Last week, the Uttarakhand High Court rendered a decision in a case that has important ramifications on the relationship between individuals and the State and the meaning of the right to equality.
The decision serves as a reminder of how the judicial role under the Indian Constitution has been misconceived, thus adversely affecting fundamental rights.
The petitioners in this case challenged a recent amendment to the Uttarakhand Panchayat Act, 2016, whereby any person having more than two living children would be automatically disqualified from contesting for the posts of Pradhan, Up-Pradhan and Member of the Gram Panchayat.
While upholding the constitutional validity of the provision, the high court ‘read it down’, so that it would only apply to persons who have a third child after the date when the amendment was notified ie 25 July 2019.
How exactly did the court find that this was a constitutionally sound provision of law? This is where the judgment runs into controversy, because the questions that needed to be considered by a constitutional court in such a case, do not appear to have been asked, let alone answered – thereby setting a dangerous precedent.
Why Was This Uttarakhand Law Challenged in Court?
The ‘Statement of Objects and Reasons’ to the 2019 amendment does not provide much clarity on the exact rationale for its introduction.
It merely states that persons having more than two living children should be ineligible for Panchayat elections “for the purpose of promoting family planning”. How exactly this disqualification promotes family planning, is left to one’s imagination.
The petitioners argued that the disqualification provision was arbitrary and unconstitutional for various reasons, including:
- That it was unreasonable to exclude persons who had more than two living children before the passing of the amendment, as they could not have known that they would be excluded when they earlier chose to have a third child.
- That in any case there was no need to create such a disqualification in the State of Uttarakhand, where data showed that population growth had actually declined in rural areas.
- That, even assuming family planning was required in Uttarakhand, there was no connection between the disqualification and the achievement of family planning. In other words, how would a symbolic measure of ensuring that leaders do not have more than two children successfully contribute to family planning of the general population?
- That, even if such a symbolic measure is somewhat successful, it cannot be justified for the State to resort to a such a punitive measure, especially where it has not shown that other measures (such as education or positive incentives) have failed or will necessarily fail.
It is in this context that the high court was asked to intervene and assess the constitutionality of the disqualification provision.
How Did the Uttarakhand High Court Respond to These Arguments?
Strikingly, the high court largely avoided going into these questions, asserting instead that “policy matters fall within the realm of the legislature and not of the courts” and that it was not for the judiciary to “sit in judgment over the wisdom of Parliament and the legislatures”.
An Incorrect Understanding of the Power of Judicial Review?
As we have previously argued, this approach to judicial review is flawed, and is not supported by the text of the Indian Constitution.
The Constitution clearly provides that no law can violate a fundamental right, and the bifurcation of cases into policy matters and rights issues is based on a mistaken view that policy decisions do not involve rights violations.
In this regard, it is worth noting that as recently as in 2017, the Supreme Court in the Triple Talaq case discarded precedent holding that the judiciary could not question the wisdom of Parliament, finding that:
“our law reports are replete with instance after instance where Parliamentary wisdom has been successfully set at naught by this Court because such laws did not pass muster on account of their being ‘unreasonable’.”
The notion that the judiciary should not question the wisdom of Parliament arose in a very specific context in the United States of America, responding to a set of cases where the Supreme Court struck down several social welfare laws, purportedly on the ground that such laws were not legitimate under the American Constitution (referred to as the Lochner era).
This notion applies in India to the extent that the Indian judiciary cannot tell the legislature not to implement family planning at all. However, this does not mean that the judiciary cannot examine whether the impact of a particular law or policy decision unreasonably restricts a fundamental right.
As mentioned earlier, the arguments advanced by the Petitioners were in fact focussed on this unreasonable nature of the disqualification provision, and not on the legitimacy of pursuing family planning.
Was This Policy a Reasonable One?
One of the primary grounds on which it was argued that the disqualification provision was unreasonable was that data from the State of Uttarakhand revealed that population had actually declined in rural areas in recent years.
