1 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8941 OF 2009 Sou. Mangesha Ashok Chavan, Age 30 years, Occupation Household, R/o. Awarde, Taluka Patan, District Satara ... Petitioner Versus 1. Mr. Sayajirao Damodhar Khamkar, Age 45 years, Occ. Household, Residing at Awarde, Taluka Patan, District Satara. 2. Mr. Santosh Babanrao Mohite, Age 35 years, Occ. Household, Residinga t Awarde, Taluka Patan, District Satara. 3. The State of Maharashtra, through the Additional Commissioner, Pune, Division Pune. ... Respondents Mr. U.P. Warunjikar for the Petitioner. Mr. V.S. Masurkar, Government Pleader for R. No. 3. CORAM : FERDINO I. REBELLO & D.B. BHOSALE, JJ. DATED : NOVEMBER 04, 2009 Oral Judgment (Per Ferdino I. Rebello,J.): Rule. By consent heard forthwith. 2. The Petitioner was elected as a Member of the Gram Panchayat Awarde from Ward No. 2. The Petitioner subsequently came to be elected as Deputy 2 Sarpanch. A complaint was filed against the present Petitioner by Respondent Nos. 1 and 2 that on 12.9.2001 the Petitioner No. 1 had given birth to a third child. A show cause notice came to be issued by the Collector calling upon the present Petitioner to appear before the Collector. The Petitioner showed cause denying the allegation. The collector thereafter heard the matter and was pleased to pass the order of 17.9.2008 holding that the present petitioner had acquired disqualification as the Petitioner has given birth to a third child after the cut off date. The relevant provision is section 14(1) Clause (J)(i) of the Bombay Village Panchayat Act, 1958 (hereinafter shall be referred to as “Panchayat Act”). The same reads as under : “14. Disqualifications : (1) No person shall be a member of a Panchayat continue as such, who - ......................................................... (j-1) has more than two children.” The Petitioner being aggrieved preferred an appeal being Appeal No. 154 of 2008. On 9.9.2009 the appeal came to be dismissed and the order passed by the Collector was confirmed. Based on the same, Gram Sevak submitted a report regarding the vacancy that had arisen. 3. By the present petition, the petitioner sets out that the Petitioner being a female does not have any choice of her own in her married life. The provisions of the Panchayat Act, therefore to the extent that it provides for disqualification for having a third child needs to be challenged. The substantial grounds which are relevant may be reproduced : 3 “(1)At the outset, it is submitted that the amendment in the provisions of the Bombay Village Panchayat Act are contrary to the right of equality. There can be equality amongst the equal. However, it is a matter of fact that the man and woman are standing on different footings so far as the reproductive organs are concerned. Consequently, the pregnancy and delivery are the aspects in respect of which there cannot be any equality between male and female. Consequently it is submitted that the amendment is contrary to the provisions of Article 14 of the Constitution of India, 1950. (2) The Petitioner submits that every female is having a right to enjoy her motherhood as well as womanhood. The nature has provided different reproductive organs to female, and, therefore, putting restriction of number of children for female candidate is violative of Article 21 of the Constitution of India, 1950.” 4. It may be mentioned that the learned counsel apart from addressing us on the challenge to the provisions on merits, has not disputed the finding nor has raised any objection to the procedure. The Petitioners have therefore, sought the following prayer : “Be pleased to hold that the provisions of Section 14(1) Clause J(i) of Bombay Village Panchayat Act, 1958 is violative of Articles 14 and 21 of Constitution of India, 1950 and be pleased to quash and set aside the same by issuing a writ of certiorari or any other writ or order or direction in th nature of writ of certiorari.” 4 As a consequential relief, the Petitioners has prayed for quashing the order dated 17.11.2008 and 9.9.2009. 5. Elaborating the learned counsel submits that in India, there is patriarchal family. A female member of the family does not have any choice so far as sexual life, pregnancy and delivery of the child is concerned. Consequently a judicial notice ought to be taken that the female member in patriarchal family does not have any effective control over the pregnancy as well as delivery of the children. A female citizen considering article 21 of the Constitution has a right to develop pregnancy and deliver a child if there is pregnancy. Such right cannot be curtailed by the provisions of the Panchayat Act earlier referred. According to Petitioner, the male candidate may be disqualified on that count. However, in so far as female candidate is concerned, there should not be any disqualification on the ground that female candidate has given birth to a third child. 6. In our opinion, the matter is no longer res integra, as the contentions to the vires of the legislation in our opinion are covered by the judgment of the Supreme Court in Javed and Others Versus State of Haryana and Others (2003) 8 Supreme Court Cases 369, where similar provisions were considered. The supreme Court formulated five challenges which are as under : 1. “ 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) 5 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 the freedom of religion and hence, violates Article 25 of the Constitution.” In the instant case we are not concerned with the fifth challenge. 7. The learned Supreme Court considered challenges Nos. 1 to 3, as they were based on Article 14. The Supreme Court noted that classification between the persons having more than two children and persons having not more than two children 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.” Addressing itself to the issue whether the legislation serves its object, the court observed that one of the objects of the enactment is to popularize family welfare/family planning programme. This is consistent with the National Population 6 Policy. The provisions of Article 243-G were considered. It noted entries 24 and 25 of the Eleventh Schedule. Addressing itself to the issue as to whether the provision is discriminatory. After considering various aspects including case laws on the subject, the court observed as under : “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.” The court therefore, held that the legislation is not arbitrary and the Act seeks to achieve a laudable purpose socio economic welfare and health care of the masses and is consistent with the national population policy. 8. The Court then considered submissions (iv) and (iv). In answering the issue, the court noted that 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. Addressing itself to the issue of violation under Article 7 21, the court noted that 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. Reliance was placed on Air India Vs. Nergesh Meerza, 1981 4 S.C.C. 335 where the Air Hostess gave birth to the third children when there were two existing children. Her termination was upheld based on a rule barring employment if the person had a third child. 9. Dealing with the women’s role, the learned counsel now seeks to contend that they have no control and this issue was not considered in Javed and Others (supra). In our opinion, the argument is misplaced. The issue was considered in Para 63. We may gainfully reproduce the same : “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 womenfolk, 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.” 8 In our opinion, therefore, challenge both under Article 14 and 21 have to be rejected. Constitutional amendments have been made providing for reservation for women in the local bodies. The object being to empower women so that they have a say in the economic development taking place under our democratic process. As leaders in their community they have to show a way to others specially women. The restriction on number of children is to create awareness of the danger of an increasing population. Every increase. has a consequential fall out on funds, education and health services amongst others. Those seeking to be leaders cannot contend that their fundamental rights are being violated. The right to contest elections is merely statutory. There is no merit in this petition. Rule discharged. No order as to costs. (D.B. BHOSALE, J.) (F.I. REBELLO,J.)