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Monday, June 11, 2012

Panchayats and Zila Parishads: Haryana Panchayati Raj Act, 1994-Sections 175(1)(q) and 177(1)- Provisions disqualifying person having more than two children from contesting for, or holding elective office in Panchayats-Constitutional validity of-Held: Provisions intra vires the Constitution being salutary and in public interest-Constitution of India, 1950-Articles 14, 21 and 25. Constitution of India, 1950: Article 14-Haryana Panchayati Raj Act, 1994-Sections 175(1)(q) and 177(1)- Provisions disqualifying person having more than two children from contesting for, or holding elective office in Panchayats-Whether arbitrary, unreasonable and discriminatory-Held: Persons having more than two living children and persons having not more than two living children constitute two different classes distinguishing one from another based on intelligible differentia having rational relation to the object of implementation of family planning programme-Uniform policy of controlling population having far reaching implication are capable of being implemented in phased manner either at grass root level or at the top-Panchayats are grass root level of local self-governance having wider base-Hence, the provisions neither arbitrary nor unreasonable nor discriminatory-Constitution of India, 1950- Article 243G- Haryana Panchayati Raj Act, 1994-Section 21. Article 21-Haryana Panchayati Raj Act, 1994-Sections 175(1)(q) and 177(1)- Provisions disqualifying person having more than two children from contesting for, or holding elective office in Panchayats-Whether violative of Article 21-Held: No, it is a measure to keep population explosion within reasonable bounds-Also to be read along with directive principles and fundamental duties "which dictate check on population explosion-Hence, the provisions not violative of right to life and liberty guaranteed under Article 21-Constitution of India, 1950-Articles 243C, 243F, 243G, 38, 46, 47 and 51-A. Article 25-Haryana Panchayati Raj Act, 1994-Sections 175(1)(q) and 177(1)- Provisions disqualifying person having more than two children from contesting for, or holding elective office in Panchayats-Whether violative of Article 25-Held: No, the constitutional guarantee under Article 25 is subject to public order, morality and health-It, thus, permits legislation in the interest of social welfare and reform-The provisions being in that direction, not violative of Article 25. The provisions of Section 175(1)(q) and Section 177(1) of Haryana Panchayati Raj Act, 1994 disqualify from person having more than two children after one year on the date of commencement of Act from holding or contesting for specified offices of Panchayat. Writ petitioners and the appellants were disqualified from contesting for, or holding office of Panchas/Sarpanchas in view of their having incurred the disqualification as provided by Section 175(1)(q) and Section 177(1) of the Act. Writ petitioners and appellants have challenged the constitutional validity of Sections 175(1)(q) and 177(1) on the ground that it is arbitrary, hence violative of Article 14 of the Constitution; that the disqualification does not serve the purpose sought to be achieved by the legislation; that the provision is discriminatory; that the provision adversely affects the liberty of leading personal life in all its freedom and having as many children as one chooses to have, hence violative of Article 21 of the Constitution; and that the provision interferes with freedom of religion, hence violates Article 25 of the Constitution. Appellants and writ petitioners contended that the number of children which one has, whether two or three or more, does not affect the capacity, competence and quality of a person to serve on any office of a Panchayat and, therefore, the impugned disqualification has no nexus with the object sought to be achieved by the Act; that the provision of disqualification introduced by the State of Haryana is discriminatory since similar provision has not been enacted for disqualifying aspirants or holders of elective or public offices in other institutions of local self-governance, State Legislatures and Parliament and also in States other than Haryana; that the fundamental right to life and personal liberty under Article 21 of the Constitution should include all the varieties of rights which go to make up the personal liberty of man including the right to enjoy all the materialistic pleasures and to procreate as many children as one pleases; that the personal law of muslims permits performance of marriages with four women for the purpose of procreating children and any restriction thereon would be violative of right to freedom of religion under Article 25 of the Constitution; that in the rural population couples desirous of contesting an election but having more than two living children are compelled to give them in adoption; that the impugned disqualification would hit the women worst as they have no independence and they almost helplessly bear a third child if their husbands want them to do so; and that there may be cases where triplets or twins are born on the second pregnancy and consequently both the parents would incur disqualification for reasons beyond their control or just by freak of divinity. Dismissing the writ petitions and appeals, the Court HELD: 1. Sections 175(l)(q) and 177 (1) of the Haryana Panchayati Raj Act, 1994 casting disqualification on contesting for, or holding an elective office on having more than two children is intra vires the Constitution of India. The provisions seek to achieve a laudable purpose - socio-economic welfare and health care of the masses; are consistent with the National Population Policy; and are salutary and in public interest; hence, not violative of Articles 14, 21 and 25 of the Constitution. [963-B] 2. Persons having more than two living children are clearly distinguishable from persons having not more than two living children. The two constitute two different classes and the classification is founded on an intelligible differentia clearly distinguishing one from the other. It is well-defined and well perceptible. The object sought to be achieved by the legislation is popularizing the family welfare/family planning programme which the disqualification enacted by the provision seeks to achieve by creating a disincentive. Hence, the classification does not suffer from any arbitrariness. The number of children viz., two is based on legislative wisdom. It could have been more or less. The number is a matter of policy decision which is not open to judicial scrutiny. [959-B-C] Budhan Choudhry and Ors. v. The State of Bihar, [1955] 1 SCR 1045, referred to. 3. Section 21 of the 1994 Act enumerates the functions and duties of Cram Panchayat which include Public Health and Family Welfare-Implementation of Family Welfare programme. This is consistent with the National Population Policy, thus family welfare would include family planning as well. To carry out the purpose of the Act as well as the mandate of the Constitution the Legislature has made a provision for making a person ineligible to either contest for the post of Panch or Sarpanch having more than two living children. Such a provision would serve the purpose of the Act as mandated by the Constitution. Therefore, the impugned disqualification does have a nexus with the purpose sought to be achieved by the Act, hence valid. [960- A-D] 4.1. A legislation by one of the States cannot be held to be discriminatory or suffering from the vice of hostile discrimination as against its citizens simply because the Parliament or the Legislatures of other States have not chosen to enact similar laws. If it is held so it would be violative of the autonomy given to the Centre and the States within their respective fields under the constitutional scheme. Furthermore, it is not permissible to compare a piece of legislation enacted by a State in exercise of its own legislative power with the provisions of another law, though it may be part materia, but enacted by Parliament or by another State legislature within its own power to legislate. The sources of power are different and those who exercise the power also differ. Similarly, legislations referable to different organs of local self-government, that is, Panchayats, Municipalities and so on are different Many a time they are referable to different entries of Lists I, II and III of the Seventh Schedule. All such laws need not necessarily be identical. Same is the case with the laws governing legislators and parliamentarians. [960-G-H; 961-A] The State of Madhya Pradesh v. G.C. Mandawar, [1955] 2 SCR 225; The Bar Council of Uttar Pradesh v. The State of U.P. and Anr., [1973] 1 SCC 261; State of Tamil Nadu and Ors. v. Ananthi Ammal and Ors., [1995] 1 SCC 519 and Prabhakaran Nair and Ors. v. State of Tamil Nadu and Ors., [1987] 4 