# RAJBALA & OTHERS v. STATE OF HARYANA& OTHERS

- **Citation:** [2015] 12 S.C.R. 1106
- **Court:** Supreme Court of India
- **Decided:** 2015-12-10
- **Bench:** J. Chelameswar, Abhay Manohar Sapre
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajbala-others-v-state-of-haryana-others-30311
- **Pages:** 73

## Headnote

c
Haryana Panchayati Raj Act, 1994 [As amended by
Haryana Panchayati Raj (Amendment) Act, 2015]:
s.175(1)(t) and (u) [As inserted by Haryana Panchayati
Raj (Amendment) Act, 2015} - Constitutional validity of -
D Held: Clauses (t) and (u) of s.175(1) are intravires the
Constitution - Indebtedness/ insolvency is recognized as a
factor which is incompatible in certain circumstances with the
right to hold an elected office under the Constitution as is
evident from Articles 102(1)(c), 191(1)(c), 58(1)(c) and 66
E (1)(c) of the Constitution - Insolvency is a field over which
both the Parliament as well as the State Legislatures have
legislative competence concurrently to make laws as it is one
of the topics indicated under Entry 9, List Ill of the Seventh
Schedule to the Constitution - Constitution of India, 1950F Arts.58(1)(c) and 66 (1)(c), 102 (1)(c) and 191(1)(c); VII
Schedule, List Ill, Entry 9.
s.175(1)(v) [As inserted by Haryana Panchayati Raj
(Amendment) Act 2015] - Constitutional validity of- Held:
G
The impugned provision creates two classes by virtue of
educational qualification - The object of such classification
is to ensure that the members of Panchayat have basic
education enabling them to discharge various duties - The
object sought to be achieved cannot be said to be irrational
H
1106
RAJ BALA & ORS. v. STATE OF HARYANA & ORS.
1107
or illegal or unconnected with the scheme and purpose of A
the Act or the provisions of Part IX of the Constitution - Thus
the classification is based on intelligible differentia, is
'
reasonable· and has a reasonable nexus with the object
sought to be achieved - Hence the same is constitutional -
Constitution of India, 1950--Art. 14 and Part IX.
8
s. 175(1 )(w) {As inserted by Haryana Panchayati Raj
(Amendment) Act, 2015)- Constitutional validity of- Held:
Disqualifying a person from contesting Panchayat election,
if such person has no functional toilet at residence, cannot C
be said to be unconstitutional - Stipulation by legislature that
those who are not following basic norms of hygiene are
ineligible to become administrators of civic body, such a
policy can neither be said to create a class based on
intelligible criteria nor can such classification be said to be 0
unconnected with the object sought to be achieved by the
Act- Constitution of India, 1950 -Art. 14 and Part IX.
Election Laws:
Right to vote - Nature of - Held: Right to vote is a
constitutional right- It is not a statutory right pure and simple.
E
Right to contest election - Every person entitled to be a
voter by virtue of declaration u/Art. 326 is not automatically F
entitled to contest in any of the elections - Certain further
restrictions are imposed on a voter's right to contest elections
- Constitution of India, 1950 - Arts. 326, 84, 173, 102 and
191.
'Right to vote' and 'right to contest' an election to a
Panchayat- Nature of- Held: Such rights are constitutional
rights subsequent to introduction of Part IX of the Constitution
-
Both the rights can be curtailed! regulated by the
G
appropriate legislature directly.
H
1108
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A
Right to vote and right to contest elections - Distinction
B
between - Discussed.
Constitution of India, 1950:
Arts. 84; 173, 102 and 191 -
'Qualifications' and
'Disqualifications' for membership of 'Parliament' and 'State
Legislature' - Distinction between - Held: There is no legal
distinction between the two expressions.
c
Part IX, Art.2438, 243F- Right to contest a Panchayat
election- Qualifications and Disqualifications for- Held: Part
IX of the Consltitution is silent about 'qualification' required
for a candidate for election to Panchayat- Constitution only
prescribes 'disqualifications' for membership of Panchayats
0
-
'Qualifications' and 'Disqualifications relevant for
membership of the Legislature are equally applicable to the
membership of Panchayats.
