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By J. Venkatesan
A three-Judge Bench, comprising Justice R.C. Lahoti, Justice Ashok Bhan and Justice Arun Kumar, observed that "disqualification on the right to contest an election for 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 the national interest". The Bench was dismissing a batch of over 200 petitions challenging the constitutional validity of a provision in the Haryana Panchayati Raj Act, 1994, which imposed the restriction in contesting the elections for sarpanch and panch. Under this provision, if a person begets a third child while holding the office, he has to vacate the same. The Bench said that India was second only to China in the list of 10 most populous nations. The torrential increase of population was one of the major hindrances in the pace of India's socio-economic progress. The problem of population explosion was a national and a global issue and provided the justification for priority in policy-oriented legislations wherever needed. On the contention that the provision was against the Muslim personal law, which permitted marrying four women, the Bench said the "personal law nowhere mandates or dictates it as a duty to perform four marriages". Further, the freedom under Article 25 of the Constitution (freedom to profess and practise one's religion) "is subject of public order, morality and health. The Articles itself permits legislation in the interest of social welfare and reforms, which are part of public order, national morality and collective health of the nation's people". The judges said that "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 the case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion". The Bench said the right to contest an election for any office in panchayat was neither fundamental nor a common law right. "So, the statutory provision casting disqualification for, or holding an elective office, is not violative of Article 25." It made it clear that the disqualification was not wiped out simply because the person sought to be disqualified had given in adoption one or more of his children over and above the two children he had given birth to. Referring to a hypothetical situation of giving birth to twins after the first child, the Bench said that "exceptions do not make the rule nor render the rule irrelevant and validity of the law cannot be tested by abnormal situations". The impugned provision was neither arbitrary nor unreasonable nor discriminatory and it was not violative of Article 14 (equality before law). "It is futile to assume or urge that the provision violates right to life and liberty guaranteed under Article 21," the Bench said.
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