Holding

Clauses (t), (u), (v) and (w) of Section 175(1) of the Haryana Panchayati Raj Act are intra vires the Constitution and do not violate Article 14.

Summary

The petitioners challenged four new disqualification clauses (t, u, v, w) inserted in Section 175(1) of the Haryana Panchayati Raj Act, 1994, arguing that they violated Article 14 by creating unreasonable classifications and that the right to vote and the right to contest elections are fundamental constitutional rights. The Court examined whether the legislature could impose disqualifications based on indebtedness/insolvency, educational qualifications, and lack of a functional toilet, and clarified the constitutional nature of the rights to vote and to contest. It held that insolvency is a recognised ground of disqualification, that a minimum educational qualification has a reasonable nexus with the duties of Panchayat members, and that the toilet requirement is a legitimate public‑health measure. Consequently, all the impugned provisions were declared intra vires, and the writ petition was dismissed.

Issues considered

Whether clauses (t) and (u) of s.175(1) disqualifying persons on the basis of indebtedness/insolvency are constitutionally valid.
Whether clause (v) of s.175(1) prescribing a minimum educational qualification for Panchayat candidates violates Article 14.
Whether clause (w) of s.175(1) disqualifying candidates lacking a functional toilet is constitutionally permissible.
Whether the right to vote and the right to contest elections to Panchayats are constitutional rights subject to legislative qualifications and disqualifications.
Whether the classifications created by the impugned clauses amount to unreasonable discrimination under Article 14.

Legislation cited

Constitution of Indias. Art.102(1)(c), s. Art.14, s. Art.173, s. Art.191(1)(c), s. Art.2438, s. Art.2439, s. Art.243F, s. Art.243G, s. Art.243H, s. Art.326, s. Art.58(1)(c), s. Art.66(1)(c), s. Art.84
Haryana Panchayati Raj Act, 1994 (as amended by Haryana Panchayati Raj (Amendment) Act, 2015)s. s.175(1)(t), s. s.175(1)(u), s. s.175(1)(v), s. s.175(1)(w)
Representation of the People Act, 1951

Subjects

Right to voteRight to contestArticle 14EqualityPanchayati RajDisqualificationEducational qualificationInsolvencyFunctional toiletConstitutional validityLegislative competence

Judgment

[2015] 12 S.C.R. 1106

A RAJBALA & OTHERS
v.
STATE OF HARYANA& OTHERS
(Writ Petition (Civil) No. 671 of2015)
B
DECEMBER 10, 2015
[J. CHELAMESWAR AND ABHAY
MANOHAR SAPRE, JJ.]
c Haryana Panchayati Raj Act, 1994 [As amended by
Haryana Panchayati Raj (Amendment) Act, 2015]:

s.175(1)(t) and (u) [As inserted by Haryana Panchayati
Raj (Amendment) Act, 2015} - Constitutional validity of -
D Held: Clauses (t) and (u) of s.175(1) are intravires the
Constitution - Indebtedness/ insolvency is recognized as a
factor which is incompatible in certain circumstances with the
right to hold an elected office under the Constitution as is
evident from Articles 102(1)(c), 191(1)(c), 58(1)(c) and 66
E (1)(c) of the Constitution - Insolvency is a field over which
both the Parliament as well as the State Legislatures have
legislative competence concurrently to make laws as it is one
of the topics indicated under Entry 9, List Ill of the Seventh
Schedule to the Constitution - Constitution of India, 1950-
F Arts.58(1)(c) and 66 (1)(c), 102 (1)(c) and 191(1)(c); VII
Schedule, List Ill, Entry 9.

s.175(1)(v) [As inserted by Haryana Panchayati Raj
(Amendment) Act 2015] - Constitutional validity of- Held:
G The impugned provision creates two classes by virtue of
educational qualification - The object of such classification
is to ensure that the members of Panchayat have basic
education enabling them to discharge various duties - The
object sought to be achieved cannot be said to be irrational
H
1106
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1107

or illegal or unconnected with the scheme and purpose of A
the Act or the provisions of Part IX of the Constitution - Thus
the classification is based on intelligible differentia, is '
reasonable· and has a reasonable nexus with the object
sought to be achieved - Hence the same is constitutional -
Constitution of India, 1950--Art. 14 and Part IX. 8

s. 175(1 )(w) {As inserted by Haryana Panchayati Raj
(Amendment) Act, 2015)- Constitutional validity of- Held:
Disqualifying a person from contesting Panchayat election,
if such person has no functional toilet at residence, cannot C
be said to be unconstitutional - Stipulation by legislature that
those who are not following basic norms of hygiene are
ineligible to become administrators of civic body, such a
policy can neither be said to create a class based on
0
intelligible criteria nor can such classification be said to be
unconnected with the object sought to be achieved by the
Act- Constitution of India, 1950 -Art. 14 and Part IX.

Election Laws:
E
Right to vote - Nature of - Held: Right to vote is a
constitutional right- It is not a statutory right pure and simple.

Right to contest election - Every person entitled to be a
voter by virtue of declaration u/Art. 326 is not automatically F
entitled to contest in any of the elections - Certain further
restrictions are imposed on a voter's right to contest elections
- Constitution of India, 1950 - Arts. 326, 84, 173, 102 and
191.
G
'Right to vote' and 'right to contest' an election to a
Panchayat- Nature of- Held: Such rights are constitutional
rights subsequent to introduction of Part IX of the Constitution
- Both the rights can be curtailed! regulated by the
appropriate legislature directly. H
1108 SUPREME COURT REPORTS [2015] 12 S.C.R.

A Right to vote and right to contest elections - Distinction
between - Discussed.

Constitution of India, 1950:

Arts. 84; 173, 102 and 191 - 'Qualifications' and
B
'Disqualifications' for membership of 'Parliament' and 'State
Legislature' - Distinction between - Held: There is no legal
distinction between the two expressions.

c Part IX, Art.2438, 243F- Right to contest a Panchayat
election- Qualifications and Disqualifications for- Held: Part
IX of the Consltitution is silent about 'qualification' required
for a candidate for election to Panchayat- Constitution only
prescribes 'disqualifications' for membership of Panchayats
0 - 'Qualifications' and 'Disqualifications relevant for
membership of the Legislature are equally applicable to the
membership of Panchayats.

Judicial Review - Examination of constitutional validity
E of legislation - Power of Supreme Court - Held: It is not
permissible for the Court to declare a statute unconstitutional
on the ground of its arbitrariness - Courts do not examine
the wisdom of legislative choices unless the legislation is
otherwise violative of some specific provision of the
F Constitution.

Doctrine - Doctrine of due process - Applicability of,
under Constitution of India.

Words and Phrases:
(j

'Qualification' and 'Disqualification' - Meaning of, in the
context of Arts. 84, 173, 102 and 191 of the Constitution of
India, 1950.

H 'Insolvent' - Meaning of, in the context of election law.
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1109

Dismissing the writ petition, the Court A

HELD: Per Chelameswar, J.

1.1 The "right to vote", if not a fundamental right, is
certainly a "constitutional right" and "it is not very 8
accurate to describe it as a statutory right, pure and
simple". Every citizen of this country has a constitutional
right both to elect and also be elected to any one of the
legislative bodies created by the Constitution. [Paras
21 and 22] [1127-F; 1128-C] · c
People's Union for Civil Liberties (PUCL) &
Anotherv. Union of/ndia &Another2003 (2) SCR
1136 : (2003) 4 SCC 399; Desiya Murpokku
Dravida Kazhagam (DMDK) &Anotherv. Election D
Commission of India 2012 (3) SCR 1084 : (2012)
7 sec 340 - relied on.

Shyamdeo Prasad Singh v. Nawal Kishore Yadav
2000 (2) Suppl. SCR 668 : (2000) 8 sec 46 - E
held inapplicable.

K. Krishna Murthy (Dr.) & Others v. Union of India
&Another2010 (6) SCR 972: (2010) 7 SCC 202;
Krishnamoorthy v. Sivakumar & Others 2015 (4 )
F
SCR 987 : (2015) 3 SCC 467 - held per-in-
curium.

N.P Ponnuswami v. Returning Officer, Namakka/
Constituency, Namakkal, Sa/em AIR 1952 SC 64
G
: 1952 SCR 218; Jyoti Basu & Others v. Debi
Ghosal & Others 1982 (3) SCR 318 : (1982) 1
SCC 691; Mohan Lal Tripathi v. District Magistrate,
Rai Bareilly & Others 1992 (3) SCR 338: (1992)
4 sec 80 - referred to. H
1110 SUPREME COURT REPORTS [2015] 12 S.C.R.

A 1.2 The Constitution recognises the distinction
between the 'Right to Vote' at various elections
contemplated under the Constitution and the 'Right to
Contest' at such elections. There are various other
electoral rights recognised or created by the statutes and
8 the Representation of the People Act, 1951 recognises
the same. [Para 31] [1133-F-G; 1134-A]
2.1. The provisions of the Constitution indicate that
every person who is entitled to be a voter by virtue of
C the declaration contained under Article 326 is not
automatically entitled to contest in any of the elections.
Certain further.restrictions are imposed on a voter's right
to contest elections. [Para 37] [1137-F-G]

0 •2.2 Articles 84 and 173 purport to stipulate
qualifications for membership of Parliament and
Legislatures of the State respectively. Articles 102 and
191 purport to deal with disqualifications for membership
of the above mentioned two bodies respectively. All the
E four Articles authorise the Parliament to prescribe further
qualifications and disqualifications, as the case may be,
with reference to the membership of Parliament and
Legislatures of the State as the case may be. [Para 38]
[1137-H; 1138-A-B]
F
2.3 There is no clear indication in any one of these
four Articles or in any other part of the Constitution as to
what is, the legal distinction between the two
expressions 'qualification' and 'disqualification'. In
0 common parlance, it is understood that a qualification
or disqualification is the existence or absence of a
particular state of affairs, which renders the achievement
of a particular object either possible or impossible.
Though there are two sets of Articles purporting to
H stipulate qualifications and disqualifications, there is
neither any logical pattern in these sets of Articles nor
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1111

any other indication which enables discernment of the A
legal difference between the two expressions. The
distinction between qualifications and disqualifications
is purely semantic. Thus, subject to restrictions, every
citizen has a constitutional right to elect and to be elected
to either Parliament or the State legislatures. [Paras 39 B
and 40] [1138-C-E; 1139-A-B]

Manoj Narula v. Union of India (2014) 9 SCC 1 -
relied on. ·
c
3.1 Haryana Panchayati Raj Act, 1994 was to bring
the then existing law governing Panchayats in the State
in tune with the Constitution as amended by the 73rd
amendment. As required under Article 2438, a three tier
Panchayat system at the Village, 'Samiti' and District level D
is established under the Act with bodies known as Gram
Panchayat, Panchayat Samiti and Zila Parishad. [Para
7] [1122-C-D]

3.2 Having regard to the scheme of Part IX of the E
Constitution, the purpose for which Part IX came to be
introduced in the Constitution by way of an amendment,
such constitutional rights exist in the context of elections
to the Panchayats. [Para 42] (1139-E-F; 1140-A]
F
Javed & Others v. State of Haryana & Others 2003
(1) Suppl. SCR 947 : (2003) 8 SCC 369- relied
on.

Bhanumati & Others v. State ofU.P. 2010 (7) SCR a
585 : (2010) 12 sec 1 - referred to.

3.3 Part IX of the Constitution does not contain any
express provision comparable to Article 326 nor does it
contain any express provisions comparable to Article 84 H
and Article 173. The text of Article 326 does not cover
1112 SUPREME COURT REPORTS [2015] 12 S.C.R.

