The introduction of the concept of Video-conferencing  has ushered a new era in Indian Criminal Justice system. Video-conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence.[1]

Though the validity of video-conferencing is justified by the Section 273 of the Criminal Procedure Code[2], interpretation of the statute is called into question. In case of Dharmand Pant v. State of U.P.[3] the Court upheld the validity of video-conferencing for the first time. But  the Court in the case of State of Maharashtra v. Dr. Praful B. Desai[4] justified the use video-audio system for taking evidences. The Court came to the conclusion in P. B. Desai[5] case that as long as the accused or his pleader are present when evidence is recorded by video-conferencing that evidence is being recorded in the ‘presence’ of the accused and would thus fully satisfy the requirements of Section 273 of the Criminal Procedure Code.[6] Recording of such evidence would be as per “procedure established by law under Article 21 of the Indian Constitution”.[7]  Also, many states including Madhya Pradesh, Andhra Pradesh, Karnataka and Tamil Nadu have amended Section 167 of Criminal Procedure Code so as to provide for production of the accused persons to the magistrate through electronic video linkage for the purpose of remand.[8]

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In a country where 75% of the prison population is undertrial remand prisoners, the production of them before the Courts is a daunting task. Video-conferencing will increase safety in courthouses and during escorts by Eliminating unnecessary prisoner movements can reduce crowding and tensions. This can improve safety inside correctional institutions and the chances of contraband entering will be reduced.[9]

Videoconferencing can help reduce or avoid some expenditures of Correctional centres which can reduce time spent logging prisoners and their personal effects in and out. Regular videoconferencing links for inmate appearances should lessen the need to expand cellblocks or vehicle fleet. Witness appearances can occur at reduced cost and with greater certainty.[10]

Cost of proceedings can be reduced by avoiding travel for witnesses, the party, co-counsel or judges. Conducting a scheduled videoconference can eliminate or reduce obstacles to case completion and provide better access for protected and vulnerable witnesses. the judiciary can dispose the cases of remand prisoners in short time and can concentrate on the trail cases.[11]

In Praful Desai[12] case, the Court was dismissive of the potential for technical mishaps: “By now science and technology has progressed enough to not worry about a video image/audio interruptions/distortions.” However, these are not trivial, especially when the undertrial’s rights to life and liberty are concerned. For example, the inauguration of the videoconferencing system in Karnataka High Court was reportedly “not exactly a smooth launch as the audio facility failed to click, apparently due to an ISDN link failure.”[13] Other

important and legitimate logistical concerns have to do with the fairness of a trial conducted via videoconferencing and the ability of the accused to benefit from the right to counsel and to participate in his or her defence.

[1] State of Maharastra  v. P.B Desai, [ (2003) 4 SCC 601]

[2] Sec 273 of Cr. P.C denotes that  except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.

[3]  1957 Cri LJ 894

[4] (2003) 4 SCC 601

[5] Ibid

[6] during the trial all the evidence shall be taken in the presence accused or in the presence of his pleader. This presence means physical presence in flesh and blood in the open court

[7] Section 3 of the Evidence Act,1872 states that ” In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context: -“Evidence” – “Evidence” means and includes-(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;(2) All documents including electronic records produced for the inspection of the court, such documents are called documentary evidence. ” A bare perusal of Section 3 of the Evidence Act, 1872 clearly indicate that evidence means and includes all statements which the court permits or requires to be made before it by witnesses. Therefore, any statement which reaches to the court through audio visual electronic media is also the statement of the witness before the Court and that is called oral evidence.

Sections 65A and 65B of the  Indian evidence act,1872 includes a special provision as to evidence relating to electronic record and admissibility of electronic records has been introduced with effect from 17th October, 2000. Therefore there is no bar of examination of witness by way of video-conferencing being essential part of electronic method.

Order 18 Rule 4(3) of the Code of Civil Procedure, presence does not necessarily mean physical presence. Rule 4(3) states about recording evidence either by writing or mechanically in the presence of judge.

