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Right to vote & get elected : Constitutional or statutory (legal)?
A long-standing legal question has been - "Is the right to vote and be elected in India a legal right, a constitutional right, or a fundamental right?" Multiple judicial pronouncements over the decades have culminated in a 2015 SC case called “Rajbala & Ors vs State Of Haryana & Ors on 10 December, 2015” in a bench of Justices Chelameswar, and Abhay Manohar Sapre which concluded that “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”. The tortuous history of this issue – (a) Article 326 of the Constitution provides for adult suffrage, but does not mention “the right to vote”, (b) The Sixty-first Amendment' of the Constitution of India, lowered the voting age from 21 years to 18 years, (c) SC held that rights that are not explicitly set out in the Constitution, such as the right to privacy, have routinely been impliedly read into the text, and the SC also said that “…but that treatment did not come to “the right to vote” and it was not always upheld as an inalienable constitutional right”, (d) Then the SC says “…It is disconcerting that the court still does not clearly acknowledge a constitutional right to vote. Participation in the electoral process is often seen as a gateway right, or a ‘right of rights’”, (e) This SC bench also spoke of “The Supreme Court, in its hearings in the 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, 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, and it said that the freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a)”, (f) It also said that “Following the PUCL case, one of the SC judges held in Desiya Murpokku Dravida Kazhagam (DMDK) & Another v. Election Commission of India, (2012) 7 SCC 340: “…… every citizen of this country has a constitutional right both to elect and also be elected to any one of the legislative bodies created by the Constitution …….”. This should settle this question (of Prelims 2017) too! The entire judgement of "Rajbala & Ors vs State Of Haryana & Ors on 10 December, 2015" is reproduced below :
Supreme Court of India
Rajbala & Ors vs State Of Haryana & Ors on 10 December,
2015
Author: Chelameswar
Bench: J. Chelameswar, Abhay Manohar Sapre
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.
3. Article 40 of the
Constitution mandates-37
“40. Organisation of village panchayats - The
State shall take steps to organize village panchayats and endow them with such
powers and authority as may be necessary to enable them to function as units of
self government.” To effectuate such obligation of the State, Constitution
authorised (even prior to the 73rd Amendment) State Legislatures under Article 246(3) read
with Entry 5 of List II to make laws with respect to;
“5. Local government, that is to say, the
constitution and powers of municipal corporations, improvement trusts,
districts boards, mining settlement authorities and other local authorities for
the purpose of local self-government or village administration.” Laws have been
made from time to time by State Legislatures establishing a three-tier
Panchayat system by 1980’s. It was felt desirable that local bodies be given
constitutional status and the basic norms regarding the establishment and
administration of a three-tier Panchayati Raj institutions be provided under
the Constitution. Hence, the 73rd Amendment of the Constitution by which Part
IX was inserted with effect from 24.4.1993.
4. Under Article 243B[1], it is
stipulated that there shall be constituted in every State, Panchayats at the
village, intermediate and district levels (hereinafter collectively referred to
as PANCHAYATS) in accordance with provisions of Part IX. PANCHAYAT is defined
underArticle 243(d)[2].
5. The composition of Panchayats is to be
determined by the legislature of the concerned State by law subject of course
to various stipulations contained in Part IX of the Constitution; such as
reservations of seats in favour of scheduled castes and scheduled tribes etc.
The duration of the Panchayat is fixed under Article 243E for a
maximum of five years subject to dissolution in accordance with law dealing
with the subject. There is a further stipulation under Article 243E that
election to constitute a Panchayat be completed before the expiry of its
tenure[3].
6. The broad contours of the powers and
functions of Panchayats are also spelt out in Article 243G and 243H. Such powers and
responsibilities are to be structured by legislation of the State. The
establishment of an autonomous constitutional body to superintend the election
process to the PANCHAYATS is stipulated under Article 243K.
7. The Haryana Panchayati Raj Act, 1994
(hereinafter referred to as “THE ACT”) was enacted to bring the then existing
law governing PANCHAYATS in the State in tune with the Constitution as amended
by the 73rd amendment. As required under Article 243B[4], a three
tier Panchayat system at the Village, ‘Samiti’ and District level is
established under THE ACT with bodies known as Gram Panchayat, Panchayat Samiti
and Zila Parishad. Part V Chapter XX of THE ACT deals with provisions relating
to elections to the PANCHAYATS.
8. Section 162 of THE ACT stipulates that
PANCHAYAT areas shall be divided into wards[5].
9. Section 165[6] declares that every person
entitled to be registered as voter in the relevant part of the electoral rolls
of the Assembly is entitled to be registered as a voter for the purpose of
PANCHAYATS elections.
10. Section 175 mandates that persons suffering
from any one of the disqualifications mentioned in Section 175 are neither
eligible to contest the election to any one of the offices under the Act nor
can they continue in office if they incur any one of the disqualifications,
after having been elected. The categories so specified runs into a long list,
such as, convicts of certain categories of offences, adjudicated insolvent,
people of unsound mind, people who hold any office of profit under any one of
the three categories of Panchayats etc.
11. By the IMPUGNED ACT[7], five more categories
of persons are rendered incapable of contesting elections for any one of the
elected offices under THE ACT. These categories are: (i) persons against whom
charges are framed in criminal cases for offences punishable with imprisonment
for not less than ten years, (ii) persons who fail to pay arrears, if any, owed
by them to either a Primary Agricultural Cooperative Society or District
Central Cooperative Bank or District Primary Agricultural Rural Development
Bank, (iii) persons who have arrears of electricity bills, (iv) persons who do
not possess the specified educational qualification and lastly (v) persons not
having a functional toilet at their place of residence.
12. On 8.9.2015, the second respondent (State
Election Commission) issued a notification specifying the election schedule for
the PANCHAYATS of Haryana.
13. The three petitioners herein claim to be
political activists interested in contesting the local body elections, but
would now be disabled to contest as none of them possess the requisite
educational qualification.
14. The petitioners challenge the IMPUGNED ACT
principally on the ground that the enactment is violative of Article 14 of the
Constitution. It is argued on behalf of the petitioners that (i) the impugned
provisions are wholly unreasonable and arbitrary and therefore violative of Article 14 of the
Constitution. They create unreasonable restrictions on the constitutional right
of voters to contest elections under the ACT[8]; (ii) they create an artificial
classification among voters (by demanding the existence of certain criteria
which have no reasonable nexus to the object sought to be achieved by the ACT),
an otherwise homogenous group of people who are entitled to participate in the
democratic process under the Constitution at the grass-roots level; and (iii)
the classification sought to be made has no legitimate purpose which can be
achieved[9].
15. Though not very specifically pleaded in the
writ petition, elaborate submissions are made on the questions (i) whether the
stipulations contained in the impugned amendment are in the nature of
prescription of “qualifications” or “disqualifications” for contesting the
elections under THE ACT; (ii) if the impugned stipulations are in the nature of
a prescription of qualifications whether the State legislature is competent to
make such stipulations consistent with the scheme of the Constitution, as can
be culled out from the language ofArticle 243F and
other related provisions of the Constitution.
16. On the other hand, the learned Attorney
General appearing for the respondents submitted that nobody has a fundamental
right to contest an election under our Constitution and it is really not
necessary in the present case to decide whether the right to contest an
election to the PANCHAYATS is a constitutional right. He argued that even
assuming for the sake of argument that there is a constitutional right to
contest an election to the PANCHAYATS, such right is expressly made subject to
qualifications/disqualifications contemplated under Article 243F which
authorises the State legislature to prescribe disqualifications for contesting
election to any PANCHAYAT. Prescription of qualifications to contest an
election based on criteria such as minimal educational accomplishment etc.
cannot be said to be either arbitrary or irrelevant having regard to the nature
of duties required to be discharged by persons elected to any one of the
offices under THE ACT.
17. The learned Attorney General also submitted
that the legislature best comprehends the needs of the society[10]. The
decision to prescribe such a qualification is in the realm of wisdom of the
legislature[11] and the Courts do not sit in review of such wisdom on the
ground that the legislative decision is arbitrary[12].
18. Answers to questions raised by the
petitioners in this writ petition, in our opinion, inevitably depend upon
answer to the question whether right to vote or the right to contest an election
to any of the constitutional bodies is a constitutional or a statutory right,
since the extent to which curtailment or regulation of such right is
permissible depends upon the nature of the right.
19. Prior to the 73rd Amendment of the
Constitution, the Constitution contemplated elections to the office of the
President, Vice-President, the two Houses of the Parliament known as Rajya
Sabha and Lok Sabha and the State Legislatures. The Legislatures in certain
States are bicameral. They are known as Legislative Assembly and Legislative
Council while other States are unicameral (only the legislative Assembly).
After the 73rd and 74th Amendments of the Constitution, PANCHAYATS and
Municipal bodies specified under Parts IX & IXA of the Constitution respectively
were added to the above-mentioned.
20. The nature of the right to vote at or the
right to contest to any one of the abovementioned elections has been a vexed
question.
21. A bench of three judges (M.B. Shah, P.
Venkatarama Reddi and D.M. Dharamadhikari, JJ.) of this Court in People’s Union
for Civil Liberties
(PUCL) & Another v. Union of India & Another, (2003) 4 SCC
399 considered the validity of the Representation of the People (Third
Amendment) Act, 2002 (4 of 2002). By the said amendment, a candidate
contesting an election (to which the Representation of the People Act,
1951 applies) is required to furnish certain information at the time of filing
of nomination. In that context, Justice P.V. Reddi examined in some detail the
nature of the right to vote in the background of the observations made in two
earlier decisions of this Court, in N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency, Namakkal, Salem, AIR 1952 SC 64 and Jyoti Basu & Others v. Debi
Ghosal & Others, (1982) 1 SCC 691 and recorded the categoric
conclusion that the “right to vote” if not a fundamental right is certainly a
“constitutional right” and “it is not very accurate to describe it as a
statutory right, pure and simple”. The learned Judge recorded nine of his conclusions
in para 123. The 2nd conclusion reads as follows: “(2) The right to vote at the
elections to the House of the People or Legislative Assembly is a
constitutional right but not merely a statutory right; freedom of voting as
distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The
casting of vote in favour of one or the other candidate marks the
accomplishment of freedom of expression of the voter.” A conclusion with which
Justice Dharamadhikari expressly agreed[13]. The third learned judge Justice
M.B. Shah recorded no disagreement.
22. Following the PUCL case, one of us held in Desiya Murpokku Dravida Kazhagam
(DMDK) & Another v. Election Commission of India, (2012) 7 SCC
340: “…… every citizen of this country has a constitutional right both to elect
and also be elected to any one of the legislative bodies created by the
Constitution …….”.[14] No doubt, it was a part of the dissenting opinion. It
was a case dealing with allotment of election symbols and the right of a political
party to secure “……. an election symbol on a permanent basis irrespective of
its participation and performance judged by the vote share it commanded at any
election.”[15] Though, the majority held that a political party cannot claim an
election symbol on a permanent basis unless it satisfied norms stipulated under
the symbols order issued by the Election Commission of India. Their Lordships
did not record any disagreement regarding the conclusion that the right to
participate in electoral process, either as a voter or as a candidate is a
constitutional right.
23. Therefore, in our opinion, the question
whether the right to vote at an election for either the Lok Sabha or the
Legislative Assembly is a statutory right or a constitutional right is no more
res integra and stands concluded by the abovementioned judgments, in PUCL and
DMDK cases (supra).
24. However, the learned Attorney General
brought to our notice certain observations in some of the judgments to the
effect that rights to vote and contest elections are purely statutory. The
context and the precedentiary value of those judgments need examination.
25. In Shyamdeo Prasad Singh v. Nawal
Kishore Yadav, (2000) 8 SCC 46, a Bench of three learned Judges
observed:
“20. … It has to be remembered that right to
contest an election, a right to vote and a right to object to an ineligible
person exercising right to vote are all rights and obligations created by
statute….” It was a case dealing with election to the Legislative Council of
Bihar from the Patna Teacher’s Constituency. The limited question before this
Court was whether the High Court in an election petition could examine the
legality of the inclusion of certain names in the electoral roll? We are of the
opinion that the said judgment leaves open more questions than it answers. The
correctness of the judgment requires a more closer scrutiny in an appropriate
case for more than one reason. One of them is that the inquiry in the said
judgment commenced with the examination of Article 326 which has
no application to elections to the Legislative Councils. The text of Article 326 is
express that it only deals with the adult suffrage with respect to Lok Sabha
and Legislative Assemblies. In our opinion the statement (extracted earlier
from para 20 of the said judgment) is made without analysis of relevant
provisions of the Constitution apart from being unnecessary in the context of
the controversy before the Court and is further in conflict with the later
judgment in PUCL’s case.
26. In K. Krishna Murthy (Dr.) &
Others v. Union of India & Another, (2010) 7 SCC 202 para 77,
speaking for a Constitution Bench of this Court, Balakrishnan, CJ. recorded
that: “…… it is a well-settled principle in Indian Law, that the right to vote
and contest elections does not have the status of fundamental rights. Instead,
they are in the nature of legal rights…….”. For recording such conclusion
reliance was placed on certain observations made in an earlier judgment
(decided by a bench of two judges) of this Court in Mohan Lal Tripathi v. District
Magistrate, Rai Bareilly & Others, (1992) 4 SCC 80.
27. The challenge before this Court in K Krishna
Murthy case was regarding the legality ofArticle 243D(6) and Article 243T(6) which
enabled reservation of seats in favour of backward classes etc.[16] The
challenge to the abovementioned provisions is that they “are violative of
principles such as equality, democracy and fraternity, which are part of the
basic structure doctrine”.[17]
28. The decision in PUCL case was unfortunately
not noticed by this Court while deciding K. Krishna Murthy case. Further a
specific request “to reconsider the precedents wherein the rights of political
participation have been characterized as statutory rights” was not given any
consideration[18]. Their Lordships also failed to notice that the observations
made in Mohan Lal case, prior to the 74th Amendment of the Constitution
regarding the nature of the electoral rights with regard to the elections to
the Municipal bodies are wholly inapplicable and without examining provisions
of the Constitution as amended by the 74th Amendment.
29. They relied upon observation[19] from Mohan
Lal case, in our opinion, are too sweeping and made without any appropriate
analysis of law. The limited issue before this Court in Mohan Lal case was the
legality of a ‘no confidence motion’ moved against the President of Rai
Bareilly Municipal Board who was elected directly by voters of the
municipality. The U.P. Municipalities Act provided for removal of the President
so elected through the process of a no confidence motion moved by the
Councilors who themselves, in turn, are elected representatives of the
territorial divisions of the municipality. The question whether the right to
vote in or contest an election is a constitutional or statutory right was not
in issue. Mohan Lal case was dealing with provisions of the U.P. Municipalities
Act, 1916 as amended by Act 19 of 1990, i.e. prior to 74th Amendment of the
Constitution[20]. Therefore, the right to vote and contest at an election for a
municipality was certainly a statutory right by the date of the judgment[21] in
Mohan Lal case.
30. Again in Krishnamoorthy v. Sivakumar &
Others, (2015) 3 SCC 467, this court observed that the right to
contest an election is a plain and simple statutory right[22].
31. We are of the opinion that observations
referred to above are in conflict with the decisions of this Court in PUCL case
and DMDK case, which were rendered after an elaborate discussion of the scheme
of the Constitution. We are of the clear opinion that the Constitution
recognises the distinction between the ‘Right to Vote’ at various elections
contemplated under the Constitution and the ‘Right to Contest’ at such
elections. There are various other electoral rights recognised or created by
the statutes and the Representation
of the People Act, 1951 recognises the same[23].
Right to Vote
32. Prior to the 73rd and 74th amendments, the
Constitution contemplated elections to be held to offices of the President and
the Vice President under Articles 54 and 66 respectively. It also contemplated
elections to the two chambers of Parliament i.e. Rajya Sabha and Lok Sabha. A
small fraction of the Members of the Rajya Sabha are nominated by the President
while other Members are elected[24]. In the case of the Lok Sabha, subject to
stipulations contained in Article 331 providing
for nomination of not more than two Members belonging to the Anglo Indian
Community all other Members are required to be elected. In the case of the
Legislative Council, in States where they exist, a fraction of the Members of
the Council are required to be nominated by the Governor under Article 171(2)(e) and
the rest of the Members are to be elected from various constituencies specified
under Article 171
(3)(a), (b), (c), (d). Legislative
Assemblies shall consist of only elected members subject to provisions for
nomination contained in Article 333 in
favour of the Anglo Indian Community.