SCC 238, referred to. 4.2. A uniform policy may be devised by the Centre or by a State. However, there is no constitutional requirement that any such policy must be implemented in one-go. Policies are capable of being implemented in a phased manner. More so, when the policies have far-reaching implications and are dynamic in nature, their implementation in a phased manner is welcome for it receives gradual willing acceptance and invites lesser resistance. Further the implementation in a phased manner is suggestive neither of arbitrariness nor of discrimination. [961-F-H] Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna, etc. v. State of Bihar and Ors., [1988] 2 SCC 433 and Pannalal Bansilal Pitti and Ors. v. State of A.P. and Anr., [1996] 2 SCC 498, referred to. 4.3. To make a beginning, the reforms may be introduced at the grass-root level so as to spiral up or may be introduced at the top so as to percolate down. Panchayats are grass-root level institutions of local self- governance. They have a wider base. There is nothing wrong in the State of Haryana having chosen to subscribe to the national movement of population control by enacting a legislation which would go a long way in ameliorating health, social and economic conditions of rural population, and thereby contribute to the development of the nation which in its turn would benefit the entire citizenry. Thus, no fault can be found with the State of Haryana having enacted the legislation. It is for others to emulate. [962-D-E; 963-A] 5. Right to contest an election is neither a fundamental right nor a common law right. In view of Part IX of the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right - a right originating in Constitution and given shape by statute, thus, right conferred by a Statute. But even so it cannot be equated with a fundamental right. Further, 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. The disqualification on the right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross the limits of reasonability. It is a disqualification conceptually devised in national interest. [963-D-F; 964-H; 965-A] Jyoti Basu and Ors. v. Debt Ghosal and Ors., [1982] 1 SCC 691; Jamuna Prasad Mukhariva and Ors. v. Lachhi Ram and Ors., [1955] 1 SCR 608 and Sakhawat Ali v. The State of Orissa, [1955] 1 SCR 1004, referred to. 6.1. The test of reasonableness is not a wholly subjective test and its contours are fairly indicated by the Constitution. The requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights. The lofty ideals of social and economic justice, the advancement of the nation as a whole and the philosophy of distributive justice - economic, social and political - cannot be given a go-by in the name of undue stress on fundamental rights and individual liberty. Reasonableness and rationality, legally as well as philosophically, provide colour to the meaning of fundamental rights. [965-E-F] Mrs. Maneka Gandhi v. Union of India and Anr., [1978] 1 SCC 248 and M/s. Kasturu Lal Lakshmi Reddy and Ors. v. State of Jammu and Kashmir and Anr., [1980] 4 SCC 1, referred to. 6.2. Article 243C makes provision for the Legislature of State to enact laws with respect to constitution of Panchayats. The Haryana Panchayati Raj Act, 1994 enacted by the State of Haryana is within the permitted field of State subjects. Under Article 243F person shall be disqualified for being chosen as, and for being, a member of Panchayat if he is disqualified by or under any law made by the Legislature of State and Article 243G casts one of the responsibilities of Panchayats as preparation of plans and implementation of schemes for economic development and social justice in relation to health and sanitation, family welfare and women and child development and social welfare. Family planning is essentially a scheme referable to health, family welfare, women and child development and social welfare. Thus, the Constitution contemplates Panchayat as a potent instrument of family welfare and social welfare schemes coming true for the betterment of people's health especially women's health and family welfare coupled with social welfare. Under Section 21 of the Act, the functions and duties entrusted to Gram Panchayats include `Public Health and Family Welfare', `Women and Child Development' and `Social Welfare', Family planning falls therein. It is the leaders of Panchayat who can themselves better enable the discharge of functions and duties and such constitutional goals. [968-F-H; 969-A-B] 6.3. Fundamental rights have to be read along with the Chapter on Directive Principles of State Policy and the Fundamental Duties enshrined in Article 51A and not in isolation. Articles 38, 46, 47 and others deal with economic development and social welfare, public health as among its primary duties. These lofty ideals cannot be achieved without controlling the population inasmuch as our materialistic resources are limited and the claimants are many. The concept of sustainable development which emerges as a fundamental duty from the several clauses of Article 51A too dictates the expansion of population being kept within reasonable bounds. The problem of population explosion is a national and global issue and provide justification for priority in policy-oriented legislations wherever needed. Thus, the impugned legislation does not violate right to life and liberty guaranteed under Article 21 in any of the meanings howsoever expanded the meanings may be. [969-C E; 970-A] Air India v. Nergesh Meerza and Ors., [1981] 4 SCC 335, referred to. Census of India, 2001, Series I, India - Paper I of 2001, p.29; Paper on Population Stabilization by Usha Tandon, Reader, Faculty of Law, Delhi University - Delhi Law Review, VoLXXIII 2001, pp.125-131; Population Policy and the Law, Paper by B.K. Raina, 1992, edited by B.P. Singh Sehgal, p.52; Population Challenge, Article by Arcot Easwaran, The Hindu, dated 8.7.2003, referred to. 7.1. Under Article 25 of the Constitution the freedom of conscience and free profession, practice and propagation of religion is subject to public order, morality and health. Therefore, the Article itself permits a legislation in the interest of social welfare and reform which are obviously part and parcel of public order, national morality and the collective health of the nation's people. [970-B-C, G] 7.2. It may be permissible for Muslims to enter into four marriages with four women and for anyone whether a Muslim or belonging to any other community or religion to procreate as many children as he likes but no religion in India dictates or mandates as an obligation to enter into bigamy or polygamy or to have children more than one. What is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is permitted. Assuming the practice of having more wives than one or procreating more children than one is a practice followed by any community or group of people the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform. Thus, Sections 175(l)(q) and 177(1) casting disqualification on contesting for or holding an elective office on having more than two children is not violative of Article 25 of the Constitution. [975-B-C; 974-G] The State of Bombay v. Narasu Appa Mali, AIR [1952] Bombay 84; Badruddin v. Aisha Begam, [1957] ALJ 300; Smt. R.A. Pathan v. Director of Technical Education and Ors., [1981] 22 GLR 289 and Ram Prasad Seth v. State of Uttar Pradesh and Ors., AIR [1961] Allahabad 334, approved. Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors., [1994] 6 SCC 360; Sarla Mudgal (Smt.), President, Kalyani and Ors. v. Union of India and Ors., [1995] 3 SCC 635; Mohd. Ahmed Khan v. Shah Bano Begum and Ors., [1985] 2 SCC 556 and Mohd. Hanif Quareshi and Ors. v. The State of Bihar, [1959] SCR 629, referred to. 8. The disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification the evil sought to be cured and purpose sought to be achieved by the enactment must be kept in view. [975-F-G] 9. If the legislature chooses to carve out an exception in favour of females it is free to do so but merely because women are not excepted from the operation of the disqualification it does not render it unconstitutional. [976-B] 10. Hypothetical examples where triplets are born or twins are born on second pregnancy are not normal cases and the validity of the law cannot be tested by applying it to abnormal situations. Exceptions do not make the rule nor render the rule irrelevant. [976-C] CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 302 of 2001. (Under Article 32 of the Constitution of India.) WITH C.A. Nos. 5355-5372, 5380, 5381, 5382, 5385, 5386, 5397-5450/2003, W.P. (C) Nos. 269, 316, 315, 329, 362, 363, 258, 403, 395, 420, 438, 475, 507, 508, 495, 567, 560/2001, 559, 561, 538, 539, 579/2001, 19, 30, 32, 1, 49, 50, 79, 94, 130, 93, 127, 144, 169, 168, 128, 177, 112, 71, 91, 178, 184, 2003 AIR 3057, 2003(1 )Suppl.SCR947 , 2003(8 )SCC369 , 2003(5 )SCALE602 , 2003(6 )JT283


