B.R. Arora, J.
1. This writ petition and the other eleven writ petitions mentioned in the Schedule, raise the common controversies, namely (i) the validity of Section 19 (L) read with Section 39 of the Rajasthan Panchayati Raj Act, 1994; (ii) the legality and correctness of the orders passed by the respective Chief Executive Officer, by which the petitioners were declared disqualified; and (iii) the jurisdiction of the Chief Executive Officer to hold an enquiry in the matter of declaring a Panch or a Member of the Panchayat Raj Institution to continue as the Sarpanch as he has incurred the disqualification on account of birth of an additional child in the family raising the number of the children to more than two. As all these writ petitions involve the common questions of law and facts, therefore, they are being disposed of by this common judgment.
2. The petitioner was declared elected as the Sarpanch of Gram Panchayat, Banera (district Bhilwara) on 4-2-95. While he was acting as the Sarpanch, a notice dated 9-7-96 issued under Section 39(2) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred as 'the Act') was served on the petitioner on 12-2-96 stating therein that on account of increase in the number of the children in the family to more than two after 27-11-95, the petitioner has rendered himself ineligible to hold the Office of the Sarpanch and, therefore, why he should not be declared 'disqualified' to hold the Office of the Sarpanch of Grain Panchayat, Banera?
3. The petitioner filed reply to this notice challenging the jurisdiction of the Chief Executive Officer to hold the enquiry on the grounds that (i) no notification has been issued declaring the Chief Executive Officer to be the competent authority under Section 2(vii) of the Act; (ii) the enquiry can be conducted only by the Judicial Authority under Section 40 of the Act as the petitioner does not admit the allegations made in the notice; and (iii) copy of the complaint has not been supplied to him.
4. The Chief Executive Officer passed the order Annexure, 3 on 17-7-96 declaring the petitioner as 'disqualified' to hold the Office of the Sarpanch and further declared the Office of the Sarpanch as becoming vacant. The petitioner has challenged this order Annexure 3 on the grounds that (i) the order has been passed in utter disregard of the principles of natural justice and without dealing with the preliminary objections raised by the petitioner; (ii) since the petitioner has not admitted the allegations made against him in the notice, it was imperative and obligatory on the part of the competent authority to refer the matter for judicial determination on the question of disqualification of the petitioner and the Chief Executive Officer has no authority to determine the disqualification; (iii) the disqualification envisaged under Section 19 of the Act deals with the qualification at the time of election and not any subsequent disqualification; and (iv) the question regarding disqualification can be raised within thirty days by filing an election petition in accordance with Section 43 of the Act read with Rule 80 of the Rules and cannot be challenged otherwise. The petitioner has further submitted that Section 19(L) read with Section 39-A is ultra vires of the Constitution of India and there is no reasonable nexus with the object sought to be achieved in enacting these provisions. In the other writ petitions, also, the legality of the orders has been challenged almost on the identical grounds.
5. Learned Additional Advocate-General as well as the learned counsel appearing on behalf of the Chief Exective Officer and Zila Parishads, on the other hand, have supported the order passed by the Chief Executive Officer and submitted that the Chief Executive Officer was competent to pass the order as there was failure to respond by denial on behalf of the petitioner regarding the allegations made in the notice and no reply to the notice was received till the matter was decided by the Chief Executive Officer. The learned Additional Advocate-General as well as the learned counsel for the respondents have further submitted that the provisions of Section 19(L) read with Section 39 of the Act do not suffer from the vice of discrimination or arbitrariness and they have been made by the Legislature within its competence.
6. Before embarking upon the discussion on the controversy involved in the writ petitions, we think it proper first to state the facts under which the relevant provisions of the Act were enacted.
