# JAVED AND ORS v. STATE OF HARYANA AND ORS

- **Citation:** [2003] Supp. 1 S.C.R. 947
- **Court:** Supreme Court of India
- **Decided:** 2003-07-30
- **Bench:** R.C. Lahoti, Ashok Bhan, Arun Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/javed-and-ors-v-state-of-haryana-and-ors-19241
- **Pages:** 31

## Headnote

B
Panchayats and Zila Parishads:
Haryana Panchayati Raj Act, 1994-Sections 175(/)(q) and 177(1)-
Provisions disqualifying person having more than two children from contesting C
for, or holding elective office in Panchayats-Constitutional validity of-Held:
Provisions intra vires the Constitution being salutary and in public interestConstitution of India, 1950-Articles 14, 21 and 25.
Constitution of India, 1950:
D
Article 14-Haryana Panchayati Raj Act, 1994-Sections 175(/)(q) and
177(1)-Provisions disqualifying person having more than two children from
contesting for, or holding elective office in Panchayats-Whether arbitrary,
unreasonable and discriminatory-Held: Persons having more than two living
children and persons having not more than two living children constitute two E
different classes distinguishing one from another based on intelligible differentia
having rational relation to the object of implementation of family planning
programme-Uniform policy of controlling population having far reaching
implication are capable of being implemented in phased manner either at
grass root level or at the top-Panchayats are grass root level of local selfgovernance having wider base-Hence, the provisions neither arbitrary nor
unreasonable nor discriminatory-Constitution of lndia, 1950-Article 2430Haryana Panchayati Raj Act, 1994-Section 21.
Article 21-Haryana Panchayati Raj Act, 1994-Sections 175(/)(q) and
177(1)-Provisions disqualifying person having more than two children from
contesting for, or holding elective office in Panchayats-Whether violative of
Article 21-Held: No, it is a measure to keep population explosion within
reasonable bounds-Also to be read along with directive principles and
fundamental duties which dictate check on population explosion-Hence, the
provisions not violative of right to life and liberty guaranteed under Article
947
948
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A 21-Constitution of India, 1950-Articles 243C, 243F, 243G, 38, 46, 47 and
51-A.
Article 25-Haryana Panchayati Raj Act, 1994-Sections 175(/)(q) and
177(/)-Provisions disqualifYing person having more than two children from
contesting for, or holding elective office in Panchayats-Whether violative of
B Article 25-Held: No, the constitutional guarantee under Article 25 is subject
to public order, morality and health-It, thus, permits legislation in the interest
of social welfare and reform-The provisions being in that direction, not
violative of Article 25.
C
The provisions of Section 175(1)(q) and Section 177(1) of Haryana
Panc!Jayati Raj Act, 1994 disqualify from person having more than two
children after one year on the date of commencement of Act from holding
or contesting for specified offices of Panchayat. Writ petitioners and the
appellants were disqualified from contesting for, or holding office of
Panchas/Sarpanchas in view of their having incurred the disqualification
D as provided by Section 175(1 )( q) and Section 177(1) of the Act. Writ
petitioners and appellants have challenged the constitutional validity of
Sections 175(1)(q) and 177(1) on the ground that it is arbitrary, hence
violative of Article 14 of the Constitution; that the disqualification does
not serve the purpose sought to be achieved by the legislation; that the
E 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, hence violative of Article 21 of the Constitution; and
that the provision interferes with freedom of religion, hence violates Article
25 of the Constitution.
p
Appellants and writ petitioners contended 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 ~pugned disqualification has no nexus with
the object sought to be achieved by the Act; that the provision of
disqualification introduced by the

## Text

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JAVED AND ORS.
A
V.
STATE OF HARYANA AND ORS.
JULY 30, 2003
[R.C. LAHOTI, ASHOK BHAN AND ARUN KUMAR, JJ.]
