In the recent past,States like Uttar Pradesh,Assam and Union Territories like Lakshadweep,have proposed to implement a two-child norm as a pre-condition for getting government jobs or to get nominated to Panchayat Elections.
So what will been the impact of such policies?
In this Article, we will be discussing whether this two-child policy is constitutionally valid or not.
While India doesn’t have a national two-child policy,something that China revoked earlier this year.
However,the States of the country have formed and implemented their own versions of this norm.As mentioned above Uttar Pradesh and Assam are now planning to enter this list of States.
Which are the States in the country that have enforced the two-child policy in one way or the other?
Under the policy of the two-child norm introduced by the States so far,anyone who has more than two children cannot be elected or nominated to Panchayat and the other local bodies’ elections and will be disqualified if they have not respected this policy.The idea behind the law is that the ordinary citizens will look up to their local politicians and follow their family size example.
So far,12 States have introduced this policy, namely,
Rajasthan(1992),
Odisha(1993),
Haryana(1994),
Andhra Pradesh(1994),
Himachal Pradesh(2000),
Madhya Pradesh(2000),
Chhattisgarh(2000),
Uttarakhand(2002),
Maharashtra(2003),
Gujarat(2005),
Bihar(2007),and
Assam(2017).
But out of these,four States have revoked the policy-
Chhattisgarh,Himachal Pradesh,Madhya Pradesh,and Haryana.
In few States,the policy has prohibited the persons with more than two children from serving governmental jobs or availing benefits of various government schemes.However,it is to be noted that States are implementing different aspects of the two-child norm as per their priorities.
Some local governments have taken a step further.There are laws in some States that apply penalties to persons having more than two children.
Attack on reproductive autonomy
The existence of such a policy to control and regulate the number of children a family can have is a gross violation of Human Rights.
A right to procreation is not explicitly mentioned in the Constitution but it comes under the ambit of Article 21,as discussed in Jasvir v. State of Punjab,the Court held that “the State has denied the right to procreate to the petitioners only because such right does not find any mention in the rulebooks or statutes.In the absence of such a right having been spelled out in codified law,it cannot be assumed that the petitioners’ prayers contravenes any law.”
Such denial of this right is alleged to be unreasonable and arbitrary as such a right not being violative of any rule or law,its denial amounts to be a monstrous violation of Article 21 of the Constitution.
Therefore,such a policy would deprive citizens of their fundamental rights of protection of life and personal liberty.
In R Rajagopalan V. State of Tamil Nadu,the apex court propounded that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country as per Article 21,it is a “right to be let alone”.A citizen has a right to safeguard the privacy of his own,his family,marriage,procreation,motherhood,childbearing and education among other matters.
Also,this two-child policy fails in case of a divorced person,as if he/she has two children with a prior partner,cannot bear a child with their next spouse.This also violates the right to procreation of a future spouse.
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Furthermore,Muslim men as per Mohammedan Law are allowed to have four wives,and such a law would limit the number of children his wives can bear once the family has two children.Even if an exception is created for such families,then the man would have,at most,two children with each wife or eight children overall.THEN,there will be violation of Article 14 of the Constitution,i.e Right to Equality.As all persons except Muslim men would be allowed to bear only two children.
Also,with the enactment of such law in our country,where the preference is for male children,may lead to greater anti-female child sex-selection,because the parents will only have “two-attempts” to have babies.This would further lead women to dangerous and unlawful abortions.
“No Legislation must be enacted unless its future impact and social effects are completely realised.”
Conclusion-
Many local governments have proposed the two-child policy and have also created laws that apply penalties for having more than two children.As these laws are heavily criticised by the ordinary citizens,the two-child norms are still considered discriminatory and problematic.Therefore,this policy is not constitutionally valid in our country.
Article by Aditi Batra – Intern
