Case Background
Two civil writ petitions, registered as CWJC No. 14221 of 2022 and CWJC No. 14233 of 2022, were filed before the Patna High Court. Both were treated as public interest litigations.
The petitioners challenged a letter bearing No. 50-24/2022-3502 dated 02.09.2022, issued by the State Election Commission, Bihar. This letter clarified that if a candidate in municipal elections has three children and gives one of them in adoption, the candidate will still be treated as the biological parent of that child.
According to the letter, such a candidate would continue to fall foul of the disqualification clause relating to the two-child norm in the Bihar Municipal Act, 2007. The petitions sought quashing of this letter.
The petitioners also prayed for a declaration that once a child is given in adoption, the biological parents cannot be treated as parents of that child for the purpose of counting number of children under Section 18(1)(m) of the Bihar Municipal Act, 2007. They argued that, as a result, such a person should not be disqualified from contesting municipal elections.
What the Court Examined and Decided
The Bench comprising Hon’ble the Chief Justice and Hon’ble Mr. Justice S. Kumar heard the matter and delivered a CAV judgment on 04.10.2022.
The core question before the Court was simple but important: if a municipal election candidate has three children and later gives one child in adoption, can that candidate escape the disqualification under Section 18(1)(m) of the Bihar Municipal Act, 2007, which restricts candidates to “not more than two living children”?
The petitioners were represented by counsel who argued that the State Election Commission’s letter was arbitrary and illegal. They said the Commission had given a meaning to Section 18(1)(m) that the law itself does not contain.
The petitioners stressed that Section 18(1)(m) only speaks of a person “not having more than two living children one year after the commencement of the Act”. They highlighted an example already recognised under the statute: if one of three children dies, the person can no longer be said to have more than two “living” children. Hence, such a person is not disqualified.
Using this logic, they argued that a child given in adoption should also be treated as no longer part of the biological family. For this they relied heavily on Section 12 of the Hindu Adoption and Maintenance Act, 1956. This provision states that an adopted child shall be deemed to be the child of the adoptive parents “for all purposes”, and that from the date of adoption “all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced” by ties in the adoptive family.
The petitioners further submitted that the Hindu Adoption and Maintenance Act is a Parliamentary law. Therefore, they argued, no State law or administrative letter or circular can change the legal meaning of adoption as set out in this central legislation. In their view, once a child is validly adopted, the legal relationship with the birth parents ends, and any disqualification based on that child would be unsustainable.
They also referred to Section 63 of the Juvenile Justice (Care and Protection of Children) Act, 2015. This provision similarly states that once a court issues an adoption order, the adopted child becomes the child of the adoptive parents as if born to them, and all ties with the family of birth stand severed.
Based on these two central enactments, the petitioners contended that the Commission’s notification had “effectually changed the meaning of the word ‘adoption’”. They also argued that the Bihar Municipal Act, 2007 itself does not speak about the status of the parents who give a child in adoption, nor about the rights of such children. In their view, the Commission could not step in and fill this gap through a mere letter.
The petitioners further submitted that the object of Section 18(1)(m) is to discourage population growth. According to them, if a person with three children gives one in adoption, the burden on population is effectively reduced and there is no reason to treat such a person as disqualified. They claimed that there was no rational connection between the object of population control and the impugned letter.
Having noted these arguments, the Court turned to the legal position under the Constitution and various Supreme Court judgments.
The Court first reiterated the settled law under Article 14 of the Constitution. Article 14 does not prohibit reasonable classification. A classification survives constitutional scrutiny if it is based on an intelligible differentia and if that differentia has a rational link with the object of the statute.
The Bench then observed that statutes imposing a two-child norm or similar restrictions for contesting elections are not new. Several States, including Haryana and Odisha, have already enacted such laws, and they have withstood judicial scrutiny.
The Court relied on the Supreme Court decision in Javed v. State of Haryana, where Section 175 of the Haryana Panchayati Raj Act, 1994 was challenged. Under that law, a person with more than two children was disqualified from being a member of Panchayat Samiti or Zila Parishad. The Supreme Court rejected the argument that the number of children has no bearing on a person’s ability to hold public office, holding that there was “no merit in this submission”.
The Patna High Court noted that in Javed, the Supreme Court looked at Article 243-G and the Eleventh Schedule entries relating to family welfare and women and child development. Even though there is no exactly similar entry for municipalities, the Patna High Court held that municipal bodies play an important role in societal development. In the present times, it said, family planning and welfare are “undoubtedly an essential aspect of societal development”.
The Court quoted paragraph 18 of Javed, where the Supreme Court explained that reforms may start at the grass-root level, and that imposing a two-child norm for Panchayat members was a legitimate way to participate in the national movement for population control. Panchayats are institutions of local self-governance in villages; municipalities perform the same function in towns and cities. Therefore, the reasoning in Javed fully applied to municipal laws like the Bihar Municipal Act, 2007.
The Bench then referred to Minasingh Majhi v. Collector, Nuapada and Another. In that case, the Supreme Court was faced with a similar argument: that once one child was given in adoption under the Hindu Adoption and Maintenance Act, 1956, that child had ceased to be a member of the biological family. Therefore, it was argued, though the person had three biological children in total, there was no violation of the two-child norm under the Orissa Gram Panchayats Act, 1965.
