BEFORE THE HONOURABLE SUPREME COURT OF INDIA

NEW DELHI, INDIA

WRIT PETITION NO. _____\2016

UNDER ARTICLE 32 OF THECONSTITUTION OF INDIA

RAJABALA & Ors.

(PETITIONERS)

v.

STATE OF HARYANA & Ors.

(PETITIONERS)

MEMORIAL ON BEHALF OF PETITIONERS

SUBMITTED BY

BLESSAN M

COUNSEL NO. 16IP63016

2016
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TABLE OF CONTENTS

A. LIST OF ABBREVIATIONS .......................................................................................... iii

B. INDEX OF AUTHORITIES ............................................................................................ iv
I. LIST OF STATUTES/RULES ........................................................................................ iv
II. LIST OF CASES REFERRED .................................................................................... iv
III. LIST OF BOOKS REFERRED .................................................................................... v
C. STATEMENT OF JURISDICTION ............................................................................... vi
D. STATEMENT OF FACTS .............................................................................................. vii
E. ISSUE RAISED ............................................................................................................... viii
F. SUMMARY OF PLEADINGS ............................................................................................ ix
G. PLEADINGS ADVANCED ............................................................................................. 1
H. PRAYER FOR RELIEF ................................................................................................... 8

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A. LIST OF ABBREVIATIONS

S.No ABBREVIATION EXPANSION

1. Paragraph

2. AIR All India Report

3. Anr. Another

4. Ors. Others

5. Re Reply

6. SC Supreme Court

7. SCC Supreme Court Cases

8. v. Versus

9. Vol. Volume

10. SCR Supreme Court Reporter

11. CAL Calcutta

12. GLT Gauhati Law Times

13. ILR Indian Law Reports

14. PUCL Peoples Union Of Civil Liberties

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B. INDEX OF AUTHORITIES

CONSTITUTION OF INDIA, 1950

I. LIST OF STATUTES/RULES

i. 73rd Constitutional Amendment Act, April 1993

ii. Haryana Panchayati Raj Act, 1994

iii. Haryana Panchayati Raj (Amendment) Act, 2015 (Act 8 of 2015)

iv. Right of Children to Free and Compulsory Education Act, 2009

v. International Covenant on Civil and Political Rights

II. LIST OF CASES REFERRED

S.NO. CASE TITLE CITATION
1. Budhan Choudhry v. The State Of Bihar [1955] 1 S.C.R. 1045 3

2. Anwar Ali Sarkar v. The State Of West Bengal AIR 1952 CAL 150 4

3. Javed v. State Of Haryana (2003) AIR 2003 SC 3057 8

4. E.P. Royappa v. State Of Tamil Nadu 1974 AIR 555 15

5. TMA Pai Foundation v. State Of Karnataka AIR 2003 SC 2902 16

6. G.Narayanaswami v. G. Panneerselvam AIR 1972 SC 2284 20

Union Of India v. Association For Democratic
7. AIR 2002 SC 2112 21
Reform
People's Union Of Civil Liberties v. Union Of
8. AIR 2005 SC 2419 22
India & Anr
9. PUCL v. The Union Of India,2003 AIR 2003 SC 2363 31

10. PUCL v. The Union Of India,2014 AIR 2014 CHH 133 31

Supreme Court Advocates-On-Record-
11. 2015(5) GLT (SC)12 33
Association And Ors v. Union Of India
Mohinder Singh Gill v. Chief Election
12. (1977) ILR 2DELHI265 34
Commissioner

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III. LIST OF BOOKS REFERRED

S.NO BOOK TITLE

M.P. Jain, Indian Constitutional Law, 265
1. (6th Ed., Lexis Nexis Butter WorthsWadhwa 2011)

2. Constitution of India, P.M.Bakshi,Universal Law PublishingCompany,12th Edition

3. Constitutional Law of India, (In 3 Volumes, Reprint), Universal Law Publishing
4. Introduction to Indian Constitution ,D D Basu

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C. STATEMENT OF JURISDICTION

THE PETITIONER HUMBLY SUBMITS TO THE JURISDICTION OF THIS

HONOURABLE COURT UNDER ART 32 OF THE CONSTITUTION. THE
PETITIONER HAS APPROACHED THIS HONOURABLE COURT AS THE
HARYANA PANCHAYATI RAJ (AMENDMENT) ACT, 2015 (ACT 8 OF 2015), HAS
VIOLATED HIS FUNDAMENTAL RIGHTS PROVIDED BY THE
CONSTITUTION.THE PETITIONER MAINTAINS THAT THE JURISDICTION OF
ART 32 OF THE CONSTITUTION, WHICH PROTECTS THE CITIZENS OF INDIA
FROM ANY VIOLATION OF THEIR FUNDAMENTAL RIGHTS, IS APPLICABLE IN
THE PRESENT CASE.

