WP/23854/2008 of Smt Balaga Savithramma Vs Nalla Satyanarayana on 31 December 2008

COMMON JUDGMENT:

These two writ petitions are filed against the common orderdated 03-10-2008, passed in O.P.Nos.689 of 2007 and 217 of 2008. For the sake of convenience, the parties are referred to, as arrayed inW.P.No.23854 of 2008.

Elections to the Gram Panchayat of Kannampet, VizianagaramDistrict were held on 29-07-2006. The petitioner and the wife of 1[st]respondent, by name, Bharathi, filed nominations for the office ofSarpanch. Bharathi raised an objection for the nomination of thepetitioner, alleging that the latter incurred disqualification underSection 19(3) of the A.P. Panchayat Raj Act, 1994, (for short ‘the Act’). It was pleaded that the petitioner had three living children, out ofwhom, two were born after 31-05-1995. The objection was overruledby the Returning Officer, and the nomination of the petitioner wasaccepted. The petitioner secured majority of votes and she wasdeclared elected.

The 1[st] respondent, who is a voter in the Gram Panchayat,submitted a representation on 31-08-2006 to the Secretary of the GramPanchayat, stating that the petitioner incurred disqualification underSection 19(3) of the Act, and requested him to take necessary steps. He also filed Election O.P.No.689 of 2007 before the Court of DistrictJudge-cum-Authority under Section 22 of the Act, with a prayer todisqualify the petitioner.

On receiving communication from the concerned authorities, onthe basis of the complaint made by the 1[st] respondent, the petitioneralso filed an application under Section 22 of the Act, with a prayer todeclare that she did not incur any disqualification. The same wastaken up as E.O.P.No.217 of 2008 by the District Court.

The trial Court clubbed both the O.Ps and through a commonjudgment dated 03-10-2008, held that the petitioner incurreddisqualification under Section 19(3) of the Act, and is not entitled tocontinue as Sarpanch. Petitioner filed W.P.No.23854 of 2008 againstthe said judgment. The trial Court has also recorded a finding to theeffect that respondents 2 and 3 herein failed to discharge their statutoryobligations and on that basis, it directed that they shall be prosecutedunder Section 166 of I.P.C. W.P.No.24267 of 2008 is filed byrespondents 2 and 3.

Smt M.Bhaskara Lakshmi, learned counsel for the petitionercontends that though the petitioner had three living children as on thedate of filing of nomination, she did not incur disqualification underSection 19(3) of the Act, in view of the fact that before 31-05-1995, the petitioner had only one son, whereas in thesubsequent issue, she got twins. She contends that Section 19(3) ofthe Act, which is in the form of disincentive, cannot be construed insuch a way, as to lead to absurd, or anomalous situations. It is alsoher case that the Government itself granted exemption in favour of thepetitioner, in exercise of power under third proviso to Section 19(3) ofthe Act, and the Tribunal did not take the same into account, in spite ofefforts made by the petitioner.

Sri Balaji, learned counsel for respondents 2 and 3, who figuredas petitioners in W.P.No.24267 of 2008, submits that soon afterreceiving the complaint, respondents 2 and 3 have undertaken consultations and initiated steps, and that there was no lapse on theirpart. He further submits that the direction issued by the trial Court forprosecution of respondents 2 and 3 is without any basis.

Sri Taddi Nageswara Rao, learned counsel for the

1[st] respondent, submits that the admitted facts are sufficient todisqualify the petitioner under Section 19(3) of the Act. He contendsthat even if any extraordinary situations are present, they cannotscuttle the operation of a statutory provision. Learned counsel alsosubmits that the trial Court has undertaken extensive discussion andrecorded a clear finding not only as to the disqualification of thepetitioner but also about the laxity on the part of respondents 2 and 3. He places reliance upon the judgments of the Supreme Court in K.Venkatachalam v. A.Swamickan[[1]]and Javed v. State ofHaryana[[2]].

The undisputed facts are that the petitioner and the wife of the1[st] respondent contested for the office of Sarpanch of Kannampet,Vizianagaram District in the elections held on 29-07-2006. It is also not in dispute that the petitioner had threeliving children, as on the date of filing of the nomination.

Section 19 (3) of the Act attaches disqualification to any person,either for contesting an election, or continuing in an elected post, if heor she had more than two children. Proviso to sub-section (3) relievesrigor of the provision to certain extent. According to this, the birth of achild within one year from the date of commencement of the Act shallnot lead to disqualification even if the number of children of anindividual exceeds two. Admittedly, the petitioner is not entitled for thebenefit under this proviso, because she gave birth to twins i.e. 2[nd] and 3[rd]children after expiry of one year from the commencement of theAct. If these undisputed facts, in relation to the petitioner, arecorrelated to sub-section (3) of the Act, the inevitable conclusion is thatshe had incurred disqualification. However, the peculiar situation isthat before the commencement of the Act, the petitioner had only onechild, and she gave birth to twins, on 31-05-1995. Therefore, it needsto be seen, as to whether the petitioner had incurred disqualification.

