& Ors Vs. State of Haryana & Ors  Insc 324 (30 July 2003)
Lahoti, Ashok Bhan & Arun Kumar.
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.
granted in all the Special Leave Petitions.
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 :
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;
If any member of a Gram Panchayat, Panchayat Samiti or Zila Parishad –
is elected, as such, was subject to any of the disqualifications mentioned in
section 175 at time of his election;
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.
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
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).
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.
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.
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 :-
the provision is arbitrary and hence violative of Article 14 of the
the disqualification does not serve the purpose sought to be achieved by the
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 and hence is
violative of Article 21 of the Constitution; and
the provision interferes with freedom of religion and hence violates Article 25
of the Constitution.
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
(i),(ii) & (iii) The first three submissions are based on Article 14 of the
Constitution and, therefore, are taken up together for consideration.
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
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
such differentia has a rational relation to the object sought to be achieved by
the Statute in question.
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 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.
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
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:
Women and child development.
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.
XIX (1) of Section 21 reads:
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 ð ¿ Œì bjbjU U * 7| 7| qè ÿÿ ÿÿ ÿÿ l Œ Œ Œ Œ Œ Œ Œ Z Z Z 8
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INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION NO. 302 OF 2001 Javed &
Ors. ... Petitioners Versus State of Haryana & Ors. ....Respondents (With
________________________________________________ @ 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.
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
(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 State of Tamil Nadu and Ors. (1987) 4 SCC 238.
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.
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.
implementation of policy decision in a phased manner is suggestive neither of
arbitrariness nor of discrimination. In Lalit Narayan Mishra Institute of
Economic Development (1988) 2 SCC 433, the policy of nationalizing educational
institutes was sought to be implemented in a phased manner.
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 (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.
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.
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
(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.
Officer, Namakkal Constituency (1952) SCR 218, 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." 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.
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 (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.
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.
impugned disqualification does not violate the latter right.
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.
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.
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.
disqualification if violates Article 21 ? Union
of India & Anr. - (1978) 1 SCC 248, and M/s. Kasturu 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.
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.
necessary to have a look at the population scenario, of the world and of our
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).
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
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).
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.
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.
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.
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
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.
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).
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.
of the petitioners has disputed the legislative competence of the State of Haryana to enact the legislation.
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'.
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.
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
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.
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.
menace of growing population was judicially noticed and constitutional validity
of legislative means to check the 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
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:-
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.
Nothing in this article shall affect the operation of any existing law or prevent
the State from making any law –
or restricting any economic, financial, political or other secular activity
which may be associated with religious practice;
for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
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.
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.
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.
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 (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.
Mudgal (Smt.), President, Kalyani and Ors. 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. 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
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.
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
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.
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.
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.
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
& 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. 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.
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.
view, a statutory provision casting disqualification on contesting for, or
holding, an elective office is not violative of Article 25 of the Constitution.
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
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.
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.
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.
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.
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.
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.
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.
to the abovesaid directions all the writ petitions and civil appeals arising
out of SLPs are dismissed.
(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.
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.
the appeals and writ petitions be treated as disposed of in terms of the above