33. The right to vote of every citizen at an
election either to the Lok Sabha or to the Legislative Assembly is recognised
under Articles 325 and 326 subject to limitations (qualifications and
disqualifications) prescribed by or under the Constitution. On the other hand
the right to vote at an election either to the Rajya Sabha or to the
Legislative Council of a State is confined only to Members of the Electoral
Colleges specified under Article 80(4) & (5) and Article 171 (3)(a), (b), (c), (d)[25] respectively.
In the case of election to the Rajya Sabha, the Electoral College is confined
to elected members of Legislative Assemblies of various States and
representatives of Union Territories[26]. In the case of the Legislative
Council, the Electoral College is divided into four parts consisting of; (i)
Members of various local bodies specified under Article 171 (3)(a); (ii) certain
qualified graduates specified underArticle 171 (3)(b); (iii) persons
engaged in the occupation of teaching in certain qualified institutions
described under Article 171
(3)(c); and (iv) Members
of the Legislative Assembly of the concerned State. Interestingly, persons to
be elected by the electors falling under any of the above- mentioned categories
need not belong to that category, in other words, need not be a voter in that
category[27].
34. The Electoral College for election to the
Office of the President consists of elected members of both Houses of
Parliament and elected members of the Legislative Assemblies of the State while
the Electoral College with respect to the Vice President is confined to Members
of both Houses of Parliament.
Right to Contest
35. The Constitution prescribes certain basic
minimum qualifications and disqualifications to contest an election to any of
the above mentioned offices or bodies. Insofar as election to the Office of the
President and Vice President are concerned, they are contained under Articles
58 and 66 respectively. Insofar as Parliament and the State Legislatures are
concerned, such qualifications are stipulated under Articles 84 and 173, and
disqualifications under Articles 102 and 191 respectively. The Constitution
also authorises Parliament to make laws prescribing both further qualifications
and disqualifications.
36. Interestingly, insofar as elections to
Office of the President and Vice President are concerned, the Constitution does
not expressly authorise either Parliament or Legislative Assemblies of the
State to prescribe any further qualifications or disqualifications to contest
an election to either of these Offices. It stipulates only two conditions which
qualify a person to contest those Offices, they are - citizenship of the
country and the minimum age of 35 years. Under Articles 58(1)(c) and 66(3)(c),
it is further stipulated that a person who was otherwise eligible to contest
for either of the above mentioned two Offices shall not be eligible unless he
is qualified for election as a Member of the Lok Sabha or the Rajya Sabha
respectively.
37. An examination of the scheme of these
various Articles indicates that every person who is entitled to be a voter by
virtue of the declaration contained under Article 326 is not
automatically entitled to contest in any of the elections referred to above.
Certain further restrictions are imposed on a voter’s right to contest
elections to each of the above mentioned bodies. These various provisions, by
implication create a constitutional right to contest elections to these various
constitutional offices and bodies. Such a conclusion is irresistible since
there would be no requirement to prescribe constitutional limitations on a non
existent constitutional right.
38. Articles 84 and 173 purport to stipulate
qualifications for membership of Parliament and Legislatures of the State
respectively. Articles 102 and 191 purport to deal with disqualifications for
membership of the above mentioned two bodies respectively. All the four
Articles authorise the Parliament to prescribe further qualifications and
disqualifications, as the case may be, with reference to the membership of
Parliament and Legislatures of the State as the case may be.
39. The distinction between the expressions
qualification and disqualification in the context of these four Articles is
little intriguing. There is no clear indication in any one of these four
Articles or in any other part of the Constitution as to what is the legal
distinction between those two expressions. In common parlance, it is understood
that a qualification or disqualification is the existence or absence of a
particular state of affairs, which renders the achievement of a particular
object either possible or impossible. Though there are two sets of Articles
purporting to stipulate qualifications and disqualifications, there is neither
any logical pattern in these sets of Articles nor any other indication which
enables discernment of the legal difference between the two expressions. We
reach such a conclusion because citizenship of India is expressly made a
condition precedent under Articles 84 and 173 for membership of both Parliament
and State Legislatures. Lack of citizenship is also expressly stipulated to be
a disqualification for membership of either of the above mentioned bodies under
Articles 102 and 191. In view of the stipulation under Articles 84 and 173 -
citizenship is one of the requisite qualifications for contesting election to
either Parliament or the State Legislature, we do not see any reason nor is
anything brought to our notice by learned counsel appearing on either side to
again stipulate under the Articles 102 and 191 that lack of citizenship renders
a person disqualified from contesting elections to those bodies. Learned
counsel appearing on either side are also unanimously of the same opinion. We
are, therefore, of the opinion that the distinction between qualifications and
disqualifications is purely semantic[28].
40. We, therefore, proceed on the basis that,
subject to restrictions mentioned above, every citizen has a constitutional
right to elect and to be elected to either Parliament or the State
legislatures.
41. Insofar as the Rajya Sabha and the
Legislative Councils are concerned, such rights are subject to comparatively
greater restrictions imposed by or under the Constitution. The right to vote at
an election to the Lok Sabha or the Legislative Assembly can only be subjected
to restrictions specified in Article 326. It must
be remembered that under Article 326 the
authority to restrict the right to vote can be exercised by the ‘appropriate
legislature’. The right to contest for a seat in either of the two bodies is
subject to certain constitutional restrictions and could be restricted further
only by a law made by the Parliament.
42. The next question is – whether such
constitutional rights exist in the context of elections to the PANCHAYATS?
Having regard to the scheme of Part IX of the Constitution, the purpose[29] for
which Part IX came to be introduced in the Constitution by way of an amendment,
we do not see any reason to take a different view.
43. On the other hand, this Court in Javed & Others v. State of
Haryana & Others, (2003) 8 SCC 369, held that “right to contest
an election is neither a fundamental right nor a common law right. It is a
right conferred by a statute. At the most, in view of Part IX having been added
in the Constitution, a right to contest election for an office in Panchayat may
be said to be a constitutional right …” .
44. We need to examine contours of the two
rights, i.e. the right to vote (to elect) and the right to contest (to get
elected) in the context of elections to PANCHAYATS. Part IX of the Constitution
does not contain any express provision comparable to Article 326 nor does
it contain any express provisions comparable to Article 84 and Article 173. The text
of Article 326 does
not cover electoral rights with respect to PANCHAYATS. Therefore, questions
arise:
i) Whether a non-citizen can become a voter or
can contest and get elected for PANCHAYATS?
ii) In the absence of any express provision,
what is the minimum age limit by which a person becomes entitled to a
constitutional right either to become a voter or get elected to PANCHAYATS?
iii) Are there any constitutionally prescribed
qualifications or disqualifications for the exercise of such rights?
Questions No.(i) and (ii) do not arise on the
facts of the present case. Therefore, we desist examination of these questions.
45. In contradiction to Article 326, Constitution
does not contain any provision which stipulates that a person to be a voter at
elections to PANCHAYAT is required to be either (i) a citizen of India or (ii)
of any minimum age. Similarly, in the context of right to contest an election
to PANCHAYATS, Part IX is silent regarding qualifications required of a
candidate. All that the Constitution prescribes is disqualification for
membership of PANCHAYATS:
“243F. Disqualifications for membership. - (1) A
person shall be disqualified for being chosen as, and for being, a member of a
Panchayat – if he is so disqualified by or under any law for the time being in
force for the purposes of elections to the Legislature of the State concerned:
Provided that no person shall be disqualified on the ground that he is less
than twenty-five years of age, if he has attained the age of twenty-one years;
if he is so disqualified by or under any law
made by the Legislature of the State.
(2) If any question arises as to whether a
member of a Panchayat has become subject to any of the disqualifications
mentioned in clause (1), the question shall be referred for the decision of
such authority and in such manner as the Legislature of a State may, by law,
provide.”
46. It appears from the above, that any person
who is disqualified by or under any law for the time being in force for the
purposes of elections to the Legislatures of the State concerned is also
disqualified for being a member of PANCHAYAT. In other words qualifications and
disqualifications relevant for membership of the Legislature are equally made
applicable by reference to the membership of PANCHAYATS. Though such
qualifications and disqualifications could be stipulated only by Parliament
with respect to the membership of the Legislature of a State, Article 243F authorises
the concerned State Legislature also to stipulate disqualifications for being a
member of PANCHAYAT.
47. The right to vote and right to contest at an
election to a PANCHAYAT are constitutional rights subsequent to the
introduction of Part IX of the Constitution of India. Both the rights can be
regulated/curtailed by the appropriate Legislature directly. Parliament can
indirectly curtail only the right to contest by prescribing disqualifications
for membership of the Legislature of a State.
48. It is a settled principle of law that
curtailment of any right whether such a right emanates from common law,
customary law or the Constitution can only be done by law made by an appropriate
Legislative Body. Under the scheme of our Constitution, the appropriateness of
the Legislative Body is determined on the basis of the nature of the rights
sought to be curtailed or relevant and the competence of the Legislative Body
to deal with the right having regard to the distribution of legislative powers
between Parliament and State Legislatures. It is also the settled principle of
law under our Constitution that every law made by any Legislative Body must be
consistent with provisions of the Constitution.
49. It is in the abovementioned background of
the constitutional scheme that questions raised in this writ petition are
required to be examined.
50. Section 173(1)[30] of THE
ACT stipulates that every person whose name is in the “list of voters” shall be
qualified “to vote at the election of a member for the electoral division to
which such list pertains” unless he is otherwise disqualified. Persons who are
qualified to be registered as voters and “list of voters” are dealt with under Sections 165 and 166, the details of which
are not necessary for the present purpose. Under Section 173(2)[31] every
person whose name is in the list of voters subject to a further condition that
he has attained the age of 21 years is qualified to contest at an election to
any PANCHAYAT unless such a person suffers from a disqualification prescribed
by law.
51. Section 175 of THE
ACT stipulates that “No person shall be a Sarpanch[32] or a Panch[33] of a Gram
Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as
such”, if he falls within the ambit of any of the clauses of Section 175. Section 175reads as
follows: “Section 175.
Disqualifications.—(1) No person shall be a Sarpanch or a Panch of a Gram
Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as
such who—
(a) has, whether before or after the
commencement of this Act, been convicted—
(i) of an offence under the Protection of Civil Rights Act,
1955 (Act 22 of 1955 ), unless a period of five years, or such lesser period as
the Government may allow in any particular case, has elapsed since his
conviction; or
(ii) of any other offence and been sentenced to
imprisonment for not less than six months, unless a period of five years, or
such lesser period as the Government may allow in any particular case, has
elapsed since his release; or (aa) has not been convicted, but charges have
been framed in a criminal case for an offence, punishable with imprisonment for
not less than ten years;
(b) has been adjudged by a competent court to be
of unsound mind; or
(c) has been adjudicated an insolvent and has
not obtained his discharge; or
(d) has been removed from any office held by him
in a Gram Panchayat, Panchayat Samiti or Zila Parishad under any provision of
this Act or in a Gram Panchayat, Panchayat Samiti or Zila Parishad before the
commencement of this Act under the Punjab Gram Panchayat Act, 1952 and Punjab
Panchayat Samiti Act, 1961, and a period of five years has not elapsed from the
date of such removal, unless he has, by an order of the Government notified in
the Official Gazette been relieved from the disqualifications arising on
account of such removal from office; or
(e) has been disqualified from holding office
under any provision of this Act and the period for which he was so disqualified
has not elapsed; or
(f) holds any salaried office or office of
profit in any Gram Panchayat, Panchayat Samiti, or Zila Parishad; or
(g) has directly or indirectly, by himself or
his partner any share or interest in any work done by order of the Gram
Panchayat, Panchayat Samiti or Zila Parishad;
(h) has directly or indirectly, by himself or,
his partner share or interest in any transaction of money advanced or borrowed
from any officer or servant or any Gram Panchayat; or
(i) fails to pay any arrears of any kind due by
him to the Gram Panchayat, Panchayat Samiti or Zila Parishad or any Gram
Panchayat, Panchayat Samiti or Zila Parishad subordinate thereto or any sum
recoverable from him in accordance with the Chapters and provisions of this
Act, within three months after a special notice in accordance with the rules
made in this behalf has been served upon him;
(j) is servant of Government or a servant of any
Local Authority; or
(k) has voluntarily acquired the citizenship of
a Foreign State or is under any acknowledgement of allegiance or adherence to a
Foreign state; or
(l) is disqualified under any other provision of
this Act and the period for which he was so disqualified has not elapsed; or
(m) is a tenant or lessee holding a lease under
the Gram Panchayat, Panchayat Samiti or Zila Parishad or is in arrears of rent
of any lease or tenancy held under the Gram Panchayat, Panchayat Samiti or Zila
Parishad; or
(n) is or has been during the period of one year
preceding the date of election, in unauthorised possession of land or other
immovable property belonging to the Gram Panchayat, Panchayat Samiti or Zila
Parishad; or
(o) being a Sarpanch or Panch or a member of
Panchayat Samiti or a Zila Parishad has cash in hand in excess of that
permitted under the rules and does not deposit the same along with interest at
the rate of twenty-one percentum per year in pursuance of a general or special
order of the prescribed authority within the time specified by it; or
(p) being a Sarpanch or Panch or a Chairman,
Vice-Chairman or Member, President or Vice-President or Member of Panchayat
Samiti or Zila Parishad has in his custody prescribed records and registers and
other property belonging to, or vested in, Gram Panchayat, Panchayat Samiti or
Zila Parishad and does not handover the same in pursuance of a general or
special order of the prescribed authority within the time specified in the
order; or
(q) x x x
(r) admits the claim against Gram Panchayat
without proper authorization in this regard;
(s) furnishes a false caste certificate at the
time of filing nomination:
Provided that such disqualifications under
clauses (r) and (s) shall be for a period of six years.
(t) fails to pay any arrears of any kind due to
him to any Primary Agriculture Co-operative Society, District Central
co-operative Bank and District Primary co-operative Agriculture Rural
Development Bank; or (u) fails to pay arrears of electricity bills;
(v) has not passed matriculation examination or
its equivalent examination from any recognized institution/board:
Provided that in case of a woman candidate or a
candidate belonging to Scheduled Caste, the minimum qualification shall be
middle pass:
Provided further that in case of a woman
candidate belonging to Scheduled Caste contesting election for the post of
Panch, the minimum qualification shall be 5th pass; or (w) fails to submit self
declaration to the effect that he has a functional toilet at his place of
residence.
Explanation 1. – A person shall not be
disqualified under clause (g) for membership of a Gram Panchayat, Panchayat
Samiti or Zila Parishad by reason only of such person,--
(a) having share in any joint stock company or a
share or interest in any society registered under any law for the time being in
force which shall contract with or be employed by or on behalf of Gram
Panchayat, Panchayat Samiti or Zila Parishad; or
(b) having a share or interest in any newspaper
in which any advertisement relating to the affairs of a Gram Panchayat,
Panchayat Samiti or Zila Parishad may be inserted; or
(c) holding a debenture or being otherwise
concerned in any loan raised by or on behalf of any Gram Panchayat, Panchayat
Samiti or Zila Parishad; or
(d) being professionally engaged on behalf of
any Gram Panchayat, Panchayat Samiti or Zila Parishad as a Legal Practitioner;
or
(e) having any share or interest in any lease of
immovable property in which the amount of rent has been approved by the Gram
Panchayat, Panchayat Samiti or Zila Parishad in its own case or in any sale or
purchase of immovable property or in any agreement for such lease, sale or
purchase ; or
(f) having a share or interest in the occasional
sale to the Gram Panchayat, Panchayat Samiti or Zila Parishad of any article in
which he regularly trades or in the purchase from the Gram Panchayat of any
article, to a value in either case not exceeding in any year one thousand
rupees.
Explanation 2. – For the purpose of clause (1)-
A person shall not be deemed to be disqualified
if he has paid the arrears or the sum referred to in clause (i) of this
sub-section, prior to the day prescribed for the nomination of candidates;
x x x.”
52. By the IMPUGNED ACT five more contingencies
specified in clauses (aa), (t), (u), (v) and (w) have been added which render
persons falling in the net of those contingencies disqualified from contesting
elections.
53. At the outset, we must make it clear that
neither learned counsel for the petitioners nor other learned counsel (who were
permitted to make submissions though they are not parties, having regard to the
importance of the matter) made any specific submission regarding
constitutionality of sub- section (1)(aa) of Section 175 which
prescribes that “(1) No person shall be a ….. or continue as such who … (aa)
has not been convicted, but charges have been framed in a criminal case for an
offence, punishable with imprisonment for not less than ten years”. The
challenge is confined to clauses (t), (u), (v) and (w) of Section 175(1).
