RAJBALA & OTHERS v. STATE OF HARYANA& OTHERS

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A 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 B 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 c appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety [See Council of Civil Services Union v. Minister for Civil Services (1985A.C.374) which decision has been accepted by this Court as well]. The D 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 exp 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 H Articles 14, 19 and 300A of the Constitution. On a review

RAJBALA & ORS. v. STATE OF HARYANA & ORS. 1159 [CHELAMESWAR, J.].

of the provi"sions of the Act, this Court found that it A 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 13 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 E Shri Nariman. We are, however, of the opinion thatthe 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 F 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 a 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." H

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68Copy pinpoint68. 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 8 unless the legislation is otherwise violative of some specific provision of the Constitution. To undertake such an examination would amourit to virtually importing the doctrine of "substantive due process" employed by the American Supreme Court at c an earlier point of time while examining the constitutionality of Indian legislation. As pointed out in the above extract, even in United States ttie 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 41 0 process has no application under the Indian Constitution • As pointed out by Frankfurter, J., arbitrariness became a mantra.

69Copy pinpoint69. For the above reasons, we are of the opinion that it is " In Municipal CommitteeAmritsarv. State of Punjab, (1969) 1 SCC 475, at E para 7, this Court clearJy ruled out the application of the doctrine of "due process" e1J1ployed 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 F statute invalid on the ground that it violates the "due process of law". Under our Col)stitution, 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. Gopal an v..State of Madras, 1950 SCR.

88. Kania, C.J., observed (at p. 120):- G "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."

. RAJBALA& ORS. v. STATE OF HARYANA& ORS. 1161 [CHELAMESWAR, J.]

not permissible for this Court to declare a statute unconstitutional on the ground that it is 'arbitrary'.

70Copy pinpoint70. w_e 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 B 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.

71Copy pinpoint71. 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 73'd constitutional amendment".

72Copy pinpoint72. In the light of the above submissions, we shall now deal with the challenge to each of the abovementioned four clauses. F

73Copy pinpoint73. 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

42 G "(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 H shall be 5'" pass;"

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A 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 8 the office of Panch.

74Copy pinpoint74. 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.

75Copy pinpoint75. On the other hand, it is stated in the affidavit filed on behalf of respondent as follows:

E "10. That as per the National Population Register 2011, total rural population in the State is 1.65 er 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."

76Copy pinpoint76. 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

43 Section 173 (2). Every person who has attained the age of twenty-one years and whose name is in the list of voters shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected from any electoral division.

RAJBALA& ORS. v. STATE OF HARYANA& ORS. 1163 [CHELAMESWAR, J ]

PANCHAYAT election is 21 years) are as follows: A NA.TIONAL KRJlAI'ICN REGISTER-2011 Number cf re:rsms atove 20 wars cf are vis-&vis treir eduratimal rn "'lification Total A:Jp.!latim OC f\:Jpulaticn

: lctal Miles Jemlles Tdo Females __ , _ _ - - - • - - --- I - I B :M4J337 53% 98J9J8 48% Y:iTl55 34% 613153 63%

Unsixrified i.fonite & ; m~- - So/o --i-i9lo$ 6% JJ32CJJ - 4% 125442 : 6% 772n 7'/o - ' 48200 j'Jo 1 ~~M~dMibic: 545~ -:m-~~-3®&?1 -1111o ""19ffl6li-~%+94JN"""~ -roT1~-1J>1o 11318126-~ &aOOve I i ' 1

Tctll Pqxdatic11 ID.:ive I%13704 4S92-04 i -t>21ZiD - 2[1;'.6'.61 JO~l<ll I 9i9'88 20-•,ofa"' I '

Taal Rml ltµdatim 16500359 - 87"Cll6 7735353 . 3720100 I 19732'» ' 1'7iffi15 c -- i " L --

77Copy pinpoint77. 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 D 'approximate')

78Copy pinpoint78. Of the 1.65 crore rural population, 96 lakhs are in the age group of 20 years and above. In other words, dehorsthe 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 arid 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 of20 years and above. Of the 96 lakhs of rural population, 50 lakhs are men and 46 lakhs

44 The expression "rural population" is used by the respondents in their counter affidavit to mean people living in areas falling within the territorial limits of some PANCHAYAT

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A 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 underTHEACT, they would contribute less than 50% 8 of the~ otherwise eligible women.