[8] For example the State of Andhra Pradesh, in section 167, sub-section (2)(i) to clause (b), added the following at the end, namely- “either in person or through the medium of electronic video linkage;”

[9] The Advent of the Concept of Video Conferencing in Criminal Trials: Need and Benefits, available at: http://www.goforthelaw.com/articles/fromlawstu/article74.htm(Visited on April 23, 2014)

[10] http://www.ag.gov.bc.ca/courts/faq/info/videoconferencing.htm(Visited on April 25, 2014)

[11] Ibid

[12]  (2003) 4 SCC 601

[13] VIbideoconferencing : Mixed blessing for the Indian Criminal Justice, available at: http://www.hrdc.net/sahrdc/hrfeatures/HRF165.html.(Visited on April 30, 2014).

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Dogs are the most faithful animals to the human beings. But, recent developments in Kerala proved it contrary. Even, unfaithfulness of stray dogs had gone so extreme that Writ Petition has been filed in Kerala High Court to control it. Also, the division Bench of Kerala High Court held that Local Self Governments needed to take steps to kill the stray dogs in the interest of general public only in accordance with the provisions of Prevention of Cruelty to Animals Act, 1960 and rules made there under. In addition, the Court observed that strict implementation of Government order regarding vaccination and sterilisation of stray dogs along with eight directives to address the menace.

But, in November 2015 the Apex Court requested the High Court and District Courts not to pass any order pertaining to the Prevention of Cruelty Act, 1960 and 2001 rules. The Supreme Court, also, observed that “there can be no trace of doubt that there has to be compassion for dogs and they should not be killed in an indiscriminate manner, but indubitably the lives of the human beings are to be saved and one should not suffer due to dog bite because of administrative lapse”. The court also has asked all the Local Self Government bodies and Animal welfare Board to file affidavits regarding the issue.

In March 2016, the Supreme Court remained silent on the question of culling stray dogs and took the balance approach to sterilize and vaccinate stray dogs under supervision of Animal Welfare Board of India using provisions of the Prevention of Cruelty to Animals Act for controlling its population and rabies.

In August 2016, activist lawyer Prasant Bhushan wrote a letter to Kerala Chief Minister regarding the approach for culling stray dogs and conveyed that it would be contempt of the Supreme Court order(November, 2015) of complete stay on culling if they will go for it.

The State Government is thinking of culling stray dogs as everyday various Kerala News Channels are showing rampant menace of the stray dogs. Recent news of an old lady of 65 years age being eaten and killed by the stray dogs has pricked the conscience of whole nation, though Prasant Bhushan shrugged off this news as fake in his letter to Kerala Chief Minister.

But, these recent news have certainly raised the issue of the clash between human rights and animal rights once again. Are sterlization, vaccination and culling the only methods to stop this peril or are there any other approaches to curb this threat to human beings?

Feel free to share your views in comment section.

Modern volksgeist is that Indian Judiciary should embrace the advent of technology to function more efficiently. The law must keep pace with scientific developments and other contemporary changes in the society.This will certainly provide the Judiciary with the pace which is required to deal with cases in a time-bound manner.

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Administration of justice is based on the skeleton of the Legal Profession. Administration of justice will remain undone without marshalling the evidence in favour or against the parties in a suit or putting forth the best legal arguments in favour or against the parties in a case. “A well-organized system of judicial administration postulates a properly equipped and efficient Bar.”[1] It is, therefore, necessary to consider the development of the legal profession in India.

The history of the legal profession in India owes its existence to Governor Aungier who established the First British Court in Bombay in 1672. The Governor-in-Council was responsible for the admission of attorneys. Prior to the establishment of the Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners.

THE CHAMIER COMMITTEE:

To remove all distinction enforced by statue or by practice between Barristers and Vakils Munshi Ishwar Saran moved a resolution in the Legislative Assembly recommending legislation in February, 1921. Though the removal of distinction between Barristers and Vakils was the primary focus, the resolution advocated the constitution of a recognized body consisting exclusively of lawyers in India to provide for legal education, and to deal with all others matters relating to the legal profession. This was deemed important because many High Courts exercised disciplinary powers over lawyers on the theory that Vakils were officers of the court.[2] As finally adopted, the opinions from all corners were recommended before undertaking legislation in the proposed direction.