7. Panchayats are the institutions of the Local Self-Government in the rural areas. Article 40 of the Constitution, which enshrines one of the Directive Principles of the State Policy, lays down that the State shall take steps to organise Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as the unit of Self-Government. Looking to the past experience of long years though the Panchayat Raj institutions in the rural areas were in existence but these institutions failed to acquire the status and dignity of viable and responsive people's bodies. It was, therefore, considered necessary to enshrine in the Constitution itself certain basic and essential features of the Local Authorities to impart certainty, continuity and strength to them. To achieve this object, the Parliament passed the Constitutional (Seventy-three) Amendment Act, 1992 which received the assent of His Excellency the President of India on 20-4-93. By this amendment, a new Part IX consisting of Articles 243 to 243 relating to Panchayats, was inserted in the Constitution of India. This amendment, also, added Schedule XI to the Constitution, in which a List of subject-matters has been given and the matters given in Article 243G with respect to the powers, authority and responsibility will vest in the Panchayats.
8. The striking feature of the new provisions inserted in the Constitution by Articles 243 to 243 are that they are in the nature of basic provisions which are to be supplemented by law made by the respective State Legislatures because Local Government including the Self-Government Institutions for the rural areas, is an exclusive State Subject under Entry 5 of List II of Schedule VII. The Union, thus, cannot enact any law to create right and liability relating to these subjects. The Rajasthan Legislative Assembly, therefore, enacted this Rajasthan Panchayati Raj Act. The Rajasthan Panchayati Raj Act is an implementing legislation undertaken by the State of Rajasthan within the frame-work of the of Scheme/Out-line set-out by the Union by inserting Part IX in the Constitution.
9. Section 19 of the Act deals with the qualification for election as a Panch or a Member and provides that every person registered as a voter in the List of Voters of a Panchayat Raj Institution, shall be qualified for election as a Panch or, as the case may be, a Member of such Panchayat Raj Institution unless such person is disqualified for the conditions mentioned in Sub-clauses (a) to (L). Sub-clause (L) of Section 19 provides that a person is disqualified to be elected as a Panch or a Member to the Panchayat Raj Institution if he has more than two children.
10. Proviso (iv) to Section 19 states that the birth during the period from the date of commencement of this Act, hereinafter in this proviso referred to as the date of such commencement to 27-11-95, of an additional child shall not be taken into consideration for the purpose of disqualification mentioned in Clause (L) and a person having more than two children (excluding the child, if any, born during the period from the date of such commencement to 27-11-95) shall not be disqualified under that Clause for so long as the number of children he/ she had on the date of commencement of this Act, does not increase.
11. The Explanation appended to Section 19 (L) states that for the purpose of Clause (L) to Section 19 where the couple has only one child from the earlier delivery or deliveries on the date of commencement of this Act and thereafter any number of children born out of a single subsequent delivery, shall be deemed to be one entity.
12. Section 39 of the Act deals with the cessession of Membership. The Section provides that subject to the provisions of Section 40, a Member of a Panchayat Raj Institution shall not be eligible to continue as the Member if (a) he is or becomes subject to any disqualification specified in Section 19. Sub-section (2) of Section 39 states that whenever it is made to appear to the competent authority that the Member has become ineligible to be continued as a Member for any of the reasons specified in Sub-section (1), the competent authority may, after giving him an opportunity of hearing, declare him to have become so ineligible and thereupon he shall vacate the office as such a Member.
13. The proviso to Sub-section (2) further provides that no such opportunity shall be given if such person has, under Section 40, been determined by the Judge to be, or to have become ineligible under Section 19. Section 40 of the Act deals with the powers of the Judge to decide the question of disqualification. Section 40 states that whenever it is alleged that any Member of the Panchayat Raj Institution is, or has become, disqualified and such member does not admit the allegations or whenever any Member is himself in doubt whether or not he is or has become disqualified for being a member, such member or the competent authority or any Member of the Panchayat Raj Institution concerned, may apply, to the District Judge having jurisdiction for a decision on the allegations or doubt.
14. In the light of these provisions enacted by the State Legislature, now we will like to consider the various controversies involved in these writ petition.
