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
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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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