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“Muslim law permitting polygamy does not make it mandatory”: Uttarakhand HC says 2-child norm for Panchayat elections is not anti-minoritarian

The court noted that the amendment in the Panaghayat Raj Act is applicable for all religions and it is not anti-minoritarian, and it does not also violate the fundamental rights of religious minorities under Article 25.

In a very significant judgement, the Uttarakhand High Court on Thursday ruled that barring candidates having more than two children from contesting in elections for Panchayat Raj institutions is not anti-minoritarian. The court made this observation which disposing several petitions filed against the Uttarakhand Panchayati Raj (Amendment) Act, 2019. The amendment had inserted section 8(1)(r) into the act stipulating that 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. Some petitions were filed against some other provisions of the amendment also, all of which were clubbed and heard together.

Petitioners who had appealed against the two-child norm had argued that there is no uniform civil code in the country, and the provision for Panchayat elections is anti-minoritarian as it violates the fundamental rights of procreation of minorities. They stated that “law permits a Muslim male to have more than one wife, and even if he has one child through each wife he would still violate the onerous prescription of not having more than two living children; and this is also in violation of the right of a Muslim woman to have at least one child”.

The court rejected this argument by saying that just because something is permitted as per religion or law does not make it mandatory. Muslims are allowed to have four wives, but that does not mean all Muslim men have to marry four women and have children will all of them, the court contended. The court also said that the premise that only Muslims will have more than two children is also wrong. The court noted that among the 21 petitioners in the case, only one was Muslim, that too a woman. All of them have admitted to have more than two children while questioning the validity of the amendment, the court said.

The court stated that “no religion in India dictates or mandates as an obligation to enter into bigamy or polygamy or to have children more than one; what is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion; a practice does not acquire the sanction of religion simply because it is permitted.”

The judgement says that Article 25 of the constitution, which grants freedom of religion, is itself subject to public order, morality and health. Noting that “Muslim law permits marrying four women; the personal law nowhere mandates or dictates it as a duty to perform four marriages”, the court said that even if bigamy or polygamy or having more the one child is allowed in a religion or community, this can be regulated or prohibited legislation in the interest of public order, morality and health or by any law providing for social welfare and reform. The court said that a statutory provision casting disqualification on contesting for, or holding, an elective office in Panchayat Raj institutions is not violative of Article 25 of the Constitution.

The court noted that the amendment in the Panaghayat Raj Act is applicable for all religions and it is not anti-minoritarian, and it does not also violate the fundamental rights of religious minorities under Article 25.

On the contention that the law is against those who have twins in the second pregnancy, the court said that this is an exception, the law is made for the generality of people, and not to deal with exceptions. The court ruled that the amendment can’t be struct down just for exceptions.

Replying to the argument that the provision will hurt the women most, as many times husbands force their wives to have more children, the court said that such men will be disqualified according to this rule, as ruled by the Supreme Court in the case of Javed and others.

The court also talked in length about the National Population Policy 2000, and noted that the law is in line with that policy. The judgement says that the legislature can, undoubtedly, prescribe disincentives to curb exponential population growth in the country. It also said that “It is settled law that it is not the job of the court to decide whether a law is good or bad. Policy matters fall within the realm of the legislature and not of the courts.” It added that “the Court cannot sit in judgment over the wisdom of Parliament and the legislatures.”

Although the court rejected the petitions against the provision, it read down the provision of the two-child norm as it didn’t stipulate any cut-off date. While the court said that the provision can’t be said to be anti-constitutional as it does not have a cut-off date, the court ruled that the provision will apply only from the date the amendment came into effect. Now the two-child norm for contesting elections in Panchayat Raj Institutions will apply from 25 July 2019, and people have more than two children prior to this date will not be made disqualified.

Uttarakhand is not the first state to impose a two-child norm for Panchayat Raj elections, several other states have imposed this rule. Many of such laws were challenged in the court, but all those oppositions were rejected by High Courts and the Supreme Court.

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