a panchayat election but illiteracy would not stand in the way of someone becoming CM, Haryana.

OBCs are defined in the Constitution as classes that are “educationally and socially” backward. The definition itself shows that there are numerous classes in India, including in Haryana, who are wanting in education. That is precisely why they are classified as “backward”. Are they not being discriminated against in panchayat elections when their very status as “educationally backward” has caused the Constitution to demand affirmative action in their favour? Is this not even more true of our SC/ ST communities? Yes, much has been done to improve their educational lot, but the least connect with ground reality will show that if the upper castes are dominant in the civil services and even in Parliament, it is because history and traditions have rendered OBCs/ SCs/ STs as educationally deprived, compared to those slotted higher in the varna system. Instead of resolving this deadweight on our society, the Haryana decision endorsed by the apex court aggravates the social and educational discrimination faced by these gravely disadvantaged sections. An enlightened judgment would have explored these facets of social reality instead of limiting itself to the considerations put forward by the attorney general on behalf of his client, the BJP government of Haryana.

What panchayati raj has achieved for these depressed classes is little appreciated in urban and higher-class circles. India today has nearly 15 lakh elected women representatives in our local bodies. There are more elected women representatives in India alone than in the rest of the world put together. It is an achievement in gender empowerment that is without precedent in history or parallel in the world. As a result of panchayat empowerment, millions of women have been enabled to rise far higher in their social and family standing than their educational qualifications, or lack of them, would have allowed pre-panchayats. This is most true for SC and ST women. The apex court has delivered a body blow to justice for those most in need of it. Parliament must intervene.

The writer, Congress MP in the Rajya Sabha, is a former minister of panchayati raj (2004-09)

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