http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 19  

CASE NO.: Writ Petition (civil)  302 of 2001

PETITIONER: Javed & Ors.                                             

RESPONDENT: Vs. State of Haryana & Ors.                          

DATE OF JUDGMENT: 30/07/2003

BENCH: R.C. LAHOTI, ASHOK BHAN & ARUN KUMAR.

JUDGMENT:

J U D G M E N T

(With C.A. Nos._5355-5372, 5380-5381, 5382, 5385, 5386, 5397-5450/2003  @ SLP(C) Nos. 7527-7528/2001, WP(C) No. 269/2001, SLP(C)  Nos. 10551/2001, 10583/2001, 10725/2001, 11002/2001,  10729/2001, 13046/2001, 12313-12314/2001, 10996/2001,  WP(C) Nos. 316/2001, 315/2001, SLP(C) Nos. 12259/2001,  13595/2001, 13398/2001,  13430/2001, WP(C) Nos. 329/2001,  362/2001, 363/2001, 258/2001, SLP(C) Nos. 14547/2001,  14686/2001, 10189/2001, WP(C) Nos. 403/2001, 395/2001,  SLP(C) Nos. 16477/2001, 16483/2001, 18020/2001, WP(C) No.  420/2001, SLP(C) Nos. 17247/2001, 17497/2001, 16892/2001,  18557/2001, 18554/2001, WP(C) Nos. 438/2001, 475/2001,  507/2001, 508/2001, SLP(C) Nos. 19211/2001, 19139/2001,  WP(C) No. 495/2001, SLP(C) No. 19244/2001, WP(C) Nos.  567/2001, 560/2001, 559/2001, 561/2001, 538/2001,  539/2001, 579/2001, SLP(C) Nos.  22309/2001, 22278/2001,  447/2002, 12779/2001, WP(C) No. 19/2002, SLP(C) Nos.  22574/2001, 22672/2001, WP(C) Nos. 30/2002, 32/2002,  SLP(C) Nos. 497/2002, 13185/2001, 2188/2002, 1020/2002,  17156/2001, WP(C) Nos. 1/2002, 49/2002, 50/2002, 79/2002,  SLP(C) Nos. 1768/2002, 856/2002, 1483/2002, 1820/2002,  3028/2002, 2022/2002, 2237/2002, 22524/2001, 18636/2001,  3214/2002, 4409-4411/2002, WP(C) Nos. 94/2002, 130/2002,  93/2002, 127/2002, 144/2002, SLP(C) Nos. 5374/2002,  5517/2002, 6186/2002, WP(C) Nos. 169/2002, 168/2002,  128/2002, 177/2002, 112/2002, 71/2002, 91/2002, 178/2002,  SLP(C) Nos. 6427/2002, 5207/2002, WP(C) Nos. 184/2002,   SLP(C) Nos. 6397/2002, 6466/2002, WP(C) Nos. 183/2002,  185/2002, SLP(C) Nos. 13156/2001, 18263/2001, 6537/2002,  WP(C) No. 68/2002, SLP(C) No. 6769/2002, WP(C) Nos.  430/2001, 213/2002, 214/2002, 162/2002, 230/2002,  225/2002, 228/2002, SLP(C) Nos. 7542/2002, 7392/2002,  7223/2002, WP(C) No. 254/2002, SLP(C) No. 8631/2002,  WP(C) Nos. 296/2002, 280/2002, 281/2002, 305/2002, SLP(C)  Nos. 8632/2002, 9113/2002, 8963/2002, 8547/2002,  9246/2002, WP(C) Nos. 317/2002, 309/2002, C.A. No.  3629/2002, SLP(C) Nos. 10294/2002, 11755/2002, WP(C) No.  306/2002, C.A. No. 4053/2002, WP(C) Nos. 341/2002,  342/2002, 395/2002, C.A. No. 4066/2002, WP(C) Nos.  396/2002, 406/2002, C.A. Nos. 4501/2002, 4487/2002, WP(C)  Nos. 402/2002, 336/2002, 424/2002, 355/2002, 381/2002,  380/2002, 430/2002, 431/2002, 421/2002, 404/2002, C.A.  Nos. 5080/2002, 5081/2002, WP(C) Nos. 443/2002, 457/2002,  451/2002, C.A. No. 5270/2002, SLP(C) No. 11810/2002, WP(C)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 19  

