WP(C)/510/2020
2021 Latest Caselaw 2839 Gua

GAHC010018232020




         IN THE GAUHATI HIGH COURT
    (HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
               ARUNACHAL PRADESH)


                   WP(C) NO.510 OF 2020
                   Ayesha Begum, Aged about 29
                   years, Wife of Abdul Haque,
                   Resident of Village: Botoiya, PO:
                   Eraligool, PS: Patherkandi, District:
                   Karimganj, Assam, PIN - 78823

                                       ........Petitioner

                              -Versus-

                   1. The State of Assam, represented
                   by the Principal Secretary to the
                   Government of Assam, Panchayat &
                   Rural Development Department,
                   Dispur, Guwahati, PIN - 781006.

                   2. The Commissioner, Panchayat &
                   Rural Development Department,
                   Juripar, Guwahati, PIN - 781022.

                   3. The Secretary to the Government
                   of Assam, Legislative Department,
                   Dispur, Guwahati, PIN - 781006.

                   4. Jugitawali Pawe,
                   Wife of Sri Jayanta Pawe,
                                                               -2-

                          Resident      of   Village   No.1,
                          Bongalmara Miri, PO: Islam Gaon,
                          District: Lakhimpur, Assam, PIN -
                          787054.

                                           ........Respondents

-BEFORE-

HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE SOUMITRA SAIKIA

For the Petitioner : Mr. P.K. Roy Choudhury, Advocate.

For Respondent No1 to 3 : Mr. D. Saikia, Advocate General, Assam.

Mr. A. Roy, Standing Counsel, Panchayat & Rural Development Department.

For the Respondent No.4 : Mr. R.P. Sarmah, Senior Advocate.

Date of Judgment & Order. : 12th November, 2021.

JUDGMENT & ORDER (ORAL) (Sudhanshu Dhulia, CJ)

Heard Mr. P.K. Roy Choudhury, learned counsel for the petitioner. Also heard Mr. D. Saikia, learned Advocate General, Assam, assisted by Mr. A. Roy, learned standing counsel, Panchayat & Rural Development Department, appearing for the respondent Nos.1 to 3 and Mr. R.P. Sarmah, learned senior counsel, appearing for the private respondent No.4.

2. By means of the present writ petition, the petitioner has challenged the vires of the Assam Panchayat

(Constitution) (Amendment) Rules, 2018, whereby after Rule 61, a new Rule, i.e. Rule 62, has been inserted in place of the earlier Rule 62 in the Assam Panchayat (Constitution) Rules, 1995. The new Rule reads as under:-

"Short title and 1. (1) These rules may be called the Assam commencement Panchayat (Constitution) (Amendment) Rules, 2018.

(2) They shall come into force on the date of their publication in the Official Gazette.

Insertion of 2. In the principal Rules, after rule 61, the rule 62 following new rule 62 shall be inserted, namely :-

'62. Conditions and procedure of disqualification under sub-section (2) of section 111 of the Act. -

(1) (a) Subject to the provisions of the Act, at the time of filing of nominations, candidates shall furnish affidavit that he/she has not more than two living children from a single or multiple partners;

(b) The State Government or concerned District Authority shall remove any President, Vice-President or Member of Zilla Parishad, Ahcnalik Panchayat and Gaon Panchayat if he or she is having two or more than two children from single or multiple partners prior to the date of commencement of the Act i.e. 19/03/2018 and gives birth to an additional child thereafter;

(c) If any Panchayati Raj Institution (PRI) member divorces his wife after assuming office and subsequently his separated wife gives birth to a third child without remarrying with another person within a period of nine months from the date of separation, he shall be removed from

his office with due procedure;

(d) If the second child birth are twins, then he/she shall not be removed from membership of Panchayati Raj Institutions (PRI);

(e) If the first child birth are triplets, then he/she shall not be removed from membership of Panchayati Raj Institutions (PRI);

(f) The Gaon Panchayat Secretary on receipt of information of such additional child birth in respect of President, Vice-President, Member of the Gaon Panchayat shall inform the matter to the concerned Block Development Officer who in turn shall inform the concerned Deputy Commissioner through Chief Executive Officer, Zilla Parishad. The concerned Deputy Commissioner shall examine the matter and on establishment of fact, shall remove the President, Vice-President, Member of the Goan Panchayat concerned accordingly under intimation to the State Government as well as Assam State Election Commission;

(g) The Executive Officer of Anchalik Panchayat on receipt of information of such additional child birth in respect of President, Vice-President, Member of the Anchlik Panchayat shall inform the matter to the concerned Deputy Commissioner through the Chief Executive Officer, Zilla Parishad. The concerned Deputy Commissioner shall examine the matter and on establishment of fact, shall remove the President, Vice- President, Member concerned of Anchalik Panchayat accordingly and inform the matter to the State Government in Panchayat and Rural Development Department as well as Assam State Election Commission;

(h) The concerned Chief Executive Officer on receipt of information of such additional child birth in respect of President, Vice-President, Member of the Zilla Parishad shall inform the matter to the State Government through concerned Deputy Commissioner for removal of the President, Vice-President, Member concerned and accordingly, on establishment of such fact, the State Government in Panchayat and Rural Development Department shall remove the President, Vice-

President, Member concerned of the Zilla Parishad under intimation to the Assam State Election Commission.

