Case Analysis:- Javed vs state of Haryana
Authored by Harsh Raj
Bench: R Lahoti, A Bhan, A Kumar
AIR 2003 SC 3057
2003 (4) AWC 2920 SC
2003 (3) CTC 620
This paper is the critical analysis of the case of Javed vs State of Haryana. The court in this case upheld the provision of debarring the person from contesting the election and holding the office from the Panchayati system if the person procreates more than 2 children. The court upheld the provision of the Act while citing the reason that the Act is made for the benefits of the general public. The Court further said that provision of the Act was only to popularize the family planning and it was purely made in public Interest.
A law is passed by the Haryana government called Haryana Panchayati Raj Act, 1994 with the intent to regularize the Panchayati Raj system in Haryana and to manage its structure and various other important functions. The law provides that any person who will have more than two children after the one 1 year of commencement of the Act will be barred by the director to hold any office of Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad. However, any person who already has more than two children on or before the 1 year of commencement of Act will not be disqualified from contesting the election or holding the office.
Laws Related to the case
Article 14: This article guarantees the equality before law and equal protection of law in the territory of India to every individual.
Article 21: No person shall be deprived of his life or personal liberty except any procedure laid down by law.
Article 25: All persons are entitled to freedom of conscience and they have the right to freely profess, practise and propagate the religion they believe in.
Article 243G: Constitution endows enough power to the Panchayats to let them function as an institution of self government. The constitution empowers it to implement the various schemes of social justice and economic development as listed in entry 24 & 25 of 11th schedule i.e family welfare & women and child development.
Facts of the case
The Haryana government passed an Act called Haryana Panchayati Raj Act, 1994. This case is a writ petition challenging the constitutionality of the law that prohibits anyone with more than two living children from holding certain public offices in the Panchayati Raj system in the state of Haryana.
The section 175(1)(q) of the said Act provides that No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad who has more than 2 living children however 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 disqualified under the said provision of the Act. Section 177(1) provides that any member of a Gram Panchayat, Panchayat Samiti or Zila Parishad who is elected and is subject to any of the disqualifications mentioned in Section 175 at the time of election or during the tenure shall be disqualified from continuing to be at his designation and his office shall become vacant.
The main objective of the government is to disqualify persons for election of Panchayats at each level, having more than 2 children after one year of the date of commencement of this Act, to advertise the Family Planning Programme. Some persons (who are the writ petitioners or appellants in this batch of matters) were disqualified from contesting the elections and from continuing the office of Panch or Sarpanch in view of the disqualification as provided by Section 175(1)(q) and Section 177(1) of the Act. The writ was filed to question the validity of these two provisions of the said Act.
Issues in the case
There were five issues recognised by the court from the various writ petitions filed by different people regarding this Act.The grounds for challenging the constitutional validity of the abovesaid provision are as:
The several provisions of the Act is arbitrary and hence is violative of Article 14 of the Constitution;
The disqualification from contesting the election or terminating the service during the tenure does not serve the purpose of popularizing the family planning programme which is sought by the legislation;
The provision is discriminatory in nature as it discriminates the services of the individual on the basis of children he/she has.
The provision adversely affects the fundamental right of personal life and liberty granted by the constitution to every individual in regard to freedom and having as many children as one chooses.
The provision interferes with freedom of religion as a muslim man are permitted to marry with four women and it is possible that the man procreates 4 children from each wife and hence this violates Article 25 of the Constitution.
The Court held the law as constitutional. The Court found the law as not arbitrary as the two groups who have two children or who have more than two living children are well-defined and that the classification is done on the basis of intelligible differentia as per the objective of promoting the family planning program. The Court also deduced that the law promotes objective as the law has nexus with the role of the Panchayats in promoting economic and social schemes and to ensure that they follow family planning programs.
The Court found that contesting in an election is not a fundamental right but it is a statutory right and hence restrictions can be imposed on such rights by the statute. The Court greatly emphasized the significant challenge India faces due to its population explosion. Court emphasized that controlling the population is necessary to fulfill the dream of sustainable development of our country.
The Court held that the law does not violate freedom of conscience or of religion, particularly for Muslims as it falls within the exception clause in Article 25. Furthermore, the Court noted that freedom protects a religious practice or a positive tenet, not just everything which is permitted in a religion.
The case was rather decided on the ground that it is made in the interest of public policy. The case was not critically analysed on the basis of raw facts and laws . The discrimination which is done by the provisions in the Act on the basis of number of children could never be justified by using the term Intelligible differentia. The Act is rather like a punishment to those who have more than 2 children rather than a public policy in their favour. Yes, we know the importance of sustainable development and the effects of population explosion but it doesn't mean we need to follow sustainability blindly, it may cause much more bad to us than any good. It needs to be achieved only in the long run and one single legislature which only involves such a few people cannot fulfill such a great cause.
The court interpreted the whole issue in this case in light of public policy and missed the broader perspective of the larger benefits and its effect. The provision in the Haryana panchayati Raj system Act, cannot have such larger implications which is sought to be achieved by this Act. In a nutshell, I would conclude myself by saying that the government misused its power to interfere with the private affairs of the individual in the name of larger public interest.
Mahendra Pal Singh, V.N. Shukla’s Constitution of India, (Eastern Book Company, 2019).
P. M Bakshi, The Constitution of India, Universal Law Publishing, 2019.