Nos. 462/2002, 491/2002, 495/2002, C.A. Nos. 5902/2002,  5903/2002, WP(C) No. 278/2002, C.A. No. 7034/2002, WP(C)  Nos. 612/2002, 574/2002, 607/2002, 240/2002, 655/2002,  676/2002, 677/2002, 547/2002, 645/2002, 620/2002,  682/2002, 8/2003, 669/2002, C.A. Nos. 1187-1188/2003,  WP(C) Nos. 18/2003, 28/2003, 40/2003, C.A. No. 2033/2003,  WP(C) No. 63/2003, SLP(C) No. 3140/2003, WP(C) No.  121/2003, 123/2003, C.A. No. 2395/2003, WP(C)  Nos.149/2003, 193/2003, 195/2003, 204/2003, 155/2003,  161/2003, 188/2003, 245/2003, 247/2003, 248/2003,  250/2003, 257/2003, 268/2003, 270/2003, 277/2003,  281/2003 & SLP(C) No.10673/2003)

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 the provisions of Section 175(1)(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:- 175. (1) 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

(q)     has more than two living children :

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 such, 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 an application made to it by any person, or on  its own motion. Until the Director decides that the  vacancy, has arisen, the members shall not be  disqualified under sub-section (1) 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 appeal shall be final :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 19  

       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.11 of 1994 was enacted with various objectives  based on past 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  Seventy-third 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, 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.  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 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 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 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  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  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 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 19  

        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. 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.          Submissions (i),(ii) & (iii) The first three submissions are based on Article 14 of the  Constitution and, therefore, are taken up together for  consideration.

Is the classification arbitrary? It is well-settled that Article 14 forbids class legislation; it  does not 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 sought to be achieved by the  Statute in question.  The basis for classification may rest on  conditions which may be geographical or according to objects or  occupation or the like.  [See : Constitution Bench decision in    Budhan Choudhry and Ors. Vs. The State of Bihar, (1955) 1  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  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 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 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.   

       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 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 economic development and social  justice including those in relation to matters listed in the  Eleventh Schedule.  Entries 24 and 25 of the Eleventh Schedule  read:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 19  

       24.     Family Welfare.         25.     Women and child development. In pursuance to the powers given to the State Legislature to  enact laws the Haryana Legislature enacted the Haryana  Panchayati Raj Act, 1994 (Haryana Act No.11 of 1994).  Section  21 enumerates the functions and duties of Gram Panchayat.   Clause XIX (1) of Section 21 reads:         "XIX.   Public Health and Family Welfare -                 (1)  Implementation 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  provision wouldì¥Ã\201 7             Ã° ¿               Å\222ì   

bjbjU U                               *   7|  7|  qè                               Ã¿Ã¿          Ã¿Ã¿           Ã¿Ã¿                  l     Å\222        Å\222   Å\222       Å\222       Å\222        Å\222       Å\222                        Z       Z       Z   8   ’       (r)    d           K,  .   -       -   "    @       @       @       @        @       @       Ã®+      Ã°+       Ã°+      Ã°+      Ã°+      Ã°+      Ã°+       y-       (tm)/  :   Ã°+                       Å\222       @                        @       @       @       @        Ã°+      H(      Å\222       Å\222        @               @        ,      H(       H(      H(      @   j           Å\222       @       Å\222       @        Ã®+              H(                                                        @       Ã®+      H(  Â¦    H(              Ã®+      Å\222       Å\222                                                                 Ã®+       @            

  @ôë Ã-QÃ\203     Âº   Z       Âª"  Å¾   Ã®+               Ã®+       ,  0   K,       Ã®+      Ã\223/      H(      Ã\223/      Ã®+       H(                      Å\222        Å\222       Å\222       Å\222         Ã\231    IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION  

WRIT PETITION NO. 302 OF 2001

Javed & Ors.                                                   ... Petitioners                                          Versus

State of Haryana & Ors.                               ....Respondents

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 19  

(With C.A. Nos._____________________________________  ________________________________________________ ________________________________________________ ________________________________________________ @ SLP(C) Nos. 7527-7528/2001, WP(C) No. 269/2001, SLP(C)  Nos. 10551/2001, 10583/2001, 10725/2001, 11002/2001,  10729/2001, 13046/2001, 12313-12314/2001, 10996/2001,  WP(C) Nos. 316/2001, 315/2001, SLP(C) Nos. 12259/2001,  13595/2001, 13398/2001,  13430/2001, WP(C) Nos. 329/2001,  362/2001, 363/2001, 258/2001, SLP(C) Nos. 14547/2001,  14686/2001, 10189/2001, WP(C) Nos. 403/2001, 395/2001,  SLP(C) Nos. 16477/2001, 16483/2001, 18020/2001, WP(C) No.  420/2001, SLP(C) Nos. 17247/2001, 17497/2001, 16892/2001,  18557/2001, 18554/2001, WP(C) Nos. 438/2001, 475/2001,  507/2001, 508/2001, SLP(C) Nos. 19211/2001, 19139/2001,  WP(C) No. cessarily 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 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  Vs. G.C. Mandawar,  (1955) 2 SCR 225, held 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 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 Council of  Uttar Pradesh  Vs.  The State of U.P. and Anr. (1973) 1 SCC  261, State of Tamil Nadu and Ors. Vs. Ananthi Ammal and  Ors. (1995) 1 SCC 519 and Prabhakaran Nair and Ors. Vs.  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. 24 of 1973) 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.

