SINGH, J. - (1.) NATION's interest is supreme. Technicalities of law will have to bend before the larger interest of the country. Growing population is the greatest problem which the country is facing today. In the case of Air India vs. Negesh Meerza & Others (1), while considering the danger of growing population, the Supreme Court observed :- ". . . . 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 levles so as to meet the danger of over-population which, if not controlled,may lead to serious social and economic problems throughout the world. "
(2.) NO enactment which promotes the social and economic justice can be held to be ultra vires. Social justice is a recognition of a greater good to a larger number of persons of a country. The expression "social and economic justice" involves the concept of distributive justice which concerns with the removal of economic inequalities. But this concept of justice becomes unthinkable withoutcontrolling the population growth. No doubt, every citizen has a right to live with human dignity. But, how one can expect citizens of this country to have the human dignity and social equality when the population goes on increasing by leaps and bounds. If the existing rate of growth of population is allowed to continue it is bound to take the country to a very dangerous stage where persons may die of hunger and may not have a roof over their heads to live. Our resources are limited and the population is increasing alarmingly. What would be the result? It is for the country men to think over seriously and answer to themselves more seriously. The population explosion has to be controlled. But how? There are onlytwo ways :- 1. By self restraint and control; 2. By intervention of the legislature. When the first method has failed, the legislature has come forward by imposing reasonable restrictions in the interest of the State. It has enacted laws tocurb the menace of population growth by imposing certain restrictions, in the shape of disqualifications on the members of the local bodies such as Panchayati Raj and Municipalities, to hold the office. These provisions have been challenged through large number of writ petitions which have come before us.
(3.) THE entire bunch of writ petitions can be devided in two schedules :- 1. Schedule - A :- It consists of the writ petitions dealing with the constitutional validity of Section 19 (l) of the Panchayati Raj Act, 1994 (In short - `1994 Act'); 2. Schedule - B :- It consists the writ petitions challenging the validity of Section 26 (xiv) proviso (e) of the Rajasthan Municipalities Act (In short - `municipalities Act' ). Section 19 of the Panchayati Raj runs as follows :- "19. Qualifications for election as a Panch or a member.- Every persons registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless, duch person - (a) is disqualified by or under any law for the time being in force for the purpose of election to the Legislature of the State of Rajasthan: Provided that no person shall be disqualified on the ground that he is less than 25 years of age if he has attained the age of 21 years. (b) holds a salaried whole-time or part-time appointment under a local authority; (c) has been dismissed from State Government service for miscon- nduct involving moral turpitude and has been declared to be disqualified for employment in the public service; (d) holds any salaried post or place or profit under any Panchayati Raj Institution; (e) has directly or indirectly by himself or by his partner employer or employees, any share or interest in any contract with, by or on behalf of the Panchayati Raj Institution concerned while owning such share or interest in any work done for; (f) is a leper or is suffering from any other bodily or mental defect or disease rendering him incapable for work; (g) has been convicted by a competent court or an offence involving moral turpitude; (h) is for the time being ineligible for election under Section 38; (i) has not paid, for two months from the date of the presentation of the notice of demand therefor, the amount of any tax or fees imposed by the Panchayati Raj Institution concerned; (j) is employed as a legal practitioner on behalf of or against the Pan- chayati Raj Institution concerned; (k) has been convicted of an offence punishable under the Rajasthan Prevention of Mrityu Bhoj Act, 1960; or (l) has more than two children:- PROVIDED THAT - (i) a person shall not, by reason only of his being a share- holder in or a member of any incorporated company or a co- operative society registered under the law for the time being in force in the State of Rajasthan, be held to be interested in any contract entered between the Company or co-operative society and the Panchayati Raj Institution; (ii) for the purpose of clauses (c), (g) and (k) any person shall become eligible for election after a lapse of six years from the date of his dismissal or conviction, as the case may be, or earlier if he is declared eligible for election by a general or special order of the State Government in this behalf; (iii) for the purpose of clause (i), a person shall not be deemed to be disqualified if he has paid the amount of the tax or fee due from him before the date of filing his nomination papers; (iv) for the purpose of clause (1), a person having more than two children shall not be deemed to be disqualified for so long as the num- ber of children he has on the date of commencement of this Act does not increase. EXPLANATION :- For the purpose of Clause (1) Section 19, where the couple has only one child from the earlier delivery or deliveries on the date of com- mencement of this Act and thereafter, any number of children born out of a single subsequent delivery shall be deemed to be one equity. " Members of the Panchayati Raj Institutions are aggrieved against imposition of the restriction on having more than two children which is primarily incorporated in Section 19 (l) of the 1994 Act. On the basis of this provision in some cases only notices have been issued to the concerned members to show cause as to why they may not be declared as disqualified from continuing as member on account of giving birth to an additional child in the family raising the number of children to more than two; In some cases orders have been passed by the Chief Executive Officer declaring a particular mem- ber as disqualified to hold the office on account of having more than two children. Facts of each and every case are not necessary to be mentioned in the order. ;