Judicial Review - Examination of constitutional validity
E of legislation - Power of Supreme Court

## Text

_Characters 0–39,623 of 143,571. This is a partial read: ask again with offset=39623 for what follows._

A
B
[2015] 12 S.C.R. 1106
RAJBALA & OTHERS
v.
STATE OF HARYANA& OTHERS
(Writ Petition (Civil) No. 671 of2015)
DECEMBER 10, 2015
[J. CHELAMESWAR AND ABHAY
MANOHAR SAPRE, JJ.]
c
Haryana Panchayati Raj Act, 1994 [As amended by
Haryana Panchayati Raj (Amendment) Act, 2015]:
s.175(1)(t) and (u) [As inserted by Haryana Panchayati
Raj (Amendment) Act, 2015} - Constitutional validity of -
D Held: Clauses (t) and (u) of s.175(1) are intravires the
Constitution - Indebtedness/ insolvency is recognized as a
factor which is incompatible in certain circumstances with the
right to hold an elected office under the Constitution as is
evident from Articles 102(1)(c), 191(1)(c), 58(1)(c) and 66
E (1)(c) of the Constitution - Insolvency is a field over which
both the Parliament as well as the State Legislatures have
legislative competence concurrently to make laws as it is one
of the topics indicated under Entry 9, List Ill of the Seventh
Schedule to the Constitution - Constitution of India, 1950F Arts.58(1)(c) and 66 (1)(c), 102 (1)(c) and 191(1)(c); VII
Schedule, List Ill, Entry 9.
s.175(1)(v) [As inserted by Haryana Panchayati Raj
(Amendment) Act 2015] - Constitutional validity of- Held:
G
The impugned provision creates two classes by virtue of
educational qualification - The object of such classification
is to ensure that the members of Panchayat have basic
education enabling them to discharge various duties - The
object sought to be achieved cannot be said to be irrational
H
1106
RAJ BALA & ORS. v. STATE OF HARYANA & ORS.
1107
or illegal or unconnected with the scheme and purpose of A
the Act or the provisions of Part IX of the Constitution - Thus
the classification is based on intelligible differentia, is
'
reasonable· and has a reasonable nexus with the object
sought to be achieved - Hence the same is constitutional -
Constitution of India, 1950--Art. 14 and Part IX.
8
s. 175(1 )(w) {As inserted by Haryana Panchayati Raj
(Amendment) Act, 2015)- Constitutional validity of- Held:
Disqualifying a person from contesting Panchayat election,
if such person has no functional toilet at residence, cannot C
be said to be unconstitutional - Stipulation by legislature that
those who are not following basic norms of hygiene are
ineligible to become administrators of civic body, such a
policy can neither be said to create a class based on
intelligible criteria nor can such classification be said to be 0
unconnected with the object sought to be achieved by the
Act- Constitution of India, 1950 -Art. 14 and Part IX.
Election Laws:
Right to vote - Nature of - Held: Right to vote is a
constitutional right- It is not a statutory right pure and simple.
E
Right to contest election - Every person entitled to be a
voter by virtue of declaration u/Art. 326 is not automatically F
entitled to contest in any of the elections - Certain further
restrictions are imposed on a voter's right to contest elections
- Constitution of India, 1950 - Arts. 326, 84, 173, 102 and
191.
'Right to vote' and 'right to contest' an election to a
Panchayat- Nature of- Held: Such rights are constitutional
rights subsequent to introduction of Part IX of the Constitution
-
Both the rights can be curtailed! regulated by the
G
appropriate legislature directly.
H
1108
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A
Right to vote and right to contest elections - Distinction
B
between - Discussed.
Constitution of India, 1950:
Arts. 84; 173, 102 and 191 -
'Qualifications' and
'Disqualifications' for membership of 'Parliament' and 'State
Legislature' - Distinction between - Held: There is no legal
distinction between the two expressions.
c
Part IX, Art.2438, 243F- Right to contest a Panchayat
election- Qualifications and Disqualifications for- Held: Part
IX of the Consltitution is silent about 'qualification' required
for a candidate for election to Panchayat- Constitution only
prescribes 'disqualifications' for membership of Panchayats
0
-
'Qualifications' and 'Disqualifications relevant for
membership of the Legislature are equally applicable to the
membership of Panchayats.