54. We first deal with the submission of
violation of Article 14 on
the ground of arbitrariness.
55. The petitioners argued that the scheme of
the Constitution is to establish a democratic, republican form of Government as
proclaimed in the Preamble to the Constitution and any law which is
inconsistent with such scheme is irrational and therefore ‘arbitrary’.
56. In support of the proposition that the
Constitution seeks to establish a democratic republic and they are the basic
features of the Constitution, petitioners placed reliance uponHis Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala & Another, (1973) 4 SCC 225
para 1159 and Indira Nehru
Gandhi v. Raj Narain, (1975) Supp SCC 1, paras 563 and 578. There
cannot be any dispute about the proposition.
57. In support of the proposition that a statute
can be declared unconstitutional on the ground that it is arbitrary and
therefore violative of Article 14,
petitioners relied upon judgments of this Court reported in Subramanian Swamy v. Director,
Central Bureau of Investigation & Another, (2014) 8 SCC 682, Indian Council of Legal Aid v. Bar
Council of India, (1995) 1 SCC 732, B. Prabhakar Rao & Others v.
State of Andhra Pradesh & Others, 1985 (Supp) SCC 432 and D.S. Nakara & Others v. Union of
India, (1983) 1 SCC 305 and certain observations made by Justice
A.C. Gupta in his dissenting judgment in R.K. Garg v. Union of India,
(1981) 4 SCC 675.
58. In our opinion, none of the abovementioned
cases is an authority for the proposition that an enactment could be declared
unconstitutional on the ground it is “arbitrary”.
59. In Subramanian Swamy case, the dispute
revolved around the constitutionality ofSection 6A of the
Delhi Special Police Establishment Act 1946, which was introduced by an
amendment in the year 2003. It stipulated that the Delhi Special Police
Establishment shall not conduct any ‘enquiry’ or ‘investigation’ into any
offence falling under the Prevention of
Corruption Act 1988, alleged to have been committed by certain
classes of employees of the Central Government etc. The said provision was
challenged on the ground it was arbitrary and unreasonable[34] and therefore
violative of Article 14. The
submission was resisted by the respondent (Union of India) on the ground that
such a challenge is impermissible in view of the decision in State of Andhra Pradesh v. McDowell
& Co., (1996) 3 SCC 709. But the Constitution Bench eventually
declared the impugned provision unconstitutional not on the ground of it being
arbitrary but on the ground it makes an unreasonable classification of an
otherwise homogenous group of officers accused of committing an offence under
thePrevention of Corruption Act without
there being reasonable nexus between the classification and the object of the
Act.[35]
60. Coming to the Indian Council of Legal
Aid & Advice & Others v. Bar Council of India & Others,
(1995) 1 SCC 732, it was a case where the legality of a rule made by the Bar
Council of India prohibiting the enrolment of persons who completed the age of
45 years was in issue. The rule was challenged on two grounds. Firstly, that
the rule was beyond the competence of the Bar Council of India as the Advocates Act 1961
did not authorise the Bar Council of India to prescribe an upper age limit for
enrolment. Secondly, that the rule is discriminatory and thirdly, the fixation
of upper age limit of 45 years is arbitrary.
61. On an examination of the scheme of the Advocates Act, this Court
came to a conclusion that the impugned rule was beyond the rule making power of
the Bar Council of India and, therefore, ultra vires the Act. This Court also
held that the rule was “unreasonable and arbitrary”[36].
62. We are of the opinion that in view of the
conclusion recorded by the Court that the rule is beyond the competence of Bar
Council of India, it was not really necessary to make any further scrutiny
whether the rule was unreasonable and arbitrary. Apart from that, in view of
the conclusion recorded that the rule was clearly discriminatory, the inquiry
whether the choice of the upper age limit of 45 years is arbitrary or not is
once again not necessary for the determination of the case. At any rate, the
declaration made by this Court in the said case with regard to a piece of
subordinate legislation, in our view, cannot be an authority for the
proposition that a statute could be declared unconstitutional on the ground
that in the opinion of the Court the Act is
arbitrary.
63. Now we shall examine Prabhakar Rao case.
The facts of the case are that the age of
superannuation of employees of the State of Andhra Pradesh was 55 till the year
1979. In 1979, it was enhanced to 58 years. The Government of Andhra Pradesh in
February, 1983 decided to roll back the age of superannuation to 55 years and
took appropriate legal steps which eventually culminated in passing of Act 23
of 1984. The said Act came to be amended by Ordinance 24 of 1984, again
enhancing the age of superannuation to 58 years which was followed up by Act 3
of 1985. While enhancing the age of superannuation to 58 for the second time by
the above-mentioned Ordinance 24 of 1984 and Act 3 of 1985, benefit of the
enhanced age of superannuation was given to certain employees who had retired
in the interregnum between 20.2.1983 and 23.08.1984; while others were denied
such benefit. Prabhakar Rao and others who were denied the benefit challenged
the legislation. This Court placing reliance on D.S. Nakara Case concluded that
the impugned Act insofar as it denied the benefit to some of the employees who
retired in the interregnum between two dates mentioned above was unsustainable
and held as follows:-
“The principle of Nakara clearly applies. The
division of Government employees into two classes, those who had already
attained the age of 55 on February 28, 1983 and those who attained the age of
55 between February 28, 1983 and August 23, 1984 on the one hand, and the rest
on the other and denying the benefit of the higher age of superannuation to the
former class is as arbitrary as the division of Government employees entitled
to pension in the past and in the future into two classes, that is, those that
had retired prior to a specified date and those that retired or would retire
after the specified date and confining the benefits of the new pension rules to
the latter class only. …” (Para 20) The Bench also observed:-
“Now if all affected employees hit by the
reduction of the age of superannuation formed a class and no sooner than the
age of superannuation was reduced, it was realized that injustice had been done
and it was decided that steps should be taken to undo what had been done, there
was no reason to pick out a class of persons who deserved the same treatment
and exclude from the benefits of the beneficent treatment by classifying them
as a separate group merely because of the delay in taking the remedial action
already decided upon. We do not doubt that the Judge’s friend and counselor,
“the common man”, if asked, will unhesitatingly respond that it would be
plainly unfair to make any such classification. The commonsense response that
may be expected from the common man, untrammeled by legal lore and learning,
should always help the Judge in deciding questions of fairness, arbitrariness
etc. Viewed from whatever angle, to our minds, the action of the Government and
the provisions of the legislation were plainly arbitrary and discriminatory.”
(Para 20)
64. Petitioners placed reliance on the last
sentence which said that the “action of the Government and the provisions of
the legislation were plainly arbitrary and discriminatory” in support of their
submission that an Act could be declared unconstitutional on the ground that it
is arbitrary.
65. We are of the opinion that Prabhakar Rao
case is not an authority on the proposition advanced by the petitioners. The
ratio of Prabhakar Rao case is that there was an unreasonable classification
between the employees of the State of Andhra Pradesh on the basis of the date
of their attaining the age of superannuation.
66. Observations by Justice Gupta in R.K. Garg
Case[37] no doubt indicate that the doctrine propounded by this Court in E.P. Royappa v. State of Tamil Nadu
& Another[38] andManeka Gandhi v.
Union of India & Another[39] that arbitrariness is antithetical
to the “concept of equality” is also relevant while examining the
constitutionality of a statute but such observations are a part of the
dissenting judgment and not the ratio decidendi of the judgment.
67. Learned Attorney General heavily relied upon
para 43 of the State of Andhra
Pradesh & Others v. McDowell & Co., (1996) 3 SCC 709 which
dealt with the question of declaring a statute unconstitutional on the ground
it is arbitrary.
“43. Sri Rohinton Nariman submitted that
inasmuch as a large number of persons falling within the exempted categories
are allowed to consume intoxicating liquors in the State of Andhra Pradesh, the
total prohibition of manufacture and production of these liquors is
"arbitrary" and the amending Act is liable to be struck down on this
ground alone. Support for this proposition is sought from a judgment of this
Court in State of Tamil
Nadu & Ors. v. Ananthi Ammal & Others [(1995) 1 SCC
519]. Before, however, we refer to the holding in the said decision, it would
be appropriate to remind ourselves of certain basic propositions in this
behalf. In the United Kingdom, Parliament is supreme. There are no limitations
upon the power of Parliament. No Court in the United Kingdom can strike down an
Act made by Parliament on any ground. As against this, the United States of
America has a Federal Constitution where the power of the Congress and the
State Legislatures to make laws is limited in two ways, viz., the division of
legislative powers between the States and the federal government and the
fundamental rights (Bill of Rights) incorporated in the Constitution. In India,
the position is similar to the United States of America. The power of the
Parliament or for that matter, the State Legislatures is restricted in two
ways. A law made by the Parliament or the Legislature can be struck down by
courts on two grounds and two grounds alone, viz., (1) lack of legislative
competence and (2) violation of any of the fundamental rights guaranteed in
Part-III of the Constitution or of any other constitutional provision. There is
no third ground. We do not wish to enter into a discussion of the concepts of
procedural unreasonableness and substantive unreasonableness - concepts
inspired by the decisions of United States Supreme Court. Even in U.S.A., these
concepts and in particular the concept of substantive due process have proved
to be of unending controversy, the latest thinking tending towards a severe
curtailment of this ground (substantive due process). The main criticism
against the ground of substantive due process being that it seeks to set up the
courts as arbiters of the wisdom of the Legislature in enacting the particular
piece of legislation. It is enough for us to say that by whatever name it is
characterized, the ground of invalidation must fall within the four corners of
the two grounds mentioned above. In other words, say, if an enactment
challenged as violative of Article 14,
it can be struck down only if it is found that it is violative of the equality
clause/equal protection clause enshrined therein. Similarly, if an enactment is
challenged as violative of any of the fundamental rights guaranteed by clauses
(a) to (g) of Article 19(1),
it can be struck down only if it is found not saved by any of the clauses (2)
to (6) of Article 19 and
so on. No enactment can be struck down by just saying that it is arbitrary[40]*
or unreasonable. Some or other constitutional infirmity has to be found before
invalidating an Act. An enactment cannot be struck down on the ground that
Court thinks it unjustified. The Parliament and the Legislatures, composed as
they are of the representatives of the people, are supposed to know and be
aware of the needs of the people and what is good and bad for them. The Court
cannot sit in judgment over their wisdom. In this connection, it should be
remembered that even in the case of administrative action, the scope of
judicial review is limited to three grounds, viz., (i) unreasonableness, which
can more appropriately be called irrationality, (ii) illegality and (iii)
procedural impropriety [See Council of Civil Services Union v. Minister for
Civil Services (1985 A.C.374) which decision has been accepted by this Court as
well]. The applicability of doctrine of proportionality even in administrative
law sphere is yet a debatable issue. [See the opinions of Lords Lowry and
Ackner in R. v. Secretary
of State for Home Department ex p Brind, [1991 AC 696 at 766-67
and 762]. It would be rather odd if an enactment were to be struck down by
applying the said principle when its applicability even in administrative law
sphere is not fully and finally settled. It is one thing to say that a
restriction imposed upon a fundamental right can be struck down if it is
disproportionate, excessive or unreasonable and quite another thing to say that
the Court can strike down enactment if it thinks it unreasonable, unnecessary or
unwarranted. Now, coming to the decision in Ananthi Ammal, we are of the
opinion that it does not lay down a different proposition. It was an appeal
from the decision of the Madras High Court striking down the Tamil Nadu
Acquisition of Land for Harijan Welfare Schemes Acts 1978 as violative of
Articles 14, 19 and 300A of the Constitution. On a review of the provisions of
the Act, this Court found that it provided a procedure which was substantially
unfair to the owners of the land as compared to the procedure prescribed by the Land Acquisition Act,
insofar as Section 11 of
the Act provided for payment of compensation in instalments if it exceeded
Rupees two thousand. After noticing the several features of the Act including
the one mentioned above, this Court observed:
"7. When a statute is impugned under Article 14 what the
court has to decide is whether the statute is so arbitrary or unreasonable that
it must be struck down. At best, a statute upon a similar subject which derives
its authority from another source can be referred to, if its provisions have
been held to be reasonable or have stood the test of time, only for the purpose
of indicating what may be said to be reasonable in the context. We proceed to
examine the provisions of the said Act upon this basis.
44. It is this paragraph which is strongly
relied upon by Shri Nariman. We are, however, of the opinion that the
observations in the said paragraph must be understood in the totality of the
decision. The use of the word ‘arbitrary’ in para 7 was used in the sense of
being discriminatory, as the reading of the very paragraph in its entirety discloses.
The provisions of the Tamil Nadu Act were
contrasted with the provisions of the Land Acquisition Act and
ultimately it was found that Section 11 insofar as
it provided for payment of compensation in instalments was invalid. The ground
of invalidation is clearly one of discrimination. It must be remembered that an
Act which is discriminatory is liable to be labeled as arbitrary. It is in this
sense that the expression ‘arbitrary’ was used in para 7.”
68. From the above extract it is clear that
courts in this country do not undertake the task of declaring a piece of
legislation unconstitutional on the ground that the legislation is “arbitrary”
since such an exercise implies a value judgment and courts do not examine the
wisdom of legislative choices unless the legislation is otherwise violative of
some specific provision of the Constitution. To undertake such an examination
would amount to virtually importing the doctrine of “substantive due process”
employed by the American Supreme Court at an earlier point of time while
examining the constitutionality of Indian legislation. As pointed out in the above
extract, even in United States the doctrine is currently of doubtful
legitimacy. This court long back in A.S. Krishna & Others v. State of
Madras, AIR 1957 SC 297 declared that the doctrine of due process
has no application under the Indian Constitution[41]. As pointed out by
Frankfurter, J., arbitrariness became a mantra.
69. For the above reasons, we are of the opinion
that it is not permissible for this Court to declare a statute unconstitutional
on the ground that it is ‘arbitrary’.
70. We shall examine the next facet of the
challenge i.e. each of the four impugned clauses have created a class of
persons who were eligible to contest the elections to Panchayats subject to
their satisfying the requirements of law as it existed prior to the IMPUGNED
ACT but are rendered now ineligible because they fail to satisfy one of the
other conditions prescribed under clauses (t), (u), (v) and (w) of Section 175(1) of the
Act. The case of the petitioners is that such a classification created by each
of the impugned clauses amount to an unreasonable classification among people
who form one class but for the IMPUGNED ACT, without any intelligible
difference between the two classes and such classification has no nexus with
the object sought to be achieved.
71. Learned Attorney General submitted that the
object sought to be achieved is to have “model representatives for local self
government for better administrative efficiency which is the sole object of the
73rd constitutional amendment”.
72. In the light of the above submissions, we
shall now deal with the challenge to each of the abovementioned four clauses.
73. Clause (v) prescribes a minimum educational
qualification of matriculation[42] for anybody seeking to contest an election
to any one of the offices mentioned in the opening clause of Section 175(1). However,
the minimum educational qualification is lowered insofar as candidates
belonging to scheduled castes and women are concerned to that of “middle pass”
whereas a further relaxation is granted in favour of the scheduled caste woman
insofar as they seek to contest for the office of Panch.
74. It is argued that stipulation of minimum
educational qualification would have the effect of disqualifying more than 50%
of persons who would have otherwise been qualified to contest elections to
PANCHAYATS under the law prior to the IMPUGNED ACT. It is further submitted
that poorer sections of the society, women and scheduled castes would be worst
hit by the impugned stipulation as a majority of them are the most unlikely to
possess the minimum educational qualification prescribed in the IMPUGNED ACT.
75. On the other hand, it is stated in the
affidavit filed on behalf of respondent as follows:
“10. That as per the National Population
Register 2011, total rural population in the State is 1.65 cr out of which 96
lac are above 20 years of age. Further 57% of such population, who are over 20
years of age, is eligible to contest even after the introduction of impugned
disqualification in respect of having minimum education qualification.”
76. According to the Annexure-5 (to the said
affidavit of the respondents) the details of the educational qualification of
the persons above 20 years of age (under Section 173(2)[43] of THE
ACT the minimum qualifying age for contesting any PANCHAYAT election is 21
years) are as follows:
NATIONAL
POPULATION REGISTER – 2011 Number of persons above 20 years of age vis-Ã -vis
their educational qualification | |Total Population |SC Population | |Total |
|Males | |Females | |Total | |Males | |Females | | |Illiterate |3660892 |38%
|1211555 |24% |2449337 |53% |980908 |48% |367755 |34% |613153 |63% |
|Unspecified Literate & below primary |494348 |5% |291058 |6% |203290 |4%
|125442 |6% |77233 |7% |48209 |5% | |Primary/Middle/Matric & above |5458464
|57% |3489821 |70% |1968643 |43% |949306 |46% |631180 |59% |318126 |32% |
|Total Population above 20 years of age |9613704 | |4992434 | |4621270 |
|2055656 | |1076168 | |979488 | | |Total Rural Population |16509359 | |8774006
| |7735353 | |3720109 | |1973294 | |1746815 | | |77.