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D. STATEMENT OF FACTS

1. The Parliament passed the 73rd Constitutional Amendment Act in April 1993. The
Amendment provided a constitutional status to Panchayat Raj Institutions in India, which was
earlier just directed to be organized under Article 40 of the original constitution.
2. The 73rd Amendment Act has added part IX to the Constitution of India entitled as
Panchayats. The part consists of provisions from Article 243 to 243-0. A new schedule called
as Eleventh Schedule lists 29 functional items that panchayats are supposed to deal with under
Article 243-G.
3. By the 73rd amendment act, the state of Haryana enacted the Haryana Panchayati Raj Act,
1994 which was amended subsequently in the year 2015. Section 175 of the Haryana Panchayati
Raj Act, 1994 provides for disqualifications of the member's to the panchayat electoral process.
Section 175 of Haryana Panchayati Raj Act, 1994 was further amended in the year 2015 to
include the following disqualifications
I. Fails to pay any arrears of any kind due to him to any Primary Agriculture Co-operative
Society, District central cooperative bank and district primary cooperative agricultural,
rural development bank; or
II. Fails to pay arrears of electricity bills; or
III. Has not passed matriculation examination or its equivalent examination from any
recognized Institution/Board:
IV. Provided that in case of a woman candidate or a candidate belonging schedule caste
contesting election for the post of panch, the minimum qualification shall be 5th pass, or
V. Fails to submit self-declaration to the effect that he has a functional toilet at his place of
residence
4. The petitioner, a well learned literate person with many years of excellent service to the
people, is aggrieved of the said amendment because of the educational qualification restrictions,
which renders him unable to participate in the democratic process of the elections.
5. The petitioners contend that the Amendment bill serves no legitimate purpose and is in
contravention to the objectives of the 73rd amendment act, thereby affecting petitioner's right to
equality under Article 14 of the constitution.

HENCE, THE PRESENT MATTER IS BEFORE THIS HONOURABLE COURT

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E. ISSUES RAISED

I. DISQUALIFICATIONS GIVEN UNDER SECTION 175 OF THE HARYANA

PANCHAYATI RAJ (AMENDMENT) ACT, 2015 (ACT 8 OF 2015) VIOLATE
THE RIGHT TO EQUALITY OF THE PETITIONERS GRANTED UNDER
ARTICLE 14 OF THE INDIAN CONSTITUTION.
II. DISQUALIFICATIONS GIVEN UNDER SECTION 175 THE HARYANA
PANCHAYATI RAJ (AMENDMENT) ACT, 2015 (ACT 8 OF 2015)
VIOLATES THE RIGHT TO FREEDOM OF EXPRESSION OF THE
PETITIONERS GRANTED UNDER ARTICLE 19 OF THE INDIAN
CONSTITUTION

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F. SUMMARY OF PLEADINGS

DISQUALIFICATIONS GIVEN UNDER SECTION 175 OF THE HARYANA

PANCHAYATI RAJ (AMENDMENT) ACT, 2015 (ACT 8 OF 2015) VIOLATE THE
RIGHT TO EQUALITY OF THE PETITIONERS GRANTED UNDER ARTICLE 14 OF
THE INDIAN CONSTITUTION.

(i) There is no rational nexus between the object of the elections and classification based on
educational qualifications.
(ii) The object of the elections is not to select the most competent candidate but to select the
person based on the democratic will of the electorate.
(iii)The legislation is arbitrary as it treats equally the persons who are unequally
circumstanced.
(iv) The legislation is anomalous with regard to article 243

DISQUALIFICATIONS GIVEN UNDER SECTION 175 OF THE HARYANA

PANCHAYATI RAJ (AMENDMENT) ACT, 2015 (ACT 8 OF 2015) VIOLATES THE
RIGHT TO FREEDOM OF EXPRESSION OF THE PETITIONERS GRANTED UNDER
ARTICLE 19 OF THE INDIAN CONSTITUTION

(i) The legislation violates the freedom of speech guaranteed under article 19 as right to vote
is an exercise of freedom of speech and expression under article 19.