CASE NO.:
Writ Petition (civil)  302 of 2001

PETITIONER:
Javed & Ors.


RESPONDENT:
Vs.

State of Haryana & Ors.      


DATE OF JUDGMENT: 30/07/2003

BENCH:
R.C. LAHOTI, ASHOK BHAN & ARUN KUMAR.


JUDGMENT:




J U D G M E N T





(With C.A. Nos._5355-5372, 5380-5381, 5382, 5385, 5386, 5397-5450/2003

@ SLP(C) Nos. 7527-7528/2001, WP(C) No. 269/2001, SLP(C)

Nos. 10551/2001, 10583/2001, 10725/2001, 11002/2001,

10729/2001, 13046/2001, 12313-12314/2001, 10996/2001,

WP(C) Nos. 316/2001, 315/2001, SLP(C) Nos. 12259/2001,

13595/2001, 13398/2001,  13430/2001, WP(C) Nos. 329/2001,

362/2001, 363/2001, 258/2001, SLP(C) Nos. 14547/2001,

14686/2001, 10189/2001, WP(C) Nos. 403/2001, 395/2001,

SLP(C) Nos. 16477/2001, 16483/2001, 18020/2001, WP(C) No.

420/2001, SLP(C) Nos. 17247/2001, 17497/2001, 16892/2001,

18557/2001, 18554/2001, WP(C) Nos. 438/2001, 475/2001,

507/2001, 508/2001, SLP(C) Nos. 19211/2001, 19139/2001,

WP(C) No. 495/2001, SLP(C) No. 19244/2001, WP(C) Nos.

567/2001, 560/2001, 559/2001, 561/2001, 538/2001,

539/2001, 579/2001, SLP(C) Nos.  22309/2001, 22278/2001,

447/2002, 12779/2001, WP(C) No. 19/2002, SLP(C) Nos.

22574/2001, 22672/2001, WP(C) Nos. 30/2002, 32/2002,

SLP(C) Nos. 497/2002, 13185/2001, 2188/2002, 1020/2002,

17156/2001, WP(C) Nos. 1/2002, 49/2002, 50/2002, 79/2002,

SLP(C) Nos. 1768/2002, 856/2002, 1483/2002, 1820/2002,

3028/2002, 2022/2002, 2237/2002, 22524/2001, 18636/2001,

3214/2002, 4409-4411/2002, WP(C) Nos. 94/2002, 130/2002,

93/2002, 127/2002, 144/2002, SLP(C) Nos. 5374/2002,

5517/2002, 6186/2002, WP(C) Nos. 169/2002, 168/2002,

128/2002, 177/2002, 112/2002, 71/2002, 91/2002, 178/2002,

SLP(C) Nos. 6427/2002, 5207/2002, WP(C) Nos. 184/2002,

SLP(C) Nos. 6397/2002, 6466/2002, WP(C) Nos. 183/2002,

185/2002, SLP(C) Nos. 13156/2001, 18263/2001, 6537/2002,

WP(C) No. 68/2002, SLP(C) No. 6769/2002, WP(C) Nos.

430/2001, 213/2002, 214/2002, 162/2002, 230/2002,

225/2002, 228/2002, SLP(C) Nos. 7542/2002, 7392/2002,

7223/2002, WP(C) No. 254/2002, SLP(C) No. 8631/2002,

WP(C) Nos. 296/2002, 280/2002, 281/2002, 305/2002, SLP(C)

Nos. 8632/2002, 9113/2002, 8963/2002, 8547/2002,

9246/2002, WP(C) Nos. 317/2002, 309/2002, C.A. No.

3629/2002, SLP(C) Nos. 10294/2002, 11755/2002, WP(C) No.

306/2002, C.A. No. 4053/2002, WP(C) Nos. 341/2002,

342/2002, 395/2002, C.A. No. 4066/2002, WP(C) Nos.

396/2002, 406/2002, C.A. Nos. 4501/2002, 4487/2002, WP(C)

Nos. 402/2002, 336/2002, 424/2002, 355/2002, 381/2002,

380/2002, 430/2002, 431/2002, 421/2002, 404/2002, C.A.

Nos. 5080/2002, 5081/2002, WP(C) Nos. 443/2002, 457/2002,

451/2002, C.A. No. 5270/2002, SLP(C) No. 11810/2002, WP(C)

Nos. 462/2002, 491/2002, 495/2002, C.A. Nos. 5902/2002,

5903/2002, WP(C) No. 278/2002, C.A. No. 7034/2002, WP(C)

Nos. 612/2002, 574/2002, 607/2002, 240/2002, 655/2002,

676/2002, 677/2002, 547/2002, 645/2002, 620/2002,

682/2002, 8/2003, 669/2002, C.A. Nos. 1187-1188/2003,

WP(C) Nos. 18/2003, 28/2003, 40/2003, C.A. No. 2033/2003,

WP(C) No. 63/2003, SLP(C) No. 3140/2003, WP(C) No.

121/2003, 123/2003, C.A. No. 2395/2003, WP(C)

Nos.149/2003, 193/2003, 195/2003, 204/2003, 155/2003,

161/2003, 188/2003, 245/2003, 247/2003, 248/2003,

250/2003, 257/2003, 268/2003, 270/2003, 277/2003,

281/2003 & SLP(C) No.10673/2003)



R.C. LAHOTI, J.



Leave granted in all the Special Leave Petitions.



In this batch of writ petitions and appeals the core issue

is the vires of the provisions of Section 175(1)(q) and 177(1) of

the Haryana Panchayati Raj Act, 1994 (Act No.11 of 1994)

(hereinafter referred to as the Act, for short).  The relevant

provisions are extracted and reproduced hereunder:-

175. (1) No person shall be a Sarpanch or a

Panch of a Gram Panchayat or a member of a

Panchayat Samiti or Zila Parishad or continue as

such who -

xxx xxx xxx

xxx xxx xxx



(q) has more than two living children :



Provided that a person having more than two

children on or  upto the expiry of one year of the

commencement of this Act, shall not be deemed to

be disqualified;



"177(1) If any member of a Gram

Panchayat, Panchayat Samiti or Zila Parishad -



(a) who is elected, as such, was subject

to any of the disqualifications

mentioned in section 175 at time of

his election;



(b) 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 no order shall be passed under

this sub-section by the Director against any

member without giving him a reasonable

opportunity of being heard."





Act No.11 of 1994 was enacted with various objectives

based on past experience and in view of the shortcomings

noticed in the implementation of preceding laws and also to

bring the legislation in conformity with Part IX of the

Constitution of India relating to 'The Panchayats' added by the

Seventy-third Amendment.  One of the objectives set out in the

Statement of Objects and Reasons is to disqualify persons for

election of Panchayats at each level, having more than 2

children after one year of the date of commencement of this

Act, to popularize Family Welfare/Family Planning Programme

(Vide Clause (m) of  Para 4 of SOR).



Placed in plain words the provision disqualifies a person

having more than two living children from holding the specified

offices in Panchayats.  The enforcement of disqualification is

postponed for a period of one year from the date of the

commencement of the Act. A person having more than two

children upto the expiry of one year of the commencement of

the Act is not disqualified.  This postponement for one year

takes care of any conception on or around the commencement

of the Act, the normal period of gestation being nine months. If

a woman has conceived at the commencement of the Act then

any one of such couples would not be disqualified.  Though not

disqualified on the date of election if any person holding any of

the said offices incurs a disqualification by giving birth to a child

one year after the commencement of the Act he becomes

subject to disqualification and is disabled from continuing to

hold the office.  The disability is incurred by the birth of a child

which results in increasing the number of living children,

including the additional child born one year after the

commencement of the Act, to a figure more than two.  If the

factum is disputed the Director is entrusted with the duty of

holding an enquiry and declaring the office vacant.  The decision

of the Director is subject to appeal to the Government.  The

Director has to afford a reasonable opportunity of being heard to

the holder of office sought to be disqualified.  These safeguards

satisfy the requirements of natural justice.



Several persons (who are the writ petitioners or

appellants in this batch of matters) have been disqualified or

proceeded against for disqualifying either from contesting the

elections for, or from continuing in,  the office of

Panchas/Sarpanchas in view of their having incurred the

disqualification as provided by Section 175(1)(q) or Section

177(1) read with Section 175(1)(q) of the Act.  The grounds for

challenging the constitutional validity of the abovesaid provision

are very many, couched differently in different writ petitions.