15. The first ground on which the order of the Chief Executive Officer has been challenged by the petitioners is that no notification appointing the Chief Executive Officer as the 'competent authority' under Section 2(vii) of the Act has been issued and, therefore, the Chief Executive Officer was not the competent authority to pass the order declaring the petitioners as the disqualified persons.
16. The contention raised by the learned counsel for the petitioners is devoid of any substance because the respondents, along with the reply, have placed on record the Gazette Notification dated 26-12-94 (Annexure R. 6) appointing the Chief Executive Officer of the concerned Zila Parishad as the competent authority under Section 2(vii) of the Act in the case of Sarpanch or a Panch, relating to the disqualification under Section 39(2) of the Act. In view of this Notification appointing the Chief Executive Officer as the 'competent authority', the contention raised by the learned counsel for the petitioners is bereft of any substance.
17. The next ground on which the order declaring the petitioners as disqualified to hold the Office, has been challenged is that in view of the provisions of Sections 39 and 40 of the Act, the Chief Executive Officer was not competent to hold an enquiry and to declare the petitioners as being disqualified to hold the Office.
18. Sub-section (2) of Section 39 provides the manner in which the action has to be taken by the Chief Executive Officer when it is made to appear to him that the Member has become ineligible to continue as a Member for any of the reasons specified in Sub-section (1) of Section
39. This sub-section provides that after giving an opportunity of hearing to the person concerned, the Chief Executive Officer may declare the person concerned to be ineligible, but no such opportunity is required when the determination has already been made by the Judge under Section 40 of the Act.
19. Section 40 authorises the Judge to decide the question of disqualification when such member, against whom the allegations are made, does not admit the allegations. Section 40 further provides that the question regarding disqualification can be raised before the Judge by the competent authority or by any Member who is in doubt whether or not he is or has become disqualified to be a Member or by any Member of the Panchayat Raj Institution.
20. Section 39 starts with the expression "subject to the provisions of Section 40". The expression "subject to the provisions of Section 40" means 'conditional upon' the observance of the conditions prescribed and the restrictions imposed by Section 40. The expression introduces a condition or a proviso. The expression "subject to the provisions of Section 40" is not merely referential but means subject to the compliance of Section 40. A harmonious consideration of Section 39 and Section 40, therefore, reflects that the power of the Chief Executive Officer has been taken away in respect of the enquiry entrusted to the Judge under Section 40 of the Act. The enquiry regarding the disqualification, therefore, falls within the exclusive domain of the Judicial Authority where there is adenial of the allegations.
21. The Chief Executive Officer can pass an order under Section 39 and can hold an enquiry only where there is no denial of the allegations, i.e., there is an admission of the allegations by the person concerned, otherwise in all other matters relating to the disqualification under Section 39, the Chief Executive Officer, to whom a complaint is made, or it is made to appear to him that the member has become ineligible to be continued as a member for any of the reasons specified in Sub-section (1) of Section 39, he is obliged to refer the question of disqualification for adjudication to the District Judge for his decision, as the enquiry envisaged falls within the excluded field of power of the Chief Executive Officer. It is the decision of the Judicial Authority under Sub-section (3) of Section 40 on the question of disqualification which will be final and after the decision is given by the Judicial Authority under Section 40 regarding the disqualification, the Chief Executive Officer thereafter can declare the person concerned to have become ineligible to hold the Office and on such declaration being made by the Chief Executive Officer, the Panch or the Member of the Panchayat Raj Institution shall vacate his/ her Office as such a Member. The Chief Executive Officer was, therefore, not right to hold the enquiry in the present matters as there was no admission of the allegations by the petitioners.