Judicial Review - Examination of constitutional validity
E of legislation - Power of Supreme Court - Held: It is not
permissible for the Court to declare a statute unconstitutional
on the ground of its arbitrariness - Courts do not examine
the wisdom of legislative choices unless the legislation is
otherwise violative of some specific provision of the
F
Constitution.
(j
Doctrine - Doctrine of due process - Applicability of,
under Constitution of India.
Words and Phrases:
'Qualification' and 'Disqualification' - Meaning of, in the
context of Arts. 84, 173, 102 and 191 of the Constitution of
India, 1950.
H
'Insolvent' - Meaning of, in the context of election law.
RAJ BALA & ORS. v. STATE OF HARYANA & ORS.
1109
Dismissing the writ petition, the Court
A
HELD: Per Chelameswar, J.
1.1 The "right to vote", if not a fundamental right, is
certainly a "constitutional right" and "it is not very
8
accurate to describe it as a statutory right, pure and
simple". 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. [Paras
21 and 22] [1127-F; 1128-C]
· c
People's Union for Civil Liberties (PUCL) &
Anotherv. Union of/ndia &Another2003 (2) SCR
1136 : (2003) 4 SCC 399; Desiya Murpokku
Dravida Kazhagam (DMDK) &Anotherv. Election
Commission of India 2012 (3) SCR 1084 : (2012)
7 sec 340 - relied on.
Shyamdeo Prasad Singh v. Nawal Kishore Yadav
2000 (2) Suppl. SCR 668 : (2000) 8 sec 46 -
held inapplicable.
K. Krishna Murthy (Dr.) & Others v. Union of India
&Another2010 (6) SCR 972: (2010) 7 SCC 202;
Krishnamoorthy v. Sivakumar & Others 2015 (4 )
SCR 987 : (2015) 3 SCC 467 - held per-incurium.
N.P Ponnuswami v. Returning Officer, Namakka/
Constituency, Namakkal, Sa/em AIR 1952 SC 64
: 1952 SCR 218; Jyoti Basu & Others v. Debi
Ghosal & Others 1982 (3) SCR 318 : (1982) 1
SCC 691; Mohan Lal Tripathi v. District Magistrate,
Rai Bareilly & Others 1992 (3) SCR 338: (1992)
4 sec 80 - referred to.
D
E
F
G
H
1110
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A
1.2 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
8
the Representation of the People Act, 1951 recognises
the same. [Para 31] [1133-F-G; 1134-A]
2.1. The provisions of the Constitution indicate that
every person who is entitled to be a voter by virtue of
C the declaration contained under Article 326 is not
automatically entitled to contest in any of the elections.
Certain further.restrictions are imposed on a voter's right
to contest elections. [Para 37] [1137-F-G]
0
•
2.2 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
E 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. [Para 38]
F
[1137-H; 1138-A-B]
2.3 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 the two
expressions 'qualification' and 'disqualification'. In
0 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
H stipulate qualifications and disqualifications, there is
neither any logical pattern in these sets of Articles nor
RAJ BALA & ORS. v. STATE OF HARYANA & ORS.
1111
any other indication which enables discernment of the A
legal difference between the two expressions. The
distinction between qualifications and disqualifications
is purely semantic. Thus, subject to restrictions, every
citizen has a constitutional right to elect and to be elected
to either Parliament or the State legislatures. [Paras 39
B
and 40] [1138-C-E; 1139-A-B]
Manoj Narula v. Union of India (2014) 9 SCC 1 -
relied on.
·
3.1 Haryana Panchayati Raj Act, 1994 was to bring
the then existing law governing Panchayats in the State
c
in tune with the Constitution as amended by the 73rd
amendment. As required under Article 2438, a three tier
Panchayat system at the Village, 'Samiti' and District level D
is established under the Act with bodies known as Gram
Panchayat, Panchayat Samiti and Zila Parishad. [Para
7] [1122-C-D]
3.2 Having regard to the scheme of Part IX of the
E
Constitution, the purpose for which Part IX came to be
introduced in the Constitution by way of an amendment,
such constitutional rights exist in the context of elections
to the Panchayats. [Para 42] (1139-E-F; 1140-A]
Javed & Others v. State of Haryana & Others 2003
(1) Suppl. SCR 947 : (2003) 8 SCC 369- relied
on.
F
Bhanumati & Others v. State ofU.P. 2010 (7) SCR
a
585 : (2010) 12 sec 1 - referred to.
