To uphold the vires of recently inserted stipulation in Uttarakhand Panchayati Raj Act, 2016 disqualifying a person being appointed as Pradhan, Up-Pradhan and a member of the Gram Panchayat, if he has more than two living children, the Uttarakhand High Court read down the same and declared that the disqualification , in terms of the said provision, would apply only to cases where persons, having two children or more, have a third child or more after 25.07.2019.
Section 8(1)(r) of the Act stipulating the disqualification shall not be understood as disqualifying those who already have three or more children before 25.07.2019, the date on 2019 Amendment to the 2016 Act came into force, the bench comprising the Chief Justice Ramesh Ranganathan and Justice Alok Kumar Verma clarified.
Stipulation Not Anti Minoritarian
An interesting contention was raised challenging the vires of the provision. It was contended that the stipulation is anti-minoritarian as it violates the fundamental rights of procreation of minorities. The argument was that the law permits a Muslim male to have more than one wife, and even if he has one child through each wife he would still violate the onerous prescription of not having more than two living children; and this is also in violation of the right of a Muslim woman to have at least one child.
The bench referred to the Supreme Court judgment in Javed vs. State of Haryana and observed:
The absence of a uniform civil code notwithstanding, Section 8(1)(r) is applicable to people of all religious faiths, and is not anti-minoritarian. It does not also violate the fundamental rights of religious minorities enshrined under Article 25 of the Constitution of India.
Reiterating the observations made in Javed, the bench observed:
With respect to the contention that the personal law of Muslims permits performance of marriages with four women, obviously for the purpose of procreating children and any restriction thereon would be violative of the right to freedom of religion enshrined in Article 25 of the Constitution, the Supreme Court, in Javed and Others, opined that it may be permissible for Muslims to enter into four marriages with four women, and for anyone whether a Muslim or belonging to any other community or religion to procreate as many children as he likes, but no religion in India dictates or mandates as an obligation to enter into bigamy or polygamy or to have children more than one; what is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion; a practice does not acquire the sanction of religion simply because it is permitted; the freedom under Article 25 is subject to public order, morality and health; the Article itself permits 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 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; 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; and a statutory provision casting disqualification on contesting for, or holding, an elective office is not violative of Article 25 of the Constitution."
Possibility of a person having twins from a second pregnancy would not render stipulation unconstitutional
Another contention was that this stipulation would apply harshly to those who have twins in the second pregnancy, for the birth of a single child or twins, during the second pregnancy, is an act of God. Rejecting the said argument as well, the bench observed:
Exceptional situation cannot form the basis of declaring a law ultra vires Article 14 of the Constitution of India. The possibility of a person having twins from a second pregnancy would not, therefore, justify striking down the classification as violative of Article 14 of the Constitution.
Disqualification not to be made applicable to that class of people, who already have three children or more
The bench also considered the issue whether those, who already have more than two children prior to 25.07.2019 when the 2019 Act came into force, are disqualified from contesting elections to Panchayat Raj Institutions? It observed:
While the provision [Section 8(1)(r)], undoubtedly, seeks to achieve the object of providing disincentives, from having a third child, to those who have 2 children or less, what is its effect on those who, prior to the law being made, already have three living children or more? The object of disincentivizing people from having a third child, and to promote family planning, would not be achieved with respect to those who already have three or more children, since there is nothing that they can do to bring the children, they already have, below the two child norm. While Section 8(1)(r) may, possibly, have been contended to be valid if the object sought to be achieved by the legislation was to punish those who have three children or more, such a claim would, undoubtedly, not be free from doubt, for the object of the legislation, as noted hereinabove, must also be lawful. The National Population Policy, 2000, and the various schemes introduced by the Government of India, show that the endeavor is to provide incentives to people having two children or less from not having further children. None of these policies, of the Government of India, seek to punish those who have three children or more. Likewise, while the State Legislature can, undoubtedly, make a law to achieve the just object of disincentivizing those who have two children or less, from having a third child, it may not be justified in punishing those who already have three or more children by an ex-post facto law. It is, however, unnecessary for us to dwell on this aspect any further since, even according to the respondents, the object of the legislation [Section 8(1)(r)] is to promote family planning by providing disincentives from having a third child. In so far as it is made applicable to that class of people, who already have three children or more, the legislation would, undoubtedly, be manifestly arbitrary as the differentia, between those left out of the group from those included in the classification, does not have a rational nexus to the object of the legislation.
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