Calcutta High Court
Akshya Kumar Sarangi vs Union Of India & Ors on 10 February, 2017
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
PRESENT:
The Hon'ble Acting Chief Justice Nishita Mhatre
And
The Hon'ble Justice Tapabrata Chakraborty
W.P. NO. 160 of 2016
Akshya Kumar Sarangi
...Appellant
Vs.
Union of India & Ors.
...Respondents
For the Appellant : Mr. Srikanta Dutta, Advocate.
Mrs. Rituparna Sarkar Dutta, Advocate.
For Union of India : Mr. Kausik Chanda, Sr. Advocate ASG.
Mr. Apurba Ghosh, Advocate.
For State of West Bengal : Mr. L.K. Gupta, Sr. Advocate, Ld. Add.AG. Mr. Amitesh Banerjee, Sr. Advocate.
Heard on : 27.01.2017 Judgment on : 10.02.2017 Nishita Mhatre, A.C.J.:
1. This Public Interest Litigation has been filed by an advocate of this Court contending that a writ of mandamus should be issued directing the respondents i.e. the Union of India and the State of West Bengal to adopt necessary measures requiring a candidate contesting the elections to the Lok Sabha and the Vidhan Sabha, Corporation, municipalities and panchayats to have a minimum academic qualification. A prayer is also made for debarring under trials and convicts from contesting the elections.
2. The learned Advocate representing the petitioner urged that only a person with a minimum educational qualification should be eligible to contest an election. This is because once the candidate is elected as a representative of the people, one of the tasks he/she is required to discharge is the onerous responsibility of framing laws which govern the electorate and others in the society. He submitted that it is humiliating for a voter to find that persons who are elected to these bodies and are representing a large section of society are not even literate in some instances. Furthermore, according to the learned Advocate there is no restriction on persons facing a criminal trial from contesting elections nor is there any ban on those who have been convicted from standing for elections. He argued that such persons should not be permitted to muddy the purity of elections.
3. The right to vote is a constitutional right in a democracy, such as ours. Adult suffrage is a basic tenet of our constitution, embodied in Article
326. The right to vote is not recognized as a fundamental right but is a right recognized under the constitution and is governed by the provisions of the Representation of the People Act, 1951(hereafter referred to as the Act of 1951) which came on to the statute book on 17th July, 1951.
4. Part II of the Act of 1951 prescribes the qualifications and the disqualifications for membership of Parliament and State Legislatures. The qualifications stipulated do not mandate a minimum educational qualification.
5. The disqualifications from membership of parliament and State Legislatures are contained in Chapter III of the Act of 1951. Some of these disqualifications are for conviction for certain offences including heinous crimes, corrupt practices, dismissal of a government servant for corruption or disloyalty. A person who enters into contracts in the course of his trade or business with the appropriate government for supply of goods or for execution of any work undertaken by the government is also not qualified for being elected. Similarly, where a person has held office in a government company is not entitled to contest any election. Furthermore, a person who has not lodged the account of election expenses can also be disqualified by the Election Commission. However there is no bar for an undertrial from contesting elections.
6. A person who is nominated for contesting an election is required to submit various details which are enumerated in Sections 33A and 33B.
7. A cursory glance at all the above mentioned provisions of the Act of 1951 indicates that not one of them requires a minimum educational qualification for contesting an election to either the parliament or the assembly. The candidate is required to furnish details as to whether he is accused of any offence punishable with imprisonment for 2 years or more in a pending case in which a charge has been framed against him by a competent Court. Details of a conviction for any offence where the sentence is more than one year of imprisonment are also to be provided. Unfortunately, however, there is no indication that the candidate has to furnish his educational qualifications under the provisions of the Act of 1951.
8. In the year 2002 the Supreme Court considered whether the voters had a right to know the antecedents, including the criminal past, of a candidate who aspires to be a member of the Parliament or the Legislative Assembly. In the case of Union of India Vs. Association for Democratic Reforms and Anr. reported in (2002) 5 SCC 294 the Supreme Court held that it was a fundamental right of the voter to know the antecedents of his candidate. In order to maintain the purity of elections and in particular to bring transparency into the process of election, the Election Commission was directed by the Supreme Court to call for information on affidavit by exercising its powers under Article 324 of the Constitution of India from each person seeking election to the Parliament or State Legislature. The Supreme Court directed that as a necessary part of his nomination paper the candidate should disclose the following information:
"1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past - if any, whether he is punished with imprisonment or fine.
2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof.
3) The assets (immovable, movable, bank balance etc.) of a candidate and of his/her spouse and that of dependents.
4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues.
5) The educational qualifications of the candidate.
9. This judgment was delivered on 2nd May, 2002 due to which the Act of 1951 was amended and Sections 33A and 33B were introduced, the former with retrospective effect from 24th August, 2002 and the latter with retrospective effect from 22nd May, 2002. However, surprisingly, the legislature did not think it necessary to amend the aforesaid Act by requiring a person who contests elections to have a basic educational level and to disclose his/her educational background.
10. Although the judgment in the case of Union of India Vs. Association for Democratic Reforms and Anr. (supra) mandates a candidate to disclose the educational qualifications that he has attained, there is no requirement under the aforesaid Act for a candidate to have a minimum educational qualification.