A electoral rights with respect to Panchayats. In
contradiction to Article 326, Constitution does not
contain any provision which stipulates that a person to
be a voter at elections to Panchayat is required to be
either (i) a citizen of lr.dia or (ii) of any minimum age.
8 Similarly, in the context of right to contest an election to
Panchayats, Part IX is silent regarding qualifications
required of a candidate. All that the Constitution
prescribes is disqualification for membership of
c Panchayats. [Paras 44 and 45) [1140-D; 1141-C-D]

3.4 It appears from Article 243F, that any person who
is disqualified by or under any law for the time being in
force for the purposes of elections to the Legislatures
of the State concerned is also disqualified for being a
D
member of Panchayat. In other words qualifications and
disqualifications relevant for membership of ··the
Legislature are equally made applicable by reference to
the membership of Panchayats. Though such
E qualifications and disqualifications could be stipulated
only by Parliament with respect to the membership of
the Legislature of a State, Article 243F authorises the
concerned State Legislature also to stipulate
disqualifications for being a member of Panchayat. [Para
F 46) [1141-H; 1142-A-C]

3.5 Thus, the right to vote and right to contest at an
election to a Panchayat are constitutional rights
subsequent to the introduction of Part IX of the
G Constitution of India. Both the rights can be regulated/
curtailed by the appropriate Legislature directly.
Parliament can indirectly curtail only the right to contest
by prescribing disqualifications for membership of the
Legislature of a State. [Para 47) [1142-D]
H
4.1 It is a settled principle of law that curtailment of
RAJB'ALA & ORS. v. STATE OF HARYANA & ORS. 1113

any right whether such a right emanates from common A
law, customary law or the Constitution can only be done
by law made by an appropriate Legislative Body. Under
the scheme of Constitution, the appropriateness of the
Legisfative Body is determined on the basis of the nature
of the rights sought to be curtailed or relevant and the B
competence of the Legislative Body to deal with the right
having regard to the distribution of legislative powers
between Parliament and State Legislatures. It is also the
settled principle of law under the Constitution that every c
law made by any Legislative Body must be consistent
with provisions of the Constitution. [Para 48] (1142-E-G]

, 4.2 It is not permissible for this Court to declare a
statute unconstitutional on the ground that it is 'arbitrary',
0
I since such an exercise implies a value judgment and
i courts do not examine the wisdom of legislative choices
unless the legislation ·is otherwise violative of some
specific provision of the Constitution. To undertake such
an examination would amount to virtually importing the E
doctrine of "substantive due process" employed by the
American Supreme Court at an earlier point of time while
examining the constitutionality of Indian legislation. The
doctrine of due process has no application under the
Indian Constitution. [Paras 68 and 69] (1160-A-C; 1161- F
A]
A. S. Krishna & Others v. State of Madras AIR 1957
SC 297 : 1957 SCR 399; Municipal Committee
Amritsar v. State of Punjab 1969 (3) SCR 447:
(1969) 1 SCC 475 - relied oo. G
Subramanian Swamy v. Director, Central Bureau
of Investigation & Another 2014 (6) SCR 873 :
(2014) 8 SCC 682; Indian Council of Legal Aid v.
Bar Council of India 1995 (1) SCR 304: (1995) 1 H
SCC 732; B. Prabhakar Rao & Others v. State of
1114 SUPREME COURT REPORTS [2015] 12 S.C.R.

A Andhra Pradesh & Others 1985 Suppl. SCR 573
: 1985 {Supp) SCC 432; D.S. Nakara & Others v.
Union of India 1983 (2) SCR 165 : (1983) 1 SCC
305; R.K. Garg v. Union of India 1982 (1) SCR
947: (1981) 4 SCC 675; State ofAndhra Pradesh
B & Others v. McDowell & Co. 1996 (3) SCR 721 :
(1996) 3 sec 709 - held inapplicable.

His Holiness Kesavananda Bharati
Sripadaga/varu v. State of Kera/a & Another 1973
c (0) Suppl. SCR 1 : (1973) 4 SCC 225; Indira
Nehru Gandhi v. Raj Narain 1976 SCR 347 :
(1975) Supp SCC 1; E.P Royappa v. State of
Tamil Nadu &Another1974 (2) SCR348: (1974)
4 SCC 3; Maneka Gandhi v. Union of India &
D
Another 1978 (2) SCR 621 : (1978) 1 SCC 248 -
referred to. ·
5.1 Constitution makers recognised indebtedness
as a factor which is incompatible in certain
E circumstances with the right to hold an elected office
under the Constitution. Article 102{1){c) and Article
191(1){c) declare that an undischarged insolvent is
disqualified from becoming a Member of Parliament or
the State Legislature respectively. By virtue of the
F operation of Article 58(1){c) and 66(1){c), the same
disqualificatiO!l extends even to the seekers of the
offices of the President and the Vice-President.
Insolvency is an aspect of indebtedness - a specified
0 category of indebtedness. The Constitution makers
considered that people who are insolvent are not eligible
to seek various elected public offices, there is no
constitutional infirmity, ifthe legislature declares people
who are indebted to cooperative bodies or in arrears of
H electricity bills to be ineligible to become elected
representatives of the people in Panchayats. Insolvency
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1115

is a field over which both the Parliament as well as the A
legislatures of the State have a legislative competence
concurrently to make laws as it is one of the topics
indicated under Entry 9, List Ill of the Seventh Schedule
to the Constitution. [Paras 89 and 90) [1168-D-E; 1169-
A; 1170-A-B; 1171-A] B

5.2 Assuming for the sake. of argument that
somebody who is so indebted falling within the
prescription of clauses (t) and (u) of Section 175(1) of
the Act is still interested in contesting the Panchayat c
elections, nothing in law stops such an aspirant from
making an appropriate arrangement fo~ clearance of the
arrears and contest elections. Justness of a situation
where· there is dispute regarding the liability, is once
again in the realm of the wisdom of the legislation. The D
Court cannot sit in the judgment over the same. But
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 E
forum. Thus, there is no substance in the challenge to
clauses (t) and .(u) of Section 175(1) of the Act. [Para 92)
[1172-C, E-F]
6.1 The impugned provision namely s.175(1)(v)
creates two classes of voters - those who are qualified F
by virtue of their educational accomplishment to contest
the elections to the Panchayats and those who are not.
The proclaimed object of su~h classification is to ensure
that those who seek election to Panchayats have some 0
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 H
or provisions of Part IX of the Constitution. Therefore,
1116 SUPREME COURT REPORTS [2015] 12 S.C.R.

A prescription of an educational qualification is not
irrelevant for better administration of the Panchayats.
The classification cannot be said either based on no
intelligibl~ differentia unreasonable or without a
reasonable nexus with the object sought to be achieved.
8 [Para 85] [1166-C-B] [1167-A]
6.2 If it is constitutionally permissible to debar certain
classes of people from seeking to occupy the
constitutional offices, numerical dimension of such
c classes, should make no difference for determining
whether prescription· of such disqualification is·
constitutionally permissible unless the prescription is of
such nature as would frustrate the constitutional scheme
by resulting in a situation where holding of elections to
D these various bodies becomes completely impossible.
Therefore, the challenge to clause (v) to Section 175(1)
is rejec;ted. [Para 87] [1167-F-H; 1168-A]

7. Clause (w) to s.175(1) disqualifies a person from
E contesting an election to the Panchayat, if such a person
has no functional toilet at his place of residence. It is a
notorious fact that the Indian population for a long time
had this unhealthy practice of defecating in public. In a
bid to discourage this unhealthy practice, the State has
F
evolved schemes to provide financial assistance to
those who are economically not in a position to construct
a toilet. If people still do not have a toilet it is not because
of their poverty, but because Cilftheir lacking the requisite
G will. One of the primary duties of any civic body is to
maintain 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, if
the legislature stipulates that those who are not following
H basic norms of hygiene are ineligible to become
administrators of the civic body and disqualifies them
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1117

as a class from seeking election to the civic body, such A
a policy, 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. [Paras 93 and 95) [1172-G; 1174-C-D, F-G, 1175-
A-C] B
Per Abhay Manohar Sapre, J. (Concurring)

1. Both the rights namely "Right to Vote" and "Right to
Contest" are constitutional rights of the citizen. [Para 5) c
J:eop/e's Union for Civil Liberties (PUCL) &
Another v. Union of India & Another2003 (2) SCR
1136 : (2003) 4 SCC 399; Javed & Others v. State
of Haryana & Others 2003 (1) Suppl. SCR 947: o
(2003) 8 sec 369 - relied on.

2. Introduction of Section 175 (1 )(v) of the Act
prescribing certain minimum educational qualificatiQn
criteria as one of the qualifications for a candidate to E
contest the election has a reasonable nexus with the
object sought to be achieved. In fact, keeping in view
· the powers, authority and the responsibilities of
Panchayats as specified in Article 243-G of the
Constitution so also the powers given to Panchayats to F
impose taxes and utilization offunds of the Panchayats
as specified in Article 243-H of the Constitution, it is
necessary that the elected representative must have
some educational background to enable him/her to
effectively carry out the functions assigned to Panchyats G
in Part IX of the Constitution. It is the legislative wisdom
to decide as to what should be the minimum
qualifications, which should be provided in the Act.
Therefore, Section 175 (v) of the Act is intra vires the
Constitution and is thus constitutionally valid. [Paras 7, H
\
1118 SUPREME COURT REPORTS [2015] 12 S.C.R.

A 8 and 10] [1176-H; 1177-A, 8-D, E-F]
3. Section 175(w) of the Act too has reasonable
nexus and does not offend any provision of the
Constitution. This provision is enacted essentially in the
8
larger public interest and is indeed the need of the hour
to ensure its application all over the country and not
confining it to a particular State. Moreover, the State
having provided adequate financial assistance to those
who c:lo not have toilet facility for construction of toilet,
c there arise no ground to challenge this provision as
being unreasonable in any manner. [Paras 11 and 12]
[1177-F-G, H; 1178-A]
Case Law Reference

D In the judgment of Chelameswar, J.

2003 (2) SCR1136 relied on. Para 21

1952 SCR 218 referred to. Para 21
E 1982 (3) SCR318 referred to. Para 21

2012 (3) SCR 1084 relied on. Para 22

2000 (2) Suppl. SCR 668 held inapplicable. Para 25
F
2010 (6) SCR 972 held per-in-curiumPara 26

1992 (3) SCR 338 referred to. Para 26

2015 (4) SCR 987 held per-in-curiumPara 30
G
(2014) 9 sec 1 relied on. Para 39

2003 (1) Suppl. SCR 947 relied on. Para 43
1973 (0) Suppl. SCR 1 referred to. Para 56
H
1976 SCR 347 referred to. Para 56
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1119

2014 (6) SCR 873 held inapplicable Para 57 A

1995 (1) SCR 304 held inapplicable Para 57

1985 Suppl. SCR 573 held inapplicable Para 57

1983 (2) SCR 165 held inapplicable Para 57 B

1982 (1) SCR 947 held inapplicable Para 57

1974 (2) SCR 348 referred to. Para 66
c
1978 (2) SCR 621 referred to. Para 66

1996 (3) SGR 721 held inapplicable. Para 67

1957 SCR 399 relied on. Para 68
D
1969 (3) SCR 447 relied on. Para 68

In the judgment of Abhay Manohar Sapre, J.

2003 (2) SCR 1136 relied on. Para 3
E
2003 (1) Suppl. SCR 947 relied on. Para4

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
671of2015.
F
[UNDER ARTICLE 32 OF THE CONSTITUTION OF
INDIA]

Indira Jaising, Sr. Adv., Kirti Singh, Pukhrambam Ramesh
Kumar, Abhey Narula, Sumit Kumar Vats, Mannav Kumar, G
Vikramajit Mittal, Tara Narula, Sanjay Parikh, Anindita Pujari,
Devadatt Kamat, Meher Kaur, Advs., for the Petitioner.

i Mukul Rohatgi, AG., Alok Sangwan, B. K. Satija, Lokesh
Sinha!, Anil Grover, AAGs, Satish Kapoor, Deepansha, H
1120 SUPREME COURT REPORTS [2015] 12 S.C.R.

