BEFORE THE HONOURABLE SUPREME COURT OF INDIA

NEW DELHI, INDIA

WRIT PETITION NO. _____/2018

UNDER ARTICLE 32 OF THECONSTITUTION OF INDIA

RAJU

(PETITIONER)

v.

STATE

(RESPONDENTS)
_________________________________________________________

MEMORIAL ON BEHALF OF PETITIONERS

SUBMITTED BY:-

DHARMVEER LALI
ROLL NO.15/15
LLB 6th Semester.
 TABLE OF CONTENTS

A LIST OF ABBREVIATIONS 1
B INDEX OF AUTHORITIES 2-3
B-1 LIST OF STATUTES/RULES 2
B-2 LIST OF CASES REFERRED 2-3
B-3 LIST OF BOOKS REFERRED 3
C STATEMENT OF JURISDICTION 4
D STATEMENT OF FACTS 5
E ISSUE RAISED 6
F SUMMARY OF PLEADINGS 7-8
G PLEADINGS ADVANCED 9-24
H PRAYER FOR RELIEF 25
 --MEMORIAL FOR PETITIONERS--

A. LIST OF ABBREVIATIONS

Sr. ABBREVIATION EXPANSION

No.
1 ¶ Paragraph
2 AIR All India Report
3 Anr. Another
4 Ors. Others
5 SC Supreme Court
6 SCC Supreme Court Cases
7 v. Versus
8 Vol. Volume
9 SCR Supreme Court Reporter
10 CAL Calcutta
11 GLT Gauhati Law Times
13 PUCL People’s Union Of Civil Liberties
 B. INDEX OF AUTHORITIES

B1. LIST OF STATUTES/RULES

1. Constitution of India, 1950

2. 73rd Constitutional Amendment Act, April 1993 (Annexure-A)
3. Representation of People Act, 1951 (Annexure-B)
4. International Covenant on Civil and Political Rights

B2. LIST OF CASES REFERRED

Sr. Case Title Citation ¶

No.
1 Indira Nehru Gandhi v. Raj AIR 1975 SC 3
Narain 2299
2 Budhan Chaudhary v. State 1955 1 SCR 5
of Bihar 1045
3 Anwar Ali Sarkar v. State of AIR 1952 Cal 6
West Bengal 150
4 Bachan Singh v. State of AIR 1980 SC 14
Punjab 898
5 E P Royappa v. State of AIR 1974 SSS 14
Tamil Nadu
6 TMA Pai Foundation v. State AIR 2003 SC 15
of Karnataka 2902
7 G. Narayanswami v. G. AIR 1972 SC 31
Paneerselvam 2284
8 Union of India v. Association AIR 2002 SC 32,35
for Democratic Reforms 2112
9 PUCL v. Union of India AIR 2003 SC 33
2363 31
10 Re Special Courts Bill 1978 AIR 1979 16
SC 478
11 PUCL v. Union of India AIR 2014 SC 36
133 31
12 NOTA Case/ PUCL v. Union [2013] 12 36
 of India S.C.R. 308
13 PUCL v. Union of India [2013] 12 38
S.C.R 304
14 NOTA Case/ PUCL v. Union [2013] 12 38,39
of India S.C.R. 318
15 Jyoti Basu v. Debi Ghosal AIR 1982 SC 41
983
16 Advocates on Record 2015(S) GLT 42
Association and Ors. V. SC 12
Union of India
17 Bhanumati Etc. Etc v. State [2010] 7 S.C.R 52,53
Of U.P.Tr.Prinl.Sec.& Ors 601-602

B3. LIST OF BOOKS REFERRED

Sr. Name of the Book

No.
1 M.P. Jain, Indian Constitutional Law, (6th Ed., Lexis Nexis Butter
Worths Wadhwa 2011)
2 Introduction to Indian Constitution ,D D Basu
 C. STATEMENT OF JURISDICTION

