The Hindu : Right to contest

Online edition of India's National Newspaper
Friday, Aug 08, 2003

Opinion

Opinion - Editorials

Right to contest

IN A NARROW legal sense, there can be no objection to the Supreme Court judgment that upholds the constitutionality of the Haryana law that bars anyone having more than two children from becoming a sarpanch or a panch of a panchayat. The provision in the Haryana Panchayati Raj Act, 1994 was challenged mainly on the ground that it violated fundamental rights guaranteed in the Constitution, particularly Article 25 (freedom of conscience and free profession, practice and propagation of religion). Dismissing the argument that the two-child stipulation contravenes Muslim personal law, the Court has held quite correctly that the right to contest an election is "neither a fundamental nor a common law right." It has declared that this right, created by a statute, "is obviously subject to qualifications and disqualifications enacted by legislation." However, the issues raised by the ruling go well beyond the limited question of whether it is unconstitutional to deprive someone who chooses to have more than two children of the privilege of holding elected office. The key issues are social and political.

In the context of India's attempts to limit its burgeoning population, the two-child norm must be part of a broad suasive policy; it cannot be a coercive or enforceable law. Given this reality, what is the social or political rationale for a legal provision that bars those with more than two children from holding elected office? There are some dubious assumptions at work here. Elected leaders are role models for the rest of society and debarring those who flout the two-child norm from holding elected office is a way of underlining one of the key elements of the country's population policy. Even if one were to accept this line of argument, the question remains: is the imposition of such a restriction reasonable? Can it play a tangible role in helping to achieve the larger objective of curbing the population growth? The link between controlling population and the fecundity of panchs and sarpanches is greatly exaggerated. It strains credulity to assume that those who elect village leaders with two children or fewer will somehow be influenced by their example.

There is a not very subtle elitism behind the restrictive legal provisions in the Haryana Panchayati Raj Act. No State Assembly is likely to adopt legislation that places comparable restrictions on MLAs. Will the Members of Parliament submit themselves to a legislative diktat that, as role models, they must personally reflect the norms of the national policy on population? The two-child restriction has also raised concerns of a practical nature. It was submitted during the hearings in the apex court that aspirants to panchayat posts felt compelled to give up the `extra' children in adoption. In response, the Court merely observed that disqualification is not wiped out if children are given away in adoption — a response that does not address the social concerns behind the problem. It was also argued that women are affected most by this disqualification as they can rarely resist having a third child if their husbands wish to. The Court's observation that it did not believe that they could be compelled to have children against their wishes is a debatable, if not fallacious, proposition. As democratic women's groups have argued, population stabilisation can be achieved by social and economic policies that are inclusive of women and with a focus on their overall empowerment.

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