The Court rejected this argument by relying on the State Government’s submission that population control was in the interest of the nation, and then relying on a committee report from 1992 and the National Population Policy, 2000 that speak of the importance of family planning in general terms.
It is quite striking that the Court moved so quickly from rejecting the arguments based on data from the region in question to underlining the importance of population control across the country.
One may see parallels between this case, and the case of Rajbala vs State of Haryana, where the Supreme Court upheld the constitutionality of educational qualifications as a prerequisite to contest an election to a Panchayat post.
This disregarded arguments explaining why educational qualifications had no bearing on the ability to perform the necessary functions, and brushed aside empirical evidence that showed how the move adversely and disproportionately affected the election prospects of women and people belonging to lower castes.
Unsurprisingly, Rajbala met with heavy criticism for its legitimisation of an unjust restriction on the rights of the most disenfranchised. This general judicial approach seems to be based on the stereotypical notion that rural areas require more control than urban areas, and that rights may be more excessively curtailed in such areas, regardless of the picture presented by the data at hand – in much the same way as the high court did here.
In the Rajbala case, the State Government had at least argued before the Court that mandatory educational qualifications would result in Panchayat members being better administrators. In theory, this argument is stronger than the one that arises in the present case, as the Rajasthan qualifications pertained to those directly covered by the legal provision in question.
By contrast, in the present case, the amendment to the Uttarakhand Panchayat Act proceeds purely on the assumption that by penalising leaders at the Panchayat level for having a third child, the disqualification provision disincentivises people in rural areas in Uttarakhand from having a third child, thus indirectly reducing India’s population.
Notably, while defending the constitutionality of the disqualification provision, the State merely emphasized the importance of family planning and population control in general – but failed to provide any evidence or study or research to show how the provision under challenge actually contributed to those aims.
In the section of the judgment where it was ostensibly answering whether there was any connection between the object sought to be achieved by the State (family planning) and the classification created by the disqualification provision, the Uttarakhand High Court referred to a long list of court judgments.
However, the judges do not explain their relevance to the case, and just skip over to asking whether or not it was reasonable to apply the disqualification provision to those who already had three children before the provision was notified.
Thus, at no point does the judgment evaluate whether the disqualification provision actually serves the purpose for which it has been enacted – which was the main issue in the case.
Let’s put it simply.
Do they identify the object of the provision?
Yes – to control the population in general, and not just of those standing for election to Panchayats in Uttarakhand.
Do they examine how disqualification from standing for Panchayat elections will disincentivise people in general from having a third child?
No.
A Muddled Approach That Benefits Governments, Not People
It should be pointed out that the fault for this sort of muddled reasoning does not lie exclusively with the Uttarakhand High Court.
A large part of the problem is that the Supreme Court has been rather unclear in setting out the standard of review under the fundamental rights provisions, and under Article 14 in particular. In fact, the Supreme Court has rendered contradictory judgments on many points of law, often within a few years of each other.
This vests discretion in the different benches of the judiciary to interpret and apply the contrasting judgments in different ways, and the confusion that results from this ambiguity often benefits the State, especially in high stakes cases.
The case in question is a prime example of how this confusion plays out. The Uttarakhand High Court cited a series of judgments without acknowledging the tension among them (including a judgment that specifically overruled another judgment relied on), and then finally adopted a highly deferential approach to reviewing the law in question.
The high court noted that a law must be struck down if it is “excessive or disproportionate”, but it neither inquired into the proportionality of the disqualification provision, nor did it ask the State whether a less restrictive law could have achieved the same purpose.
Ultimately, the Court rejects the rights claims advanced before it by pitting them against the presumption that laws are reasonable, and then limiting the scope of judicial review of legislative wisdom. We can only hope that at some point the judiciary realises the dangerous effects of this approach.
(Jahnavi Sindhu and Vikram Aditya Narayan are advocates based in New Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them. )
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