POLICY OF PREJUDICE: POPULATION CONTROL BILLS IN LIGHT OF JAVED V STATE OF HARYANA

 Introduction

India has surpassed China to become the most populous country in the world. In light of this, the Finance Minister Nirmala Sitharaman announced the formation of a high-powered committee to study the challenges imposed by such rising population growth in her interim budget speech. Populating a whopping 1.5 million people, population control has always remained a burgeoning issue in the Indian political realm. As many as 35 private member bills have been brought in the parliament attempting to tackle the problem of population explosion along with population control bills by states like Uttar Pradesh and Assamto discourage excessive procreation by imposing restrictions on contesting in local body polls, access to benefits of government schemes and even government jobs.There have been a plethora of debates on the efficacy of such laws as population experts still regard spread of education and health facilities as better measures to combat population explosion especially in light of India’s reducing Total Fertility Rate (TFR) than such coercive laws.

This article, hence, seeks to examine the constitutionality of such population control bills in light of their restrictions on the right to contest in elections by providing an analysis of Javed v. State of Haryana which is a landmark case in this aspect. In this case, the petitioners have questioned the authority of the state legislature of Haryana in barring people with more than two children from contesting elections under article 14, 21and 25 of the Indian constitution.

1. Case Analysis

Facts of the case

A writ petition was filed challenging the validity of the provisions ofsections 175 (1) (q) and 177(1) of the Haryana Panchayati Raj Act,1994 which disqualify a person with more than two living children from contesting for the post of sarpanch, up-sarpanch or panch and the enforcement of such disqualification was to happen after one year of the commencement of the act. It also includes disqualifying a sitting member.

2. Issues of Law

• Is the classification of people arbitrary under Article 14 of the constitution?
• Does such disqualification have a nexus with the objective of the legislation?
• Is the provision discriminatory with respect to the law in other states?
• Is the provision violative of Article 21 and 25 of the constitution?

3. Arguments Advanced

Petitioners’ submissions:

• The petitioners’ contended that the act was violative of Article 14 of the constitution as the classification of people done was arbitrary and hence was taking the right to contest election elections from a certain class of persons.
• Another contention was with respect to relevance of the no of children one has on one’s competence to serve in the office of the panchayat.
• The act was argued to be discriminatory as it was contrary to the provisions of the legislatures of other states.
• It was further contended that the act was violative of Article 21 as it took away the personal liberty of citizens to decide the no of children they want and offour marriages aimed at procreation which won’t be possible under this act and thuswas also violative of Article 25 as personal law of Muslims allows performance of four marriages.

The State’s Submissions:

The state has argued about the validity of the rationality of the classification of people and how it is connected with the purpose of the act.

4. Judgement

The court while deciding on the violation of fundamental rights, held the right to contest elections to not be a fundamental right but only a statutory right. It held that the challenge to the provisions of the act fail on all counts and regarded them to be salutary and in public interest.

5. Ratio Decidendi

• The court while providing the rationale of its decision heldthe disqualification not violative under art 14 as it fulfilled the criteria of reasonable classification under which differentiation should be based on intelligible differentia leading to ‘equality among equals’ and such differentiation should have rational relation to the object sought to be achieved.
• Talking about authority to legislate, the court found the state legislature competent to enact laws for constitution of panchayats under art 243-C and the panchayats and the panchayats have the authority to implement schemes for economic development and social justice under art 243-G which read with the 11^th schedule also includes ‘family welfare’ in its objective which in turn includes family planning in its ambit.
• On the point of discrimination with other laws, the court held that the state was well within its rights to enact the law. On the question of expanding the scope of art 21, the court held that such expansion can only be done on reasonable grounds as the ‘requirements of reasonableness run like a golden thread through the entire fabric of fundamental rights.’
• The court held the act to be not violative of article 25 as it is subject to public order, morality and health and the protection from these provisions is only accorded to essential religious practices and polygamy is not an essential religious practice in Islam.

6. Critical Analysis

• ‘Right to contest elections’- a fundamental right: The court has refused to consider the right to contest in an election under the ambit of fundamental rights which facilitates the rationale of reasonable classification that has been provided. The larger rationale behind this assertion can be traced to contention around ‘right to vote’ as a fundamental right.In Kuldip Nayar Vs Union of India the SC had held the right to vote to be a statutory right and not a fundamental right. However, the court in multiple cases thereafter has called for its recognition as a fundamental right. The SC’s obiter in Anoop Baranwal Vs Union of Indiawas in the favour of recognising right to vote as a fundamental right. This view will also extend to the right to stand in elections as the right to vote and the right to contest in elections are inseparable in a democracy. The restriction to contest elections on account of a law made by the legislature is tantamount to disenfranchisement.
• Increased role of govt: In consideration of the above point, considering the disqualification valid on account of a rational nexus with the purpose of the legislation i.e., family planning allows the govt to decide who can stand in an election; the relevance of which if not justified in a democratic context significantly limits constitutional freedoms.
• Incongruent with the object of the Panchayati Raj act: The Panchayati Raj Act aimed at increasing political participation by providing the right of self-governance with a view to encourage certain activities and achieve certain goals but a bar on participation impinges on achieving these objectives.
• Problematic precedent: This case was referred by the Rajasthan High Court to reject petitions challenging the ordinance promulgated by the state govt imposing minimum educational qualification on election candidates. This restricts participation of people from poor socio-economic background,severely infringing constitutional rights.

III. The Prejudice Behind Population Control Bills

Population control bills stem from the idea of ‘population hinders development’ ingrained in the minds of our leaders which has time and again paved the way for such measures. Be it the infamous coercive family planning programmes adopted by former Prime Minister Indira Gandhi or the more recent UP Population (Control, Stabilisation and Welfare) Bill 2021 proposed by Chief Minister Yogi Adityanath, the solutions brought in by the leaders for combating India’s population problems suffer from similar problems.

Apart from the argument that India is suffering a ‘demographic momentum’ with a TFR of 2.1 and family sizes remaining constant across most states if not decreasing, such policies have a disproportionate impact on the disadvantaged section of society belonging to marginalised communities by restricting their access to governmental benefits.Women who do not have access to better health facilities, education and family support will suffer from a detrimental impact on their reproductive health, not to mention the rise of sex-selective abortions which continues to remain a reality in a society which is predominantly patriarchal.  Moreover, the disenfranchisement of citizens as a punishment for non-compliance should not be a population control measure in an electoral democracy. Instead of bringing population control bills aimed at disincentivising unregulated procreation by curtailing important fundamental rights, it is the need of the hour to recognise the governance paralysis which has failed to provide the requisite educational and health facilities which could have significantly restricted this problem in the first place.

CONCLUSION

To sum up the analysis, the Supreme Court in Javed v State of Haryanawhile endorsing the state’s view has sought to limit the scope of article 14 and 21 under the cloak of reasonable classification and rationality but has failed to recognise the indispensable nature of the right to contest elections in a democratic set up characterised by an incorrect application of the object-nexus test.

Also, the narrative of population explosion lagging India’s development behind needs to be laid to rest as it cannot justify bad governance. There is a need to formulate better policies aimed at disseminating better education, health facilities, awareness regarding family planning and safe contraceptive measures to counter population control and eventually enable us in deriving the demographic dividend.

This blog is authored by Tamishra Chakraborty, 1st year student, Hidayatullah National Law University, Raipur.

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