Compounding Illegality with Illogic

Published in the Daily O

The last minute ordinance promulgated by the BJP-led Rajasthan Government, which mandates minimum educational attainment of 8th and 10th pass, for candidates wanting to contest Panchayati Raj elections has elicited some rather bizarre justifications. There are three lines of justification advanced by the BJP Government: first, that PRI representatives play an executive role and are embroiled in corruption cases and often use their ignorance of law/rules as an excuse when they are investigated. The second line of justification, advanced even by the BJP Government at the Center is that this was idea originally mooted by the Congress-led Government in Rajasthan and thus the Congress Party cannot reasonably oppose this amendment now. Other supporters of the Ordinance have sought refuge in its alleged legality citing the Supreme Court, which held that the right to contest elections is a statutory not fundamental right and the states are competent to legislate eligibility criteria in the appropriate statute. All three arguments deliberately blur important distinctions to cover blatant illegality and arbitrariness.

First, the BJP Government in Rajasthan has made these changes through an Ordinance and not a legislation. Given the timing – mere days before Panchayat Polls and while the Courts are on vacation – the ordinance is in effect an Executive fiat. An ordinance ought to be promulgated only in instances of great emergency when the legislature is not in session. Considering that the BJP Government has itself stated that this issue has been under consideration for a while, it is difficult to understand why it did not bring these amendments for deliberation in the entire one year that it has been in power. The ordinance route is an interim measure and must be ratified by the legislature. This means that there is scope for both rejection and amendment. However in this case, bringing the ordinance just before Panchayat Polls means that the legislature will have no scope for rejection or amendment since the Polls would have already concluded with these conditions in place – and would necessarily have to rubberstamp what is in effect an executive decision. The fact that the BJP has absolute majority in the Rajasthan legislature is no guarantee that it would have managed to pass these amendments as evident from the fact that its own legislators scuttled its amendments to the land bill. Moreover, since 23 of its own legislators do not meet the standards laid down by this Ordinance, it is difficult to understand how they would have voted in its favor. Members of the BJP organization have also publicly voiced their dissent against this Ordinance. It is also pertinent to note that a political party is using executive power to change an electoral law by explicitly bypassing the state assembly and thus opposition political parties, all of whom are opposed to the Ordinance. The legality of the Ordinance is thus under question not just because of the substantive changes made by it, but also in its nature and timing.

Equally, the Ordinance goes against the very tenet of the 73rd Constitutional amendment, which provided for local self-governance in rural areas. The Constitutional amendment, passed by the Parliament and ratified by state legislatures, did not moot any sort of educational qualification to be eligible to contest elections and instead provided reservation for marginalized social groups such as Dalits and women to ensure their participation in the political process. By setting arbitrary standards, which will exclude majority of the people from these very communities, the BJP Government of Rajasthan is using executive decision of a state Government to subvert the Constitution and the collective will of the Indian citizenry as represented by the Parliament and state legislatures.

The Ordinance also suffers from severe logical fallacies, which render it completely arbitrary. The Government argues that Sarpanches play an executive role and are embroiled in thousands of cases of corruption. However of the 6000 odd Panchayat Samiti and Zila Parishad elected representatives, only a few hundred (Samiti Pradhans and Zila Pramukhs) have any sort of executive role. It is thus unclear why educational qualifications should be imposed on the others. Even otherwise, this argument is rife with anti-poor elitist illogic in its conflation of the unschooled with corrupt. It is also not clear how Government arrived at the 8th and 10th pass qualification and what separates the candidate who has passed 8th grade from the one who has passed 10th grade. The former is somehow qualified only for Panchayat administration; the latter for both Block and District level administration. If the argument is that public representatives must have some minimum level of educational qualifications, then it is blatant hypocrisy on the part of BJP that its own MLAs and MPs do not meet the standards set by the Ordinance.

There is merit in the argument that a public official should be able to understand the documents s/he is handling. However this understanding is related to literacy (the ability to read and write with understanding) and not some arbitrarily defined standards of educational attainment. Even if one were to accept the argument for literacy, the Government should necessarily have put this into effect from the next Panchayat elections since mere literacy in rural Rajasthan is abysmally low: 61 percent overall and 45 percent for women (Census 2011). The notice period would have given interested persons an opportunity to enroll and educate themselves. If in addition, the Government had also invested in massive adult literacy outreach to ensure that the poor and marginalized actually had the opportunity to study, it would have truly seemed development oriented. Everyone – civil society and opposition political parties – would have supported such a measure. Instead the Government has chosen to disenfranchise at least 80% of the rural populace who have not had the opportunity to study due to class, gender, caste and region based marginalization in what can only be seen as double punishment.

Finally, in attempting to foist the original idea on to the Congress Party, the BJP Government is trying to make a sin out of what is a virtue of democratic governance. The fact that the Congress Government mooted a similar policy during its tenure is of little significance. Any Government will deliberate on scores of policies as part of the political process and governance but the very fact that it did not move forward with this idea speaks for itself. The erstwhile Congress Government may indeed have deliberated on something similar but to draw equivalence is erroneous because the details and manner of execution could have differed in many ways leading to wholly different outcomes. A consultative process wherein the Government is open to changing its stand or wholly dropping its initiative altogether based on reasoned debate and dissent is a fundamental tenet of democratic governance. The fact remains that the Congress-led Government dropped this initiative given the lakhs of people who would have been disenfranchised from their democratic right of political participation – and the onus of this decision lies solely with the current BJP Government.

Two former CECs and several former judges of the Supreme Court and Rajasthan High Court (and other High Courts) have already written an open letter to the Rajasthan Chief Minister calling the ordinance unconstitutional, unjust and undemocratic and urging her to withdraw the ordinance. The Supreme Court will take up Writs challenging the Ordinance tomorrow morning (January 5). The fate of rural Rajasthan and the very normative framework of democracy will turn on its decision.

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