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Succumbing to the pressures thus generated, the Indian Bar Committee, popularly known as the Chamier Committee was appointed by the Government of India in 1923. This committee was constituted under the Chairmanship of Sir Edward Chamier, a retired Chief Justice of the Patna High court. Four Barristers, one Attorney, one civilian and three representatives of the Vakil Bar were the members of this Committee. The prevalent questions regarding the constitution of Indian Bar and the removal of existing distinction between Barristers and Vakils were put onto table to make a report on that.

Recommendations of the Committee are below mentioned:

(a)    that in all High Courts, a single grade of  enrolled practitioners, entitled to plead, is to be called advocates (not Barristers) and Vakils or Pleaders be abolished;

(b)   that only special conditions are maintained for admission  to Advocates entitled to appear on the Original Side and Advocates not so entitled;

(c)    that Vakils fulfilling certain conditions be admitted to practice on the original Side;

(d)   that the future one-third of the High Court Judges need not necessarily be Barristers;

(e)    that Advocates of one High Court should be entitled to practice in another High Court subject to the conditions to be imposed by the Bar Council of the latter court, or by the court where there is no Bar Council.

Regarding the question of constituting the All India Bar, the Committee shrugged off the matter at the time to organize the bar on an all-India basis or to continue an all-India bar Council. The Committee suggested however that a Bar Council should be constituted for few High Courts. The Bar Council was vested with the power to enquire into matters calling for disciplinary action against a lawyer, subject to the existing disciplinary jurisdiction of the High Court.

The Committee proposed that a Bar Council should have power to make rules subject to the approval of the High Court concerned in respect of such matters as inter alia:

(a) the qualifications, admission, and certificates of proper persons to be advocates of the High Court ;

(b) legal education

(c) matters relating discipline and professional conduct of Advocates, etc.;

(d) the terms on which advocates of another High Court could appear occasionally in the High Court to which the bar Council is attached;

(e) any other matter prescribed by the High Court.

 THE INDIAN BAR COUNCILS ACT, 1926

To materialize the recommendations of the Chamier Committee, the Indian Bar Councils Act, 1926 enacted to provide for the constitution and incorporation of bar Councils for certain Courts in British India, to confer powers and impose duties on such bar Councils, and to consolidate and attend the law relating to legal practitioners entitled to practice in such courts. Unification of the various grades of legal practitioners and self-governance to the bars attached to the various Courts were the main purposes of the Act.

MAIN FEATURES:

The Act extended to the whole of British India, but it was applied immediately only to the High Courts of Calcutta, Madras, Bombay, Allahabad and Patna.[3] The Act could be applied to such other High Court as the “Governor-General in Council may, by notification in the Official Gazette, declare to be High to which the Act applied.” Sections 3 to 7 of the Act dealt with the constitution and incorporation of a Bar Council as a body corporate and its powers of making by-laws. There was to be a Bar Council for each High Court.[4] A Bar Council was to consist of 15 members as follows: Advocate-General, four persons nominated by the High Court, of whom not more than two could be the judges of that court; ten members elected by the advocates of the High Court from amongst themselves.[5] A Bar Council was to elect a chairman and a vice chairman but in Madras, Calcutta and Bombay the Advocate general was to be ex-officio chairman of the bar Council.[6]

A High Court was authorized to reprimand, suspend or remove from practice any Advocate of the High Court whom it found guilty of professional or other misconduct.[7] The High Court was empowered, of its own motion, to refer any case in which it had otherwise reason to believe that any such Advocate had been guilty of misconduct.[8]

The power to enrol Advocates continued to remain in the High Courts and the function of the Bar Councils was merely advisory. The rules to be made by a Bar Council were subject to the approval of the High Court.[9] The High Court had effective disciplinary power over the Advocates, the role of the Bar Council being merely advisory.[10] A Bar Council could inquire into a complaint of professional misconduct only when the matter was referred to it by the High Court and even then the findings of the Bar Council were not binding on the High Court.[11] The Act did not in any way affect the Original Sides of the Calcutta and Bombay High Courts. The Attorneys of the Calcutta and Bombay Courts were not in any way touched by this Act and the enrolment of the Attorneys and the disciplinary jurisdiction over them, therefore, continued to remain vested in the High Courts under their respective Letters Patent.

[1] http://www.lawctopus.com/academike/history-legal-profession-india/

[2] Id.