It can be seen from the above extract that the
total rural population[44] of the State of Haryana is 1.65 crores
approximately. (All figures to be mentioned hereinafter are ‘approximate’)
78. Of the 1.65 crore rural population, 96 lakhs
are in the age group of 20 years and above. In other words, dehors the IMPUGNED
ACT, 96 lakhs would be eligible to contest elections to various PANCHAYATS
subject of course to other qualifications and disqualifications prescribed by
law. Of the 96 lakhs, 36 lakhs are illiterate and about 5 lakhs are literate
but below primary level of education. The remaining 54.5 lakhs are educated,
though the chart does not clearly indicate the exact break-up of the above 54.5
lakhs and their respective educational qualifications i.e. whether they are
educated up to primary or middle or matriculation level and above. The said
54.5 lakhs constitute 57% of the rural population who are otherwise eligible to
contest PANCHAYATS election by virtue of their being in the age group of 20
years and above. Of the 96 lakhs of rural population, 50 lakhs are men and 46
lakhs are women. Of them, 35 lakhs men, 20 lakhs women are literate above
primary level, though exact break-up of educational qualification is not
available. Even if we assume all the 20 lakhs women are matriculate and,
therefore, eligible to contest any election under THE ACT, they would
contribute less than 50% of the otherwise eligible women.
79. The abovementioned figures include all
classes of the population including scheduled caste.
80. Coming to the statistics regarding scheduled
caste population, the total scheduled caste population of Haryana, it appears,
is 21 lakhs of which 11 lakhs are men and 10 lakhs are women of which only 6.3
lakhs men and 3.1 lakhs women constituting 59% and 32% respectively are educated.
In other words, 68% of the scheduled caste women and 41% of the scheduled caste
men would be ineligible to contest PANCHAYAT elections.
81. An analysis of the data in the above table
indicates that a large number of women (more than 50% of the otherwise eligible
women) in general and scheduled caste women in particular would be disqualified
to contest PANCHAYAT elections by virtue of the IMPUGNED ACT. Even with regard
to men, the data is not very clear as to how many of the literate men would be
qualified to contest the elections for PANCHAYATS at various levels. Because
for men belonging to general category (39 lakhs), a uniform requirement of
matriculation is prescribed in respect of posts for which they seek to contest.
Coming to men candidates belonging to the scheduled caste, a uniform academic
qualification of “middle pass” is prescribed. How many men under these
categories would be qualified to contest is not clear, as the exact data
regarding their respective educational qualifications is not available on the
record.
82. Coming to scheduled caste women and the
proviso to clause (v) of Section 175(1),
though educational qualification required is 5th (primary) pass, such a
qualification only entitles them to contest an election for the post of PANCH
of a village but to no other post. Therefore, if a scheduled caste woman
desires to contest either to the post of SARPANCH or any other post at ‘Samiti’
or District level, she must be “middle pass”. The exact number of scheduled
caste women who possess that qualification is not available on record. Even
assuming for the sake of argument that all educated scheduled caste women
indicated in the Annexure-5 are middle pass, they only constitute 32% of the
scheduled caste women. The remaining 68% of the women would be disqualified for
contesting any election under the IMPUGNED ACT.
83. The question is - whether the impugned
provision which disqualifies a large number of voter population and denies
their right to contest for various offices under THE ACT is discriminatory and
therefore constitutionally invalid for being violative of Article 14.
84. The learned Attorney General referred to Section 21 of THE ACT
which catalogues the functions and duties of Gram Panchayat falling under 30
broad heads. To demonstrate the range of those heads, he pointed out some of
the duties of a Gram Panchayat[45] and submitted that in the light of such
responsibilities to be discharged by members elected to the Gram Panchayat, the
legislature in its wisdom thought it fit to prescribe a minimum educational
qualification and such a prescription cannot be said to be making an unreasonable
classification among the voters attracting the wrath of Article 14. Several
judgments of this Court are referred to emphasise the importance of
education[46].
85. The impugned provision creates two classes
of voters - those who are qualified by virtue of their educational
accomplishment to contest the elections to the PANCHAYATS and those who are
not. The proclaimed object of such classification is to ensure that those who
seek election to PANCHAYATS have some basic education which enables them to
more effectively discharge various duties which befall the elected
representatives of the PANCHAYATS. The object sought to be achieved cannot be
said to be irrational or illegal or unconnected with the scheme and purpose of
THE ACT or provisions of Part IX of the Constitution. It is only education
which gives a human being the power to discriminate between right and wrong,
good and bad. Therefore, prescription of an educational qualification is not
irrelevant for better administration of the PANCHAYATS. The classification in
our view cannot be said either based on no intelligible differentia
unreasonable or without a reasonable nexus with the object sought to be
achieved.
86. The only question that remains is whether
such a provision which disqualifies a large number of persons who would
otherwise be eligible to contest the elections is unconstitutional. We have
already examined the scheme of the Constitution and recorded that every person
who is entitled to vote is not automatically entitled to contest for every
office under the Constitution. Constitution itself imposes limitations on the
right to contest depending upon the office. It also authorises the prescription
of further disqualifications/qualification with respect to the right to
contest. No doubt such prescriptions render one or the other or some class or
the other of otherwise eligible voters, ineligible to contest. When the
Constitution stipulates[47] undischarged insolvents or persons of unsound mind
as ineligible to contest to Parliament and Legislatures of the States, it
certainly disqualifies some citizens to contest the said elections. May be,
such persons are small in number. Question is not their number but a
constitutional assessment about suitability of persons belonging to those
classes to hold constitutional offices.
87. If it is constitutionally permissible to
debar certain classes of people from seeking to occupy the constitutional
offices, numerical dimension of such classes, in our opinion should make no
difference for determining whether prescription of such disqualification is
constitutionally permissible unless the prescription is of such nature as would
frustrate the constitutional scheme by resulting in a situation where holding
of elections to these various bodies becomes completely impossible. We,
therefore, reject the challenge to clause (v) toSection 175(1).
88. We shall now deal with the challenge to
clauses (t) and (v) of Section 175(1) of
THE ACT. These two clauses disqualify persons who are in arrears of amounts to
cooperative bodies specified in clause (t) and the electricity bills. These
provisions are challenged on the ground that they impose unreasonable burden on
voters who are otherwise eligible to contest the election and therefore create
an artificial and unreasonable classification which has no nexus to the objects
sought to be achieved by the ACT.
89. Constitution makers recognised indebtedness
as a factor which is incompatible in certain circumstances with the right to
hold an elected office under the Constitution. Article 102(1)(c)[48] and Article 191(1)(c)[49] declare
that an undischarged insolvent is disqualified from becoming a Member of
Parliament or the State Legislature respectively. By virtue of the operation of Article 58(1)(c) and 66(1)(c), the same
disqualification extends even to the seekers of the offices of the President
and the Vice-President.
90. The expression “insolvency” is not defined under
the Constitution. In the absence of a definition, the said expression must be
understood to mean a person who is considered insolvent by or under any law
made by the competent legislature. Sections 6[50] of theProvincial Insolvency Act,
1920 and Section 9[51]
of the Presidency – Towns Insolvency
Act, 1909 declare various activities which constitute acts of
insolvency. It is an aspect of indebtedness - a specified category of
indebtedness. If the Constitution makers considered that people who are
insolvent are not eligible to seek various elected public offices, we do not
understand what could be the constitutional infirmity if the legislature
declares people who are indebted to cooperative bodies or in arrears of
electricity bills to be ineligible to become elected representatives of the
people in PANCHAYATS. It must be remembered that insolvency is a field over
which both the Parliament as well as the legislatures of the State have a
legislative competence concurrently to make laws as it is one of the topics
indicated under Entry 9[52], List III of the Seventh Schedule to the
Constitution.
91. The submission is that rural India is
heavily indebted and particularly agriculturists who constitute a majority of
our rural population are deeply indebted and reportedly a large number of
agriculturists have been committing suicides as they are not able to bear the
burden of indebtedness. Therefore, prescriptions under clauses (t) and
(v) of Section 175(1) of the
Act is an arbitrary prescription creating a class of persons who would become
ineligible to contest Panchayat elections and such classification has no
rational nexus to the object of the Panchayati Raj Act whose constitutional
goal is to empower the rural population by enabling them to play a role in the
decision making process of the units of local self government, is the
contention.
92. No doubt that rural India, particularly
people in the agricultural sector suffer the problem of indebtedness. The
reasons are many and it is beyond the scope of this judgment to enquire into
the reasons. It is also a fact that there have been cases in various parts of
the country where people reportedly commit suicides unable to escape the debt
trap. But, it is the submission of the respondents that such incidents are very
negligible in the State of Haryana as the agricultural sector of Haryana is
relatively more prosperous compared to certain other parts of the country. We
do not wish to examine the statistical data in this regard nor much of it is
available on record. In our view, such an enquiry is irrelevant for deciding
the constitutionality of the impugned provision. We are also not very sure as
to how many of such people who are so deeply indebted would be genuinely
interested in contesting elections whether at PANCHAYAT level or otherwise. We
can certainly take judicial notice of the fact that elections at any level in
this country are expensive affairs. For that matter, not only in this country,
in any other country as well they are expensive affairs. In such a case the
possibility of a deeply indebted person seeking to contest elections should
normally be rare as it would be beyond the economic capacity of such persons.
In our opinion, the challenge is more theoretical than real. Assuming for the sake
of argument that somebody who is so indebted falling within the prescription of
clauses
(t) and (v) of Section 175(1) of the
Act is still interested in contesting the PANCHAYAT elections, nothing in law
stops such an aspirant from making an appropriate arrangement for clearance of
the arrears and contest elections. At this stage, an incidental submission is
required to be examined. It is submitted that there could be a genuine dispute
regarding the liability falling under the clauses (t) and (v) and therefore it
would be unjust to exclude such persons from the electoral process even before
an appropriate adjudication. Justness of such a situation is once again in the
realm of the wisdom of the legislation. We do not sit in the judgment over the
same. But we must make it clear nothing in law prevents an aspirant to contest
an election to the PANCHAYAT to make payments under protest of the amounts
claimed to be due from him and seek adjudication of the legality of the dues by
an appropriate forum. We do not see any substance in the challenge to clauses
(t) and (v) ofSection 175(1) of
the Act.
93. Clause (w) disqualifies a person from
contesting an election to the Panchayat if such a person has no functional
toilet at his place of residence. Once again the submission on behalf of the
petitioners is that a large number of rural population simply cannot afford to
have a toilet at their residence as it is beyond their economic means. To
render them disqualified for contesting elections to the PANCHAYATS would be to
make an unreasonable classification of otherwise eligible persons to contest
elections to PANCHAYAT and, therefore, discriminatory.
94. It is submitted on behalf of respondents
that the submission of the petitioner is without any factual basis. According
to statistical data available with the State, there are approximately 8.5 lakhs
house holders classified as families falling below poverty line (BPL) in the
State of Haryana. It is further submitted that right from the year 1985 there
have been schemes in vogue to provide financial assistance to families desirous
of constructing a toilet at their residence[53]. In the initial days of such a
scheme Rs.650/- was given by the State and from time to time the amount was
revised and at present Rs.12000/- is provided by the State to any person
desirous of constructing a toilet. As per the data available with the State, of
the abovementioned 8.5 lakhs households, classified to be below the poverty
line, approximately 7.2 lakhs households had availed the benefit of the above
scheme. Therefore, according to the respondents if any person in the State of
Haryana is not having a functioning toilet at his residence it is not because
that he cannot afford to have a toilet but because he has no intention of
having such facility at his residence. It is very forcefully submitted by the
learned Attorney General that a salutary provision designed as a step for
eliminating the unhealthy practice of rural India of defecating in public,
ought not to be invalidated.
95. It is a notorious fact that the Indian[54]
population for a long time had this unhealthy practice of defecating in public.
The Father of the Nation wrote copiously on this aspect on various occasions.
He took up with a missionary zeal the cause to eradicate this unhealthy
practice. At some point of time, he even declared that the priority of this
country should be to get rid of such unhealthy practice than to fight for
independence. It is unfortunate that almost a hundred years after Gandhiji
started such a movement, India is still not completely rid of such practice.
The reasons are many. Poverty is one of them. However, this unhealthy practice
is not exclusive to poorer sections of rural India. In a bid to discourage this
unhealthy practice, the State has evolved schemes to provide financial
assistance to those who are economically not in a position to construct a
toilet. As rightly pointed by the respondents, if people still do not have a
toilet it is not because of their poverty but because of their lacking the
requisite will. One of the primary duties of any civic body is to maintain
sanitation within its jurisdiction. Those who aspire to get elected to those civic
bodies and administer them must set an example for others. To the said end if
the legislature stipulates that those who are not following basic norms of
hygiene are ineligible to become administrators of the civic body and
disqualifies them as a class from seeking election to the civic body, such a
policy, in our view, can neither be said to create a class based on
unintelligible criteria nor can such classification be said to be unconnected
with the object sought to be achieved by the Act.
96. For the above-mentioned reasons, we see no
merit in this writ petition, and the same is dismissed.
….………………………….J.
(J. Chelameswar) …….……………………….J.
(Abhay Manohar Sapre) New Delhi;
December 10, 2015 REPORTABLE [ IN THE SUPREME
COURT OF INDIA CIVIL APPELLATE JURISDICTION WRIT PETITION No.671 OF 2015
Rajbala & Ors. …..….Petitioner(s) VERSUS State of Haryana & Others
……Respondent(s) J U D G M E N T Abhay Manohar Sapre, J.
1. I have had the advantage of going through the
elaborate, well considered and scholarly draft judgement proposed by my
esteemed brother Jasti Chelmeswar J. I entirely agree with the reasoning and
the conclusion, which my erudite brother has drawn, which are based on remarkably
articulate process of reasoning. However, having regard to the issues involved
which were ably argued by learned counsel appearing in the case, I wish to add
few lines of concurrence.
2. While examining the question of
constitutionality of the impugned amendment made under Section 175 (1) of
the Haryana Panchayati Raj Act (for short “the Act”), which are under attack in
this writ petition, the question arose regarding the true nature of the two rights
of the citizen - "Right to Vote" and "Right to Contest"
viz- whether they are statutory right or constitutional right?
3. A three Judge Bench in PUCL vs. Union of India [(2003)
4 SCC 399] examined the question regarding nature of "Right to Vote".
The learned Judge P.V. Reddi, in his separate opinion, which was concurred by
Justice D.M. Dharmadhikari, examined this question in great detail and in
express terms, answered it holding that the "Right to Vote" is a
constitutional right but not merely a statutory right. We are bound by this
view taken by a three Judge Bench while deciding this question in this writ
petition.
4. Similarly, another three Judge Bench in Javed vs. State of Haryana [(2003)
8 SCC 369] examined the question regarding the nature of "Right to
Contest" while examining the constitutional validity of certain provisions
of The Act. The learned Judge
R.C. Lahoti (as his Lordship then was) speaking for the Bench held that right
to contest an election is neither a Fundamental Right nor a common right. It is
a right conferred by statute. His Lordship went on to hold that "at the
most, in view of Part IX having been added in the Constitution, a right to
contest the election for an office in Panchayat may be said to be a
constitutional right. We are bound by this view taken by a three Judge Bench
while deciding this question in this writ petition.
5. In the light of aforementioned two
authoritative pronouncements, we are of the considered opinion that both the
rights namely "Right to Vote" and "Right to Contest" are
constitutional rights of the citizen.
6. Indeed, my learned brother rightly took note
of the few decisions, which had while deciding the main questions involved in
those cases also incidentally made some observations on these two issues, which
we feel were not in conformity with the law, laid down in the aforementioned
two decisions.
7. Coming now to the question of constitutional
validity of Section 175 (1)(v)
of the Act which provides that candidate must possess certain minimum
educational qualification if he/she wants to contest an election. In my
opinion, introduction of such provision prescribing certain minimum educational
qualification criteria as one of the qualifications for a candidate to contest
the election has a reasonable nexus with the object sought to be achieved.