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 resistance.

The implementation of policy decision in a phased manner  is suggestive neither of arbitrariness nor of discrimination.  In  Lalit Narayan Mishra Institute of Economic Development  and Social Change, Patna etc., Vs. State of Bihar and Ors.,  (1988) 2 SCC 433, the policy of nationalizing educational  institutes 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 19  

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. Vs. State of A.P. and Anr.  (1996) 2 SCC 498, are 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 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 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, 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 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 ensure dedicated involvement of  administrators at district and sub-district  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  throughout society."

No fault can be found with the State of Haryana having  enacted the 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.11 of 1994 seeks to achieve a laudable purpose - socio- economic welfare and health care of the masses and is  consistent with the national population policy.  It is not violative  of Article 14 of the Constitution.

Submission (iv) & (v) : the provision if it violates Article  21 or 25?

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 19  

Before testing the validity of the impugned legislation  from the viewpoint of Articles 21 and 25, in the light of the  submissions made, we take up first the more basic issue -  Whether it is at all permissible to test the validity of a law which  enacts a disqualification operating in the field of elections on the  touchstone of violation of fundamental rights?

Right to contest an election is neither a fundamental right  nor a common law right.  It is a right conferred by a Statute.  At  the most, in view of Part IX having been added in 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.  But even  so it cannot be equated with a fundamental right.  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  disqualifications which would disable a person from contesting  for, or holding, an elective statutory office.

Reiterating the law laid down in N.P. Ponnuswami Vs.  Returning Officer, Namakkal Constituency (1952) SCR 218,  and Jagan Nath Vs. Jaswant Singh and Ors., 1954 SCR 892,  this Court held in Jyoti Basu and Ors.  Vs. Debi Ghosal and  Ors., (1982) (1) SCC 691, -  "A right to elect, fundamental  though it is to democracy, is, anomalously enough, neither a  fundamental right nor a common law right.  It is pure and  simple, a statutory right.  So is the right to be elected.  So is the  right to dispute an election.  Outside of statute, there is no right  to elect, no right to be elected and no right to dispute an  election.  Statutory creations they are, and therefore, subject to  statutory limitation."

In Jumuna Prasad Mukhariya and Ors. Vs. Lachhi  Ram and Ors., (1955) 1 SCR 608, a candidate at the election  made a systematic appeal to voters of a particular caste to vote  for him on the basis of his caste through publishing and  circulating leaflets.  Sections 123(5) and 124(5) of the  Representation of the People Act, 1951, were challenged as  ultra vires of Article 19(1)(a) of the Constitution, submitting that  the provisions of Representation of the People Act interfered  with a citizen’s fundamental right to freedom of speech.   Repelling the contention, the Constitution Bench held that these  laws do not stop a man from speaking.  They merely provide  conditions which must be observed if he wants to enter  Parliament.  The right to stand as a candidate and contest an  election is not a common law right; it is a special right created  by statute and can only be exercised on the conditions laid down  by the statute.  The Fundamental Rights Chapter has no bearing  on a right like this created by statute.  The appellants have no  fundamental right to be elected and if they want to be elected  they must observe the rules.  If they prefer to exercise their  right of free speech outside these rules, the impugned sections  do not stop them.  In Sakhawat Ali Vs. The State of Orissa,  (1955) 1 SCR 1004, the appellant’s nomination paper for  election as a councillor of the Municipality was rejected on the  ground that he was employed as a legal practitioner against the  Municipality which was a disqualification under the relevant  Municipality Act.  It was contended that the disqualification  prescribed violated the appellant’s fundamental rights  guaranteed under Article 14 and 19(1)(g) of the Constitution.   The Constitution Bench held that the impugned provision has a  public purpose behind it, i.e., the purity of public life which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 19  

