INTRODUCTION

The current and unprecedented migration of the labour force across the country due to the ongoing pandemic has brought to the fore the complete failure of the successive governments in curbing the ever-rising population of our nation. The National Population Policy, 2000 does not seem to be in progress due to its shoddy implementation. The population of the country has been on a rise despite formation and formulation of various committees and policies. On the contrary, India must try to emulate the stringent measures and decisive “One-Child Policy” which was implemented by China.

One of the major hindrances in the growth of India’s socio-economic progress is the torrential rise in its population. Population policy must be implemented at the grass root level and should gradually spiral up to the top. The Hon’ble Supreme Court of India has delivered a far-reaching and impactful judgment to implement population control policies at the grass root level in Javed vs. State of Haryana[1].

The issue before the Hon’ble Supreme Court was regarding vires of the provisions under the Haryana Panchayati Raj Act, 1994 hereinafter referred to as “the Act” that imposed disqualification for having more than two children to continue or contest for the elections to the office of Sarpanch, Up-Sarpanch or Panch. In essence, a person having more than two children up to expiry one year from the commencement. This shielded any pregnancy around the commencement of the Act or the otherwise gestation period of nine months.

Brief Facts

The Petitioners who have been have been disqualified from contesting elections and from continuing in the office of Panchayat have challenged the vires of the provisions of Sections 175(1)(q)[2] and 177(1)[3] of the Haryana Panchayati Raj Act, 1994.

Grounds of challenge

The constitutional validity of the above-mentioned sections which spelt out the disqualifications were challenged by the petitioners. The grounds for challenge were as follows:

1. The provisions are arbitrary in nature and hence violative of Article 14 of the Constitution. Therefore, the disqualification does not serve the purpose and object sought to be achieved by the legislation and hence discriminatory in nature;
2. Disqualification on the right to contest an election by having more than two living children affects Article 21 and 25 of the contesting candidates because the same interferes with one’s freedom of religion and violates the persona; liberty and freedom to have as many children as one chose

Issue I: Is the classification arbitrary? Does the legislation not serve its object?

Article 14 of the Indian Constitution forbids class legislation, but it permits reasonable classification for the purpose of legislation. 

Twin conditions[4] to satisfy the constitutional test of permissibility under Article 14 of the Constitution are:

1. The classification is founded on an intelligible differentia, which distinguishes a person, or things that are grouped together from others left out of the group.
2. That such differentia has a rational relation to the object sought to be achieved by the statute in question.

According to these conditions, it can be clearly stated that a person having more than two living children can be easily distinguished from persons having not more than two children. Therefore, this attracts the principle of intelligible differentia, which clearly distinguishes one from the other. Thus, the first condition is satisfied with respect to classification based on an intelligible differentia.

The object sought to be achieved by the legislatures is to promote family welfare and keep a check on the population of the state. This initiation by the state legislature was made with the purpose to serve the welfare of the families at large. Therefore, this classification doesn’t attract any arbitrariness. This classification has been made after much deliberations and the wisdom of the legislatures.

The petitioners argued that the number of children which one has, whether more than two or not would not affect the competence, meritocracy and quality of a person to serve on any office of a Panchayat. Therefore, the impugned disqualification has no nexus with the purpose sought to be achieved by the act. On the other hand, the State argued that the object behind the enactment is consistent with the National Population Policy.

The legislature has derived its power from Article 243-G of the Constitution where they have been vested with the authority to make law endowing to Panchayats with such powers and authority, which may be necessary to help the Panchayats to function as institutions of self-government.

Section 21 of the Haryana Panchayati Raj Act enumerates the functions and duties of the Gram Panchayat. Clause 19(1) of Section 21 states about implementation of family welfare programme

According to the state, family welfare would include family planning as well. Therefore, such a provision would serve the object and the purpose of the act as mandated by the constitution. 

The court held that the impugned disqualification has a nexus with the purpose sought to be achieved by the Act, family welfare and socio-economic development and hence it is said to be valid. 

