The two-child qualification for panchayat officials is gender-insensitive
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COMMENTS 
In upholding Haryana's legislation disqualifying men and women with more than two children from holding office at the panchayat level, the Supreme Court of India may be compromising the rights of women. This is the first in a new series on the crucial impact of judicial interventions on India's women by Rakesh Shukla
Introduction to the series
The National Commission for Women recently pleaded that it could not do much to help a woman whose vengeful husband, who was HIV-positive, was threatening to infect her: there was no law pertaining to such a situation. Laws are made by the legislature. The failure of the legislature to engage with emerging social problems and make laws to deal with these situations is today beyond controversy.
It is because of the lack of will on the part of the legislature to enact laws in areas such as sexual harassment at the workplace that the Supreme Court has had to step in to try and fill the gap. The famous Vishakha case accorded judicial recognition to sexual harassment at the workplace for the first time. In fact, the court laid down certain guidelines and also framed a mechanism to check the widespread harassment of women in offices, canteens, corridors and elevators in the places where they work. Exercising the wide powers conferred under the Constitution, the court made it mandatory for all employers to set up committees to check sexual harassment at the workplace. The judgment also made it compulsory to have representatives of women’s groups and non-government organisations on the committee, to ensure gender-sensitive functioning of the system.
The failure of the legislature is compounded by the apathy of the executive in implementing laws that have been passed against gender discrimination, such as the Equal Remuneration Act. There is, for instance, a complete absence of any attempt to implement the Dowry Prohibition Act. Again, it is the judiciary that has stepped in, requiring that the assets of persons entering government service be declared as a check against the dowry menace.
Thus, increasingly, judicial interventions are playing a crucial role in the lives of thousands of women. Judgments are given in the particular facts and circumstances of a case, but the law enunciated is of general application. This series of articles will look at judgments in the following broad areas:
- Marriage/divorce, custody, guardianship
- Violence against women: domestic violence, dowry harassment/death, suicide, rape, sexual harassment
- Inheritance, land rights
- Women and criminal law
- Prostitution/sex work
The two-child qualifier
The Haryana Panchayati Raj Act was passed by the Haryana State Assembly in 1994 and became law. It laid down that a person with more than two living children could not become or continue as sarpanch, up-sarpanch or panch of a gram panchayat, or member of a panchayat samiti or zilla parishad. However, anyone with more than two children at the time of the enactment and up to the expiry of one year from commencement would not be deemed disqualified. The Act also declared that if an already-elected person has another child one year after commencement, and exceeds the norm of two living children during the term for which he/she is elected, then he/she will be disqualified and the post will become vacant. The one-year exemption was granted in case of conception just before or around the time of commencement.
Under the provisions of the Act, several persons, including women, were disqualified or proceeded against for disqualification either from contesting elections or from continuing in the office of panch/sarpanch.
The constitutional validity of Sections 175 (1) (q) and 177 (1) of the Act, which spelt out the disqualification, was challenged on the grounds that it was arbitrary, discriminatory and violative of the fundamental rights to equality under Article 14, life and liberty under Article 21, and freedom of religion under Article 25 of the Constitution. It was also contended that the number of children a person has does not affect his/her capacity, competence or quality to serve in any office of a panchayat, and that the disqualification has no connection with the purpose sought to be achieved by the Panchayati Raj Act.
In a judgment, reported as Javed and others versus State of Haryana, 2003 (8) SCC 369, the Supreme Court observed that reasonable classification based on intelligible differentia, which distinguishes persons or things grouped together from others left out of the group, was permissible for the purpose of legislation. However, the parameters chosen must have a rational relation to the objective sought to be achieved by the legislation. Applying the criterion, the court held that persons with more than two living children were clearly distinguishable from persons not having more than two living children, and the classification was thus based on intelligible differentia.
The court then considered whether the disqualification had any nexus or connection with the purpose sought to be achieved by the legislation. The judgment takes note of the provisions of Article 243-G of the Constitution which empowers the legislature of a state to endow panchayats with powers and the authority necessary to function as institutions of self-government. Clause (b) of Article 243-G provides that gram panchayats be entrusted with the power to implement schemes for economic development and social justice and in relation to matters listed in the Eleventh Schedule of the Constitution. Entries 24 and 25 of the Eleventh Schedule are ‘family welfare’ and ‘women and child development’ respectively.