Here itself, it needs to be mentioned that during the pendency ofthe O.P., filed against the petitioner, the Government passed an orderin G.O.Rt.No.1151, dated 30-7-2007, in exercise of power under thirdproviso to Section 19(3) and exempted the petitioner fromdisqualification. With this development, necessity to deal with thedisqualification of the petitioner may not survive. However, since anextraordinary situation, which was not contemplated by theLegislature, has arisen, it is felt that the issue be addressed.

The constitution and administration of Gram Panchayats in theState of Andhra Pradesh used to be governed by the provisions of theA.P. Gram Panchayat Act, 1964. Section 19 of that Act also providedfor disqualifications of various categories. The Parliament amendedthe Constitution of India and added Part-IX, with the objective ofstrengthening the Panchayat Raj system in the country. Articles 243and 243-O were added providing for the broad frame-work of thePanchayat Raj system. Further details are required to besupplemented through the legislations of the concerned States. Section 243-F made a provision for stipulation of disqualifications. Itwas in this context, that the A.P. State Legislature has enacted the A.P.Panchayat Raj Act, 1994. In addition to repeating some of thedisqualifications provided for under the 1964 Act, the 1994 Act addeda disqualification to persons, who have more than two children.

Section 19(3) reads as under:

“Sec.19(3): A person having more than two children shall bedisqualified for election or for continuing as member:

Provided that the birth within one year from the date ofcommencement of the Andhra Pradesh Panchayat Raj Act,1994 hereinafter in this section referred to as the date of suchcommencement, of an additional child shall not be taken intoconsideration for the purposes of this section:

Provided further that a person having more than twochildren (excluding the child if any born within one year fromthe date of such commencement) shall not be disqualifiedunder this section for so long as the number of children hehad on the date of such commencement does not increase:

Provided also that the Government; may direct thatthe disqualification in this section shall not apply in respect ofa person for reasons to be recorded in writing”.

Our country recorded phenomenal growth in the population,particularly after independence. This naturally resulted in pressure onthe resources, which are available in limited scale. The State andCentral Governments have evolved various schemes to curb thegrowth of population. Family planning operations did contribute for thecontrol of population growth. In addition to that, psychologicalpressure was exerted on the citizens, by providing incentives anddisincentives. Employees who have undergone family planningoperations were extended the benefit of additional increments in payscales in the Government service, and in certain public sectorundertakings. The disincentives are in the form of attachingdisqualifications to those, who have children beyond a stipulatednumber. Sub-section (3) of Section 19 falls into this category. Thebasis for legislations in this area is mentioned by WolfgangFriedmannm, in his Treatise, ‘Law in a Changing Society’, as under:

“…Looking further into the future, one can predict asteadily increasing involvement of public authority with familymatters, reaching not only into the economic but into the more intimate personal domains. As we have seen in thediscussion of recent legislative developments with regard tobirth control and abortion, the alarming and accelerating rateof increase in the world population, with its attendant dangersto living standards, urban decay and the ecology of the earth,reveals a growing, national and international concern ofgovernment with family planning. The pressures are likely tobecome so intense that increasingly severe financial penaltiesfor families above a certain size, and even compulsorysterilization, cannot be ruled out in the decades to come…”(See W. Friedmann’s ‘Law in a Changing Society’ Second Editionpage 288)

The same Jurist has pointed out the attitude of citizens, towards lawsof this nature. He observed, “Contrary to many dire predictions, millions of modernfamilies, to whom contraceptives are known and easilyaccessible, have preferred the joys and responsibilities ofparenthood to the greater material comfort and freedom ofmovement of childlessness.”

The task of legislating a provision in matters of this nature is byno means easy. One can hardly predict a uniform pattern, as to thenumber of children, that can be begotten by a married couple. It isdifficult to imagine that the number of children for a couple would bethe same, as the number of deliveries, or issues. While in some cases,the children, who are born, may not survive, it is not uncommon thatthe number of children, in a given issue, may be more than one. Instances, though rare, are not lacking, where, not only twins, but alsotriplets, and quadruplets were born out of the same issue. As betweenstipulation of issues, on the one hand, and the number of children, onthe other hand; the Legislature has chosen the latter, in effect, tocontrol the growth of population.

A close look at the proviso indicates that, if a married couplehad one child, as on the date of coming into force of the Act, there is noprohibition against them, for going for the second issue, in the limitedcontext of disqualification under Section 19(3) of the Act.