We have heard all the learned counsel representing the different

petitioners/appellants.  As agreed to at the Bar, the grounds of

challenge can be categorized into five :- (i) that the provision is

arbitrary and hence violative of Article 14 of the Constitution;

(ii) that the disqualification does not serve the purpose sought

to be achieved by the legislation; (iii) that the provision is

discriminatory; (iv) that the provision adversely affects the

liberty of leading personal life in all its freedom and having as

many children as one chooses to have and hence is violative of

Article 21 of the Constitution; and (v) that the provision

interferes with freedom of religion and hence violates Article 25

of the Constitution.



The State of Haryana has defended its legislation on all

counts.  We have also heard the learned Standing Counsel for

the State.  On notice, Sh. Soli J. Sorabji, the learned Attorney

General for India, has appeared to assist the Court and he too

has addressed the Court.  We would deal with each of the

submissions made.



Submissions (i),(ii) & (iii)

The first three submissions are based on Article 14 of the

Constitution and, therefore, are taken up together for

consideration.



Is the classification arbitrary?

It is well-settled that Article 14 forbids class legislation; it

does not forbid reasonable classification for the purpose of

legislation. To satisfy the constitutional test of permissibility,

two conditions must be satisfied, namely (i) that the

classification is founded on an intelligible differentia which

distinguishes persons or things that are grouped together from

others left out of the group, and (ii) that such differentia has a

rational relation to the object sought to be achieved by the

Statute in question.  The basis for classification may rest on

conditions which may be geographical or according to objects or

occupation or the like.  [See : Constitution Bench decision in  

Budhan Choudhry and Ors. Vs. The State of Bihar, (1955) 1

SCR 1045].  The classification is well-defined and well-

perceptible.  Persons having more than two living children are

clearly distinguishable from persons having not more than two

living children.  The two constitute two different classes and the

classification is founded on an intelligible differentia clearly

distinguishing one from the other.  One of the objects sought to

be achieved by the legislation is popularizing the family

welfare/family planning programme.  The disqualification

enacted by the provision seeks to achieve the objective by

creating a disincentive.  The classification does not suffer from

any arbitrariness.  The number of children, viz., two is based on

legislative wisdom.  It could have been more or less.  The

number is a matter of policy decision which is not open to

judicial scrutiny.



The legislation does not serve its object?

It was submitted that the number of children which one

has, whether two or three or more, does not affect the capacity,

competence and quality of a person to serve on any office of a

Panchayat and, therefore, the impugned disqualification has no

nexus with the purpose sought to be achieved by the Act.  There

is no merit in the submission.  We have already stated that one

of the objects of the enactment is to popularize Family

Welfare/Family Planning Programme.  This is consistent with the

National Population Policy.



Under Article 243G of the Constitution the Legislature of a

State has been vested with the authority to make law endowing

the Panchayats with such powers and authority which may be

necessary to enable the Gram Panchayat to function as

institutions of self-Government and such law may contain

provisions for the devolution of powers and responsibilities upon

Panchayats, at the appropriate level, subject to such conditions

as may be specified therein.  Clause (b) of Article 243G provides

that Gram Panchayats may be entrusted the powers to

implement the schemes for economic development and social

justice including those in relation to matters listed in the

Eleventh Schedule.  Entries 24 and 25 of the Eleventh Schedule

read:

24. Family Welfare.

25. Women and child development.

In pursuance to the powers given to the State Legislature to

enact laws the Haryana Legislature enacted the Haryana

Panchayati Raj Act, 1994 (Haryana Act No.11 of 1994).  Section

21 enumerates the functions and duties of Gram Panchayat.

Clause XIX (1) of Section 21 reads:

"XIX. Public Health and Family Welfare -

(1)  Implementation of family welfare programme."



The family welfare would include family planning as well.  To

carry out the purpose of the Act as well as the mandate of the

Constitution the Legislature has made a provision for making a

person ineligible to either contest for the post of Panch or

Sarpanch having more than two living children.  Such a

provision wouldì¥Á 7

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  IN THE SUPREME COURT OF INDIA



CIVIL ORIGINAL JURISDICTION



WRIT PETITION NO. 302 OF 2001





Javed & Ors.       ... Petitioners



Versus



State of Haryana & Ors.            ....Respondents





(With C.A. Nos._____________________________________

________________________________________________

________________________________________________

________________________________________________

@ SLP(C) Nos. 7527-7528/2001, WP(C) No. 269/2001, SLP(C)

Nos. 10551/2001, 10583/2001, 10725/2001, 11002/2001,

10729/2001, 13046/2001, 12313-12314/2001, 10996/2001,

WP(C) Nos. 316/2001, 315/2001, SLP(C) Nos. 12259/2001,

13595/2001, 13398/2001,  13430/2001, WP(C) Nos. 329/2001,

362/2001, 363/2001, 258/2001, SLP(C) Nos. 14547/2001,

14686/2001, 10189/2001, WP(C) Nos. 403/2001, 395/2001,

SLP(C) Nos. 16477/2001, 16483/2001, 18020/2001, WP(C) No.

420/2001, SLP(C) Nos. 17247/2001, 17497/2001, 16892/2001,

18557/2001, 18554/2001, WP(C) Nos. 438/2001, 475/2001,

507/2001, 508/2001, SLP(C) Nos. 19211/2001, 19139/2001,

WP(C) No. cessarily be identical.  So is the case with the laws

governing legislators and parliamentarians.  



It is not permissible to compare a piece of legislation

enacted by a State in exercise of its own legislative power with

the provisions of another law, though pari materia it may be,

but enacted by Parliament or by another State legislature within

its own power to legislate.  The sources of power are different

and so do differ those who exercise the power.  The Constitution

Bench in The State of Madhya Pradesh  Vs. G.C. Mandawar,

(1955) 2 SCR 225, 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 does

not authorize the striking down of a law of one State on the

ground that in contrast with a law of another State on the same

subject, its provisions are discriminatory.   When the sources of

authority for the two statutes are different, Article 14 can have

no application.  So is the view taken in The Bar Council of

Uttar Pradesh  Vs.  The State of U.P. and Anr. (1973) 1 SCC

261, State of Tamil Nadu and Ors. Vs. Ananthi Ammal and

Ors. (1995) 1 SCC 519 and Prabhakaran Nair and Ors. Vs.

State of Tamil Nadu and Ors. (1987) 4 SCC 238.



Incidentally it may be noted that so far as the State of

Haryana is concerned, in the Haryana Municipal Act, 1973 (Act

No. 24 of 1973) Section 13A has been inserted to make a

provision for similar disqualification for a person from being

chosen or holding the office of a member of municipality.



A uniform policy may be devised by the Centre or by a

State.  However, there is no constitutional requirement that any

such policy must be implemented in one-go.   Policies are

capable of being implemented in a phased manner.  More so,

when the policies have far-reaching implications and are

dynamic in nature, their implementation in a phased manner is

welcome for it receives gradual willing acceptance and invites

lesser resistance.



The implementation of policy decision in a phased manner

is suggestive neither of arbitrariness nor of discrimination.  In

Lalit Narayan Mishra Institute of Economic Development

and Social Change, Patna etc., Vs. State of Bihar and Ors.,

(1988) 2 SCC 433, the policy of nationalizing educational

institutes was sought to be implemented in a phased manner.

This 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.   Observations of this Court in

Pannalal Bansilal Pitti and Ors. Vs. State of A.P. and Anr.

(1996) 2 SCC 498, are apposite.  In a pluralist society like India,

people having faiths in different religions, different beliefs and

tenets, have peculiar problems of their own.  "A uniform law,

though is highly desirable, enactment thereof in one go perhaps

may be counter-productive to unity and integrity of the nation.

In a democracy governed by rule of law, gradual progressive

change and order should be brought about.  Making law or

amendment to a law is a slow process and the legislature

attempts to remedy where the need is felt most acute.  It

would, therefore, be inexpedient and incorrect to think that all

laws have to be made uniformly applicable to all people in one

go.  The mischief or defect which is most acute can be remedied

by process of law at stages."



