New Delhi: The Supreme Court (SC) on Wednesday said laws disqualifying people with more than two children from contesting local body elections have lost their relevance in light of India’s declining fertility rate. It observed that such restrictions infringe the right to reproductive autonomy, an inherent aspect of the right to liberty guaranteed under Article 21 of the Constitution.
A bench of Justices PS Narasimha and Alok Aradhe observed, “We are of the strong opinion that laws that penalise having more than two children have lost their relevance. The foundation of such laws, that is, the fear of overpopulation, has crumbled due to demographic changes in the past few decades.”
The court referred the Supreme Court’s 2003 judgment in Javed v State of Haryana to a larger bench for reconsideration. In that case, a three-judge bench had upheld the constitutional validity of the Haryana Panchayati Raj Act, 1994, which disqualified candidates with more than two living children from contesting local body elections.
The present bench said the judgment warranted reconsideration in view of India’s changing demographic profile. The country’s total fertility rate (TFR) had declined from 3 in 2003, when the Javed judgment was delivered, to 1.9, below the replacement level of 2.1.
The bench also set aside the disqualification of Mangala Bhimrao, former Sarpanch of Kakoda Gram Panchayat in Maharashtra, under Section 14(1)(j-1) of the Maharashtra Village Panchayat Act, 1959, following the birth of her third child. It also stayed the proceedings against her. Amended in September 2000, the provision disqualifies individuals with more than two children from contesting local body elections.
Bhimrao had approached the SC challenging a 5 August order of the Bombay High Court (HC), which upheld her disqualification. She was removed from office following a complaint before the Additional Collector. The HC had found that she attempted to disassociate herself from the birth certificate of her third child. However, it held that the document could not be disregarded as it named her as one of the child’s parents, and she had produced no material to contradict it.
During the hearing, amicus curiae Rukmini Bobde submitted a compilation highlighting the absence of a uniform policy on the two-child norm across states. It showed that seven states had repealed the restriction, while 15 states did not have such a policy. States that continue to enforce the norm are Assam, Goa, Gujarat, Maharashtra, Odisha and Uttarakhand.
Why 2003 judgment needs reconsideration
The bench said the 2003 judgment needed to be revisited in light of its implications for people from economically and socially marginalised communities, particularly women.
In the Javed case, the three-judge bench had rejected the argument that the two-child restriction disproportionately affected women. Justices Narasimha and Aradhe, however, observed that the reasoning in that judgment no longer reflected India’s social realities. They said the restriction disproportionately affected rural women, whose reproductive choices were often influenced or controlled by their husbands.
The bench noted that women could face electoral disqualification for reproductive decisions over which they had little or no control. It also referred to documented instances of forced abortions, abandonment of pregnant wives and denial of paternity, all intended to evade the disqualification.
The court further observed that imposing such restrictions exclusively on elected representatives at the Panchayati Raj level was based on prejudice and preconceived notions. The provision assumed that restricting access to elected office was an appropriate instrument of population control, reinforcing the stereotype that those seeking political representation at the village level bore a particular responsibility for population growth.
The causes of higher fertility, the bench said, were far more complex and could not be attributed to any particular class of persons merely because they seek to participate in local self-government.
The bench held that the 2003 judgment had effectively legitimised a manifestly arbitrary restriction that excluded an entire class of citizens from political representation on grounds unrelated to their ability to hold public office.
“Allowing such laws to stand excludes an entire class of citizens from political representation on grounds bearing little relevance to their capacity to hold public office. Further, it compels an unconscionable choice between bearing children and democratic participation, infringing upon the right to reproductive autonomy under Article 21,” the bench said.
It added that population-control laws based on the two-child norm had lost their relevance and warned that ignoring demographic changes could have serious consequences for India.
The court noted that the Javed judgment had been delivered on the assumption that population explosion was an impediment to progress. However, more than two decades later, the demographic and economic assumptions underpinning the two-child policy and the reasoning used to uphold it could no longer be presumed to hold true.
“While population control and family planning were regarded as legitimate means of addressing the economic and social consequences of population growth, subsequent demographic developments have substantially altered the underlying assumptions,” the bench observed, adding that it was “high time” the court reconsidered the Javed judgment.
The bench also referred to international developments, cautioning that India could not continue to rely on outdated population-control policies. Citing the experiences of China and Japan, both of which have grappled with declining birth rates and ageing populations, it said countries needed to respond to changing demographic realities.
The court observed that “the rolling effect of a decelerating population growth is very hard to reverse” and said, “India cannot ride into the future on a horse that is dead. It is not the strongest of the species that survives, nor the most intelligent, but the most responsive to change.
The bench noted that China, which had been cited in the 2003 Javed judgment as a successful example of stringent population control, had subsequently acknowledged the need to improve its population structure, augment its labour supply and address the challenges posed by an ageing population.
China abandoned its one-child policy in 2015 and moved towards encouraging couples to have two children. When the relaxation failed to produce the desired demographic response, the policy was liberalised further.
(Edited by Chingkheinganbi Mayengbam)
Also Read: Can I-T Dept order reassessment of taxable income? SC settles question, upholds Delhi HC ruling