'Third Child' Disqualification: SC To Hear U'khand Govt Plea Challenging HC's Reading Down Of Statutory Provision

The Supreme Court will hear the appeal filed by Uttarakhand government challenging the High court judgment which held that the disqualification of a person to contest in Panchayathi Raj elections, if he has more than two living children, in terms of the provision recently introduced in Uttarakhand Panchayati Raj Act, would apply only to cases where persons, having two children or more, have a third child or more after 25.07.2019.

The Apex Court bench of Justice N V Ramana, Justice Sanjiv Khanna and Justice Krishna Murari issued notice on the Special Leave Petition filed by the Uttarakhand Government.

The High Court judgment had come on a batch of writ petitions challenging the constitutional validity of some provisions of the Uttarakhand Panchayati Raj (Amendment) Act, 2019, which were notified on July 25 this year. Section 8(1)(r) of the amended Act stipulated that a person shall be disqualified for being appointed and for being a 'pradhan', 'up-pradhan' and a member of the gram panchayat, if he has more than two living children.

The bench comprising the Chief Justice Ramesh Ranganathan and Justice Alok Kumar had read down the Section 8(1)(r) of the Act and had clarified that the provision shall not be understood as disqualifying those who already have three or more children before 25.07.2019, the date on 2019 Amendment to the 2016 Act came into force.

The High Court had held that Section 8(1)(r) is applicable to people of all religious faiths, and is not anti-minoritarian and does not also violate the fundamental rights of religious minorities enshrined under Article 25 of the Constitution of India. The bench also rejected the contention raised in the petitions that this stipulation would apply harshly to those who have twins in the second pregnancy, for the birth of a single child or twins, during the second pregnancy, is an act of God. The court had observed that exceptional situation cannot form the basis of declaring a law ultra vires Article 14 of the Constitution of India. The possibility of a person having twins from a second pregnancy would not, therefore, justify striking down the classification as violative of Article 14 of the Constitution, it had said.

While reading down the provision, the High Court had observed that the object of disincentivizing people from having a third child, and to promote family planning, would not be achieved with respect to those who already have three or more children, since there is nothing that they can do to bring the children, they already have, below the two child norm. In so far as it is made applicable to that class of people, who already have three children or more, the legislation would, undoubtedly, be manifestly arbitrary as the differentia, between those left out of the group from those included in the classification, does not have a rational nexus to the object of the legislation, the bench had held.