2003 (7) TMI 714 - SC - Indian Laws

Implementation of policy decision - Challenged the constitutional validity of Section 175(1)(q) and 177(1) - validity of a law which enacts a disqualification operating in the field of elections on the touchstone of violation of fundamental rights - Violation of Article 14 - HELD THAT - We find ourselves in entire agreement, with the view so taken by the learned Judges whose eminence as jurists concerned with social welfare and social justice is recognized without any demur. Divorce unknown to ancient Hindu Law, rather considered abominable to Hindu religious belief, has been statutorily provided for Hindus and the Hindu marriage which was considered indissoluble is now capable of being dissolved or annulled by a decree of divorce or annulment. The reasoning adopted by the High Court of Bombay, in our opinion, applies fully to repel the contention of the petitioners even when we are examining the case from the point of view of Muslim Personal Law. We do not think that with the awareness which is arising in Indian women folk, they are so helpless as to be compelled to bear a third child even though they do not wish to do so. At the end, suffice it to say that 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 the operation of the disqualification it does not render it unconstitutional. The proceedings u/s 177(2) of the Act before the Director or the hearing in the appeals as the case may be shall now be concluded. In such of the cases where the persons proceeded against have not filed their replies or have not appealed against the decision of the Director in view of the interim order of this Court or the High Court having been secured by them they would be entitled to file reply or appeal, as the case may be, within 15 days from the date of this judgment if the time had not already expired before their initiating proceedings in the High Court or this Court. Such of the cases where defence in the proceedings u/s 177(2) of the Act was raised on the ground that the disqualification was not attracted on account of a child or more having been given in adoption, need not be re-opened as we have held that such a defence is not available. In petitions under Article 32 of the Constitution, directly filed in this Court, the only question arising for decision is the constitutional validity of the impugned provisions of the Haryana Act. There were some writ petitions filed in the High Court of Punjab and Haryana under Article 226/227 of the Constitution which have been dismissed, appeals by special leave have been filed there against. All the writ petitions and appeals shall also stand dismissed. In some of the matters the High Court had by interim order stayed the disqualification and in some cases proceedings before the Director u/s 177 (2) of the Act. With the decision in these writ petitions, the proceedings shall stand revived at the stage where they were. Within 15 days from the date of this judgment the person proceeded against, may file appeal against the decision of the Director, as the case may be. In such of the cases where defence to the proceedings u/s 177(2) of the Act was raised on the ground of disqualification, being not attracted on account of the child having been given in adoption, the defence shall not be available. The proceedings shall stand concluded and the disqualification shall apply. All the appeals and writ petitions be treated as disposed of in terms of the above said directions.

Summary

Issues Involved:
1. Whether the impugned provision is arbitrary, unreasonable, or discriminatory under Article 14.
2. Whether the impugned provision violates Articles 21 and 25.
3. Whether the disqualification under Section 175(1)(q) of Haryana Act No.11 of 1994 is constitutionally valid.

Summary:

Issue 1: Arbitrary, Unreasonable, or Discriminatory under Article 14

The court held that it is not permissible to compare a piece of legislation enacted by a State with another law enacted by Parliament or another State legislature, even if they are pari materia. The sources of power are different, and Article 14 does not authorize striking down a law of one State on the ground that its provisions are discriminatory in contrast with a law of another State. The court cited several precedents, including The State of Madhya Pradesh Vs. G.C. Mandawar and The Bar Council of Uttar Pradesh Vs. The State of U.P., to support this view. The court concluded that the impugned provision is neither arbitrary nor unreasonable nor discriminatory and is consistent with the national population policy, thus not violative of Article 14.

Issue 2: Violation of Articles 21 and 25

The court reiterated that the right to contest an election is not a fundamental right but a statutory right. The court cited several cases, including N.P. Ponnuswami Vs. Returning Officer and Jyoti Basu Vs. Debi Ghosal, to emphasize that the right to contest an election is subject to statutory limitations. The court held that the disqualification for having more than two living children does not contravene any fundamental right nor cross the limits of reasonability, and is conceptually devised in national interest.

Regarding Article 21, the court observed that the law laid down in Maneka Gandhi Vs. Union of India and Kasturi Lal Lakshmi Reddy Vs. State of Jammu and Kashmir is being misread. The court emphasized the importance of population control for socioeconomic progress and cited various statistics and reports to highlight the issue of population explosion. The court concluded that the impugned legislation does not violate the right to life and liberty guaranteed under Article 21.

Regarding Article 25, the court noted that the freedom of religion is subject to public order, morality, and health. The court held that the impugned provision does not violate Article 25 as it is a measure of social welfare and reform. The court cited several cases, including Dr. M. Ismail Faruqui Vs. Union of India and Sarla Mudgal Vs. Union of India, to support this view. The court concluded that the statutory provision casting disqualification on contesting for, or holding, an elective office is not violative of Article 25.

Issue 3: Constitutional Validity of Section 175(1)(q) of Haryana Act No.11 of 1994

The court held that the right to contest an election for any office in Panchayat is neither fundamental nor a common law right but a creature of statute, subject to qualifications and disqualifications enacted by legislation. The court emphasized that no religion in India mandates bigamy or polygamy or having more than one child as an obligation. The court concluded that the impugned legislation is in the interest of public order, morality, and health, and is constitutionally valid.

Conclusion:

The challenge to the constitutional validity of Section 175(1)(q) and Section 177(1) fails on all counts. Both provisions are held intra vires the Constitution, salutary, and in public interest. All petitions challenging the constitutional validity of the provisions are dismissed. The proceedings under Section 177(2) of the Act before the Director or in appeals shall now be concluded. The defence of disqualification not being attracted due to a child being given in adoption is not available. All writ petitions and civil appeals arising out of SLPs are dismissed.