SC upholds Haryana law for minimum educational qualification for contesting Panchayat elections

                                                                 
                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                   WRIT PETITION (CIVIL)  NO. 671 OF 2015

Rajbala & Others                                   …     Petitioners

Versus

State of Haryana & Others               …    Respondents



                               J U D G M E N T

Chelameswar, J.

1.    The challenge is to the constitutionality of  the  Haryana  Panchayati
Raj (Amendment) Act, 2015 (Act 8 of 2015), hereinafter referred  to  as  the
“IMPUGNED ACT”.

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 Constitution mandates-
“40. Organisation 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   self
government.”


To effectuate 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 respect to;
“5. Local 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  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.  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.  Hence, the 73rd  Amendment
of the  Constitution  by  which  Part  IX  was  inserted  with  effect  from
24.4.1993.

4.     Under  Article  243B[1],  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)[2].

5.    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[3].
6.    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  “THE
ACT”) 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[4], a three  tier  Panchayat  system  at  the
Village, ‘Samiti’ 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[5].

9.    Section 165[6] 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[7], 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 the Constitution.    It  is
argued on behalf of the petitioners that (i)  the  impugned  provisions  are
wholly unreasonable and arbitrary and therefore violative of Article  14  of
the   Constitution.   They   create   unreasonable   restrictions   on   the
constitutional right of voters to contest elections under the  ACT[8];  (ii)
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), an otherwise homogenous group  of  people
who are  entitled  to  participate  in  the  democratic  process  under  the
Constitution at the grass-roots level; and (iii) the  classification  sought
to be made has no legitimate purpose which can be achieved[9].

15.   Though not very specifically pleaded in the writ petition,   elaborate
submissions  are  made  on  the  questions  (i)  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;  (ii)  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,
as can be culled out from the language of Article  243F  and  other  related
provisions of the Constitution.

16.   On the other hand, the learned  Attorney  General  appearing  for  the
respondents submitted that nobody has a  fundamental  right  to  contest  an
election under our Constitution and  it  is  really  not  necessary  in  the
present case to decide whether the right  to  contest  an  election  to  the
PANCHAYATS is a constitutional right.    He argued that  even  assuming  for
the sake of argument that there is a  constitutional  right  to  contest  an
election to  the  PANCHAYATS,  such  right  is  expressly  made  subject  to
qualifications/disqualifications  contemplated  under  Article  243F   which
authorises  the  State  legislature  to  prescribe   disqualifications   for
contesting election to any PANCHAYAT.   Prescription  of  qualifications  to
contest  an  election  based  on  criteria  such  as   minimal   educational
accomplishment etc. cannot be said to  be  either  arbitrary  or  irrelevant
having regard to the nature of duties required to be discharged  by  persons
elected to any one of the offices under THE ACT.

17.   The learned Attorney General also submitted that the legislature  best
comprehends the needs of the society[10]. The decision to prescribe  such  a
qualification is in the realm of  wisdom  of  the  legislature[11]  and  the
Courts do not  sit  in  review  of  such  wisdom  on  the  ground  that  the
legislative decision is arbitrary[12].

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 the right.

19.   Prior to the 73rd Amendment  of  the  Constitution,  the  Constitution
contemplated elections to the office of the President,  Vice-President,  the
two Houses of the Parliament known as Rajya Sabha  and  Lok  Sabha  and  the
State Legislatures.  The  Legislatures  in  certain  States  are  bicameral.
They are known as Legislative Assembly and Legislative Council  while  other
States are unicameral (only the legislative Assembly).   After the 73rd  and
74th  Amendments  of  the  Constitution,  PANCHAYATS  and  Municipal  bodies
specified under Parts IX & IXA of the Constitution respectively  were  added
to the above-mentioned.

20.   The nature of the right to vote at or the right to contest to any  one
of the abovementioned elections has been a vexed question.

21.   A bench of three judges (M.B. Shah,  P.  Venkatarama  Reddi  and  D.M.
Dharamadhikari, JJ.) of this Court in People’s  Union  for  Civil  Liberties
(PUCL) & Another v. Union of India & Another, (2003) 4  SCC  399  considered
the validity of the Representation of  the  People  (Third  Amendment)  Act,
2002 (4 of  2002).   By  the  said  amendment,  a  candidate  contesting  an
election (to which the Representation of the People Act,  1951  applies)  is
required  to  furnish  certain  information  at  the  time  of   filing   of
nomination.  In that context, Justice P.V. Reddi  examined  in  some  detail
the nature of the right to vote in the background of the  observations  made
in two earlier decisions of this Court,  in  N.P.  Ponnuswami  v.  Returning
Officer, Namakkal Constituency, Namakkal, Salem, AIR 1952 SC  64  and  Jyoti
Basu & Others v. Debi Ghosal & Others, (1982) 1 SCC  691  and  recorded  the
categoric conclusion that the “right to vote” if not a fundamental right  is
certainly a “constitutional right” and “it is not very accurate to  describe
it as a statutory right, pure and simple”.  The learned Judge recorded  nine
of his conclusions in para 123.  The 2nd conclusion reads as follows:
“(2)  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; freedom of voting as distinct from right to vote is a  facet  of  the
fundamental right enshrined in Article 19(1)(a).  The  casting  of  vote  in
favour of one or the other candidate marks the accomplishment of freedom  of
expression of the voter.”

A conclusion with which Justice Dharamadhikari  expressly  agreed[13].   The
third learned judge Justice M.B. Shah recorded no disagreement.

22.   Following the PUCL case, one of us held  in  Desiya  Murpokku  Dravida
Kazhagam (DMDK) & Another v. Election Commission  of  India,  (2012)  7  SCC
340: “…… 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 …….”.[14]  No doubt,  it  was  a  part  of  the  dissenting
opinion.  It was a case dealing with allotment of election symbols  and  the
right of a political party to secure “……. an election symbol on a  permanent
basis irrespective of its participation and performance judged by  the  vote
share it commanded at any election.”[15]  Though, the majority held  that  a
political party cannot claim an election symbol on a permanent basis  unless
it satisfied  norms  stipulated  under  the  symbols  order  issued  by  the
Election  Commission  of  India.   Their  Lordships  did  not   record   any
disagreement regarding the conclusion  that  the  right  to  participate  in
electoral process, either as a voter or as a candidate is  a  constitutional
right.

23.   Therefore, in our opinion, the question whether the right to  vote  at
an election for either the Lok  Sabha  or  the  Legislative  Assembly  is  a
statutory right or a constitutional right is no more res integra and  stands
concluded by the abovementioned judgments, in PUCL and DMDK cases (supra).

24.   However, the learned Attorney General brought to  our  notice  certain
observations in some of the judgments to the effect that rights to vote  and
contest elections are purely statutory.   The context and the  precedentiary
value of those judgments need examination.

25.   In Shyamdeo Prasad Singh v. Nawal Kishore Yadav, (2000) 8  SCC  46,  a
Bench of three learned Judges observed:
“20.   … It has to be remembered that right to contest an election, a  right
to vote and a right to object to an ineligible person  exercising  right  to
vote are all rights and obligations created by statute….”


It was a case dealing with election to  the  Legislative  Council  of  Bihar
from the Patna Teacher’s Constituency.  The  limited  question  before  this
Court was whether the High Court in an election petition could  examine  the
legality of the inclusion of certain names in the electoral  roll?   We  are
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 PUCL’s case.

26.   In K. Krishna Murthy (Dr.) & Others  v.  Union  of  India  &  Another,
(2010) 7 SCC 202 para 77, speaking for a Constitution Bench of  this  Court,
Balakrishnan, CJ. recorded that:  “…… it  is  a  well-settled  principle  in
Indian Law, that the right to vote and contest elections does not  have  the
status of fundamental rights.  Instead, they are  in  the  nature  of  legal
rights…….”.  For recording such conclusion reliance was  placed  on  certain
observations made in an earlier judgment (decided by a bench of two  judges)
of this Court in Mohan Lal Tripathi v. District Magistrate, Rai  Bareilly  &
Others, (1992) 4 SCC 80.

27.   The  challenge  before  this  Court  in  K  Krishna  Murthy  case  was
regarding the legality of Article 243D(6) and Article 243T(6) which  enabled
reservation of seats in favour of backward classes etc.[16]   The  challenge
to the abovementioned provisions is that they “are violative  of  principles
such as equality, democracy and fraternity, which  are  part  of  the  basic
structure doctrine”.[17]

28.   The decision in PUCL case was unfortunately not noticed by this  Court
while deciding K. Krishna Murthy  case.   Further  a  specific  request  “to
reconsider the precedents wherein  the  rights  of  political  participation
have  been  characterized  as  statutory   rights”   was   not   given   any
consideration[18].    Their  Lordships  also  failed  to  notice  that   the
observations made in Mohan Lal case, prior to  the  74th  Amendment  of  the
Constitution regarding the nature of the electoral  rights  with  regard  to
the elections to the Municipal bodies are wholly  inapplicable  and  without
examining provisions of the Constitution as amended by the 74th Amendment.

29.   They relied upon observation[19] from Mohan Lal case, in our  opinion,
are too sweeping and made without any  appropriate  analysis  of  law.   The
limited issue before this Court in Mohan Lal case was the legality of a  ‘no
confidence motion’ moved against the President  of  Rai  Bareilly  Municipal
Board who was elected directly by voters  of  the  municipality.   The  U.P.
Municipalities Act provided for removal of the President so elected  through
the  process  of  a  no  confidence  motion  moved  by  the  Councilors  who
themselves,  in  turn,  are  elected  representatives  of  the   territorial
divisions of the municipality.  The question whether the right  to  vote  in
or contest an election is a constitutional or statutory  right  was  not  in
issue.   Mohan  Lal  case  was  dealing  with   provisions   of   the   U.P.
Municipalities Act, 1916 as amended by Act 19 of 1990, i.e.  prior  to  74th
Amendment of  the  Constitution[20].   Therefore,  the  right  to  vote  and
contest at an election for a municipality was certainly  a  statutory  right
by the date of the judgment[21] in Mohan Lal case.

30.   Again in Krishnamoorthy v. Sivakumar & Others, (2015) 3 SCC 467,  this
court observed that the right to contest an election is a plain  and  simple
statutory right[22].

31.   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 to Vote’ at various  elections
contemplated under the Constitution and  the  ‘Right  to  Contest’  at  such
elections.   There are various other electoral rights recognised or  created
by the statutes and the Representation of the People  Act,  1951  recognises
the same[23].
Right to Vote

32.   Prior to the 73rd and 74th amendments, the  Constitution  contemplated
elections to be held to offices of the  President  and  the  Vice  President
under Articles 54 and 66 respectively.   It also contemplated  elections  to
the two chambers of Parliament i.e. Rajya Sabha and  Lok  Sabha.    A  small
fraction of the Members of the Rajya Sabha are nominated  by  the  President
while other Members are  elected[24].    In  the  case  of  the  Lok  Sabha,
subject to stipulations contained in Article 331  providing  for  nomination
of not more than two Members belonging to the  Anglo  Indian  Community  all
other Members are required to be elected.  In the case  of  the  Legislative
Council, in States where they exist,  a  fraction  of  the  Members  of  the
Council  are  required  to  be  nominated  by  the  Governor  under  Article
171(2)(e) and the rest of  the  Members  are  to  be  elected  from  various
constituencies  specified  under  Article  171  (3)(a),   (b),   (c),   (d).
Legislative Assemblies shall consist of  only  elected  members  subject  to
provisions for nomination contained in Article 333 in favour  of  the  Anglo
Indian Community.