A Sheikhar Raj Sharma, Monika Gusain, Gaurav Yadava, Hariom
Yaduvanshi,Advs., for the Respondents.

The Judgments of the Court were delivered by

B CHELAMESWAR, J. 1. The challenge is to the
constitutionality of the Haryana Panchayati Raj (Amendment)
Act, 2015 (Act 8 of 2015), hereinafter referred to as the
"IMPUGNED ACT".

c 2. Even prior to advent of the Constitution of India under
the Government of India Act, 1935 certain local bodies with
elected representatives were functioning. Such local bodies
did not, however, have constitutional status. They owed their
existence, constitution and functioning to statutes and had been
o subject to the overall control of provincial governments.

3. Article 40 of the Constitution mandates-
..
"40. Organisation of village panchayats - The State
shall take steps to organize village panchayats and
E
endow them with such powers and authority as may be
necessary to enable them to function as units of self
government."

To effectuate such obligation of the State, Constitution
F authorised (even prior to the 73'd Amendment) State
Legislatures under Article 246(3) read with Entry 5 of List 11 to
make laws with respect to;

"5. Local government, that is to say, the constitution and
G powers of municipal corporations, improvement trusts,
districts boards, mining settlement authorities and other
local authorities for the purpose of local self-government
or village administration."

H Laws have been made from time to time by State
RAJBALA& ORS. v. STATE OF HARYANA& ORS. 1121
[CHELAMESWAR, J.]

Legislatures establishing a three-tier Panchayat system by A
1980's. It was felt desirable that local bodies be given
constitutional status and the basic norms regarding the
establishment and administration of a three-tier Panchayati
Raj institutions be provided under the Constitution. Hence,
the 73rd Amendment of the Constitution by which Part IX was 8
inserted with effect from 24.4.1993.

4. Under Article 2438 1, it is stipulated that there shall be
constituted in every State, Panchayats at the village,
intermediate and district levels (hereinafter collectively referred C
to as PANCHAYATS) in accordance with provisions of Part
IX. PANCHAYAT is defined under Article 243(d)2.

5. The composition of Panchayats is to be determined by
the legislature of the concerned State by law subject of course D
to various stipulations contained in Part IX of the Constitution;
such as reservations of seats in favour of scheduled castes
and scheduled tribes etc. The duration of the Panchayat is
fixed under Article 243E for a maximum of five years subject
to dissolution in accordance with law dealing with the subject. E
There is a further stipulation under Article 243E that election
to constitute a Panchayat be completed before the expiry of

' Article 2438. Constitution of Panchayats
F
(1) There shall be constituted in every State, Panchayats at the village,
intermediate and district levels in accordance with the provisions of this Part,
(2) Notwithstanding anything in clause ( 1 ), Panchayats at the intermediate
level may not be constituted in a State having a population not exceeding
twenty lakhs
2 Article 243(d).
G
"Panchayat" means an institution (by whatever name called) of self-
government constituted under article 2438, for the rural areas:

H
1122 SUPREME COURT REPORTS [2015] 12 S.C.R.

A its tenure 3

6. The broad contours of the powers and functions of
Panchayats are also spelt out in Article 243G and 243H. Such
powers and responsibilities are to be structured by legislation
B of the State. The establishment of an autonomous constitutional
body to superintend the election process to the PANCHAYATS
is stipulated under Article 243K.

7. The Haryana Panchayati Raj Act, 1994 (hereinafter
c referred to as "THE ACT") was enacted to bring the then
existing law governing PAN CHAYATS in the State in tune with
the Constitution as amended by the 73'd amendment. As
required under Article 24384 , a three tier Panchayat system at
the Village, 'Samiti' and District level is established under THE
D ACT with bodies known as Gram Panchayat, Panchayat Samiti
and Zila Parish ad. Part V Chapter XX of THE ACT deals with
provisions relating to elections to the PANCHAYATS.
3
Article 243E. Duration of Panchayats, etc

E - {1) Every Panchayat, unless sooner dissoll'ed under any law fm the time
being in force, shall continue for five years from the date appointed ·for its
first meeting and no longer.
(2) No amendment of any law for the time being in force shall have the
effect of causing dissolution of a Panchayat at any level, which is functioning
immediately before such amendment, till the expiration of its duration
specified in clause ( 1 ).
F
(3) An election to constitute a Panchayat shall be completed -
(a) before the expiry of its duration specified in clause (1 );
(b) before the expiration of a period of six months from the date of its
dissolution:
Provided that where the remainder of the period for which the
G dissolved Panchayat would have continued is less than six months, it
shall not be necessary to hold any election under this clause for
constitutin[J the Panchayat for such period.
(4) A Panchayat constituted upon the dissolution of a Panchayat before the
expiration of its duration shall continue only for the remainder of the period for
which the dissolved Panchayat would have continued under clause (1) had it
H not been so dissolved.
4 See Footnote 1
RAJBALA& ORS. v. STATE OF HARYANA& ORS. 1123
[CHELAMESWAR, J.]

8. Section 162 of THE ACT stipulates that PANCHAYAT A
areas shall be divided into wards 5 .

9. Section 1656 declares that every person entitled to be
registered as voter in the relevant part of the electoral rolls of
the Assembly is entitled to be registered as a voter for the B
purpose of PANCHAYATS elections. · ·

10. Section 175 mandates that persons suffering from any
one of the disqualifications mentioned in Section 175 are
neither eligible to contest the election to any one of the offices c
under the Act nor can they continue in office if they incur any
one of the disqualifications, after having been elected. The
categories so specified runs into a long list, such as, convicts
of certain categories of offences, adjudicated insolvent, people
of unsound mind, people who hold any office of profit under D
any one of the three categories of Panchayats etc.

11. By the IMPUGNED ACT7 , five more categories of
persons are rendered incapable of contesting elections for
any one of the elected offices under THE ACT. These E
categories are: (i) persons against whom charges are framed

5
Section 162. Electoral division:- Every sabha area, block and district shall
be divided into wards as referred in sections 8(3), 58(2) and 119(b) of this Act.
6
Section 165. Persons qualified to be registered as voters.- Every person· F
who is entitled to be registered as voter in the relevant part of the electoral
rolls of the Assembly under the Representation of People Act, 1950, shall be
entitled to be registered as a voter in the list of voters for the electoral division
to be prepared under section 164.
7
Initially, an ordinance known as "Haryana Panchayat Raj (Amendment)
Ordinance, 2015 was promulgated on 14.8.2015 now replaced by the G
Impugned Act which was passed by the Haryana Legislature on 7.9.2015
and subsequently notified. ·

H
1124 SUPREMECOURTREPORTS [2015] 12 S.C.R.

A in criminal cases for offences punishable with imprisonment
for not less than ten years, (ii) persons who fail to pay arrears,
if any, owed by them to either a Primary Agricultural
Cooperative Society or District Central Cooperative Bank or
District Primary Agricultural Rural Development Bank, (iii)
~ persons who have arrears of electricity bills, (iv) persons who
do not possess the specified educational qualification and lastly
(v) persons not having a functional toilet at their place of
residence.

c 12. On 8 9.2015, the second respondent (State Election
Commission) issued a notification specifying the election
schedule for the PANCHAYATS of Haryana.

13. The three petitioners herein claim to be political
D activists interested in contesting the local body elections, but
would now be disabled to contest as none of them possess
the requisite educational qualification.

14. The petitioners challenge the IMPUGNED ACT
E principally on the ground that the enactment is violative of Article
14 of the Constitution. It is argued on behalf of the petitioners
that (i) the impugned provisions are wholly unreasonable and
arbitrary and therefore violative of Article 14 of the Constitution.
They create unreasonable restrictions on the constitutional right
[
of voters to contest elections under the ACT8 ; (ii) they create

J ·That the Respondents have passed the impugned Act and Notification
without any consideration, regard or appreciation for the empirical data
pertaining to the number of people that would be prevented from contesting
ti Panchayati Raj elections by its actions. That the Respondents' actions have
the effect of disqualifying 56.80% of the population who would need to be
matriculation pass (6g,86, 197) and 79. 76% of the population who would
need to be middle-pass (10,83,052), in order to contest elections. That by its
actions, the Respondents have prevented an overwhelming majority of the
population from contesting elections, in contravention of Article 14, without
any regard for Constitutional principles."
iI [See Ground 'G' of the Petition]
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1125
[CHELAMESWAR, J.)

an artificial classification among voters (by demanding the A
existence of certain criter.ia which have no reasonable nexus
to the object sought to be achieved by the ACT), an otherwise
homogenous group of people who are entitled to participate
in the democratic process under the Constitution at the grass-
roots level; and (iii) the classification sought to be made has 8
no legitimate purpose which can be achieved 9 •

15. Though not very specifically pleaded in the writ petition,
elaborate submissions are made on the questions (i) whether
the stipulations contained in the impugned amendment are in C
the nature of prescription of "qualifications" or "disqualifications"
for contesting the elections under THE ACT; (ii) ifthe impugned
stipulations are in the nature of a prescription of
disqualifications whether the State legislature is competent to
0
make such stipulations consistent with the scheme of the
Constitution, as can be culled out from the language of Article
243F and other related provisions of the C0nstitution.

16. On the other hand, the learned Attorney General
appearing for the respondents submitted that nobody has a E
fundamental right to contest an election under our Constitution
and it is really not necessary in the present case to decide
whether the rightto contest an election to the PANCHAYATS
is a constitutional right. He argued that even assuming for the F
sake of argument that there is a constitutional right to contest
an election to the PANCHAYATS, such right is expressly made
subject to qualifications/disqualifications contemplated
under Article 243F which authorises the State legislature to
G
'"no reasonable nexus between the impugned classifications set out in the
impugned Act, and the object of the Act. That the imposition of disqualifications
on the grounds laid down by the impugned Act are entirely irrelevant to, and
have no bearing whatsoever on the ability of potential candidates to effectively
discharge their duties and perform their functions as members/heads of
Panchayati Raj institutions." [See: Ground 'A' of the Petition] H
1126 SUPREME COURT REPORTS [2015] 12 S.C.R

A prescribe disqualifications for contesting election to any
PANCHAYAT. Prescription of qualifications to contest an
election based on criteria such as minimal educational
accomplishment etc. cannot be said to be either arbitrary or
irrelevant having regard to the nature of duties required to be
13 discharged by persons elected to any one of the offices under

THE ACT.

17. The learned Attorney General also submitted that the
legislature best comprehends the needs of the society 10 • The
c decision to prescribe such a qualification is in the realm of
wisdom of the legislature 11 and the Courts do not sit in review
of such wisdom on the ground that the legislative decision is
arbitrary 12 .

D 18. Answers to questions raised by the petitioners in this
writ petition, in our opinion, inevitably depend upon answer to
the question whether right to vote or the right to contest an
election to any of the constitutional bodies is a constitutional
or a statutory right, since the extent to which curtailment or
E
regulation of such right is permissible depends upon the nature
of the right.

19. Prior to the 73"i Amendment of the Constitution, the
Constitution contemplated elections to the office of the
F President, Vice-President, the two Houses of the Parliament
known as Rajya Sabha and Lok Sabha and t~e State
Legislatures. The Legislatures in certain States are bicameral.
They are known as Legislative Assembly and Legislative
Ci Council while other States are unicameral (only the legislative

10
Maru Ram v. Union of India & Others, (1981) 1 SCC 107
11 In Re: The Kerala Education Bill, 1957, (1959) SCR 995
"State of A.P. & Others v. Mcdowell & Co. & Others, (1996) 3 SCC 709 [See
para 43]
H
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1127
[CHELAMESWAR, J.]

