2004 (10) TMI 553 - SC - Indian Laws

The nature of amendment - Haryana Municipal (Amendment) Act, 1994 - whether it is at all retrospective in operation, and if not, whether the provision as amended by the Second Amendment applies to the appellant? Held that - Appeal dismissed. Keeping in view the general scope and purview of the statute, the remedy sought to be applied, the former state of law, the legislative intent and the employment of the expression for the word after the word upto shall be substituted in the text of the Second Amendment, we have no doubt in our mind that the Second Amendment has the effect of amending the text of First Amendment ever since the date of commencement of the First Amendment, i.e., April 5, 1994.

Summary

Issues Involved:
1. Interpretation and application of Section 13A of the Haryana Municipal Act, 1973, as amended by the Haryana Municipal (Amendment) Act, 1994 and the Haryana Municipal (Second Amendment) Act, 1994.
2. Retrospective operation of the Second Amendment.
3. Validity of the disqualification under the 'two child norm'.
4. Impact of the substitution of the word "after" with "upto" in the proviso to Section 13A(1)(c).

Detailed Analysis:

1. Interpretation and Application of Section 13A:
The Haryana Municipal (Amendment) Act, 1994, introduced Section 13A in the Haryana Municipal Act, 1973, which stipulated disqualification for membership in a municipality if a person had more than two living children. The proviso stated that a person having more than two children on or after the expiry of one year from the commencement of the Act would not be deemed disqualified. This amendment came into force on April 5, 1994.

2. Retrospective Operation of the Second Amendment:
The Haryana Municipal (Second Amendment) Act, 1994, substituted the word "after" with "upto" in the proviso to Section 13A(1)(c). The Supreme Court held that the Second Amendment was intended to be retrospective, aligning with the legislative intent of the First Amendment. The Court emphasized that the substitution aimed to correct a drafting error and was declaratory in nature, thus having retrospective effect from April 5, 1994.

3. Validity of the Disqualification under the 'Two Child Norm':
The constitutional validity of the 'two child norm' was upheld in Javed and Ors. Vs. State of Haryana and Ors., where the Court ruled that the disqualification is attracted no sooner a third child is born and is living after two living children. The Court reiterated that the right to contest an election is a statutory right, not a fundamental or common law right, and the legislature has the authority to impose qualifications and disqualifications.

4. Impact of the Substitution of the Word "After" with "Upto":
The substitution of "after" with "upto" in the proviso to Section 13A(1)(c) was necessary to prevent anomalous and absurd consequences. The Court noted that the original text led to an unintended temporary disqualification, which ceased after one year, contrary to the legislative intent. The Second Amendment rectified this by making the disqualification applicable to those having more than two children up to one year after the commencement of the Act, thus maintaining the legislative purpose of population control.

Conclusion:
The Supreme Court upheld the retrospective operation of the Second Amendment, confirming that it was intended to clarify and correct the original legislative provision. The appeal was dismissed, and the High Court's decision was maintained, affirming the disqualification of the appellant under the amended Section 13A(1)(c). The Court emphasized the legislative competence and the necessity of the amendment to prevent the social mischief of unchecked population growth.