  To make a beginning, the reforms may be introduced at

the grass-root level so as to spiral up or may be introduced at

the top so as to percolate down.  Panchayats are grass-root

level institutions of local self-governance.  They have a wider

base.  There is nothing wrong in the State of Haryana having

chosen to subscribe to the national movement of population

control by enacting a legislation which would go a long way in

ameliorating health, social and economic conditions of rural

population, and thereby contribute to the development of the

nation which in its turn would benefit the entire citizenry.  We

may quote from the National Population Policy 2000

(Government of India Publication, page 35):-

"Demonstration of support by elected

leaders, opinion makers, and religious

leaders with close involvement in the

reproductive and child health programme

greatly influences the behaviour and

response patterns of individuals and

communities.  This serves to enthuse

communities to be attentive towards the

quality and coverage of maternal and child

health services, including referral

care.".........."The involvement and

enthusiastic participation of elected leaders

will ensure dedicated involvement of

administrators at district and sub-district

levels.  Demonstration of strong support to

the small family norm, as well as personal

example, by political, community, business,

professional, and religious leaders, media

and film stars, sports personalities and

opinion makers, will enhance its acceptance

throughout society."



No fault can be found with the State of Haryana having

enacted the legislation.  It is for others to emulate.



We are clearly of the opinion that the impugned provision

is neither arbitrary nor unreasonable nor discriminatory.  The

disqualification contained in Section 175(1)(q) of Haryana Act

No.11 of 1994 seeks to achieve a laudable purpose - socio-

economic welfare and health care of the masses and is

consistent with the national population policy.  It is not violative

of Article 14 of the Constitution.





Submission (iv) & (v) : the provision if it violates Article

21 or 25?



Before testing the validity of the impugned legislation

from the viewpoint of Articles 21 and 25, in the light of the

submissions made, we take up first the more basic issue -

Whether it is at all 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 an election is neither a fundamental right

nor a common law right.  It is a right conferred by a Statute.  At

the most, in view of Part IX having been added in the

Constitution, a right to contest election for an office in

Panchayat may be said to be a constitutional right __ a right

originating in Constitution and given shape by statute.  But even

so it cannot be equated with a fundamental right.  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.



Reiterating the law laid down in N.P. Ponnuswami Vs.

Returning Officer, Namakkal Constituency (1952) SCR 218,

and Jagan Nath Vs. Jaswant Singh and Ors., 1954 SCR 892,

this Court held in Jyoti Basu and Ors.  Vs. Debi Ghosal and

Ors., (1982) (1) SCC 691, -  "A right to elect, fundamental

though it is to democracy, is, anomalously enough, neither a

fundamental right nor a common law right.  It is pure and

simple, a statutory right.  So is the right to be elected.  So is the

right to dispute an election.  Outside of statute, there is no right

to elect, no right to be elected and no right to dispute an

election.  Statutory creations they are, and therefore, subject to

statutory limitation."



In Jumuna Prasad Mukhariya and Ors. Vs. Lachhi

Ram and Ors., (1955) 1 SCR 608, a candidate at the election

made a systematic appeal to voters of a particular caste to vote

for him on the basis of his caste through publishing and

circulating leaflets.  Sections 123(5) and 124(5) of the

Representation of the People Act, 1951, were challenged as

ultra vires of Article 19(1)(a) of the Constitution, submitting that

the provisions of Representation of the People Act interfered

with a citizen's fundamental right to freedom of speech.

Repelling the contention, the Constitution Bench held that these

laws do not stop a man from speaking.  They merely provide

conditions which must be observed if he wants to enter

Parliament.  The right to stand as a candidate and contest an

election is not a common law right; it is a special right created

by statute and can only be exercised on the conditions laid down

by the statute.  The Fundamental Rights Chapter has no bearing

on a right like this created by statute.  The appellants have no

fundamental right to be elected and if they want to be elected

they must observe the rules.  If they prefer to exercise their

right of free speech outside these rules, the impugned sections

do not stop them.  In Sakhawat Ali Vs. The State of Orissa,

(1955) 1 SCR 1004, the appellant's nomination paper for

election as a councillor of 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

prescribed 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

public purpose 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 practise the profession of law guaranteed by

Article 19(1)(g) cannot be said to have been violated because in

laying down the disqualification the Municipal Act does not

prevent him from practising 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.  There is no fundamental right in any person to

stand as a candidate for election to the Municipality.  The only

fundamental right which is guaranteed is that of practising any

profession or carrying on any occupation, trade or business.

The impugned disqualification does not violate the latter right.

Primarily no fundamental right is violated and even assuming

that it be taken as a restriction on his right to practise his

profession of law, such restriction would be liable to be upheld

being reasonable and imposed in the interests of general public

for the preservation of purity in public life.



In our view, disqualification on the right to contest an

election by having more than two living children does not

contravene any fundamental right nor does it cross the limits of

reasonability.  Rather it is a disqualification conceptually devised

in national interest.



With this general statement of law which has application

to Articles 21 and 25 both, we now proceed to test the

sustainability of attack on constitutional validity of impugned

legislation separately by reference to Articles 21 and 25.



The disqualification if violates Article 21 ?

Placing strong reliance on Mrs.Maneka Gandhi Vs.

Union of India & Anr. - (1978) 1 SCC 248, and M/s. Kasturu

Lal Lakshmi Reddy and Ors.  Vs. State of Jammu and

Kashmir and Anr. - (1980) 4 SCC 1, it was forcefully 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 in the compendious

term of the Article all the varieties of rights which go to make up

the personal liberty of man including the right to enjoy all the

materialistic pleasures and to procreate as many children as one

pleases.



At the very outset we are constrained to observe that the

law laid down by this Court in the decisions relied on is either

being misread or read divorced of the context.  The test of

reasonableness is not a wholly subjective test and its contours

are fairly indicated by the Constitution.  The requirement of

reasonableness runs like a golden thread through the entire

fabric of fundamental rights.  The lofty ideals of social and

economic justice, the advancement of the nation as a whole and

the philosophy of distributive justice - economic, social and

political - cannot be given a go-by in the name of undue stress

on fundamental rights and individual liberty.  Reasonableness

and rationality, legally as well as philosophically, provide colour

to the meaning of fundamental rights and these principles are

deducible from those very decisions which have been relied on

by the learned counsel for the petitioners.



It is necessary to have a look at the population scenario,

of the world and of our own country.



India has the (dis)credit of being second only to China at

the top in the list of the 10 most-populous countries of the

world.  As on 1.2.2000 the population of China was 1,277.6

million while the population of India as on 1.3.2001 was 1,027.0

million (Census of India, 2001, Series I, India - Paper I of 2001,

page 29).



The torrential increase in the population of the country is

one of the major hindrances in the pace of India's socio-

economic progress.  Everyday, about 50,000 persons are added

to the already large base of its population.  The  Karunakaran

Population Committee (1992-93) had proposed certain

disincentives for those who do not follow the norms of the

Development Model adopted by National Public Policy so as to

bring down the fertility rate.  It is a matter of regret that though

the Constitution of India is committed to social and economic

justice for all, yet India has entered the new millennium with

the largest number of illiterates in the world and the largest

number of people below the poverty line.  The laudable goals

spelt out in the Directive Principles of State Policy in the

Constitution of India can best be achieved if the population

explosion is checked effectively.  Therefore, the population

control assumes a central importance for providing social and

economic  justice to the people of India (Usha Tandon, Reader,

Faculty of Law, Delhi University, - Research Paper on Population

Stabilization, Delhi Law Review, Vol. XXIII 2001, pp.125-131).



In the words of Bertand Russell, "Population explosion is

more dangerous than Hydrogen Bomb."  This explosive

population over-growth is not confined to a particular country

but it is a global phenomenon.  India being the largest secular

democracy has the population problem going side by side and

directly impacting on its per capita income, and resulting in

shortfall of food grains in spite of the green revolution, and has

hampered improvement on the educational front and has caused

swelling of unemployment numbers, creating a new class of

pavement and slum-dwellers and leading to congestion in urban

areas due to the migration of rural poor. (Paper by B.K. Raina in

Population Policy and the Law, 1992, edited by  B.P. Singh

Sehgal, page 52).