Assembly). After the 73'd and 74th Amendments of the A
Constitution, PANCHAYATS and Municipal bodies specified
under Parts IX & IXA of the Constitution respectively were
added to the above-mentioned.

20. The n~ture of the right to vote at or the right to B
contest to any one of the abovementioned elections has been
a vexed question.

21. A bench of three judges (M.B. Shah, P. Venkatarama
Reddi and D.M. Dharamadhikari, JJ.) of this Court in People's c
Union for Civil Libefties (PUCL) & Another v. Union of
India &Another, (2003) 4 SCC 399 considered the l,(alidity
of the Representation of the People (Third Amendment) Act,
2002 (4 of 2002). By the said amendment, a candidate
contesting an election (to which the Representation of the D
People Act, 1951 applies) is required to furnish certain
information at the time of filing of nomination. In that context,
Justice P.V. Reddi examined in some detail the nature of the
rightto vote in the background of the observations made in
two earlier decisions of this Court, in N.P. Ponnuswami v. E
Returning Officer, Namakkal Constituency, Namakkal,
Salem, Al R 1952 SC 64 and Jyoti Basu & Others v. Debi
Ghosal & Others, (1982) 1 sec 691 and recorded the
categoric conclusion that the "right to vote" if not a fundamental F
right is certainlya "constitutional right" and "it is not very accurate·
to describe it as a statutory right, pure and simple". The learned
Judge recorded nine of his conclusions in para 123. The 2nd
conclusion reads as follows:
r•
....
"(2) The right to vote at the elections to the House of
the People or Legisl;:itive Assembly is a constitutional
right but not merely a statutory right; freedom of
voting as distinct from right fo .vote is a facet of the
fundamental right enshrined in Article 19(1 )(a). The H
casting of vote in favour of one or the other candidate
1128 SUPREME COURT REPORTS. (2015] 12 S.C.R.

A marks the accomplishment of freedom of expression of
the voter."

A conclusion with which Justice Dharamadhikari expressly
agreed 13 . The third learned judge Justice M.B. Shah recorded
R no disa~lreement.

22. Following the PUCL case, one of us held in Desiya
Murpokku Dravida Kazhagam (DMDK) & Another v.
Election Commission oflndia, (2012) 7 SCC 340: "......
c every citizen of this country has a constitutional right both to
elect and also be elected to any one o~the legislative bodies
created by the Constitution ....... ". 14 No doubt, it was a part of
the dissenting opinion. It was a case dealing with allotment of
election symbols and the right of a political party to secure
J) " ....... an election symbol on a permanent basis irrespective
of its participation and performance judged by the vote share

" Para 131. With these words, I agree with Conclusions (A) to (E) in the
E opinion of Brother Shah, J. and Conclusions (1), (2), (4), (5), (6), (7) and (9) in
the opinion of Brother P.V. Reddi, J.
" Para 101. In my opinion. therefore, subject to the fulfillment of the various
conditions stipulated in the Constitution or by an appropriate law made in
that behalf, every citizen of this country has a constitutional right both to elect
and also be elected to any one of the legislative bodies created by the
F Constitution-the "straight conclusion" of Mohinder Singh Gil/v. Chief Election
Commissioner, (1978) 1 sec 405, "that every Indian has a right to elect and
be elected·-subject to statutory regulation", which rights can be curtailed
only by a law made by the appropriate legislation, that too on grounds specified
under Article 326 only.
For complete discussion - see paras 86 to 104.
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1129
[CHELAMESWAR, J.]

it commanded at any election." 15 Though, the majority held .{1
that a political party cannot claim an election symbol on a
permanent basis unless it satisfied norms stipulated under the
symbols order issued by the Election Commission of India.
Their Lordships did not record any disagreement regarding
the conclusion that the right to participate in electoral process, B
either as a voter or as a candidate is a constitutional right.

23. Therefore, in our opinion, the question whether the
right to vote at an election for either the Lok Sabha or the
Legislative Assembly is a statutory right or a constitutional right c
is no more res integra and stands concluded by the
abovementioned judgments, in PUCL and DMDK cases
(supra).

24. However, the learned Attorney General brought to our D
notice certain observations in some of the judgments to the
effect that rights to vote and contest elections are purely
statutory. The context and the precedentiary value of those
judgments need examination.
E
25. In Shyamdeo Prasad Singh v. Nawa/ Kishore
Yadav, (2000) 8 SCC 46, a Bench of three learned Judges
observed:

"20 .... It has to be remembered that right to contest ar. F
election, a right to vote and a right to object to an ineligible
person exercising right to vote are all rights and
.. obligations creat!=ld by statute .... "
15
Para 57. All these petitions filed either under Article 32 or under Article 136 G
raise certain common and substantial questions of law as to the interpretation
of the Constitution. The lis, essentially, is between the Election Commission
of India, a creature of the Constitution under Article 324, on the one hand and
various bodies claiming to be political parties and some of their functionaries,
on the other hand. The essence of the dispute is whether a political party is
entitled for the allotment of an election symbol on a permanent basis
irrespective of its participation and performance judged by the vote share it H
.-
commanded at any election.
1130 SUPREME COURT REPORTS [2015] 12 S.C.R.

A It was a case dealing with election to the Legislative
Council of Bihar from the Patna Teacher's Constituency. The
limited question before this Court was whether the High Court
in an election petition could examine the legality of the inclusion
of certain names in the electoral roll? We are of the opinion
8 that the said judgment leaves open more questions than it
answers. The correctness of the judgment requires a more
closer scrutiny in an appropriate case for more than one
reason. One of them is that the inquiry in the said judgment
c commenced with the examination of Article 326 which has no
application to elections to the Legislative Councils. The text of
Article 326 is express that it only deals with the adult suffrage
with respect to Lok Sabha and Legislative Assemblies. In our
opinion the statement (extracted earlier from para 20 of the
o said judgment) is made without analysis of relevant provisions
of the Constitution apart from being unnecessary in the context
of thE~.controversy before the Court and is further in conflict ~
with the later judgment in PUCL's case.

E 26. In K. Krishna Murthy (Dr.) & Others v. Union of
India & Another, (2010) 7 SCC 202 para 77, speaking for a
Constitution Bench of this Court, Balakrishnan, CJ. recorded
that: "...... it is a well-settled principle in lndi'an Law, that the
right to vote and contest elections does not have the status of
F fundamental rights. Instead, they are in the nature of legal
rights ....... ". For recording such conclusion reliance was
placed on certain observations made in an earlier judgment
(decided by a bench of two judges) of this Court in Mohan
Lal Tripathi v. District Magistrate, Rai Bareilly & Others,
G (1992) 4 sec so.

27. The challenge before this Court in K Krishna Murthy
case was regarding the legality of Article 2430(6) and Article
243T(6) which enabled reservation of seats in favour of
H backward classes etc. 16 The challenge to the abovementioned
RAJBALA& ORS. v. STATE OF HARYANA& ORS. -1131
[CHELAMESWAR, J.]

provisions is that they "are violative of principles such as A
equality, democracy and fraternity, which are part of the basic
structure doctrine". 17

28. The decision in PUCL case was unfortunately not
noticed by this Court while deciding K. Krishna Murthy case. B
Further a specific request "to reconsider the precedents
wherein the rights of political participation have been
characterized as statutory rights" was not given any
consideration 18 • Their Lordships also failed to notice that the
c
16
Para 12. However, the petitioners raised strong objections against the
other aspects of the reservation policy contemplated under Articles 243-0
and 243-T. Initially, they had assailed the reservation of seats in favour of
women, which has been enabled by Articles 243-0(2) and (3) with respect to
rural local bodies, and byArticles 243-T(2) and (3) with respect to urban local
bodies. However, this challenge was given up during the course of the D
arguments before this Court and the thrust of the petitioner's arguments
was directed towards the following two aspects:
• Firstly, objections were raised against Article 243-0(6) and Article
243-T(6) since they enable ·reservations of seats and chairperson posts in
favour of backward classes, without any guidance on how to identify these-
beneficiaries and the quantum of reservation. E
• Secondly, it was argued that the reservation of chairperson posts in
the manner contemplated under Articles 243-0(4) and 24l-T(4) is
unconstitutional, irrespective of whether these reservations are implemented
on a rotational basis and irrespective of whether the beneficiaries are SCs,
STs and women. The objection was directed against the very principle of
reserving chairperson posts in elected local bodies. F
17
See Para 13 of K. Krishna Murthy case

G

H
1132· SUPREME COURT REPORTS [2015]12S.C.R.

A observations made in Mohan Lal case, ~prior to the 74th
Amendment of the Constitution regarding the nature of the
. electoral rights with regard to the elections to the Municipal
bodies are wholly inapplicable and without examining
provisions of the Constitution as amended by the 7 4th
B Amendment.

29. They relied upon observation 19 from Mohan Lal case,
in our opinion, are too sweeping and made without any
appropriate analysis of law. The limited issue before this Court
c 18
Para 79. The petitioners have asked us to reconsider the precedents
wherein the rights of political participation have been characterised as
statutory rights. It has been argued that in view of the standard of
reasonableness, fairness and non-discrimination required of governmental
action under Article 21 of the Constitution, there is a case for invalidating the
restrictions that have been placed on these rights as a consequence of
D reservations in local self-government. We do not agree with this contention ..
Para 80. In this case, we are dealing with an affirmative action measure
and hence the test of proportionality is a far more appropriate standard for
exercising judicial review. It cannot be denied that the reservation of
chairperson posts in favour of candidates belonging to the Scheduled Castes,
Scheduled Tribes and women does restrict the rights of political participation
of persons from the unreserved categories to a certain extent. However, we
E feel that the test of reasonable classification is met in view of the legitimate
governmental objective of safeguarding the interests of weaker sections by
ensuring their adequate representation as well as empowerment in local
self-government institutions. The position has been eloquently explained in
the respondents' submissions, wherein it has been stated that "the
asymmetries of power require that the chairperson should belong to the
F disadvantaged community so that the agenda of such panchayats is not
hijacl<ed for majoritarian reasons". (Cited from the submissions on behalf of
the State of Bihar, p. 49.)
19
Para2. Democracy is a concept, a political philosophy, an ideal practised by
many nations culturally advanced and politically mature by resorting to
governance by representatives of the people elected directly or indirectly. But
electing representatives to govern is neither a 'fundamental right' nor a
G
'common law right' but a special right created by the statutes, or a 'political
right' or'privilege' and not a'natural', 'absolute' or 'vested right'. 'Concepts
familiar to common law and equity must remain strangers to election law
unless statutorily embodied.' Right to remove an elected representative, too,
must stem out of the statute as 'in the absence of a constitutional restriction
it is within the power of a legislature to enact a law for the recall of officers'. Its
H existence or validity can be decided on the provision of the Act and not, as a
matter of policy.
RAJBALA& ORS. v. STATE OF HARYANA& ORS. 1133
[CHELAMESWAR, J.]

in Mohan Lal case was the legality of a 'no confidence motion' A
moved against the President of Rai Bareilly Municipal Board
who was elected directly by voters of the municipality. The U.P.
Municipalities Act provided for.removal of the President so
elected through the process of a no confidence,r;notion moved
by the Councilors who themselves, in turn, are elected B
representatives of the territorial.divisions of the municipality.
The question whether the right to vote in or contest an election
is a constitutional or statutory right was not in issue. Mohan
Lal case was dealing with provisions of the U.P. Municipalities c
Act, 1916 as amended by Act 19 of 1990, i.e. prior to 74th
Amendment of the Constitution 20 . Therefore, the right to vote
and contest at an election for a municipality was certainly a
statutory right by the date of the judgment21 in Mohan Lal case.
D
30. Again in Krishnamoorthy v. Sivakumar & Others,
(2015) 3 sec 467, this court observed thatthe right to contest
an election is a plain and simple statutory right22.