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PLEADINGS ADVANCED

I. DISQUALIFICATIONS GIVEN UNDER SECTION 175 OF THE HARYANA

PANCHAYATI RAJ (AMENDMENT) ACT, 2015 (ACT 8 OF 2015) VIOLATES THE
RIGHT TO EQUALITY OF THE PETITIONERS GRANTED UNDER ARTICLE 14 OF
THE INDIAN CONSTITUTION

1. Article 14 of the Indian constitution provides the state shall not deny to any person
equality before the law or the equal protection of laws within the territory of India.
Similarly, Equality before law implies the absence of any special privilege by reason of
birth, creed or the like, in favour of individual and the equal subjection of all classes to
the ordinary law,-Equal protection of laws implies the right to equality of treatment in
equal circumstances1.
2. The Haryana government amended Section 175 of the Haryana Panchayati raj act, 1994
in the year 2015 to include disqualifications for participation in panchayat elections on
the basis of educational status, defaulting on loans, and having functional toilet facilities
at home. Setting up these disqualifications, in grass root elections is arbitrary,
discriminatory, and unreasonable to the petitioners. Further, it fails various
constitutionality tests like object nexus, arbitrariness propounded by the court to verify
the validity of a legislation under article 14.
Object Nexus Test-Old Doctrine
3. In Budhan Choudhry v. the State of Bihar2 ,the Supreme Court laid down the meaning of
Article 14 in the following words: In order, to pass the test of permissible classification
two conditions must be fulfilled, namely,
a. the classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out of
the group; and

1
INTRODUCTION TO CONSTITUTION OF INDIA ,DD BASU PAGES 87-88
2
[1955] 1 S.C.R. 1045
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b. that differentia must have rational relation to the object sought to be achieved by
the statute in question."
4. Moreover, In Anwar Ali Sarkar vs The State of West Bengal3 the learned judge S.R. Das,
J. enunciated that The differentia which is the basis of the classification and the object
of the Act are distinct and what is necessary is that there must be nexus between them."
5. The Haryana Panchayati Raj (Amendment) Act, 2015 was formed by 73rd Amendment,
which states that one of the objects of constitutionalizing the Panchayati Raj institutions
is to remedy the insufficient representation of weaker sections like Scheduled Castes,
Scheduled Tribes and women.
6. Furthermore, The Haryana Panchayati Raj(Amendment) Act has following purposes
(i) One is to create a right of political participation and self-governance by opening
up positions to institutions with statutory power for those hitherto deprived of it;
(ii) The other is to encourage such constituted bodies to engage in certain activities
like Education, including primary and secondary schools, Poverty alleviation
programme, and promotion of certain other goals
7. Imposing a restriction on (i) to serve the object of (ii) ostensibly is dubious logic. A
statutory amendment, to survive the object-nexus test, ought to be consistent with the
corresponding object of the main Statute or the Constitutional Amendment authorizing
the statute.
8. The Supreme Court in Javed v. State of Haryana (2003)4, popularly known as the two-
child norm qualification case opined: There is nothing wrong in the same statute which
confers the right to contest an election also to provide for the necessary qualifications
without which a person cannot offer his candidature for an elective office and also to
provide for disqualifications which would disable a person from contesting for, or
holding, an elective statutory office. In this case, Supreme Court also argued that the
legislative wisdom of the two-child norm classification is linked with the object of
popularizing the family welfare/family planning programme and thus does not suffer
from any arbitrariness