79Copy pinpoint79. The abovementioned figures include all.classes of the population including scheduled caste.

c 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 o words, 68% of the scheduled caste women and 41 % of the scheduled caste men would be ineligible to contest PANCHAYAT elections.

81Copy pinpoint81. 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 electio.ns by virtue of the IMPUGNED ACT. Even with regard to me~n. 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. H

82Copy pinpoint82. Coming to scheduled caste women and the proviso

RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1165 [CHELAMESWAR, J.]

to clause (v) of Section 175(1 ), though educational qualification A 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 8 pass". The exact number of scheduled caste women who possess that qualification is not available on record. Even assuming forthe sake of argument that all educated scheduled caste women indicated in the Annexure-5 are middle pass, c 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.

83Copy pinpoint83. The question is - whether the impugned provision which disqualifies a large number of voter population af1d D denies their right to contest for various offices underTHEACT is discriminatory and therefore constitutionally invalid for being violative of Article 14.

84Copy pinpoint84. The learned Attorney General referred to Section 21 E ofTHEACTwhich 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 Panchayat45 and submitted that in the light of such 45 "Section 21. Functions and duties of Gram Panchayat.-Subject to such F 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. G · (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 ·H including welfare of the handicapped, mentally retarded and destitute. (2) Monitoring of the old age and widows pension scheme."

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A 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

B 14. Several judgments of this Court are referred to emphasise the importance of education 46 .

85Copy pinpoint85. The impugned provision creates two classes of voters - those who are qualified by virtue of their educational c 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

6 ' 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 G 398; P.A. lnamdar v. State of MaharashtTa, (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 sec 19J.

RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1167 . [CHELAMESWAR, J.]

administration of the PANCHAYATS. The classification in our A view cannot be said either based on no intelligible differentia unreasonable or without a reasonable nexus with the object sought to be achieved.

86Copy pinpoint86. The only question that remains is whether such a B 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 C under the Constitution. Constitution itself imposes limitations on the right to contest depending upon the office. It also authorises the prescription of furthe·r disqualifications/ qualification with respect to the right to contest. No doubt such 0 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 E 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. F . 87. If it is constitutinnally 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 fordetermining whether prescription of such disqualification is constitutionally permissible unless a 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) to 47 H Articles 102(1)(c) and 191(1)(c).

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A Section 175(1).

88Copy pinpoint88. 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.

89Copy pinpoint89. 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 D 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.

90Copy pinpoint90. 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

"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 - **** **** **** **** G (c) - if he is an undischarged insolvent.

"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 - · **** **** **** •·••• **** 1-1 (c) if he is an undischarged insolvent.

RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1169 [CHELAMESWAR, J.]

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A 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 B the constitutional infirmity ifthe 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 c (d) if, with intent to defeat or delay his creditors,- (i) he departs or remains out of the States, (ii) he departs from his dwelling-house or usual place of business or otherwise absents himself, (iii) he secludes himself so as to deprive his creditors of the means of D communicating with him; (e) if any of his property has been sold or attached for a period of not less than twenty-one days in execution of the decree of any Court for the payment of money; (f) if he petitions to be adjudged an insolvent; (g) if he gives notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts; E (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 F notice (hereafter in this section referred to as the insolvency notice) as provided in sub- section (3) and the debtor does not comply with that notice within the period specified therein: Provided that where a debtor makes an application under sub- section (5) for setting aside an insolvency notice- (a) in a case where such application is allowed by the Court, he shall not be deemed to have committed an act of insolvency under this sub- section; and (b) in a case where such application is rejected by the Court, he shall be deemed to have committed an act of insolvency under this sub- section on the date of rejection of the application or the expiry of the period specified in the insolvency notice for its compliance, whichever is later: Provided further that no insolvency notice shall be served on a debtor residing, whether permanently or temporarily, outside India , unless the creditor obtains the leave of the Court therefor.

