In Javed & Ors. v. State of Haryana & Ors.,[1] the Supreme Court of India (the “Court”) considers whether a non-retroactive state law barring elected members of various local governments from having more than two children is violative of various articles of the Indian Constitution (the “Constitution”). The law was challenged by disqualified candidates who argued that the law was discriminatory, arbitrary and unreasonable, that it violated fundamental rights per Article 21, and interfered with religious freedom guarantees in Article 25.[2] The Court holds that the law is reasonable and not arbitrary or discriminatory given India’s overpopulation problem and the perception of a clear nexus between reducing population and encouraging local leaders to be role models.[3] The Court also holds that contesting and holding elected office are not fundamental rights, and even if they were, the public health limitation would mean that the law does not encroach on such rights.[4] But the focus of this paper is on the Court’s analysis with respect to religious freedom, where the Court in effect holds that the public health and welfare limitation must govern and that regardless, polygamy, and having more than two children is not an “integral part” of Islam and there is no conflict with the Muslim personal law.[5]
[1] Javed & Ors. v. State of Haryana & Ors. (2003) 8 SCC 369 (India).
[2] Supra note 2 (Article 25 of the Indian Constitution is analogous to the American 1st amendment’s religious freedom protections, but with an explicit public health limitation).
[3] Id.
[4] Id.
[5] See id. (India has separate personal codes addressing matters such as marriage for different religious communities..