Case: Rajbala  Vs. State Of Haryana

2. Even prior to advent of the Constitution of India under the Government of India Act, 1935 certain local bodies with elected representatives were functioning. Such local bodies did not, however, have constitutional status. They owed their existence, constitution and functioning to statutes and had been subject to the overall control of provincial governments.3. Article 40 of the ConstitutionOrganisation of village panchayats –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 selfeffectuate such obligation of the State, Constitution authorised (even prior to the 73rd Amendment) State Legislatures under Article 246(3) read with Entry 5 of List II to make laws with respectLocal government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of localaws have been made from time to time by State Legislatures establishing aPanchayat system byIt was felt desirable that local bodies be given constitutional status and the basic norms regarding the establishment and administration of aPanchayati Raj institutions be provided under the Constitution. Hence, the 73rd Amendment of the Constitution by which Part IX was inserted with effect from 24.4.1993.4. Under Article 243B (Article 243B. Constitution ofThere shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part (2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs), it is stipulated that there shall be constituted in every State, Panchayats at the village, intermediate and district levels (hereinafter collectively referred to as PANCHAYATS) in accordance with provisions of Part IX. PANCHAYAT is defined under Article 243(d) (Article 243(d).means an institution (by whatever name called) ofconstituted under article 243B, for the rural areas;).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; such as reservations of seats in favour of scheduled castes and scheduled tribes etc. The duration of the Panchayat is fixed under Article 243E for a maximum of five years subject to dissolution in accordance with law dealing with the subject.There is a further stipulation under Article 243E that election to constitute a Panchayat be completed before the expiry of its tenure (Article 243E. Duration of Panchayats, etc(1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and noNo amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause ( 1 ).(3) An election to constitute a Panchayat shall bebefore the expiry of its duration specified in clause (1);(b) before the expiration of a period of six months from the date of its dissolution:.Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period.(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under clause (1) had it not been so dissolved.The broad contours of the powers and functions of Panchayats are also spelt out in Article 243G and 243H. Such powers and responsibilities are to be structured by legislation of the State. The establishment of an autonomous constitutional body to superintend the election process to the PANCHAYATS is stipulated under Article 243K.7. The Haryana Panchayati Raj Act, 1994 (hereinafter referred to as) was enacted to bring the then existing law governing PANCHAYATS in the State in tune with the Constitution as amended by the 73rd amendment. As required under Article 243B (See Footnote 1), a three tier Panchayat system at the Village,and District level is established under THE ACT with bodies known as Gram Panchayat, Panchayat Samiti and Zila Parishad. Part V Chapter XX of THE ACT deals with provisions relating to elections to the PANCHAYATS.8. Section 162 of THE ACT stipulates that PANCHAYAT areas shall be divided into wards (Section 162. Electoral division: – Every sabha area, block and district shall be divided into wards as referred in sections 8(3), 58(2) and 119(b) of this Act.).9. Section 165 (Section 165. Persons qualified to be registered as voters.Every person who is entitled to be registered as voter in the relevant part of the electoral rolls of the Assembly under the Representation of People Act, 1950, shall be entitled to be registered as a voter in the list of voters for the electoral division to be prepared under section 164.) declares that every person entitled to be registered as voter in the relevant part of the electoral rolls of the Assembly is entitled to be registered as a voter for the purpose of PANCHAYATS elections.10. Section 175 mandates that persons suffering from any one of the disqualifications mentioned in Section 175 are neither eligible to contest the election to any one of the offices under the Act nor can they continue in office if they incur any one of the disqualifications, after having been elected. The categories so specified runs into a long list, such as, convicts of certain categories of offences, adjudicated insolvent, people of unsound mind, people who hold any office of profit under any one of the three categories of Panchayats etc.11. By the IMPUGNED ACT (Initially, an ordinance known asPanchayat Raj (Amendment) Ordinance, 2015 was promulgated on 14.8.2015 now replaced by the Impugned Act which was passed by the Haryana Legislature on 7.9.2015 and subsequently notified.), five more categories of persons are rendered incapable of contesting elections for any one of the elected offices under THE ACT. 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, if any, owed by them to either a Primary Agricultural Cooperative Society or District Central Cooperative Bank or District Primary Agricultural Rural Development Bank, (iii) persons who have arrears of electricity bills, (iv) persons who do not possess the specified educational qualification and lastly (v) persons not having a functional toilet at their place of residence.12. On 8.9.2015, the second respondent (State Election Commission) issued a notification specifying the election schedule for the PANCHAYATS of Haryana.13. The three petitioners herein claim to be political activists interested in contesting the local body elections, but would now be disabled to contest as none of them possess the requisite educational qualification.14. The petitioners challenge the IMPUGNED ACT principally on the ground that the enactment is violative of Article 14 of thePrasad Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46

Reasoning:
18. Answers to questions raised by the petitioners in this writ petition, in our opinion, inevitably depend upon answer to the question whether right to vote or the right to contest an election to any of the constitutional bodies is a constitutional or a statutory right, since the extent to which curtailment or regulation of such right is permissible depends upon the nature of theare of the opinion that the said judgment leaves open more questions than it answers. The correctness of the judgment requires a more closer scrutiny in an appropriate case for more than one reason. One of them is that the inquiry in the said judgment commenced with the examination of Article 326 which has no application to elections to the Legislative Councils. The text of Article 326 is express that it only deals with the adult suffrage with respect to Lok Sabha and Legislative Assemblies. In our opinion the statement (extracted earlier from para 20 of the said judgment) is made without analysis of relevant provisions of the Constitution apart from being unnecessary in the context of the controversy before the Court and is further in conflict with the later judgment in. The decision in PUCL case was unfortunately not noticed by this Court while deciding K. Krishna Murthy case. Further a specific requestreconsider the precedents wherein the rights of political participation have been characterized as statutorywas not given any consideration (Para 79. The petitioners have asked us to reconsider the precedents wherein the rights of political participation have been characterised as statutory rights. It has been argued that in view of the standard of reasonableness, fairness andrequired of governmental action under Article 21 of the Constitution, there is a case for invalidating the restrictions that have been placed on these rights as a consequence of reservations in localWe do not agree with this contention.Therefore, the right to vote and contest at an election for a municipality was certainly a statutory right by the date of the judgment (The judgment of Allahabad High Court is dated 19.2.1991 and the appeal in this Court is decided on 15.5.1992.)in Mohan Lal case.We are of the opinion that observations referred to above are in conflict with the decisions of this Court in PUCL case and DMDK case, which were rendered after an elaborate discussion of the scheme of the Constitution. We are of the clear opinion that the Constitution recognises the distinction between the ‘Right toat various elections contemplated under the Constitution and the ‘Right toat such elections. There are various other electoral rights recognized or created by the statutes and the Representation of the People Act, 1951 recognises the same (Section 123(2). Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:).The right to vote and right to contest at an election to a PANCHAYAT are constitutional rights subsequent to the introduction of Part IX of the Constitution of India. Both the rights can be regulated/curtailed by the appropriate Legislature directly. Parliament can indirectly curtail only the right to contest by prescribing disqualifications for membership of the Legislature of a State.48. It is a settled principle of law that curtailment of any right whether such a right emanates from common law, customary law or the Constitution can only be done by law made by an appropriate Legislative Body. Under the scheme of our Constitution, the appropriateness of the Legislative Body is determined on the basis of the nature of the rights sought to be curtailed or relevant and the competence of the Legislative Body to deal with the right having regard to the distribution of legislative powers between Parliament and State Legislatures. It is also the settled principle of law under our Constitution that every law made by any Legislative Body must be consistent with provisions of the Constitution.We are of the opinion that in view of the conclusion recorded by the Court that the rule is beyond the competence of Bar Council of India, it was not really necessary to make any further scrutiny whether the rule was unreasonable and arbitrary. Apart from that, in view of the conclusion recorded that the rule was clearly discriminatory, the inquiry whether the choice of the upper age limit of 45 years is arbitrary or not is once again not necessary for the determination of the case. At any rate, the declaration made by this Court in the said case with regard to a piece of subordinate legislation, in our view, cannot be an authority for the proposition that a statute could be declared unconstitutional on the ground that in the opinion of the Court the Act is arbitrary.For the above reasons, we are of the opinion that it is not permissible for this Court to declare a statute unconstitutional on the ground that it isobject 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. It is only education which gives a human being the power to discriminate between right and wrong, good and bad. Therefore, prescription of an educational qualification is not irrelevant for better administration of the PANCHAYATS. 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.It is a notorious fact that the Indian (In England this habit existed till 15th Century at least,sanitation made London aany kind of sewage system, the streets stank to high heaven, whereas human excrement was systematically collected in Chinese cities and used as fertilizer in outlying paddy fields. In the days when Dick Whittington was lord mayor – four times between 1397 and his death in 1423 – the streets of London were paved with something altogether less appealing than[Niall Ferguson, Civilization : The West and the Rest , (First Edition, Penguin Press, 2011)] page 23)population for a long time had this unhealthy practice of defecating in public. The Father of the Nation wrote copiously on this aspect on various occasions. He took up with a missionary zeal the cause to eradicate this unhealthy practice. At some point of time, he even declared that the priority of this country should be to get rid of such unhealthy practice than to fight for independence. It is unfortunate that almost a hundred years after Gandhiji started such a movement, India is still not completely rid of such practice. The reasons are many. Poverty is one of them. However, this unhealthy practice is not exclusive to poorer sections of rural India. In a bid to discourage this unhealthy practice, the State has evolved schemes to provide financial assistance to those who are economically not in a position to construct a toilet. As rightly pointed by the respondents, if people still do not have a toilet it is not because of their poverty but because of their lacking the requisite will. One of the primary duties of any civic body is to maintain sanitation within its jurisdiction. Those who aspire to get elected to those civic bodies and administer them must set an example for others. 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, such a policy, in our view, 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.