Norati v. State of Rajasthan (SLP CC No. 11209/2016)
A special leave petition (SLP) was filed before the Supreme Court against the judgement/order dated 22.01.2016 passed by the Rajasthan High Court in CWP 12413/2015 (impugned order), whereby the Rajasthan High Court had dismissed the petition challenging the constitutional validity of the Rajasthan Panchayati Raj (Second Amendment) Act, 2015 (Rajasthan impugned act).
The Rajasthan impugned act pertains to opportunity and rights to participate in the democratic process and to contest the Rajasthan Panchayati Raj Elections, which now stands curtailed by imposition of minimum educational qualifications, requirement of declaration as to no debts in relation electricity and co-operative banks, and requirement of functional toilet at residence.
The Rajasthan impugned act was challenged as unconstitutional on the grounds that it is arbitrary and not based on intelligible differentia and thus is in violation of Article 14 of the Constitution of India. Such impugned act by imposing such qualifications in effect has not only curtailed the right to contest but has altogether excluded majority of scheduled caste women, scheduled caste men and women generally in Rajasthan from contesting the Panchayati Raj elections.
The SLP was listed for hearing on 25 July 2016 before a two judge bench of the Supreme Court consisting of Justice A. Dave and Justice L. Nageswara Rao. Senior Advocate, Ms. Indira Jaising, assisted by Advocates: Ms. Anindita Pujari and Ms. Meher Dev (counsels for the petitioners/appellants), submitted before the Supreme Court that the Rajasthan High Court had erroneously upheld the validity of the Rajasthan impugned act by placing reliance on the Raj Bala v. State of Haryana case CWP 671/2015 (Raj Bala case).
It was 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 6 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 5 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 5 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 Krishnamorrthy 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 required to be referred to larger bench that is a constitutional bench of 7 judges or 9 judges and a bench of 2 judges i.e., the strength of the bench in the Raj Bala case 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.
The matter was listed for 26 July 2016 before a three judge bench of Justice A. Dave, Justice U. Lalit and Justice L. Nageswara Rao. The counsel for the petitioners/appellants argued that the two judge bench in the Raj Bala case had failed to notice the difference between “qualifications” and “disqualifications” despite the Constitution itself containing different provisions for “qualifications” and “disqualifications”. The former being an eligibility criteria and the latter arising out fault. It was brought to the court’s notice that such distinction was rejected by the two judge bench in the Raj Bala case who opined that these terms mean the same and it was just a matter of semantics. It was based on this faulty reasoning that the Haryana Panchayati Raj Amendment Act, 2015 (Haryana impugned act) that provides for “qualifications” was upheld, even though Article 243 F of the Constitution provides that State Legislatures can provide for “disqualifications” (and not “qualifications”) in relation to the right to contest panchayat elections.
It was pointed out that the Constitution or any parliamentary law has not burdened the right to contest of MPs and MLAs with any education or toilet related disqualifications and there is no reason to treat Sarpanchs and Panchayat members differently.
Post-election data as consolidated and prepared by Ms. Kavita Srivastava, PUCL national secretary and Adv. Mr. Aditya Srivastava was brought to the court’s notice showing the number of persons excluded and disenfranchised as an impact of upholding the validity of the Rajasthan impugned act. It was pointed out that the bench in the Raj Bala case though acknowledged that over 50 % women in both general and SC/ST category will be excluded by virtue of the Haryana impugned act, at the same time it opined that it is not about numbers but what matters is suitability of candidates.
After hearing the arguments of the counsel for petitioners/appellants, the bench passed an order granting special leave to appeal against the impugned order of the Rajasthan High Court and issued notice.
It is pertinent to note that the struggle against the impugned act did not commence only after the impugned act was passed. This fight for justice began from the inception, i.e., when an ordinance No. 2/2014 was promulgated by the Governor of Rajasthan on 20.12.2014 (Ordinance) imposing restrictions such as educational qualifications on the right to contest panchayati elections in Rajasthan. The very next day, several organizations within Rajasthan made representations before the Governor and urged him to review the provisions of the Ordinance.
After no positive response, a writ petition, CWP 4/2015 dated 05.01.2015 was filed in the Supreme Court. The Supreme Court passed an order allowing the petition to be withdrawn and filed before the High Court of Rajasthan.
Thereafter, on 06.01.2015, a writ petition, CWP No. 375-376/2015 was filed in the High Court of Rajasthan, Jaipur Bench in the name of Dulari Devi. Several other petitions claiming the same relief were tagged to this matter.
On 15.01.2015, the Rajasthan High Court, Jaipur Bench passed an interim order in CWP 375-376/2015 rejecting the application for staying of the operation of the Ordinance. However, the court also found that the Ordinance in question was violative of the fundamental rights of the Petitioners. Against such rejection of interim stay of Ordinance, on 16.01.2015 a special leave petition was filed in the Supreme Court, being SLP No. 2127-28/2015 in the name of Norati, then Sarpanch, Ajmer District. The petitioner prayed for (i) admission of the SLP, (ii) staying of the interim order dt. 15.01.2015 passed by the Rajasthan High Court in CWP 375-376/2015, and (iii) Staying the operation of the impugned Ordinance and State Election Commission’s Notification. However, on 22.01.2015, the Supreme through an order in SLP No. 2127-29/2015 refused to interfere with the impugned interim order and judgment of the Rajasthan High Court, stating that the High Court may dispose of the matter on 02.03.15, which was the date originally given by the High Court for final disposal of CWP 375-376/2015.
With passage of time, on 01.04.2015, the Rajasthan impugned act received assent of the Governor and replaced the Ordinance impugned in CWP 375-376/2015. Thus, taking note of this, on 11.08.2015, a final order was passed by the Rajasthan High Court, Jaipur Bench in CWP 375-376/2015, finding that since the Ordinance had been replaced with the Rajasthan impugned act, the petitions had become infructuous. However, petitioners were granted leave to assail provisions of the Rajasthan impugned act in a fresh challenge.
This was followed by a fresh challenge in August-September 2015 to the Rajasthan impugned act vide writ petition civil no. 12413/2015 in Rajasthan High Court, Jaipur Bench. However, the fresh challenge was dismissed by the Rajasthan High Court in light of the Raj Bala case and thus today the matter has reached to the Supreme Court by way of special leave appeal. Such appeal has been admitted and will be listed for hearing in due course.
The SLP is available here.