Unconstitutional but legal?

Edited Version Published in HT

Imagine that the BJP-led Government at the Center were to promulgate an ordinance to amend the Representative of People’s Act mere days before the next Lok Sabha elections commenced to establish eligibility criteria for candidates. Would the Indian polity countenance this usurpation of the Legislature’s domain even though the BJP commands “brute majority” and could technically get the amendments passed anyway? Could the ruling Party seek to justify the move in its apparent legality or even merits of the amendment? This is precisely what has happened in the state of Rajasthan and the series of bizarre justifications advanced by the national spokesperson of BJP, GVL Rao in various fora.

Days before the commencement of Panchayat elections in Rajasthan, the Rajasthan Government promulgated an ordinance to amend the Rajasthan Panchayati Raj Act to mandate minimum educational qualifications for persons wanting to contest the upcoming local body elections. The Ordinance stipulates that a candidate to the Zila Parishad or Panchayat Samiti must be at least have secondary education (Class 10) whereas a Sarpanch candidate must be at least Class 8 pass. Given the abysmally low literacy levels in Rajasthan – it is estimated that 80% of rural Rajasthan will be disqualified from contesting – there has been widespread outrage and opposition to the amendment by civil society and all opposition political parties in the state. However an equally important aspect of this Ordinance has not received the attention it merits – the fact that Executive power was used to amend an electoral law bypassing the legislature and hence all Opposition parties. The Constitution of India states that “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 made by the Legislature of the State”, [Article 243F (b)]. Please note that the Constitution says, “Legislature of the State” not the State Executive. This is not a mere technicality. In India, where the leadership of the Executive is drawn from the Legislature what separates the Legislature from the Executive? In situations where the Government commands absolute majority in the Legislature, can we simply do away with the need for legislative approval as mere nicety? This is of course absurd. The Legislature includes Opposition Parties whose opinion must necessarily be counted while making laws. The entire structure of the Legislature – deliberative process, question hour, standing and select committees – exist to ensure that the voice of the Opposition is counted. This is especially important when an electoral law is being changed. In a multi-party democracy, electoral laws lay down the rules of the game and a level playing field for all political parties. This is why the Election Commission of India and the Government of India has repeatedly held that electoral reform must be “consensual”. However, in the instance of the Rajasthan Panchayati Raj Ordinance, it is notable that all Opposition Parties – representing 55% of the popular vote in the last Assembly elections, even if not commensurate seats in the Rajasthan Vidhaan Sabha – oppose the Ordinance.

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, 23 of its own legislators do not meet the standards laid down by this Ordinance and would likely have lobbied against such a Bill.

The BJP has held that this is a progressive reform to reduce corruption in Panchayat works. This justification has been repeatedly demolished and we will not go into it for now. It is thus worth asking what could be a possible motive of the Government in bringing this Ordinance given the opposition across Party lines, including within sections of the BJP itself. One theory that has been advanced is that this is an attempt by the BJP to destabilize the Congress power base in rural Rajasthan. The Congress Party swept Panchayat Polls in 2010 making 25 out of 33 Zila Pramukhs and 159 out of 248 Samiti Pradhans. BJP on the other hand could only make 8 Zila Pramukhs and 72 Pradhans respectively. Of the 5273 Panchayat Samiti wards, BJP won only 1811 against Congress’ 2586. BJP’s showing in Zila Parishad wards was even worse, winning only 365 out of 1013 wards against Congress’ 603 wards. Sarpanch elections are not officially fought on a Party symbol; however, a similar situation will prevail there as well. The surest way to destabilize the above set-up was to mandate eligibility criteria, which would disqualify majority of these older established political leaders. In fact, this is exactly what the Ordinance has done: more than 70% of elected Panchayat Samiti members and 77% SC Panchayat Samiti representatives are now debarred from contesting. Of the elected Zila Parishad members, 55% do not meet these educational standards with SC and ST worst affected with 61% and 63% respectively.

Furthermore, the Ordinance will exclude the most marginalized sections of all communities from contesting elections since they are most likely to have not attained the mandated educational qualifications. Thus, another theory doing the rounds is that this is an attempt by the BJP to facilitate an elite capture of the Government, which may be more in line with its “reformist” predilections such as reducing welfare programs and privatization of state infrastructure like education and health. It is evident that this discriminatory ordinance, which will disenfranchise more than 80% of rural Rajasthan’s populace from exercising their democratic right of political participation, is motivated by partisan considerations. The BJP-led Government of Rajasthan has used executive power to amend an electoral law just before elections to tilt the scales in its favor. Can such a blatantly unconstitutional use of executive power also be legal?

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