3
AIR 1952 CAL 150
4
AIR 2003 SC 3057

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9. In the case of educational qualifications, the rational object of promoting literacy and
efficiency should not be achieved through disenfranchisement and undemocratic denial
of right to contest in elections and participate in the electoral process of the local
governance
Objective of elections in India
10. As per Alladi Krishnaswamy Ayyar5, one of the crowning achievements of the
Constitution was, More than any other provision in the Constitution. I should think the
boldest step taken by this Assembly is in the matter of universal adult suffrage with a
belief in the common man and in his power to shape the future of the country.
11. The vision of democracy as envisaged by our founding fathers is one based not on
ensuring the most competent candidate wins (by whatever a priori definition of
competence), but on giving effect to the peoples choice. Apparently, prior screening
out of candidates violates that principle.
12. If the purpose of the election is to select the most competent candidate, then conceivably,
the legislature may impose a priori disqualifications on the basis that these qualifications
create a preliminary threshold of competence, ensuring that people who fall below this
threshold arent even eligible to participate in the process (whether as electors, or as
candidates).
13. On the other hand, if the purpose of suffrage is to give effect to the choice of the people,
then there is no justification for limiting that choice on the assumption that by allowing
everyone to contest, there is a possibility of the wrong or less qualified candidates, being
chosen.
14. Thus, the restrictions provided in legislation do not confirm with objectives of main
legislation (i.e.73rd amendment of Indian constitution) and would fail the object-nexus
doctrine of Article 14, thereby affecting the equality of the petitioners.

Test of Arbitrariness-New Doctrine

15. In E.P. Royappa v. State of Tamil Nadu6. Bhagwati, J. stated In fact equality and
arbitrariness are sworn enemies. Where an act is arbitrary, it is implicit in it that it is

5
Constituent Assembly Debates, Vol. VIII, Pg. 122-4
6
1974 AIR 555

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unequal both according to political logic and constitutional law and is therefore violative
of Article 14"
16. Furthermore ,In TMA pai foundation vs state of karnataka7 the court said that article 14
proceeds on the premise that equality of treatment is required to be given to persons who
are equally circumstanced .Implicit in the concept of equality is the concept that the
persons who are in fact unequally circumstanced ,cannot be treated on par
17. Pervasive illiteracy is the result of policy failure of the government. It was only after
2002 that education was treated as a fundamental right and thus the Right to Education
Act came in 2009. However, given the poor educational facilities, poor infrastructure,
poverty, absence of schools in India, a law depriving the people from the right to contest
elections on educational ground is not justified and arbitrary.
18. Article 16 of the Right to Education Act prescribes that no children cannot be detained
till class 8. Prescribing class 5 pass; middle pass is wholly arbitrary and goes against the
principles of article 14 and 21.
19. Article 171 provides for the composition of Legislative Councils in a State. It makes
separate constituencies of graduates to elect members to the Legislative Council. It is
obligatory to be a graduate to elect a certain proportion of members of the Legislative
Council, but it is immaterial if the person elected is a graduate.
20. The Supreme Court further elaborated this in the ruling of G.Narayanaswami v. G.
Panneerselvam8 as: The concept of such representation does not carry with it, as a
necessary consequence, the further notion that the representative must also possess the
very qualifications of those he represents.it would be for the members of such a
constituency themselves to decide whether a person who stands for election from their
constituency possesses the right type of knowledge, experience, and wisdom which satisfy
certain standards. It may well be that the Constitution makers, acting upon such a
presumption, had intentionally left the educational qualifications of a candidate for
election from the graduate's constituency unspecified

7
AIR 2003 SC 2902
8
AIR 1972 SC 2284

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21. In Union of India v. Association for Democratic Reforms9, the Supreme Court held that
no law could restrict a voters right to decide for himself whether educational
qualification or property of a person is relevant for the latter to be elected or re-elected as
his representative.
22. In the People's Union of Civil Liberties vs Union of India & Anr 10, The court observed
that character, sense of devotion to duty and concern for the welfare of the people is not
the monopoly of well-educated persons.
23. The framers of the Constitution did not think it fit to include educational qualification as
necessary for the Members of Legislative Assemblies and Parliament. In constituent
assembly debate regarding disqualifications in elections, T. T. Krishnamachari said that
if politics is indeed the last refuge of a scoundrel or if basic education helps a
human being distinguish between good and bad, right and wrong, why does none of the
pertaining articles to elections of President (Article58), Vice President(Article 66(3)),
Member of Lok Sabha, Rajya Sabha or Member of Legislative Assembly(Articles 84, 102,
173 and 191), not have education as a qualification or disqualification?
24. Subsequently, during the final debates on 23rd November 1949, he further observed that,
"The introduction of any property or educational qualifications for the exercise of the
franchise would be a negation of the principles of democracy. This Assembly deserves to
be congratulated on adopting the principle of adult suffrage.11"
25. Literacy, as defined in Census operations, is the ability to read and write with
understanding in any language. A person who can merely read but cannot write is not
classified as literate. Any formal education or minimum educational standard is not
necessary to be considered literate. Thus it is clear that determining literacy by education
is itself a flawed approach.
26. A functional toilet requires it is understood as, a simple flush system and lots of water.
There is no data produced by the State of Haryana that a pipeline is available to all the
people in their State.