33.   The right to vote of every citizen at an election either  to  the  Lok
Sabha or to the Legislative Assembly is recognised under  Articles  325  and
326  subject   to   limitations   (qualifications   and   disqualifications)
prescribed by or under the Constitution.   On the other hand  the  right  to
vote at an election either to the Rajya Sabha or to the Legislative  Council
of a State is confined only to Members of the Electoral  Colleges  specified
under Article 80(4)  &  (5)  and  Article  171  (3)(a),  (b),  (c),  (d)[25]
respectively.   In the case of election to the Rajya  Sabha,  the  Electoral
College is confined to elected members of Legislative Assemblies of  various
States and representatives of Union Territories[26].   In the  case  of  the
Legislative Council, the  Electoral  College  is  divided  into  four  parts
consisting of; (i) Members of various local bodies specified  under  Article
171 (3)(a); (ii) certain qualified graduates  specified  under  Article  171
(3)(b); (iii) persons engaged in  the  occupation  of  teaching  in  certain
qualified institutions described under Article 171 (3)(c); and (iv)  Members
of  the  Legislative  Assembly  of  the  concerned  State.    Interestingly,
persons to be elected by the  electors  falling  under  any  of  the  above-
mentioned categories need not belong to that category, in other words,  need
not be a voter in that category[27].

34.   The Electoral College for election to  the  Office  of  the  President
consists of elected  members  of  both  Houses  of  Parliament  and  elected
members of the Legislative Assemblies  of  the  State  while  the  Electoral
College with respect to the Vice President is confined to  Members  of  both
Houses of Parliament.
Right to Contest
35.   The Constitution prescribes certain basic minimum  qualifications  and
disqualifications to contest an election  to  any  of  the  above  mentioned
offices or bodies.    Insofar as election to the  Office  of  the  President
and Vice President are concerned, they are contained under Articles  58  and
66 respectively.  Insofar as  Parliament  and  the  State  Legislatures  are
concerned, such qualifications are stipulated under  Articles  84  and  173,
and disqualifications  under  Articles  102  and  191  respectively.     The
Constitution also  authorises  Parliament  to  make  laws  prescribing  both
further qualifications and disqualifications.

36.   Interestingly, insofar as elections to Office  of  the  President  and
Vice President are concerned, the Constitution does not expressly  authorise
either Parliament or Legislative Assemblies of the State  to  prescribe  any
further qualifications  or  disqualifications  to  contest  an  election  to
either of these Offices.   It stipulates only two conditions  which  qualify
a person to contest those Offices, they are -  citizenship  of  the  country
and the minimum age of 35 years.   Under Articles 58(1)(c) and 66(3)(c),  it
is further stipulated that a person who was otherwise  eligible  to  contest
for either of the above mentioned two Offices shall not be  eligible  unless
he is qualified for election as a Member of  the  Lok  Sabha  or  the  Rajya
Sabha respectively.

37.   An examination of the scheme of these various Articles indicates  that
every person who is entitled to be a voter  by  virtue  of  the  declaration
contained under Article 326 is not automatically entitled to contest in  any
of the elections referred  to  above.    Certain  further  restrictions  are
imposed on a voter’s right  to  contest  elections  to  each  of  the  above
mentioned  bodies.   These  various  provisions,  by  implication  create  a
constitutional right to contest elections to  these  various  constitutional
offices and bodies.  Such a conclusion is irresistible since there would  be
no requirement to prescribe constitutional limitations  on  a  non  existent
constitutional right.

38.    Articles  84  and  173  purport  to  stipulate   qualifications   for
membership  of  Parliament  and  Legislatures  of  the  State  respectively.
Articles 102 and 191 purport to deal with disqualifications  for  membership
of the above mentioned two bodies  respectively.    All  the  four  Articles
authorise  the  Parliament   to   prescribe   further   qualifications   and
disqualifications, as the case may be, with reference to the  membership  of
Parliament and Legislatures of the State as the case may be.

39.    The   distinction   between   the   expressions   qualification   and
disqualification  in  the  context  of  these  four   Articles   is   little
intriguing.  There is no clear indication in any one of these four  Articles
or in  any  other  part  of  the  Constitution  as  to  what  is  the  legal
distinction between those  two  expressions.   In  common  parlance,  it  is
understood that a qualification or  disqualification  is  the  existence  or
absence of a particular state of affairs, which renders the  achievement  of
a particular object either possible or impossible.   Though  there  are  two
sets   of   Articles   purporting   to    stipulate    qualifications    and
disqualifications, there is neither any logical pattern  in  these  sets  of
Articles nor any other indication which enables  discernment  of  the  legal
difference between  the  two  expressions.    We  reach  such  a  conclusion
because citizenship of India is expressly made a condition  precedent  under
Articles  84  and  173  for  membership  of  both   Parliament   and   State
Legislatures.   Lack of citizenship is also expressly  stipulated  to  be  a
disqualification for membership of either  of  the  above  mentioned  bodies
under Articles 102 and 191.   In view of the stipulation under  Articles  84
and 173 - citizenship is one of the requisite qualifications for  contesting
election to either Parliament or the State Legislature, we do  not  see  any
reason nor is anything brought to our notice by  learned  counsel  appearing
on either side to again stipulate under the Articles 102 and 191  that  lack
of citizenship renders a person disqualified from  contesting  elections  to
those  bodies.   Learned  counsel  appearing  on  either   side   are   also
unanimously of the same opinion. We are, therefore, of the opinion that  the
distinction  between  qualifications   and   disqualifications   is   purely
semantic[28].

40.   We, therefore, proceed on the  basis  that,  subject  to  restrictions
mentioned above, every citizen has a constitutional right to  elect  and  to
be elected to either Parliament or the State legislatures.
41.    Insofar  as  the  Rajya  Sabha  and  the  Legislative  Councils   are
concerned, such rights are subject  to  comparatively  greater  restrictions
imposed by or under the Constitution.    The right to vote  at  an  election
to the Lok Sabha or the  Legislative  Assembly  can  only  be  subjected  to
restrictions specified in Article 326. It  must  be  remembered  that  under
Article 326 the authority to restrict the right to vote can be exercised  by
the ‘appropriate legislature’.   The right to contest for a seat  in  either
of the two bodies is subject  to  certain  constitutional  restrictions  and
could be restricted further only by a law made by the Parliament.

42.   The next question is – whether such  constitutional  rights  exist  in
the context of elections to the PANCHAYATS?  Having regard to the scheme  of
Part IX of the Constitution, the purpose[29] for which Part IX  came  to  be
introduced in the Constitution by way of an amendment, we  do  not  see  any
reason to take a different view.

43.   On the other hand, this Court in Javed & Others v. State of Haryana  &
Others, (2003) 8 SCC 369,  held  that  “right  to  contest  an  election  is
neither a fundamental right nor a common law right. It is a right  conferred
by a statute. At the most, in view of Part  IX  having  been  added  in  the
Constitution, a right to contest election for an office in Panchayat may  be
said to be a constitutional right …” .

44.   We need to examine contours of the two rights, i.e. the right to  vote
(to elect) and the right to contest (to  get  elected)  in  the  context  of
elections to PANCHAYATS.  Part IX of the Constitution does not  contain  any
express provision comparable to Article 326 nor does it contain any  express
provisions comparable to Article 84 and Article 173.  The  text  of  Article
326 does not cover electoral rights with respect to PANCHAYATS.   Therefore,
questions arise:
i)    Whether a non-citizen can become  a  voter  or  can  contest  and  get
elected for PANCHAYATS?

ii)   In the absence of any express  provision,  what  is  the  minimum  age
limit by which a person becomes entitled to a  constitutional  right  either
to become a voter or get elected to PANCHAYATS?

iii)   Are  there  any   constitutionally   prescribed   qualifications   or
disqualifications for the exercise of such rights?

Questions No.(i) and (ii) do not arise on the facts  of  the  present  case.
Therefore, we desist examination of these questions.

45.   In contradiction to Article 326, Constitution  does  not  contain  any
provision which stipulates that a person to  be  a  voter  at  elections  to
PANCHAYAT is required to be either (i) a citizen of India  or  (ii)  of  any
minimum age.   Similarly, in the context of right to contest an election  to
PANCHAYATS, Part  IX  is  silent  regarding  qualifications  required  of  a
candidate.   All that the Constitution prescribes  is  disqualification  for
membership of PANCHAYATS:
“243F.    Disqualifications  for  membership.  -  (1)   A  person  shall  be
disqualified for being chosen as, and for being, a member of a Panchayat –

if he is so disqualified by or under any law for the  time  being  in  force
for the purposes of elections to the Legislature  of  the  State  concerned:
Provided that no person shall be disqualified on the ground that he is  less
than twenty-five years of age, if he has  attained  the  age  of  twenty-one
years;

if he is so disqualified by or under any law made by the Legislature of  the
State.

(2)  If any question arises as to  whether  a  member  of  a  Panchayat  has
become subject to any of the disqualifications mentioned in clause (1),  the
question shall be referred for the decision of such authority  and  in  such
manner as the Legislature of a State may, by law, provide.”

46.   It appears from the above, that any person who is disqualified  by  or
under any law for the time being in force for the purposes of  elections  to
the Legislatures of the State concerned is also  disqualified  for  being  a
member of PANCHAYAT. In other  words  qualifications  and  disqualifications
relevant for membership of the Legislature are equally  made  applicable  by
reference to the membership of PANCHAYATS. Though  such  qualifications  and
disqualifications could be stipulated only by  Parliament  with  respect  to
the membership of the Legislature of a State, Article  243F  authorises  the
concerned State Legislature also to stipulate disqualifications for being  a
member of PANCHAYAT.

47.   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.

49.   It is in the abovementioned background of  the  constitutional  scheme
that questions raised in this writ petition are required to be examined.

50.   Section 173(1)[30] of THE ACT stipulates that every person whose  name
is in the “list of voters” shall be qualified “to vote at the election of  a
member for the electoral division to which such list pertains” unless he  is
otherwise disqualified.  Persons who  are  qualified  to  be  registered  as
voters and “list of voters” are dealt with under Sections 165 and  166,  the
details of which are not necessary for the present purpose.   Under  Section
173(2)[31] every person whose name is in the list of  voters  subject  to  a
further condition that he has attained the age of 21 years is  qualified  to
contest at an election to any PANCHAYAT unless such a person suffers from  a
disqualification prescribed by law.

51.   Section 175  of  THE  ACT  stipulates  that  “No  person  shall  be  a
Sarpanch[32] or a Panch[33] of a Gram Panchayat or a member of  a  Panchayat
Samiti or Zila Parishad or continue as such”, if he falls within  the  ambit
of any of the clauses of Section 175.  Section 175 reads as follows:
“Section 175. Disqualifications.—(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—

(a)   has, whether before or  after  the  commencement  of  this  Act,  been
convicted—

(i)   of an offence under the Protection of Civil Rights Act, 1955  (Act  22
of 1955 ), unless a period of five years,  or  such  lesser  period  as  the
Government  may  allow  in  any  particular  case,  has  elapsed  since  his
conviction; or

(ii)  of any other offence and been sentenced to imprisonment for  not  less
than six months, unless a period of five years, or  such  lesser  period  as
the Government may allow in any  particular  case,  has  elapsed  since  his
release; or

(aa)  has not been convicted, but charges have been  framed  in  a  criminal
case for an offence, punishable with imprisonment  for  not  less  than  ten
years;

(b)   has been adjudged by a competent court to be of unsound mind; or

(c)   has been adjudicated an insolvent and has not obtained his  discharge;
or

(d)   has been removed from any office held by  him  in  a  Gram  Panchayat,
Panchayat Samiti or Zila Parishad under any provision of this Act  or  in  a
Gram Panchayat, Panchayat Samiti or Zila Parishad  before  the  commencement
of this Act under the Punjab Gram Panchayat Act, 1952 and  Punjab  Panchayat
Samiti Act, 1961, and a period of five years has not elapsed from  the  date
of such removal, unless he has, by an order of the  Government  notified  in
the Official Gazette been relieved from  the  disqualifications  arising  on
account of such removal from office; or

(e)   has been disqualified from holding office under any provision of  this
Act and the period for which he was so disqualified has not elapsed; or

(f)   holds any salaried office or office of profit in any  Gram  Panchayat,
Panchayat Samiti, or Zila Parishad; or