RAJBALA& ORS. v. STATE OF HARYANA& ORS. [CHELAMESWAR, J.] 1171 - the legislatures of the State have a legislative competence concurrently to make laws as it is one of the topics indicated under Entry 952 , List Ill of the Seventh Schedule to the Constitution.

91Copy pinpoint91. 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 C 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 0 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.

92Copy pinpoint92. No doubt that rural India, particularly people in the agricultural sector suffer the problem of indebtedness. The E 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 52 H

9. Bankruptcy and Insolvency.

A SUPREME COURT REPORTS [2015) 12 S.C.R.

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 8 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 c falling within the prescription of clauses (t) and (u) of Section 175(1) of the Act is still in.terested 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 0 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 (u) of Section 175(1) of the Act.

93Copy pinpoint93. Clause (w) disqualifies a person from contesting an a 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

RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1173 [CHELAMESWAR, J.]

an unreasonable classification of otherwise eligible persons to contest elections to PANCHAYAT and, therefore, discriminatory.

94Copy pinpoint94. It is submitted on behalf of respondents that the submission of the petitioner is without any factual basis. B 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 b.een schemes in vogue to provide financial assistance to families c desirous of constructing a toilet attheir 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, D of the abovementioned 8.5 lakhs households, classified to be below the poverty line, approximately 7.2 lakhs households 53 Paras 4 & 5 of the Addi. Affidavit of Respondents 1 to 3

4. That the main objective of the programme is to ensure access of toilets to all rural families so as to achieve Open Defecation Free (ODF) status. For E 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. F

5. That the financial incentive is also being provided to Below Poverty Line (BPL) households for the construction and usage of individual household latrines (IHHL) in recognition of their achievements. In Haryana total rural BPL households are 8,56,359 and against it, 7,21,038 households have been provided incentive for the construction of IHHL. Similarly, Above Poverty Line (APL) households restricted to SCs/STs, small and marginal farmers, G 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 H have been given incentive money at various rates prevailing at different times.

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A 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 8 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. c 95. It is a notorious fact that the lndian54 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, Ile 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 F 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

54 G In England this habit existed till 15'" 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

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 ifthe 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. c

96Copy pinpoint96. For the above-mentioned reasons, we see no merit in this writ petition, and the same is dismissed.

ABHAY MANO HAR 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 articulMe 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 F 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 "Hight to Contest" viz- whether they are statutory right or G constitutional right?

3. Athree Judge Bench in PUCL vs. Union of India [(2003) 4 sec 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, H

1176 SUPREME COURT REPORTS [2015) 12 S.C.R.

A examined this question in great detail and in express terms, . answered it holding that the "Right to Vote" is a constitutional right but not me.rely a statutory right. We are bound by this view taken by a three Judge Bench while deciding this question in this writ petition. B

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 C learned Judge RC. 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 D 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. E

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.

F 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 0 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/ H she wants to contest an election. In my opinion, introduction of

RAJBALA& ORS. v. STATE OF HARYANA& ORS. 1177 [ABHAY MANOHAR SAPRE, J.]

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 tr 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 ~ave some educational background to enable him/her to C · 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. D

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. E

10. In my view, therefore, Section 175 (v) oftheActis intra vi res the Constitution and is thus constitutionally valid.

11. Now coming to the question regarding constitutionality of Section 1J5(w) of the Act, which provides that if a person F 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. G

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 H

1178 SUPREME COURT REPORTS [2015] 12 S.C.R.

A it to a particular State. Moreover, the State having provided adequate financial assistance to those who do not have toilet facility for construction df 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 8 learned brother, therefore, I do not wish to add anything more to it.

13. In the light of the foregoing discussion agreeing with my learned brother, I also hold that Section 175 (v) is intra vires C the Constitution and is thus constitutionally valid.

14. In my view, therefore, the writ petitioi;i deserves.to be dismissed and is accordingly dismissed. As a consequence, interim order stands vacated. D Kalpana K. Tripathy Writ petition dismissed.