B
Panchayats and Zila Parishads:
Haryana Panchayati Raj Act, 1994-Sections 175(/)(q) and 177(1)-
Provisions disqualifying person having more than two children from contesting C
for, or holding elective office in Panchayats-Constitutional validity of-Held:
Provisions intra vires the Constitution being salutary and in public interestConstitution of India, 1950-Articles 14, 21 and 25.
Constitution of India, 1950:
D
Article 14-Haryana Panchayati Raj Act, 1994-Sections 175(/)(q) and
177(1)-Provisions disqualifying person having more than two children from
contesting for, or holding elective office in Panchayats-Whether arbitrary,
unreasonable and discriminatory-Held: Persons having more than two living
children and persons having not more than two living children constitute two E
different classes distinguishing one from another based on intelligible differentia
having rational relation to the object of implementation of family planning
programme-Uniform policy of controlling population having far reaching
implication are capable of being implemented in phased manner either at
grass root level or at the top-Panchayats are grass root level of local selfgovernance having wider base-Hence, the provisions neither arbitrary nor
unreasonable nor discriminatory-Constitution of lndia, 1950-Article 2430Haryana Panchayati Raj Act, 1994-Section 21.
Article 21-Haryana Panchayati Raj Act, 1994-Sections 175(/)(q) and
177(1)-Provisions disqualifying person having more than two children from
contesting for, or holding elective office in Panchayats-Whether violative of
Article 21-Held: No, it is a measure to keep population explosion within
reasonable bounds-Also to be read along with directive principles and
fundamental duties which dictate check on population explosion-Hence, the
provisions not violative of right to life and liberty guaranteed under Article
947
948
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A 21-Constitution of India, 1950-Articles 243C, 243F, 243G, 38, 46, 47 and
51-A.
Article 25-Haryana Panchayati Raj Act, 1994-Sections 175(/)(q) and
177(/)-Provisions disqualifYing person having more than two children from
contesting for, or holding elective office in Panchayats-Whether violative of
B Article 25-Held: No, the constitutional guarantee under Article 25 is subject
to public order, morality and health-It, thus, permits legislation in the interest
of social welfare and reform-The provisions being in that direction, not
violative of Article 25.
C
The provisions of Section 175(1)(q) and Section 177(1) of Haryana
Panc!Jayati Raj Act, 1994 disqualify from person having more than two
children after one year on the date of commencement of Act from holding
or contesting for specified offices of Panchayat. Writ petitioners and the
appellants were disqualified from contesting for, or holding office of
Panchas/Sarpanchas in view of their having incurred the disqualification
D as provided by Section 175(1 )( q) and Section 177(1) of the Act. Writ
petitioners and appellants have challenged the constitutional validity of
Sections 175(1)(q) and 177(1) on the ground that it is arbitrary, hence
violative of Article 14 of the Constitution; that the disqualification does
not serve the purpose sought to be achieved by the legislation; that the
E 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, hence violative of Article 21 of the Constitution; and
that the provision interferes with freedom of religion, hence violates Article
25 of the Constitution.
p
Appellants and writ petitioners contended 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 ~pugned disqualification has no nexus with
the object sought to be achieved by the Act; that the provision of
disqualification introduced by the State of Haryana is discriminatory since
G similar provision has not been enacted for disqualifying aspirants or
holders of elective or public offices in other institutions of local selfgovernance, State Legislatures and Parliament and also in States other
than Haryana; that the fundamental right to life and personal liberty
under Article 21 of the Constitution should include all the varieties of
H rights which go to make up the personal liberty of man including the right
JAVEDv. STATE
949
to enjoy all the materialistic pleasures and to procreate as many children A
as one pleases; that the personal law of muslims permits performance of
marriages with four women for the purpose of procreating children and
any restriction thereon would be violative of right to freedom of religion
under Article 25 of the Constitution; that in the rural population couples
desirous of contesting an election but having more than two living children B
are compelled to give them in adoption; that the impugned disqualification
would hit the women worst as they have no independence and they almost
helplessly bear a third child if their husbands want them to do so; and
that there may be cases where triplets or twins are born on the second
pregnancy and consequently both the parents would incur disqualification
for reasons beyond their control or just by freak of divinity.