(g)   has directly or indirectly, by himself or his  partner  any  share  or
interest in any work done by order of the Gram Panchayat,  Panchayat  Samiti
or Zila Parishad;

(h)   has directly or indirectly,  by  himself  or,  his  partner  share  or
interest in any transaction of money advanced or borrowed from  any  officer
or servant or any Gram Panchayat; or

(i)   fails to pay  any  arrears  of  any  kind  due  by  him  to  the  Gram
Panchayat,  Panchayat  Samiti  or  Zila  Parishad  or  any  Gram  Panchayat,
Panchayat  Samiti  or  Zila  Parishad  subordinate  thereto   or   any   sum
recoverable from him in accordance with the Chapters and provisions of  this
Act, within three months after a  special  notice  in  accordance  with  the
rules made in this behalf has been served upon him;

(j)   is servant of Government or a servant of any Local Authority; or

(k)   has voluntarily acquired the citizenship of  a  Foreign  State  or  is
under any acknowledgement of allegiance or adherence to a Foreign state; or

(l)   is disqualified under any other provision of this Act and  the  period
for which he was so disqualified has not elapsed; or

(m)   is a tenant or lessee  holding  a  lease  under  the  Gram  Panchayat,
Panchayat Samiti or Zila Parishad or is in arrears of rent of any  lease  or
tenancy held under the Gram Panchayat, Panchayat Samiti  or  Zila  Parishad;
or

(n)   is or has been during the period of one year  preceding  the  date  of
election, in unauthorised possession of land  or  other  immovable  property
belonging to the Gram Panchayat, Panchayat Samiti or Zila Parishad; or

(o)   being a Sarpanch or Panch or a member of Panchayat Samiti  or  a  Zila
Parishad has cash in hand in excess of that permitted under  the  rules  and
does not deposit the same along with interest  at  the  rate  of  twenty-one
percentum per year in pursuance  of  a  general  or  special  order  of  the
prescribed authority within the time specified by it; or

(p)   being a Sarpanch or Panch or  a  Chairman,  Vice-Chairman  or  Member,
President or Vice-President or Member of Panchayat Samiti or  Zila  Parishad
has in his custody prescribed  records  and  registers  and  other  property
belonging to, or  vested  in,  Gram  Panchayat,  Panchayat  Samiti  or  Zila
Parishad and does not handover  the  same  in  pursuance  of  a  general  or
special order of the prescribed authority within the time specified  in  the
order; or

(q)   x     x    x

(r)   admits the claim against Gram Panchayat without  proper  authorization
in this regard;

(s)   furnishes a false caste certificate at the time of filing nomination:

Provided that such disqualifications under clauses (r) and (s) shall be  for
a period of six years.

(t)   fails to pay any arrears of  any  kind  due  to  him  to  any  Primary
Agriculture Co-operative Society, District  Central  co-operative  Bank  and
District Primary co-operative Agriculture Rural Development Bank; or

(u)   fails to pay arrears of electricity bills;

(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, 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,  the  minimum
qualification shall be 5th pass; or

(w)   fails to  submit  self  declaration  to  the  effect  that  he  has  a
functional toilet at his place of residence.

Explanation 1. – A person shall not be disqualified  under  clause  (g)  for
membership of a Gram Panchayat, Panchayat Samiti or Zila Parishad by  reason
only of such person,--

(a)   having share in any joint stock company or a share or interest in  any
society registered under any law for the time being  in  force  which  shall
contract with or be employed by or on behalf of  Gram  Panchayat,  Panchayat
Samiti or Zila Parishad; or

(b)    having  a  share  or  interest  in  any  newspaper   in   which   any
advertisement relating to the affairs of a Gram Panchayat, Panchayat  Samiti
or Zila Parishad may be inserted; or

(c)   holding a debenture or being otherwise concerned in  any  loan  raised
by or on behalf of any Gram Panchayat, Panchayat Samiti  or  Zila  Parishad;
or

(d)    being  professionally  engaged  on  behalf  of  any  Gram  Panchayat,
Panchayat Samiti or Zila Parishad as a Legal Practitioner; or

(e)   having any share or interest in any lease  of  immovable  property  in
which the amount of rent has been approved by the Gram Panchayat,  Panchayat
Samiti or Zila Parishad in its own case  or  in  any  sale  or  purchase  of
immovable property or in any agreement for such lease, sale  or  purchase  ;
or

(f)   having a share  or  interest  in  the  occasional  sale  to  the  Gram
Panchayat, Panchayat Samiti or Zila Parishad of  any  article  in  which  he
regularly trades or in the purchase from the Gram Panchayat of any  article,
to a value in either case not exceeding in any year one thousand rupees.

Explanation 2. – For the purpose of clause (1)-

A person shall not be deemed to be disqualified if he has paid  the  arrears
or the sum referred to in clause (i) of this sub-section, prior to  the  day
prescribed for the nomination of candidates;

x     x     x.”


52.   By the IMPUGNED ACT  five  more  contingencies  specified  in  clauses
(aa), (t), (u), (v) and (w) have been added which render persons falling  in
the net of those contingencies disqualified from contesting elections.

53.   At the outset, we must make it clear that neither learned counsel  for
the petitioners nor other  learned  counsel  (who  were  permitted  to  make
submissions though they are not parties, having regard to the importance  of
the matter) made any specific submission regarding constitutionality of sub-
section (1)(aa) of Section 175 which prescribes that “(1)  No  person  shall
be a ….. or continue as such who   …   (aa)  has  not  been  convicted,  but
charges have been framed in a criminal case for an offence, punishable  with
imprisonment for not less than ten years”.  The  challenge  is  confined  to
clauses (t), (u), (v) and (w) of Section 175(1).

54.   We first deal with the submission of violation of Article  14  on  the
ground of arbitrariness.

55.   The petitioners argued that the  scheme  of  the  Constitution  is  to
establish a democratic, republican form of Government as proclaimed  in  the
Preamble to the Constitution and any law which  is  inconsistent  with  such
scheme is irrational and therefore ‘arbitrary’.

56.    In  support  of  the  proposition  that  the  Constitution  seeks  to
establish a democratic republic and they  are  the  basic  features  of  the
Constitution, petitioners placed  reliance  upon  His  Holiness  Kesavananda
Bharati Sripadagalvaru v. State of Kerala & Another, (1973) 4 SCC  225  para
1159 and Indira Nehru Gandhi v. Raj Narain, (1975) Supp  SCC  1,  paras  563
and 578.  There cannot be any dispute about the proposition.

57.   In  support  of  the  proposition  that  a  statute  can  be  declared
unconstitutional on the ground that it is arbitrary and therefore  violative
of Article 14, petitioners relied upon judgments of this Court  reported  in
Subramanian Swamy v. Director, Central Bureau of  Investigation  &  Another,
(2014) 8 SCC 682,  Indian Council of Legal Aid  v.  Bar  Council  of  India,
(1995) 1 SCC 732, B. Prabhakar Rao & Others v. State  of  Andhra  Pradesh  &
Others, 1985 (Supp) SCC 432 and D.S. Nakara &  Others  v.  Union  of  India,
(1983) 1 SCC 305 and certain observations made by Justice A.C. Gupta in  his
dissenting judgment in R.K. Garg v. Union of India, (1981) 4 SCC 675.

58.   In our opinion, none of the abovementioned cases is an  authority  for
the proposition that an enactment could be declared unconstitutional on  the
ground it is “arbitrary”.

59.    In  Subramanian  Swamy  case,  the  dispute   revolved   around   the
constitutionality of Section 6A of the Delhi  Special  Police  Establishment
Act 1946, which was  introduced  by  an  amendment  in  the  year  2003.  It
stipulated that the Delhi Special Police  Establishment  shall  not  conduct
any  ‘enquiry’  or  ‘investigation’  into  any  offence  falling  under  the
Prevention of Corruption  Act  1988,  alleged  to  have  been  committed  by
certain classes of employees  of  the  Central  Government  etc.   The  said
provision  was   challenged   on   the   ground   it   was   arbitrary   and
unreasonable[34] and therefore violative of Article 14.  The submission  was
resisted by the respondent (Union of  India)  on  the  ground  that  such  a
challenge is impermissible in view  of  the  decision  in  State  of  Andhra
Pradesh v. McDowell & Co., (1996) 3 SCC 709.   But  the  Constitution  Bench
eventually declared the  impugned  provision  unconstitutional  not  on  the
ground of it being arbitrary but on the  ground  it  makes  an  unreasonable
classification of an otherwise  homogenous  group  of  officers  accused  of
committing an offence under the Prevention of Corruption Act  without  there
being reasonable nexus between the classification  and  the  object  of  the
Act.[35]

60.   Coming to the Indian Council of Legal Aid & Advice  &  Others  v.  Bar
Council of India & Others, (1995) 1  SCC  732,  it  was  a  case  where  the
legality of a rule  made  by  the  Bar  Council  of  India  prohibiting  the
enrolment of persons who completed the age of 45 years was  in  issue.   The
rule was challenged on two grounds.  Firstly, that the rule was  beyond  the
competence of the Bar Council of India as the Advocates  Act  1961  did  not
authorise the Bar Council of India to  prescribe  an  upper  age  limit  for
enrolment. Secondly, that  the  rule  is  discriminatory  and  thirdly,  the
fixation of upper age limit of 45 years is arbitrary.

61.   On an examination of the scheme of the Advocates Act, this Court  came
to a conclusion that the impugned rule was  beyond the rule making power  of
the Bar Council of India and, therefore, ultra vires the Act.    This  Court
also held that the rule was “unreasonable and arbitrary”[36].

62.   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.

63.   Now we shall examine Prabhakar Rao case.
The facts of the case are that the age of  superannuation  of  employees  of
the State of Andhra Pradesh was 55 till the year  1979.   In  1979,  it  was
enhanced to 58 years.  The Government of Andhra Pradesh  in  February,  1983
decided to roll back  the  age  of  superannuation  to  55  years  and  took
appropriate legal steps which eventually culminated in passing of Act 23  of
1984.   The said Act came to be amended  by  Ordinance  24  of  1984,  again
enhancing the age of superannuation to 58 years which  was  followed  up  by
Act 3 of 1985.   While enhancing the age of superannuation  to  58  for  the
second time by the above-mentioned Ordinance 24 of 1984 and Act 3  of  1985,
benefit  of  the  enhanced  age  of  superannuation  was  given  to  certain
employees  who  had  retired  in  the  interregnum  between  20.2.1983   and
23.08.1984; while others were  denied  such  benefit.    Prabhakar  Rao  and
others who were denied the benefit challenged the  legislation.  This  Court
placing reliance on  D.S.  Nakara  Case  concluded  that  the  impugned  Act
insofar as it denied the benefit to some of the  employees  who  retired  in
the interregnum between two dates  mentioned  above  was  unsustainable  and
held as follows:-
“The principle of  Nakara  clearly  applies.   The  division  of  Government
employees into two classes, those who had already attained the age of 55  on
February 28, 1983 and those who attained the age of 55 between February  28,
1983 and August 23, 1984 on the one hand, and the  rest  on  the  other  and
denying the benefit of the higher age of superannuation to the former  class
is as arbitrary as the division of Government employees entitled to  pension
in the past and in the future into two classes,  that  is,  those  that  had
retired prior to a specified date and those that  retired  or  would  retire
after the specified date and confining  the  benefits  of  the  new  pension
rules to the latter class only. …” (Para 20)

The Bench also observed:-
“Now if  all  affected  employees  hit  by  the  reduction  of  the  age  of
superannuation formed a class and no sooner than the age  of  superannuation
was reduced, it was realized  that  injustice  had  been  done  and  it  was
decided that steps should be taken to undo what had been done, there was  no
reason to pick out a class of persons who deserved the  same  treatment  and
exclude from the benefits of the beneficent treatment  by  classifying  them
as a separate group merely because of  the  delay  in  taking  the  remedial
action already decided upon.   We do not doubt that the Judge’s  friend  and
counselor, “the common man”, if asked, will unhesitatingly respond  that  it
would be plainly unfair to make any such classification.    The  commonsense
response that may be expected from the  common  man,  untrammeled  by  legal
lore and learning, should always help the Judge  in  deciding  questions  of
fairness, arbitrariness etc.   Viewed from whatever  angle,  to  our  minds,
the action of the Government and the  provisions  of  the  legislation  were
plainly arbitrary and discriminatory.” (Para 20)

64.   Petitioners placed reliance on the last sentence which said  that  the
“action of the  Government  and  the  provisions  of  the  legislation  were
plainly arbitrary and discriminatory” in support of  their  submission  that
an Act  could  be  declared  unconstitutional  on  the  ground  that  it  is
arbitrary.