9
AIR 2002 SC 2112
10
AIR 2005 SC 2419
11
CONSTITUIONAL ASSEMBLY DEBATES Vol. VIII, Pg. 182-4

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27. A Person may not be able to pay his bill on time due to poverty, or for the mere reason
that the bill was not delivered by the electricity authorities on time; or the meter is faulty,
or the possibility of wrong calculation of arrears or the person is bonafide unaware of his
dues.
28. The provision concerned in the 2015 Act only uses the phrase any arrears of any kind.
It is not an amount adjudicated by any quasi-judicial or court of law. In contrast, the
Constitution provides that a person cannot contest as MP or MLA only if he is an
undischarged insolvent that is he should be declared insolvent by a court of law. Is
this not discriminatory?
29. Article 243-F (1) (a) mandate that the disqualifications for an MLA and a panchayat
member should be the same under the Constitution and the Representation of the People
Act, 1951. The Haryana Panchayati Raj (Amendment) Act, 2015 violates this principle
by creating an anomalous situation; through allowing a person facing disqualification in
panchayat elections to contest the elections for MP and MLA.
30. India is a signatory to the United Nations International Covenant on Civil and Political
Rights. The Haryana law is contrary to Article 25 of the Covenant that persons otherwise
eligible to stand for election should not be excluded by discriminatory requirements such
as education, residence, descent or political affiliation

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II. DISQUALIFICATIONS GIVEN UNDER SECTION 175 OF HARYANA

PANCHAYATI RAJ (AMENDMENT) ACT, 2015 (ACT 8 OF 2015)VIOLATES
THE RIGHT TO FREEDOM OF EXPRESSION OF THE PETITIONERS
GRANTED UNDER ARTICLE 19 OF THE INDIAN CONSTITUTION
31. In Union of India vs Association for Democratic Reforms12, the Court held that the right
to vote, while not a fundamental right, was nonetheless a constitutional right, and
13
through PUCL vs the Union of India, 2003 to PUCL vs the Union of India, 201414 ,
where the Court held that the act of voting is an exercise of Article 19(1)(a) freedoms.
The logic of voting applies equally to the logic of running for office.
32. The right / freedom to vote, and the right/freedom to stand for office are conceptually
inseparable, as they form equally integral parts of the democratic process.
33. Justice Chelameshwars in his Dissenting Opinion in the Supreme Court Advocates-on-
15
Record-Association and Ors vs. Union of India(NJAC case) (observes in paragraph 85
that, Undoubtedly, the right created favour of citizens of India to participate in the
election process of the Lok Sabha, and the Legislative Assemblies is an integral part of
the basic feature i.e. democracy.
34. The Haryana Panchayati Raj(Amendment) Act, 2015 is also violative of the Supreme
Courts own judgment by Justice Krishna Iyer in Mohinder Singh Gill v. Chief Election
Commissioner 16that the little mans right to rise to Prime Minister ship or President ship
cannot be wished away.
35. In 1919, Ambedkar was called upon to give evidence to the Southborough Committee on
Franchise, which was set up to look into designing a system of representation for the
Indian dominion. According to him The right of representation and the right to hold
office under the State are the two most important rights that make up citizenship.17
36. Thus the impugned legislation violates art 19(1) of the Constitution by restricting the
number of choices for the electorate and also barring vulnerable candidates from taking
part in the democratic process.
12
AIR 2002 SC 2112
13
AIR 2003 SC 2363
14
AIR 2014 CHH133
15
2015(5) GLT (SC)12
16
(1977) ILR 2DELHI265
17
CONSTITUIONAL ASSSEMBLY DEBATES Vol. VIII, Pg. 722-9

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H. PRAYER FOR RELIEF

For the foregoing reasons, the petitioners respectfully request this Honourable Court to adjudge
and declare that:

The Haryana Panchayati Raj (Amendment) Act, 2015 (Act 8 of 2015) is violative of
Article 14, 19 of the Constitution of India, 1950.
Set aside the legislation and allow the petitioners to contest the elections.

And pass any other order that it deems fit in the interest of justice, equity and good
conscience. All of which is respectfully submitted.

Date: Blessan M

Place: New Delhi Counsel ID: 16IP63016

(Counsel for the PETITIONER)