The Petitioner humbly submits to the jurisdiction of this Hon’ble Supreme

Court of India under Article 32 of the Constitution. The Petitioner has
approached this Hon’ble Court as the Panchayati Raj (Amendment) Act,
2018 passed by the state Government has violated his fundamental rights
ensured by the Constitution of India. The Petitioner maintains that the
jurisdiction of Article 32 of the Constitution, which protects the citizens of
India from any violation of their fundamental rights, is applicable in the
present case.
Article 32 of the Constitution of India is reproduced as under:-
“Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by
clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution”
 D. STATEMENT OF FACTS

1. The Parliament of India 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. To implement the 73rd Amendment, the State Government enacted
the Panchayati Raj Act, 1994
4. The State Government has amended the Panchayati Raj Act, 1994
in 2018 by inserting Section 55-A which provides that anybody who
wants to contest election for Panchayat must have minimum
qualification of matriculation.
5. The petitioner, a well reputed person of his locality with many years
of excellent service to the people, is aggrieved of the said
amendment because the educational qualification restrictions have
rendered him unable to participate in the democratic process of the
elections.
6. The petitioners contend that the Amendment bill is in contravention
to the objectives of the 73rd amendment act, and it has affected
petitioner's right to equality under Article 14 & right to freedom of
speech and expression under Article 19 of the constitution of India

HENCE, THE PRESENT MATTER IS BEFORE THIS APEX COURT

 E. ISSUES RAISED

I. Whether disqualification made in Section 55-A of the Panchayati

Raj (Amendment Act), 2018 violates the Right to Equality of the
Petitioner guaranteed under Article 14 of the Constitution of India
or not.
II. Whether disqualification made in Section 55-A of the Panchayati
Raj (Amendment Act), 2018 violates the Right of Freedom of
Speech of the Petitioner guaranteed under Article 19 of the
Constitution of India or not.
III. Whether the Panchayati Raj (Amendment Act), 2018 is against
the objectives of the 73rd Constitutional Amendment Act made in
April 1993 and as such it is required to be set aside or not.
 F. SUMMARY OF PLEADINGS

A. Whether disqualification made in Section 55-A of the

Panchayati Raj (Amendment Act), 2018 violates the Right to
Equality of the Petitioner guaranteed under Article 14 of the
Constitution of India or not:-
i. The Amendment Act, 2018 violates Right to Equality of the
petitioner guaranteed under Article 14.
ii. There is no rational nexus between the object of the elections and
classification based on educational qualifications.
iii. 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.
iv. The Amendment Act, 2018 is arbitrary as it treats equally the
persons who are unequally circumstanced.

B. Whether disqualification made in Section 55-A of the

Panchayati Raj (Amendment Act), 2018 violates the Right of
Freedom of Speech of the Petitioner guaranteed under Article
19 of the Constitution of India or not-
i. The Amendment Act, 2018 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.
ii. Right to vote would be nullified without a full right to contest.
iii. The Right/ Freedom to vote and the Right/ Freedom to stand for
office are conceptually inseparable.
iv. Republican democracy is based upon the core idea that every
citizen has the freedom to participate in the workings of democracy
v. This Amendment is also against the Article 25 of the International
Covenant on Civil & Political Rights

C. Whether the Panchayati Raj (Amendment Act), 2018 is against

the very objectives of the 73rd Constitutional Amendment Act
 made in April 1993 and as such it is required to be set aside or
not–

i. The Amendment Act, 2018 is against the objectives of 73rd

Constitutional Amendment.
ii. The democratic system in a country can be ensured only if there
is mass participation in the governance.
iii. The direct and inevitable effect of this Amendment Act is
disfranchisement of a larger section of the State.
 PLEADINGS ADVANCED

A. Disqualification made in Section 55-A of the Panchayati Raj

(Amendment Act), 2018 violates the Right to Equality of the

Petitioner guaranteed under Article 14 of the Constitution of

India -

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”.