8. In fact, keeping in view the powers,
authority and the responsibilities of Panchayats as specified in Article 243-G so also
the powers given to Panchayats to impose taxes and utilization of funds of the
Panchayats as specified in Article 243-H,
it is necessary that the elected representative must have some educational
background to enable him/her to effectively carry out the functions assigned to
Panchyats in Part IX. It is the legislative wisdom to decide as to what should
be the minimum qualifications, which should be provided in the Act.
9. No one can dispute that education is must for
both men and women as both together make a healthy and educated society. It is
an essential tool for a bright future and plays an important role in the
development and progress of the country.
10. In my view, therefore, Section 175 (v) of
the Act is intra vires the Constitution and is thus constitutionally valid.
11. Now coming to the question regarding
constitutionality of Section 175(w) of
the Act, which provides that if a person has no functional toilet at his place
of residence, he/she is disqualified to contest the election. In my view, this
provision too has reasonable nexus and does not offend any provision of the
Constitution.
12. Indeed, there are no grounds much less
sustainable grounds available to the petitioners to question the validity of
this provision. This provision in my view is enacted essentially in the larger
public interest and is indeed the need of the hour to ensure its application
all over the country and not confining it to a particular State. Moreover, the
State having provided adequate financial assistance to those who do not have
toilet facility for construction of toilet, there arise no ground to challenge
this provision as being unreasonable in any manner. Since this issue has already
been elaborately dealt with by my learned brother, therefore, I do not wish to
add anything more to it.
13. In the light of the foregoing discussion
agreeing with my learned brother, I also hold thatSection 175 (v) is
intra vires the Constitution and is thus constitutionally valid.
14. In my view, therefore, the writ petition
deserves to be dismissed and is accordingly dismissed. As a consequence,
interim order stands vacated.
..……..................................J.
[ABHAY
MANOHAR SAPRE] New Delhi;
December
10, 2015.
-----------------------
[1] Article 243B. Constitution
of Panchayats
(1) There shall be constituted in every
State, Panchayats at the village, intermediate and district levels in
accordance with the provisions of this Part (2) Notwithstanding anything
in clause ( 1 ), Panchayats at the intermediate level may not be constituted in
a State having a population not exceeding twenty lakhs [2] Article 243(d). “Panchayat”
means an institution (by whatever name called) of self- government constituted
under article 243B,
for the rural areas;
[3] Article 243E. Duration
of Panchayats, etc - (1) Every Panchayat, unless sooner dissolved under
any law for the time being in force, shall continue for five years from the
date appointed for its first meeting and no longer.
(2) No amendment of any law for the time
being in force shall have the effect of causing dissolution of a Panchayat at
any level, which is functioning immediately before such amendment, till the
expiration of its duration specified in clause ( 1 ).
(3) An election to constitute a Panchayat
shall be completed-
(a) before the expiry of its duration
specified in clause (1);
(b) before the expiration of a period of
six months from the date of its dissolution:
Provided that where the remainder of the period
for which the dissolved Panchayat would have continued is less than six months,
it shall not be necessary to hold any election under this clause for
constituting the Panchayat for such period.
(4) A Panchayat constituted upon the
dissolution of a Panchayat before the expiration of its duration shall continue
only for the remainder of the period for which the dissolved Panchayat would
have continued under clause (1) had it not been so dissolved.
[4] See Footnote 1 [5] Section 162. Electoral
division: – Every sabha area, block and district shall be divided into wards as
referred in sections 8(3), 58(2) and 119(b) of this Act.
[6] Section 165. Persons
qualified to be registered as voters.- Every person who is entitled to be
registered as voter in the relevant part of the electoral rolls of the Assembly
under theRepresentation of People Act,
1950, shall be entitled to be registered as a voter in the list of voters for
the electoral division to be prepared under section 164. [7]
Initially, an ordinance known as “Haryana Panchayat Raj (Amendment) Ordinance,
2015 was promulgated on 14.8.2015 now replaced by the Impugned Act which was
passed by the Haryana Legislature on 7.9.2015 and subsequently notified.
[8] “That the Respondents have passed the
impugned Act and Notification without any consideration, regard or appreciation
for the empirical data pertaining to the number of people that would be
prevented from contesting Panchayati Raj elections by its actions. That the
Respondents’ actions have the effect of disqualifying 56.80% of the population
who would need to be matriculation pass (69,86,197) and 79.76% of the
population who would need to be middle-pass (10,83,052), in order to contest
elections. That by its actions, the Respondents have prevented an overwhelming
majority of the population from contesting elections, in contravention of Article 14, without any
regard for Constitutional principles.” [See: Ground ‘G’ of the Petition] [9]
“no reasonable nexus between the impugned classifications set out in the
impugned Act, and the object of the Act. That the imposition of
disqualifications on the grounds laid down by the impugned Act are entirely
irrelevant to, and have no bearing whatsoever on the ability of potential
candidates to effectively discharge their duties and perform their functions as
members/heads of Panchayati Raj institutions.” [See: Ground ‘A’ of the
Petition] [10] Maru Ram v.
Union of India & Others, (1981) 1 SCC 107 [11] In Re: The Kerala
Education Bill, 1957, (1959) SCR 995 [12] State of A.P. & Others v.
Mcdowell & Co. & Others, (1996) 3 SCC 709 [See para 43] [13]
Para 131. With these words, I agree with Conclusions (A) to (E) in the opinion
of Brother Shah, J. and Conclusions (1), (2), (4), (5), (6), (7) and (9) in the
opinion of Brother P.V. Reddi, J.
[14] Para 101. In my opinion, therefore, subject
to the fulfillment of the various conditions stipulated in the Constitution or
by an appropriate law made in that behalf, every citizen of this country has a
constitutional right both to elect and also be elected to any one of the
legislative bodies created by the Constitution—the “straight conclusion” of Mohinder Singh Gill v. Chief Election
Commissioner, (1978) 1 SCC 405, “that every Indian has a right to
elect and be elected—subject to statutory regulation”, which rights can be
curtailed only by a law made by the appropriate legislation, that too on
grounds specified under Article 326 only.
For complete discussion - see paras 86 to 104.
[15] [16] Para 57. All these petitions filed
either under Article 32 or
under Article 136 raise
certain common and substantial questions of law as to the interpretation of the
Constitution. The lis, essentially, is between the Election Commission of
India, a creature of the Constitution under Article 324, on the one
hand and various bodies claiming to be political parties and some of their
functionaries, on the other hand. The essence of the dispute is whether a
political party is entitled for the allotment of an election symbol on a
permanent basis irrespective of its participation and performance judged by the
vote share it commanded at any election.
[17] Para 12. However, the petitioners raised
strong objections against the other aspects of the reservation policy
contemplated under Articles 243- D and 243-T. Initially, they had assailed the
reservation of seats in favour of women, which has been enabled by Articles
243-D(2) and (3) with respect to rural local bodies, and by Articles 243-T(2)
and (3) with respect to urban local bodies. However, this challenge was given
up during the course of the arguments before this Court and the thrust of the
petitioner’s arguments was directed towards the following two aspects:
Firstly, objections were raised against Article 243-D(6) and Article 243-T(6) since
they enable reservations of seats and chairperson posts in favour of backward
classes, without any guidance on how to identify these beneficiaries and the
quantum of reservation.
Secondly, it was argued that the reservation of
chairperson posts in the manner contemplated under Articles 243-D(4) and
243-T(4) is unconstitutional, irrespective of whether these reservations are
implemented on a rotational basis and irrespective of whether the beneficiaries
are SCs, STs and women. The objection was directed against the very principle
of reserving chairperson posts in elected local bodies.
[18] See Para 13 of K. Krishna Murthy case [19]
Para 79. The petitioners have asked us to reconsider the precedents wherein the
rights of political participation have been characterised as statutory rights.
It has been argued that in view of the standard of reasonableness, fairness and
non-discrimination required of governmental action underArticle 21 of the
Constitution, there is a case for invalidating the restrictions that have been
placed on these rights as a consequence of reservations in local
self-government. We do not agree with this contention.
Para 80. In this case, we are dealing with an
affirmative action measure and hence the test of proportionality is a far more
appropriate standard for exercising judicial review. It cannot be denied that
the reservation of chairperson posts in favour of candidates belonging to the
Scheduled Castes, Scheduled Tribes and women does restrict the rights of
political participation of persons from the unreserved categories to a certain
extent. However, we feel that the test of reasonable classification is met in
view of the legitimate governmental objective of safeguarding the interests of
weaker sections by ensuring their adequate representation as well as
empowerment in local self-government institutions. The position has been
eloquently explained in the respondents’ submissions, wherein it has been
stated that “the asymmetries of power require that the chairperson should
belong to the disadvantaged community so that the agenda of such panchayats is
not hijacked for majoritarian reasons”. (Cited from the submissions on behalf
of the State of Bihar, p. 49.) [20] Para 2. Democracy is a concept, a political
philosophy, an ideal practised by many nations culturally advanced and
politically mature by resorting to governance by representatives of the people
elected directly or indirectly. But electing representatives to govern is
neither a ‘fundamental right’ nor a ‘common law right’ but a special right
created by the statutes, or a ‘political right’ or ‘privilege’ and not a
‘natural’, ‘absolute’ or ‘vested right’. ‘Concepts familiar to common law and
equity must remain strangers to election law unless statutorily embodied.’
Right to remove an elected representative, too, must stem out of the statute as
‘in the absence of a constitutional restriction it is within the power of a
legislature to enact a law for the recall of officers’. Its existence or validity
can be decided on the provision of the Act and not, as a matter of policy.
[21] Introduced Part IX-A of the Constitution
dealing with Municipalities w.e.f. 1.6.1993 [22] The judgment of Allahabad High
Court is dated 19.2.1991 and the appeal in this Court is decided on 15.5.1992.
[23] Para 60. “The purpose of referring to the
same is to remind one that the right to contest in an election is a plain and
simple statutory right…” [24] Section 123(2). Undue
influence, that is to say, any direct or indirect interference or attempt to
interfere on the part of the candidate or his agent, or of any other person
with the consent of the candidate or his election agent, with the free exercise
of any electoral right:
[25] Article 80. Composition
of the Council of States.- (1) The Council of States shall consist of
(a) twelve members to be nominated by the President in accordance with the
provisions of clause (3); and (b) not more than two hundred and thirty
eight representatives of the States and of the Union territories.
(2) The allocation of seats in the Council
of States to be filled by representatives of the States and of the Union
territories shall be in accordance with the provisions in that behalf contained
in the fourth Schedule.
(3) The members to be nominated by the
President under sub clause (a) of clause (1) shall consist of persons having
special knowledge or practical experience in respect of such matters as the
following, namely:
Literature, science, art and social service.
(4) The representatives of each State in
the council of States shall be elected by the elected members of the
Legislative Assembly of the State in accordance with the system of proportional
representation by means of the single transferable vote.
(5) The representatives of the Union
Territories in the council of States shall be chosen in such manner as
Parliament may by law prescribe. [26] Article 171(3) Of the
total number of members of the Legislative council of a State:
(a) as nearly as may be, one third shall be
elected by electorates consisting of members of municipalities, district boards
and such other local authorities in the State as Parliament may by law specify;
(b) as nearly as may be, one twelfth shall
be elected by electorates consisting of persons residing in the State who have
been for at least three years graduates of any university in the territory of
India or have been for at least three years in possession of qualifications
prescribed by or under any law made by Parliament as equivalent to that of a
graduate of any such university;
(c) as nearly as may be, one twelfth shall
be elected by electorates consisting of persons who have been for at least
three years engaged in teaching in such educational institutions within the
State, not lower in standard than that of a secondary school, as may be
prescribed by or under any law made by Parliament;
(d) as nearly as may be, one third shall be
elected by the members of the Legislative Assembly of the State from amongst
persons who are not members of the Assembly;
(e) the remainder shall be nominated by the
Governor in accordance with the provisions of clause (5) [27] Article 80(4). The
representatives of each State in the council of States shall be elected by the
elected members of the Legislative Assembly of the State in accordance with the
system of proportional representation by means of the single transferable vote.
[28] G. Narayanaswami v. G. Pannerselvam
& Others [(1972) 3 SCC 717] “Para 14. Whatever may have
been the opinions of Constitution- makers or of their advisers, whose views are
cited in the judgment under appeal, it is not possible to say, on a perusal of Article 171 of the
Constitution, that the Second Chambers set up in nine States in India were
meant to incorporate the principle of what is known as “functional” or
“vocational” representation which has been advocated by Guild-Socialist and
Syndicalist Schools of Political Thought. Some of the observations quoted
above, in the judgment under appeal itself, militate with the conclusions
reached there. All that we can infer from our constitutional provisions is that
additional representation or weightage was given to persons possessing special
types of knowledge and experience by enabling them to elect their special
representatives also for Legislative Councils. The concept of such
representation does not carry with it, as a necessary consequence, the further
notion that the representative must also possess the very qualifications of
those he represents.
[29] Manoj Narula v. Union of India,
(2014) 9 SCC 1 Para 110. Article 84 of
the Constitution negatively provides the qualification for membership of
Parliament. This Article is quite simple and reads as follows:
“84. Qualification for membership of Parliament
– A person shall not be qualified to be chosen to fill a seat in Parliament
unless he – is a citizen of India, and makes and subscribes before some person
authorised in that behalf by the Election Commission an oath or affirmation
according to the form set out for the purpose in the Third Schedule;
is, in the case of a seat in the Council of
States, not less than thirty years of age, in the case of a seat in the House
of the People, not less than twenty-five years of age; and possesses such other
qualifications as may be prescribed in that behalf by or under any law made by
Parliament.” [30] Bhanumati &
Others v. State of U.P., (2010) 12 SCC 1 Para 33. The Panchayati Raj
institutions structured under the said amendment are meant to initiate changes
so that the rural feudal oligarchy lose their ascendancy in village affairs and
the voiceless masses, who have been rather amorphous, may realise their growing
strength. Unfortunately, effect of these changes by way of constitutional
amendment has not been fully realised in the semi-feudal set-up of Indian
politics in which still voice of reason is drowned in an uneven conflict with
the mythology of individual infallibility and omniscience. Despite high ideals
of constitutional philosophy, rationality in our polity is still subordinated
to political exhibitionism, intellectual timidity and petty manipulation. The
Seventy-third Amendment of the Constitution is addressed to remedy these evils.
[31] Section 173. Persons
qualified to vote and be elected. – (1) Every person whose name is in the list
of voters shall, unless disqualified under this Act or any other law for the
time being in force, be qualified to vote at the election of a Member for the
electoral division to which such list pertains.
[32] Section 173(2). Every
person who has attained the age of twenty- one years and whose name is in the
list of voters shall, unless disqualified under this Act or under any other law
for the time being in force, be disqualified to be elected from any electoral
division. [33]Section 2 (lvi)
“Sarpanch” means a Sarpanch of Gram Panchayat elected under this Act.
[34] Section 2 (xli)
"Panch" means a member of a Gram Panchayat elected under this Act.
[35] “Para 3(3). …….. The Learned Senior Counsel
contends that it is wholly irrational and arbitrary to protect highly-placed
public servants from inquiry or investigation in the light of the conditions
prevailing in the country and the corruption at high places as reflected in several
judgments of this Court including that of Vineet Narain. Section 6-A of the
Act is wholly arbitrary and unreasonable and is liable to be struck down being
violative of Article 14 of
the Constitution is the submission of learned amicus curiae.