65.   We are of the opinion that Prabhakar Rao case is not an  authority  on
the proposition advanced by the petitioners.   The ratio  of  Prabhakar  Rao
case is that there was an unreasonable classification between the  employees
of the State of Andhra Pradesh on the basis of the date of  their  attaining
the age of superannuation.

66.   Observations by Justice Gupta in R.K. Garg Case[37] no doubt  indicate
that the doctrine  propounded by this Court in  E.P.  Royappa  v.  State  of
Tamil Nadu & Another[38] and Maneka Gandhi v. Union of India  &  Another[39]
that arbitrariness is antithetical to the  “concept  of  equality”  is  also
relevant while  examining  the  constitutionality  of  a  statute  but  such
observations are a part  of  the  dissenting  judgment  and  not  the  ratio
decidendi of the judgment.

67.   Learned Attorney General heavily relied upon para 43 of the  State  of
Andhra Pradesh & Others v. McDowell & Co., (1996)  3  SCC  709  which  dealt
with the question of declaring a statute unconstitutional on the  ground  it
is arbitrary.
“43. Sri Rohinton Nariman submitted that  inasmuch  as  a  large  number  of
persons falling within  the  exempted  categories  are  allowed  to  consume
intoxicating liquors in the State of Andhra Pradesh, the  total  prohibition
of manufacture and production  of  these  liquors  is  "arbitrary"  and  the
amending Act is liable to be struck down on this ground alone.  Support  for
this proposition is sought from a judgment of this Court in State  of  Tamil
Nadu & Ors. v. Ananthi Ammal & Others [(1995) 1 SCC 519].  Before,  however,
we refer to the holding in the said decision, it  would  be  appropriate  to
remind ourselves of certain  basic  propositions  in  this  behalf.  In  the
United Kingdom, Parliament is supreme. There are  no  limitations  upon  the
power of Parliament. No Court in the United Kingdom can strike down  an  Act
made by Parliament on any ground. As against  this,  the  United  States  of
America has a Federal Constitution where the power of the Congress  and  the
State Legislatures to make laws is limited in two ways, viz.,  the  division
of legislative powers between the States and the federal government and  the
fundamental rights (Bill of Rights) incorporated  in  the  Constitution.  In
India, the position is similar to the United States of  America.  The  power
of the Parliament or for that matter, the State Legislatures  is  restricted
in two ways. A law made by the Parliament or the Legislature can  be  struck
down by courts on two grounds and two  grounds  alone,  viz.,  (1)  lack  of
legislative competence and (2) violation of any of  the  fundamental  rights
guaranteed in Part-III of the Constitution or of  any  other  constitutional
provision. There is no third  ground.  We  do  not  wish  to  enter  into  a
discussion of the concepts of procedural  unreasonableness  and  substantive
unreasonableness - concepts inspired  by  the  decisions  of  United  States
Supreme Court. Even in U.S.A., these concepts and in particular the  concept
of substantive due process have proved to be of  unending  controversy,  the
latest  thinking  tending  towards  a  severe  curtailment  of  this  ground
(substantive  due  process).  The  main  criticism  against  the  ground  of
substantive due process being  that  it  seeks  to  set  up  the  courts  as
arbiters of the wisdom of the Legislature in enacting the  particular  piece
of legislation. It is enough for us to say  that  by  whatever  name  it  is
characterized, the ground of invalidation must fall within the four  corners
of the two grounds mentioned above. In other words,  say,  if  an  enactment
challenged as violative of Article 14, it can be struck down only if  it  is
found that it is violative of the equality  clause/equal  protection  clause
enshrined therein. Similarly, if an enactment is challenged as violative  of
any of the fundamental rights guaranteed by clauses (a) to  (g)  of  Article
19(1), it can be struck down only if it is found not saved  by  any  of  the
clauses (2) to (6) of Article 19 and so on.   No  enactment  can  be  struck
down by just saying that it  is  arbitrary[40]*  or  unreasonable.  Some  or
other constitutional infirmity has to be found before invalidating  an  Act.
An enactment cannot be struck down  on  the  ground  that  Court  thinks  it
unjustified. The Parliament and the Legislatures, composed as  they  are  of
the representatives of the people, are supposed to know and be aware of  the
needs of the people and what is good and bad for them. The Court cannot  sit
in judgment over their wisdom. In this connection, it should  be  remembered
that even in the case  of  administrative  action,  the  scope  of  judicial
review is limited to three grounds, viz., (i)  unreasonableness,  which  can
more appropriately  be  called  irrationality,  (ii)  illegality  and  (iii)
procedural impropriety [See Council of Civil Services Union v. Minister  for
Civil Services (1985 A.C.374) which  decision  has  been  accepted  by  this
Court as well]. The applicability of doctrine  of  proportionality  even  in
administrative law sphere is yet a debatable issue.  [See  the  opinions  of
Lords Lowry and Ackner in R. v. Secretary of State for Home Department ex  p
Brind, [1991 AC 696 at 766-67 and  762].  It  would  be  rather  odd  if  an
enactment were to be struck down by applying the  said  principle  when  its
applicability even in administrative law sphere is  not  fully  and  finally
settled. It  is  one  thing  to  say  that  a  restriction  imposed  upon  a
fundamental right can be struck down if it  is  disproportionate,  excessive
or unreasonable and quite another thing to say that  the  Court  can  strike
down enactment if it thinks it  unreasonable,  unnecessary  or  unwarranted.
Now, coming to the decision in Ananthi Ammal, we are of the opinion that  it
does not lay down a  different  proposition.  It  was  an  appeal  from  the
decision of the Madras High Court striking down the Tamil  Nadu  Acquisition
of Land for Harijan Welfare Schemes Acts 1978 as violative of  Articles  14,
19 and 300A of the Constitution. On a review of the provisions of  the  Act,
this Court found that  it  provided  a  procedure  which  was  substantially
unfair to the owners of the land as compared to the procedure prescribed  by
the Land Acquisition Act, insofar as Section 11  of  the  Act  provided  for
payment of compensation in instalments if it exceeded Rupees  two  thousand.
After noticing the several features of the Act including the  one  mentioned
above, this Court observed:

"7. When a statute is impugned under  Article  14  what  the  court  has  to
decide is whether the statute is so arbitrary or unreasonable that  it  must
be struck down. At best, a statute upon a similar subject which derives  its
authority from another source can be referred to,  if  its  provisions  have
been held to be reasonable or have stood the test  of  time,  only  for  the
purpose of indicating what may be said to be reasonable in the  context.  We
proceed to examine the provisions of the said Act upon this basis.

44.   It is this paragraph which is strongly relied upon  by  Shri  Nariman.
We are, however, of the opinion that the observations in the said  paragraph
must be understood in the totality of the decision.   The use  of  the  word
‘arbitrary’ in para 7 was used in the sense of being discriminatory, as  the
reading of the very paragraph in its entirety  discloses.    The  provisions
of the Tamil Nadu Act were  contrasted  with  the  provisions  of  the  Land
Acquisition Act and ultimately it was found that Section 11  insofar  as  it
provided for payment of  compensation  in  instalments  was  invalid.    The
ground of invalidation is  clearly  one  of  discrimination.    It  must  be
remembered that an Act which is discriminatory is liable to  be  labeled  as
arbitrary.   It is in this sense that the expression  ‘arbitrary’  was  used
in para 7.”


68.   From the above extract it is clear that courts in this country do  not
undertake the task of declaring a piece of legislation  unconstitutional  on
the ground that the  legislation  is  “arbitrary”  since  such  an  exercise
implies  a  value  judgment  and  courts  do  not  examine  the  wisdom   of
legislative choices unless the legislation is otherwise  violative  of  some
specific provision of the Constitution.  To undertake  such  an  examination
would amount  to  virtually  importing  the  doctrine  of  “substantive  due
process” employed by the American Supreme Court at an earlier point of  time
while examining the constitutionality of  Indian  legislation.   As  pointed
out in the above extract, even in United States the  doctrine  is  currently
of doubtful legitimacy.   This court long back in A.S. Krishna &  Others  v.
State of Madras, AIR 1957 SC 297 declared that the doctrine of  due  process
has no application under the Indian  Constitution[41].  As  pointed  out  by
Frankfurter, J., arbitrariness became a mantra.
69.   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 is ‘arbitrary’.

70.   We shall examine the next facet of the  challenge  i.e.  each  of  the
four impugned clauses have created a class of persons who were  eligible  to
contest  the  elections  to  Panchayats  subject  to  their  satisfying  the
requirements of law as  it  existed  prior  to  the  IMPUGNED  ACT  but  are
rendered now ineligible because they  fail  to  satisfy  one  of  the  other
conditions prescribed under clauses (t), (u), (v) and (w) of Section  175(1)
of the Act. The case of  the  petitioners  is  that  such  a  classification
created  by  each  of  the  impugned  clauses  amount  to  an   unreasonable
classification among people who form one class but  for  the  IMPUGNED  ACT,
without any  intelligible  difference  between  the  two  classes  and  such
classification has no nexus with the object sought to be achieved.

71.   Learned Attorney General  submitted  that  the  object  sought  to  be
achieved is to have “model representatives for  local  self  government  for
better administrative efficiency which  is  the  sole  object  of  the  73rd
constitutional amendment”.

72.   In the light of the above submissions, we  shall  now  deal  with  the
challenge to each of the abovementioned four clauses.

73.    Clause  (v)  prescribes  a  minimum  educational   qualification   of
matriculation[42] for anybody seeking to contest an election to any  one  of
the offices mentioned in the opening clause of  Section  175(1).    However,
the minimum educational  qualification  is  lowered  insofar  as  candidates
belonging to scheduled castes and women are concerned  to  that  of  “middle
pass” whereas a further relaxation is granted in  favour  of  the  scheduled
caste woman insofar as they seek to contest for the office of Panch.

74.   It is argued that stipulation  of  minimum  educational  qualification
would have the effect of disqualifying more than 50% of  persons  who  would
have otherwise been qualified to contest elections to PANCHAYATS  under  the
law prior to  the  IMPUGNED  ACT.   It  is  further  submitted  that  poorer
sections of the society, women and scheduled castes would be  worst  hit  by
the impugned stipulation as a majority of them  are  the  most  unlikely  to
possess the minimum educational qualification  prescribed  in  the  IMPUGNED
ACT.
75.   On the other hand, it is stated in the affidavit filed  on  behalf  of
respondent as follows:
“10.  That as  per  the  National  Population  Register  2011,  total  rural
population in the State is 1.65 cr out of which 96 lac are  above  20  years
of age.  Further 57% of such population, who are over 20 years  of  age,  is
eligible   to   contest   even   after   the   introduction   of    impugned
disqualification in respect of having minimum education qualification.”