11. The State of Haryana amended the Haryana Panchayati Raj Act, 1994 by prescribing a minimum educational qualification for contesting elections.
This was challenged in Rajbala and Ors. Vs. State of Haryana and Ors. reported in (2016) 2 SCC 445. The Supreme Court considered the question whether the provision which disqualifies a large number of persons and denies their rights to contest for various offices under the Haryana Panchayati Raj Act was constitutionally invalid and offending Article 14 of the constitution. The Court observed that the impugned provision created two classes of voters, those who were qualified by virtue of their educational qualifications to contest the elections to the Panchayats and those who were not. While dealing with this question, the Supreme Court answered it as follows:-
"80. The impugned provision creates two classes of voters - those who are qualified by virtue of their educational 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 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 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 administration of the panchayats. The classification in our view cannot be said to be either based on no intelligible differentia unreasonable or without a reasonable nexus with the object sought to be achieved.
81. 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. The 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.
82. If it is constitutionally 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 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 these various bodies becomes completely impossible. We, therefore, reject the challenge to Clause
(v) to Section 175(1)."
12. The Supreme Court has given its imprimatur for prescribing a minimum education accomplishment for a person contesting elections to the panchayat. This could well apply to contestants for the Parliamentary or Assembly constituencies. It is difficult to accept that a person without even the basic educational qualifications should represent the people of India. It is true that one cannot question the native wisdom of an individual who may not have an academic qualification, either because of family circumstances or because of the non-availability of access to education. However, it is impossible to accept that a person who does not possess even the functional skills of literacy should govern the polity. We have chosen to be ruled by a democratically elected government and the people of India zealously and jealously guard our democracy. In today's times it is difficult to accept that our legislators despite their native wisdom should be permitted to represent the people of India without having any basic academic qualification. What should be the basic qualification is something that the legislators would have to decide, keeping in mind that even for a peon's job a person is required to have a Secondary school certificate at the very least. In view of the various schemes of the Government including the Sarva Shiksha Abhiyan a programme for Universal Elementary Education which is both free and compulsory, the inescapable truth is that each individual in the country has a right to education. We are of the opinion that there cannot be any reason for the legislators not being obliged to have the minimum educational qualification. The importance of education cannot be understated or under estimated. It gives a person a vast outlook, incisiveness, forensic ability and an analytical approach which is necessary for governing a country as large and diverse as India. The legislators from the Ruling party are nominated as Ministers in the Council of Ministers. These persons have to often deal with Foreign Governments and their representatives. It is thus imperative in today's world to ensure that our representatives do not lag behind others in the world only because of the lack of education.
13. The learned Counsel for the petitioner urged that since there is a vacuum in the law regarding the educational qualifications required we should fill in the gap as the Supreme Court has done in the case of Vishaka Vs. State of Rajasthan reported in (1997) 6 SCC 241, Vineet Narain vs Union of India reported in (1998) 1 SCC 226, Union of India vs Association for Democratic Reforms and Anr. And Dayaram vs Sudhir Batham and ors. reported in (2012) 1 SCC 333. This submission of the learned Counsel cannot be accepted. The Supreme Court, had laid down guidelines in the aforesaid judgments while exercising its powers under Article 142 of the Constitution of India and as a stop-gap arrangement till the necessary legislation was enacted. Such a power cannot be exercised by this Court.
14. The members of Parliament or State Legislatures represent the people and are members of the highest law making bodies at the Centre and the State respectively. We are at a loss to understand why although educational qualifications are to be disclosed as stipulated in Union of India Vs. Association for Democratic Reforms, there is no minimum qualification prescribed. Voters not only have a right to know the antecedents of their candidates but also have a right to be governed by persons who are educated and consequently knowledgeable. In a democratic polity voters expect that their representatives in the Central and State Legislatures would take informed decisions and be able to participate in the debates and law making process. Voters do not want cheer brigades or persons who stall proceedings in Parliament or in the Assembly due to the lack of education and vision. It is difficult to fathom how a person who is barely able to sign his name would be able to understand the complexities of issues which crop up in Parliament. Education would enable legislators to widen their horizon, display their innate wisdom and maturity by rising above pettiness, parochialism and narrow mindedness.
15. As regards the contention that an undertrial should be prevented from contesting elections, it is ridden with a quagmire of possibilities and difficulties. It is possible that a person is implicated in a criminal case deliberately by his political opponents only in order to block his entry into electoral politics. One can envisage political opponents of a candidate filing a complaint and having an FIR registered for a trivial offence. After the hurly burly of the elections is over the case could be compromised if the offence is compoundable and the goal of keeping the person out of the fray during the elections would have been achieved. Of course where a candidate has been charged for a heinous offence, different standards would have to be applied. In view of the provisions of S.33A and S.33B the candidate has to disclose such information about his criminal antecedents and the voters would have to be discerning while choosing their representative.
16. However, no relief can be granted to the petitioner under our writ jurisdiction under Article 226 of the Constitution of India. It is our fervent hope that the Parliamentarians would consider amending the Representation of People Act to ensure that individuals contesting elections to the State Assemblies or Parliament have a minimum educational qualification. This is the prime need of the hour and the sooner Parliament recognizes this, the better. The petition is, therefore, dismissed.
17. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities. (Tapabrata Chakraborty, J.) (Nishita Mhatre, A.C.J.)