If a single child is born out of it, they do not incur disqualification. Onthe other hand, if twins are born, the disqualification gets attached toboth the parents. It is very much in the control of a married couple,whether or not to go for another issue. However, there is absolutely nohuman control on the number of children that may be born out of apregnancy. Law aims at governing the former and not the latter.

The Legislature cannot be expected to take care of everypossible situation. Human conduct and activity is so complicated, thatit is incapable of being regulated or defined through a set of norms,covering all possible situations. Exceptions do always exist. Muchwould depend upon the manner in which the exceptions are to bedealt with. In this context, equitable construction, which, of course, is not frequently resorted to; becomes relevant. The purportof this was explained by Crawford by making reference to theobservations of Lord Coke. It reads, “…By virtue of this doctrine, the letter of the law mightbe disregarded and its provisions extended to cases whichwere within the same mischief which the law undertook toremedy, even though they were not expressly included, orcases might be excepted from the statute, although coveredby its terms, where they were not fairly included, onconsiderations of justice and reason. As is apparent from thisdefinition, and according to Lord Coke, equitable constructionmay generally be divided into two kinds—expansive andcontractive. By virtue of the former, a case not within theterms of the statute but within its purpose, was included in thestatute. Through application of the latter, a case wasexcepted from the operation of the statute, even though it wascovered by the express terms, by considering the caseoutside the purpose of the statute…”

Equally important is the note of caution, sounded by the Jurist, against,having indiscriminate recourse to equitable construction. He said, “[T]here is a danger that the court may mould the lawto its own notion of justice and propriety or disregard itspositive mandates, on considerations of hardship orinconvenience. Obviously, there may be some difficulty inascertaining the standard of justice and propriety back of thelegislative act. And occasionally the legislature may intend toenact a law which as intended operates equitably or harshly. It is not necessarily easy to distinguish such instances fromthose where the legislative intention, even though notexpressed, actually is intended to promote justice.

Perhaps the courts should take a middle ground. If thestatute violates standards of justice and propriety concerningwhich men agree generally, such a construction should notprevail. Similarly, if the construction is absurd, ridiculous, orviciously unjust, it should not be accepted. In those cases,where the effect is not necessarily contrary to our commonconcepts of right and reason, it may be desirable thatsomething else indicate that the asserted construction doesnot represent the legislative intent in addition to theundesirable result, before the court departs from the literalmeaning of the language of the legislature”.(See Crawford’s Interpretation of Laws pages 296, 299 & 300,1989 reprint)

The disqualification that is attached to an individual on accountof his or her having more than two children, cannot be compared to theone, which arises out of the conviction in a criminal case, as providedfor under sub-section (1) of Section 19.

“Sec.19. Disqualification of candidates:-

(1) A person who has been convicted by a Criminal Court,-- (a)for an offence under the Protection of Civil RightsAct, 1955; or (b)for an offence involving moral delinquency; shallbe disqualified for election as a Member for aperiod of five years from the date of conviction orwhere he is sentenced to imprisonment whileundergoing sentence and after a period of fiveyears from the date of expiration thereof”.be disqualified for election as a Member for aperiod of five years from the date of conviction orwhere he is sentenced to imprisonment whileundergoing sentence and after a period of fiveyears from the date of expiration thereof”.

It may be noted that while the disqualification under Section19(1) of the Act is against an individual, for a specified period, the one,under Section 19(3) would operate against the couple, for rest of theirlives. Therefore, a cautious and careful approach is warranted, in thisregard.

An act, which is crime, as defined under the relevant provisionsof law is generally treated alike in every legal system, though thequantum and nature of punishment may vary. Same is not the casewith the measures taken to contain growth ofpopulation. Basicallybegetting certain number of children is not a crime. Further, incountries like India, and China, steps are taken to curb the growth ofpopulation through various mechanisms. In contrast, in countries likeJapan and Germany, which are recording negative growth ofpopulation, several incentives are provided, to encourage the coupleto begat more and more children. Not only service benefits, but alsovaluable gifts are extended to those, who beget children, exceedingtwo or three. In our country also, the situation may not remain thesame, for long. Thus, the disqualification provided for under Section19(3) cannot be viewed in the same manner as the one, under Section19(1).

One of the recognized methods of interpretation of statutes is toconstrue a provision in such a way, as to meet an unforeseeneventuality. In such a case, the Courts would neither re-enact theprovision, nor water it down. It is known as beneficial interpretation,and it would only supplement the actual purport of the provision.

Maxwell, has this to say about beneficial construction.

