The Telegraph
Since 1st March, 1999
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Legal sanctity for 2-child bar
- SC upholds law for elected representatives

New Delhi, July 30: In the strongest-ever endorsement of the two-child policy in public life, the Supreme Court today upheld a Haryana law barring people with more than two children from entry into panchayats and zilla parishads.

It rejected an argument by Muslim panchayat members that the law violated Article 25 of the Constitution, guaranteeing right to “freedom of conscience and free profession, practice and propagation of religion”. The law does not contravene Article 21 (right to life and liberty) and Article 14 (equality before law and equal application of the law), the court added.

A three-judge bench of Justices R.C. Lahoti, Ashok Bhan and Arun Kumar rejected hundreds of petitions from the state’s pradhans and uppradhans against the legislation.

The petitioners had pointed out that the norm was not applicable to MLAs and MPs — the Centre had proposed such a legislation, but nothing came of it because of lack of consensus — and argued that imposing it at the grassroots violated their fundamental rights.

The bench ruled that contesting an election was not a fundamental right and, “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”.

If the Centre decides to go ahead with its plan to amend the Representation of People’s Act and bring the two-child norm into force for MLAs and MPs, today’s judgment could be the touchstone of its legality. Laloo Prasad Yadav, with nine children, would be the most celebrated casualty of such a law.

The judges pointed out that India was the second most populous country and “the torrential increase of population” is one of the biggest hurdles to its progress.

Freedom under Article 25 “is subject to public order, morality and health”, the judges said. “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.”

“The Muslim law permits marrying four women. The personal law nowhere mandates or dictates it as a duty to perform four marriages,” the court said.

The judges made it clear the law could not be bypassed by giving away children in adoption. “If the person sought to be disqualified is responsible for or has given birth to children more than two who are living, merely because one or more of them are given in adoption, the disqualification is not wiped”.

But there is one exception to the rule. If the person sought to be disqualified already had one child and, in the second pregnancy, has twins, the law would not apply.

After passing the law, the Haryana government had sacked hundreds of panchayat and zilla parishad members. The court upheld the notices.

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