would be thwarted where there was a conflict between interest  and duty.  The Constitution Bench further held that the right of  the appellant to practise the profession of law guaranteed by  Article 19(1)(g) cannot be said to have been violated because in  laying down the disqualification the Municipal Act does not  prevent him from practising his profession of law; it only lays  down that if he wants to stand as a candidate for election he  shall not either be employed as a paid legal practitioner on  behalf of the Municipality or act as a legal practitioner against  the Municipality.  There is no fundamental right in any person to  stand as a candidate for election to the Municipality.  The only  fundamental right which is guaranteed is that of practising any  profession or carrying on any occupation, trade or business.   The impugned disqualification does not violate the latter right.   Primarily no fundamental right is violated and even assuming  that it be taken as a restriction on his right to practise his  profession of law, such restriction would be liable to be upheld  being reasonable and imposed in the interests of general public  for the preservation of purity in public life.

In our view, 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.  Rather it is a disqualification conceptually devised  in national interest.

With this general statement of law which has application  to Articles 21 and 25 both, we now proceed to test the  sustainability of attack on constitutional validity of impugned  legislation separately by reference to Articles 21 and 25.  

The disqualification if violates Article 21 ? Placing strong reliance on Mrs.Maneka Gandhi Vs.  Union of India & Anr. - (1978) 1 SCC 248, and M/s. Kasturu  Lal Lakshmi Reddy and Ors.  Vs. State of Jammu and  Kashmir and Anr. - (1980) 4 SCC 1, it was forcefully urged  that the fundamental right to life and personal liberty emanating  from Article 21 of the Constitution should be allowed to stretch  its span to its optimum so as to include in the compendious  term of the Article all the varieties of rights which go to make up  the personal liberty of man including the right to enjoy all the  materialistic pleasures and to procreate as many children as one  pleases.   

At the very outset we are constrained to observe that the  law laid down by this Court in the decisions relied on is either  being misread or read divorced of the context.  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 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 and these principles are  deducible from those very decisions which have been relied on  by the learned counsel for the petitioners.   

It is necessary to have a look at the population scenario,  of the world and of our own country.

India has the (dis)credit of being second only to China at  the top in the list of the 10 most-populous countries of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 19  

world.  As on 1.2.2000 the population of China was 1,277.6  million while the population of India as on 1.3.2001 was 1,027.0  million (Census of India, 2001, Series I, India - Paper I of 2001,  page 29).

The torrential increase in the population of the country is  one of the major hindrances in the pace of India’s socio- economic progress.  Everyday, about 50,000 persons are added  to the already large base of its population.  The  Karunakaran  Population Committee (1992-93) had proposed certain  disincentives for those who do not follow the norms of the  Development Model adopted by National Public Policy so as to  bring down the fertility rate.  It is a matter of regret that though  the Constitution of India is committed to social and economic  justice for all, yet India has entered the new millennium with  the largest number of illiterates in the world and the largest  number of people below the poverty line.  The laudable goals  spelt out in the Directive Principles of State Policy in the  Constitution of India can best be achieved if the population  explosion is checked effectively.  Therefore, the population  control assumes a central importance for providing social and  economic  justice to the people of India (Usha Tandon, Reader,  Faculty of Law, Delhi University, - Research Paper on Population  Stabilization, Delhi Law Review, Vol. XXIII 2001, pp.125-131).

In the words of Bertand Russell, "Population explosion is  more dangerous than Hydrogen Bomb."  This explosive  population over-growth is not confined to a particular country  but it is a global phenomenon.  India being the largest secular  democracy has the population problem going side by side and  directly impacting on its per capita income, and resulting in  shortfall of food grains in spite of the green revolution, and has  hampered improvement on the educational front and has caused  swelling of unemployment numbers, creating a new class of  pavement and slum-dwellers and leading to congestion in urban  areas due to the migration of rural poor. (Paper by B.K. Raina in  Population Policy and the Law, 1992, edited by  B.P. Singh  Sehgal, page 52).

In the beginning of this century, the world population  crossed six billions, of  which India alone accounts for one billion  (17 per cent) in a land area of 2.5 per cent of the world area.   The global annual increase of population is 80 millions.  Out of  this, India’s growth share is over 18 millions (23 per cent),  equivalent to the total population of Australia, which has two  and a half times the land space of India.  In other words, India  is growing at the alarming rate of one Australia every year and  will be the most densely populous country in the world,  outbeating China, which ranks first, with a land area thrice this  country’s. China can withstand the growth for a few years more,  but not India, with a constricted land space.  Here, the per  capita crop land is the lowest in the world, which is also  shrinking fast.  If this falls below the minimum sustainable level,  people can no longer feed themselves and shall become  dependent on imported food, provided there are nations with  exportable surpluses.  Perhaps, this may lead to famine and  abnormal conditions in some parts of the country. (Source -  Population Challenge, Arcot Easwaran, The Hindu, dated  8.7.2003).  It is emphasized that as the population grows  rapidly there is a  corresponding decrease in per capita water  and food.  Women in many places trek long distances in search  of water which distances would increase every next year on  account of excessive ground water withdrawals catering to the  need of the increasing population, resulting in lowering the  levels of water tables.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 19  