76.    According  to  the  Annexure-5  (to  the  said   affidavit   of   the
respondents) the details of the educational  qualification  of  the  persons
above 20 years of age (under Section  173(2)[43]  of  THE  ACT  the  minimum
qualifying age for contesting any PANCHAYAT election is  21  years)  are  as
follows:
                     NATIONAL POPULATION REGISTER – 2011
     Number of persons above 20 years of age vis-à-vis their educational
                                qualification
|             |Total Population            |SC Population               |


   |Total | |Males | |Females | |Total | |Males | |Females | | |Illiterate
|3660892 |38% |1211555 |24% |2449337 |53% |980908 |48% |367755 |34%  |613153
|63% | |Unspecified  Literate  &  below  primary  |494348  |5%  |291058  |6%
|203290 |4% |125442 |6% |77233 |7% |48209  |5%  |  |Primary/Middle/Matric  &
above |5458464 |57% |3489821 |70% |1968643 |43% |949306  |46%  |631180  |59%
|318126 |32% | |Total Population above 20 years of age |9613704  |  |4992434
| |4621270 | |2055656 | |1076168 | |979488 | | |Total Rural Population
|16509359 | |8774006 | |7735353 | |3720109 | |1973294 | |1746815  |  |  |77.
It can be seen from the above extract that the  total  rural  population[44]
of the State of Haryana is 1.65 crores approximately.  (All  figures  to  be
mentioned hereinafter are ‘approximate’)

78.   Of the 1.65 crore rural population, 96 lakhs are in the age  group  of
20 years and above.  In other words,  dehors  the  IMPUGNED  ACT,  96  lakhs
would be eligible to contest elections  to  various  PANCHAYATS  subject  of
course to other qualifications and disqualifications prescribed by law.   Of
the 96 lakhs, 36 lakhs are illiterate and about 5  lakhs  are  literate  but
below primary level of education.  The remaining 54.5  lakhs  are  educated,
though the chart does not clearly indicate the exact break-up of  the  above
54.5 lakhs and their  respective  educational  qualifications  i.e.  whether
they are educated up to primary or middle or matriculation level and  above.
 The said 54.5  lakhs  constitute  57%  of  the  rural  population  who  are
otherwise eligible to contest PANCHAYATS election by virtue of  their  being
in the age group  of  20  years  and  above.   Of  the  96  lakhs  of  rural
population, 50 lakhs are men and 46 lakhs are  women.   Of  them,  35  lakhs
men, 20 lakhs women are literate above primary level, though exact  break-up
of educational qualification is not available.  Even if we  assume  all  the
20 lakhs women are matriculate  and,  therefore,  eligible  to  contest  any
election under  THE  ACT,  they  would  contribute  less  than  50%  of  the
otherwise eligible women.

79.   The abovementioned figures  include  all  classes  of  the  population
including scheduled caste.

80.   Coming to the statistics regarding  scheduled  caste  population,  the
total scheduled caste population of Haryana, it  appears,  is  21  lakhs  of
which 11 lakhs are men and 10 lakhs are women of which only  6.3  lakhs  men
and 3.1 lakhs women constituting 59%  and  32%  respectively  are  educated.
In other words, 68% of the scheduled caste women and 41%  of  the  scheduled
caste men would be ineligible to contest PANCHAYAT elections.

81.   An analysis of the data in the above  table  indicates  that  a  large
number of women (more than 50% of the otherwise eligible women)  in  general
and scheduled caste women in particular would  be  disqualified  to  contest
PANCHAYAT elections by virtue of the IMPUGNED  ACT.   Even  with  regard  to
men, the data is not very clear as to how many of the literate men would  be
qualified to  contest  the  elections  for  PANCHAYATS  at  various  levels.
Because for  men  belonging  to  general  category  (39  lakhs),  a  uniform
requirement of matriculation is prescribed in respect  of  posts  for  which
they seek to contest.  Coming to men candidates belonging to  the  scheduled
caste, a uniform academic qualification  of  “middle  pass”  is  prescribed.
How many men under these categories would be qualified  to  contest  is  not
clear,  as  the  exact   data   regarding   their   respective   educational
qualifications is not available on the record.

82.   Coming to scheduled caste women and  the  proviso  to  clause  (v)  of
Section 175(1), though educational qualification required is  5th  (primary)
pass, such a qualification only entitles them to  contest  an  election  for
the post of PANCH of a village  but  to  no  other  post.  Therefore,  if  a
scheduled caste woman desires to contest either to the post of  SARPANCH  or
any other post at ‘Samiti’ or District level, she  must  be  “middle  pass”.
The exact number of scheduled caste women who possess that qualification  is
not available on record.  Even assuming for the sake of  argument  that  all
educated scheduled caste women indicated in the Annexure-5 are middle  pass,
they only constitute 32% of the scheduled caste women.   The  remaining  68%
of the women would be disqualified for contesting  any  election  under  the
IMPUGNED ACT.

83.   The question is - whether the impugned provision which disqualifies  a
large number of voter population and  denies  their  right  to  contest  for
various  offices   under   THE   ACT   is   discriminatory   and   therefore
constitutionally invalid for being violative of Article 14.

84.   The learned Attorney General referred to Section 21 of THE  ACT  which
catalogues the functions and duties  of  Gram  Panchayat  falling  under  30
broad heads.  To demonstrate the range of those heads, he pointed  out  some
of the duties of a Gram Panchayat[45] and submitted that  in  the  light  of
such responsibilities to be  discharged  by  members  elected  to  the  Gram
Panchayat, the legislature in its wisdom  thought  it  fit  to  prescribe  a
minimum educational qualification and such a prescription cannot be said  to
be making an unreasonable classification among  the  voters  attracting  the
wrath of Article 14.  Several  judgments  of  this  Court  are  referred  to
emphasise the importance of education[46].

85.   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.   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.  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.   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.

86.   The only question that remains  is  whether  such  a  provision  which
disqualifies a large number of persons who would otherwise  be  eligible  to
contest the elections is unconstitutional.   We have  already  examined  the
scheme of the Constitution and recorded that every person  who  is  entitled
to vote is not automatically entitled to contest for every office under  the
Constitution. Constitution  itself  imposes  limitations  on  the  right  to
contest depending upon the office.   It also authorises the prescription  of
further  disqualifications/qualification  with  respect  to  the  right   to
contest.   No doubt such prescriptions render  one  or  the  other  or  some
class or the other of otherwise  eligible  voters,  ineligible  to  contest.
When the Constitution stipulates[47] undischarged insolvents or  persons  of
unsound mind as ineligible to contest to Parliament and Legislatures of  the
States,  it  certainly  disqualifies  some  citizens  to  contest  the  said
elections.   May be, such persons are  small  in  number.  Question  is  not
their number but a constitutional assessment about  suitability  of  persons
belonging to those classes to hold constitutional offices.

87.   If it is constitutionally permissible  to  debar  certain  classes  of
people  from  seeking  to  occupy  the  constitutional  offices,   numerical
dimension of such classes, in our opinion  should  make  no  difference  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.
 We, therefore, reject the challenge to clause (v) to Section 175(1).

88.   We shall now deal with  the  challenge  to  clauses  (t)  and  (v)  of
Section 175(1) of THE ACT.  These two clauses disqualify persons who are  in
arrears of amounts to cooperative bodies specified in  clause  (t)  and  the
electricity bills.  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.

89.   Constitution makers recognised  indebtedness  as  a  factor  which  is
incompatible in certain circumstances with the  right  to  hold  an  elected
office  under  the  Constitution.    Article   102(1)(c)[48]   and   Article
191(1)(c)[49] declare that an undischarged insolvent  is  disqualified  from
becoming a Member of Parliament or the State Legislature respectively.    By
virtue  of  the  operation  of  Article  58(1)(c)  and  66(1)(c),  the  same
disqualification  extends  even  to  the  seekers  of  the  offices  of  the
President and the Vice-President.

90.   The expression “insolvency” is not defined under the Constitution.  In
the absence of a definition, the said expression must be understood to  mean
a person who is considered insolvent  by  or  under  any  law  made  by  the
competent legislature.  Sections 6[50] of  the  Provincial  Insolvency  Act,
1920 and Section 9[51] of  the  Presidency  –  Towns  Insolvency  Act,  1909
declare various activities which constitute acts of insolvency.   It  is  an
aspect of indebtedness - a  specified  category  of  indebtedness.   If  the
Constitution makers  considered  that  people  who  are  insolvent  are  not
eligible to seek various elected public offices, we do not  understand  what
could be the 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.   It must be remembered that 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 Entry 9[52],  List  III  of  the  Seventh  Schedule  to  the
Constitution.

91.    The  submission  is  that  rural  India  is  heavily   indebted   and
particularly  agriculturists  who  constitute  a  majority  of   our   rural
population  are  deeply  indebted  and  reportedly   a   large   number   of
agriculturists have been committing suicides as they are not  able  to  bear
the burden of indebtedness.  Therefore, prescriptions under clauses (t)  and
(v) of Section 175(1) of the Act is an  arbitrary  prescription  creating  a
class of persons who would become ineligible to contest Panchayat  elections
and such  classification  has  no  rational  nexus  to  the  object  of  the
Panchayati Raj Act  whose  constitutional  goal  is  to  empower  the  rural
population by enabling them to play a role in the  decision  making  process
of the units of local self government, is the contention.

92.   No doubt that rural India, particularly  people  in  the  agricultural
sector suffer the problem of indebtedness.  The reasons are many and  it  is
beyond the scope of this judgment to enquire into the reasons.  It  is  also
a fact that there have been cases in various  parts  of  the  country  where
people reportedly commit suicides unable to escape the debt trap.   But,  it
is  the  submission  of  the  respondents  that  such  incidents  are   very
negligible in the State of Haryana as the agricultural sector of Haryana  is
relatively more prosperous compared to certain other parts of  the  country.
 We do not wish to examine the statistical data in this regard nor  much  of
it is available on record.  In our view, such an enquiry is  irrelevant  for
deciding the constitutionality of the impugned provision.  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  can  certainly  take  judicial  notice  of  the  fact  that
elections at any level in this country  are  expensive  affairs.   For  that
matter, not only in this country, in any other  country  as  well  they  are
expensive affairs.  In such a case the  possibility  of  a  deeply  indebted
person seeking to contest elections should normally be rare as it  would  be
beyond  the  economic  capacity  of  such  persons.   In  our  opinion,  the
challenge is more theoretical than real.  Assuming for the sake of  argument
that somebody who is so 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, nothing in law stops such an aspirant  from  making
an  appropriate  arrangement  for  clearance  of  the  arrears  and  contest
elections.  At this stage,  an  incidental  submission  is  required  to  be
examined.  It is submitted that there could be a genuine  dispute  regarding
the liability falling under the clauses (t) and (v) and therefore  it  would
be unjust to exclude such persons from the electoral process even before  an
appropriate adjudication.  Justness of such a situation  is  once  again  in
the realm of the wisdom of the legislation.  We do not sit in  the  judgment
over the same.  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.  We  do  not  see  any
substance in the challenge to clauses (t) and (v) of Section 175(1)  of  the
Act.

93.   Clause (w) disqualifies a person from contesting an  election  to  the
Panchayat if such a  person  has  no  functional  toilet  at  his  place  of
residence.  Once again the submission on behalf of the petitioners  is  that
a large number of rural population simply cannot afford to have a toilet  at
their residence as it is  beyond  their  economic  means.   To  render  them
disqualified for contesting elections to the PANCHAYATS would be to make  an
unreasonable  classification  of  otherwise  eligible  persons  to   contest
elections to PANCHAYAT and, therefore, discriminatory.

94.   It is submitted on behalf of respondents that the  submission  of  the
petitioner is without any factual  basis.   According  to  statistical  data
available with the State, there are approximately 8.5  lakhs  house  holders
classified as families falling below poverty line  (BPL)  in  the  State  of
Haryana.  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[53].  In  the  initial  days  of
such a scheme Rs.650/- was given by the State and  from  time  to  time  the
amount was revised and at present Rs.12000/- is provided  by  the  State  to
any person desirous of constructing a toilet.  As  per  the  data  available
with the State, of the abovementioned 8.5 lakhs  households,  classified  to
be below the poverty line, approximately 7.2 lakhs  households  had  availed
the benefit of the above scheme.  Therefore, 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.   It
is very  forcefully  submitted  by  the  learned  Attorney  General  that  a
salutary  provision  designed  as  a  step  for  eliminating  the  unhealthy
practice  of  rural  India  of  defecating  in  public,  ought  not  to   be
invalidated.

