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Reportable

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.   

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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

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.    

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4. Under Article 243B1, 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

tenure3. 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:  

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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

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 ACT7, 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

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.   

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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

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Constitution.  They  create  unreasonable  restrictions  on  the

constitutional  right  of  voters  to  contest  elections  under  the

ACT8; (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

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

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

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]

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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

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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 society10.  The

decision to prescribe such a qualification is in the realm of

wisdom of the legislature11 and the Courts do not sit in review

of such wisdom on the ground that the legislative decision is

arbitrary12.            

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 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]

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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

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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

agreed13.  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

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.

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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

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

 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.

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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

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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

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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 consideration18.   Their Lordships also failed to notice that

16  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.

17  See Para 13 of K. Krishna Murthy case 18 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.)

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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 observation19 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

19 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.

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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  Constitution20.

Therefore,  the right to vote and contest at an election for a

municipality was certainly a statutory right by the date of the

judgment21 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 right22.     

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

20  Introduced Part IX-A of the Constitution dealing with Municipalities w.e.f. 1.6.1993 21  The judgment of Allahabad High Court is dated 19.2.1991 and the appeal in this Court is decided on 15.5.1992. 22 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…”   

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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

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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

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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

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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 semantic28.   28  Manoj Narula v. Union of India, (2014) 9 SCC 1

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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.   

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 –

(a) 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;

(b) 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  

(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.”

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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

purpose29 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

29  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.  

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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 –

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(a) 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;

(b) 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

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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.

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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

Sarpanch32 or a Panch33 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—  

30  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. 31  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. 32  Section 2 (lvi) “Sarpanch” means a Sarpanch of Gram Panchayat elected under this Act.  33  Section 2 (xli) "Panch" means a member of a Gram Panchayat elected under this Act.

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(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

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(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  

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(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)-

(i) 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;

(ii) 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).

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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.

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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

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arbitrary and unreasonable34 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

34  “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.” 35  “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

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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. 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.” 36  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

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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.

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.

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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:-

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“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.

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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 Case37 no

doubt indicate that the doctrine  propounded by this Court in

E.P.  Royappa  v. State  of  Tamil  Nadu  & Another38 and

Maneka  Gandhi  v.  Union  of  India  &  Another39 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,

37 (1981) 4 SCC 675 38 (1974) 4 SCC 3 39 (1978) 1 SCC 248

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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 arbitrary40* 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

40 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.

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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.”

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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

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Indian  Constitution41.  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 41 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."

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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 matriculation42 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

42 “(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;”  

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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

43 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.

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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

population44 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

44 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.  

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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

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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

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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

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Gram Panchayat45 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 education46.      

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

45 “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.”  

46 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].

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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

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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  stipulates47

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

47 Articles 102(1)(c) and 191(1)(c).

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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

48 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;

49 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.

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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  650 of  the  Provincial 50 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-

(a) 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

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Insolvency  Act,  1920  and  Section  951 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

(b) 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:  

51 Section 9. Acts of insolvency.- (1) A debtor commits an act of insolvency in each of the following cases, namely;- (a) 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; (b) 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; (c) 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;

(d) if, with intent to defeat or delay his creditors,-- (i) he departs or remains out of the States, (ii) he  departs  from his  dwelling-house  or  usual  place  of  business  or  otherwise

absents himself, (iii) 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 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; (f) if he petitions to be adjudged an insolvent; (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; (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--

(a) 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

(b) 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.   

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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 952, 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

52 9.  Bankruptcy and Insolvency.

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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.

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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 (u) 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

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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 (u) 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

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families desirous of constructing a toilet at their residence53. 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

53  Paras 4 & 5 of the Addl. Affidavit of Respondents 1 to 3 4. 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.

5. 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.

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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 Indian54 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

54    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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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  

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    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.

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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

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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

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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

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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

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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.   

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