C
Dismissing the writ petitions and appeals, the Court
HELD: 1. Sections 175(1)(q) and 177 (I) of the Haryana Panchayati
Raj Act, 1994 casting disqualification on contesting for, or holding an
elective office on having more than two children is intra vires the D
Constitution of India. The provisions seek to achieve a laudable purpose
- socio-economic welfare and health care of the masses; are consistent with
the National Population Policy; and are salutary and in public interest;
hence, not violative of Articles 14, 21 and 25 of the Constitution.
(963-B) E
2. 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 oth~r. It
is well-defined and well perceptible. The object sought to be achieved by
the legislation is popularizing the family welfare/family planning
programme which the disqualification enacted by the provision seeks to
achieve by creating a disincentive. Hence, 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
F
of policy decision which is not open to judicial scrutiny. (959-B-C(
G
BudhanChoudhryandOrs. v. TheStateofBihar, (1955( I SCR 1045,
referred to.
3. Section 21 of the 1994 Act enumerates the functions and duties of
Gram Panchayat which include Public Health and Family Welfare- H
950
SUPREME COURT REPORTS [2003) SUPP. I S.C.R.
A Implementation of Family Welfare programme. This is consistent with the
National Population Policy, thus 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
B Sarpanch having more than two living children. Such a provision would
serve the purpose of the Act ~s mandated by the Constitution. Therefore,
the impugned disqualification does have a nexus with the purpose sought
to be achieved by the Act, hence valid. 1960-A-DI
4.1. A legislation by one of the States cannot be held to be
C 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. If it is held so it would
be violative of the autonomy given to the Centre and the States within
their respective fields under the constitutional scheme. Furthermore, it is
D
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 it may be pari materia, but enacted by Parliament or by another
State legislature within its own power to legislate. The sources of power
are different and those who exercise the power also differ. Similarly,
legislations referable to different organs of local self-government, that is,
E Panchayats, Municipalities and so on are different. Many a time they are
referable to different entries of Lists I, II and Ill of the Seventh Schedule.
All such laws need not necessarily be identical. Same is the case with the
laws governing legislators and parliamentarians. 1960-G-H; 961-AI
The State of Madhya Pradesh v. G.C. Mandawar, 119551 2 SCR 225;
F The Bar Council of Uttar Pradesh v. The State of U.P. and Anr., fl9731 I
SCC 261; State of Tamil Nadu and Ors. v. Ananthi Ammal and Ors., 11995)
I SCC 519 and Prabhakaran Nair and Ors. v. State of Tamil Nadu and Ors.,
11987) 4 sec 238, referred to.
G
4.2. A 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
H resistance. Further the implementation in a phased manner is suggestive
JAVED v. STATE
951
neither of arbitrariness nor of discrimination. (961-F-H(
la/it Narayan Mishra Institute of Economic Development and Social
Change, Patna, etc. v. State of Bihar and Ors., (19881 2 SCC 433 and
Pannalal Bansilal Pitti and Ors. v. State of A.P. and Anr., (199612 SCC 498,
referred to.
4.3. 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 selfgovernance. They have a wider base. There is nothing wrong in the State
A
B
of Haryana having chosen to subscribe to the national movement of C
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. Thus, no fault can be found with the
State of Haryana having enacted the legislation. It is for others to emulate.
(962-D-E; 963-A) D
5. Right to contest an election is neither a fundamental right nor a
common law right. In view of Part IX of 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, thus, right E
conferred by a Statute. But even so it cannot be equated with a
fundamental right. Further, 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 disqualificatious
which would disable a person from contesting for, or holding, an elective F
statutory office. The 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. It is a
disqualification conceptually devised in national interest.