95.   It is a notorious fact that the Indian[54] 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.


96.   For the  above-mentioned  reasons,  we  see  no  merit  in  this  writ
petition, and the same is dismissed.

                                                             ….………………………….J.
                                                     (J. Chelameswar)



                                                             …….……………………….J.
                                        (Abhay Manohar Sapre)

New Delhi;
December 10, 2015
                                                               REPORTABLE  [
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                          WRIT PETITION No.671 OF 2015


Rajbala & Ors.                          …..….Petitioner(s)

                             VERSUS

State of Haryana & Others         ……Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1.     I have had  the  advantage  of  going  through  the  elaborate,  well
considered and scholarly draft judgement proposed  by  my  esteemed  brother
Jasti Chelmeswar J. I entirely agree with the reasoning and the  conclusion,
which  my  erudite  brother  has  drawn,  which  are  based  on   remarkably
articulate process of  reasoning.  However,  having  regard  to  the  issues
involved which were ably argued by learned counsel appearing in the case,  I
wish to add few lines of concurrence.
2.    While examining the question  of  constitutionality  of  the  impugned
amendment made under Section 175 (1) of the Haryana Panchayati Raj Act  (for
short “the Act”),  which  are  under  attack  in  this  writ  petition,  the
question arose regarding the true nature of the two rights of the citizen  -
"Right to Vote" and "Right to  Contest"  viz-  whether  they  are  statutory
right or constitutional right?
3.    A three Judge Bench in PUCL vs. Union of  India  [(2003)  4  SCC  399]
examined the question regarding nature of  "Right  to  Vote".   The  learned
Judge P.V. Reddi,  in his separate opinion, which was concurred  by  Justice
D.M. Dharmadhikari, examined this question in great detail  and  in  express
terms, answered it holding that the "Right  to  Vote"  is  a  constitutional
right but not merely a statutory right. We are bound by this view  taken  by
a three Judge Bench while deciding this question in this writ petition.
4.    Similarly, another three Judge Bench in Javed  vs.  State  of  Haryana
[(2003) 8 SCC 369] examined the question regarding the nature of  "Right  to
Contest" while examining the constitutional validity of  certain  provisions
of The Act. The learned Judge  R.C.  Lahoti   (as  his  Lordship  then  was)
speaking for the Bench held that right to contest an election is  neither  a
Fundamental Right nor a common right. It is a right  conferred  by  statute.
His Lordship went on to hold that "at the most, 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 be a constitutional right. We  are  bound
by this view taken by a three Judge Bench while deciding  this  question  in
this writ petition.
5.    In the light of aforementioned two  authoritative  pronouncements,  we
are of the considered opinion that both the rights namely  "Right  to  Vote"
and "Right to Contest" are constitutional rights of the citizen.
6.    Indeed, my learned brother rightly took note  of  the  few  decisions,
which had while deciding the main questions involved  in  those  cases  also
incidentally made some observations on these two issues, which we feel  were
not in conformity  with  the  law,  laid  down  in  the  aforementioned  two
decisions.
7.    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.
In my opinion, 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.
8.     In  fact,  keeping  in   view   the   powers,   authority   and   the
responsibilities of Panchayats as specified in Article  243-G  so  also  the
powers given to Panchayats to impose taxes and utilization of funds  of  the
Panchayats as specified in Article 243-H, 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.   It
is the legislative wisdom to  decide  as  to  what  should  be  the  minimum
qualifications, which should be provided in the Act.
9.    No one can dispute that education is must for both men  and  women  as
both together make a healthy and educated society.  It is an essential  tool
for a bright future and plays an  important  role  in  the  development  and
progress of the country.

10.   In my view, therefore, Section 175 (v) of the Act is intra  vires  the
Constitution and is thus constitutionally valid.
11.   Now coming to the  question  regarding  constitutionality  of  Section
175(w) of the Act, which provides that if a person has no functional  toilet
at his place of residence, he/she is disqualified to contest  the  election.
In my view, this provision too has reasonable nexus and does not offend  any
provision of the Constitution.
12.   Indeed, there are no grounds much less sustainable  grounds  available
to the  petitioners  to  question  the  validity  of  this  provision.  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.   Moreover,  the  State
having provided adequate financial assistance  to  those  who  do  not  have
toilet facility for  construction  of  toilet,  there  arise  no  ground  to
challenge this provision as being unreasonable in any  manner.   Since  this
issue has already  been  elaborately  dealt  with  by  my  learned  brother,
therefore, I do not wish to add anything more to it.
13.   In the light of the foregoing  discussion  agreeing  with  my  learned
brother, I also hold that Section 175 (v) is intra  vires  the  Constitution
and is thus constitutionally valid.
14.   In my view, therefore, the writ petition deserves to be dismissed  and
is accordingly dismissed. As a consequence, interim order stands vacated.


                       ..……..................................J.
                                     [ABHAY MANOHAR SAPRE]    New Delhi;
      December 10, 2015.
-----------------------
[1]    Article 243B. Constitution of Panchayats
      (1) There 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
[2]    Article 243(d). “Panchayat” means an institution  (by  whatever  name
called) of self- government constituted under article 243B,  for  the  rural
areas;
[3]    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
no longer.
      (2) No 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 be completed-
      (a) before 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.
[4]     See Footnote 1
[5]    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.

[6]    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.
[7]    Initially, an ordinance known as “Haryana Panchayat  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.

[8]    “That the Respondents have passed the impugned Act  and  Notification
without any consideration, regard or appreciation  for  the  empirical  data
pertaining to the number of people that would be prevented  from  contesting
Panchayati Raj elections by its  actions.   That  the  Respondents’  actions
have the effect of disqualifying 56.80% of the population who would need  to
be matriculation pass (69,86,197) and 79.76% of  the  population  who  would
need to be middle-pass (10,83,052), in order to contest elections.  That  by
its actions, the Respondents have prevented an overwhelming majority of  the
population from  contesting  elections,  in  contravention  of  Article  14,
without any regard for Constitutional principles.” [See: Ground ‘G’  of  the
Petition]
[9]    “no reasonable nexus between the impugned classifications set out  in
the impugned Act, and the  object  of  the  Act.   That  the  imposition  of
disqualifications on the grounds laid down by the impugned Act are  entirely
irrelevant to, and have no bearing whatsoever on the  ability  of  potential
candidates  to  effectively  discharge  their  duties  and   perform   their
functions as members/heads of Panchayati  Raj  institutions.”  [See:  Ground
‘A’ of the Petition]

[10]   Maru Ram v. Union of India & Others, (1981) 1 SCC 107
[11]    In Re: The Kerala Education Bill, 1957,  (1959) SCR 995
[12]   State of A.P. & Others v. Mcdowell & Co. & Others, (1996) 3 SCC 709
[See para 43]
[13]   Para 131.  With these words, I agree with Conclusions (A) to  (E)  in
the opinion of Brother Shah, J. and Conclusions (1),  (2),  (4),  (5),  (6),
(7) and (9) in the opinion of Brother P.V. Reddi, J.
[14]    Para 101.  In my opinion, therefore, subject to the  fulfillment  of
the various conditions stipulated in the Constitution or by  an  appropriate
law made in that behalf, 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—the  “straight  conclusion”  of  Mohinder
Singh Gill v. Chief Election Commissioner, (1978) 1  SCC  405,  “that  every
Indian  has  a  right  to  elect  and  be   elected—subject   to   statutory
regulation”, which rights can be  curtailed  only  by  a  law  made  by  the
appropriate legislation, that too on grounds  specified  under  Article  326
only.

            For complete discussion - see paras 86 to 104.
[15]
      [16]  Para 57.  All these petitions filed either under Article  32  or
under Article 136 raise certain common and substantial questions of  law  as
to the  interpretation  of  the  Constitution.   The  lis,  essentially,  is
between the Election Commission of India, a  creature  of  the  Constitution
under Article 324, on the  one  hand  and  various  bodies  claiming  to  be
political parties and some of their functionaries, on the other  hand.   The
essence of the dispute is whether a political  party  is  entitled  for  the
allotment of an election symbol on a permanent  basis  irrespective  of  its
participation and performance judged by the vote share it commanded  at  any
election.
[17]    Para 12.  However, the petitioners raised strong objections  against
the other aspects of the reservation policy contemplated under Articles 243-
D and 243-T.  Initially, they had  assailed  the  reservation  of  seats  in
favour of women, which has been enabled by Articles 243-D(2)  and  (3)  with
respect to rural local  bodies,  and  by  Articles  243-T(2)  and  (3)  with
respect to urban local  bodies.    However,  this  challenge  was  given  up
during the course of the arguments before this Court and the thrust  of  the
petitioner’s arguments was directed towards the following two aspects:
      Firstly, objections were raised against Article 243-D(6)  and  Article
243-T(6) since they enable reservations of seats and  chairperson  posts  in
favour of backward classes, without any guidance on how  to  identify  these
beneficiaries and the quantum of reservation.
      Secondly, it was argued that the reservation of chairperson  posts  in
the  manner  contemplated  under   Articles   243-D(4)   and   243-T(4)   is
unconstitutional,   irrespective   of   whether   these   reservations   are
implemented  on  a  rotational  basis  and  irrespective  of   whether   the
beneficiaries are SCs, STs and women.  The objection  was  directed  against
the very principle of reserving chairperson posts in elected local bodies.
[18]    See Para 13 of K. Krishna Murthy case
[19]   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 and  non-discrimination  required  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 local self-government. We do not  agree  with
this contention.
           Para 80. In this case, we are dealing with an affirmative  action
measure and hence the test of proportionality  is  a  far  more  appropriate
standard for exercising judicial  review.  It  cannot  be  denied  that  the
reservation of chairperson posts in favour of candidates  belonging  to  the
Scheduled Castes, Scheduled Tribes and women does  restrict  the  rights  of
political participation of persons  from  the  unreserved  categories  to  a
certain extent. However, we feel that the test of reasonable  classification
is met in view of the legitimate governmental objective of safeguarding  the
interests of weaker sections by ensuring their  adequate  representation  as
well as empowerment in local self-government institutions. The position  has
been eloquently explained in the respondents’ submissions,  wherein  it  has
been stated that “the asymmetries of  power  require  that  the  chairperson
should belong to the disadvantaged community so  that  the  agenda  of  such
panchayats is not  hijacked  for  majoritarian  reasons”.  (Cited  from  the
submissions on behalf of the State of Bihar, p. 49.)
[20]   Para 2. Democracy is a concept,  a  political  philosophy,  an  ideal
practised by many nations culturally  advanced  and  politically  mature  by
resorting to governance by representatives of the  people  elected  directly
or  indirectly.  But  electing  representatives  to  govern  is  neither   a
‘fundamental right’ nor a ‘common law right’ but a special right created  by
the statutes, or a ‘political right’ or ‘privilege’  and  not  a  ‘natural’,
‘absolute’ or ‘vested right’. ‘Concepts familiar to common  law  and  equity
must remain strangers to election law unless  statutorily  embodied.’  Right
to remove an elected representative, too, must stem out of  the  statute  as
‘in the absence of a constitutional restriction it is within the power of  a
legislature to enact a law for the recall of  officers’.  Its  existence  or
validity can be decided on the provision of the Act and not, as a matter  of
policy.
[21]    Introduced Part IX-A of the Constitution dealing with
Municipalities w.e.f. 1.6.1993
[22]    The judgment of Allahabad High Court  is  dated  19.2.1991  and  the
appeal in this Court is decided on 15.5.1992.
[23]   Para 60. “The purpose of referring to the same is to remind one  that
the right to contest in an election is a plain and simple statutory  right…”

[24]   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:

[25]   Article 80. Composition of the Council of  States.-  (1) The  Council
of States shall consist  of  (a) twelve  members  to  be  nominated  by  the
President in accordance with the provisions of clause (3); and (b) not  more
than two hundred and thirty eight representatives of the States and  of  the
Union territories.
      (2) The allocation of seats in the Council of States to be  filled  by
representatives of the States and of  the  Union  territories  shall  be  in
accordance with the provisions  in  that  behalf  contained  in  the  fourth
Schedule.
      (3) The members to be nominated by the President under sub clause  (a)
of  clause  (1)  shall  consist  of  persons  having  special  knowledge  or
practical experience in respect of such matters as the following, namely:
            Literature, science, art and social service.
      (4) The representatives of each State in the council of  States  shall
be elected by the elected members of the Legislative Assembly of  the  State
in accordance with the system of proportional  representation  by  means  of
the single transferable vote.
      (5) The representatives of the Union Territories  in  the  council  of
States shall be chosen in such manner as Parliament may by law prescribe.
[26]   Article 171(3) Of the total number  of  members  of  the  Legislative
council of a State:
      (a) as nearly as may be, one third shall  be  elected  by  electorates
consisting of members of municipalities,  district  boards  and  such  other
local authorities in the State as Parliament may by law specify;
      (b) as nearly as may be, one twelfth shall be elected  by  electorates
consisting of persons residing in the State  who  have  been  for  at  least
three years graduates of any university in the territory of  India  or  have
been for at least three years in possession of qualifications prescribed  by
or under any law made by Parliament as equivalent to that of a  graduate  of
any such university;
      (c) as nearly as may be, one twelfth shall be elected  by  electorates
consisting of persons who have been for at  least  three  years  engaged  in
teaching in such educational institutions within the  State,  not  lower  in
standard than that of a secondary school, as may be prescribed by  or  under
any law made by Parliament;
      (d) as nearly as may be, one third shall be elected by the members  of
the Legislative Assembly of the State  from  amongst  persons  who  are  not
members of the Assembly;
      (e) the remainder shall be nominated by  the  Governor  in  accordance
with the provisions of clause (5)
[27]   Article 80(4). The representatives of each State in  the  council  of
States shall be elected by the elected members of the  Legislative  Assembly
of the State in accordance with the system  of  proportional  representation
by means of the single transferable vote.
[28]   G. Narayanaswami v. G. Pannerselvam & Others [(1972) 3 SCC 717]
      “Para 14.   Whatever may  have  been  the  opinions  of  Constitution-
makers or of their advisers, whose views are cited  in  the  judgment  under
appeal, it is not possible to say, on  a  perusal  of  Article  171  of  the
Constitution, that the Second Chambers set up in nine States in  India  were
meant to incorporate the principle of  what  is  known  as  “functional”  or
“vocational” representation which has been advocated by Guild-Socialist  and
Syndicalist Schools of Political Thought.   Some of the observations  quoted
above, in the judgment under appeal itself, militate  with  the  conclusions
reached there.    All that we can infer from our  constitutional  provisions
is  that  additional  representation  or  weightage  was  given  to  persons
possessing special types of knowledge and experience  by  enabling  them  to
elect their special  representatives  also  for  Legislative  Councils.  The
concept of such representation does  not  carry  with  it,  as  a  necessary
consequence, the further notion that the representative  must  also  possess
the very qualifications of those he represents.
[29]    Manoj Narula v. Union of India, (2014) 9 SCC 1
      Para 110. Article 84  of  the  Constitution  negatively  provides  the
qualification for membership of Parliament.   This Article is  quite  simple
and reads as follows:
      “84.  Qualification for membership of Parliament – A person shall  not
be qualified to be chosen to fill a seat in Parliament unless he –
      is a citizen of India, and makes and  subscribes  before  some  person
authorised in that behalf by the Election Commission an oath or  affirmation
according to the form set out for the purpose in the Third Schedule;
      is, in the case of a seat in the Council  of  States,  not  less  than
thirty years of age, in the case of a seat in the House of the  People,  not
less than twenty-five years of age; and
      possesses such other qualifications  as  may  be  prescribed  in  that
behalf by or under any law made by Parliament.”

[30]    Bhanumati & Others v. State of U.P., (2010) 12 SCC 1
      Para 33. The Panchayati Raj institutions  structured  under  the  said
amendment are meant to initiate changes so that the rural  feudal  oligarchy
lose their ascendancy in village affairs and the voiceless masses, who  have
been rather amorphous, may realise their  growing  strength.  Unfortunately,
effect of these changes by way of  constitutional  amendment  has  not  been
fully realised in the semi-feudal set-up of Indian politics in  which  still
voice of reason is drowned in an  uneven  conflict  with  the  mythology  of
individual  infallibility  and   omniscience.   Despite   high   ideals   of
constitutional philosophy, rationality in our polity is  still  subordinated
to political exhibitionism, intellectual timidity  and  petty  manipulation.
The Seventy-third Amendment of  the  Constitution  is  addressed  to  remedy
these evils.

[31]    Section 173.  Persons qualified to vote and be elected. – (1)  Every
person whose name is in the list of voters shall, unless disqualified  under
this Act or any other law for the time being in force, be qualified to  vote
at the election of a Member for the electoral division to  which  such  list
pertains.
[32]    Section 173(2).  Every person who has attained the  age  of  twenty-
one  years  and  whose  name  is  in  the  list  of  voters  shall,   unless
disqualified under this Act or under any other law for  the  time  being  in
force, be disqualified to be elected from any electoral division.
[33]    Section 2 (lvi) “Sarpanch” means a Sarpanch of Gram Panchayat
elected under this Act.
[34]    Section 2 (xli) "Panch" means a member of a Gram Panchayat elected
under this Act.

[35]    “Para 3(3). …….. The Learned Senior  Counsel  contends  that  it  is
wholly irrational and arbitrary to  protect  highly-placed  public  servants
from inquiry or investigation in the light of the conditions  prevailing  in
the country and the corruption  at  high  places  as  reflected  in  several
judgments of this Court including that of Vineet Narain. Section 6-A of  the
Act is wholly arbitrary and unreasonable and is liable  to  be  struck  down
being violative of Article 14 of  the  Constitution  is  the  submission  of
learned amicus curiae.
      (4). In support of the challenge to  the  constitutional  validity  of
the impugned provision, besides observations made in the  three-Judge  Bench
decision in Vineet Narain case reliance has  also  been  placed  on  various
decisions including S.G. Jaisinghani v. Union of India [(1967) 2  SCR  703],
Shrilekha Vidyarthi v. State of U.P. [(1991)  1  SCC  212],  Ajay  Hasia  v.
Khalid Mujib Sehravardi [(1981) 1 SCC 722]  and  Mardia  Chemicals  Ltd.  v.
Union of India  [(2004)  4  SCC  311]  to  emphasize  that  the  absence  of
arbitrary power is the first essential of the rule of  law  upon  which  our
whole constitutional system is based. In  Mardia  Chemicals  case  a  three-
Judge Bench held Section 17(2) of the Securitisation and  Reconstruction  of
Financial Assets and Enforcement  of  Security  Interest  Act,  2002  to  be
unreasonable and arbitrary and violative of Article 14 of the  Constitution.
Section 17(2) provides for condition of deposit of 75% of the amount  before
an appeal could be entertained. The condition has been held to  be  illusory
and oppressive. Malpe Vishwanath Acharya v. State of Maharashtra  [(1998)  2
SCC 1], again a decision of a threeJudge Bench, setting aside  the  decision
of the High Court which upheld the provisions of  Sections  5(10)(b),  11(1)
and 12(3) of the Bombay Rents, Hotel and Lodging House  Rates  Control  Act,
1947 pertaining to standard  rent  in  petitions  where  the  constitutional
validity of those provisions was challenged on the ground of the same  being
arbitrary, unreasonable and consequently  ultra  vires  Article  14  of  the
Constitution, has come to  the  conclusion  that  the  said  provisions  are
arbitrary and unreasonable.”
[36]     “Para  64.  …………….  We  are  also  clearly  of  the  view  that  no
distinction can be made for certain class of officers specified  in  Section
6-A who are described  as  decision  making  officers  for  the  purpose  of
inquiry/investigation into an offence under the PC Act, 1988.  There  is  no
rational basis to classify the two sets of public  servants  differently  on
the ground that one set of officers is decision making officers and not  the
other set of officers. If there is an accusation of bribery, graft,  illegal
gratification or criminal misconduct against a public servant, then we  fail
to understand as to how the status of offender is of  any  relevance.  Where
there are allegations against a public servant which amount  to  an  offence
under the PC Act, 1988,  no  factor  pertaining  to  expertise  of  decision
making is involved. Yet, Section 6-A makes a distinction. It  is  this  vice
which renders Section 6-A violative of Article 14. Moreover, the  result  of
the impugned legislation is that the very group  of  persons,  namely,  high
ranking bureaucrats whose misdeeds and illegalities may have to be  inquired
into, would  decide  whether  the  CBI  should  even  start  an  inquiry  or
investigation against them or not. There  will  be  no  confidentiality  and
insulation of the  investigating  agency  from  political  and  bureaucratic
control and influence because the approval is to be taken from  the  Central
Government which would involve leaks and disclosures at every stage.
      Para 99.   In view of our foregoing discussion, we hold  that  Section
6-A(1), which requires approval of the Central  Government  to  conduct  any
inquiry or investigation into any offence alleged  to  have  been  committed
under the PC Act, 1988 where such allegation relates to  (a)  the  employees
of the Central Government of the level of Joint Secretary and above and  (b)
such officers as are appointed by the  Central  Government  in  corporations
established by or under any Central  Act,  government  companies,  societies
and local authorities owned or controlled by the Government, is invalid  and
violative of Article 14 of the Constitution. As a necessary  corollary,  the
provision contained in Section 26 (c) of the Act 45 of 2003 to  that  extent
is also declared invalid.”
[37]    Para 13.  The next question, is the  rule  reasonable  or  arbitrary
and unreasonable? The rationale for the  rule,  as  stated  earlier,  is  to
maintain the dignity and purity of the profession by keeping out  those  who
retire from various  government,  quasi-government  and  other  institutions
since they on being  enrolled  as  advocates  use  their  past  contacts  to
canvass for cases and thereby bring the profession into disrepute  and  also
pollute the minds of young  fresh  entrants  to  the  profession.  Thus  the
object of the rule is clearly to shut the doors of profession for those  who
seek entry in to the profession after completing the age  of  45  years.  In
the first place, there is no reliable statistical or other  material  placed
on  record  in  support  of  the  inference  that  ex-government  or  quasi-
government servants or the like indulge in undesirable activity of the  type
mentioned after entering the profession. Secondly, the rule does  not  debar
only such persons from entry  in  to  the  profession  but  those  who  have
completed 45 years of age on the date of seeking enrolment.  Thirdly,  those
who were enrolled as advocates while they were young and had later taken  up
some job in any government or quasi-government or  similar  institution  and
had kept the sanad in abeyance are not debarred from reviving  their  sanads
even after they have completed 45 years of age. There may be a large  number
of persons who initially entered the profession but later took  up  jobs  or
entered any other gainful occupation who revert to practise at a later  date
even after they have crossed the age of 45  years  and  under  the  impugned
rule they are not debarred from practising. Therefore, in  the  first  place
there is no dependable material in support of the  rationale  on  which  the
rule is founded and secondly the rule is discriminatory  as  it  debars  one
group of persons who have crossed the age of 45 years from  enrolment  while
allowing another group to revive and continue practice even  after  crossing
the age  of  45  years.  The  rule,  in  our  view,  therefore,  is  clearly
discriminatory. Thirdly, it is unreasonable and arbitrary as the  choice  of
the age of 45 years is made keeping only a certain group  in  mind  ignoring
the vast majority of other persons who were in the service of government  or
quasi-government or similar institutions at any point of time. Thus, in  our
view the impugned rule violates  the  principle  of  equality  enshrined  in
Article 14 of the Constitution.
[38]   (1981) 4 SCC 675
[39]   (1974) 4 SCC 3
[40]   (1978) 1 SCC 248
[41]    An  expression  used  widely  and  rather  indiscriminately   -   an
expression of  inherently  imprecise  import.  The  extensive  use  of  this
expression, in India reminds one of what Frankfurter,J. said in  Hattie  Mae
Tiller v. Atlantic Coast Line  Railroad  Co.,  87  L.Ed.  610.  "The  phrase
begins life as a  literary  expression;  its  felicity  leads  to  its  lazy
repetition  and  repetition  soon  establishes  it  as  a   legal   formula,
undiscriminatingly used to express  different  and  sometimes  contradictory
ideas", said the learned Judge.