2. 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.

3. In Indira Nehru Gandhi v. Raj Narain it was held that the Rule of Law
embodied in Article 14 is the ‘basic feature’ of the Indian
Constitution and hence it cannot be destroyed even by an
amendment of the Constitution under Article 368 of the
Constitution2.

4. The State Government have inserted Section 55-A in the Panchayati

raj act, 1994 in view of the Amendment Act, 2018 to include
disqualification for participation in Panchayat elections o the basis of
educational status which 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.
___________________________________________________
1. INTRODUCTION TO CONSTITUTION OF INDIA, DD BASU PAGES 87-
88.
2. AIR 1975 SC 2299
Object Nexus Test

5. In Budhan Choudhry v. the State of Bihar3 ,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
b. That differentia must have rational relation to the object sought to be
achieved by the statute in question."
6. In Anwar Ali Sarkar v. The State of West Bengal4 the learned judge
S.R. Das, J. (as he then was) 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."

7. 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

8. 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.”

__________________________________________________
3. 1955 1 SCR 1045
4. AIR 1952 Cal 150
5. Constituent Assembly Debates, Vol. VIII, Pg. 122-4
9. In the words of freedom fighter Mahavir Tyagi6 “The majority in India
are illiterate persons. Why should they be denied their share in the
administration of the country? I wonder why literacy should be
considered as the supreme achievement of men. Why should it be
made as the sole criterion for entrusting the governance of a country
to a person, and why Art, Industry mechanics, Physique or Beauty
be not chosen as a better criterion, Ranjit Singh was not literate.
Shivaji was not literate. Akbar was not much of a literate. But all of
them were administering their states very well. I submit, Sir, that we
should not attach too much importance to literacy. I ask Dr.
Ambedkar, does he ever write? Probably he has got writers to write
for him and readers to read to him………….. I do not see why
Ministers need read and write. Whenever they want to write
anything, they can use typists. Neither reading nor writing is
necessary. What is necessary is initiative, honesty, personality,
integrity, intelligence and sincerity. These are the qualifications that
a man should have to become a Minister. It is not literacy which is
important.

10. The vision of democracy as envisaged by our founding fathers

is one based not on ensuring the most “competent” candidate wins
(though no priori definition of competence can be given), but on
giving effect to the people’ choice. Apparently, prior screening out of
candidates just on the basis of their educational qualification violates
that principle.

11. Moreover, if the purpose of Democracy 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.

6. CONSTITUENT ASSEMBLY OF INDIA - VOLUME VII Friday, the 31st

December 1948
 12. In view of aforesaid submission, the restrictions provided in
Amendment Act, 2018 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

13. In E.P. Royappa v. State of Tamil Nadu7. Bhagwati, J (as he

then was) stated “In fact equality and arbitrariness are sworn
enemies. Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and is
therefore voilative of Article 14"

14. In Bachan Singh V. State of Punjab8 it was observed that,

Rule of law which permeates the entire fabric of the Indian
Constitution excludes arbitrariness. “Whenever we find arbitrariness
or unreasonableness there is denial of rule of law”. Art. 14 enact
primarily a guarantee against arbitrariness and inhibit state action,
whether legislative or executive, which suffers from the vice of
arbitrariness. “Every state action must be non-arbitrary and
reasonable. Otherwise, the court would strike it down as invalid.”

15. Furthermore, In TMA PAI Foundation V. State of Karnataka9

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”

7. AIR 1974 SSS

8. AIR 1980 SC 898
9. AIR 2003 SC 2902
16. In Re Special Courts Bill10 Chandrachud, J. (as he then was),
observed: “The underlying principle of the guarantee of Art. 14 was
that all persons similarly circumstanced should be treated alike both
in privileges conferred and liabilities imposed.”

17. It is relevant to mention here that the literacy rate is nearly 67

% in the State and the Amendment Act, 2018 will disfranchise 68%
of the Scheduled Caste women, 41 % of the Scheduled Caste men
and over 50 % of all the women and 30% of all the men in from
contesting a Panchayat Election.