[3] Sec. 1(2), Indian Bar Councils Act, 1926

[4] Sec. 3, Indian Bar Councils Act, 1926

[5] Sec. 4, Indian Bar Councils Act, 1926.

[6] Sec 4(4), Indian Bar Councils Act, 1926.

[7] Sec 10(1), Indian Bar Councils Act, 1926.

[8] Sec. 10(2), Indian Bar Councils Act, 1926.

[9] Sec. 15, Indian Bar Councils Act, 1926.

[10] Id.

[11] 10(2), Indian Bar Councils Act, 1926.

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Uniform civil code of India is a term that brings up the concept of a central Civil Law Code in India. The expression ‘Uniform Civil Code’ consist of three terms – ‘Uniform’, ‘Civil’, ‘Code’. When the term ‘Civil Code’ is read with the adjective ‘Uniform’ it connotes a code which shall be uniformly applicable to all citizens irrespective of their religion, race, sex, caste and creed. A uniform civil code manages the same set of secular civil laws to direct all people, even those who belong to diverse religions and regions. This takes over the right of citizens to be administered under diverse personal laws founded on the basis of religion or origin.

Article 44 directs, in order to cut across religion, caste and tribes and to build up a homogeneous nation that “the State shall endeavour to secure for the citizens a UCC throughout the territory of India”.[1] The constitution is thus, crystal clear that unless a uniform civil code is followed, integration cannot be imbibed. However, the fact is that it is only a “directives principle” laid down in the constitution and as Article 37 of the Constitution itself makes clear, the directive principles “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”. This shows that although our constitution itself believes that a Uniform Civil Code should be implemented in some manner, it does not make this implementation mandatory. Hence, the debate on having a uniform civil code for India still continues.

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In Mohammad Ahmed Khan v. Shah Bano Begum,[2] popularly known as the Shah Bano¡¦s case, the Supreme Court held that “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter.” In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and others[3], Kuldip Singh, J., held that “Successive governments have been wholly remiss in their duty of implementing the Constitutional mandate under Art. 44. Therefore, the Supreme Court requested the Government of India, through the Prime Minister of the Country to have a fresh look at Art. 44 of the Constitution of India and endeavour to secure for its citizens a UCC throughout the territory of India.” In Lily Thomas etc. v. Union of India and others[4] the Court held that:- The desirability of UCC can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statement amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.” In John Vallamattom v. Union of India[5] the Supreme Court held that “Parliament is still to step in for framing a UCC in the country. A UCC will help the cause of the national integration by removing the contradiction based on ideologies.”

Uniform Civil Code has been required in India for more than a century. The country has already suffered a lot in the absence of a Uniform Code for all. The Indian Constitution has fragmented the society in the name of religions, sects and sex. Even at present, different personal laws relating to marriage, divorce, maintenance, adoption and inheritance for different communities spread like a web in India. The laws governing inheritance or divorce among Hindus differ from those pertaining to Muslims or Christians and so on. In India, most family law is determined by the religion of the parties concerned Hindus, Sikhs, Jains and Buddhists come under Hindu law, whereas Muslims and Christians have their own laws. Muslim law is based on the Shariat; in all other communities, laws are codified by an Act of the Indian parliament. There are other sets of laws to deal with criminal and civil cases, such as the Criminal Procedure Code and the Indian penal code. The multifarious castes and creeds and their sets of beliefs or practices are bewilderingly confusing and nowhere is a scenario like in India, of various personal laws jostling together, allowed.

Does India need the Uniform Civil Code? Of course, it does. India should have a uniform law dealing with marriage, divorce, succession, inheritance and maintenance, though it must be realized that the scenario in India is extremely complex. Long history of personal laws cannot be forgotten easily. Without drawing a consensus among different communities, the Uniform Civil Code cannot be enforced with full vigour. It has to be worked out in such a way they don’t go against any particular faith or religion.

