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Set no bar

Denial of opportunities arising out of state failure, as in Rajasthan’s local election eligibility ordinance, must be subject to the strictest constitutional standards

Written by Anup Surendranath , Rishika Sahgal | Updated: January 14, 2015 2:48:02 am
election qualification, rajasthan election, rajasthan election education, rajasthan, election, indian express column, ie column, Anup Surendranath column, Rishika Sahgal column The state cannot seek to penalise individuals for its failure to perform essential functions like providing primary education or sanitary toilets. (Source: PTI photo/file)

The requirement of a minimum educational qualification to contest various local body elections in Rajasthan has received much attention. However, this measure is only one of many constitutionally suspect eligibility criteria. These disqualifications range from outright discrimination to those that exclude in the guise of progressive social reform. Such exclusions in law severely disadvantage marginalised groups and undermine political participation in local self-governance. However, what has been most disappointing is the deferential approach of the Supreme Court in this context.

As examples of invidious discrimination, the relevant legislations in Odisha and Rajasthan disqualify those suffering from leprosy from contesting elections to panchayati raj institutions (PRIs). Tuberculosis is another ground for disqualification in Odisha. Legislations in Maharashtra, Andhra Pradesh, Odisha and Tamil Nadu prohibit individuals termed as “deaf-mute” from contesting local body elections or continuing as members. However, Rajasthan’s legislation is particularly discriminatory towards the disabled, disqualifying anyone with a “physical or mental defect or disease rendering him incapable of work”.

Other legislative provisions seek to further a social agenda through eligibility criteria. By requiring candidates to have sanitary latrines, the legislations in Karnataka, Maharashtra and Rajasthan attempt to address open defecation while promoting public health and sanitation. Candidates with more than two children are disqualified in Andhra Pradesh, Rajasthan, Madhya Pradesh, Odisha and Maharashtra. Himachal Pradesh and Haryana repealed such a requirement in 2005 and 2006 respectively.

Rajasthan is the only state that has a minimum education requirement, though Odisha requires candidates to have the ability to read and write Odia. In Madhya Pradesh, a rule until 2013 disqualified individuals married below the legal age from entering the state public services.

While the blatantly discriminatory disqualifications do not pose difficult constitutional questions, the question that arises is: In what circumstances can the state use eligibility criteria to further a progressive social aim? For example, would the criterion concerning the ability to read and write be more acceptable than formal educational qualifications? Should the state be permitted to promote family planning by requiring representatives to have no more than two children? Is it any more acceptable to pursue the goal of ending open defecation through the requirement of sanitary latrines? Are we to say that the state must be free to adopt any measure while pursuing a progressive social agenda and it is not for the court to judge those means?

In the context of these examples, the SC has decided two issues on either end of the spectrum, and its approach is quite revealing. In Javed vs State of Haryana, the SC decided the constitutionality of Haryana’s two-child norm for elections to PRIs. Addressing the challenge that such a disqualification discriminated against those with more than two children, the court argued that it was constitutional for the legislature to pursue its population control policy through such disincentives.  On the issue of a disparate impact on women, the court relies on a rather flawed understanding of reproductive autonomy to argue that due to rising awareness, Indian women can no longer be compelled to bear a third child. This is a classic case of the court failing to recognise the disparate impact of a facially neutral law. Recognising it requires a thorough and sound socio-cultural understanding, which the court unfortunately did not demonstrate in Javed.

While one might see the complexity in Javed, because of the state pursuing an undoubtedly desirable aim, the court has fallen short even while dealing with instances of direct invidious discrimination. In Dhirendra Pandua vs State of Orissa (2008), the SC held that the exclusion of those suffering from leprosy from contesting elections/ continuing as members of PRIs did not violate the right to equality. In a rather uncharacteristic move, the court said it would defer to the decision of the state legislature in this regard.

These cases don’t really give us a framework for judicially scrutinising such legislative measures. The use of leprosy, tuberculosis and disability as disqualifications must be struck down, for they amount to invidious discrimination. However, when it comes to disqualifications designed to further progressive social goals, a lot more nuance is required. The first task for the court should be to rigorously examine whether the proposed measures would have a disparate impact on disadvantaged groups. The two-child norm, as established through social science research, disadvantages women disproportionately and the minimum education requirement excludes groups that continue to be denied access to education for generations. The court must look into the large amount of social science evidence available in these contexts and avoid relying on personal perceptions.

Further, it is problematic to penalise individuals for decisions over which they had no real control. It is not the “fault” of the individual that she had to discontinue her education or that she married while below the legal age. These are consequences of complex social realities and the fictions of law, unconnected to these realities, should have no place in our legal system. Similarly, the state cannot seek to penalise individuals for its failure to perform essential functions like providing primary education or sanitary toilets. The imposition of penalties and denial of opportunities arising from state failure must be subject to the most searching constitutional standards. We cannot systematically exclude large sections from participating in democracy and when Rajasthan’s ordinance does come up before the SC again, it must find a way to undo the legacy of its decisions in Javed and Pandua.

Surendranath teaches constitutional law at the National Law University, Delhi, where Sahgal is a final year student

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