Right to Contest and Citizenship

Published in the Economic and Political Weekly

A citizen is one who can hold public office, Aristotle

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From The Hindu

On March 9th, a historic amendment to the President’s address was passed in the Rajya Sabha. The amendment was historic not just because it is one of the only five times in Parliamentary history that the President’s address has been amended by the Opposition in an act of censure to the Government but equally because of what the amendment sought to do. The amendment sought to force the Government to secure “the fundamental right of all citizens to contest elections at all levels, including to Panchayats to further deepen democracy, which is a basic structure of the Constitution and consistent with the spirit of the 73rd amendment […] without imposing educational or other limitations on the right to contest elections”. The amendment was in response to the decisions of the BJP-led Governments in Rajasthan and Haryana, to impose among other criteria such as working toilet in home, that all contestants for local body elections – Panchayat and municipal – have passed at least middle (8th) and secondary (10th) school. This stipulation debarred in one fell swoop more than 50% of the electorate from contesting elections with historically marginalized social groups – dalits, adivasis, women and the poor – disproportionately affected. It is notable that these are the very groups that the 73rd and 74th Constitutional amendment sought to include in participatory local governance through mandatory reservations. The statistics are worth highlighting: in Rajasthan, 75% of the rural electorate above the age of 20 years has not cleared middle school and are disqualified from contesting; 85% of SC women above 20 years of age have not passed primary school and cannot stand for elections. Similar numbers are disqualified by the Haryana law.

The amendment cannot force the Governments of Rajasthan and Haryana to roll back their controversial laws. So was the amendment initiated by the Congress Party a mere ploy to embarrass the Government or is there a deeper impetus at play?  The two main sections of the amendment underscore its intent and highlight its importance in reinstating the democratic framework of governance as envisioned in the Constitution. The amendment impresses upon the Government the need to secure the fundamental right of all citizens to contest elections at all levels without limitations, educational or otherwise – to deepen democracy, which is part of the basic structure of the Constitution.

Citizenship in a democracy vests in the citizen plethora of rights vis-à-vis the State, chief among them the claim over the Government as an exercise of self-determination and political representation. In fact, it is this claim over the priorities, actions and resources of the State that separates a citizen from a non-citizen with other democratic rights such as the right to life and liberty, right to free speech, due process etc being extended to non citizens as well. Seen thus, two main developments strengthened citizenship in the country. The first was the 73rd and 74th constitutional amendments, which gave constitutional status to local governments, provided for regular elections and mandated reservation for dalits, advisasis, and women. Together these landmark amendments deepened democracy by decentralizing governance, facilitating the right to choose one’s own representative and providing hitherto inadequately represented social groups an opportunity for self-representation. The other key development in strengthening citizenship has been the emergence of the rights-based regime, which provided a framework of legally enforceable entitlements of the citizen with respect to the State. The rights-based regime formalized the conceptual claim of the citizen in a democracy on the State by explicitly doing away with the paternalism and discretion inherent in existing State policy.

It is in this light that the amendments passed by Rajasthan and Haryana Governments to restrict eligibility to contest – to candidates who have cleared middle and secondary school with functional toilets in their home – must be understood. The amendments if left unchallenged will deal a debilitating blow to the construct of citizenship in India and in the process to Indian democracy itself. The BJP Governments of Rajasthan and Haryana have restricted a key citizenship right in a democracy – the right to contest for public office – for reasons completely extraneous to citizenship. The only criteria to acquire citizenship in India is birth/descent and residence. It follows that abridgment of citizenship rights may only be linked to these criteria or curtailed for reasons such as mental incapacity or criminal activity. It is untenable in a democracy to argue that the poor and marginalized who may not have had the wherewithal to study or build toilets in their home are lesser citizens than the privileged – yet that is essentially what these panchayat amendments are doing by using education and toilets as proxy.

The panchayat amendments also undermine the citizen’s right in a democracy to elect a public representative of her own choice. In both states, the amendments perforce disqualify about eight in ten SC women above the age of 20 and about 7 in ten SC men above the age of 20 years from contesting elections. Adivasis are even worse affected and while the Census does not record data separately for minorities, similar numbers can be expected for Muslims if not other minorites. The choice then for self-representation among Dalits, Adivasis, and Muslims is severely curtailed and it is clear from the scale of disqualification that only the elite among these groups will qualify. At best this manner of mass disqualification ostensibly in the interest of the electorate reeks of paternalism implying that the citizen cannot exercise judgment to choose the best candidate to represent her interests and must be presented with a pre-filtered panel of candidates. At worst, this represents an attempt to convert representative democracy – where the elected representative must necessarily be reflective of the social and economic composition of the electorate – to an oligarchy where power structurally vests in the hands of the rich and powerful.