18. Article 41 of the Indian Constitution provides that “The State

shall, within the limits of its economic capacity and development,
make effective provision for securing the right to work, to education
and to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved want.”

19. Similarly Article 45 of the Indian Constitution provides that

“The State shall endeavor to provide, within a period of ten years
from the commencement of this Constitution, for free and
compulsory education for all children until they complete the age of
fourteen years.”

20. Furthermore, Article 46 of Indian Constitution provides that

“The State shall promote with special care the educational and
economic interests of the weaker sections of the people, and in
particular, of the Scheduled Castes and the Scheduled Tribes, and
shall protect them from social injustice and all forms of exploitation.”

_________________________________________________
10. 1978 AIR 1979 SC 478
21. 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, under 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.

22. It also lays bare the State’s own failure in displaying

allegiance to the Directive Principles of the State Policy as
enumerated supra. It is not that the people of State refused to be
educated. It is that the state failed to provide them the facilities to
study.

23. In view of the Amendment Act, 2018, the people who could not
get education just because the failure of State policy are being
punished for no fault of their own. By this Amendment Government
is thwarting people’s desire to serve their communities/ constituency
by banning them from even standing in elections to local bodies.

24. Even the framers of the Constitution of India did not think it fit
to include educational qualification as necessary for the Members of
Legislative Assemblies and Parliament.

25. In Constitutional Assembly debate regarding disqualifications

in elections, T. T. Krishnamachari11 said that “if basic education
helps a human being to distinguish between good and bad, right and
wrong, why does none of the pertaining articles to elections of
President (Article 58), 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?”
_____________________________________________________
11. CONSTITUIONAL ASSEMBLY DEBATES Vol. VIII, Pg. 182-4
26. Subsequently, during the final debate on 23rd November,
1949, T. T. Krishnamachari12 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.”
27. Qualifications & disqualification for contesting for Lok Sabha,
Vidhan Sabha, Rajya Sabha and Vidhan Parishad are given in
Articles 84, 102, 173 & 191 of the Constitution and Sections 3 to 10
A of the RP Act, 1951 (annexed as Annexure-A). The constitutional
provisions are reproduced as under:-
Article 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
authorized 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, not less than thirty years of
age and, 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 behalf by
or under any law made by Parliament.

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
(a) if he holds any office of profit under the Government of India or the
Government of any State, other than an office declared by Parliament by law
not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an un-discharged insolvent;

Article 173:- Qualification for membership of the State Legislature

A person shall not be qualified to be chosen to fill a seat in the Legislature of a
State unless he
(a) is a citizen of India, and makes and subscribes before some person
authorized in that behalf by the Election Commission an oath or affirmation
according to the form set out for the purpose in the Third Schedule;
12. CONSTITUIONAL ASSEMBLY DEBATES Vol. VIII, Pg. 182-4
 (b) is, in the case of a seat in the Legislative Assembly, not less than twenty five
years of age and in the case of a seat in the Legislative Council, not less than
thirty years of age; and
(c) Possesses such other qualifications as may be prescribed in that behalf by
or under any law made by Parliament
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a
foreign State, or is under any acknowledgement of allegiance or adherence to a
foreign State;
(e) if he is so disqualified by or under any law made by Parliament Explanation
For the purposes of this clause a person shall not be deemed to hold an office
of profit under the Government of India or the Government of any State by
reason only that he is a Minister either for the Union or for such State
(2) A person shall be disqualified for being a member of either House of
Parliament if he is so disqualified under the Tenth Schedule.

