Jaipur, July 26 : The Supreme Court today issued notices to the Rajasthan Government and Union of India on the ordinance fixing the minimum qualification for contesting the panchayat polls in the desert state.
A Special Leave Petition was filed by Norti Devi, former sarpanch of Harmara in Ajmer district and Kamla Devi, former sarpanch of Tilonia, Ajmer district.
In 2015, Rajasthan had become the first state in the country to fix minimum educational qualifications for those willing to contests elections to the Panchayati Raj Institutions.
Rajasthan had passed the Rajasthan Panchayati Raj (amendment) Bill, 2015, which makes Class VIII pass mandatory for the post of sarpanch — except in tribal reserved areas, where the minimum qualification is Class V — and Class X for Zila Parishad or Panchayat Samiti elections.
For sarpanches, the ordinance has fixed class VIII as the minimum qualification. It is Class V in scheduled areas. For zilla parishad and panchayat samiti polls, candidates must have passed Class X.
The amendments to Section 19 of the Rajasthan Panchayat Raj Act, 1994 also made a functional toilet mandatory in the house of a contestant.
The government had promulgated an ordinance specifying educational qualification for contestants on December 20, 2014 just before the panchayat elections were announced for January 2015.
There was much resistance to the ordinance with several activists, affected common people and even political parties.
The BJP government said resistance to the law was not justified because the Opposition party had failed to provide even basic education to the people in its more than 60 years in power.
The ordinance was challenged in the Rajasthan High Court by social activists and political parties, who said there was no justification for making educational qualifications mandatory at grassroots level when it has not been made mandatory for contesting Assembly or Parliament elections.
The petitioners, which include the candidates themselves, who were disqualified under the new eligibility, had claimed that it would take away the rights of the people, particularly of women, as in many segments a majority of them have no education.
The petitioners claimed that 80 per cent of the state’s rural electorate would not be able to contest the polls as they would not meet the norms and about 95 per cent women electorate would be disqualified. They also claimed that of the current block members, the ordinance would render ineligible around 3,800 of the 5,000 panchayat samiti members and similarly disqualify 550 of the 1,000 zila parishad members. The petitioners also said that the ordinance violated the Constitution as it deprived the people to contest elections.
The Jaipur Bench of Rajasthan High Court, however, refused to stay the ordinance saying it did not want to interfere in the process of constitution of Panchayats in January, 2015.
Earlier in January 2015, the Supreme Court had also refused to entertain the petitions, saying the High Court should be approached first.
“Go and challenge the vires (the powers) of the ordinance in Rajasthan High Court,” a bench headed by Chief Justice H.L. Dattu had said.
The bench had then told the petitioners they could come to the apex court later if required.
Lawyers Indira Jaisingh, Anindita Pujari and Meher Kaur argued that there exists confusion and conflict of opinion on the status of right to vote and contest and the nature of restrictions that may be imposed on such rights. Benches of the Supreme Court of different strengths have given different opinions on the issue.
In 1952, a bench of six judges of the Supreme Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency opined that the right to vote and contest are mere statutory rights.
In 1955, a bench of five judges of the Supreme Court in Jamuna Prasad Mukhariya v. Lachhi Ram opined that the right to contest is not fundamental right but a mere statutory right.
In 2003, a bench of three judges of the Supreme Court in P.U.C.L. and Anr. v. Union of India held that the right to vote and contest is a statutory as well as a constitutional right.
In 2003, a three judge bench of the Supreme Court in Javed v. State of Haryana held that the right to contest is not a fundamental right but a statutory and constitutional right.
In 2006, a bench of five judges of the Supreme Court in Kuldip Nayar v. Union of India opined that the right to vote and contest are mere statutory rights and not constitutional rights.
In 2010, a five judge bench of the Supreme Court in Dr. K. Krishna Murthy v. Union of India held that the right to vote and contest is not a fundamental right but a mere statutory right.
In 2015, a two judge bench of the Supreme Court in Krishnamoorthy v. Sivakumar held that the right to contest is not a fundamental right but a statutory and constitutional right.
In light of such confusion, it was argued that the matter is required to be referred to a larger bench that is a constitutional bench of seven judges or nine judges and a bench of 2 judges i.e., the strength of the bench in the RajBala case v/s state of Haryana, which also has imposed educational qualifications for Panchayati polls, could not put such confusion to rest and the issue of rights to vote and contest being at the heart of democracy are issues of constitutional importance deserving attention of a constitutional bench.