Subject to the provisions of the Act, at the time of filing of nominations, candidates shall furnish affidavit regarding their required Educational Qualifications along with true copy of such Certificates and also should produce the original Certificates before the concerned Authorised Officers failing which, concerned candidates shall be disqualified.

(a) Subject to the provisions of the Act, the availability of a functional sanitary toilet in his/her residence shall be part of the affidavit at the time of filing nominations.

Explanation:

'Functional sanitary toilet' means the toilet facilities that protect human health by preventing contamination of the environment with human faecal waste. A toilet is a piece of hardware used for the collection or disposal of human urine and faeces. In other words, 'Toilets are sanitation facilities at the user interface that allow the safe and convenient urination and defecation.'

(b) The State Government or Concerned District Authority shall remove any

President, Vice-President or Member of Zilla Parishad, Ahcnalik Panchayat and Gaon Panchayat if he or she does not have a functional sanitary toilet in his/her residence.

(c) The Gaon Panchayat Secretary on receipt of information of having no functional sanitary toilet in the residence of President, Vice-

President, Member of the Gaon Panchayat shall inform the matter to the concerned Block Development Officer who in turn shall inform the Deputy Commissioner through the Chief Executive Officer, Zilla Parishad. The Deputy Commissioner shall examine the matter and on establishment of fact, shall remove the President, Vice-President, Member concerned of the Goan Panchayat accordingly under intimation to the State Government as well as Assam State Election Commission.

(d) The Executive Officer of Anchalik Panchayat on receipt of information of having no functional sanitary toilet in the residence of President, Vice- President, Member of the Anchlik Panchayat shall inform the matter to the concerned Deputy Commissioner through the Chief Executive Officer, Zilla Parishad. The Deputy Commissioner shall examine the matter and on establishment of such fact, shall remove the President, Vice-President, Member of the concerned Anchalik Panchayat accordingly and inform the matter to the State Government in Panchayat and Rural Development Department as well as Assam State Election Commission.

(e) The concerned Chief Executive Officer on receipt of information of having no functional sanitary toilet in the residence of President, Vice-

President, Member of the Zilla Parishad shall inform the matter to the State Government for removal of the President, Vice-President, Member concerned of the Zilla Parishad and accordingly, on establishment of such fact, State Government in Panchayat and Rural Development Department shall remove the President, Vice-

President, Member concerned of the Zilla Parishad under intimation to the Assam State Election Commission."

(Emphasis provided)

3. The main objection raised by Mr. P.K. Roy Choudhury, learned counsel for the petitioner is regarding Rule 62(1)(b). Before we come to the actual challenge, we must state here that these Rules have been framed in exercise of the powers conferred under Sub-section (1) of Section 141 and Sub-section (2) of Section 111 of the Assam Panchayat Act, 1994. The Assam Panchayat Act, 1994 was itself amended vide Assam Panchayat (Amendment) Act, 2018, where, inter alia, Section 111 of the parent Act was amended by inserting Sub-section (2), which reads as under:-

"(2) No person shall be elected or co-opted and remain as President, Vice-President or Member of Zilla Parishad, Anchalik Panchayat and Gaon Panchayat, -

(a) who has more than two living children from a single or multiple partners:

Provided that this provision shall not be applicable in respect of those persons, who have more than two children prior to the date of commencement of this Act;

(b) who has not passed class VI examination from an Educational Institution, for the post of Gaon Panchayat member:

Provided that in case of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes (OBC) and More Other Backward Classes (MOBC), lacking of minimum educational qualification shall not be a bar for contesting election or to be elected for the post of Gaon Panchayat member;

(c) who has not passed the H.S.L.C. or equivalent examination under any Council or Board recognized by the State or the Central Government, as the case may be, for the post of Goan Panchayat President, Anchalik Panchayat member:

Provided that in case of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes (OBC) and More Other Backward Classes (MOBC), the minimum educational qualification shall be class VIII examination passed from an Educational Institution;

(d) who has not passed the H.S.S.L.C. or equivalent examination under any Council or Board recognized by the State or the Central Government, as the case may be, for the post of Zilla Parishad member:

Provided that in case of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes (OBC) and More Other Backward Classes (MOBC), the minimum educational qualification shall be H.S.L.C. or equivalent examination passed under any Board or Council recognized by the Central or the State Government, as the case may be;

(e) who does not have a functional sanitary toilet in his/her residence."