31. We are of the opinion that observations referred to
above are in conflict with the decisions of this Court in PUCL E
case and DMDK case, which were rendered after an
elaborate discussion of the scheme of the Constitution. We
are of the clear opinion that the Constitution recognises the
distinction between the 'Right to Vote' at various elections F
contemplated under the Constitution and the 'Right to
Contest' at such elections. There are various other electoral
rights recognised or created by the statutes and the
Representation of the People Act, 1951 recognises the same 23 •
G
0
' Introduced Part IX-A of the Constitution dealing with Municipalities w.e.f.
1.6.1993
21
The judgment of Allahabad High Court is dated 19.2.1991 and the appeal
in this Court is decided on 15.5.1992.
22
Para 60." The purpose of referring to the same is to remind one that the H
right to contest in an election is a plain and simple statutory right. .. "
1134 SUPREME COURT REPORTS [2015] 12 S.C.R.

A Right to Vote

32. Prior to the ?3rd and 74th amendments, the Constitution
contemplated elections to be held to offices of the President
and the Vice President underArticles 54 and 66 respectively.
B It also contemplated elections to the two chambers of
Parliament i.e. Rajya Sabha and Lok Sabha. A small fraction
of the Members of the Rajya Sabha are nominated by the
President while other Members are elected 24 • In the case of
the Lok Sabha, subject to stipulations contained in Article 331
C providing for nomination of not more than two Members
belonging to the Anglo Indian Community all other Members
are required to be elected. In the case of the Legislative
Council, in States where they exist, a fraction of the Members
of th~ Council are requir~d to be nominated by the Governor
D under Article 171 (2)(e) and the rest of the Members are to 6e
elected from various constituencies specified under Article 171

23
Section 123(2). Undue influence, that is to say, any direct or indirect
E interference or attempt to interfere on the part of the candidate or his agent, or
of any other person with the consent of the candidate or his election agent,
with the free exercise of any electoral right:
24
Article 80. Com position of the Council of States.-(1) The Council of States
shall consist of (a) twelve members to be nominated by the President in
accordance with the provisions of clause (3); and (b) not more than two
hundred and thirty eight representatives of the States and of the Union
F territories.
(2) The allocation of seats in the Council of States to be filled by representatives
of the States and of the Union territories shall be in accordance with the
provisions in that behalf contained in the fourth Schedule.
(3) The members to be nominated by the President under sub clause (a) of
clause (1) shall consist of persons having special knowledge or practical
G experience in respect of such matters as the following, namely:
Literature, science, art and social service.
(4) The representatives of each State in the council of States shall be elected
by the elected members of the Legislative Assembly of the State in accordance
with the system of proportional representation by means of the single
transferable vote.
H (5) The representatives of the Union Territories in the council of States shall
be chosen in such manner as Parliament may by law prescribe.
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1135
[CHELAMESWAR, J.]

(3)(a), (b), (c), (d). Legislative Assemblies shall consist of only A
elected members subject to provisions for nomination
contained in Article 333 in favour of the Anglo Indian
Community.

33. The right to vote of every citizen at an election either B
to the Lok Sabha or to the Legislative Assembly is recognised
under Articles 325 and 326 subject to limitations
(qualifications and disqualifications) prescribed by or under
the Constitution. On the other hand the right to vote at an
election either to the Rajya Sabha or to the Legislative Council C
of a State is confined only to Members of the Electoral Colleges
specified'Under Article 80(4) & (5) and Article 171 (3)(a), (b),
(c), (d)25 respectively. In the case of election to the Rajya Sabha,
the Electoral College is confined to elected members of
Legislative Assemblies of various states and representatives D
of Union Territories 26 • In the case of the Legislative Council,

25
Article 171 (3) Of the total number of members of the Legislative council of
a State: E
(a) as nearly as may be, one third shall be elected by electorates consisting
of members of municipalities, district boards and such other local authorities
in the State as Parliament may by law specify;
(b) as nearly as may be, one twelfth shall be elected by electorates consisting
of persons residing in the State who have been for at least three years
graduates of any university in the territory of India or have been for at least F
three years in possession of qualifications 1prescribed by or under any law
made by Parliament as equivalent to that of a graduate of any such university;
(c) as nearly as may be, one twelfth shall be elected by electorates consisting
of persons who have been for at least three years engaged in teaching in
such educational institutions within the State, not lower in standard than that
of a secondary school, as may be prescribed by or under any law made by G
Parliament;
(d) as nearly as may be, one third shall be elected by the members of the
Legislative Assembly of the State from amongst persons who are not
members of the Assembly;
(e) the remainder shall be nominated by the Governor in accordance with the
provisions of clause (5) H
1136 SUPREME COURT REPORTS [2015) 12 S.C.R.

A the Electoral College is divided into four parts consisting of;
(i) Members of various local bodies specified under Article
171 (3)(a); (ii) certain qualified graduates specified under
Article 171 (3)(b); (iii) persons engaged in the occupation of
teaching in certain qualified institutions described under Article
B 171 (3)(c); and (iv) Members of the Legislative Assembly of
the concerned State. Interestingly, persons to be elected by
the electors falling under any of the above-mentioned
categories need not belong to that category, in other words,
need not be a voter in that category27 .
c 34. The Electoral College for election to the Office of the
President consists of elected members of both Houses of
Parliament and elected members of the Legislative
Assemblies of the State while the Electoral College with respect
0 to the Vice President is confined to Members of both Houses
of Parliament.
Right to Contest
35. The Constitution prescribes certain basic minimum
E
6
' Article 80(4). The representatives of each State in the council of States
shall be elected by the elected members of the Legislative Assembly of the
State in accordance with the system of proportional representation by means
of the· single transferable vote.
F "G. Narayanaswami v. G. Pannerselvam & Others [(1972) 3 SCC 717]"
Para 14. Whatever may have bl\en the opinions of Constitution-makers or of
their advisers, whose views are cited in the judgment under appeal, it is not
possible to say, on a perusal of Article 171 of the Constitution, thatthe Second
Chambers set up in nine States in India were meant to incorporate the principle
of what is known as "functional" or "vocational" representation which has
G been advocated by Guild-Socialist and Syndicalist Schools of Political Thought.
Some of the observations quoted above, in the judgment under appeal itself,
militate with the conclusions reached there. All that we can infer from our
constitutional provisions is that additional representation or weightage was
9iven to persons possessing special types of knowledge and experience by
enabling them to elect their special representatives also for Legislative
Councils. The concept of such representation does not carry with it, as a
H necessary consequence, the further notion that the representative must also
possess the very qualifications of those he represents.
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1137
[CHELAMESWAR, J.]

qualifications and disqualifications to contest an election A
to any of the above mentioned offices or bodies. Insofar as
election to the Office of the President and Vice President are
concerned, they are contained under Articles 58 and 66
respectively. Insofar as Parliament and the State Legislatures
are concerne.d, such qualifications are stipulated under B
Articles 84 and 173, and disqualifications under Articles 102
and 191 respectively. The Constitution also authorises
Parliament to make laws prescribing both further qualifications
and disqualifications.
c
36. Interestingly, insofar as elections to Office of the
President and Vice President are concerned, the Constitution
does not expressly authorise either Parliament or Legislative
Assemblies of the State to prescribe any further qualifications
or disqualifications to contest an election to either of these 0
Offices. It stipulates only two conditions which qualify a person
'to contest those Offices, they are - citizenship of the country
and the minimum age of 35 years. Under Articles 58(1 )( c) and
66(3)(c), it is further stipulated that a person who was otherwise
E
eligible to contest for either of the above mentioned two Offices
shall not be eligible unless he is qualified for election as a
Member of the Lok Sabha or the Rajya Sabha respectively.
37. An examination of the scheme of these various Articles
indicates that every person who is entitled to be a voter by F
virtue of the declaration contained under Article 326 is not
automatically entitled to contest in any of the elections referred
to above. Certain further restrictions are imposed on a voter's
right to contest elections to each of the above mentioned
G
bodies. These various provisions, by implication create a
constitutional right to contest elections to these various
constitutional offices and bodies. Such a conclusion is
irresistible since there would be no requirement to prescribe
constitutional limitations on a non existent constitutional right. H
38. Articles 84 and 173 purport to stipulate qualifications
1138 SUPREME COURT REPORTS [2015] 12 S.C.R.

A for membership of Parliament and Legislatures of the State
respectively. Articles 102 and 191 purport to deal with
disqualifications for membership of the above mentioned
two bodies respectively. All the four Articles authorise the
P~rliament to prescribe further qualifications and
8 disqualifications, as the case may be, with reference to the
membership of Parliament and Legislatures of the State as
the case may be.
39. The distinction between the expressions qualification
c and disqualification in the context of these four Articles is
little! intriguing. There is no clear indication in any one of these
four Articles or in any other part of the Constitution as to what
is the legal distinction between those two expressions. In
common •parlance, it is understood that a qualification or
D disqualification is the existence or absence of a particular state
of affairs, which renders the achievement of a particular object
either possible or impossible. Though there are two sets of
Articles purporting to stipulate qualifications and
disqualifications, there is neither any logical pattern in these
E sets of Articles nor any other indication which enables
discernment of the legal difference between the two
expressions. We reach such a conclusion because citizenship
of India is expressly made a condition precedent under Articles
F 84 and 173 for membership of both Parliament and State
Legislatures. Lack of citizenship is also expressly stipulated
to be a disqualification for membership of either of the above
mentioned bodies under Articles 102 and 191. In view of the
stipulation under Articles 84 and 173 - citizenship is one of the
o requisite qualifications for contesting election to either
Parliament or the State Legislature, we do not see any reason
nor is anything brought to our notice by learned counsel
appearing on either side to again stipulate under the Articles
102 and 191 that lack of citizenship renders a person
H disqualified from contesting elections to those bodies.
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1139
[CHELAMESWAR, J.]

Learned counsel appearing on either side are also A
unanimously of the same opinion. Weare, therefore, of the
opinion that the distinction between qualifications and
disqualifications is purely semantic26

40. We, therefore, proceed on the basis that, subject to B
· .restrictions mentioned above, every citizen has a constitutional
right to elect and to be elected to either Parliament or the State
legislatures.

41. Insofar as the Rajya Sabha and the Legislative Councils c
are concerned, such rights are subject to comparatively greater
restrictions imposed by or under the Constitution. The right
to vote. at an election to the Lok Sabha or the Legislative
Assembly can only be subjected to restrictions specified in
Article 326. It must be remembered that under Article 326 the D
authority to restrict the right to vote can be exercised by the
'appropriate legislature'. The right to contest for a seat in
either of the two bodies is subject to certai.n constitutional
restrictions and could be restricted further only by a law made
by the Parliament. H• E

42. The next question is - whether such constitutional
rights exist in the context of elections to the PANCHAYATS?
Having regard to the scheme of Part IX of the Constitution, the
26
Manoj Naru/a v. Union of India, (20~4) 9 SCC 1 F
Para 110. Article 84 of the Constitution negatively provides the qualification
for membership of Parliament. This Article is quite simple and reads as
follows:
. "84. Qualification for membership of Parliament-A person shall not be
qualified to be chosen to fill a seat in Parliament unless he-
(a) is a citizen of India, and makes and subscribes before some person G
authorised in that behalf by the Election Commission an oath or affirmation
according to the form set out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Council of States, r.ot less than thirty
years of age, in the case of a seat in the House of the People, not less
than twenty-five years of age; and
(c) possesses such other qualifications as may be prescribed in that H
behalf by or under any law made by Parliament.".
1140 SUPREME COURT REPORTS [2015] 12 S.C.R.

,\ purpose 29 for which Part IX came to be introduced in the
Constitution by way of an amendment, we do not see any
reason to take a different view.