Uniform Civil Code will in the long run ensure Equality in religion. it is really absurd to allow Muslims marry more than once while Hindu and Christians are prosecuted for bigamy. Therefore, there is the demand for a uniform civil code for all religions. Also, UCC will help to promote Gender equality. Specifically Muslim women are not at par with the other women belonging to religious communities. Also, it was a matter of concern that this code will affect the religious freedom of minorities. But, one fails to understand how abiding the law of land can go against religious principles. The claim that the sentiments of the minorities are not considered while implementing a common law is thus beyond comprehension. UCC does not force people of one religion to practice rituals of other religions. As far as social ethics are concerned the Uniform Civil Code is necessary to effect an integration of India by bringing all communities into a common platform which at present is governed by personal laws which do not form the essence of any religion. The word Secularism in the Preamble of India will become a mere rhetoric unless uniformity is established in the form of rational non-religious codified laws.

[1] AJAI KUMAR, UNIFORM CIVIL CODE CHALLENGES AND CONSTRAINTS 8 (Satyam Law International, New Delhi)

[2] (1985) 2 SCC 556.

[3] AIR 1995 SC 1531.

[4] AIR 2000 SC 1650 1668.

[5] 2003 (5) SCALE 384.

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INTRODUCTION

Local Self-government is the management and governance of local affairs by a local body or authority. These local bodies may be municipal corporations or panchayats. According to D. Lockard, local government may be loosely defined as a public organization, authorized to decide and administer a limited range of public policies within relatively small territory which is a subdivision of a regional or national government. A nation develops from its roots and for a nation to develop, a strong base is needed in a country like India and the base is the local self-governments like Municipalities and Panchayats etc. These are the grassroots of a democracy in this country. It gives a good amount of exposure to the people who participate in the governance and running of these institution, in both political and social aspects. In rural areas the self-governing bodies are the Panchayats and in urban, it is the municipal corporations etc.

In India, villages are always considered as strength of this country. Village is a type of institution that govern itself contributing majorly in the growth and development of the country. It is said that the soul of India lives in villages and a majority of 60% of the total population currently lives in rural areas and in villages. These villages have a basic governance system called Panchayats, with a Sar Panch. This system is an image of the modern courts, with a judge. Here, the judge is the Sar Panch and decides all matters vis- a- vis the village and its affairs. The decisions by the panchayat and the Sar Panch are final. In India, The Panchayat Raj is also called the local self-government.

The history of legalized or institutionalized Panchayats (initiated by the British in different parts of India in the later part of the 19th century) is not very old. However, the spirit, in which this is viewed in independent India, is believed to be ancient. In the early ages, when the emperor’s rule hardly reached remote corners of the kingdom, villages were generally isolated and communication systems were primitive, village residents gathered under the leadership of village elders or religious leaders to discuss and sort out their problems. This practice of finding solutions to local problems collectively, has been found mention in ancient texts like Kautilya’s “Arthshastra” and in subsequent years, in Abul Fazal’s “Ain-E-Akbari and are still prevalent in different forms all over the country.

HARYANA PANCHAYATI RAJ INSTITUTIONS ACT, 2015

On the 7th of September, the Haryana State Assembly passed the Haryana Panchayati Raj (Amendment) Bill, 2015. By virtue of this, Haryana became only the second state in the country, after Rajasthan, to fix educational and certain other qualifications as eligibility criteria for the candidates to contest elections to Panchayati Raj institutions (PRIs).

According to the Bill, if you are a general candidate contesting elections to a Panchayati Raj institution, you need to be at least be class 10th pass. Similarly, for women (general) and schedule caste candidates, the essential qualification is middle standard or class 8th passed, and for women SC candidates, the essential qualification is class 5th pass.[1] The Bill has certain other provisions as well. The Bill makes it mandatory for the candidates to have functional toilets at home and payment slips of power bills, and also debars cooperative loan defaulters from contesting elections to PRIs.[2]

A few days after  passing of the Bill, a petition was filed in the Punjab and Haryana High Court challenging the Haryana Panchayati Raj (Amendment) Act on the ground that the new law would deprive a substantial part of the society from taking part in the grassroot-level elections. On 17th September, the Hon’ble Supreme Court of India agreed to consider the matter and finally stayed the Act. A bench headed by  Justice J. Chelameswar and Justice Abhay Manohar Sapre stayed the law and issued a notice to the Haryana Government and the Election Commission of India seeking their response. On 22nd September, the State Government asked the Supreme Court to decide whether educational qualification could be an eligibility criteria for the candidates aspiring to contest rural local body elections. The Hon’ble Apex Court had serious doubts over the constitutional validity of such law and it observed that it would allow the elections to be conducted  only if the Haryana government agreed to drop minimum educational qualification as a criteria to contest elections. To  this the Attorney General of India, Mr. Mukul Rohatgi, defending the law on behalf of the state, informed the Court that it was neither possible nor appropriate to drop the provisions and the government was ready to argue the case in Court and the Court should decide it one way or the other.