In the beginning of this century, the world population

crossed six billions, of  which India alone accounts for one billion

(17 per cent) in a land area of 2.5 per cent of the world area.

The global annual increase of population is 80 millions.  Out of

this, India's growth share is over 18 millions (23 per cent),

equivalent to the total population of Australia, which has two

and a half times the land space of India.  In other words, India

is growing at the alarming rate of one Australia every year and

will be the most densely populous country in the world,

outbeating China, which ranks first, with a land area thrice this

country's. China can withstand the growth for a few years more,

but not India, with a constricted land space.  Here, the per

capita crop land is the lowest in the world, which is also

shrinking fast.  If this falls below the minimum sustainable level,

people can no longer feed themselves and shall become

dependent on imported food, provided there are nations with

exportable surpluses.  Perhaps, this may lead to famine and

abnormal conditions in some parts of the country. (Source -

Population Challenge, Arcot Easwaran, The Hindu, dated

8.7.2003).  It is emphasized that as the population grows

rapidly there is a  corresponding decrease in per capita water

and food.  Women in many places trek long distances in search

of water which distances would increase every next year on

account of excessive ground water withdrawals catering to the

need of the increasing population, resulting in lowering the

levels of water tables.



Arcot Easwaran has quoted the China example.  China,

the most populous country in the world, has been able to control

its growth rate by adopting the 'carrot and stick' rule.  Attractive

incentives in the field of education and employment were

provided to the couples following the 'one-child norm'.  At the

same time drastic disincentives were  cast on the couples

breaching 'one-child norm' which even included penal action.

India being a democratic country has so far not chosen to go

beyond casting minimal disincentives and has not embarked

upon penalizing procreation of children beyond a particular limit.

However, it has to be remembered that complacence in

controlling population in the name of democracy is too heavy a

price to pay, allowing the nation to drift towards disaster.



The growing population of India had alarmed the Indian

leadership even before India achieved independence.  In 1940

the sub-Committee on Population, appointed by the National

Planning Committee set up by the President of the Indian

National Congress (Pandit Jawaharlal Nehru), considered 'family

planning and a limitation of children' essential for the interests

of social economy, family happiness and national planning.  The

committee recommended the establishment of birth control

clinics and other necessary measures such as raising the age at

marriage and a eugenic sterilization programme.   A committee

on population set up by the National Development Council in

1991, in the wake of the census result, also proposed the

formulation of a national policy. (Source - Seminar, March

2002, page 25)



Every successive Five Year Plan has given prominence to

a population policy.  In the first draft of the First Five Year Plan

(1951-56) the Planning Commission recognized that population

policy  was essential to planning and that family planning was a

step forward for improvement in health, particularly that of

mothers and children.  The Second Five Year Plan (1956-61)

emphasized the method of sterilization. A central Family

Planning Board was also constituted in 1956 for the purpose.

The Fourth Five Year Plan (1969-74) placed the family planning

programme, "as one amongst items of the highest national

priority".  The Seventh Five Year Plan (1985-86 to 1990-91) has

underlined "the importance of population control for the success

of the plan programme...."  But, despite all such exhortations,

"the fact remains that the rate of population growth has not

moved one bit from the level of 33 per thousand reached in

1979.  And in many cases, even the reduced targets set since

then have not been realised. (Population Policy and the Law,

ibid, pages 44-46).



The above facts and excerpts highlight the problem of

population explosion as a national and global issue and provide

justification for priority in policy-oriented legislations wherever

needed.



None of the petitioners has  disputed the legislative

competence of the State of Haryana to enact the legislation.

Incidentally, it may be stated that Seventh Schedule, List II -

State List, Entry 5 speaks of 'Local government, that is to say,

the constitution and powers of municipal corporations,

improvement trusts, district boards, mining settlement

authorities and other local authorities for the purpose of local

self-government or village administration'.  Entry 6 speaks of

'Public health and sanitation' inter alia.  In List III - Concurrent

List, Entry 20A was added which reads 'Population control and

family planning'.  The legislation is within the permitted field of

State subjects.  Article 243C makes provision for the Legislature

of a State enacting laws with respect to Constitution of

Panchayats.  Article 243F in Part IX of the Constitution itself

provides that a person shall be disqualified for being chosen as,

and for being, a member of Panchayat if he is so disqualified  by

or under any law made by the Legislature of the State.  Article

243G casts one of the responsibilities of Panchayats as

preparation of plans and implementation of schemes for

economic development and social justice.  Some of the schemes

that can be entrusted to Panchayats, as spelt out by Article

243G read with Eleventh Schedule is - Scheme for economic

development and social justice in relation to health and

sanitation, family welfare and women and child development

and social welfare.  Family planning is essentially a scheme

referable to health, family welfare, women and child

development and social welfare.  Nothing more needs to be said

to demonstrate that the Constitution contemplates Panchayat as

a potent instrument of family welfare and social welfare

schemes coming true for the betterment of people's health

especially women's health and family welfare coupled with social

welfare.  Under Section 21 of the Act, the functions and duties

entrusted to Gram Panchayats include 'Public Health and Family

Welfare', 'Women and Child Development' and 'Social Welfare'.

Family planning falls therein.  Who can better enable the

discharge of functions and duties and such constitutional goals

being achieved than the leaders of Panchayats themselves

taking a lead and setting an example.



Fundamental rights are not to be read  in isolation.  They

have to be read along with the Chapter on Directive Principles of

State Policy and the Fundamental Duties enshrined in Article

51A.  Under Article 38 the State shall strive to promote the

welfare of the people and developing a social order empowered

at distributive justice - social, economic and political.  Under

Article 47 the State shall promote  with special care the

educational and economic interests of the weaker sections of the

people and in particular the constitutionally down-trodden.

Under Article 47 the State shall regard the raising of the level of

nutrition and the standard of living of its people and the

improvement of public health as among its primary duties.

None of these lofty ideals can be achieved without controlling

the population inasmuch as our materialistic resources are

limited and the claimants are many.  The concept of sustainable

development which emerges as a fundamental duty from the

several clauses of Article 51A too dictates the expansion of

population being kept within reasonable bounds.



The menace of growing population was judicially noticed

and constitutional validity of legislative means to check the

population was upheld in Air India Vs. Nergesh Meerza and

Ors. (1981) 4 SCC 335.  The Court found no fault with the rule

which would terminate the services of Air Hostesses on the third

pregnancy with two existing children, and held the rule both

salutary and reasonable for two reasons - "In the first place, the

provision preventing a third pregnancy with two existing

children would be in the larger interest of the health of the Air

Hostess concerned as also for the good upbringing of the

children.  Secondly, ......... when the entire world is faced with

the problem of population explosion it will not only be desirable

but absolutely essential for every country to see that the family

planning programme is not only whipped up but maintained at

sufficient levels so as to meet the danger of over-population

which, if not controlled, may lead to serious social and economic

problems throughout the world."



To say the least it is futile to assume or urge that the

impugned legislation violates right to life and liberty guaranteed

under Article 21 in any of the meanings howsoever expanded

the meanings may be.



The provision if it violates Article 25 ?



It was then submitted that the personal law of muslims

permits performance of marriages with 4 women, obviously for

the purpose of procreating children and any restriction thereon

would be violative of right to freedom of religion enshrined in

Article 25 of the Constitution.  The relevant part of Article 25

reads as under:-

25. Freedom of conscience and free

profession, practice and propagation of

religion. - (1)   Subject to public order, morality

and health and to the other provisions of this Part,

all persons  are equally entitled to freedom of

conscience and the right freely to profess, practise

and propagate religion.