43. On the other hand, this Court in Javed.& Others v.
H State of Haryana & Others, (2003) 8 SCC 369, held that
"right to contest an erection is neither a fundamental right nor a
common· law right. It is a right conferred by a statute. At the
most, in view of Part IX having been added in the Constitution,
a right to contest election for an office in Panchayat may be
c said to be a constitutional right ... " .
44. We need to examine contours of the two rights, i.e.
the right to vote (to elect) and.the right to contest (to get
elected) in the context of elections to PANCHAYATS. Part IX ,
D of the· Constitution does not contain any express provision
comparable to Article 326 nor does it contain any express
provisions comparable to Article 84 and Article 173. The text
of Article 326 does not cover electoral rights with respect to
PANCHAYATS. Therefore, questions arise:
i) Whether a non-citizen can become a voter or can
contest and get elected for PANCHAYATS?
ii) In the absence of any express provision, what is the
minimum age limit by which a person becomes entitled
F to a constitutional right either to become a voter or get
29 Bhanumati & Others v. State of U.P., (2010) 12 SCC 1

Para 33. The Panchayati Raj institutions structured under the said amendment
are meant to initiate changes so that the rural feudal oligarchy lose their
G ascendancy in village affairs and the voiceless masses, who have been
rather amorphous, may realise their growing strength. Unfortunately, effect of
these changes by way of constitutional amendment has not been fully realised
in the semi-feudal set-up of Indian politics in which still voice of reason is
drowned in an uneven conflict with the mythology of individual infallibility and
omniscience. Despite high ideals of constitutional philosophy, rationality in
our polity is still subordinated to political exhibitionism, intellectual timidity
!I and petty manipulation. The Seventy-third Amendment of the Constitution is
addressed to remedy these evils.
RAJBALA& ORS. v. STATE OF HARYANA& ORS. 1141
[CHELAMESWAR, J.]

elected to PANCHAYATS? A
iii) Are there any constitutionally prescribed qualifications
or disqualifications for the exercise of such rights?
Questions No.(i) and (ii) do not arise on the facts of the
present case. Therefore, we desist examination of these B
questions.
45. In contradiction to Article 326, Constitution does not
contain any provision which stipulates that a person to be a
voter at elections to PANCHAYAT is required to be either (i) a c
citizen of India or (ii) of any minimum age. Similarly, in the
context of rightto contest an election to PANCHAYATS, Part
IX is silent regarding qualifications required of a candidate.
All that the Constitution prescribes is disqualification for
membership of PANCHAYATS: D
"243F. Disqualifications for membership. - (1) A
person shall be disqualified for being chosen as, and for
. being, a member of a Panchayat -
(a) if he is so disqualified by or under any law for the E
time being in force forthe purposes of elections to
the Legislature of the State concerned: Provided
that no person shall be disqualified on the ground
that he is less than twenty-five years of age, if he
has attained the age of twenty-one years; F
(b) if he is so disqualified by or under any law made by
the Legislature of the State.
(2) If any question arises as to whether a member of a
Panchayat has become subject to any of the G
disqualifications mentioned in clause (1 ), the
question shall be referred for the decision of such
authority and in such manner as the Legislature of
a State may, by law, provide."
H
46. It appears from the above, that any person who is
1142 SUPREME COURT REPORTS [2015) 12 S.C.R.

A disqualified by or under any law for the time being in force for
the purposes of elections to the Legislatures of the State
concerned is also disqualified for being a member of
PANCHAYAT. In other words qualifications and
disqualifications relevant for membership of the Legislature
H arE~ equally made applicable by reference to the membership
of PANCHAYATS. Though such qualifications and
disqualifications could be stipulated only by Parliament with
respect to the membership of the Legislature of a state, Article
c 243F authorises the concerned State Legislature also to
stipulate disqualifications for being a member of PANCHAYAT.

· 47. The right to vote and right to contest at an election
to a PANCHAYAT are constitutional rights subsequent to the
introduction of Part IX of the Constitution of India. Both the rights
D
can be regulated/curtailed by the appropriate Legislature
directly. Parliament can indirectly curtail only the right to
contest by prescribing disqualifications for membership of
the Legislature of a State.
E 48. It is a settled principle of law that curtailment of any
right whether such a right emanates from common law,
customary law or the Constitution can only be done by law
made by an appropriate Legislative Body. Under the scheme
of our Constitution, the appropriateness of the Legislative Body
F
is determined on the basis of the nature of the rights sought to
be curtailed or relevant and the competence of the Legislative
Body to deal with the right having regard to the distribution of
legislative powers between Parliament and State Legislatures.
G It is also the settled principle of,law under our Constitution that
every law made by any Legislative Body must be consistent
with provisions of the Constitution.
49. It is in the abovementioned background of the
constitutional scheme that questions raised. in this writ petition
H are required to be examined.
RAJBALA& ORS. v. STATE OF HARYANA& ORS. 1143
[CHELAMESWAR, J.]

50. Section 173(1) 30 of THE ACT stipulates that every A
person whose name is in the "list of voters" shall be qualified
"to vote at the election of a member for the electoral division to
which such list pertains" unless he is otherwise disqualified.
Persons who are qualified to be registered as voters and "iist
of voters" are dealt with under Sections 165 and 166, the details B
of which are not necessary for the present purpose. Under
Section 173(2)31 every person whose name is in the- list of
voters subject to a further condition that he has attained the
age of 21 years is qualified to contest at an election to any c
PANCHAYAT unless such a person suffers from a
disqualification prescribed by law.
51. Section 175 of THE ACT stipulates that "No person
shall be a Sarpanch 32 or a Panch 33 of a Gram Panchayat or a
member of a Panchayat Samiti or Zila Parishad or continue 0
as such", if he falls within the ambit of any of the clauses of
Section 175. Section 175 reads as follows:

"Section 175. Disqualifications.-(1) No person shall be
a Sarpanch or a Panch of a Gram Panchayat or a E
member of a Panchayat Samiti or Zila Parishad or
continue as such who-

(a) has, whether before or after the commencement of
F
30
Section 173. Persons qualified to vote and be elected. -
(1) Every person whose name is in the list of voters shall, unless disqualified
under this Act or any other law for the time being in force, be qualified to vote
at the election of a Member for the electoral division to which such list pertains.
31 Section ·173(2). Every person who has attained the age of twenty-one G
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 disqualified to be
elected from any electoral division.
32
Section 2 (lvi) "Sarpanch" means a Sarpanch of Gram Panchayat elected
under this Act.
33
Section 2 (xii) "Panch" means a member of a Gram Panchayat elected H
under this Act.
1144 SUPREME COURT REPORTS [2015] 12 S.C.R.

A this Act, been convicted-

(!) of an offence under the Protection of Civil Rights Act,
1955 (Act 22of1955 ), unless a period of five years, or
such lesser period as the Government may allow in any
B particular case, has elapsed since his conviction; or

(ii) of any other offence and been sentenced to
imprisonment for not less than six months, unless a
period of five years, or such lesser period as the
c Government may allow in any particular case, has
elapsed since his release;.or

(aa) has not been convicted, but charges have been
framed in a criminal case for an offence, punishable
0 with imprisonment for not less than ten years;

(b) has been adjudged by a competent court to be of
unsound mind; or

(c) has been adjudicated an insolvent and has not
E obtained his discharge; or

(d) has been removed from any office held by him in a
Gram Panchayat, Panchayat Samiti or Zila Partshad
under any provision of this Act or in a Gram Panchayat,
F Panchayat Samiti or Zila Parishad before the
commencement of this Act under the Punjab Gram
PanchayatAct, 1952 and Punjab Panchayat Samiti Act,
1961, and a period of five years has not elapsed from
the date of such removal, unless he has, by an order of
G
the Government notified in the Official Gazette been
relieved from the disqualifications arising on account of
such removal from office; or

(e) has been disqualified from holding office under any
H
provision of this Act and the period for which he was so
RAJBALA & ORS. v. STATE OF HARYANA & ORS. 1145
[CHELAMESWAR, J.]

disqualified has not elapsed; or A

(f) holds any salaried office or office of profit in any Gram
Panchayat, Panchayat Samiti, or Zila Parishad; or

(g) has directly or indirectly, by himself or his partner any n
share or interest in any work done by order of the Gram
Panchayat, Panchayat Samiti or Zila Parishad;

(h) has directly or indirectly, by himself or, his partner share
or interest in any transaction of money advanced or c
borrowed from any officer or servant or any Gram
Panchayat; or

(i) fails to pay any arrears of any kind due by him to the
Gram Panchayat, Panchayat Samiti or Zila Parishad or
D
any Gram Panchayat, Panchayat Samiti or Zila Parishad
· subordinate thereto or any sum recoverable from him in
accordance with the Chapters and provisions of this Act,
within three months after a special notice in accordance
with the rules made in this behalf has been served upon E
him;

0) is servant of Government or a servant of any Local
Authority; or

(k) has voluntarily acquired the citizenship of a Foreign F
State or is under any acknowledgement of allegiance or
adherence to a Foreign state; or

(I) is disqualified under any other provision of this Act
and the period for which he was so disqualified has not G
elapsed; or •

(m) is a tenant or lessee holding a lease under the Gram
Panchayat, Panchayat Samiti or Zila Parishad or is in
arrears of rent of any lease or tenancy held under the H
1146 SUPREME COURT REPORTS [2015] 12 S.C.R.

A Gram Panchayat, Panchayat Samiti or Zila Parishad; or

(n) is or has been during the period of one year preceding
the date of election, in unauthorised possession of land
or oth~r immovable property belonging to the Gram
B Panchayat, Panchayat Samiti or Zila Parishad; or

(o) being a Sarpanch or Panch or a member of Panchayat
Samiti or a Zila Parishad has cash in hand in excess of
that permitted under the rules and does not deposit the
c same along with interest at the rate of twenty-one
percentum per year in pursuance of a general or special
order of the prescribed authority within the time specified
by it; or

0 (p) being a Sarpanch or Panch or a Chairman, Vice-
Chairman or Member, President or Vice-President or
Member of Panchayat Samiti or Zila Parishad has in his
custody prescribed records and registers and other
property belonging to, or vested in, Gram Panchayat,
E Panchayat Samiti or Zila Parishad and does not
handover the same in pursuance of a general or special
order of the prescribed authority within the time specified
in the order; or

F (q) x x x
(r) admits the claim against Gram Panchayat without
proper authorization in this regard;

(s) furnishes a false caste certificate at the time of filing
G
nomination:

Provided that such disqualifications under clauses (r) and
(s) shall be for a period of six years.

H (t) fails to pay any arrears of any kind due to him to
RAJBALA& ORS. v. STATE OF HARYANA& ORS. 1147
[CHELAMESWAR, J.]

any Primary Agriculture Co-operative Society, A
District Central co-operative Bank and District
Primary co-operative Agriculture Rural
Development Bank; or
..
(u) fails to pay arrears of electricity bills; B

(v) has not passed matriculation examination or its
equivalent examination from any recognized
institution/board:
c
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
D
belonging to Scheduled Caste contesting election
for the post of Panch, the minimum qualification
shall be 5th pass; or

(w) fails to submit self declaration to the effect that
he has a functional toilet at his place of residence. E

Explanation 1. -A person shall not be disqualified under
clause (g) for membership of a Gram Panchayat,
Panchayat Samiti or Zila Paris had by reason only of such
person,- F

(a) having share in any joint stock company or a share or
interest in any society registered under any law for the
. time being in force which shall contract with. or be
employed by or on behalf of Gram Panchayat, G
Panchayat Samiti or Zila Parishad; or

(b) having a share or interest in any newspaper in which
any advertisement relating to the affairs of a Gram
Panchayat, Panchayat Samiti or Zila Parishad may be H
1148 SUPREME COURT REPORTS [2015] 12 S.C.R.