As per the petition, if the law continues to be in force, more than 83% of rural women above the age of 20 years in Haryana and around 67% of women in urban areas would also be disqualified from contesting elections.[3]

RAJBALA V. STATE OF HARYANA AND ORS

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A two Judge Bench of the Supreme Court of India upheld the validity of Haryana Panchayati Raj (Amendment) Act, 2015 (Act 8 of 2015), which interalia introduced the minimum educational qualification for candidates to contest the panchayat elections. The Bench consisting of Justice Chelameswar and A.M.Sapre held that both the rights namely “Right to Vote” and “Right to Contest” are not fundamental Rights but only constitutional rights of the citizen. Regarding the vires of Section 175 (1)(v) of the Act which provides that candidate must possess certain minimum educational qualification if he/she wants to contest an election, it is held that Prescription of an educational qualification is not irrelevant for better administration of the PANCHAYATS.[4] The introduction of such provision prescribing certain minimum educational qualification criteria as one of the qualifications for a candidate to contest the election has a reasonable nexus with the object sought to be achieved. The classification cannot be said either based on no intelligible differentia unreasonable or without a reasonable nexus with the object sought to be achieved. The Bench heavily relied on the earlier Judgments of the Supreme Court in Javed vs. State of Haryana[5]  and PUCL vs. Union of India[6]. “The only question that remains is whether such a 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 under the Constitution. Constitution itself imposes limitations on the right to contest depending upon the office. It also authorises the prescription of further disqualifications/qualification with respect to the right to contest. No doubt such prescriptions render one or the other or some class or the other of otherwise eligible voters, ineligible to contest. When the Constitution stipulates undischarged insolvents or persons of unsound mind as ineligible to contest to Parliament and Legislatures of the States, it certainly disqualifies some citizens 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”, said Justice Chelameswar.[7] Supreme Court also upheld clauses (t) and (v) of Section 175(1) of the Act which disqualify persons who are in arrears of amounts to cooperative bodies specified in clause (t) and the electricity bills and Clause (w) which disqualifies a person from contesting an election to the Panchayat if such a person has no functional toilet at his place of residence.

HARYANA AND BEYOND: RIGHT TO CONTEST ELECTIONS

An amendment to the Haryana Panchayati Raj Institutions Act resulted to unwarranted controversy and had been challenged before the Supreme Court of India. The impugned amendment prescribes qualifications for contesting in elections to the local self governments and also holding positions. The Constitution of India directs the Government to take steps to organise village panchayats and also endow them with such powers and authority as may be necessary to enable them to function as units of self-government. It is this direction that government heeded to by enacting the 73rd and 74th Constitutional Amendment.

Art.326 of the Indian Constitution guarantees Universal adult suffrage to all Indian Citizens. The same has been re-iterated in Section 62 of Representation of People Act, 1951. Principle of equality and non discrimination were in the minds of the makers. The earlier administrators imposed qualifications for casting vote in this country. Later, a few were impregnated with the thought that those educated should only form part of electorate of this country. The constitution makers were of the firm belief in the ability and worth of all adult citizens as ‘equals’ in the matter of deciding what is good for the society and for the country.

Participation of people means participatory democracy. Participatory democracy does not limit itself to mere voting, it includes greater political representation. A broader interpretation is the need. The new Haryana law requires that general candidates must have passed class X examinations while women and Dalit candidates need to have cleared class VIII and V respectively. State like Haryana standing with only 74% literacy and out of which, 2001 census says that only 14.1 % are Matriculates, it would be ‘injustice’ to prescribe a minimum educational qualification for becoming the representatives of people. This can be substantiated with a news story published in September this year with The Tribune narrating ground level reality in Begpur village of Kaithal District of Haryana, where the post of Sarpanch is reserved for a Scheduled caste candidate, is unable to find an SC candidate with the mandatory educational qualifications prescribed in the new amendment.[8] This is not a problem with one Panchayat alone. The new law will stand as a stumbling block over women and people from under privileged sections of society from contesting.