1963-D-F; 964-H; 965-A( G
Jyoti Basu and Ors. v. Debi Ghosal and Ors., (19821 l SCC 691;
Jamuna Prasad Mukhariva and Ors. v. lachhi Ram and Ors., 119551 1 SCR
608 and Sakhawat Ali v. The State ofOrissa, (195511SCR1004, referred
to.
H
952
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A
6. I. 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
B 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. [965-E-F[
Mrs. Maneka Gandhi v. Union of India and Anr., [1978[ 1 SCC 248
C and Mis. Kasturu Lal Lakshmi Reddy and Ors. v. State of Jammu and Kashmir
and Anr., [1980[ 4 SCC 1, referred to.
6.2. Article 243C makes provision for the Legislature of State to enact
laws with respect to constitution of Panchayats. The Haryana Panchayati
Raj Act, 1994 enacted by the State of Haryana is within the permitted
D field of State subjects. Under Article 243F person shall be disqualified for
being chosen as, and for being, a member of Panchayat if he is disqualified
by or under any law made by the Legislature of State and Article 243G
casts one of the responsibilities of Panchayats as preparation of plans and
implementation of schemes for economic development and social justice
E 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. Thus, 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
F 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', Family planning falls therein. It is the leaders of Panchayat who
can themselves better enable the discharge of functions and duties and such
G constitutional goals. (968-F-H; 969-A-B[
6.3. Fundamental rights have to be read along with the Chapter on
Directive Principles of State Policy and the Fundamental Duties enshrined
in Article SIA and not in isolation. Articles 38, 46, 47 and others deal with
economic development and social welfare, public health as among its
H primary duties. These lofty ideals cannot be achieved without controlling
JAVED v. STATE
953
the population inasmuch as our materialistic resources are limited and the A
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. The problem of population explosion is a national and global issue
and provide justification for priority in policy-oriented legislations B
wherever needed. Thus, the impugned legislation does not violate right to
life and liberty guaranteed under Article 21 in any of the meanings
howsoever expanded the meanings may be. (969-C E; 970-A)
Air India v. Nergesh Meerza and Ors., (1981) 4 SCC 335, referred to.
c
Census of India, 2001, Series I, India - Paper I of 2001, p.29; Paper
on Population Stabilization by Usha Tandon, Reader, Faculty of Law, Delhi
University - Delhi Law Review, Vol.XXIII 2001, pp.125-131; Population
Policy and the Law, Paper by B.K. Raina, 1992, edited by B.P. Singh Sehgal,
p.52; Population Challenge, Article by Arcot Easwaran, The Hindu, dated
8.7.2003, referred to.
D
7.1. Under Article 25 of the Constitution the freedom of conscience
a11d free profession, practice and propagation of religion is s.ubject to
public order, morality and health. Therefore, the Article itself permits a
legislation in the interest of social welfare and reform which are obviously E
part and parcel of public order, national morality and the collective health
of the nation's people. (970-B-C, GI
7.2. 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 F
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. Assuming the practice of having G
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. Thus,
Sections 175(l)(q) and 177(1) casting disqualification on contesting for or
holding an elective office on having more than two children is not violative H
954
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A of Article 25 of the Constitution. [975-B-C; 974-G r
B
The State of Bombay v. Narasu Appa Mali, AIR [1952[ Bombay 84;
Badruddin v. Aisha Begam, [19571ALJ300; Smt. R.A. Pathan v. Dil·ector of
Technical Education and Ors., (1981 ( 22 GLR 289 and Ram Prasad Seth v.
State of Uttar Pradesh and Ors., AIR (1961[ Allahabad 334, approved.
Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors., 11994( 6
SCC 360; Sar/a Mudgal (Smt.), President, Kalyani and Ors. v. Union of India
and Ors., (1995( 3 SCC 635; Mohd. Ahmed Khan v. Shah Bano Begum and
Ors., ( 1985( 2 SCC 556 and Mohd. Han if Quareshi and Ors. v. The State of
C Bihar, 11959[ SCR 629, referred to.