Issue II:  Does the disqualification on the right to contest an election by having more than two living children affect Article 21 and 25? Does the disqualification impinge upon one’s freedom of religion and violates the personal liberty and freedom to have as many children as one may choose?

The contention of the petitioners was that the provisions of disqualification of a person in the Panchayat is not present in other institutions of local self-governance and also not in State Legislatures and parliament. They argued that since no other state other than Haryana has such kind of legislation, the people aspiring to hold the office of Panchayati Raj in Haryana have been singled out and discriminated.

Under the Part XI of the Constitution, parliament and every state legislature has power to make laws with respect to any of the matters which fall within its field of legislation under Article 246 read with Seventh Schedule. It was stated by the state that legislation by one of the states couldn’t be held discriminatory against its citizen just because it hasn’t been enacted in another state or the parliament.

It is not permissible to compare a legislation made by a state in exercise of its own legislative power with the provisions of another law. In the case of State of M.P Vs. G.C. Mandawar[5], it was held that the power of the Court to declare a law void under Article 13 has to be exercised with reference to the specific legislation which is impugned. Two laws enacted by two different Governments and by two different legislatures can be read neither in conjunction nor by comparison for the purpose of finding out if they are discriminatory. Article 14 doesn’t authorize a legislation to be struck down just because another state doesn’t have the same law. When the sources of authority for two statutes are different, article 14 can have no application[6].

There is no constitutional requirement that any policy formulated by the state legislature must be implemented at one go. Implementation of policy decision in a phased manner is neither arbitrary nor discriminatory. It helps in avoiding resistance from the people and helping them getting accustomed to the new policies. In L.N Mishra Institute of Economic Development and Social Change vs. State of Bihar[7], the policy of nationalizing educational institutes was sought to be implemented in a phased manner. Implementation of a policy in a phased manner doesn’t abrogate or violate any rights and cannot be held arbitrary and discriminatory.  Thus, the Hon’ble Court held that all the institutions cannot be taken over at a time and merely because the beginning was made with one institute, it could not complain that it was singled out and, therefore, Article 14 was violated. 

The court held that there is nothing wrong in the State of Haryana having chosen a policy to keep a check and control the population and welfare of the families of the state. It will help in improving the social and economic conditions of rural population, and thereby contribute to the development of the nation. Thus, the court was of the view that the impugned provisions are neither arbitrary nor discriminatory

Whether it is permissible to test the validity of a law, which enacts a disqualification operating in the field of elections on the touchstone of violation of fundamental rights?

Right to contest election is neither a fundamental right nor a common law right. It is a right that has been conferred by a statute. However, Part IX of the Constitution gives right to contest for an election for an office in Panchayat. This is a constitutional right given to the people to contest elections in Panchayats. This still cannot be equated with a fundamental right.  There is nothing wrong in the statute which confers the right to election also provides for qualification and disqualification criteria to serve or hold an office in the Panchayat.

The same principle was laid down in the case of N.P Ponnuswami vs. Returning officer, Namakkal Constituency[8]and Jagan Nath vs. Jaswant Singh[9], a right to elect is neither a fundamental nor a common law right. In another case of Sakhawat Ali Vs. The State of Orissa,[10]the appellant’s nomination paper for election in the Municipality was rejected on the ground that he was employed as a legal practitioner against the Municipality, which was a disqualification under the relevant Municipality Act. It was contended that the disqualification of such candidature violated the appellant’s fundamental rights guaranteed under Article 14 and 19(1)(g) of the Constitution. The Constitution Bench held that the impugned provision has a justified object behind it, i.e., the purity of public life, which would be thwarted where there was a conflict between interest and duty.

The Constitution Bench further held that the right of the appellant to practice the profession of law guaranteed under Article 19(1)(g) cannot be said to have been violated because in laying down the disqualification in the Municipal Act as it does not prevent him from practicing his profession of law; it only lays down that if he wants to stand as a candidate for election he shall not either be employed as a paid legal practitioner on behalf of the Municipality or act as a legal practitioner against the Municipality. 

