By Nikhil Goyal
* A common Hindi slogan indicating the desirability of a married couple limiting their progeny to two.
In Javed & Ors. v. State of Haryana & Ors., 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. 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. 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. 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.
This case can be viewed as an attempt by the Court to harmonize sharī‘a with secular law, irrespective of sharī‘a’s actual content. But the decision is also about public policy in that the Court strongly supports efforts to reduce India’s population and a blanket ban on polygamy. The Court makes a number of precedential and constitutional arguments, but these are mere cover for its underlying rationales. The non-sharī‘a nature of the decision is made clear by the Court’s lack of attention to sharī‘a, and its focus on prior decisions by secular courts. Tellingly, the Court accepts lower courts’ characterization that polygamy is not an integral Islamic practice without serious enquiry.
The Court characterizes the religious freedom challenge as stating essentially that the Muslim Personal Code permits polygamy, which is for the purpose of procreation. It is not obvious that polygamy would be incompatible with the state law, but for a religious imperative to procreate with each spouse. The Court also restates Article 25 in relevant part, including the provision that “[s]ubject to public order, morality and health . . .all persons are equally entitled to . . . the right freely to . . . practice . . . religion.” Throughout the opinion, the Court makes clear that it considers India’s overpopulation a pressing threat to public order and health, citing Bertrand Russell to the effect that “[p]opulation explosion is more dangerous than Hydrogen Bomb.” The Court’s view that “[a] bare reading of this Article” and its public health exception is inaccurate determines its decision. If the public policy problem is serious enough, then virtually any religious freedom objection can be overcome. In a comparative mode, the Court cites a U.S. case to bolster its argument that polygamy is a threat to public order, analogizing it to human sacrifice – this is odd, given that the Haryana law does not bar polygamy. This may be because the Court is trying to signal that laws barring polygamy generally might also pass muster.
One of the Court’s central assumptions is that polygamy and procreation are not mandated by sharī‘a, and that non-mandatory religious practices are “essential and integral” practices covered by Article 25. But the Court does not bother to explain why the definition of integrality applies across religions; there is no examination of Islamic law sources on this topic. Instead, the Court considers secular cases, including one case holding that a ban on cow slaughter was acceptable given that not all Muslims sacrifice cows on Eid. Some of these cases seem disanalogous – and it is not obvious that the fact that not all Muslims engage in a practice indicates that it is not mandatory. There are various Islamic schools of thought and different sects with different practices.
The Court also makes a number of other precedential arguments, some of which seem spurious. The Court attempts to give a secular tone to its argument by citing an earlier case upholding a law banning polygamy for Hindus. The Court in effect argues that as Hindu tradition considers having a son a necessity, polygamy could be beneficial (presumably in cases where a man has an infertile wife), but such considerations fell by the wayside due to public health concerns. The connection between enabling Hindus to have sons and polygamy seems tenuous at best, in contrast to polygamy, which is explicitly sanctioned in the Qur’ān. More convincingly, the Court also cites the implementation of statutory divorce despite the non-existence of divorce in Hindu tradition, although it does not define Hindu tradition. The implication is clear – if the legislature determines a religious practice to be against public policy, then barring that practice will not violate religious freedom. The Court spells this argument out, stating directly that when the legislature considers monogamy to be salutary, a court has no authority to overturn that decision.
In sum, this case is a rejection of sharī‘a in India by the Court, in favor of uniform secular law and deference to legislative determination of public policy.
 Javed & Ors. v. State of Haryana & Ors. (2003) 8 SCC 369 (India).
 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).
 See id. (India has separate personal codes addressing matters such as marriage for different religious communities..