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
(a) if he holds any office of profit under the Government of India or the
Government of any State specified in the First Schedule, other than an office
declared by the Legislature of the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an un-discharged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a
foreign State, or is under any acknowledgement of allegiance or adherence to a
foreign State;
(e) if he is so disqualified by or under any law made by Parliament Explanation
For the purposes of this clause, a person shall not be deemed to hold an office
of profit under the Government of India or the Government of any State
specified in the First Schedule by reason only that he is a Minister either for the
Union or for such State
(2) A person shall be disqualified for being a member of the Legislative
Assembly or Legislative Council of a State if he is so disqualified under the
Tenth Schedule

28. Similarly the Constitution provides certain minimum

qualifications and disqualifications to contest election for the office of
the President and Vice President under Article 58 and 66,
respectively. These provisions are reproduced as under:-
Article 58:- Qualifications for election as President
(1) No person shall be eligible for election as President unless he
 (a) is a citizen of India,
(b) has completed the age of thirty five years, and
(c) is qualified for election as a member of the House of the People
(2) A person shall not be eligible for election as President if he holds any office
of profit under the or the Government of any State or under any local or other
authority subject to the control of any of the said Governments Explanation -
For the purposes of this article, a person shall not be deemed to hold any office
of profit by reason only that he is the President or Vice President of the Union or
the Governor of any State or is a Minister either for the Union or for any State

Article 66:- Election of Vice President

(1) The Vice President shall be elected by the members of an electoral college
consisting of the members of both Houses of Parliament in accordance with the
system of proportional representation by means of the single transferable vote
and the voting at such election shall be by secret ballot
(2) The Vice President shall not be a member of either House of Parliament or
of a House of the Legislature of any State, and if a member of either House of
Parliament or of a House of the Legislature of any State be elected Vice
President, he shall be deemed to have vacated his seat in that House on the
date on which he enters upon his office as Vice President
(3) No person shall be eligible for election as Vice President unless he
(a) is a citizen of India;
(b) has completed the age of thirty five years;
(c) is qualified for election as a member of the Council of States
(4) A person shall not be eligible for election as Vice President if he holds any
office of profit under the Government of India or the Government of any State or
under any local or other authority subject to the control of any of the said
Governments Explanation For the purposes of this article, a person shall not be
deemed to hold any office of profit by reason only that he is the President or
Vice President of the Union or the Governor of any State or is a Minister either
for the Union or for any State

29. However, a plain reading of all the foregoing Articles/ Sections,

it is clear that there is no mention of any educational barrier. It
means that a person who is not Matric pass cannot contest the
elections of Panchayat in the state but he/she can contest the
elections of Parliament of India. This is very much arbitrary and
unreasonable.
30. Article 171 of the Indian Constitution 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.

31. The SC further elaborated this in the ruling of

G.Narayanaswami v. G. Paneerselvam 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.”13

32. In Union of India v. Association for Democratic Reforms14, the

apex Court held that “no law could restrict a voter’s 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.”

33. In the case of PUCL V. Union of India & Anr 15, the apex 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.”

__________________________________________________
13. AIR 1972 SC 2284
14. AIR 2002 SC 2112
15. AIR 2003 SC 2363 31
34. Taking into consideration the aforesaid submission, it is clear
that the Amendment Act, 2018 is arbitrary, unreasonable and
biased.

B. DISQUALIFICATIONS GIVEN UNDER SECTION 55-A OF

PANCHAYATI RAJ (AMENDMENT) ACT, 2018 (ACT 8 OF
2018)VIOLATES THE RIGHT TO FREEDOM OF SPEECH &
EXPRESSION OF THE PETITIONER GRANTED UNDER ARTICLE
19 OF THE INDIAN CONSTITUTION

35. In Union of India v. Association for Democratic Reforms16, the

apex Court held that “the right to vote, while not a fundamental right,
was nonetheless a “constitutional right.” It was further observed that
“Under our Constitution, Article 19(1) (a) provides for freedom of
speech and expression. Voters’ speech or expression in case of
election would include casting of votes, that is to say, voter speaks
out or expresses by casting vote.”