Arcot Easwaran has quoted the China example.  China,  the most populous country in the world, has been able to control  its growth rate by adopting the ’carrot and stick’ rule.  Attractive  incentives in the field of education and employment were  provided to the couples following the ’one-child norm’.  At the  same time drastic disincentives were  cast on the couples  breaching ’one-child norm’ which even included penal action.   India being a democratic country has so far not chosen to go  beyond casting minimal disincentives and has not embarked  upon penalizing procreation of children beyond a particular limit.   However, it has to be remembered that complacence in  controlling population in the name of democracy is too heavy a  price to pay, allowing the nation to drift towards disaster.   

The growing population of India had alarmed the Indian  leadership even before India achieved independence.  In 1940  the sub-Committee on Population, appointed by the National  Planning Committee set up by the President of the Indian  National Congress (Pandit Jawaharlal Nehru), considered ’family  planning and a limitation of children’ essential for the interests  of social economy, family happiness and national planning.  The  committee recommended the establishment of birth control   clinics and other necessary measures such as raising the age at  marriage and a eugenic sterilization programme.   A committee  on population set up by the National Development Council in  1991, in the wake of the census result, also proposed the  formulation of a national policy. (Source - Seminar, March  2002, page 25)  

Every successive Five Year Plan has given prominence to  a population policy.  In the first draft of the First Five Year Plan  (1951-56) the Planning Commission recognized that population  policy  was essential to planning and that family planning was a  step forward for improvement in health, particularly that of  mothers and children.  The Second Five Year Plan (1956-61)  emphasized the method of sterilization. A central Family  Planning Board was also constituted in 1956 for the purpose.   The Fourth Five Year Plan (1969-74) placed the family planning  programme, "as one amongst items of the highest national  priority".  The Seventh Five Year Plan (1985-86 to 1990-91) has  underlined "the importance of population control for the success  of the plan programme...."  But, despite all such exhortations,  "the fact remains that the rate of population growth has not  moved one bit from the level of 33 per thousand reached in  1979.  And in many cases, even the reduced targets set since  then have not been realised. (Population Policy and the Law,  ibid, pages 44-46).  

The above facts and excerpts highlight the problem of  population explosion as a national and global issue and provide  justification for priority in policy-oriented legislations wherever  needed.

None of the petitioners has  disputed the legislative  competence of the State of Haryana to enact the legislation.  Incidentally, it may be stated that Seventh Schedule, List II -  State List, Entry 5 speaks of ’Local government, that is to say,  the constitution and powers of municipal corporations,  improvement trusts, district boards, mining settlement  authorities and other local authorities for the purpose of local  self-government or village administration’.  Entry 6 speaks of  ’Public health and sanitation’ inter alia.  In List III - Concurrent  List, Entry 20A was added which reads ’Population control and  family planning’.  The legislation is within the permitted field of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 19  

State subjects.  Article 243C makes provision for the Legislature  of a State enacting laws with respect to Constitution of  Panchayats.  Article 243F in Part IX of the Constitution itself  provides that a person shall be disqualified for being chosen as,  and for being, a member of Panchayat if he is so disqualified  by  or under any law made by the Legislature of the State.  Article  243G casts one of the responsibilities of Panchayats as  preparation of plans and implementation of schemes for  economic development and social justice.  Some of the schemes  that can be entrusted to Panchayats, as spelt out by Article  243G read with Eleventh Schedule is - Scheme for economic  development and social justice 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.  Nothing more needs to be said  to demonstrate that 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 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.  Who can better enable the  discharge of functions and duties and such constitutional goals  being achieved than the leaders of Panchayats themselves  taking a lead and setting an example.  

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.