22. Admission is a positive act of acknowledgment or confession. It is a conscious and deliberate act and not something which could be inferred. A party, by a voluntary acknowledgment of the existence of certain facts during the judicial or quasi-judicial proceedings, can concede as true or valid the allegations made in the proceedings or in the notice. This formal act of acknowledgment during the proceedings waives or dispenses with the production of evidence by conceding for the purpose of litigation that proposition of facts claimed by the opponent is true. Mere failure to respond by denial or silence or inaction, in response to the notice, cannot be treated as an 'admission'. No acknowledgment or implied admission can be inferred from silence, inaction or failure to act. Admission with respect to existence of certain facts, which are in issue or relevant to an issue in the case, should be in express terms. Merely because the allegations have not been denied, it cannot be admitted to be established. The omission to answer the notice by itself cannot be treated as an evidence of truth of the statement/allegations made in the notice. The allegations can be said to have been proved only when there is a conscious and deliberate admission in express terms.
No such admission has been made by the petitioners in these proceedings, rather there were denial of the allegations by the petitioners. In this view of the matter it is only after holding the enquiry under Section 40 of the Act by the Judge concerned that the declaration regarding disqualification could have been made. No such enquiry in the present case was held by the Judicial Authority under Section 40 of the Act and, therefore, the order passed by the Chief Executive Officer declaring the petitioners as 'disqualified' to hold the office, are therefore, wholly without jurisdiction.
23. The next contention raised by the learned counsel for the petitioners is that Section 19(L) deals with the disqualification which was in existence prior to the election and subsequent disqualification cannot disentitle the petitioners to hold the office and when once the person is elected, the subsequent event cannot hold the elected representative disqualified to continue in the Office.
24. Section 39(1)(a) clearly speaks of a person not being eligible to continue to be such member if he is, or has become, subject to any of the disqualifications specified in Section 19. Section 19(L), therefore, stands incorporated in Section 39(1)(a) also for continuance as a Member of the Panchayat Raj Institution and makes a provision for declaring a person disqualified who has incurred the disqulification after being elected as the Ranch or a Member of the Panchayat Raj Institution. Clauses (b) to (f) also deal with the disqualification which are incurred by the Ranch or a Member of the Panchayat Raj Institution after he was declared elected. The word "becomes" used in Sub-section (a) of Section 39 and the word "continue" used in Section 39(2) clearly speaks about the disqualifications incurred by the elected representative after he/she was declared elected. Thus, the elected Sarpanch, Panch or a Member can be declared to be disqualified if he/she incurred the disqualification mentioned in Clauses (a) to (f) of Section 39 after the election and, therefore, they cease to be the Sarpanch or Member of the Panchayat Raj Institution as they are not eligible to be continued as such members on account of their incurring the disqualification mentioned in Clauses (a) to (f) of Section 39. The contention raised by the learned counsel for the petitioners is, therefore, bereft of any substance.
25. The next ground on which the order passed by the Chief Executive Officer has been challenged is that after a person is declared elected, his election can be challenged only by way of filing an election petition in accordance with Section 43 of the Act read with Rule 80 of the Rules.
These two provisions make a provision calling in question the election of any candidate by presenting an election petition on the prescribed grounds and within the prescribed period. The election of a person can be called in question under Section 43 only on the grounds which are in existence at the time of filing the nomination and holding the election. If any person incurred the disqualification subsequent to his election envisaged under Section 39(1) read with Section 19(L) then the action can be taken against that candidate only under Section 39 and Section 40 and not by way of filing an election petition under Section
43. Section 43 deals with the challenge to the election of a particular person on the ground existing at the time of election and not on the ground of disqualification incurred later on.
26. Now coming to the validity of Section 19 (L) read with Section 39 of the Act. The validity of the provision has been challenged on the grounds that (i) there is no authorisation under the Constitution to the Legislature to legislate such provision; (ii) the provisions are arbitrary and discriminatory and are against the basic features of the Constitution; (iii) infringe the privacy and right of procreation of more than two children and thus violative of Article 21; (iv) there is no reasonable nexus with the object sought to be achieved; and (v) it is violative of Articles 25 and 26 of the Constitution of India.