8. The 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
D disqualification the evil sought to be cured and purpose sought to be
achieved by the enactment must be kept in view. (975-F-G[
9. 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
E the operation of the disqualification it does not render it unconstitutional.
(976-B(
IO. Hypothetical examples where triplets are born or twins are born
on second pregnancy are not normal cases and the validity of the law
cannot be tested by applying it to abnormal situations. Exceptions do not
F make the rule nor render the rule irrelevant. (976-CI
G
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 302 of
2001.
(Under Article 32 of the Constitution of India.)
WITH
C.A. Nos. 5355-5372, 5380, 5381, 5382, 5385, 5386, 5397-5450/2003,
W.P. (C) Nos. 269, 316, 315, 329, 362, 363, 258, 403, 395, 420, 438, 475,
507, 508, 495, 567, 560/2001, 559, 561, 538, 539, 57912001, 19, 30, 32, I,
H 49, 50, 79, 94, 130, 93, 121, 144, 169, 168, 128, 177, 112, 71, 91, 178, 184,
JAVED v. STA TE
955
183, 185, 6812002, 43012001, 213, 214. 162, 230, 225, 228, 254, 296, 280, A
281, 305. 317, 309/2002, C.A. No. 3629/2002, W.P. (C) No. 306/2002, C.A.
No. 4053/2002, W.P.(C) Nos. 341, 342, 395/2002, C.A. No. 4066/2002,
W.P.(C) Nos. 396, 406/2002. C.A. Nos. 4501, 4487/2002. W.P.(C) Nos. 402,
336, 424, 355, 381, 380, 430, 431, 421, 404/2002, C.A. Nos. 5080, 5081/
2002, W.P(C) Nos. 443, 457, 451/2002, C.A. No. 5270/2002, W.P(C) Nos. B
462, 491, 495/2002, C.A. Nos. 5902, 5903/2002 W.P.(C) No. 278/2002, C.A.
No. 7034/2002, W.P. (C) Nos. 612, 574, 607, 240, 655, 676, 677, 547, 645,
620, 682/2002, 8/2003, 669/2002, 18, 28, 40/2003, C .. \. i·fo. 2033/2003,
W.P. (C) Nos. 63, 121, 123/2003, C.A.No. 2395/2003 W.P.(C) Nos. 149,
193, 195, 204, 155, 161, 188, 245, 247, 248, 250, 257, 268, 270, 277 and 281
/2003.
c
Soli J. Sorabjee, Attorney General, S.B. Sanyal, R.P. Bhatt, P.P. Rao,
Rishi Malhotra, Prem Malhotra, Altaf Hussain, Ahil Sharma, Anil Kamwal,
Vishal Malik, M.S. Dahiya, Sanjay Sarin, Ashok Mathur, Arun Aggarwal,
S.C. Birla, Ms. Kusum Chaudhary, B.R. Kapur, Mukesh Kumar, Sunit Kumar,
Anis Ahmed Khan, Bhava Dutt Sharma, B.S. Chahar, Mrs. Jyoti Chahar, D
Vinay Garg, Suresh C. Gupta, A. Guneshwar Sharma, Sanjay Pal, Ms.
Shashwati Sen, Kamal Mohan Gupta, Mrs. Rachna Joshi Issar, Ajay Siwach,
Jasbir S. Malik, S.K. Sabharwal. Dr. Ramesh, K.Haritash, Ms. Alka Rai,
Goodwill Indeevar, Hari Shankar K., Ranbir Yadav, Dr. Kailash Chand,
Sarvesh Bisaria, Ms. Nidhi, K.R. Nagaraja, Sanjav Garg, R.K. Talwar, Y.P. E
Dhingra, Pannalal Syngal, M.L. Bakshi, S.S. Nehra, R.C. Kohli, Monohar
Singh Bakshi, Ms. Dipali Chauhan, Debasis Misra, Mahabir Singh, Ajay Pal,
Rakesh Dahiya, Irshad Ahmad, A.P. Mohanty, Manoj Swarup, R.D. Rathore,
K.K. Gupta, Jagjit Singh Chhabra, Varinder Kr. Sharma, C.D. Singh, L.K.