The menace of growing population was judicially noticed  and constitutional validity of legislative means to check the  population was upheld in Air India Vs. Nergesh Meerza and  Ors. (1981) 4 SCC 335.  The Court found no fault with the rule  which would terminate the services of Air Hostesses on the third  pregnancy with two existing children, and held the rule both  salutary and reasonable for two reasons - "In the first place, the  provision preventing a third pregnancy with two existing  children would be in the larger interest of the health of the Air  Hostess concerned as also for the good upbringing of the  children.  Secondly, ......... when the entire world is faced with  the problem of population explosion it will not only be desirable  but absolutely essential for every country to see that the family  planning programme is not only whipped up but maintained at  sufficient levels so as to meet the danger of over-population  which, if not controlled, may lead to serious social and economic  problems throughout the world."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 19  

       To say the least it is futile to assume or urge that the  impugned legislation violates right to life and liberty guaranteed  under Article 21 in any of the meanings howsoever expanded   the meanings may be.

The provision if it violates Article 25 ?

It was then submitted that the personal law of muslims  permits performance of marriages with 4 women, obviously for  the purpose of procreating children and any restriction thereon  would be violative of right to freedom of religion enshrined in  Article 25 of the Constitution.  The relevant part of Article 25  reads as under:- 25. Freedom of conscience and free  profession, practice and propagation of  religion. - (1)   Subject to public order, morality  and health and to the other provisions of this Part,  all persons  are equally entitled to freedom of  conscience and the right freely to profess, practise  and propagate religion.

(2)     Nothing in this article shall affect the  operation of any existing law or prevent the State  from making any law -     (a) regulating or restricting any  economic, financial, political or other secular  activity which may be associated with  religious practice;          (b) providing for social welfare and  reform or the throwing open of Hindu  religious institutions of a public character to  all classes and sections of Hindus.

A bare reading of this Article deprives the submission of  all its force, vigour and charm.  The freedom is subject to public  order, morality and health.  So the Article itself permits a  legislation in the interest of social welfare and reform which are  obviously part and parcel of public order, national morality and  the collective health of the nation’s people.

The Muslim Law permits  marrying four women.  The  personal law nowhere mandates or dictates it as a duty to  perform four marriages.  No religious scripture or authority has  been brought to our notice which provides that marrying less  than four women or abstaining from procreating a child from  each and every wife in case of permitted bigamy or polygamy  would be irreligious or offensive to the dictates of the religion.   In our view, the question   of the impugned provision of  Haryana Act being violative of Article  25 does not arise.  We  may have a reference to a few decided cases.  

The meaning of religion - the term as employed in Article  25 and the nature of protection conferred by Article 25 stands  settled by the pronouncement of the Constitution Bench decision  in Dr. M. Ismail Faruqui and Ors. Vs. Union of India & Ors.   (1994) 6 SCC 360.  The protection under Articles 25 and 26 of  the Constitution is with respect to religious practice which forms  an essential and integral part of the religion.     A practice may  be a religious practice but not an essential and  integral part of  practice of that religion.  The latter is not protected by Article  25.

In Sarla Mudgal (Smt.), President, Kalyani and Ors.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 19  

Vs. Union of India and Ors. (1995) 3 SCC 635, this Court has  judicially noticed it being acclaimed in the United States of  America that the practice of polygamy is injurious to ’public  morals’, even though some religions may make it obligatory or  desirable for its followers.  The Court held that polygamy can be  superseded by the State just as it can prohibit human sacrifice  or the practice of Sati in the interest of public order.  The  Personal Law operates under the authority of the legislation and  not under the religion and, therefore, the Personal Law can  always be superseded or supplemented by legislation.

In Mohd. Ahmed Khan Vs. Shah Bano Begum and  Ors., (1985) 2 SCC 556, the Constitution Bench was confronted  with a canvassed conflict between the provisions of Section 125  of Cr.P.C. and Muslim Personal Law.  The question was: when  the Personal Law makes a provision for maintenance to a  divorced wife, the provision for maintenance under Section 125  of Cr.P.C. would run in conflict with the Personal Law.  The  Constitution Bench laid down two principles; firstly, the two  provisions operate in different fields and, therefore, there is no  conflict and; secondly, even if there is a conflict it should be set  at rest by holding that the statutory law will prevail over the  Personal Law of the parties, in cases where they are in conflict.

In Mohd. Hanif Quareshi & Ors. Vs. The State of  Bihar, (1959) SCR 629, the State Legislation placing a total ban  on cow slaughter was under challenge.  One of the submissions  made was that such a ban offended Article 25 of the  Constitution because such ban came in the way of the sacrifice  of a cow on a particular day where it was considered to be  religious by Muslims.  Having made a review of various religious  books, the Court concluded that it did not appear to be  obligatory that a person must sacrifice a cow.  It was optional  for a Muslim to do so.  The fact of an option seems to run  counter to the notion of an obligatory duty.  Many Muslims do  not sacrifice a cow on the Id day.  As it was not proved that the  sacrifice of a cow on a particular day was an obligatory overt act  for a Mussalman for the performance of his religious beliefs and  ideas, it could not be held that a total ban on the slaughter of  cows ran counter to Article 25 of the Constitution.