Moreover, strong common sense does not say that education certificates certify wisdom, intelligence or Leader like qualities. The so called certificated educated persons can use pen with confidence and nothing beyond that. A Panchayat President is expected to be the Leader of the local society there. He/she should understand their problems, must empathise with people. It is the wise bureaucracy that is selected from the best in the state runs the day to day administration. As the head of the village administration, he/ she are expected to be a decision maker and a visionary. As a representative and more to that, a leader, a Panchayat president should have ‘wisdom’. Wisdom comes from experience alone. A great visionary like K. Kamaraj Nadar popularised free schooling and introduced mid day meal scheme in Tamil Nadu. He never studied beyond high school. Today mid day meal scheme is implemented all over the country. The dream of a Chief Minister coupled with his will power to implement a scheme overlooking the usual financial burden theory of bureaucracy, is today behind the progress of the small south Indian state.

The Supreme Court of India in an assortment of cases has held that Right to contest in election is neither a fundamental right nor a constitutional right. This once again re-iterated decision of the apex court in Javed v. State of Haryana[9] gave confidence to the State of Haryana to take away the right to choice of the electoral public, who comes to take part in the festival of democracy. Right to vote is a part of basic structure of the Constitution, but right to select candidates is not. This seems to this author like an illogical corollary. The same logic applied to Art. 21- Right to Life in some Judgements in the 1950s and 60s divides constitutional history as before Maneka Gandhi and after Maneka Gandhi. Indian Parliament, as the legitimate voice of the people of this country, should amend the supreme law of this land and incorporate Right to Contest in an Election a Constitutional Right.

CONCLUSION

The Bench, comprising Justice J. Chelameswar and Justice A.M. Sapre upheld the validity of Haryana Panchayati Raj (Amendment) Act, 2015 (Act 8 of 2015), which interalia introduced the minimum educational qualification for candidates to contest the Panchayat elections. It held that both the rights namely “Right to Vote” and “Right to Contest” are not fundamental Rights but only constitutional rights of the citizen.

According to Senior Advocate and former Additional Solicitor General, Ms. Indira Jaising, the judgment effectively endorses an exclusionary principle, which disenfranchises 68% of Scheduled Caste women, 41% of Scheduled Caste men and over 50% of all women in Haryana from contesting a Panchayat election.

Ms. Jaising writes that the most ‘frightening thing’ about the judgment is the methodology adopted by the Court to reach its conclusion. She writes, “The court was for the first time in its history deciding whether the right to content an election was a constitutional right. For this reason alone, it was obliged to refer the case to a bench of five judges as required by Article 145 of the constitution. It did not do so, despite a plea to that effect, of which there is no mention in the judgment. The judgment is also unacceptable for the reason that it expresses the view that several earlier judgments of the courts on the concept of the right to vote were given in ignorance of the correct position in law. However, those judgments too were binding on this court and for that reason too, if the court disagreed with them, they were bound to refer the matter to a larger bench. Judicial discipline required that to be done.”[10] “Perhaps the public messaging on the Swachha Bharat campaign has entered so deep into the consciousness of the court that it has become its most prominent ambassador,”[11] she adds.

While the Apex Court ruled that the disqualifications are “not unreasonable or arbitrary” and “do not violate the right to equality guaranteed by Article 14 of the Constitution”, activist Mr. Venkatesh Nayak of the Commonwealth Human Rights Initiative believes, “It ignores important international human rights standards that India has accepted and agreed.” Highlighting the ‘irony’ that the judgment has been accused of possessing, Mr. Nayak wrote, “If you are a woman who is only a sixth class pass, you cannot contest elections in Haryana in the non-reserved category but you can successfully contest elections to Parliament from anywhere in India and become the Union Cabinet Minister for Water Resources and work to rejuvenate river Ganges.” He asks, “What if some villages do not have any candidate who meets the necessary educational qualification? Will the Panchayat remain without an elected body?” He asks, “Can formal education alone be the benchmark for testing the intelligence of people? Can only formally educated people discriminate between good and bad and right and wrong as the judge held?”