(4). In support of the challenge to the
constitutional validity of the impugned provision, besides observations made in
the three-Judge Bench decision in Vineet Narain case reliance has also been
placed on various decisions including S.G. Jaisinghani v. Union of India[(1967)
2 SCR 703], Shrilekha
Vidyarthi v. State of U.P. [(1991) 1 SCC 212], Ajay Hasia v. Khalid Mujib Sehravardi [(1981)
1 SCC 722] and Mardia Chemicals
Ltd. v. Union of India[(2004) 4 SCC 311] to emphasize that the
absence of arbitrary power is the first essential of the rule of law upon which
our whole constitutional system is based. In Mardia Chemicals case a three-
Judge Bench held Section 17(2) of the Securitisation and Reconstruction of
Financial Assets and Enforcement of
Security Interest Act, 2002 to be unreasonable and arbitrary and
violative of Article 14 of
the Constitution. Section 17(2) provides
for condition of deposit of 75% of the amount before an appeal could be
entertained. The condition has been held to be illusory and oppressive. Malpe Vishwanath Acharya v. State of
Maharashtra[(1998) 2 SCC 1], again a decision of a threeJudge Bench,
setting aside the decision of the High Court which upheld the provisions of
Sections 5(10)(b), 11(1) and 12(3) of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 pertaining to standard rent in petitions where the
constitutional validity of those provisions was challenged on the ground of the
same being arbitrary, unreasonable and consequently ultra vires Article 14 of the
Constitution, has come to the conclusion that the said provisions are arbitrary
and unreasonable.” [36] “Para 64. ……………. We are also clearly of the view that
no distinction can be made for certain class of officers specified in Section 6-A who are
described as decision making officers for the purpose of inquiry/investigation
into an offence under thePC Act,
1988. There is no rational basis to classify the two sets of public servants
differently on the ground that one set of officers is decision making officers
and not the other set of officers. If there is an accusation of bribery, graft,
illegal gratification or criminal misconduct against a public servant, then we
fail to understand as to how the status of offender is of any relevance. Where
there are allegations against a public servant which amount to an offence under
the PC Act,
1988, no factor pertaining to expertise of decision making is involved. Yet, Section 6-A makes a
distinction. It is this vice which renders Section 6-A violative
of Article 14. Moreover,
the result of the impugned legislation is that the very group of persons,
namely, high ranking bureaucrats whose misdeeds and illegalities may have to be
inquired into, would decide whether the CBI should even start an inquiry or
investigation against them or not. There will be no confidentiality and
insulation of the investigating agency from political and bureaucratic control
and influence because the approval is to be taken from the Central Government
which would involve leaks and disclosures at every stage.
Para 99. In view of our foregoing discussion, we
hold that Section 6-A(1),
which requires approval of the Central Government to conduct any inquiry or
investigation into any offence alleged to have been committed under the PC Act, 1988 where such
allegation relates to (a) the employees of the Central Government of the level
of Joint Secretary and above and (b) such officers as are appointed by the
Central Government in corporations established by or under any Central Act, government
companies, societies and local authorities owned or controlled by the
Government, is invalid and violative of Article 14 of the
Constitution. As a necessary corollary, the provision contained in Section 26 (c) of the
Act 45 of 2003 to that extent is also declared invalid.” [37] Para 13. The next
question, is the rule reasonable or arbitrary and unreasonable? The rationale
for the rule, as stated earlier, is to maintain the dignity and purity of the
profession by keeping out those who retire from various government,
quasi-government and other institutions since they on being enrolled as advocates
use their past contacts to canvass for cases and thereby bring the profession
into disrepute and also pollute the minds of young fresh entrants to the
profession. Thus the object of the rule is clearly to shut the doors of
profession for those who seek entry in to the profession after completing the
age of 45 years. In the first place, there is no reliable statistical or other
material placed on record in support of the inference that ex-government or
quasi- government servants or the like indulge in undesirable activity of the
type mentioned after entering the profession. Secondly, the rule does not debar
only such persons from entry in to the profession but those who have completed
45 years of age on the date of seeking enrolment. Thirdly, those who were enrolled
as advocates while they were young and had later taken up some job in any
government or quasi-government or similar institution and had kept the sanad in
abeyance are not debarred from reviving their sanads even after they have
completed 45 years of age. There may be a large number of persons who initially
entered the profession but later took up jobs or entered any other gainful
occupation who revert to practise at a later date even after they have crossed
the age of 45 years and under the impugned rule they are not debarred from
practising. Therefore, in the first place there is no dependable material in
support of the rationale on which the rule is founded and secondly the rule is
discriminatory as it debars one group of persons who have crossed the age of 45
years from enrolment while allowing another group to revive and continue
practice even after crossing the age of 45 years. The rule, in our view,
therefore, is clearly discriminatory. Thirdly, it is unreasonable and arbitrary
as the choice of the age of 45 years is made keeping only a certain group in
mind ignoring the vast majority of other persons who were in the service of
government or quasi-government or similar institutions at any point of time.
Thus, in our view the impugned rule violates the principle of equality
enshrined in Article 14 of
the Constitution.
[38] (1981) 4 SCC 675 [39] (1974) 4 SCC 3 [40]
(1978) 1 SCC 248 [41] An expression used widely and rather indiscriminately -
an expression of inherently imprecise import. The extensive use of this
expression, in India reminds one of what Frankfurter,J. said in Hattie Mae
Tiller v. Atlantic Coast Line Railroad Co., 87 L.Ed. 610. "The phrase
begins life as a literary expression; its felicity leads to its lazy repetition
and repetition soon establishes it as a legal formula, undiscriminatingly used
to express different and sometimes contradictory ideas", said the learned
Judge.
[42] In Municipal Committee Amritsar v.
State of Punjab, (1969) 1 SCC 475, at para 7, this Court clearly
ruled out the application of the doctrine of “due process” employed by the
Court adjudicating the constitutionality of the legislation.
But the rule enunciated by the American Courts
has no application under our Constitutional set up. The rule is regarded as an
essential of the "due process clauses" incorporated in the American
Constitution by the 5th & the 14th Amendments. The Courts in India have no
authority to declare a statute invalid on the ground that it violates the
"due process of law". Under our Constitution, the test of due process
of law cannot be applied to statutes enacted by the Parliament or the State
legislatures. This Court has definitely ruled that the doctrine of "due
process of law" has no place in our Constitutional system: A. K. Gopalan v. State of Madras,
1950 SCR.
88. Kania, C.J., observed (at p. 120):-
"There is considerable authority for the
statement that the Courts are not at liberty to declare an Act void because in
their opinion it is opposed to a spirit supposed to pervade the Constitution
but not expressed in words. . . . . it is only in express constitutional
provisions limiting legislative power and controlling the temporary will of a
majority by a permanent and paramount law settled by the deliberate wisdom of
the nation that one can join a safe and solid ground for the authority of
Courts of Justice to declare void any legislative enactment."
[43] “(v) has not passed matriculation
examination or its equivalent examination from any recognized
institution/board:
Provided that in case of a woman candidate or a
candidate belonging to Scheduled Caste, the minimum qualification shall be
middle pass:
Provided further that in case of a woman
candidate belonging to Scheduled Caste contesting election for the post of
Panch, the minimum qualification shall be 5th pass;” [44] Section 173(2). Every
person who has attained the age of twenty- one years and whose name is in the
list of voters shall, unless disqualified under this Act or under any other law
for the time being in force, be qualified to be elected from any electoral
division.
[45] The expression “rural population” is used
by the respondents in their counter affidavit to mean people living in areas
falling within the territorial limits of some PANCHAYAT.
[46] “Section 21. Functions and
duties of Gram Panchayat.—Subject to such rules as may be made, it shall be the
duty of the Gram Panchayat within the limits of the funds at its disposal, to
make arrangements for carrying out the requirements of sabha area in respect of
the following matters including all subsidiary works and buildings connected
therewith:--
XI.
Non-conventional Energy Sources-
(1)
Promotion and Development of non-conventional energy schemes.
(2) Maintenance of community non-conventional
energy devices, including bio-gas plants and windmills.
(3) Propagation of improved chulhas and other
efficient devices.
XXI. Social Welfare including Welfare of the
Handicapped and Mentally Retarded-
(1) Participation in the implementation of the
social welfare programmes including welfare of the handicapped, mentally
retarded and destitute.
(2) Monitoring of the old age and widows pension
scheme.” [47] We are of the opinion that it is not really necessary to examine
the various observations made by this Court regarding the importance of
education for two reasons, firstly, nobody is disputing the general proposition
that education plays a great role in the evolution of the personality of a
human being. Secondly, none of the cases referred to by the AG dealt with the
relevance of education in the context of the right to contest any election
contemplated by the Constitution. [See: Bhartiya Seva Samaj Trust v.
Yogeshbhai Ambalal Patel, (2012) 9 SCC 310; Avinash Mehrotra v. Union of India,
(2009) 6 SCC 398; P.A. Inamdar v.
State of Maharashtra, (2005) 6 SCC 537;T.R. Kothandaramam v. T.N. Water
Supply & Drainage Board; (1994) 6 SCC 282; Unni Krishnan v. State of Andhra
Pradesh, (1993) 1 SCC 645; Maharashtra State Board of Secondary
and Higher Secondary Education v. K.S. Gandhi, (1991) 2 SCC 716; and
State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19].
[48] Articles 102(1)(c) and 191(1)(c).
[49] Article 102. Disqualifications
for membership.—(1) A person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament – **** **** **** **** **** ****
(c) – if he is an undischarged insolvent;
[50] Article 191. Disqualifications
for membership.—(1) A person shall be disqualified for being chosen as, and for
being, a member of the Legislative Assembly or Legislative Council of a State –
**** **** **** **** **** ****
(c) if he is an undischarged insolvent.
[51] Section 6. Acts of
insolvency.—(1) A debtor commits an act of insolvency in each of the following
cases, namely:-
(a) if, in India or elsewhere, he makes a
transfer of all or substantially all his property to a third person for the
benefit of his creditors generally;
(b) if, in India or elsewhere, he makes a
transfer of his property or of any part thereof with intent to defeat or delay
his creditors;
(c) if in India or elsewhere, he makes any
transfer of his property, or of any part thereof, which would, under this or
any other enactment for the time being in force, be void as fraudulent
preference if he were adjudged an insolvent;
(d) if with intent to defeat or delay his
creditors,-
he departs or remains out of the territories to
which this Act extends;
he departs from his dwelling-house or usual
place of business or otherwise absents himself;
he secludes himself so as to deprive his creditors
of the means of communicating with him;
(e) if any of his property has been sold in
execution of the decree of any Court for the payment of money;
(f) if he petitions to be adjudged an insolvent
under the provisions of this Act;
(g) if he gives notice to any of his
creditors that he has suspended, or that he is about to suspend, payment of his
debts; or
(h) if he is imprisoned in execution of
the decree of any Court for the payment of money.
(2) Without prejudice to the provisions of
sub-section (1), a debtor commits an act of insolvency if a creditor, who has
obtained a decree or order against him for the payment of money (being a decree
or order which has become final and the execution whereof has not been stayed),
has served on him a notice (hereafter in this section referred to as the
insolvency notice) as provided in sub-section (3) and the debtor does not
comply with that notice within the period specified therein:
Provided that where a debtor makes an
application under sub-section (5) for setting aside an insolvency notice-
in a case where such application is allowed by
the District Court, he shall not be deemed to have committed an act of
insolvency under this sub- section; and in a case where such application is
rejected by the District Court, he shall be deemed to have committed an act of
insolvency under this sub- section on the date of rejection of the application
or the expiry of the period specified in the insolvency notice for its
compliance, whichever is later:
[52] Section 9. Acts of
insolvency.- (1) A debtor commits an act of insolvency in each of the
following cases, namely;-
if, in the States or elsewhere, he makes a
transfer of all or substantially all his property to a third person for the
benefit of his creditors generally;
if, in the States or elsewhere, he makes a
transfer of his property or of any part thereof with intent to defeat or delay
his creditors;
if, in the States or elsewhere, he makes any
transfer of his property or of any part thereof, which would, under this or any
other enactment for the time being in force, be void as fraudulent preference
if he were adjudged an insolvent;
if, with intent to defeat or delay his creditors,--
he departs or remains out of the States, he
departs from his dwelling-house or usual place of business or otherwise absents
himself, he secludes himself so as to deprive his creditors of the means of
communicating with him;
if any of his property has been sold or attached
for a period of not less than twenty-one days in execution of the decree of any
Court for the payment of money;
if he petitions to be adjudged an insolvent;
if he gives notice to any of his creditors that
he has suspended, or that he is about to suspend, payment of his debts;
if he is imprisoned in execution of the decree
of any Court for the payment of money.
(2) Without prejudice to the provisions of sub-
section (1), a debtor commits an act of insolvency if a creditor, who has
obtained a decree or order against him for the payment of money (being a decree
or order which has become final and the execution whereof has not been stayed),
has served on him a notice (hereafter in this section referred to as the
insolvency notice) as provided in sub- section (3) and the debtor does not
comply with that notice within the period specified therein:
Provided that where a debtor makes an
application under sub- section (5) for setting aside an insolvency notice--
in a case where such application is allowed by
the Court, he shall not be deemed to have committed an act of insolvency under
this sub- section; and in a case where such application is rejected by the
Court, he shall be deemed to have committed an act of insolvency under this
sub- section on the date of rejection of the application or the expiry of the
period specified in the insolvency notice for its compliance, whichever is
later:
Provided further that no insolvency notice shall
be served on a debtor residing, whether permanently or temporarily, outside
India, unless the creditor obtains the leave of the Court therefor.
[53] 9. Bankruptcy and Insolvency.
[54] Paras 4 & 5 of the Addl. Affidavit of
Respondents 1 to 3 That the main objective of the programme is to ensure access
of toilets to all rural families so as to achieve Open Defecation Free (ODF)
status. For this purpose, both the Center and State of Haryana have also been
providing financial incentive to the people below poverty line (BPL) in the
rural areas of State of Haryana. Besides few other Above Poverty Line (APL)
household categories namely, all SCs, small farmers, marginal farmers, landless
labourers with homestead, physically handicapped and women headed households
were also identified for the purpose of granting financial incentive since
01.04.2012 under the said scheme.
That the financial incentive is also being
provided to Below Poverty Line (BPL) households for the construction and usage
of individual household latrines (IHHL) in recognition of their achievements.
In Haryana total rural BPL households are 8,56,359 and against it, 7,21,038
households have been provided incentive for the construction of IHHL.
Similarly, Above Poverty Line (APL) households restricted to SCs/STs, small and
marginal farmers, landless labourers with homestead, physically handicapped and
women headed households have also been provided financial assistance w.e.f.
04.04.2012. Presently, w.e.f. 02.10.2014 the financial incentive is being given
to above category of households @ Rs.12000 (Rs.9000 from Centre and Rs.3000
from State Government). Out of 30,67,907 rural households 25,84,810 i.e. 84%
have IHHLs. Out of which 23,60,318 IHHLs have been build under Rural Sanitation
Programmes since 1999, of which 8,82,012 have been given incentive money at
various rates prevailing at different times. [55] In England this habit existed
till 15th Century at least, “poor sanitation made London a death-trap. Without
any kind of sewage system, the streets stank to high heaven, whereas human
excrement was systematically collected in Chinese cities and used as fertilizer
in outlying paddy fields. In the days when Dick Whittington was lord mayor –
four times between 1397 and his death in 1423 – the streets of London were
paved with something altogether less appealing than gold.”, [Niall Ferguson,
Civilization : The West and the Rest , (First Edition, Penguin Press, 2011)]
page 23
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Schedule 1 of the Indian Wildlife Act 1972
Here is the complete list of species. Questions in major exams have appeared recently.
SCHEDULE
I
(Sections
2, 8,9,11, 40,41, 48,51, 61 & 62)
PART
I
MAMMALS
[1. Andaman
Wild pig (Sus sorofa andamanensis)]
2[1-A.
Bharal (Ovisnahura)]
2[1
-B. Binturong (Arctictis Binturong)]
2. Black Buck
(Antelope cervicapra) 2[2-A. •*•]
3.
Brow-antlered Deer or Thamin (Cervus eldi) 3[3-A.
Himalayan Brown bear (Ursus
Arctos)] 3[3-B.
Capped Langur (Presbytis pileatus)]
4. Caracal
(Felis caracal) [4-A. Catecean specials]
5. Cheetah
(Acinonyx jubatus)
4[5-A.
Chinese Pangolin (Mainis pentadactyla)]
'[5-B.
Chinkara or India Gazelle (Gazella gazella bennetti)]
6. Clouded
Leopard (Neofelis nebulosa) 2[6-A.
Crab-eating Macaque (Macaca irus
umbrosa)] 2[6-B.
Desert Cat (Felis libyca)]
3[6-C
Desert fox (Vulpes bucapus)]
7. Dugong
(Dugong dugon) 2[7-A Ermine (Mustele
erminea)]
8. Fishing Cat
(Felis viverrina)
a[8-A
Four-horned antelope (Tetraceros quadricomis)]
2[8-B.
*••]
3[8-C
***]
3[8-D.
Gangetic dolphin (Platanista gangetica)]
3[8-E.
Gaur or Indian bison (Bos gaurus)]
9. Golden Cat
(Felis temmincki)
10. Golden
Langur (Presbytis geei) 3[10-A. Giant squirrel
(Ratufa macroura)]
[10-B.
Himalayan Ibex (Capra ibex)]
' [10-C.