Pandey, Mushtaq Ahmad, Tara Chandra Sharma, Ms. Neelam Sharma, Ajai
Bhalla, Ms. Abha R. Sharma, Mrs. Sunita R. Singh, R.C. Pandey, S.K. Bansal, F
Ms. Savitri Bansal, Harbans Lal Bajaj, Mrs. Lalita Kaushik (NP), Jagdish Kr.
Agarwal, Dr. K.R. Punia, Mrs. Santosh Singh, Mrs. Vandana Singh, Rakesh
Kumar Mudgal, J.S. Maharatta, Rao Ranjit, Somvir Singh Deswal, M.P.
Shorawala, Madhukar Agarwal, P.K. Jain, Ms. Sandhya Goswami, Ms. M.
Sharda, Raj Kumar Mehta, B.S. Mor, S.M. Hooda, Gjan Singh, R.C. Kaushik, G
Naresh Kumar, Rajiv Talwar, Ms. Naresh Bakshi, Pardeep Gupta, K.K. Mohan,
Shakeel Ahmed, Attar Singh, Vishwajit Singh, Ms. Praveena Gautam, R.P.
Goyal, S.K. Sinha, Shankar Divate, S.C. Patel, D. Mahesh Babu, Mrs. Rekha
Palli, C.L. Sahum Dr. Surat Singh, Ashok K. Mahajan, Rakesh Tyagi, Ms.
Aparna Bhardwaj, Baldev Atreya, Praveen Jain, P. Narasimhan, Bimal Roy
Jad, Ms. Sunita Pandit, Jaswant Rajpal, M.M. Kashyap, Ugra Shankar Prasad, H
956
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A Rohit Minocha, S.N. Bhat, N.P .. S. Panwar, D.P. Chaturvedi, Rishiraj Barooah,
J.P. Dhanda, Ms. Rajrani Dhanda, Ms. Geetanjali Mohan. Vinay Kr. Garg,
Ms. Kavita Wadia, Adv. (NP), Krishnan Venugopal, Uday N. Tiwary, Prasad
Vijaya Kumar, Bairam Das, K.G. Bhagat, Vineet Bhagat, Ku.ma! Baid, Nipum
Sharma, R.D. Upadhyay, Manish Singhvi and Ashok K. Mahajan for the
B appearing parties.
The Judgment of the Court was delivered by
R.C. LAHOTI, J. Leave granted in all the Special Leave Petitions.
In this batch of writ petitions and appeals the core issue is the vires of
C the provisigns of Section I 75(l)(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:-
D
175. (I) 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
E
( q) has more than two living children :
F
G
H
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 su~h, 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
j
.JAVED v. STATE [R.C. LAHOTL .I.]
957
an application made to it by any person, or on its own motion. Until A
the Director decides that the vacancy, has arisen, the members shall
not be disqualified under sub-section (I) 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 B
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."
Act No. I I of 1994 was enacted with various objectives based on past C
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 Seventythird 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, D
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).
Placed in plain words the provision disqualifies a person having more
than two living children from holding the specified offices in Panchayats. E
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 F
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 G
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 H
958
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A of office sought to be disqualified. These safeguards satisfy the requirements
of natural justice.
Several 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
B 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. We have heard all the learned counsel representing the different
C petitioners/appellants. As agreed to at the Bar, the grounds of challenge can
be categorized into five:- (i) that the provision is arbitrary and hence violative
of Article 14 of the Constitution; (ii) that the disqualification does not serve
the purpose sought to be achieved by the legislation; (iii) that the provision
is discriminatory; (iv) that the provision adversely affects the liberty of leading
personal life in all its freedom and having as many children as one chooses
D to have and hence is violative of Article 21 of the Constitution; and (v) that
the provision interferes with freedom of religion and hence violates Article
25 of the Constitution.
The State of Haryana has defended its legislation on all counts. We
have also heard the learned Standing Counsel for the State. On notice, Sh.
