Right To Contest Co-operative Society Elections Subject To Statutory Limitations : Supreme Court

The Supreme Court recently reiterated that neither the right to vote nor the right to contest an election is a fundamental right. The two rights are distinct from each other, and the right to contest is subject to stricter regulations, such as, in terms of qualifications, disqualifications, and institutional requirements.A bench of Justices BV Nagarathna and R Mahadevan made the observation while dealing with an election dispute related to District Milk Unions in Rajasthan.The judgment authored by Justice Mahadevan observed :"It is well settled that neither the right to vote nor the right to contest an election is a fundamental right. In Jyoti Basu and others v. Debi Ghosal and others AIR 1982 SC 983 and Javed and other v. State of Haryana and others (2003) 8 SCC 369, this Court authoritatively held that these rights are purely statutory in nature and exist only to the extent conferred by statute. While the right to vote enables a member to exercise franchise in accordance with the statutory scheme, the right to contest an election or to be elected is a distinct and additional right which may legitimately be made subject to qualifications, eligibility conditions, and disqualifications"Referring to judicial precedents on the subject, including Supreme Court Bar Association v. B.D Kaushik, it said,"a clear doctrinal distinction emerges: the right to vote is the right to participate in the electoral process by exercising franchise; and the right to contest is a distinct and additional right, enabling a person to seek election to an office. The latter is inherently subject to stricter regulation, including qualifications, disqualifications, and institutional requirements."In the 2023 Constitution Bench judgment in Anoop Baranwal, Justice Ajay Rastogi had opined that the right to vote is a fundamental right, whereas the majority held that it was only a Constitutional right.BackgroundThe dispute pertained to elections to the Management Committee (Boards of Directors) of various District Milk Unions in the State of Rajasthan. Particularly, the challenge was against Bye-law Nos. 20.1(2), 20.1(4), 20.2(7) and 20.2(9) framed by the District Milk Unions which prescribed qualifications for contesting the elections to the Board of Directors.Certain representatives of Primary Societies, which are members of District Milk Unions, challenged the Bye-Laws by way of writ proceedings before the High Court. A Single Judge held the Bye-Laws ultra vires. In intra-Court appeal, a Division Bench affirmed the Single Bench's judgment. Aggrieved, the appellants, who were not party in the writ proceedings, approached the Supreme Court.Court ObservationsThe Court held that by equating regulation of eligibility to contest elections with a restriction on the right to vote, the High Court conflated two distinct statutory rights. "The impugned bye-laws operate solely in the domain of candidature and holding of office, without impinging upon the right to exercise franchise. The very premise of the High Court's reasoning is therefore fundamentally flawed and unsustainable in law."It further observed that the Bye-Laws did not regulate the members' right to vote. "The bye-laws are directed at the eligibility of the President or representative of a primary co-operative society to contest elections to, or to continue as a member of, the Board of Directors of the District Milk Unions."The Court also distinguished "eligibility" from "disqualification" and held that the High Court's invalidation of the bye-laws on the ground that they imposed disqualifications was unsustainable."They (bye-laws) regulate who may enter the electoral fray or continue in office based on minimum functional and performance-related thresholds, and do not seek to add to or alter the statutory disqualifications enumerated under Section 28. By conflating these two distinct concepts, the High Court misdirected itself in law and applied an incorrect standard of scrutiny."The Court further rejected the High Court's view that bye-laws cannot regulate electoral participation. It said that though Section 128 of the Rajasthan Co-operative Societies Act, 2001 Act allows the State government to prescribe qualifications for membership/voting, the same does not exclude the power of co-operative societies to regulate member participation and representation through bye-laws."Section 32 of the Act, 2001 expressly incorporates bye-laws into the electoral framework, thereby recognising their role in structuring representation and governance within the co-operative."Further, it was observed that the High Court exceeded its writ jurisdiction, as the decision, which operated in rem, was passed without hearing all affected District Milk Unions. "A determination of such wide amplitude could not have been rendered in the absence of all affected parties. At the very least, the High Court ought to have ensured issuance of notice and an opportunity of hearing to those societies whose rights and...

Right To Contest Co-operative Society Elections Subject To Statutory Limitations : Supreme Court

Debby Jain

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