The court held that the disqualification on the right to contest an election by having more than two living children does not affect the fundamental right as it has been conceptualized keeping in mind the national interest.

Whether the disqualification as stated under Haryana Panchayati Raj Act violates Article 21 of the Constitution?

The Petitioners forcefully stated that they are protected under Article 21 of the Constitution of India and such a disqualification is in contravention to the basic fundamental right. They relied on Maneka Gandhi vs. Union of India[11]and Kasturi Lal Lakshmi Reddy vs. State of J&K[12], where it was urged that the fundamental right to life and personal liberty emanating from Article 21 of the Constitution should be allowed to stretch its span to its optimum so as to include all types of rights which go to make up the personal liberty of a man including the right to procreate as many children as one wants.

It was held that the test of reasonableness is not a wholly subjective test and its contours are fairly indicated by the Constitution.[13] The legislative competence of the State of Haryana to enact the legislation is within the permitted field of State subjects. Article 243-C makes provision for the legislature of a State to enact laws with respect to the constitution of Panchayats. Article 243-G read with the Eleventh Schedule are schemes for economic development and social justice with respect to health, family welfare, women and child development and social welfare. Family planning is one of the essential elements, which falls under Section 21 of the Act. 

Fundamental rights have to be read along with the chapter on directive principles of State Policy and the fundamental duties enshrined in Article 51-A. Article 51-A also dictates the expansion of population being kept with reasonable bounds.  Air India vs. Nargesh Meerza[14]was relied on to harp on the issue of population explosion. There was a need to have policy-oriented legislations, wherever necessary to keep a check on the population.

Hence, it was held that it is futile to assume or contend that the impugned legislation violates the right to life and liberty as stated under Article 21 of the Constitution.

Whether the disqualification as stated under Haryana Panchayati Raj Act violates Article 25 of the Constitution? 

It was submitted by the petitioners that the personal law of Muslims permits performance of marriage with four women. Polygamy is permitted for the purpose of procreating children and any restrictions with respect to that would be violative of right to life and liberty as guaranteed under Article 25 of the Constitution. The enactment created serious problems in the rural population as couples that were willing to contest for an election were compelled to give away their children for adoption. The impugned disqualification would affect the person if in case triplets or twin were on the second pregnancy. Setting aside such hypothetical examples, the court held that the exceptions do not make the rule nor render the rule irrelevant. The freedom entrusted to the citizens is subject to public order, morality and health.

The article itself permits a legislation in the interest of social welfare and reform, which are part and parcel of public order, national morality and collective health of the nation’s people. The personal law of Muslims nowhere mandates or states that it is the obligation or a duty to get into four marriages.  It is also not mentioned in any religious scriptures and authorities guiding Muslim Laws that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be against the norms, ethics of the Muslim religion. 

The protection under Article 25 is with respect to religious practice, which forms an integral part of the religion. A practice may be a religious practice but it need to form an integral part of a particular religion to be protected under Article 25 of the Constitution.[15] In the case of Sarla Mudgal vs. Union of India[16], the court criticized the practice of polygamy as injurious to ‘public morals’, even though some religions may make it obligatory or desirable for its followers. It also held that the practice of polygamy can be superseded by the State.

When there is conflict between over a statutory law and personal law, the statutory law will prevail over the personal law of the parties.[17] The right of the State to legislate on questions relating to marriage cannot be disputed. Marriage is a religious sacrament in which the state is vitally interested.[18] In another case of Badruddin vs. Aisha Begum[19], the Allahabad High Court ruled that the personal law of Muslims made having as many as four wives valid. However, it is not safe to conclude that having more than one wife is a part of the religion.

Neither is it made obligatory by religion nor it a matter of freedom of conscience. Performing of second marriage has been severely criticized e.g. in the case of Ram Prasad Seth vs. State of U.P[20]whereit was ruled that second marriage during the lifetime of one’s wife cannot be regarded as an integral part of Hindu religion. The court held that the disqualification would kick in as soon as a third child is born and is living after two living children.