Exercising the powers given to state legislatures, the Haryana legislature enacted the Haryana Panchayati Raj Act, 1994. Section 21 of the Act gives the functions and duties of gram panchayats, and Clause XIX (1) specifies ‘public health and family welfare - (1) implementation of family welfare programme’. Family welfare was held by the court to include family planning as well. The court observed that to carry out the purpose of the Act as well as the mandate of the Constitution, the legislature had made a provision making a person with more than two living children ineligible for the post of panch or sarpanch. The disqualification was held to have a nexus with the purpose sought to be achieved by the Act, and was declared valid as family planning, as a part of family welfare was part of the functions and duties of panchayats. The court also refused to strike down the provision on grounds that a similar disqualification was not present for other elective offices or state legislatures and Parliament.
Dealing with the challenge to the provision on the grounds that it violates life and liberty under Article 21, the court puts forward a long discourse about the “torrential increase in the population of the country”. Sprinkling it with selective quotes like “population explosion is more dangerous than (a) hydrogen bomb,” the court, rather than engaging with the socio-economic realities as to why people have children, targets population as the root of all ills in society. Unemployment, congestion in urban areas, slums, non-attainment of goals spelt out in the Constitution are all problems laid at the door of population increase. In fact, the judgment refers approvingly to a National Planning Committee set up by the Congress in 1940 that recommends, along with the establishment of birth-control clinics, other necessary measures such as raising the age of marriage and “a eugenic sterilisation programme”. Lack of social welfare measures, infant and child mortality, children as economic security, especially to people from lower socio-economic backgrounds, are concepts that do not seem to matter to the court while examining the issue of population and forming opinions and judgments.
The court observes that the disqualification is conceptually devised in the national interest, and it is futile to urge that the impugned legislation violates the right to life and liberty under Article 21.
The submission that women often do not have a say in bearing a third child if the husband wants them to, seems to have been rejected on the basis of specious reasoning. The desire for a male child in our society is beyond controversy. The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, passed in 1994, is the result of a sustained campaign against the selective abortion of female foetuses. The tardy implementation of this Act, due to the preference for a male child, has been taken judicial note of in the Centre for Enquiry into Health and Allied Themes (CEHAT) versus Union of India judgment of 2003. Again, a family with two, three or four daughters in quest of a son is not an uncommon phenomenon in India.
The gender-insensitive manner of disposal of the submission with regard to choices exercisable by women is best illustrated by quoting from the judgment: “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.” The extraordinary and clear statement of law being made here is that it is acceptable that a woman be disqualified because the husband compels her to have a third child because the man would be disqualifying himself as well!
Courts and judges are neither imbued with any special knowledge nor are they sociologists or psychologists who have to proceed on the basis of concrete data before them. A woman’s lack of control over her sexuality and fertility in our society is well-established. However, without any material before it with respect to the role women may or may not have in the decision to have a third child, the court concludes: “We do not think that with the awareness which is arising in Indian womenfolk, they are so helpless as to be compelled to bear a third child even though they do not wish to do so.” The reality of the absence of a foolproof safe contraceptive and the possibility of pregnancy by accident also seem to have escaped the notice of the court. Generally, the law penalises a person only for wilful conduct.
The issue of the disqualification infringing on the right to religion has also been viewed in an outright patriarchal manner. The judgment notes: “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 religion.” The viewpoint of a woman who may be a second wife to a man who already has two children from his first wife and/or the possibility of her wanting to have a child does not seem to find place in the court’s reasoning.
The serious socio-legal issue of couples with more than two children wanting to contest elections and thus giving away a child in adoption also seems to have been dealt with without engaging with the various dimensions of the issue. There is no attempt to view the matter from the standpoint of the child given away for adoption. Nor is there any discussion on the legal implications of adoption, or of the position of the adoptive parents who would be the legal father and mother. The judgment rather baldly declares that the fact that a couple has parted with one child by giving it away in adoption does not do away with the disqualification.
The judgment has significance beyond Haryana, as similar laws enforcing the two-child norm are prevalent in Andhra Pradesh, Rajasthan, Chhattisgarh, Madhya Pradesh and Orissa. Unfortunately, the judgment upholding the ‘having more than two living children’ disqualification impacts crucial areas like the rights of women, preference for a male child, methods of contraception, pregnancy, adoption, as well as the concepts of population, social security and social welfare, without serious and/or sensitive engagement with the issues involved.
(Rakesh Shukla is a Supreme Court advocate)
InfoChange News & Features, January 2006