36. Similarly, in Nota Case17 and PUCL v. Union of India, 201318

the Supreme 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. It was further observed “freedom of voting
as distinct from right to vote is a facet of the fundamental right
enshrined in Article 19(1)(a). The casting of vote in favour of one or
the other candidate marks the accomplishment of freedom of
expression of the voter.”

_______________________________________________
16. AIR 2002 SC 2112
17. [2013] 12 S.C.R. 308
18. AIR 2014 SC 133 31
37. 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 and any restriction upon these rights
must be reasonable and justified and seek to fulfill a legitimate
purpose. But, the Amendment Act, 2018 does not reflect well on the
larger issue of democracy and republican character of the society
38. In PUCL v. Union of India19, and NOTA case20, Apex Court
has held that free and fair elections, being an intrinsic part of
democracy, is a part of the basic structure of the Constitution.

39. Further, in NOTA case21 the Supreme Court held that the right
to vote is a statutory right whereas the choice expressed by a voter
in the polling booth is a fundamental right.

40. The same would apply for the right to contest. Right to vote
would be effectively nullified without a full right to contest. Electoral
democracy cannot run without contestants.
41. In the case of Jyoti Basu v. Debi Ghosal22 the Supreme Court
has placed the right to contest on the same pedestal as the right to
vote. Therefore, by interpretation, even the right to contest is a
fundamental right.

42. Justice Chelameshwar, (as he then was) in the Supreme Court

Advocates-on-Record-Association and Ors v. Union of India (NJAC
case)23 observed in paragraph 85, in his dissenting opinion, 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.”
____________________________________________
19. [2013] 12 S.C.R 304
20. [2013] 12 S.C.R. 318
21. [2013] 12 S.C.R. 318
22. AIR 1982 SC 983
23. 2015(S) GLT SC 12
43. Republican democracy is based upon the core idea that every
citizen has the freedom to participate in the workings of democracy,
whether by voting or by standing for elected office. Every limitation
upon this freedom is problematic. However, by implementing the
Amendment Act, 2018, the State Government is trying to violate the
Right of Freedom of Speech & Expression as given under Article 19
of the Indian Constitution by barring the candidature only on the
ground of minimum matriculation qualification and consequently,
limiting the choice of the people in deciding the right candidate to
represent them and also barring vulnerable candidates from taking
part in the democratic process.

44. Amendment of this type that seeks to impose additional

qualifications on the people with no connection at all with the
objective of the original legislation is highly unreasonable and unjust.

45. The very essence of direct democracy in the context of a

parliamentary system such as ours is that every citizen, regardless
of his or her educational qualifications has an inalienable right to
vote and an equally inalienable right to stand for political office (in
the latter case, assuming that entirely reasonable requirements such
as nationality, residency in a constituency or assembly district, and
so forth are met). These fundamental rights are simply not open to
legislative tampering, or they ought not to be.

46. This Amendment is also against the Article 25 of the

International Covenant on Civil & Political Rights (in which India was
a signatory). Article 25 of the International Covenant on Civil &
Political Rights, 1966 is reproduced as under :-
Every citizen shall have the right and the opportunity, without any of
the distinctions without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social
origin, property, birth or other status and without unreasonable
restrictions:
(a) To take part in the conduct of public affairs, directly or through
freely chosen representatives;
 (b) To vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by secret
ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in
his country.

C. The Panchayati Raj (Amendment Act), 2018 is against the

objectives of the 73rd Constitutional Amendment Act made in
April 1993:-
47. Before the 73rd Amendment was made effective, Article 40 of
the original Constitution provided for a Directive to the government
to take steps to organize village Panchayats and endow them with
the powers and authority as may be necessary to enable them to
function as the units of self-government. But, by mid-eighties it was
realized that the said Directive was not sufficient to institutionalize
Panchayati Raj in India.

48. The 73rd Amendment was passed with a view to achieve

democratic decentralization and social justice by enabling the
weaker section to participate in grass root democracy.