(2) Nothing in this article shall affect the

operation of any existing law or prevent the State

from making any law -

    (a) regulating or restricting any

economic, financial, political or other secular

activity which may be associated with

religious practice;

   

    (b) providing for social welfare and

reform or the throwing open of Hindu

religious institutions of a public character to

all classes and sections of Hindus.





A bare reading of this Article deprives the submission of

all its force, vigour and charm.  The freedom is subject to public

order, morality and health.  So the Article itself permits a

legislation in the interest of social welfare and reform which are

obviously part and parcel of public order, national morality and

the collective health of the nation's people.



The Muslim Law permits  marrying four women.  The

personal law nowhere mandates or dictates it as a duty to

perform four marriages.  No religious scripture or authority has

been brought to our notice which provides 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 irreligious or offensive to the dictates of the religion.

In our view, the question   of the impugned provision of

Haryana Act being violative of Article  25 does not arise.  We

may have a reference to a few decided cases.



The meaning of religion - the term as employed in Article

25 and the nature of protection conferred by Article 25 stands

settled by the pronouncement of the Constitution Bench decision

in Dr. M. Ismail Faruqui and Ors. Vs. Union of India & Ors.

(1994) 6 SCC 360.  The protection under Articles 25 and 26 of

the Constitution is with respect to religious practice which forms

an essential and integral part of the religion.     A practice may

be a religious practice but not an essential and  integral part of

practice of that religion.  The latter is not protected by Article

25.



In Sarla Mudgal (Smt.), President, Kalyani and Ors.

Vs. Union of India and Ors. (1995) 3 SCC 635, this Court has

judicially noticed it being acclaimed in the United States of

America that the practice of polygamy is injurious to 'public

morals', even though some religions may make it obligatory or

desirable for its followers.  The Court held that polygamy can be

superseded by the State just as it can prohibit human sacrifice

or the practice of Sati in the interest of public order.  The

Personal Law operates under the authority of the legislation and

not under the religion and, therefore, the Personal Law can

always be superseded or supplemented by legislation.



In Mohd. Ahmed Khan Vs. Shah Bano Begum and

Ors., (1985) 2 SCC 556, the Constitution Bench was confronted

with a canvassed conflict between the provisions of Section 125

of Cr.P.C. and Muslim Personal Law.  The question was: when

the Personal Law makes a provision for maintenance to a

divorced wife, the provision for maintenance under Section 125

of Cr.P.C. would run in conflict with the Personal Law.  The

Constitution Bench laid down two principles; firstly, the two

provisions operate in different fields and, therefore, there is no

conflict and; secondly, even if there is a conflict it should be set

at rest by holding that the statutory law will prevail over the

Personal Law of the parties, in cases where they are in conflict.



In Mohd. Hanif Quareshi & Ors. Vs. The State of

Bihar, (1959) SCR 629, the State Legislation placing a total ban

on cow slaughter was under challenge.  One of the submissions

made was that such a ban offended Article 25 of the

Constitution because such ban came in the way of the sacrifice

of a cow on a particular day where it was considered to be

religious by Muslims.  Having made a review of various religious

books, the Court concluded that it did not appear to be

obligatory that a person must sacrifice a cow.  It was optional

for a Muslim to do so.  The fact of an option seems to run

counter to the notion of an obligatory duty.  Many Muslims do

not sacrifice a cow on the Id day.  As it was not proved that the

sacrifice of a cow on a particular day was an obligatory overt act

for a Mussalman for the performance of his religious beliefs and

ideas, it could not be held that a total ban on the slaughter of

cows ran counter to Article 25 of the Constitution.



In The State of Bombay Vs. Narasu Appa Mali, AIR

1952 Bombay 84, the constitutional validity of the Bombay

Prevention of Hindu Bigamous Marriages Act (XXV (25) of 1946)

was challenged on the ground of violation of Article 14, 15 and

25 of the Constitution.  A Division Bench, consisting of Chief

Justice Chagla and Justice Gajendragadkar (as His Lordship then

was), held -

"A sharp distinction must be drawn between

religious faith and belief and religious

practices.  What the State protects is

religious faith and belief.  If religious

practices run counter to public order,

morality or health or a policy of social

welfare upon which the State has embarked,

then the religious practices must give way

before the good of the people of the State as

a whole."





  Their Lordships quoted from American decisions that the

laws are made for the government of actions, and while they

cannot interfere with mere religious belief and opinions, they

may with practices.  Their Lordships found it difficult to accept

the proposition that polygamy is an integral part of Hindu

religion though Hindu religions recognizes the necessity of a son

for religious efficacy and spiritual salvation.  However,

proceeding on an assumption that polygamy is recognized

institution according to Hindu religious practice, their Lordships

stated in no uncertain terms -

"The right of the State to legislate on

questions relating to marriage cannot be

disputed.  Marriage is undoubtedly a social

institution an institution in which the State is

vitally interested.  Although there may not

be universal recognition of the fact, still a

very large volume of opinion in the world

today admits that monogamy is a very

desirable and praiseworthy institution.  If,

therefore, the State of Bombay compels

Hindus to become monogamists, it is a

measure of social reform, and if it is a

measure of social reform then the State is

empowered to legislate with regard to social

reform under Article 25(2)(b)

notwithstanding the fact that it may interfere

with the right of a citizen freely to profess,

practise and propagate religion."







What constitutes social reform?   Is it for the legislature

to decide the same?  Their Lordships held in  Narasu Appa

Mali's case (supra) that the will expressed by the legislature,

constituted by the chosen representatives of the people in a

democracy who are supposed to be responsible for the welfare

of the State, is the will of the people and if they lay down the

policy which a State should pursue such as when the legislature

in its wisdom has come to the conclusion that monogamy tends

to the welfare of the State, then it is not for the Courts of Law

to sit in judgment upon that decision.  Such legislation does not

contravene Article 25(1) of the Constitution.



We find ourselves in entire agreement, with the view so

taken by the learned Judges whose eminence as jurists

concerned with social welfare and social justice is recognized

without any demur.  Divorce unknown to ancient Hindu Law,

rather considered abominable to Hindu religious belief, has been

statutorily provided for Hindus and the Hindu marriage which

was considered indissoluble is now capable of being dissolved or

annulled by a decree of divorce or annulment.  The reasoning

adopted by the High Court of Bombay, in our opinion, applies

fully to repel the contention of the petitioners even when we are

examining the case from the point of view of Muslim Personal

Law.



The Division Bench of the Bombay High Court in Narasu

Appa Mali (supra) also had an occasion to examine the validity

of the legislation when it was sought to be implemented not in

one go but gradually.  Their Lordships held - "Article 14 does

not lay down that any legislation that the State may embark

upon must necessarily be of an all-embracing character.  The

State may rightly decide to bring about social reform by stages

and the stages may be territorial or they may be community-

wise."



Rule 21 of the Central Civil Services (Conduct) Rules,

1964 restrains any government servant having a living spouse

from entering into or contracting a marriage with any person.  A

similar provision is to be found in several service rules framed

by the States governing the conduct of their civil servants.  No

decided case of this court has been brought to our notice

wherein the constitutional validity of such provisions may have

been put in issue on the ground of violating the freedom of

religion under Article 25 or the freedom of personal life and

liberty under Article 21.  Such a challenge was never laid before

this Court apparently because of its futility.  However, a few

decisions by the High Courts may be noticed.



In Badruddin Vs. Aisha Begam, 1957 ALJ 300, the

Allahabad High Court ruled that though the personal law of

muslims permitted having as many as four wives but it could

not be said that having more than one wife is a part of religion.

Neither is it made obligatory by religion nor is it a  matter of

freedom of conscience.  Any law in favour of monogamy does

not interfere with the right to profess, practise and propagate

religion and does not involve any violation of Article 25 of the

Constitution.