The deleterious impact of the amendments is visible in both Rajasthan and Haryana. Voter choice has been unambiguously curtailed. In Haryana, where Panchayat elections have concluded recently and where education requirements were imposed at the panch level as well, half of the panches were elected unopposed as compared to the 2010 elections, where more than 3 nominations were received for each panch post. Even more shockingly, about 2000 posts of panch remain vacant in Haryana because no one was eligible to contest. The numbers of unopposed candidates at panchayat, block and district level too have increased in both Rajasthan and Haryana. If elections imply free choice among plurality of representative options, then does the “election” of an unopposed candidate because no one else was eligible to contest qualify as an election?

In addition to unopposed candidates, 13 Panchayats in Rajasthan and 21 Panchayats in Haryana could not elect a Sarpanch at all. This is unprecedented because the post of Sarpanch – the lynchpin of the idea of local self-governance – is a highly contested  position (about 6 persons contested for each post in the last Haryana election). While data is not available for Haryana, all of the 13 vacant Panchayats in Rajasthan are those reserved for SC, ST and women showing the disproportionate impact on the very groups which were sought to be included in local self-governance through the 73rd Constitutional Amendment. In Rajasthan, the state election commission has held two by-elections in the last one year for these vacant panchayats; however despite 3 election cycles, 9 panchayats remain vacant and are being administered by the bureaucracy (4 were filled through marriage or educated minor coming of age in the next election). It can be nobody’s case that these vacant panchayats where no election could take place have democracy.  Democracy is part of the basic structure of our Constitution and is unalterable even by the Parliament; however these Panchayat amendments have undermined democracy both in principle and in fact.

The amendments have in one shot finished careers of thousands of grassroots politicians – especially women – who had risen through sheer grit and determination and have done remarkable work in their panchayats. Disaggregated numbers at the sarpanch level are unavailable but of the elected representatives at the block level, more than 70% and 50% were disqualified in Rajasthan and Haryana respectively. Of those elected in this election cycle, hundreds, including at the highest level of Zila Parishad Pramukhs (district heads) are mired in complaints of fake education certificates unnecessarily criminalizing ordinary people and undermining the sanctity of elected public office. There are many anecdotal reports too of double marriages to find a women eligible to contest elections.

The BJP has attempted to justify this mass destabilization and disenfranchisement of the poor and marginalized in two lines of argument: first that uneducated elected representatives seek refuge in their lack of education when confronted with their corruption. This is a shocking argument rife with anti-poor elitist illogic in its conflation of the unschooled with corrupt. Corruption is first and foremost linked to intent and there is no empirical evidence that the uneducated indulge in greater corruption than the highly educated. Moreover if corruption at the lower levels was the concern, it would be better addressed through increased transparency and greater voter awareness. The second line of argument is that the increase in educated persons in government offices will improve quality and efficiency of public works. There is some merit in this 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. The Governments of Rajasthan and Haryana would have shown progressive intent if they had mandated that all illiterate elected representatives be enrolled in adult literacy classes. This line of argument also downplays the political aspect of an elected representative’s role – to build consensus, exercise judgment and prioritize the allocation of state resources – which is not contingent on formal education.

There can be no democracy – a system of Government of, by and for the people – if we exclude more than 50% of the electorate from contesting for public office. It would be an error to simply shrug this away thinking they are only for local body elections or they are mere state level issues. First, it is the stated intention of BJP to use state legislatures to pass controversial reforms with Rajasthan acting as the pilot state. More importantly, these amendments if allowed to remain unchallenged will set a normative precedent to curtail citizenship rights of the poor and marginalised in other states and at other levels of public office. Of the five big states going in for assembly elections soon – Tamil Nadu, West Bengal, Assam, Uttar Pradesh and Punjab – about 60%-70% of the electorate will get disqualified from contesting elections if similar stipulations were applied there. A spot check in one district of Uttar Pradesh (Muzaffarnagar) shows that about 70% of the newly elected sarpanches will be debarred from contesting elections. Surely, this is an important issue for the electorate to know before they cast their vote.

Dr Ambedkar in his speech to the Constituent Assembly said,  “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality […] We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.” Little may he have expected that the Government anxious to appropriate his legacy will remove this contradiction by undermining political equality itself of those at the bottom of the social and economic hierarchy.

There is no bar on the Parliament applying similar restrictions on elections to state legislatures or Parliament through mere amendments to the Representation of the People Act. A lacunae in the Constitution as interpreted in successive judgments by the Supreme Court has held that the right to contest elections – despite its centrality to the democratic paradigm of governance in our country – is but a statutory right which can be restricted by state legislatures or Parliament as the case may be. It is thus that the amendment to the President’s address moved by the Congress Party sought to secure the citizen’s right to contest by elevating it to a fundamental right subject only to explicit restrictions as detailed above. The Congress Party will now mobilize politically and introduce a Constitution amendment bill through the Private Member route to force discussion on this issue in the Parliament. The caste, class, gender and religious composition of those excluded  betrays the upper-caste and upper-class and anti-minority and anti-woman bias of the ruling Party. It is important for the citizenry to know which other political parties share this bias and which political parties will defend their citizenship rights.

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