After considering all possible facts and circumstances, the court came to a conclusion that the right to contest an election in the Panchayat is neither a fundamental nor a common law right. It is subject to criteria of qualifications and disqualifications enacted by a legislation. Even though permissible in Muslim Law to get into marriage with four wives but however, In India, there is no mandatory compulsion or an obligation to enter into bigamy or polygamy or to have children more than one.

Conclusion

The challenge to the constitutional validity of sections 175(1)(q) and 177(1) fails on all counts. The state law in this case prevented people from holding various offices if they had more than two living children.  This would make it harder for Muslims, who are allowed up to four wives by their religion, to practice polygamy while still enjoying their right to serve in public office.  The Court ruled that only integral aspects of a religion are protected by Article 25.  It said that polygamy is not an integral part of Islam.  It ruled that religious freedom is subject to regulation on the basis of public order, morality, and health.  If the government wishes to regulate a religious practice, like polygamy, that is not integral to the religion, it may do so.

The author is of the opinion that this judgment is of immense significance especially in the current times owing to exponential increase in the population in India. This judgment is a reminder to the state governments as well as the central government to create such policies, rules and regulations which would curtail the population with the intent of welfare and well-being of the society. Contesting Elections is not a fundamental right but a statutory right. The contours of this judgment should be made widely applicable not only in relation to elections, but in other spheres as well. The Constitution empowers the government to take measures to keep a check on the population and to promote social welfare. Thus, the government should take every possible measure to ensure that the population in the country is within control and basic amenities such as healthcare, sanitation, shelter and food is accessible to one an all.

By Parv Gupta. The author is an Advocate at the Supreme Court of India.

The opinions/analysis expressed in this blog are those of the author. They do not purport to reflect the opinions or views of the SCLHR or its members.

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[1] (2003) 8 SCC 369.

[2] 175(1): No person shall be a Sarpanch, Up- Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who: (q) Has more than two living children:

Provided that a person having more than two children on or up to the expiry of one year of the commencement of this Act shall not be deemed to disqualify.

[3] 177(1): If any member of a Gram Panchayat, Panchayat Samiti or Zila Parishad-

• Who is elected, as such, was subject to any of the disqualifications mentioned in Section 175 at the time of his election;
• During the term for which he has been elected, incurs any of the disqualifications mentioned in Section 175, shall be disqualified from continuing to be a member, and his office shall become vacant.

(2) In every case, the question whether a vacancy has arisen shall be decided by the Director. The Director may give its decision either on an application made to it by any person, or on its own motion. Until the Director decides that the vacancy has arisen, the members shall not be disqualified under sub-section (1) from continuing to be a member. Any person aggrieved by the decision of the Director may, within a period of fifteen days from the date of such decision, appeal to the Government and the orders passed by Government in such appeal shall be final:

Provided that the Director against any member shall pass no order under this sub-section without giving him a reasonable opportunity of being heard.

[4] Budhan Choudhry and Ors. Vs. The State of Bihar, (1955) 1 SCR 1045.

[5] AIR 1954 SC 493: (1955) 1 SCR 599.

[6]The Bar Council of Uttar Pradesh Vs. The State of U.P. and Anr. (1973) 1 SCC 261.

[7] (1988) 2 SCC 433: 1988 SCC (L&S) 577.

[8] AIR 1952 SC 64: 1952 SCR 218

[9] AIR 1954 SC 210: 1954 SCR 892

[10] (1955) 1 SCR 1004

[11] (1978) 1 SCC 248.

[12] (1980) 4 SCC 1.  

[13] Maneka Gandhi vs. Union of India, (1978) 1 SCC 248.

[14] (1981) 4 SCC 335: 1981 SCC (L&S) 599

[15] (1994) 6 SCC 360.

[16] (1995) 3 SCC 635.

[17] Mohd. Ahmed Khan vs. Shah Bano Begum, (1985) 2 SCC 556: 1985 SCC (Cri) 245

[18] State of Bombay vs. NarasuAppa Mali, AIR 1952 Bom 84.

[19] 1957 AII LJ 300.

[20] AIR 1957 ALL 411.