27. The arguments advanced by the learned counsel for the petitioners challenging the validity of the provisions of Section 19 read with Section 39 of the Act, though appear to be attractive but are bereft of any substance. Article 243F(1) of the Constitution, which is in the nature of basic provision, provides that a person shall be disqualified for being chosen as. and for being a member of a Panchayat. Article 243F thus permits a provision being raised by the State Legislature laying down disqualification of being chosen and to be continuing as a member of the Panchayat Raj Institution. The, conditions, therefore, can be laid down by the State Legislature while legislating the law relating to the disqualification for being chosen as well as for being continued as a Member of the Panchayat. We are, therefore, of the view that the Rajasthan Panchayati Raj Act, 1994, which is an implementing legislation undertaken by the State Government, has been legislated within the framework of the Scheme set-out by the Constitution in accordance with Article 243F of the Constitution.
28. Besides Article 243F(a), Entry No. 5 of List II of Schedule VII authorises the State Legislature to make any law relating to Local Government. Entry No. 20-A of List III, i.e., the Concurrent List of Schedule VII of the Constitution authorises the Union of India and the State Legislature to frame the law on population control and family planning. Entries mentioned in Schedule VII are the fields of legislation and not the powers. Power to legislate are drawn from the relative Articles of the Constitution. The State Legislature derives powers to enact laws relating to the Local Government from Articles 243F and 246 of the Constitution of India. To enact a law relating to the Local Bodies, is in the exclusive domain of the State Legislature. We, therefore, uphold the validity of these provisions in view of Article 246, Entry 5 of List II and Entry 20-A of List III of Schedule VII of the Constitution of India.
29. Section 19(L), thus, cannot be said to be enacted by the legislature in excess of the powers vested in it, rather it is within the competence of the State Legislature to legislate such law under Article 246 read with Entry 5 of List II and Entry 20-A of List III of Schedule VII of the Constitution of India.
30. The next ground on which the validity of Section 19(L) has been challenged is that it is arbitrary and discriminatory. The contention of the learned counsel for the petitioners is that the disqualification to contest the election or to continue as the elected representative has been provided by Section 19(L) of the Panchayati Raj Act only with respect to the election of a Sarpanch, Panch or a member of the Panchayat Raj Institution but no such conditions or restrictions have been made with respect to the Members of Parliament or a Member of State Legislative Assembly in the Representation of People Act, or to other elections like that of Cooperative Societies etc. and thus violates Article 14 of the Constitution of India.
31. The principle of equality enshrined in Article 14 of the Constitution does not mean that every law must have a universal application. Article 14 does not forbid classification for the purpose of legislation provided the classification is based on intelligible differentia and is not arbitrary. Every classification though likely to produce an inequality but inequality alone cannot determine the question of Constitutionality. The State, for the purpose of giving effect to its policies, can make laws classifying and distinguishing persons to be subjected to such law. The mandate of Article 14 is that all persons similarly situated should not be discriminated and not that the same Rule of law should be applicable to all the elected bodies. By the process of classification the State has the power to make the law for a particular set of persons. Article 14 cannot be used for declaring a law made by the State unconstitutional by a process of comparative study of the provisions made in the State Law and the Law made by the Centre. Two laws made by different legislature, i.e., one by the Centre and the other by the State, cannot be read in conjection.
32. It has been held by the Supreme Court in State of Madhya Pradesh v. G.C. Mandawar (AIR 1954 SC 493 that "Article 14 does not authorise the striking down of a law of one State on the ground that it contrasts with the law of another State on the same subject, its provisions are discriminatory nor does it contemplate a law of the Centre or of a State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the two enactments. The sources of authority for the two statutes being different, Article 14 of the Constitution can have no application."
The same view was reiterated by the Supreme Court in Sant Lal Bharti v. State of Punjab, AIR 1988 SC 485.