49. The word Panchayat literally means assembly (ayat) of five

(panch) wise and respected elders chosen and accepted by the local
community who settle the disputes between individuals according to
the customs and traditions of the community.

50. The democratic system in a country can be ensured only if

there is mass participation in the governance.

51. Even Mahatma Gandhi advocated that India lives in her

villages. Indian independence must begin at the bottom, thus making
every village a republic or Panchayat, enjoying full powers. He
remarked that true democracy cannot be worked by twenty men
sitting at the centre. It has to be worked from below by the people of
every village24.
_____________________________________________________
24. Harijan, 18-1-’48
52. In the case of Bhanumati Etc. Etc v. State Of
U.P.Tr.Prinl.Sec.& Ors25 the Supreme Court called the 73rd
Constitutional Amendment as “a turning point in the history of local
self-governance with sweeping consequences in view of
decentralization, grass root democracy, people's participation,
gender equality and social justice…………………………This 73rd
Amendment is a very powerful tool of social engineering' and has
unleashed tremendous potential of social transformation to bring
about a sea-change in the age-old, oppressive, anti human and
status quoist traditions of Indian society”

53. It was also observed that “this 73rd Amendment of the

Constitution was introduced for strengthening the perambular vision
of democratic republicanism which is inherent in the constitutional
framework”

54. Constitution makes it clear that additional qualification to

contest for membership of parliament or the legislative assembly can
only be prescribed by the parliament. The state legislature does not
have the power to prescribe any qualification, nor is there any power
to prescribe a qualification in Article 243F

55. Article 243-F (1) (a) mandate that the disqualifications for an
MLA and a Panchayat member should be the same under the
Constitution or under any law for the time being in force for the
purposes of elections to the Legislature of the State concerned. The
Panchayati Raj (Amendment) Act, 2018 violates this principle by
creating an anomalous situation. Further, Article 243-F (1) (b)
provides that a person can also be disqualified by or
under any law made by the Legislature of the State. However, in the
Article 243-F the state Legislature does not have any power to
prescribe any qualification for the elections of Panchayat.

____________________________________________________
25. [2010] 7 S.C.R 601-602
56. Qualification must precede disqualification because it has the
effect of removing or disabling someone who has already been
qualified to exercise a particular right. But education cannot be a
qualification to contest the elections of Panchayat. Such criteria will
be against the spirit of Democracy.

57. There is no scientific theory that an educated person will

definitely do well in every domain of life than an uneducated person
but by imposing this condition, the government is denying voters a
choice. An uneducated person can also be honest and hard-working

58. Even, if, education is relevant, it should be left to people to

decide how much importance they give to educational qualifications.
Let the democracy find its own way!!

59. Being a minister is much more than having education

qualification. You have to take decisions under pressure, you have
to understand people their sentiments, how to get work out of people
under you.
60. The ‘direct and inevitable effect’ of the Amendment Act, 2018
is disfranchisement of a larger section of the State having no Matric
qualification from contesting Panchayat elections. In view of the 73rd
Constitutional Amendment reservation is to be given to the people
belonging to Scheduled Caste, Scheduled Tribes and women.
However, most of these are illiterate in the village areas. “What if
some villages do not have any candidate who meets the necessary
educational qualification? Will the Panchayat remain without an
elected body?”

61. As such it is a clear violation of the objective of the 73rd

Constitutional Amendment which was made to ensure the
participation of the weaker sections in the grass root level
democracy.
 H. PRAYER FOR RELIEF

For the foregoing reasons, the petitioner respectfully prays

with folded hands to this Hon’ble Court to adjudge and declare that the
Panchayati Raj (Amendment) Act, 2018 (Act 8 of 2018) is voilative of
Article 14, 19 of the Constitution of India, 1950 and to set aside the
legislation and allow the petitioners to contest the elections.
All of which is respectfully submitted.

Date: Dharmveer Lali

Place: New Delhi (Counsel for the PETITIONER)