Himalayan Tahr (Hemitragus jemlahicus)]
11. Hispid
Hare (Caprolagus hispidus) 3[11-A. Hog
badgar (Arconyx collaris)]
12. Hoolock
(Hyloba tes hoolock)
1 Vide
Notification No. FJ11012/31/76 FRY(WL), dt. 5-10-1977.
2 Vide
Notification No. Fl-28/78 FRY(WL), dt. 9-9-1980.
3 Vide
Notification No. S.O. 859(E), dt. 24-11-1986.
4 Vide
Notification No. F] 11012/31 FRY(WL), dt. 29-8-1977.
'[12-A. •••]
2[12-B.
Indian Elephant (Elephas maximus)]
13. Indian
Lion (Panlhera leo persica)
14. Indian
Wild Ass (Equus hemionus khur) 3[15. Indian
Wolf (Canis lupas pallipes)]
16. Kashmir
Stag (Cervus elaphus hanglu) J[16-A Leaf
Monkey (Presbytis phayrei)]
'[16-B.
Leopard or Panther (Panthera pardus)]
17. Leopard
Cat (Felis bengalensis)
18. Lesser or
Red Panda (Ailurus fulgens)
19.
Lion-tailed Macaque (Macaca silenus)
20. Loris
(Loris tardigradus)
2[20-A.
Little Indian Porpoise (Neomeris phocenoides)]
21. Lynx (Felix
lynx isabellinus)
22. Malabar
Civet (Viverra megaspila) ![22-A. Malay or Sun
Bear (Helarctos
malayanus)]
23. Marbled
Cat (Felis marmorata)
24. Markhor
(Capra falconeri) 4[24-A. Mouse Deer
(Tragulus meminna)]
25. Musk Deer
(Moschus moschiferus) 2[25-A. Nilgiri Lungur
(Presbytis johni)] 2[25-
B. Nilgiri
Tahr (Hemitragus hylocrius)]
26. Nyan or
Great Tibetan Sheep (Ovis ammon hodgsoni)
27. Pallas's
Cat (Felis manul)
28. Pangolin
(Manis crassicaudata)
29. Pygmy Hog
(Sus salvanius) '[29-A. Ratel (Mellivora capensis)]
30. Rhinoceros
(Rhinoceros unicornis)
31. Rusty
spotted Cat (Felis rubiginosa) [31-A. Serow (Capricornis sumatraensis)]
2[31
-B. Clawless Otter (Aonyx cinerea)] 2[31-C.
Sloth Bear (Melursus ursinus)]
32. Slow Loris
(Nycticebus couceang)
[32-A. Small
Travencore Flying Squirrel (Petinomys fuscocapillus)]
33. Snow
Leopard (Panthera uncia)
1 Vide
Notification No. Fl-28/78 FRY(WL). dt. 9-9-1980.
2 Vide
Notification No. S.O. 859(E), dt. 24-11-1986.
3 Vide
Notification No. FJ11012/31/76 FRY(WL), dt. 29-8-1977.
4 Vide
Notification No. FJ 11012/31/76 FRY(WL), dt. 5-10-1977.
'[33-A.
Snubfin Dolphin (Oreaella brevezastris)]
34. Spotted
Linsang (Prionodon pardicolor)
35. Swamp Deer
(All sub-species of Cervus d uvauceli)
36. Takin or
Mishmi Takin (Budorcas taxicolor) 2[36A.
Tibetan Antelope or Chiru
(Panthelops
hodgsoni)] '[36B. Tibetan Fox (Vulpes ferrilatus)]
37. Tibetan
Gazelle (Procapra picticaudata)
38. Tibetan
Wild Ass (Equus beminus kiang)
39. Tiger
(Panthera tigris)
40. Urial or
Shapu (Ovis vignei)
41. Wild
Buffalo (Bubalus bubalis) 2[41-A. Wild Yak (Bos
grunniens)] '[41-B.
Tibetan Wolf
(Canis lupus chanco)]
• [42.
Wroughton's free tailed bat (Otomops wroughtoni)
43. Salim
Ali's fruit bat (Latidens salimalii)]
PART
II AMPHIBIANS AND REPTILES
[1. Agra
Monitor Lizard [Varanus griseus (Daudin)]]
4[1A.
*••]
'[IB. Audithia
Turtle (Pelochelysbibroni)]
[IC. Barred,
Oval, or Yellow Monitor Lizard (Varanus flavescens)]
[ID.
Crocodiles (including the Estuarine or salt water crocodile) (Crocodilus
porosus and
Crocodilus palustris)]
'(IE. Terrapin
(Batagur basika)]
IF. Eastern
Hill Terrapin (Melanochelys tricarinata)
2. Gharial
(Gravialis gangeticus)
[3. Ganges
Soft-shelled Turtle (Trionyx gangeticus)]
'[3A. Golden
Gecko (Caloductyloides aureus)]
4. Green Sea
Turtle (Chelonia Mydas)
5. Hawksbill
Turtle (Eretmochelys imbricata inlscata)
'[6. •••]
7. Indian
Egg-eating Snake (Elachistodon westermanni)
8. Indian
Soft-shelled Turtle (Lissemys punctata punctata)
9-A. Kerala
Forest Terrapin (Hoesemys sylratica)
10. Large
Bengal Monitor Lizard (Varanus bengalensis)
11. Leathery
Turtle (Dermochelys coriacea)
12. Logger
Head Turtle (Caretta caretta)
13. Olive Back
Logger Head Turtle (Lepidochelys olivacea)
14.
Peacock-marked Soft-shelled Turtle (Trionyx hurum)
1 Vide
Notification No. SO 859(E), dt. 24-11-1986.
2 Vide
Notification No. FJ 11012/31/76 FRY(WL), dt. 5-10-1977.
3 Inserted
vide Notification No. SO 1085(E), dt. 30-9-2002, w.e.f. 11-10-2002.
4 Vide
Notification No. Fl-28/78 FRY(WL), dt. 9-9-1980.
5 Vide
Notification No. FJ 11012/31/76 FRYfWL), dt. 29-8-1977.
'[14-A.
Pythons (Genus Python)] J[14-B. Sail terrapin
(Kachuga Kachuga)] 14-C.
Spotted black
Terrapin (Geoclemys hamiltoni) 2[15. •••] 2[16.
•»•] 2[17. ***] 3[17-A.
Water Lizard
(Varanus salvator)]
"[PART
IIA FISHES
1. Whale Shark
(Rhincodon typus)] 5[2. Shark and Ray
(i)
Anoxypristis cuspidata (ii) Carcharhinus hemiodon
(iii) Glyphis
gangeticus (iv) Glyphis glyphis
(v) Himantura
fluviatilis (vi) Pristis microdon
(vii) Pristis
zijsron (viii) Rhynchobatus djiddensis
(ix) Urogymus
asperrimus.]
PART
III BIRDS 6[1.
Andaman Teal (Anas gibberifrons allagularis)] 1-A. Assam
Bamboo
Partridge (Bambusicola fytchii) 3[1 -B. Bazas
(Aviceda jeordone and Aviceda
leuphotes)]
[1-C. Bengal Florican (Eupodotis bengalensis)] 1-D. Black-necked Crane
(Grus
nigricollis)
1-E. Blood
Pheasants (Ithaginis cruentus tibetanus, lthaginis Cruentus kuseri) 2[1F.
***]
2. Cheer
Pheasant (Catreus wallichii)
2[2A.
Eastern White Stork (Ciconia ciconia boyciana)] 3[2B.
Foret-spotted Owlet
(Athene
blewitti)] * [2C. Frogmouths (Genus batrachostomus)]
3. Great
Indian Bustard (Choriotis nigriceps)
4. Great
Indian Hornbill (Buceros bicornis) 2[4A.
Hawks (Accipitridao)]
3[4B.
Hooded Crane (Grus monacha)]
3[4C.
Hornbills (Ptilolaemus tickelli austeni, Aceros nipalensis, Rhyticeros
undulatus
ticehursti)] 3[4D. Houbara Bustard
(Chlamydotis undulata)] 3[4E. Humes
Bar-backed
Pheasant (Syrmaticus humiae)] 3[4F. Indian
Pied Hornbill (Anthracoceros
malabaricus)]
5. Jerdon's
Courser (Cursorius bitorquatus)
6.
Lammergeier(Gypaetusbarbatus)
1 Vide
Notification No. SO 859(E), dt. 24-11-1986.
2 Vide
Notification No. FI-28/78 FRY(WL), dt. 9-9-1980.
3 Vide
Notification No. FJ11012/31/76 FRY(WL), dt. 29-8-1977.
4 Inserted
vide Notification No. 1-2/2001-WL-l, dt. 28-5-2001.
5 Substituted
vide Notification No. 1-4/95-WL, dt. 5-12-2001, w.e.f. 6-12-2001.
6 Vide
Notification No. FJ 11012/31/76 FRY(WL), dt. 5-10-1977.
7. Large
Falcons (Falco peregrinus, Falco biarmicus and Falco chicuera) 3[7A
Large
Whistling Teal
(Anatidae)]
'[7B. Lesser
Florican (Sypheotides indica)]
l[7C.
Monal Pheasants (Lophophorus impeyanus, Lophophorus Sclateri)]
8. Mountain
Quail (Ophrysia supericiliosa)
9. Narcondam
Hornbill [Rhyticeros (undulatus) narcondami)] '[9-A. ***]
10. Nicobar
Megapode (Megapodius freycinet) [10-A Nicobar Pigeon (Caloenas
nicobarica
pelewensis)]
2[10-B.
Osprey or Fish-eating Eagle (Pandion haliatetus)]
2[10-C.
Peacock Pheasants (Polyplectron bicalearaturn)]
11. Peafowl
(Pavo cristatus)
12.
Pink-headed Duck (Rhodonessa caryophyllacea)
13. Scalater's
Monal (Lophophorus sclateri)
14. Siberian
White Crane (Grus leucogeranus) 3[14-A- **»]
2[14-B.
Tibetan Snow-Cock (Tetraogallus tibetanus)]
15. Tragopan
Pheasants (Tragopan melanocephalus, Tragopan blythii, Tragopan satyra,
tragopan
temminckii)
16.
White-bellied Sea Eagle (Haliaetus leucogaster)
17.
White-eared Pheasant (Crossoptilon crossoptilon) l[\7-A.
White Spoonbill
(Platalea
leucorodia)]
18.
White-winged Wood Duck (Cairina scutulata)
4[19.
Swiftlets (Collocalia unicolor and Collacalia fusiphaga)
20. Hill myna
(Gracula religiosa intermedia, Gracula religiosa peninsularis, Gracula
religiosa
indica and Gracula religiosa and amanesis)
21. Tibetan
ear pheasant (Crossoptilon harmani) 22- Kalij pheasant (Lophurs
leucomelana)
23. Lord
Derby's parakeet (Psittacula derbyana)
24. Vultures
(Gyps indicus, Gyps bengalensis, Gyps tenuirostris)
25. White
bellied hereon (Ardea insignis)]
PART
IV
CRUSTACEA AND
INSECTS '[1.] Butterflies and Moths
Family
Amathusildae Common English name
Discophora deo
deo Duffer, banded
Discophora
sondaica muscina Duffer, common
Faunis faunula
faunuloides Pallid fauna
Family
Danaidae
1 Re-numbered
vide Notification No. SO 859(E), dt. 24-11-1986.
2 Vide
Notification No. FJ 11012/31/76 FRY(WL), dt. 29-8-1977.
3 Vide
Notification No. FI-28/78 FRY(WL), dt. 9-9-1980.
4 Inserted
vide Notification No. SO 1085(E), dt. 30-9-2002, w.e.f. 11-10-2002.
Danaus gautama
gautamodies Tigers
Euploea
crameri nicevillei Crow, spotted Black
Euploea
midamus roepstorfti Crow, Blue-spotted
Family
Lycaenidae
Allotinus
drumila Darkie, crenulate/Great
Allotinus
fabius penormis Angled darkie
Amblopala
avidiena Hairstreak, Chinese
Amblypodia ace
arata Leaf
Blue
Amblypodia
alea constanceae Rosy Oakblue
Amblypodia
ammonariel Malayan Bush blue
Amblypodia
arvina ardea Purple Brown tailless Oakblue
Amblypodia asopia
Plain tailless Oakblue
Amblypodia
comica Comic Oakblue
Amblypodia
opalima Opal Oakblue
Amblypodia
zeta Andaman tailless Oakblue
Biduanda
Melisa Cyana
Biduanda
melisa cyana Blue posy
Callophyrs
leechii Hairstreak, Ferruginous
Castalius
rosimon alarbus Pierrot, common
Charana
cephies Mandar in Blue, Cachar
Chlioria
othona Tit,
orchid
Deudoryx
epijarbas amatius Cornelian, scarce
Everes moorei
Cupid, Moore's
Gerydus
biggsii Bigg's Brownie
Gerydus
symethus diopeithes Great Brownie
Heliophorus
hybrida Sapphires
Horaga
albimacula
Onyxes
Jamides
ferrari
Caeruleans
Liphyra
brassolis Butterfly, Moth
Listeria
dudgenni Lister's hairstreak
Logania
Watsoniana subsfasciata Mottle, Wasten's
Lycaenopsis
binghami Hedge Blue
Lycaenopsis
haraldus ananga Hedge Blue, Felder's
Lycaenopsis
puspa prominens Common hedge Blue
Lycaenopsis
quadriplaga dohertiya Naga hedge Blue
Nacaduba
noreia hampsoni Lineblue, White-tipped
Polyommarus
oritulus leela Greenish mountain Blue
Pratapa lcetas
mishmia Royal, drak Blue
Simiskina
phalena harterti Brilliant, Broadlanded
Sinthusa Virgo
Spark,
Pale
Spindasis
elwesi Silverline, Elwes's
Spindasis
rukmini Silverline, Khaki
Strymoni
mackwoodi Hairstreak, Mackwood's
Tajuria ister
Royal, uncertain
Tajuria
luculentus nela Royal, Chinese
Tajuria yajna
yajna Royal, Chestnut and Black
Thecla ataxus
zulla Wonderful hairstreak
Thecla bleti
mendera Indian Purple hairstreak
Thecla letha
Watson's hairstreak
Thecla paona
Paona hairstreak
Thecla pavo
Peacock
hairstreak
Virchola
smilis Guava
Blues Family
Nymphalidae
Apatura ulupi
ulupi Emperor, Tawny
Argynnis
hegemone Silver-washed fritillary
Callnaga
buddha
Freak
Charases
durnfordi nicholi Rajah, Chestnut
Cirrochroa
fasciata
Yeomen
Diagora
nicevillei Siren,
Scarce
Dillpa
morgiana Emperor, Golden
Doleschallia
bisaltide andamana Autumn leaf
Eriboea moorel
sandakanas Mayanan Nawab
Eriboea
schreiberi Blue
Nawab
Eulaceura
manipurensis Emperor, Tytler's
Euthalia durga
splendens Barons/Connis/Duchesses
Euthaliaiva
Duke,
Grand
Euthalia Khama
Curvifascia Duke, Naga
Euthalia
tellehinia Baron,
Blue
Helcyra hemina
Emperor, White
Hypolimnas
missipus Eggfly, Danaid
Limenitis
austenia purpurascens Commodore, Grey
Limenitis
zulema
Admirals
Melitaea
shandura Fritillaries/Silverstripes
Neptis
antilope Sailer, variegated
Neptis aspasia
Sailer, Great Hockeystick
Neptis
columella kankena Sailer.Short-banded
Neptis cydippe
kirbariensis Sailer, Chinese yellow
Neptis ebusa
ebusa Sailer/Lascar
Neptis jumbah
binghami Sailer, chestnut-streaked
Neptis manasa
Sailer, Pale Hockeystick
Neptis nycteus
Sailer, Hockeystick
Neptis poona
Lascar, tytler's
Neptis sankara
nar Sailer, Broad-banded
Panthoporia
jina jina Bhutan sergeant
Panthoporia
reta moorei Malay staff sergeant
Prothoc
franckii regalis Begum, Blue
Sasakia
funebris
Empress
Sophisa
chandra Courtier, Eastern
62 WILD LIFE
(PROTECTION) ACT, 1972
SCHEDULE
Symbrenthia
silana Jester, Scarce
Vanessa
antiopa yedunula Admirables
Family
Papilionidae
Chilasa clytea
clytea of commixtus Common mime
Papilio
elephenor Spangle, yellow-crested
Papilio
liomedon Swallowtail, Malabar Banded
Parnassiusaecogeminifer
Apollo
Parnassius
delphius Banded apollo
Parnassius
hannyngtoni Hannyngton's apollo
Parnassius
imperator augustus Imperial apollo
Parnassius
stoliezkanuss Ladakh Banded apollo
Polydorus coon
sambilana Common clubtail
Polydorus
cerassipes Black windmill
Polydorus
hector Crimson rose
Polydorus
nevilli Nevill's windmill
Polydorus
plutonius pembertoni Chinese windmill
Polydorus
polla Deniceylle's windmill
Family
Pleridae
Aporia
harrietae harrietae Black veins
Baltia butleri
sikkima White butterfly
Colias colias
thrasibulus Clouded yellows
Colias dubi
Dwarf clouded yellow
Delias samaca
Jezebel,
pale Pieris
krueperi devta Butterfly cabbage/White II Family Satyriidae
Coelitis
mothis adamsoni Cat's eye, 'Scarce
Cyllogenes
janetae Evening Brown, Scarce
Elymnias peali
Palmfly,
Peal's
Elymnias
penanga chilensis Palmfly, Painted
Erebia annada
annada Argus, ringed
Erebia nara
singha nara singha Argus, Mottled
Lethe, distans
Forester, Scarce Red
Lethe dura
gammiel Lilacfork, Scarce
Lethe europa
tamuna Bamboo tree brown
Lethe gemina
gafuri Tayler's tree brown
Lethe guluihal
guluihal Forester, Dull
Lethe
margaritae . Tree brown, Bhutan
Lethe ocellata
lyncus Mystic, dismal
Lethe ramadeva
Silverstripe, Single
Lethe
satyabati Forester,
pallid
Mycalesis
orseis nautilus Bushbrown, Purple
Pararge menava
maeroides Wall dark
Ypthima
doherryi persimilis Five ring, Great
SCHEDULE__________________________________WILD
LIFE (PROTECTION)
ACT, 1972 63
'[1-A. Coconut
or Robber Crab (Bigrus latro)] '[2. Dragon Fly (Epioplebia laidlawi)]
2[PART
IVA
COELENTERATES
1 Reef Building Coral (All Scleractinians)
2. Black Coral
(All Antipatharians)
3. Organ Pipe
Coral (Tubipora musica)
4. Fire Coral
(All Millipora Species) 5- Sea Fan (All Gorgonians)]
3[PART
IVB MOLLUSCA
1. Cassis
cornuta
2. Charonia
tritonis
3. Conus
milneedwardsi
4.