(Emphasis provided)

4. Subsequent to the amendment in the parent Act, the amendment was brought out in the Rules, which have already been referred above. These Rules are challenged before this Court.

5. The main contention of Mr. P.K. Roy Choudhury, learned counsel for the petitioner would be that the Rules

framed by the Government are actually in conflict with the main provisions of the Act and, therefore, to that extent these Rules are bad.

6. At this stage, we must place on record that similar provisions, where a candidate was debarred from participating in a Panchayat election and was held to be disqualified as a Member of Gaon Panchayat, Anchalik Panchayat and Zilla Parishad, were framed in other States as well. Similar provisions was also framed in the State of Haryana, where after the amendment was made effective, a candidate who is having more than two children was debarred from participating in the election process. These Rules were challenged before the Hon'ble Apex Court and the validity of the said amendment was upheld. In this regard, the case of Javed & Ors. -Vs- State of Haryana & Ors., reported in AIR 2003 SC 3057 may be referred to. In another case, i.e. Minasingh Majhi -Vs- Collector, Nuapada & Ors. (Manu/SC/1516/2018), where a similar provisions of Orissa were challenged and the validity of the amendment was again upheld. The reasons given by the Hon'ble Apex Court in the case of State of Haryana are as under:-

"60. Looked at from any angle, the challenge to the constitutional validity of Section 175(1)(q) and Section 177(1) must fail. The right to contest an election for any office in Panchayat is neither fundamental nor a common law right. It is the creature of a statute and is obviously subject to qualifications and disqualifications enacted by legislation. It may be permissible for Muslims to enter into four marriages with four women and for anyone whether a Muslim or belonging to any

other community or religion to procreate as many children as he likes but 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. Assuming the practice of having more wives than one or procreating more children than one is a practice followed by any community or group of people, the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does.

Some incidental questions

62. It was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children more than two, are feeling compelled to give them in adoption. Subject to what has already been stated hereinabove, we may add that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out.

63. 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.

64. Hypothetical examples were tried to be floated across the Bar by submitting that there may be cases where triplets are born or twins are born on the second pregnancy and consequently both of the parents would incur disqualification for reasons beyond their control or just by freak of divinity. Such are not normal cases and the validity of the law cannot be tested by applying it to abnormal situations. Exceptions do not make the rule nor render the rule irrelevant. One swallow does not make a summer; a single instance or indicator of something is not necessarily significant.

Conclusion

65. The challenge to the constitutional validity of Sections 175(1)(q) and 177(1) fails on all the counts. Both the provisions are held intra vires the Constitution. The provisions are salutary and in public interest. All the petitions which challenge the constitutional validity of the abovesaid provisions are held liable to be dismissed."

7. Therefore, it is not now left for the petitioner to challenge the validity of this Act as being violative of Articles 14 and 21 or any other constitutional or legal provisions. The legislative competence for making these amendments in any case has never been challenged. The only argument now raised by the petitioner before this Court is that although the Act prescribes that anybody having more than two children after the amendment has come into effect would be made ineligible whereas in the Rules even a person who is having two children at the time when the Act was effective has been made ineligible. Having read the Act as well as the Rules in detail, we fail to appreciate the argument of the learned counsel for the

petitioner for the simple reason that the Rule only elaborates to some extent what the Act has stated.

8. Rule 2(1)(b) of the Assam Panchayat (Constitution) (Amendment) Rules, 2018, as pointed out by Mr. D. Saikia, learned Advocate General of the State is actually in two parts, firstly, it can be read that any person who prior to the effective date of implementation, i.e. 19.03.2018, was having two children but thereafter gives birth to a third child is ineligible and then it can also be read that any person who is having more than two children even before the date of implementation is still eligible but in case he gives a birth to an additional child after the effective date will then be ineligible. In other words, there is now clarity to this aspect that even if one is having more than two children, may be three, four or even five, prior to the date of commencement, he would not be ineligible but any additional child by the person from single partner or from a multiple partner after the date of commencement will make him ineligible.

9. At this point, we must also state that Mr. R.P. Sarmah, learned counsel appearing for the respondent No.4 has also made a submission before this Court where by a large he has accepted the arguments of the learned Advocate General, Assam.

10. We find there is absolutely no conflict or ambiguity in these Rules. The writ petition has no merit and is hereby dismissed.

           JUDGE                   CHIEF JUSTICE




Comparing Assistant