3.3 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
H
and Article 173. The text of Article 326 does not cover
1112
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A electoral rights with respect to Panchayats. 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 lr.dia or (ii) of any minimum age.
8 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
c Panchayats. [Paras 44 and 45) [1140-D; 1141-C-D]
D
3.4 It appears from Article 243F, 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
E 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. [Para
F 46) [1141-H; 1142-A-C]
3.5 Thus, 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
G 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. [Para 47) [1142-D]
H
4.1 It is a settled principle of law that curtailment of
RAJB'ALA & ORS. v. STATE OF HARYANA & ORS.
1113
any right whether such a right emanates from common
A
law, customary law or the Constitution can only be done
by law made by an appropriate Legislative Body. Under
the scheme of Constitution, the appropriateness of the
Legisfative Body is determined on the basis of the nature
of the rights sought to be curtailed or relevant and the B
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 the Constitution that every c
law made by any Legislative Body must be consistent
with provisions of the Constitution. [Para 48] (1142-E-G]
,
4.2 It is not permissible for this Court to declare a
I
statute unconstitutional on the ground that it is 'arbitrary', 0
since such an exercise implies a value judgment and
i 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
E
doctrine of "substantive due process" employed by the
American Supreme Court at an earlier point of time while
examining the constitutionality of Indian legislation. The
doctrine of due process has no application under the
Indian Constitution. [Paras 68 and 69] (1160-A-C; 1161F
A]
A. S. Krishna & Others v. State of Madras AIR 1957
SC 297 : 1957 SCR 399; Municipal Committee
Amritsar v. State of Punjab 1969 (3) SCR 447:
(1969) 1 SCC 475 - relied oo.
G
Subramanian Swamy v. Director, Central Bureau
of Investigation & Another 2014 (6) SCR 873 :
(2014) 8 SCC 682; Indian Council of Legal Aid v.
Bar Council of India 1995 (1) SCR 304: (1995) 1
H
SCC 732; B. Prabhakar Rao & Others v. State of
1114
A
B
c
D
SUPREME COURT REPORTS
[2015] 12 S.C.R.
Andhra Pradesh & Others 1985 Suppl. SCR 573
: 1985 {Supp) SCC 432; D.S. Nakara & Others v.
Union of India 1983 (2) SCR 165 : (1983) 1 SCC
305; R.K. Garg v. Union of India 1982 (1) SCR
947: (1981) 4 SCC 675; State ofAndhra Pradesh
& Others v. McDowell & Co. 1996 (3) SCR 721 :
(1996) 3 sec 709 - held inapplicable.
His
Holiness
Kesavananda
Bharati
Sripadaga/varu v. State of Kera/a & Another 1973
(0) Suppl. SCR 1 : (1973) 4 SCC 225; Indira
Nehru Gandhi v. Raj Narain 1976 SCR 347 :
(1975) Supp SCC 1; E.P Royappa v. State of
Tamil Nadu &Another1974 (2) SCR348: (1974)
4 SCC 3; Maneka Gandhi v. Union of India &
Another 1978 (2) SCR 621 : (1978) 1 SCC 248 -
referred to.
·
5.1 Constitution makers recognised indebtedness
as a factor which is incompatible in certain
E circumstances with the right to hold an elected office
under the Constitution. Article 102{1){c) and Article
191(1){c) declare that an undischarged insolvent is
disqualified from becoming a Member of Parliament or
the State Legislature respectively. By virtue of the
F operation of Article 58(1){c) and 66(1){c), the same
disqualificatiO!l extends even to the seekers of the
offices of the President and the Vice-President.
Insolvency is an aspect of indebtedness - a specified
0
category of indebtedness. The Constitution makers
considered that people who are insolvent are not eligible
to seek various elected public offices, there is no
constitutional infirmity, ifthe legislature declares people
who are indebted to cooperative bodies or in arrears of
H electricity bills to be ineligible to become elected
representatives of the people in Panchayats. Insolvency
RAJ BALA & ORS. v. STATE OF HARYANA & ORS.