In The State of Bombay Vs. Narasu Appa Mali, AIR  1952 Bombay 84, the constitutional validity of the Bombay  Prevention of Hindu Bigamous Marriages Act (XXV (25) of 1946)  was challenged on the ground of violation of Article 14, 15 and  25 of the Constitution.  A Division Bench, consisting of Chief  Justice Chagla and Justice Gajendragadkar (as His Lordship then  was), held -  "A sharp distinction must be drawn between  religious faith and belief and religious  practices.  What the State protects is  religious faith and belief.  If religious  practices run counter to public order,  morality or health or a policy of social  welfare upon which the State has embarked,  then the religious practices must give way  before the good of the people of the State as  a whole."   

       Their Lordships quoted from American decisions that the  laws are made for the government of actions, and while they  cannot interfere with mere religious belief and opinions, they  may with practices.  Their Lordships found it difficult to accept  the proposition that polygamy is an integral part of Hindu

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 19  

religion though Hindu religions recognizes the necessity of a son  for religious efficacy and spiritual salvation.  However,  proceeding on an assumption that polygamy is recognized  institution according to Hindu religious practice, their Lordships  stated in no uncertain terms -  "The right of the State to legislate on  questions relating to marriage cannot be  disputed.  Marriage is undoubtedly a social  institution an institution in which the State is  vitally interested.  Although there may not  be universal recognition of the fact, still a  very large volume of opinion in the world  today admits that monogamy is a very  desirable and praiseworthy institution.  If,  therefore, the State of Bombay compels  Hindus to become monogamists, it is a  measure of social reform, and if it is a  measure of social reform then the State is  empowered to legislate with regard to social  reform under Article 25(2)(b)  notwithstanding the fact that it may interfere  with the right of a citizen freely to profess,  practise and propagate religion."

What constitutes social reform?   Is it for the legislature  to decide the same?  Their Lordships held in  Narasu Appa  Mali’s case (supra) that the will expressed by the legislature,  constituted by the chosen representatives of the people in a  democracy who are supposed to be responsible for the welfare  of the State, is the will of the people and if they lay down the  policy which a State should pursue such as when the legislature  in its wisdom has come to the conclusion that monogamy tends  to the welfare of the State, then it is not for the Courts of Law  to sit in judgment upon that decision.  Such legislation does not  contravene Article 25(1) of the Constitution.

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.

The Division Bench of the Bombay High Court in Narasu  Appa Mali (supra) also had an occasion to examine the validity  of the legislation when it was sought to be implemented not in  one go but gradually.  Their Lordships held - "Article 14 does  not lay down that any legislation that the State may embark  upon must necessarily be of an all-embracing character.  The  State may rightly decide to bring about social reform by stages  and the stages may be territorial or they may be community- wise."

Rule 21 of the Central Civil Services (Conduct) Rules,  1964 restrains any government servant having a living spouse  from entering into or contracting a marriage with any person.  A  similar provision is to be found in several service rules framed  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 19  

by the States governing the conduct of their civil servants.  No  decided case of this court has been brought to our notice  wherein the constitutional validity of such provisions may have  been put in issue on the ground of violating the freedom of  religion under Article 25 or the freedom of personal life and  liberty under Article 21.  Such a challenge was never laid before  this Court apparently because of its futility.  However, a few  decisions by the High Courts may be noticed.

In Badruddin Vs. Aisha Begam, 1957 ALJ 300, the  Allahabad High Court ruled that though the personal law of  muslims permitted having as many as four wives but it could  not be said that having more than one wife is a part of religion.   Neither is it made obligatory by religion nor is it a  matter of  freedom of conscience.  Any law in favour of monogamy does  not interfere with the right to profess, practise and propagate  religion and does not involve any violation of Article 25 of the  Constitution.

In Smt. R.A. Pathan Vs. Director of Technical  Education & Ors.  - 1981 (22) GLR 289, having analysed in  depth the tenets of Muslim personal law and its base in religion,  a Division Bench of Gujarat High Court held that a religious  practice ordinarily  connotes a mandate which a faithful must  carry out.  What is permissive under the scripture cannot be  equated with a mandate which may amount to a religious  practice.  Therefore, there is nothing in the extract of the  Quaranic text (cited before the Court) that  contracting plural  marriages is a  matter of religious practice amongst Muslims.  A  bigamous marriage amongst Muslims is neither a religious  practice nor a religious belief and certainly not a religious  injunction or mandate.  The question of attracting Articles  15(1), 25(1) or 26(b) to protect a bigamous marriage and in the  name of religion does not arise.

