The Supreme Court recently refused to hear a petition challenging the Rajasthan Panchayati Raj (Second Amendment) Ordinance, 2014 on procedural grounds, sending it back to the High Court.
The controversial ordinance introduces a set of educational qualifications of secondary education in order to be able to contest panchayat elections.
For the post of sarpanch, Class VIII is the minimum qualification, while posts in the zilla parishad require a Class X pass.
The petition is currently being heard by the Rajasthan High Court.
The ordinance was challenged by several non-governmental organisations and political parties including the Congress.
The BJP, which had inexplicably taken the ordinance route in the State, welcomed the decision of the Supreme Court and hailed it as a “victory of truth”.
The rationale of the law is to encourage education and literacy.
Although the ordinance may be constitutionally valid as the facts are analogous to the reasoning of the Supreme Court in Javed (2003), it is at the level of policy that the law is weak.
In Javed , the Supreme Court upheld the constitutionality of a provision that stipulated that no person who has more than two children could be elected as the sarpanch or panch of a panchayat.
A similar reasoning may be applied in the case of this ordinance as well: The Javed judgment was criticised for its reasoning as also its consequences, such as instances where men gave their daughters up for adoption to be able to contest elections.
Ironically, it is not difficult for those who are influential to obtain false Class X certificates either.
In India, the right to vote is only a statutory right, but the act of voting is a constitutionally protected ‘freedom of expression’ under Article 19, as a fundamental right ( PUCL , 2013).
The freedom to vote is inseparable from the freedom to contest in elections.
Hence a policy of encouraging education cannot arguably prevail over fundamental rights.
The law is a major setback to the constitutional mandate of ensuring gender equality in panchayati governance where the Rajasthan government has provided for 50 per cent reservation for women.
In rural areas, the literacy rate of women is only 45.8 per cen; in tribal areas it is 25.22 per cent as opposed to the corresponding male literacy rate of 76.16 per cent.
The law therefore excludes the majority of potential women contestants.
The educational qualification norms, on top of the existing massive inequality in literacy rates, will reduce women’s participation in politics.