In Smt. R.A. Pathan Vs. Director of Technical

Education & Ors.  - 1981 (22) GLR 289, having analysed in

depth the tenets of Muslim personal law and its base in religion,

a Division Bench of Gujarat High Court held that a religious

practice ordinarily  connotes a mandate which a faithful must

carry out.  What is permissive under the scripture cannot be

equated with a mandate which may amount to a religious

practice.  Therefore, there is nothing in the extract of the

Quaranic text (cited before the Court) that  contracting plural

marriages is a  matter of religious practice amongst Muslims.  A

bigamous marriage amongst Muslims is neither a religious

practice nor a religious belief and certainly not a religious

injunction or mandate.  The question of attracting Articles

15(1), 25(1) or 26(b) to protect a bigamous marriage and in the

name of religion does not arise.



In Ram Prasad Seth Vs. State of Uttar Pradesh and

Ors. (1957 L.L.J. (Vol.II) 172 = AIR 1961 Allahabad 334) a

learned single Judge held that the act of performing a second

marriage during the lifetime of one's wife cannot be regarded as

an integral part of Hindu religion nor could it be regarded as

practising or professing or propagating Hindu religion.  Even if

bigamy be regarded as an integral part of Hindu religion, the

Rule 27 of the Government Servants' Conduct Rules requiring

permission of the Government before contracting such marriage

must be held to come under the protection of Article 25(2)(b) of

the Constitution.



The law has been correctly stated  by the High Court of

Allahabad, Bombay and Gujarat, in the cases cited hereinabove

and we record our respectful approval thereof.  The principles

stated therein are applicable to all religions practised by

whichever religious groups and sects in India.



In our view, a statutory provision casting disqualification

on contesting for, or holding, an elective office is not violative of

Article 25 of the Constitution.



Looked at from any angle, the challenge to the

constitutional validity of Section 175 (1)(q) and Section 177(1)

must fail.  The right to contest an election for any office in

Panchayat is neither fundamental nor a common law right.  It is

the creature of a statute and is obviously subject to

qualifications and disqualifications enacted by legislation.  It

may be permissible for Muslims to enter into four marriages

with four women and for anyone whether a Muslim or belonging

to any other community or religion to procreate as many

children as he likes but no religion in India dictates or mandates

as an obligation to enter into bigamy or polygamy or to have

children more than one.  What is permitted or not prohibited by

a religion does not  become a religious practise or a positive

tenet of a religion.  A practice does not acquire the sanction of

religion simply because it is permitted.  Assuming the practice of

having more wives than one or procreating more children than

one is a practice followed by any community or group of people

the same can be regulated or prohibited by legislation in the

interest of public order, morality and health or by any law

providing for social welfare and reform which the impugned

legislation clearly does.



If anyone chooses to have more living children than two,

he is free to do so under the law as it stands now but then he

should pay a little price and that is of depriving himself from

holding an office in Panchayat in the State of Haryana.  There is

nothing illegal about it and certainly no unconstitutionality

attaches to it.



Some incidental questions

It was submitted that the enactment has created serious

problems in the rural population as couples desirous of

contesting an election but having living children more than two,

are feeling compelled to give them in adoption.  Subject to what

has already been stated hereinabove, we may add that

disqualification is attracted no sooner a third child is born and is

living after two living children. Merely because the couple has

parted with one child by giving the child away in adoption, the

disqualification does not come to an end.  While interpreting the

scope of disqualification we shall have to keep in view the evil

sought to be cured and purpose sought to be achieved by the

enactment.  If the person sought to be disqualified is

responsible for or has given birth to children more than two who

are living then merely because one or more of them are given in

adoption the disqualification is not wiped out.



It was also submitted that the impugned disqualification

would hit the women worst, inasmuch as in the Indian society

they have no independence and they almost helplessly bear a

third child if their husbands want them to do so.  This

contention need not detain us any longer.  A male who compels

his wife to bear a third child would disqualify not only his wife

but himself as well.  We do not think that with the awareness

which is arising in Indian women folk, they are so helpless as to

be compelled to bear a third child even though they do not wish

to do so.  At the end, suffice it to say that if the legislature

chooses to carve out an exception in favour of females it is free

to do so but merely because women are not excepted from the

operation of the disqualification it does not render it

unconstitutional.



Hypothetical examples were tried to be floated across the

bar by submitting that there may be cases where triplets are

born or twins are born on the second pregnancy and

consequently both of the parents would incur disqualification for

reasons beyond their control or just by freak of divinity.  Such

are not normal cases and the validity of the law cannot be

tested by applying it to abnormal situations.  Exceptions do not

make the rule nor render the rule irrelevant.  One swallow does

not make a summer; a single instance or indicator of something

is not necessarily significant.





Conclusion



The challenge to the constitutional validity of Section

175(1)(q) and 177(1) fails on all the counts. Both the provisions

are held, intra vires the Constitution.  The provisions are

salutary and in public interest.  All the petitions which challenge

the constitutional validity of the abovesaid provisions are held

liable to be dismissed.



Certain consequential orders would be needed.  The

matters in this batch of hundreds of petitions can broadly be

divided into a few categories.  There are writ petitions under

Article 32 of the Constitution directly filed in this Court wherein

the only question  arising for decision is the constitutional

validity of the impugned provisions of the Haryana Act.  There

were many a writ petitions filed in the High Court of Punjab &

Haryana under Articles 226/227 of the Constitution which have

been dismissed and appeals by special leave have been filed in

this Court against the decisions of the High Court.  The writ

petitions, whether in this  Court or in the High Court, were filed

at different stages of the proceedings.  In some of the matters

the High Court had refused to stay by interim order the

disqualification or the proceedings relating to disqualification

pending before the Director under Section 177(2) of the Act.

With the decision in these writ petitions and the appeals arising

out of SLPs the proceedings shall stand revived at the stage at

which they were, excepting in those matters where they stand

already concluded.  The proceedings under Section 177(2) of

the Act before the Director or the hearing in the appeals as the

case may be shall now be concluded.  In such of the cases

where the persons proceeded against have not filed their replies

or have not appealed against the decision of the Director in view

of the interim order of this Court or the High Court having been

secured by them they would be entitled to file reply or appeal,

as the case may be, within 15 days from the date of this

judgment if the time had not already expired before their

initiating proceedings in the High Court or this Court.  Such of

the cases where defence in the proceedings under Section

177(2) of the Act was raised on the ground that the

disqualification was not attracted on account of a child or more

having been given in adoption, need not be re-opened as we

have held that such a defence is not available.



Subject to the abovesaid directions all the writ petitions

and civil appeals arising out of SLPs are dismissed.

















SLP (C) No.22312 of 2001

Though this petition was heard with a batch of petitions on

17.07.2003, raising constitutional validity of certain provisions of

Haryana Panchayati Raj Act, 1994, no such question is raised in this

petition.  List for hearing on 04.08.2003.



There are three sets of petitions.  In petitions under Article 32 of

the Constitution, directly filed in this Court, the only question arising

for decision is the constitutional validity of the impugned provisions of

the Haryana Act.  There were some writ petitions filed in the High

Court of Punjab and Haryana under Article 226/227 of the Constitution

which have been dismissed, appeals by special leave have been filed

there against.  All the writ petitions and appeals shall also stand

dismissed.  In some of the matters the High Court had by interim

order stayed the disqualification and in some cases proceedings before

the Director under Section 177 (2) of the Act.  With the decision in

these writ petitions, the proceedings shall stand revived at the stage

where they were.  Within 15 days from the date of this judgment the

person proceeded against, may file appeal against the decision of the

Director, as the case may be.  In such of the cases where defence to

the proceedings under Section 177(2) of the Act was raised on the

ground of disqualification, being not attracted on account of the child

having been given in adoption, the defence shall not be available.  The

proceedings shall stand concluded and the disqualification shall apply.

All the appeals and writ petitions be treated as disposed of in

terms of the above said directions.













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