“[W]here the usual meaning of the words falls short ofthe object of the legislature, a more extended meaning maybe attributed to them, if they are fairly susceptible of it. Previous editions of this work have referred to this relaxationof strictly literal principles of interpretation as beneficialconstruction: and the modern cases provide many instancesof the judges’ reluctance to stand upon the letter of a statute. They will not, of course, supply omissions, but where they arefaced with a choice between a wide meaning which carriesout what appears to have been the object of the legislaturemore fully, and a narrow meaning which carries it out lessfully or not at all, they will often choose the former. Beneficialconstruction is a tendency, rather than a rule.” (See Maxwell onThe Interpretation of Statutes –Twelfth Edition Page 92)

Further, the words in a statute cannot be understood simplyfrom the grammatical point of view. Words are used as a vehicle toconvey certain meaning by an individual or an agency. Many a time,the effort would not be successful, and the language would not be ableto convey the entire idea. Oliver Wendell Holmes, in one of his judgments, Gompers v. United States[[3]], observed, “…But the provisions of the Constitution are notmathematical formulas having their essence in their form;they are organic, living institutions transplanted from Englishsoil. Their significance is vital not formal; it is to be gatherednot simply by taking the words and a dictionary, but byconsidering their origin and the line of their growth…”

At another place, the learned Judge said, “…A word is not a crystal, transparent and unchanged;it is the skin of a living though and may vary greatly in colourand content according to the circumstances and the time inwhich it is used…”

If the matter is examined from the angle projected above,Section 19(3) of the Act has to be understood in such a way, that it saves the disqualification, where a couple had only one child beforethe commencement of the Act, and has given birth to twins or triplets,in the next issue. There is no valid reason as to why such anapproach be not adopted in the instant case. It is to be noted that thedisqualification, if attached, would remain for the rest of life. In fact, it ismore vigorous than the one, incurred for committing an offence. Strongand unequivocal basis must exist for the same. In the ultimateanalysis, what has accrued to the petitioner as a divine boon cannotbe transformed into a temporal bane. This Court is of the view thatthe petitioner cannot be said to have incurred disqualification,independent of the exemption granted in her favour.

The judgment of the Supreme Court in Javed’s case (2 supra)is not of any help to the 1[st] respondent. Provisions similar to Section19(3) of the Act were upheld. The petitioner does not challenge thelegality of that provision. The Supreme Court refused to set aside theprovision on hypothetical examples, such as a person having twins ortriplets. Setting aside provision is one thing and interpretation thereof,is another. The latter proceeds on the assumption that the provision islegal and valid.

Conclusion

The trial Court found fault with the Chief Executive Officer andthe District Panchayat Officer, respondents 2 and 3. It took the viewthat there was collusion between the petitioner, on the one hand, andrespondents 2 and 3, on the other hand. The only basis on which ithas drawn this inference is that, the matter is kept pending for long. Itwas pointed out that the 2[nd] respondent ought to have placed thematter before the 3[rd] respondent, immediately, on receiving therepresentation from the 1[st] respondent, and the latter, in turn, ought tohave filed a petition before the District Court. The conclusion of thetrial Court is reflected in para 21(g) of the judgment.

“Para 21(g): If these types of persons are tolerated,everybody will follow the same foot-steps and finally illegalelections will be declared and continued without remedy. Asthe respondents 2 and 3 failed to refer the complaint to theDistrict Court within two months, as contemplated under theAct, in the interests of justice and for the betterment of thesociety, these persons have to be prosecuted for the publicsake”.

After forming such an opinion, the Court proceeded to directprosecution of respondents 2 and 3. This Court is of the view that thetrial Court ought to have examined the scheme under Section 22 of theAct, in detail, before forming an opinion, as to conduct of respondents2 and 3, and maintained restraint in directing the prosecution of thesetwo officers.

From a perusal of Section 22, it becomes clear that theapproach to the District Court is not restricted to the District PanchayatOfficer alone. That is only one of several contingencies. The sectionitself directs that in case a complaint as to disqualification of a memberis received, and the concerned member denies it, access can be hadto the District Court for adjudication by, a) the member, who is allegedto have incurred disqualification; or, b) any other party, obviouslyreferring to the complainant and the executive authority.

Further the Executive Authority can approach the Court only ona direction by the Gram Panchayat or a Commissioner. When somany contingencies are involved, there was absolutely no basis to findfault with the respondents 2 and 3, much less to direct theirprosecution.

For the foregoing reasons, the writ petitions are allowed,holding that where an individual does not incur disqualification, under Section 19(3) of the Act, if he or she gives birth to a single child, afterthe Act came into force, the mere fact that twins or triplets are born outof such an issue does bring about disqualification, under the saidprovision. The order dated 03-10-2008 passed in O.P.Nos.689 of 2007 and 217 of 2008, is setaside.

There shall be no order as to costs.

_______________________

Dt. 31-12-2008. L. NARASIMHA REDDY,

J.

Note: Mark L.R. copies.(B/O)KO*

[1]1999 (4) SCC 526

[2]2003 (8) SCC 369

[3]233 U.S. 604 (1914)233 U.S. 604 (1914)