Javed and Ors v. State Of Haryana and Ors

AIR 2003 SC 3057, 2003 (4) AWC 2920 SC, 2003 (3) CTC 620
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This case is a writ position challenging the constitutionality of a law that prohibits anyone with more than two living children from holding certain public offices in the Panchayat raj local government system of the state of Haryana.

Note that the Panchayat raj system is the traditional local government system of areas in the Indian subcontinent.

The Court held that the law was constitutional.

The Court found that the law was not arbitrary as the two groups (those that do or don’t have more than two living children) are well-defined and that the classification is rationally related to the objective of promoting the family welfare/family planning program.

The Court found that the law promotes its overall objective as the limitation has a nexus with the role of the Panchayats. Haryana’s constitution devolves power to the Panchayats, and it is up to them to promote economic and social schemes, making it appropriate that they follow the guidelines of the family welfare/family planning program.

The Court found that the law was not discriminatory between Panchayats and other self-governance institutions that don’t have a similar requirement. As different organs of local self-government may have different powers. Likewise, the Court noted it irrelevant that no other state had passed a similar law.

The Court noted that running in an election is not a fundamental or common law right but a statutory right. Thus, fundamental rights don’t bear on restrictions imposed by the statute. Furthermore, the Court greatly emphasized the significant challenge India faces due to its dramatically rising population. It emphasized that controlling population is necessary to fulfill the State’s obligations and is part of the State’s fundamental duty of sustainable development.

The Court held that the law does not violate Article 25’s freedom of conscience or of religion, particularly for Muslims whose law allows for marriage of up to four women. The Court rejected the argument finding that the law falls within the exception clause in Article 25 for “public order, morality and health.” Furthermore, the Court noted that the freedom protects a religious practice or a positive tenet, not just something that is permitted by a religion. The Court also noted a long line of precedent showing that an action allowed under the Personal law can be overruled by statute.

Finally, the Court also noted that someone disqualified by this restriction could not give up a child for adoption to become qualified. The purpose of the law is population control, which is impacted by the total number of living children, not by whom they are raised.

“Fundamental rights are not to be read in isolation. They have to be read along with the Chapter on Directive Principles of State Policy and the Fundamental Duties enshrined in Article 51A. Under Article 38 the State shall strive to promote the welfare of the people and developing a social order empowered at distributive justice - social, economic and political. Under Article 47 the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular the constitutionally down-trodden. Under Article 47 the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. None of these lofty ideals can be achieved without controlling the population inasmuch as our materialistic resources are limited and the 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.” (Para. 39)

“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)

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