1115
is a field over which both the Parliament as well as the A
legislatures of the State have a legislative competence
concurrently to make laws as it is one of the topics
indicated under Entry 9, List Ill of the Seventh Schedule
to the Constitution. [Paras 89 and 90) [1168-D-E; 1169A; 1170-A-B; 1171-A]
B
5.2 Assuming for the sake. of argument that
somebody who is so indebted falling within the
prescription of clauses (t) and (u) of Section 175(1) of
the Act is still interested in contesting the Panchayat c
elections, nothing in law stops such an aspirant from
making an appropriate arrangement fo~ clearance of the
arrears and contest elections. Justness of a situation
where· there is dispute regarding the liability, is once
again in the realm of the wisdom of the legislation. The D
Court cannot sit in the judgment over the same. But
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
E
forum. Thus, there is no substance in the challenge to
clauses (t) and .(u) of Section 175(1) of the Act. [Para 92)
[1172-C, E-F]
6.1 The impugned provision namely s.175(1)(v)
creates two classes of voters - those who are qualified
F
by virtue of their educational accomplishment to contest
the elections to the Panchayats and those who are not.
The proclaimed object of su~h classification is to ensure
that those who seek election to Panchayats have some 0
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 H
or provisions of Part IX of the Constitution. Therefore,
1116
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A prescription of an educational qualification is not
irrelevant for better administration of the Panchayats.
The classification cannot be said either based on no
intelligibl~ differentia unreasonable or without a
reasonable nexus with the object sought to be achieved.
8
[Para 85] [1166-C-B] [1167-A]
6.2 If it is constitutionally permissible to debar certain
classes of people from seeking to occupy the
constitutional offices, numerical dimension of such
c
classes, 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
D these various bodies becomes completely impossible.
E
F
Therefore, the challenge to clause (v) to Section 175(1)
is rejec;ted. [Para 87] [1167-F-H; 1168-A]
7. Clause (w) to s.175(1) disqualifies a person from
contesting an election to the Panchayat, if such a person
has no functional toilet at his place of residence. It is a
notorious fact that the Indian population for a long time
had this unhealthy practice of defecating in public. 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. If people still do not have a toilet it is not because
of their poverty, but because Cilftheir lacking the requisite
G 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
H basic norms of hygiene are ineligible to become
administrators of the civic body and disqualifies them
RAJ BALA & ORS. v. STATE OF HARYANA & ORS.
1117
as a class from seeking election to the civic body, such A
a policy, 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. [Paras 93 and 95) [1172-G; 1174-C-D, F-G, 1175A-C]
B
Per Abhay Manohar Sapre, J. (Concurring)
1. Both the rights namely "Right to Vote" and "Right to
Contest" are constitutional rights of the citizen. [Para 5)
c
J:eop/e's Union for Civil Liberties (PUCL) &
Another v. Union of India & Another2003 (2) SCR
1136 : (2003) 4 SCC 399; Javed & Others v. State
of Haryana & Others 2003 (1) Suppl. SCR 947:
o
(2003) 8 sec 369 - relied on.
2. Introduction of Section 175 (1 )(v) of the Act
prescribing certain minimum educational qualificatiQn
criteria as one of the qualifications for a candidate to
E
contest the election has a reasonable nexus with the
object sought to be achieved. In fact, keeping in view
· the powers, authority and the responsibilities of
Panchayats as specified in Article 243-G of the
Constitution so also the powers given to Panchayats to
F
impose taxes and utilization offunds of the Panchayats
as specified in Article 243-H of the Constitution, 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 G
in Part IX of the Constitution. It is the legislative wisdom
to decide as to what should be the minimum
qualifications, which should be provided in the Act.
Therefore, Section 175 (v) of the Act is intra vires the
Constitution and is thus constitutionally valid. [Paras 7,
H
\
1118
SUPREME COURT REPORTS
[2015] 12 S.C.R.
A 8 and 10] [1176-H; 1177-A, 8-D, E-F]
3. Section 175(w) of the Act too has reasonable
nexus and does not offend any provision of the
Constitution. This provision is enacted essentially in the
8
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 c:lo not have toilet facility for construction of toilet,
c there arise no ground to challenge this provision as
being unreasonable in any manner. [Paras 11 and 12]
[1177-F-G, H; 1178-A]
D
E
F
G
H
Case Law Reference
In the judgment of Chelameswar, J.
2003 (2) SCR1136
relied on.
Para 21
1952 SCR 218
referred to.
Para 21
1982 (3) SCR318
referred to.