[42]   In Municipal Committee Amritsar v. State  of  Punjab,  (1969)  1  SCC
475, at para 7,  this  Court  clearly  ruled  out  the  application  of  the
doctrine  of  “due  process”  employed  by  the   Court   adjudicating   the
constitutionality of the legislation.

      But the rule enunciated by the  American  Courts  has  no  application
under our Constitutional set up. The rule is regarded  as  an  essential  of
the "due process clauses" incorporated in the American Constitution  by  the
5th & the 14th Amendments. The Courts in India have no authority to  declare
a statute invalid on the ground that it violates the "due process  of  law".
Under our Constitution, the test of due process of law cannot be applied  to
statutes enacted by the Parliament or the  State  legislatures.  This  Court
has definitely ruled that the doctrine of "due process of law" has no  place
in our Constitutional system: A. K. Gopalan v. State of  Madras,  1950  SCR.
88. Kania, C.J., observed (at p. 120):-

      "There is considerable authority for the  statement  that  the  Courts
are not at liberty to declare an Act void because in  their  opinion  it  is
opposed to a spirit supposed to pervade the Constitution but  not  expressed
in words. . . . . it is only in express constitutional  provisions  limiting
legislative power and controlling the temporary will  of  a  majority  by  a
permanent and paramount law settled by the deliberate wisdom of  the  nation
that one can join a safe and solid ground for the  authority  of  Courts  of
Justice to declare void any legislative enactment."

[43]   “(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, 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,  the  minimum
qualification shall be 5th pass;”

[44]   Section 173 (2).  Every person who has attained the  age  of  twenty-
one  years  and  whose  name  is  in  the  list  of  voters  shall,   unless
disqualified under this Act or under any other law for  the  time  being  in
force, be qualified to be elected from any electoral division.

[45]   The expression “rural population”  is  used  by  the  respondents  in
their counter affidavit to mean people living in areas  falling  within  the
territorial limits of some PANCHAYAT.

[46]   “Section 21.  Functions and  duties  of  Gram  Panchayat.—Subject  to
such rules as may be made, it shall  be  the  duty  of  the  Gram  Panchayat
within the limits of the funds at its disposal,  to  make  arrangements  for
carrying out the requirements of sabha area  in  respect  of  the  following
matters including all subsidiary works and buildings connected therewith:--

      XI.   Non-conventional Energy Sources-
      (1)   Promotion and Development of non-conventional energy schemes.
       (2)    Maintenance  of  community  non-conventional  energy  devices,
including bio-gas plants and windmills.
      (3)   Propagation of improved chulhas and other efficient devices.

       XXI.   Social  Welfare  including  Welfare  of  the  Handicapped  and
Mentally Retarded-
      (1)   Participation  in  the  implementation  of  the  social  welfare
programmes including welfare  of  the  handicapped,  mentally  retarded  and
destitute.
      (2)   Monitoring of the old age and widows pension scheme.”

[47]   We are of the opinion that it is not really necessary to examine  the
various  observations  made  by  this  Court  regarding  the  importance  of
education  for  two  reasons,  firstly,  nobody  is  disputing  the  general
proposition that education plays a  great  role  in  the  evolution  of  the
personality of a human being.   Secondly, none of the cases referred  to  by
the AG dealt with the relevance of education in the context of the right  to
contest any election contemplated by the Constitution.  [See: Bhartiya  Seva
Samaj Trust  v.  Yogeshbhai  Ambalal  Patel,  (2012)  9  SCC  310;   Avinash
Mehrotra v. Union of India, (2009) 6 SCC  398;  P.A.  Inamdar  v.  State  of
Maharashtra, (2005) 6 SCC 537; T.R. Kothandaramam v.  T.N.  Water  Supply  &
Drainage Board; (1994) 6 SCC 282; Unni Krishnan v. State of Andhra  Pradesh,
(1993) 1 SCC 645; Maharashtra State Board of Secondary and Higher  Secondary
Education v. K.S. Gandhi, (1991) 2 SCC 716; and  State  of  J&K  v.  Triloki
Nath Khosa, (1974) 1 SCC 19].
[48]   Articles 102(1)(c) and 191(1)(c).
[49]   Article 102.  Disqualifications for membership.—(1) A person shall
be disqualified for being chosen as, and for being, a member of either
House of Parliament –
      ****       ****        ****       ****       ****       ****
      (c) – if he is an undischarged insolvent;

[50]   Article 191. Disqualifications for membership.—(1) A person shall be
disqualified for being chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a State –
      ****       ****        ****       ****       ****       ****
      (c) if he is an undischarged insolvent.
[51]   Section 6. Acts  of  insolvency.—(1)  A  debtor  commits  an  act  of
insolvency in each of the following cases, namely:-
      (a)   if, in India or  elsewhere,  he  makes  a  transfer  of  all  or
substantially all his property to a third person  for  the  benefit  of  his
creditors generally;
      (b)   if, in India or elsewhere, he makes a transfer of  his  property
or of any part thereof with intent to defeat or delay his creditors;
      (c)   if  in  India  or  elsewhere,  he  makes  any  transfer  of  his
property, or of any part thereof, which  would,  under  this  or  any  other
enactment for the time being in force, be void as fraudulent  preference  if
he were adjudged an insolvent;
      (d)   if with intent to defeat or delay his creditors,-

      he departs or remains  out  of  the  territories  to  which  this  Act
extends;
      he departs from his dwelling-house  or  usual  place  of  business  or
otherwise absents himself;
      he secludes himself so as to deprive his creditors  of  the  means  of
communicating with him;
      (e)   if any of his property has been sold in execution of the  decree
of any Court for the payment of money;
       (f)    if  he  petitions  to  be  adjudged  an  insolvent  under  the
provisions of this Act;
      (g)   if he  gives  notice  to  any  of  his  creditors  that  he  has
suspended, or that he is about to suspend, payment of his debts; or
      (h)   if he is imprisoned in execution of the decree of any Court  for
the payment of money.
      (2)   Without prejudice  to  the  provisions  of  sub-section  (1),  a
debtor commits an act of insolvency  if  a  creditor,  who  has  obtained  a
decree or order against him for the payment of  money  (being  a  decree  or
order which has  become  final  and  the  execution  whereof  has  not  been
stayed), has served on him a notice (hereafter in this section  referred  to
as the insolvency notice) as provided in  sub-section  (3)  and  the  debtor
does not comply with that notice within the period specified therein:
      Provided that where a debtor makes an  application  under  sub-section
(5) for setting aside an insolvency notice-
      in a case where such application is allowed by the District Court,  he
shall not be deemed to have committed an act of insolvency under  this  sub-
section; and
      in a case where such application is rejected by  the  District  Court,
he shall be deemed to have committed an act of insolvency  under  this  sub-
section on the date of rejection of the application or  the  expiry  of  the
period specified in the insolvency notice for its compliance,  whichever  is
later:

[52]   Section 9. Acts of  insolvency.- (1)  A  debtor  commits  an  act  of
insolvency in each of the following cases, namely;-
      if, in the States  or  elsewhere,  he  makes  a  transfer  of  all  or
substantially all his property to a third person  for  the  benefit  of  his
creditors generally;
      if, in the States or elsewhere, he makes a transfer  of  his  property
or of any part thereof with intent to defeat or delay his creditors;
      if, in the States or elsewhere, he makes any transfer of his  property
or of any part thereof, which would, under this or any other  enactment  for
the time being in force,  be  void  as  fraudulent  preference  if  he  were
adjudged an insolvent;
      if, with intent to defeat or delay his creditors,--
      he departs or remains out of the States,
      he departs from his dwelling-house  or  usual  place  of  business  or
otherwise absents himself,
      he secludes himself so as to deprive his creditors  of  the  means  of
communicating with him;
      if any of his property has been sold or attached for a period  of  not
less than twenty-one days in execution of the decree of any  Court  for  the
payment of money;
      if he petitions to be adjudged an insolvent;
      if he gives notice to any of his creditors that he has  suspended,  or
that he is about to suspend, payment of his debts;
      if he is imprisoned in execution of the decree of any  Court  for  the
payment of money.
      (2)   Without prejudice to the  provisions  of  sub-  section  (1),  a
debtor commits an act of insolvency  if  a  creditor,  who  has  obtained  a
decree or order against him for the payment of  money  (being  a  decree  or
order which has  become  final  and  the  execution  whereof  has  not  been
stayed), has served on him a notice (hereafter in this section  referred  to
as the insolvency notice) as provided in sub- section  (3)  and  the  debtor
does not comply with that notice within the period specified therein:
      Provided that where a debtor makes an application under  sub-  section
(5) for setting aside an insolvency notice--
      in a case where such application is allowed by  the  Court,  he  shall
not be deemed to have  committed  an  act  of  insolvency  under  this  sub-
section; and
      in a case where such application is rejected by the  Court,  he  shall
be deemed to have committed an act of insolvency under this sub- section  on
the date of rejection of  the  application  or  the  expiry  of  the  period
specified in the insolvency notice for its compliance, whichever is later:
      Provided further that no  insolvency  notice  shall  be  served  on  a
debtor residing, whether permanently or temporarily, outside  India,  unless
the creditor obtains the leave of the Court therefor.
       


[53]   9.  Bankruptcy and Insolvency.
[54]    Paras 4 & 5 of the Addl. Affidavit of Respondents 1 to 3
      That the main objective of  the  programme  is  to  ensure  access  of
toilets to all rural families so as to achieve Open  Defecation  Free  (ODF)
status.  For this purpose, both the Center and State of  Haryana  have  also
been providing financial incentive to the people below  poverty  line  (BPL)
in the rural areas of State of Haryana.  Besides  few  other  Above  Poverty
Line (APL) household categories namely, all  SCs,  small  farmers,  marginal
farmers, landless  labourers  with  homestead,  physically  handicapped  and
women headed households were also identified for  the  purpose  of  granting
financial incentive since 01.04.2012 under the said scheme.
      That the financial incentive is also being provided to  Below  Poverty
Line  (BPL)  households  for  the  construction  and  usage  of   individual
household latrines (IHHL) in recognition of their achievements.  In  Haryana
total rural BPL households are 8,56,359 and against it, 7,21,038  households
have been provided incentive  for  the  construction  of  IHHL.   Similarly,
Above Poverty  Line  (APL)  households  restricted  to  SCs/STs,  small  and
marginal farmers, landless labourers with homestead, physically  handicapped
and women headed households have also  been  provided  financial  assistance
w.e.f. 04.04.2012.  Presently, w.e.f. 02.10.2014 the financial incentive  is
being given to above category of households @ Rs.12000 (Rs.9000 from  Centre
and Rs.3000 from State  Government).   Out  of  30,67,907  rural  households
25,84,810 i.e. 84% have IHHLs.  Out  of  which  23,60,318  IHHLs  have  been
build under Rural Sanitation Programmes since 1999, of which  8,82,012  have
been given incentive money at various rates prevailing at different times.
[55]      In England this habit existed till 15th Century  at  least,  “poor
sanitation made London a death-trap.   Without any 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   gold.”,   [Niall
Ferguson, Civilization : The West and the Rest  ,  (First  Edition,  Penguin
Press, 2011)] page 23

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