Cypraecassis rufa
5. Hippopus
hippopus
6. Nautilus
pompilius
7. Tridacna
maxima
8. Tridacna
squamosa
9. Tudicla
spirallus.
PART IV-C ECHINODERMATA Sea Cucumber (All Holothurians).]
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Legal References
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Legal References
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Q 1.
Can a non-citizen be a candidate?
Ans. No
A non citizen cannot be a contesting candidate
in the elections. Article 84 (a) of the Constitution of India envisages that a
person shall not be qualified to be chosen to fill up a seat in the Parliament
unless he is a citizen of India. Similar provision exists for State Legislative
Assemblies in Article 173 (a) of the Constitution.
Q 2
What is the minimum age for becoming a candidate for Lok Sabha or Assembly
election?
Ans. Twenty Five Years
Article 84 (b) of Constitution of India
provides that the minimum age for becoming a candidate for Lok Sabha election
shall be 25 years. Similar provision exists for a candidate to the Legislative
Assemblies vide Article 173 (b) of the Constitution read with Sec. 36 (2) of
the R. P. Act, 1950.
Q 3. If
I am not registered as a voter in any Constituency, can I contest election?
Ans. No
For contesting an election as a candidate a
person must be registered as a voter. Sec 4 (d) of Representation People Act,
1951 precludes a person from contesting unless he is an elector in any
parliamentary constituency. Section 5 (c) of R. P. Act, 1951 has a similar
provision for Assembly Constituencies.
Q 4. I
am registered as a voter in Delhi. Can I contest election to Lok Sabha from
Haryana or Maharashtra, or Orissa?
Ans. Yes
If you are a registered voter in Delhi, you
can contest an election to Lok Sabha from any constituency in the country
except Assam, Lakshadweep and Sikkim, as per Section 4 (c), 4 (cc) and 4 (ccc)
of the R. P. Act, 1951.
Q 5. If
some body is convicted for some offence and he is sentenced to imprisonment for
3 years, can he contest elections?
Ans. No
As per Section 8 (3) of R. P. Act, 1951, if a
person is convicted of any offence and sentenced to an imprisonment of 2 years
or more, this will be disqualification to contest elections.
Q 6.
Supposing he is on bail, pending disposal of his appeal, can he contest the
election?
Ans. No
Even if is a person is on bail, after the
conviction and his appeal is pending for disposal, he is disqualified from
contesting an election as per the guidelines issued by the Election Commission
of India.
Q 7.
Can a person confined in jail vote in an election?
Ans. No
According to section 62(5) of the
Representation of the People Act, 1951, no person shall vote at any election if
he is confined in a prison, whether under a sentence of imprisonment or
transportation or otherwise, or is in the lawful custody of the police.
Q 8.
Every candidate is required to make security deposit. How much is the security
deposit for Lok Sabha election?
Ans. Rupees Twenty five Thousand
As per Section 34 1 (a) of R. P. Act, 1951,
every candidate is required to make a security deposit of Rs. 25,000/- (Rupees
Twenty five Thousand Only) for Lok Sabha elections.
Q 9. Is
there any concession for a candidate belonging to Scheduled Caste or Scheduled
Tribe?
Ans. Yes
The same section 34 of R. P. Act, 1951
provides that a candidate belonging to Scheduled Caste and Scheduled Tribe is
required to make a security deposit of Rs. 12,500 (Rupees Twelve Thousand five
hundred Only).
Q 10.
How much is the security deposit for an Assembly election?
Ans. Rupees Ten Thousand
As per Sec. 34 (1) (b) of the R. P. Act 1951,
a general candidate for contesting an Assembly election will have to make a
security deposit of Rs. 10,000/-. A candidate belonging to Scheduled Caste /
Tribe will have to make a security deposit of Rs. 5,000/- (Five Thousand Only).
Q 11.
How much was the security deposit for Lok Sabha election previously?
Ans. During the Lok Sabha elections held in 1996 and earlier, the
security deposit for general and SC / ST candidate was Rs. 500/- (Rupees Five
Hundred Only) and Rs. 250/- (Rupees Two Hundred and Fifty Only) respectively.
Q 12.
How much was the security deposit for elections to Assembly election
previously?
Ans. During Assembly elections held in 1996 and earlier, the security
deposit for general and SC / ST candidates was Rs. 250/- (Rupees Two Hundred
and Fifty Only) and Rs. 125/- (Rupees One Hundred Twenty Five Only)
respectively.
Q 13.
When was this change in the amount of security deposit made?
Ans. This change in increasing the security deposit was brought about
w.e.f 1-2-2010 vide Act 41 of 2009.
Q 14.
If you are a candidate of a recognised National or State party, how many
proposers
you require for your nomination?
Ans. Only one
If you are a candidate of a recognised
national / state party, you would require only one elector of the constituency
as proposer, vide Sec. 33 of R. P. Act, 1951.
Q 15.
If you are an independent candidate or a candidate of unrecognised political
party, how many proposers you require?
Ans. Ten
The same section 33 of R. P. Act, 1951
provides that as an independent candidate or a candidate of an unrecognised
political party, ten electors from the constituency should subscribe your
nomination paper as proposers.
Q 16.
Can a person contest elections to Lok Sabha/Vidhan Sabha from as many
constituencies as he likes?
Ans. No
As per Section 33 (7) of R. P. Act, 1951, a
person cannot contest from more than two constituencies for a Lok Sabha/Vidhan
Sabha election.
Q 17.
Which candidates lose the deposit?
Ans. 3354. A defeated candidate who fails to secure more than one
sixth of the valid votes polled in the constituency will lose his security
deposit.
Q 18.
What has been the maximum number of candidates in any constituency in India at
any election so far?
Ans. In Modakurichi Assembly Constituency of Tamil Nadu there were
1033 contesting candidates during the general election to Tamil Nadu
Legislative Assembly in 1996. The ballot papers were in the form of a booklet.
Q 19.
The Election Commission has recognised some political parties as National
parties and some others as State Parties. How many are National and how many
are State parties ?
Ans. The Election Commission had recognized 6 Political Parties as
National Parties and 36 Political Parties as State Parties in different States
at the time of General Elections in 2004.
Q 20.
On the day of poll, every voter has to go to a polling station to vote.
Normally, how many voters are assigned to a polling station, under the norms of
the Election Commission?
Ans. As per the instructions of Election Commission as contained in
Para 2 of Chapter II of Handbook for Returning Officers, a polling station
should be provided for a well defined polling area, normally covering about 800
- 1000 electors. However, in exceptional cases, such number may exceed 1000 to
avoid the breakup of any polling area in large villages or urban area. When the
number exceeds 1200, auxiliary polling stations should be set up. There is
provision for setting up of polling stations in localities inhabited by the
weaker section of the society, even though the number may be less than 500. If
there is a Leprosy Sanatorium a separate polling station may be set up for the
inmates alone. Recently the Commission has issued instructions for
Rationalisation of Polling Stations in the country, and the limit of electors
has been increased to 1500 per polling station, as Electronic Voting Machines
are being used now.
Q 21.
Normally, under the Commission’s norms, how far can a polling station be from
your house?
Ans. Not more than 2 Kms.
According to Para 3 of Chapter II of Handbook
for Returning Officers, polling stations should be set up in such a manner that
ordinarily no voter is required to travel more than two kms to reach his
polling station.
Q 22.
When you are walking down to your polling station, some candidate or his agent
offers you a free lift to the polling station. Can you accept that offer of
lift?
Ans. No
It is a corrupt practice under section 123 (5)
of the R. P. Act, 1951. This offence is punishable under Section 133 of the
same Act, with imprisonment which may extend upto 3 months and/or with fine.
Q 23.
Can you accept such lift when you are going back to your house after you have
cast your vote?
Ans. No
The provision of Corrupt Practice under
section 123 (5) as mentioned above will cover conveyance of any elector, to or
from any polling station.
Q 24.
Somebody offers you some money to vote for a candidate. Can you accept such
money?
Ans. No
Acceptance of money to vote for a candidate is
a corrupt practice of bribery under Section 123 (1) of R. P. Act, 1951. It is
also an offence under section 171-B of Indian Penal Code and is punishable with
imprisonment of either description for a term which may extend to one year or
with fine or both.
Q 25.
Somebody offers you some money, not to vote for a certain candidate. Can you
accept such money?
Ans. No
The corrupt practice of bribery will also be
attracted, if a person accepts money not to vote for a particular candidate.
Q 26.
Somebody makes any offer of whisky, liquor or other intoxicant or gives you a
dinner to vote for a particular candidate or not to vote for him. Can you
accept such offer?
Ans. No
Acceptance of any offer of liquor or other
intoxicants or a dinner to vote for a particular candidate or not to vote for
him is bribery.
Q 27.
Can any religious or spiritual leader instruct his followers to vote for a
particular candidate, otherwise they will become object of Divine displeasure?
Ans. No
If any person induces or attempts to induce
the voter to vote for any particular candidate or otherwise he will become an
object of Divine displeasure, he will be guilty of the corrupt practice of exercising
undue influence on a voter under sec 123 (2) of R. P. Act, 1951.
It is also an offence under section 171C of
Indian Penal Code and punishable with imprisonment of either description for a
term which may extend to one year or with fine or both.
Q 28.
Can any one threaten a voter that he would be excommunicated if he votes for a
particular candidate or does not vote for another particular candidate?
Ans. No
Any threat to a voter that he would be
excommunicated if he votes for a particular candidate or does not vote for
another particular candidate is a corrupt practice of undue influence under
Section 123 (2) of R. P. Act, 1951. It is also punishable under sec 171 F of
Indian Penal Code with imprisonment of either description for a term which may
extend to one year or with fine or with both.
Q 29.
Can anyone tell another person that he should vote for a particular person, or
not to vote for him, because the candidate belongs to a particular religion,
caste or creed or speaks a particular language?
Ans. No
Any one telling another person that he should
vote for a particular candidate or not to vote for him because he belongs to a
particular religion, caste or creed or speaks a particular language is a
corrupt practice under section 123 (3) of R. P. Act, 1951.
Q 30.
Is a candidate free to spend as much as he likes on his election?
Ans. No
A candidate is not free to spend as much as he
likes on his election. The law prescribes that the total election expenditure
shall not exceed the maximum limit prescribed under Rule 90 of the Conduct of
Election Rules, 1961. It would also amount to a corrupt practice under sec 123
(6) of R. P. Act, 1951.
Q 31.
What is the limit for election expenditure in a parliamentary constituency in
bigger States, like, UP, Bihar, Andhra Pradesh, M.P?
Ans. The limit for election expenditure is revised from time to time.
At present the limit of expenditure for a parliamentary constituency in bigger
states like U. P, Bihar, Andhra Pradesh, Madhya Pradesh is Rs. 40 lakhs.
Q 32.
What is the limit of such expenditure for an assembly constituency in these
bigger States?
Ans. The limit of election expenditure for an assembly constituency
in the above bigger states is Rs. 16 lakhs.
Q 33.
What was the limit for the Parliamentary and Assembly constituencies in the
above States at the time of the last general election in 2009?
Ans. The limit of election expenses in the above bigger states at the
time of 2009 general election was Rs. 25 lakhs for a Parliamentary constituency
and Rs. 10 lakhs for an assembly constituency.
Q 34.
Are these limits uniform for all States? If not ,What is the lowest limit for a
parliamentary constituency at present?
Ans. No
The maximum limits of election expenditure
vary from State to State. The lowest limit at present for a parliamentary
constituency is Rs. 16 lakhs for the constituency of Dadra and Nagar Haveli,
Daman and Diu and Lakshadweep. The lowest limit for assembly constituency is
Rs. 8 lakh in Goa, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura and
Puducherry
Q 35.
Are the candidates required to file any account of election expenses?
Ans. Under section 77 of the R.P.Act, 1951, every candidate at an
election to the House of the People or State Legislative Assembly is required
to keep, either by himself or by his election agent, a separate and correct
account of all expenditure in connection with the selection incurred or
authorised by him or his election agent between the date on which he has been
nominated and the date of declaration of result, both dates inclusive. Every
contesting candidate has to lodge a true copy of the said account within 30
days of result of the election.
Q 36.
Who is the authority to whom such account is to be lodged?
Ans. In every state the account of election expenses shall be lodged
by a contesting candidate with the District Election Officer of the district in
which the constituency from which he contested lies. In the case of Union Territories,
such accounts are to be lodged with the Returning Officer Concerned.
Q 37.
If a Candidate is contesting from more than one constituency, is he required to
file separate accounts or only one consolidated account?
Ans. If a candidate is contesting from more than one constituency, he
has to lodge a separate return of election expenses for every election which he
has contested. The election for each constituency is a separate election.
Q 38.
What is the penalty if a candidate does not file his account of election
expenses?
Ans. Under section 10A of the RP Act, 1951, if the Election
Commission is satisfied that a person has failed to lodge an account of
election expenses with the time and in the manner required by or under that Act
and he has no good reason or justification for the failure, it has the power to
disqualify him for a period of 3 years for being chosen as, and for being, a
member of either House of Parliament or the Legislative Assembly or Legislative
Council of a State.
Q 39.
What is the deadline after which no public meetings and processions can be
taken out?
Ans. As per Sec. 126 of R. P. Act, 1951, no
public meetings and processions can be taken out during the period of 48 hours
ending with the hour fixed for the conclusion of poll.
Q 40.
On the day of poll, can any one vote in the name of another person, even with
his consent?
Ans. No
On the day of poll no one can vote in the name
of another even with his consent. If he does so it would amount to
impersonation which is an offence under Section 171 D of Indian Penal Code. The
offence is punishable with imprisonment of either description which may extend
to one year or with fine or both.
Q 41.
Can any one vote more than once, even if his name is included (wrongly) at more
than one place?
Ans. No
No one can vote more than once even if his
name is included at more than one place. If he does so he will be guilty of
impersonation which will be punishable as above.
Q 42.
If you go to your polling station and find that some body else has impersonated
for you and already voted in your name, can you vote in such circumstance?
Ans. Yes
If a person finds that someone else has
already voted in his name, then also he will be allowed to vote. But his ballot
paper will be marked as a Tendered Ballot Paper by the Presiding Officer. This
will be kept separately in the prescribed cover, as per Rule 42 of the Conduct
of Elections Rules, 1961.
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