Para 21
2012 (3) SCR 1084
relied on.
Para 22
2000 (2) Suppl. SCR 668 held inapplicable. Para 25
2010 (6) SCR 972
1992 (3) SCR 338
2015 (4) SCR 987
(2014) 9 sec 1
held per-in-curiumPara 26
referred to.
Para 26
held per-in-curiumPara 30
relied on.
2003 (1) Suppl. SCR 947 relied on.
1973 (0) Suppl. SCR 1
referred to.
1976 SCR 347
referred to.
Para 39
Para 43
Para 56
Para 56
RAJ BALA & ORS. v. STATE OF HARYANA & ORS.
1119
2014 (6) SCR 873
held inapplicable Para 57
A
1995 (1) SCR 304
held inapplicable Para 57
1985 Suppl. SCR 573
held inapplicable Para 57
1983 (2) SCR 165
held inapplicable Para 57
B
1982 (1) SCR 947
held inapplicable Para 57
1974 (2) SCR 348
referred to.
Para 66
1978 (2) SCR 621
referred to.
Para 66
c
1996 (3) SGR 721
held inapplicable. Para 67
1957 SCR 399
relied on.
Para 68
D
1969 (3) SCR 447
relied on.
Para 68
In the judgment of Abhay Manohar Sapre, J.
2003 (2) SCR 1136
relied on.
Para 3
E
2003 (1) Suppl. SCR 947 relied on.
Para4
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
671of2015.
F
[UNDER ARTICLE 32 OF THE CONSTITUTION OF
INDIA]
Indira Jaising, Sr. Adv., Kirti Singh, Pukhrambam Ramesh
Kumar, Abhey Narula, Sumit Kumar Vats, Mannav Kumar,
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Vikramajit Mittal, Tara Narula, Sanjay Parikh, Anindita Pujari,
Devadatt Kamat, Meher Kaur, Advs., for the Petitioner.
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Mukul Rohatgi, AG., Alok Sangwan, B. K. Satija, Lokesh
Sinha!, Anil Grover, AAGs, Satish Kapoor, Deepansha,
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[2015] 12 S.C.R.
A
Sheikhar Raj Sharma, Monika Gusain, Gaurav Yadava, Hariom
Yaduvanshi,Advs., for the Respondents.
B
The Judgments of the Court were delivered by
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".
c
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
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subject to the overall control of provincial governments.
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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
F authorised (even prior to the 73'd Amendment) State
Legislatures under Article 246(3) read with Entry 5 of List 11 to
make laws with respect to;
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H
"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
RAJBALA& ORS. v. STATE OF HARYANA& ORS.
1121
[CHELAMESWAR, J.]
Legislatures establishing a three-tier Panchayat system by A
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
8
inserted with effect from 24.4.1993.
4. Under Article 24381, it is stipulated that there shall be
constituted in every State, Panchayats at the village,
intermediate and district levels (hereinafter collectively referred
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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 D
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.
E
There is a further stipulation under Article 243E that election
to constitute a Panchayat be completed before the expiry of
' Article 2438. Constitution of Panchayats
F
(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 selfgovernment constituted under article 2438, for the rural areas:
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[2015] 12 S.C.R.
A its tenure3
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
B 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
c referred to as "THE ACT") was enacted to bring the then
existing law governing PAN CHAYA TS in the State in tune with
the Constitution as amended by the 73'd amendment. As
required under Article 24384 , a three tier Panchayat system at
the Village, 'Samiti' and District level is established under THE
D ACT with bodies known as Gram Panchayat, Panchayat Samiti
and Zila Parish ad. Part V Chapter XX of THE ACT deals with
provisions relating to elections to the PANCHAYATS.
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F
3 Article 243E. Duration of Panchayats, etc
- {1) Every Panchayat, unless sooner dissoll'ed under any law fm 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
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dissolved Panchayat would have continued is less than six months, it
shall not be necessary to hold any election under this clause for
constitutin[J 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
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not been so dissolved.
4 See Footnote 1
RAJBALA& ORS. v. STATE OF HARYANA& ORS.
1123
[CHELAMESWAR, J.]
8. Section 162 of THE ACT stipulates that PANCHAYAT A
areas shall be divided into wards5.
9. Section 1656 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
B
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 c
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 D
any one of the three categories of Panchayats etc.