In Ram Prasad Seth Vs. State of Uttar Pradesh and  Ors. (1957 L.L.J. (Vol.II) 172 = AIR 1961 Allahabad 334) a  learned single Judge held that the act of performing a second  marriage during the lifetime of one’s wife cannot be regarded as  an integral part of Hindu religion nor could it be regarded as  practising or professing or propagating Hindu religion.  Even if  bigamy be regarded as an integral part of Hindu religion, the  Rule 27 of the Government Servants’ Conduct Rules requiring  permission of the Government before contracting such marriage  must be held to come under the protection of Article 25(2)(b) of  the Constitution.   

The law has been correctly stated  by the High Court of  Allahabad, Bombay and Gujarat, in the cases cited hereinabove  and we record our respectful approval thereof.  The principles  stated therein are applicable to all religions practised by  whichever religious groups and sects in India.

In our view, a statutory provision casting disqualification  on contesting for, or holding, an elective office is not violative of  Article 25 of the Constitution.

Looked at from any angle, the challenge to the  constitutional validity of Section 175 (1)(q) and Section 177(1)  must fail.  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 19  

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.

If anyone chooses to have more living children than two,  he is free to do so under the law as it stands now but then he  should pay a little price and that is of depriving himself from  holding an office in Panchayat in the State of Haryana.  There is  nothing illegal about it and certainly no unconstitutionality  attaches to it.          Some incidental questions It was submitted that the enactment has created serious  problems in the rural population as couples desirous of  contesting an election but having living children more than two,  are feeling compelled to give them in adoption.  Subject to what  has already been stated hereinabove, we may add that  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 disqualification we shall have to keep in view the evil  sought to be cured and purpose sought to be achieved by the  enactment.  If the person sought to be disqualified is  responsible for or has given birth to children more than two who  are living then merely because one or more of them are given in  adoption the disqualification is not wiped out.

It was also submitted that the impugned disqualification  would hit the women worst, inasmuch as in the Indian society  they have no independence and they almost helplessly bear a  third child if their husbands want them to do so.  This  contention need not detain us any longer.  A male who compels  his wife to bear a third child would disqualify not only his wife  but himself as well.  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.

Hypothetical examples were tried to be floated across the  bar by submitting that there may be cases where triplets are  born or twins are born on the second pregnancy and  consequently both of the parents would incur disqualification for  reasons beyond their control or just by freak of divinity.  Such  are not normal cases and the validity of the law cannot be  tested by applying it to abnormal situations.  Exceptions do not  make the rule nor render the rule irrelevant.  One swallow does  not make a summer; a single instance or indicator of something  is not necessarily significant.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 19  

Conclusion

       The challenge to the constitutional validity of Section  175(1)(q) and 177(1) fails on all the counts. Both the provisions  are held, intra vires the Constitution.  The provisions are  salutary and in public interest.  All the petitions which challenge  the constitutional validity of the abovesaid provisions are held  liable to be dismissed.  

       Certain consequential orders would be needed.  The  matters in this batch of hundreds of petitions can broadly be  divided into a few categories.  There are writ petitions under  Article 32 of the Constitution directly filed in this Court wherein  the only question  arising for decision is the constitutional  validity of the impugned provisions of the Haryana Act.  There  were many a writ petitions filed in the High Court of Punjab &  Haryana under Articles 226/227 of the Constitution which have  been dismissed and appeals by special leave have been filed in  this Court against the decisions of the High Court.  The writ  petitions, whether in this  Court or in the High Court, were filed  at different stages of the proceedings.  In some of the matters  the High Court had refused to stay by interim order the  disqualification or the proceedings relating to disqualification  pending before the Director under Section 177(2) of the Act.   With the decision in these writ petitions and the appeals arising  out of SLPs the proceedings shall stand revived at the stage at  which they were, excepting in those matters where they stand  already concluded.  The proceedings under Section 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 under Section  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.

       Subject to the abovesaid directions all the writ petitions  and civil appeals arising out of SLPs are dismissed.

SLP (C) No.22312 of 2001         Though this petition was heard with a batch of petitions on  17.07.2003, raising constitutional validity of certain provisions of  Haryana Panchayati Raj Act, 1994, no such question is raised in this  petition.  List for hearing on 04.08.2003.

       There are three sets of petitions.  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 19  

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 under Section 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 under Section 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.  

49