A inserted; or

(c) holding a debenture or being otherwise concerned in
any loan raised by or on behalf of any Gram Panchayat,
Panchayat Samiti or Zila Parishad; or
B
(d) being professionally engaged on behalf of any Gram
Panchayat, Panchayat Samiti or Zila Panshad as a
Legal Practitioner; or
(e) having any share or interest in any lease of immovable
c property in which the amount of rent has been approved
by the Gram Panchayat, Panchayat Samiti or Zila
Parish ad in its own case or in any sale or purchase of
immovable property or in any agreeme~t for such lease,
D sale or purchase ; or
(f) having a share or interest in the occasional sale to the
Gram Panchayat, Panchayat Samiti or Zila Parishad
of any article in which he regularly trades or in the
purchase from the Gram Panchayat of any article, to a
E value in either case not exceeding in any year one
thousand rupees.
Explanation 2. - For the purpose of clause (1)-
(i) A person shall not be deemed to be disqualified if he
F has paid the arrears or the sum referred to in clause (i)
of this sub-section, prior to the day prescribed for the
nomination of candidates;
(ii) x x x."
G 52. By the IMPUGNED ACT five more contingencies
specified in clauses (aa), (t), (u), (v) and (w) have been added
which mnder persons falling in the net of those contingencies
disqualified from contesting elections.
H 53. At the outset, we must make it clear that neither learned
counsel for the petttioners nor other learned counsel (who were
RAJBALA& ORS. v. STATE OF HARYANA& ORS. 1149
[CHELAMESWAR, J.]

permitted to make submissions though they are not parties, A
having regard to the importance of the matter) made any
specific submission regarding constitutionality of sub-section
(1)(aa) of Section 175 which prescribes that "(1) No person
shall be a ..... or continue as such who ... (aa) has not been
convicted, but charges have been framed in a criminal B
case for an offence, punishable with imprisonment for
not less than ten years". The challenge is confined to clauses
(t), (u), (v) and (w) of Section 175(1 ).
54. We first deal with the submission of violation of Article C
14 on the ground of arbitrariness.

55. The petitioners argued that the scheme of the
Constitution is to establish a democratic, republican form of
Government as proclaimed in the Preamble to the Constitution. D
and any law which is inconsistent with such scheme is irrational
and therefore 'arbitrary'.

56. In support of the proposition that the Constitution seeks
to establish a democratic republic and they are the basic E
features of the Constitution, petitioners placed reliance upon
His Holiness Kesavananda Bharati Sripadagalvaru v.
State of Kera/a &Another, (1973) 4 SCC 225 para 1159
and Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC
1, paras 563 and 578. There cannot be any dispute about the F
proposition.

57. In support of the proposition that a statute can be
declared unconstitutional on the ground that it is arl;>itrary and
therefor~ vio_lative of Article 14,· petitioners relied upon G
judgments of this Court reported in Subramanian Swamy v.
Director, Central Bureau of Investigation & Another,
(2014) 8 SCC 682, Indian Council of Legal Aid v. Bar
Council of India, (19.95) 1 SCC 732, B. Prabhakar Rao &
Others v. State of Andhra Pradesh & Others, 1985 (Supp) H
1150 SUPREME COURT REPORTS [2015] 12 S.C.R.

A SCC 432 and D.S. Nakara & Others v. Union ofIndia, (1983)
1 SCC 305 and certain observations made by Justice A.C.
Gupta in his dissenting judgment in R.K. Garg v. Union of
India, (1981) 4 SCC 675.

B 58. In our opinion, none of the abovementioned cases is
an authority for the proposition that an enactment could be
declared unconstitutional on the ground it is "<1rbitrary".
59. In Subramanian Swamy case, the dispute revolved
c around the constitution~lity of Section 6A of the Delhi Special
Police EstablishmentAct 1946, which was introduced_ by an
amendment in the year 2003. It stipulated that the Delhi Special
Police Establishment shall not conduct any 'enquiry' or
'investigation' into any offence falling under the Prevention of
D Corruption Act 1988, alleged to have been committed by
certain classes of employees of the Central Government etc.
The said provision was challenged on the ground it was
arbitrary and uoreasonable34 and therefore violative of Article
E 34
"Para 3(3) ......... The Learned Senior Counsel contends that it is wholly
irrational and arbitrary to protect highly-placed public servants from inquiry
or investigation in the light of the conditions prevailing in the country and the
corruption at high places as reflected in several judgments of this Court
including that of Vineet Narain. Section 6-A of the Act is wholly arbitrary and
unreasonable and is liable to be struck down being violative of Article 14 of
the Constitution is the submission of learned amicus curiae.
F (4). In support of the challenge to the constitutional validity of the impugned
provision, besides observations made in the three-Judge Bench decision in
Vineet Narain case reliance has also been placed on various decisions
including S.G. Jaisinghani v. Union of India [(1967) 2 SCR 703]. Shrilekha
Vidyarthi v. State of U.P. ((1991) 1 SCC 212], Ajay Hasia v. Khalid Mujib
Sehravardi [(1981) 1 SCC 722] and Mardia Chemicals Ltd. v. Union of India
G [(2004) 4 SCC.311] to emphasize that the absence of arbitrary power is the
first essential of the rule of law upon which our whole constitutional system
is based. In Mardia Chemicals case a three-Judge Bench held Section 17(2)
of the Securitisation and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 to be unreasonable and arbitrary and vi,olative of
Article 14 of the Constitution. Section 17(2) provides for condition of deposit
of 75% of the amount before an appeal could be entertained. The condition
H has been held to be illusory and oppressive. Malpe Vishwanath Acharya v.
.State of Maharashtra [(1998) 2 SCC 1]. again a decision of a threeJudge
RAJBALA&ORS. v. STATE OF HARYANA&ORS. 1151
[CHELAMESWAR, J.]

14. The submission was resisted by the respondent (Union of A
India) on the ground that such a challenge is impermissible in
view of the decision in State ofAndhra Pradesh v. McDowell
& Co., (1996) 3 SCC 709. But the Constitution Bench
eventually declared the impugned provision unconstitutional
not on the ground of it being arbitrary but on the ground it makes B
an unreasonable classification of an otherwise homogenous
group of officers accused of committing an offence under the
Prevention of Corruption Act without there being reasonable
nexus between the classification and the object of the Act. 35
c
Bench, setting aside the decision of the High Court which upheld the provisions
of Sections 5(1 O)(b), 11(1) and 12(3) of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 pertaining to standard rent in petitions where
the constitutional validity of those provisions was challenged on the ground
of the same being arbitrary, unreasonable and consequently ultra vi res
Article 14 of the Constitution, has come to the conclusion that the said D
provisions are arbitrary and unreasonable.
35
"Para 64 ................. We are also clearly of the view that no distinction can
be made for certain class of officers specified in Section 6-A who are described
as decision making officers for the purpose of inquiry/investigation into an
offence under the PC Act, 1988. There is no rational basis to classify the two
sets of public servants differently on the ground that one set of officers is
E
decision making officers and not the other set of officers. If there is an
accusation of bribery, graft, illegal gratification or criminal misconduct against
a public servant, then we fail to understand as to how the status of offender is
of any relevance. Where there are allegations against a public servant which
amount to an offence under the PC Act. 1988, no factor pertaining to expertise
of decision making is involved. Yet, Section 6-A makes a distinction. It is this
vice which renders Section 6-A violative of Article 14. Moreover, the result of F
the impugned legislation is that the very group of persons, namely, high
ranking bureaucrats whose misdeeds and illegalities may have to be inquired
into, would decide whether the CBI should even start an inquiry or investigation
against them or ,not. There will be no confidentiality and insulation of the
investigating agency from political and bureaucratic control and influence
because the approval is to be taken from the Central Government which
would involve leaks and disclosures at every stage. G

"Para 99. In view of our foregoing discussion, we hold that Section 6-A(1),
which req-uires approval of the Central Government to conduct any inquiry or
investigation into any offence alleged to have been committed under the PC
Act, 1988 where such allegation relates to (a) the employees of the Central
Government of the level of Joint Secretary and above and (b) such officers as
are appointed by the Central Government in corporations established by or H
1152 SUPREME COURT REPORTS [2015] 12 S.C.R.

A 60. Coming to the Indian Council of Legal Aid & Advice
& Others v. Bar Council of India & Others, (1995) 1 SCC
732, it was a case where the legality of a rule made by the Bar
Council of India prohibiting the enrolment of persons who
completed the age of 45 years was in issue. The rule was
B challenged on two grounds. Firstly, that the rule was beyond
the competence of the Bar Council of India as the Advocates
Act 1961 did not authorise the Bar Council of India to prescribe
an upper age limit for 'enrolment. Secondly; that the rule is
c discriminatory and thirdly, the fixation of upper age limit of 45
years is arbitrary.
· 61. On an examination of the scheme of the Advocates
Act, this Court came to a conclusion that the impugned rule
was beyond the rule making power of the Bar Council of India
D and, therefore, ultra vires the Act. This Court also held that the
rule was "unreasonable and arbitrary" 36 •
under any Central Act, government companies, societies and local authorities
owned or controlled by the Government, is invalid and violative of Article 14 of
the Constitution. As a necessary corollary, the provision contained in Section
E 26 (c} of the Act 45 of 2003 to that extent is also declared invalid."
36
Para 13. The next question, is the rule reasonable or arbitrary and
unreasonable? The rationale for the rule, as stated earlier, is to maintain the
dignity and purity of the profession by keeping out those who retire from
various government, quasi-government and other institutions since they on
being enrolled as advocates use their past contacts to canvass for cases
F and thereby bring the profession into disrepute and also pollute the minds of
young fresh entrants to the profession. Thus the object of the rule is clearly to
shut the doors of profession for those who seek entry in to the profession
after completing the age of 45 years. In the first place, there is no reliable
statistical or other material placed on record in support of the inference that
ex-government or quasi-government servants or the like indulge in
undesirable activity of the type mentioned after entering the profession.
G Secondly, the rule does not debar only such persons from entry in to the
profession but those who have completed 45 years of age on the date of
seeldng enrolment. Thirdly, those who were enrolled as advocates while they
wern young and had later taken up some job in any government or quasi-
government or similar institution and had kept the sanad in abeyance are not
debarred from reviving their sanads even after they have completed 45 years
H of age. There may be a large number of persons who initially entered the
profession but later took up jobs or entered any other gainful occupation who
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1153
[CHELAME:SWAR, J.]

62. We are of the opinion that in view of the conclusion A
recorded by the Court that the rule is beyond the competence
of Bar Council of India, it was not really necessary to make
any further scrutiny whether the rule was unreasonable and
arbitrary. Apart from that, in view of the conclusion recorded
that the rule was clearly discriminatory, the inquiry whether the B
choice of the upper age limit of 45 years is arbitrary or not is
once again not necessary for the determination of the case.
At any rate, the declaration made by this Court in the said case
with regard to a piece of subordinate legislation, in our view, c
cannot be an authority for the proposition that a statute could
' be declared unconstitutional on the ground that in the opinion
of the Court the Act is arbitrary.
63. Now we shall examine Prabhakar Rao case.
D
The facts of the case are that the age of superannuation
of employees of the State of Andhra Pradesh was 55 till the
year 1979. In 1979, it was enhanced to 58 years. The
Government of Andhra Pradesh in February, 1983 decided to
roll back the age of superannuation to 55 years and took E
appropriate legal steps which eventually culminated in passing
of Act 23 of 1984. The said Act came to be amended by
Ordinance 24 of 1984, again enhancing the age of
superannuation to 58 years which was followed up by Act 3 of
1985. While enhancing the age of superannuation to 58 for F
revert to practise at a later date even after they have crossed the age of 45
years and under the impugned rule they are not debarred from practising.
Therefore, in the first place there is no dependable material in support of the
rationale on which the rule is founded and secondly the rule is discriminatory
as it debars one group of persons who have crossed the age of 45 years G
from enrolment while allowing another group to revive and continue practice
even after crossing the age of 45 years. The rule, in our view, therefore, is
clearly discriminatory. Thirdly, it is unreasonable and arbitrary as the choice
of the age of 45 years is made keeping only a certain group in mind ignoring
the vast majority of other persons who were in the service of government or
quasi-government or similar institutions at any point of lime. Th us, in our
view the impugned rule violates the principle of equality enshrined in Article H
14 of the Constitution.
1154 SUPREME COURT REPORTS [2015] 12 S.C.R.