11. By the IMPUGNED ACT7, five more categories of
persons are rendered incapable of contesting elections for
any one of the elected offices under THE ACT. These
E
categories are: (i) persons against whom charges are framed
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· F
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
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Impugned Act which was passed by the Haryana Legislature on 7.9.2015
and subsequently notified.
·
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[2015] 12 S.C.R.
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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.
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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
D 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
E 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 ACT8; (ii) they create
J ·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
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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 (6g,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."
i I
[See Ground 'G' of the Petition]
RAJ BALA & ORS. v. STATE OF HARYANA & ORS.
1125
[CHELAMESWAR, J.)
an artificial classification among voters (by demanding the
A
existence of certain criter.ia 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 grassroots level; and (iii) the classification sought to be made has
8
no legitimate purpose which can be achieved9•
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
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the nature of prescription of "qualifications" or "disqualifications"
for contesting the elections under THE ACT; (ii) ifthe impugned
stipulations are in the nature of a prescription of
disqualifications whether the State legislature is competent to
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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 C0nstitution.
16. On the other hand, the learned Attorney General
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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 rightto contest an election to the PANCHAYATS
is a constitutional right. He argued that even assuming for the
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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
'"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
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Panchayati Raj institutions." [See: Ground 'A' of the Petition]
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[2015] 12 S.C.R
A 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
13
discharged by persons elected to any one of the offices under
THE ACT.
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17. The learned Attorney General also submitted that the
legislature best comprehends the needs of the society10• 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
arbitrary12.
D
18. Answers to questions raised by the petitioners in this
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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 73"i 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 t~e State
Legislatures. The Legislatures in certain States are bicameral.
They are known as Legislative Assembly and Legislative
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Council while other States are unicameral (only the legislative
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10 Maru Ram v. Union of India & Others, (1981) 1 SCC 107
11 In Re: The Kerala Education Bill, 1957, (1959) SCR 995
"State of A.P. & Others v. Mcdowell & Co. & Others, (1996) 3 SCC 709 [See
para 43]
RAJ BALA & ORS. v. STATE OF HARYANA & ORS.
1127
[CHELAMESWAR, J.]
Assembly). After the 73'd and 74th Amendments of the
A
Constitution, PANCHAYATS and Municipal bodies specified
under Parts IX & IXA of the Constitution respectively were
added to the above-mentioned.
20. The n~ture of the right to vote at or the right to B
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 c
Union for Civil Libefties (PUCL) & Another v. Union of
India & Another, (2003) 4 SCC 399 considered the l,(alidity
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
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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
rightto vote in the background of the observations made in
two earlier decisions of this Court, in N.P. Ponnuswami v.
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Returning Officer, Namakkal Constituency, Namakkal,
Salem, Al R 1952 SC 64 and Jyoti Basu & Others v. Debi
Ghosal & Others, (1982) 1 sec 691 and recorded the
categoric conclusion that the "right to vote" if not a fundamental
F
right is certainlya "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
r•
....
the People or Legisl;:itive Assembly is a constitutional
right but not merely a statutory right; freedom of
voting as distinct from right fo .vote is a facet of the
fundamental right enshrined in Article 19(1 )(a). The
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casting of vote in favour of one or the other candidate
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(2015] 12 S.C.R.
A
marks the accomplishment of freedom of expression of
the voter."
A conclusion with which Justice Dharamadhikari expressly
agreed13. The third learned judge Justice M.B. Shah recorded
R no disa~lreement.
22. Following the PUCL case, one of us held in Desiya
Murpokku Dravida Kazhagam (DMDK) & Another v.
Election Commission oflndia, (2012) 7 SCC 340: " ......
c every citizen of this country has a constitutional right both to
elect and also be elected to any one o~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
J)
" ....... an election symbol on a permanent basis irrespective
of its participation and performance judged by the vote share
" Para 131. With these words, I agree with Conclusions (A) to (E) in the
E
opinion of Brother Shah, J. and Conclusions (1), (2), (4), (5), (6), (7) and (9) in
the opinion of Brother P.V. Reddi, J.
" 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
F
Constitution-the "straight conclusion" of Mohinder Singh Gil/v. Chief Election
Commissioner, (1978) 1 sec 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.
RAJ BALA & ORS. v.