A glimpse of Mr. Nayak’s apprehensions were brought to the fore by the Indian Express, when it published the tale of the residents of Nimkheda, a small settlement of 1,674 people in Haryana’s Mewat district, soon after the judgment was delivered. This community had created history 10 years ago by electing the country’s first all-women gram Panchayat. The village has been showing significant development after the historical election. The literacy rate has escalated, and the practice of female foeticide and infanticide has been discouraged.

The Apex Court however discredits them of their attempts at betterment of their people with its statement, “it is only education which gives a human being the power to discriminate between right and wrong, good and bad”. None of the 10 Panchayat members is eligible to contest elections after the Supreme Court judgment. Further, the three seats reserved for women in the gram Panchayat may also go unrepresented, only a handful of the female adult population would qualify for the elections.

Another such instance is that of Rajbala, the outgoing sarpanch of village Sultanpurian in Sirsa who had studied till Class 4. The village won the swachh village award from the Haryana government. Rajbala is however, ineligible to contest again.

Bhartiya Janata Party Government had imposed similar restrictions in Rajasthan, a move which has since been viewed as furthering the discrimination and disadvantages that some communities have been subject to for years now. Condemning such a move, civil rights activist, Aruna Roy told Times of India, “If one looks at statistics of the currently elected representatives at the Panchayat samiti and zila parishad levels, one will see that more than 50% of the current zila parishad members and more than 70% of current Panchayat Samiti members would be disqualified as per the current Class 10 pass requirement. None of these people can stand for re-election. These alarming levels of discrimination go up higher within reserved categories.” [12]

This discrimination not only contradicts the fundamental feature of universal suffrage guaranteed to all citizens of India by the Indian Constitution, it also lays bare the State’s own failure in displaying allegiance to the Directive Principles of State Policy. Terming the judgment as a “body blow to justice for those most in need of it”, Mr. Mani Shankar Aiyer, Congress MP in Rajya Sabha, rightly points out, “they are being punished for no fault of their own. It is not that they refused to be educated. It is that the state failed to provide them the facilities to study, and is now thwarting their desire to serve their communities by banning them from even standing in, let alone winning, elections to local bodies.” [13]

The judgment compels a diversion to the obtrusive functional administrative inadequacies of the country. The Court’s dubious logic in permitting entrustment of the reins of power to the ones with formal education, at the cost of the experienced ones exposes the inherent Indian ideology of equating education with intelligence, and degrees with competence. While formal education does provide perspective, disregarding traditional, informal education alienates the ingenious Indian representative of the masses.

[1] The Haryana Panchayati Raj (Amendment) Bill, 2015

[2] Id.

[3] http://lexquest.in/progression-at-the-cost-of-alienation/

[4] The Haryana Panchayati Raj (Amendment) Bill, 2015

[5] [(2003) 8 SCC 369]

[6] [(2003) 4 SCC 399]

[7] Rajbala v. State of Haryana and ors., Writ Petition Civil No. 671/2015

[8] http://www.livelaw.in/haryana-and-beyond-right-to-contest-in-elections/

[9] [(2003) 8 SCC 369]

[10] http://www.livelaw.in/supreme-courts-approval-to-new-qualifications-for-panchayat-contestants-raises-disturbing-questions-says-activists/

[11] Id.

[12] http://lexquest.in/should-there-be-minimum-educational-qualifications-for-contesting-elections-in-india/

[13] http://lexquest.in/role-of-local-self-government/

BIBLIOGRAPHY 

  1. Mahendra Pal Singh, V.N. Shukla’s Constitution of India, (Eastern Book Company, 2013
  2. Buddhadeb Ghosh, Bidyut Mohanty, Local Governance Search for New Path, Concept Publishing Company Pvt. Ltd., New Delhi,2011.
  3. Durga Das Basu, Constitutional Law of India, LewxisNexis Butterworths wawdhwa Nagpur, 2011.
  4. M Bakshi, The Constitution of India, Universal Law Publishing, 2015.
  5. livelaw.in
  6. lexquest.in

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