The Supreme Court rejected this contention as meritless. The Patna High Court cited this decision directly against the petitioners’ key argument in the present case.
The Bench also noted the decision in Sunil Kumar Rana v. State of Haryana, where the Supreme Court once again upheld a similar two-child disqualification in the context of municipal offices. The Supreme Court described the legislative mandate as clear and in public interest, and observed that the right to contest for membership of a municipal body is purely a statutory right, not a constitutional or fundamental right. Therefore, strict conditions attached to that right, including child-number based disqualification, were held not to be arbitrary or unreasonable.
Turning back to the Bihar Municipal Act, 2007, the Court pointed to the provisions describing the functions of municipalities. Under Section 3(g), municipalities are to advance civic consciousness on public health and general welfare, including by organising discourses, seminars and conferences. Under Section 3(5)(f), they are to run campaigns for dissemination of information vital for public welfare. Under Section 6(c), they must disseminate information of public interest.
The Court held that these responsibilities “would include undoubtedly the areas of family planning and welfare”. The logic was clear: those who are elected to municipal bodies are expected to promote public awareness about family welfare and planning. If they themselves do not follow or understand the importance of such measures, they cannot effectively discharge these functions.
The Court referred back to the Supreme Court’s finding that the argument – that number of children does not affect a candidate’s competence – is “unfounded”. Taking the opposite view, the Court held that the number of children does have an impact, because it connects directly to the broader public programme of population control and welfare.
In this backdrop, the Patna High Court concluded that the petitioners’ challenge could not be accepted. The Court held that in light of the decisions of the Supreme Court, especially on adoption and two-child norms, the petitions were without merit.
Contrary to the petitioners’ stand, the Court did not find the notification of the State Election Commission to be arbitrary or illegal. It held that the notification did not suffer from any such vice.
Accordingly, the writ petitions were dismissed. All interlocutory applications, if any, were also disposed of. Counsel for the State Election Commission undertook to communicate the judgment to the concerned authority immediately.
Why This Judgment Matters
This decision is important for anyone planning to contest municipal elections in Bihar. It makes clear that the two-child norm under Section 18(1)(m) of the Bihar Municipal Act, 2007 is strict.
If a person has more than two children, giving one child in adoption will not help them avoid disqualification. The biological relationship at the time of birth and total number of children remain relevant for the purpose of the election law.
The judgment also reinforces that the right to contest in local body elections is not fundamental; it is a statutory right which can be regulated by conditions aimed at public welfare, including population control and family planning.
For citizens, it underlines that laws relating to population control can be linked to eligibility for public office. For lawyers and policy workers, it signals that administrative clarifications issued by the State Election Commission in line with the object of the statute and supported by Supreme Court case law are likely to be upheld.
Legal Issues and Answers
- Issue: Can a municipal election candidate with three biological children avoid disqualification under Section 18(1)(m) of the Bihar Municipal Act, 2007 by giving one child in adoption?
Answer: No. Relying on Supreme Court precedents, the Patna High Court held that such a person remains disqualified despite giving a child in adoption, and upheld the State Election Commission’s letter. - Issue: Is the State Election Commission’s letter dated 02.09.2022 (No. 50-24/2022-3502) arbitrary or illegal for treating biological parents as disqualified even after adoption?
Answer: No. The Court held that the notification does not suffer from arbitrariness or illegality and is consistent with the purpose of the Municipal Act and binding Supreme Court authority. - Issue: Does the two-child norm for municipal candidates violate Article 14 of the Constitution?
Answer: No. Following Javed v. State of Haryana and related judgments, the Court held that such a norm is a reasonable classification connected to the legitimate object of population control and public welfare.
Cases Cited by the Court
- Budhan Choudhary v. State of Bihar; AIR 1955 SC 191
- Javed v. State of Haryana; (2003) 8 SCC 369
- Minasingh Majhi v. Collector, Nuapada and Another; 2018 SCC OnLine SC 3763
- Sunil Kumar Rana v. State of Haryana; (2003) 2 SCC 628
Case Details
Case Numbers: Civil Writ Jurisdiction Case No. 14221 of 2022; Civil Writ Jurisdiction Case No. 14233 of 2022
Case Title: Bhola Prasad v. The State of Bihar & Ors; Dr. Priya Gupta v. The State Election Commission, Bihar & Ors
Coram: Hon’ble the Chief Justice; Hon’ble Mr. Justice S. Kumar
Citation: 2022 (4) PLJR 606
Date of Judgment: 04-10-2022
Nature of the Case: Writ petitions in the nature of public interest litigations challenging an election-related clarification issued by the State Election Commission, Bihar.
Advocates (CWJC No. 14221 of 2022): For the petitioner: Mr. Indu Bhushan, Advocate; Ms. Priyanka Kumari, Advocate. For the respondents: Mr. Pawan Kumar (A.C. to A.G.); Mr. Sanjeev Nikesh, Advocate.
Advocates (CWJC No. 14233 of 2022): For the petitioner: Mr. S.D. Sanjay, Sr. Advocate; Mr. Mohit Agarwal, Advocate; Mr. Lokesh Kumar, Advocate; Ms. Sushmita Mishra, Advocate. For the respondents: Mr. Subhash Pd. Singh (GA 3); Mr. Sanjeev Nikesh, Advocate.
Link to Judgment: Click here to read the full judgment of the Patna High Court
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