33. The provisions of Section 19(L), therefore, cannot be declared as arbitrary or discriminatory as no provision has been made with respect to the Members of Parliament, Members of the State Legislative Assembly or the Members of Cooperative Societies etc. etc. The Representation of the People Act relating to the Members of Parliament and the Members of State Legislative Assemblies, has been enacted by the Centre while the present law has been enacted by the State Legislative Assembly. Article 14 of the Constitution has no application in the present case because the sources of Authority for both these laws are different. It is the function of the Legislature of the State concerned to follow the method considered to be suited for that State. The law can be made applicable gradually in a particular set of circumstances to a particular set of persons.
34. Article 14 does not prevent the Legislature for the gradual introduction of reforms. It is open to the State Legislature to select even a single institution for the purpose of implementing its Policy. Implementation of a Policy in a phased manner is not prohibited by Article 14 of the Constitution.
It has been held by the Supreme Court in Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna v. State of Bihar, AIR 1988 SC 1136 (para 15) :
"There can be no doubt that when nationalisation has to be done in a phased manner, all the institutions cannot be taken over at a time. The nationalisation in a phased manner contemplates that by and by the object of nationalisation will be taken over. Therefore in implementing the nationalisation of private institutions in a phased manner, the Legislature has started with the Institute. Therefore, the question of singling out the Institute or treating it as a class by itself does not arise, for as the provisions of the Act and the Ordinance go, all the private educational institutions, as defined in Section 2(a) of the Act, will be nationalised in a phased manners"
35. Section 19(L) and Section 39 of the Act, therefore, clearly show a nexus between the classification and the object of the Act under consideration and these provisions are, therefore, not violative of Article 14 of the Constitution of India.
36. The validity of these provisions have, also, been challenged on the ground that they are violative of Article 21 of the Constitution of India as it puts restrain on the inherent and natural human right of procreation of third and subsequent child and infringes the right of privacy.
We have considered this aspect of the case, also. What is guaranteed under Article 21 is that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Right to marry and right to procreation of third and subseqent child is neither a Common Law right nor a right recognised or embodied in the Constitution. Section 19(L) forbids a registered voter to be elected as a Sarpanch, Panch or a Member of a Panchayat Raj Institution if he has more than two children. Section 39 imposes a condition for the eligibility of his continuance in the Office if he/she becomes subject to any of the disqualification specified in Section 19 of the Act.
37. These provisions have been enacted by the Legislature to control the menace of population explosion. Growing population is one of the major problem which India is facing today. Population progresses by geometrical progression while the resources increase only at an arithmetical rate. Bertrand Russel has stated "Population explosion is more dengerous than the hydrogen bomb." The legislative power to deal with the population matter effectively, purposely, meaningfully, objectively and efficiently stem basically from the social policy contained in the Directive Principles of the State policy enshrined in Articles 39(e)(f), 41,43,45 and 47 of the Constitution of India. This social policy is designed to secure social order for the promotion of welfare of the people, adequate means of livelihood, raising the level Of nutrition and standard of living, improving public health etc. These objectives can be achieved if, the rapidly increasing population is controlled and the rate of population growth is essentially minimised otherwise all these policies will remain in vacuum. Imposing the conditions by providing the disqualification in the election of the Panchayat Raj Institutions is a first step to achieve this goal. The Leaders at the grass-root level have to put an example before the electorates. The disqualifidation provided in Section 19(c) cannot be said to be against the basic human dignity or against the right to life and personal liberty. The right to be elected is neither a fundamental right nor a Common Law right. It is a statutory right which flows from the statute. A statutory right created under the statute is subject to the limitations provided under a particular statute. According to Section 19, every person registered as a voter of a Panchayat Raj Institution, is qualified for election as a Panch or a Member of the Panchayat Raj Institution. The right to be elected, thus, flows from Section 19 of the Act and, therefore, this right accrues to a person concerned is subject to the restrictions contained in Section 19 or other provisions of the Act.
38. It has been held by the Supreme Court in Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983, that a right to elect, fundamental though it is to democracy, is, anomalously enough neither a fundamental right nor a Common Law right. It is pure and simple a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations, they are and, therefore, subject to statutory limitations."