A the second time by the above-mentioned Ordinance 24of1984
and Act 3 of 1985, benefit of the enhanced age of
superannuation was given to certain employees who had
retired in the interregnum between 20.2~ 1983 and 23.08.1984;
while others were denied such benefit. Prabhakar Rao and
8 others who were denied the benefit challenged the legislation.
This Court placing reliance on D.S. Nakara Case concluded
that the impugned Act insofar as it denied the benefit to some
of the employees who retired in the interregnum between two
dates mentioned above was unsustair.iable and held as
c
follows:-

"The principle of Nakara clearly applies. The division
of Government employees into two classes, those ·
who had already attained the age of 55 on February 28,
D
1983 and those who attained the age of 55 between
February 28, 1983 and August 23, 1984 on.fhe one hand,
and the rest on the other and denying the benefit of
~e higher age of superannuation to the former
E class is as arbitrary as the division of Government
employees entitled to pension in the past and in the future
into two classes, that is, those that had retired prior to a
specified date and those that retired or would retire after
the specified date and confining the benefits of the new
F pension rules to the latter class only.... "(Para 20)

The Bench also observed:-

"Now if all affected employees hit by the reduction of the
age of superannuation formed a class and no sooner
G
than the age of superannuation was reduced, it was
realized that injustice had been done and it was decided
that steps should be taken to undo what had been done,
there was no reason to pick out a class of persons who
H deserved the same treatment and exclude from the
benefits of the beneficent treatment by classifying them
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1155
[CHELAMESWAR, J.]

as a separata group merely because of the delay in A
taking the remedial action already decided upon. We
do not doubt that the Judge's friend and counselor, "the
common man", if asked, will unhesitatingly respond that
it would be plainly unfair to make any such. classification.
The commonsense response that may be expected from 8
the common man, untrammeled by legal lore and
learning, should always help the Judge in deciding
questions of fairness, arbitrariness etc. Viewed from
whatever angle, to our minds, the action of the c
Government and the provisions of the legislation were
plainly arbitrary and discriminatory." (Para 20)

64. Petitioners placed reliance on the last sentence which
said that the "action of the Government and the provisions of
the legislation were plainly arbitrary and discriminatory" in· D
support of their submission that an Act could be declared
unconstitution'al on the ground that it is arbitrary.

65. We are of the opinion that Prabhakar Rao case is
not an authority on the proposition advanced by the petitioners. E
The ratio of Prabhakar Rao case is that there was an
unreasonable classification between the employees of the
State of Andhra Pradesh on the basis of the date of their
attaining the age of superannuation. F
66. Observations by Justice Gupta ih R.K. Garg Case37
no doubt indicate that the doctrine propounded by this Court
in E.P. Royappa v. State of Tamil Nadu & Another38 and
Maneka Gandhi v. Union of India & Another39 that
G
arbitrariness is antithetical to the "concept of equality" is also
relevant while examining the constitutionality of a statute but

"(1981) 4 sec 675
"(1974) 4 sec 3
H
" (1978) 1 sec 248
1156 SUPREME COURT REPORTS [2015] 12 S.C.R.

A such observations are a part of the dissenting judgment and
not the ratio decidendi of the judgment.

67. Learned Attorney General heavily relied upon para 43
of the State of Andhra Pradesh & Others v. McDowell &
B Co., (1996) 3 SCC 709 which dealt with the question of
declaring a statute unconstitutional on the ground it is arbitrary.

"43. Sri Rohinton Nariman submitted that inasmuch as a
large number of persons falling within the exempted
c categories are allowed to consume intoxicating liquors
in the State of Andhra Pradesh, the total prohibition of
manufacture and production of these liquors is "arbitrary"
and the amending Act is liable to be struck down on this
ground alone. Support for this proposition is sought from
D a _judgment of this Court in State of Tamil Nadu & Ors. v.
AnanthiAmmal & Others [(1995) 1SCC519]. Before,
however, we refer to the holding in the s·aid decision, it
would be appropriate to remind ourselves of certain basic
propositions in this behalf. In the United Kingdom,
E
Parliament is supreme. There are no limitations upon
the power of Parliament. No Court in the United Kingdom
can strike down an Act made by Parliament on any
ground. As against this, the United States of America
l
has a Federal Constitution where the power of the
Congress and the State Legislatures to make laws is
limited in two ways, viz., the division of legislative powers
between the States and the federal government and the
fundamental rights (Bill of Rights) incorporated in the
( j Constitution. In India, the position is similar to the United
States of America. The power of the Parliament or for
that matter, the State Legislatures is restricteq in two
ways. A law made by the Parliament or the
Legislature can be struck down by courts on two
H grounds and two grounds alone, viz., (1) lack of
RAJ BALA & ORS. v. STATE OF HARYANA & ORS. 1157
[CHELAMESWAR, J.]

legislative competence and (2) violation of any of the A
fundamental rights guaranteed in Part-Ill of the
Constitution or of any other constitutional provision. There
is no third ground. We do not wish to enter into a
discussion of the concepts of procedural
unreasonableness and substantive unreasonableness - 8
concepts inspired by the decisions of United States
Supreme Court. Even in U.S.A., these concepts and in
particular the concept of substantive due process have
proved to be of unending controversy, the latest thinking c
tending towards a severe curtailment of this ground
(substantive due process). The main criticism against
the ground of substantive due process being that it seeks
to set up the courts as arbiters of the wisdom of the
Legislature in enacting the particular piece of legislation. o
It is enough for us to say that by whatever name it is
characterized, the ground of invalidation must fall within
the four corners of the two grounds mentioned above. In
other words, say, if an enactment challenged as violative
of Article 14, it can be struck down only if it is found that it E
is violative of the equality clause/equal protection clause
enshrined therein. Similarly, if an enactment is challenged
as violative of any of the fundamental rights guaranteed
by clauses (a) to (g) of Article 19(1 ), it can be struck down
only if it is found not saved by any of the clauses (2) to (6) F
of Article 19 and so on. No enactment can be struck
down by just saying that it .is arbitrary 40 * or
unreasonable. Some or other constitutional infirmity has
to be found before invalidating an Act. An enactment G
40
An expression used widely and rather indiscriminately - an expression of
inherently imprecise import. The extensive use of this expression, in India
reminds one of what Frankfurter,J. said in Hattie Mae Tiller v. Atlantic Coast
Line Railroad Co., 87 L.Ed. 610. 'The phrase begins life as a literary
expression; its felicity leads to its lazy repetition and repetition soon establishes
it as a legal formula, undiscrimina!ingly used to express different and H
sometimes contradictory ideas", said the learned Judge.
1158 SUPREME COURT REPORTS [2015] 12 S.C.R.

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
E 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
F 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
G
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 C
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
D
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
1160 SUPREME COURT REPORTS [2015] 12 S.C.R.

A 68. 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.

69. 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
H
declare void any legislative enactment."
.
RAJBALA& ORS. v. STATE OF HARYANA& ORS. 1161
[CHELAMESWAR, J.]

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

70. 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 C
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
D
classification has no nexus with the object sought to be
achieved.
71. 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 E
is the sole object of the 73'd constitutional amendment".

72. In the light of the above submissions, we shall now
deal with the challenge to each of the abovementioned four
clauses. F
73. 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;"
1162 SUPREME COURT REPORTS [2015] 12 S.C.R.

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.

74. 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
C 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
D
prescribed in the IMPUGNED ACT.

75. 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
F disqualification in respect of having minimum education
qualification."
76. According to the Annexure-5 (to the said affidavit of
the respondents) the details of the educational qualification of
G 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
H 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 --
77. 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')

78. 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 E
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 F
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 G
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 H
some PANCHAYAT
·'
1164 SUPREME COURT REPORTS [2015] 12 S.C.R.

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.

79. 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.
81. An analysis of the data in the above table indicates
E 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
F 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
G 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
82. 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.
83. 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.
84. 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."
1166 SUPREME COURT REPORTS [2015] 12 S.C.R.

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 .
85. 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
D 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
E 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
F 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.

H
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.

86. 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).
1168 SUPREME COURT REPORTS [2015] 12 S.C.R.

A Section 175(1).

88. 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
B 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
C sought to be achieved by the ACT.

89. 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
E offices of the President and the Vice-President.

90. 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
F 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.]

legislature. Sections 650 of the Provincial Insolvency Act, 1920 A
and Section 951 of the Presidency- Towns Insolvency Act, 1909
50 Section 6. Acts of insolvency.-(1 )A debtor commits an act of insolvency in each

of the following cases, namely:-
(a) if, in India or elsewhere, he makes a transfer of all or substantially all his property
to a third person for the benefit of his creditors generally; B
(b) if, in India or elsewhere, he makes a transfer of his property or of any part thereof
with intent to defeat or delay his creditors;
(c) if in India or elsewhere, he makes any transfer of his property, or of any part
thereof, which would, under this or any other enactment for the time being in force, be
void as fraudulent preference if he were adjudged an insolvent;
(d) if with intent to defeat or delay his creditors,-
(i) he departs or rem3ins out of the territories to which this Act extends; c
(iii) he departs from his dwelling-house or usual place of business or otherwise
absents preference if he were adjudged an insolvent;
(ii) he departs from his dwelling-house or usual place of business or otherwise absents
himself;
(e) if any of his property has been sold in execution of the decree of any Court for the
payment of money;
D
(f) if he petitions to be adjudged an insolvent under the provisions of this Act;
(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; or
(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 E
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 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 District Court, he shall not be F
deemed to have committed an act of insolvency under this sub-section; and
(b) in a case where such application is rejected by the District Court, he shall be
deemed to have committed an act of insolvency under this sub-section on the dale of
rejection of the application or the expiry of the period specified in the insolvency notice
for its compliance, whichever is later:
51
Section 9.Acts of insolvency.- (1) A debtor commits an act of insolvency in each G
of the following cases, namely;-
(a) if, in the States or elsewhere, he makes a transfer of all or substantially all his.
property to a third person for the benefit of his creditors generally;
{b) if, in the States or elsewhere, he makes a transfer of his property or of any part
thereof with inte~t to defeat or delay his creditors;
(c) if, in the States or elsewhere, he makes any transfer of his property or of any part
thereof, which would, under this or any other enactment for the time being in force, be H
void as fraudulent preference if he were adjudged an insolvent;
1170 SUPREME COURT REPORTS [2015] 12 S.C.R

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
G 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,
H 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 A
concurrently to make laws as it is one of the topics indicated
under Entry 952 , List Ill of the Seventh Schedule to the
Constitution.

91. The submission is that rural India is heavily indebted B
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.
92. 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 F
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
G
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.
- 1172

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
E 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
F 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.
93. 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
H 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 A
to contest elections to PANCHAYAT and, therefore,
discriminatory.
94. 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.
1174 SUPREME COURT REPORTS [2015] 12 S.C.R.

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
D
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
E 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
H less appealing than gold.", [Niall Ferguson, Civilization: The West and the
Rest, (First Edition, Penguin Press, 2011)] page 23
1175 "

sanitation within its jurisdiction. Those who aspire to get A
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 B
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
96. 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 D
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 E
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 A
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 B
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.