IMPORTANT POINT
Provisions of Sections 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, disqualifying a person having more than two living children from holding the specified offices in Panchayats, held intra vires the constitution, the provisions being salutary and in public interest.

Headnote:(i) Haryana Panchayati Raj Act, 1994-Sections 175(1)(q) and 177(1) -Validity-Election of Panchayats- Disqualification of persons having more than 2 children-Whether the provision is arbitrary and hence violative of Article 14 of the Constitution-(No)-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-Number of children, viz., two is based on legislative wisdom, not open to judicial scrutiny-Constitution of India-Article 14.
       Held : 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. (Para 8)
       (ii) Haryana Panchayati Raj Act, 1994-Sections 175(1)(q) and 177(1) -Validity-Election of Panchayats-Disqualification of persons having more than 2 children-Whether impugned disqualification has nexus with the purpose sought to be achieved by the Act-(Yes)-Hence it is valid-Constitution of India-Article 243G.
       Held : 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. (Paras 9 & 10)
       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. (Para 10)
       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 would serve the purpose of the Act as mandated by the Constitution. It cannot be said that such a provision would not serve the purpose of the Act. In our opinion, the impugned disqualification does have a nexus with the purpose sought to be achieved by the Act. Hence it is valid. (Para 10 & 11)
       (iii) Haryana Panchayati Raj Act, 1994-Sections 175(1)(q) and 177(1) -Validity-Election of Panchayats-Disqualification of persons having more than 2 children-Whether provision is discriminatory-(No).
       Held : Under the constitutional scheme there is a well-defined distribution of legislative powers contained in Part XI of the Constitution. The Parliament and every State Legislature has power to make laws with respect to any of the matters which fall within its field of legislation under Article 246 read with Seventh Schedule of the Constitution. A legislation by one of the States cannot be held to be discriminatory or suffering from the vice of hostile discrimination as against its citizens simply because the Parliament or the Legislatures of other States have not chosen to enact similar laws. Such a submission if accepted would be violative of the autonomy given to the Centre and the States within their respective fields under the constitutional scheme. Similarly, legislations referable to different organs of local self-government, that is, Panchayats, Municipalities and so on may be, rather are, different. Many a time they are referable to different entries of Lists I, II and III of the Seventh Schedule. All such laws need not necessarily be identical. 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. (Paras 12 to 14)
       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. (Para 18)
       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. (Para 20)
       (iv) Constitution of India-Articles 21 and 25-Haryana Panchayati Raj Act, 1994-Sections 175(1)(q) and 177(1)-Election of Panchayats-Disqualification of persons having more than two children-Whether provision is violative of Article 21 or 25-(No)-Whether it is permissible to test validity of a law which enacts a disqualification operating in field of elections on touchstone of violation of fundamental rights-(No)-Right to contest an election is neither a fundamental right nor a common law right-Disqualification on right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross limits of reasonability.
       Held : Right to contest an election is neither a fundamental right nor a common law right. It is 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. (Para 22)
       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. (Para 25)
       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. (Para 60)
       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. (Para 61)

JUDGMENT

R.C. Lahoti, J.-Leave granted in all the Special Leave Petitions.

2. 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-

xxxx xxxx xxxx

(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."

3. 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).

4. Place I 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 disqual

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2003 Supreme(SC) 675

IMPORTANT POINTProvisions of Sections 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, disqualifying a person having more than two living children from holding the specified offices in Panchayats, held intra vires the constitution, the provisions being salutary and in public interest.

Cases Referred (18)

IMPORTANT POINT
Provisions of Sections 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, disqualifying a person having more than two living children from holding the specified offices in Panchayats, held intra vires the constitution, the provisions being salutary and in public interest.