39. Right to privacy and liberty are not absolute rights. A law imposing reaonable restrictions upon it for compelling interest of State must be held to be valid. The restriction imposed in Section 19(L) does not outrage the dignity of the individual. The object of this provision is to control population growth and family planning and such type of interference is necessary in a democratic society in the economic welfare of the country. The restrictions have been laid down with a social purpose, i.e., to fulfil the mandate given in the Directive Principles enshrined in the Constitution. If the population growth is not controlled and family planning is not observed then looking to the limited sources available with the country, it will be difficult for the State to achieve these goals.
40. The Supreme Court, in Air India v. Negesh Meerza (1981) 4 SCC 335 : (AIR 1981 SC 1829) considering the danger of over-population and the necessity of the family planning programme, observed :--
"In the first place the provision preventing the third pregnancy with two existing children would be in the larger interest of the health of the Air Hostesses concerned as also for the good up bringing of the children. Secondly, as indicated above, while dealing with the Rule regarding prohibition of marriage within four years, same considerations would apply to a bar of third pregnanc where two children are already there because when the entire world is facing with the problem of population explosion, it will not only be desirable but absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of over-population which, if not controlled, may lead to serious social and economic problems throughout the world."
41. Law is enacted to serve the need of the society. It has to keep pace with the aspirations and need of the society as well as to take into consideration the changing concept of the value. It is only with an intention to serve the social purpose, namely, to control the problem of papulation explosion that these provisions have been enacted. We fail to find any constitutional infirmity or any element of arbitrariness in these provisions. There is no invasion of any constitutional right of any person. There is, also, no invasion on the part of the Legislature in marital right of a person concerned or a right or procreation of children. It is a statutory right guaranteed under the Panchayati Raj Act to be elected but that right is with certain restrictions and if somebody wants to assert that right, he has to abide by such restrictions because this statutory right is subject to statutory restrictions contained in the Act. We are, therefore, of the opinion that the restrictions imposed in Section 19(L) neither outrage the dignity of a person nor it infringes any of the fundamental rights, Common Law right or a marital right of procreation of a child.
42. We, also, fail to understand how the provisions of Section 19(L) and Section 39 of the Act are against the basic structure or features of the Constitution. There is a reasonable nexus in framing these provisions with the object sought to be achieved. The object which is sought to be achieved is to implement the family planning programme and restrict the family to check the population explosion which is one of the major problems which India is facing today. Though having more than two children does not, in any way, affect the workings of the Sarpanch, Panch or a Member of a Panchayat Raj Institution but the population explosion has affected the economic condition of the State and it is with the purpose to implement the mandate of the Directive Principles of the State Policy that this measure was considered necessary. These provisions according to us also, do not violate Articles 25 and 26 of the Constitution of India as there is no invasion of any of the right to freedom of conscience and free profession, practice and propagation of religion. These provisions, also, do not invade the right of petitioners of freedom to profess his/her religious affairs. A person out of the marital life, can produce more than two children but in that case the statutory right conferred upon a voter under the Act will not be available to him as these are the rights created under the statute and are subject to the statutory limitations. There is, thus, no violation of Articles 25 and 26 of the Constitution of India.
43. We are, therefore, of the opinion that Section 19(1)(L) and Section 39 of the Rajasthan Panchayati Raj Act, 1994 are not violative of any of the provisions of the Constitution of India.
44. In the result, the writ petitions filed by the petitioners are partly allowed. The validity of Section 19(1)(L) and Section 39 of the Rajasthan Panchayati Raj Act, 1994 is upheld but the order Annexure-3 in this writ petition, as well as the orders passed in the writ petitions mentioned in the Schedule, declaring the petitioners as 'disqualified', are quashed and set aside as being passed by the Chief Executive Officer without an enquiry being conducted by the Judicial Authority under Section 40 of the Act.