E 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 made.
F
Submissions (i).(ii) & (iii)
The first three submissions are based on Article 14 of the Constitution
and, therefore, are taken up together for consideration.
ls the classification arbitrary?
It is well-settled that Article 14 forbids class legislation; it does not
G 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
H sought to be achieved by the Statute in question. The basis for classification
JAVED v. STATE [R.C. LAHOTI. .I.]
959
may rest on conditions which may be geographical or according to objects A
or occupation or the like. [See : Constitution Bench decision in Budhan
Chaudhry and Ors. v. The State of Bihar, [1955] I 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 B
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 C
have been more or less. The number is a matter of policy decision which is
not open to judicial scrutiny.
The legislation does not serve its object?
It was submitted that the number of children which one has, whether D
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 Population Policy.
E
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 F
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 economiF
development and social justice including those in relation to matters listed in
the Eleventh Schedule. Entries 24 and 25 of the Eleventh Schedule read:
G
24. Family Welfare.
25. Women and child development.
In pursuance to the powers given to the State Legislature to enact laws the H
960
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A Haryana Legislature enacted the Haryana Panchayati Raj Act, 1994 (Haryana
Act No. I I of 1994 ). Section 21 enumerates the functions and duties of Gram
Panchayat. Clause XIX (I) of Section 21 reads:
"XIX. Public Health and Family Welfare -
B
lmpiementation 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
C provision would serve the purpose of the Act as mandated by the Constitution.
D
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
The provision is discriminatory?
It was submitted that though the State of Haryana has introduced such
a provision of disqualification by reference to elective offices in panchayats,
a similar provision is not found to have been enacted for disqualifying aspirants
E or holders of elective or public offices in other institutions of local selfgovemance and also not in State Legislatures and Parliament. So also all the
States, i.e., other than Haryana have not enacted similar laws, and therefore,
it appears that people aspiring to participate in Panchayati Raj governance in
the State of Haryana have been singled out and meted out hostile
F discrimination. The submission has been stated only to be rejected. 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
G 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.
H
1 .
JAVED v. STATE [R.C. LAHOTL J.]
961
Similarly, legislations referable to different organs of local self- A
government, that is, Panchayats,,Municipalties and so on may be, rather are,
different Many a time they an: 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 B
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 Bench in
The State of Madhya Pradesh v. G.C. Mandawar, [1955] 2 SCR 225, held C
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 D
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 Counci! of Uttar Pradesh v.
The State of U.P. and Anr., (1973] 1 SCC 261, State of Tamil Nadu and Ors.
v. Ananthi Ammal and Ors., (1995] 1 SCC 519 and Prabhakaran Nair and E
Ors. v. State of Tamil Nadu and Ors., (1987] 4 SCC 238.
Incidentally it may be noted that so far as the State of Haryana is
concerned, in the Haryana Municipal Act, 1973 (Act No. 24of1973) 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. p
A 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 G
gradual willing acceptance and invites lesser resistance.
The implementation of policy decision in a phased manner is suggestive
neither of arbitrariness nor of discrimination. In Lal it Narayan Mishra Institute
of Economic Development and Social Change, Patna etc. v. State of Bihar
and Ors .. [1988] 2 sec 433, the policy of nationalizing educational institutes H
962
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A was sought to be implemented in a phased manner. This 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 Pannalal
Bansilal Pitti and Ors. v. State of A.P. and Anr., [1996] 2 SCC 498, are
B 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. In a
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
C 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
D 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,
E 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
F
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
G
ensure dedicated involvement of administrators at district and subdistrict 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
H
throughout sociY,ty."
JAVED v. STATE [R.C. LAHOTI, J.]
963
No fault can be found with the State of Haryana hav\ng enacted the A
legislation. It is for others to emulate.
We are 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. I I of 1994 seeks to achieye a laudable
purpose - ·socio-economic welfare and health care of the masses and is B
consistent with the National Population Policy.