Law is a dynamic subject, and with the change in society, the course of Law also changes which results in the introduction of new Law every day. One such change is going to be introduced by the Government of U.P, according to which if someone has more than two children, he/she will not be eligible to contest Panchayat election.
As we know that India is the world’s 2nd most populous country and home to one-third of the world’s poorest 1.2 billion people, therefore the population is a big challenge for Government. It has been noticed that the fertility reduction has, therefore, always been a priority for Indian Policymakers because the problem of poverty and slow development is seen as fruits of a vast population. Sanjay Gandhi was the first one to introduce the two-child policy in India, after that in the year 2019; two private member bills were introduced in Rajya Sabha on the two-child system. The Population Regulation Bill 2019 and Constitution (Amendment) Bill 2020, simultaneously call for a two children norm.
Indian policy maker’s obsession, with reducing the country’s population growth is the primary concern because it acts as a barrier to economic growth. The Population Regulation Bill 2019, which was signed by 125 Members of Parliament had the following salient features:
- Definition of “small family, which means family or couple having up to two children.
- The legislation was intended to give effect mandate of clauses (1) & (2) or Article 38 of the Constitution of India.
- Provision for Comprehensive Revised National Population Policy mainly to implement the provision of adopting small family norm.
- Following Inventive and rebates were proposed for those who will adopt small family norm:
- one additional increment during the entire service;
- subsidy towards the purchase of plot or house site or built house from Housing Board or Development Authority of the Government as may be prescribed;
- loan for construction or purchasing a house from Banks or financial institutions on a nominal rate of interest;
- rebate on income tax, as may be prescribed;
- subsidy for travel by road, rail or air, as may be prescribed;
- rebate on charges for utilities such as electricity, water, house tax, vehicle registration, telephone etc., as may be prescribed; and
- such other benefits and incentives, as may be prescribed.
- paternity leave of 12 weeks, with salary and allowances for upto two children;
- two percent increase in the employer’s contribution under pension scheme for employees having up to two children;
- free healthcare facility and insurance coverage to parents;
- free healthcare facility to single child till he attains the age of twenty-five years;
- preference to single child in admission in all educational institutions, including, but not limited to AIIMS, IIT, NIT and IIM and in all government jobs; and
- free education up to graduation level and scholarship for higher studies beyond graduation for single girl child.
- Consequences of violation of small family norm:
- receive reduction in subsidies in matters of different loans extended to him;
- receive reduced benefits of Public Distribution System to be determined by the appropriate Government;
- be eligible for loan from the Bank or financial institution at higher than the existing interest rates;
- receive lower interest rates on saving instruments in Banks and investment instruments in equity shall; and
- not be entitled for such other facilities as may be prescribed
- The Bill provides
- “A citizen shall be disqualified for being chosen as a member of either House of Parliament or of the legislature of a State or of anybody of the local self-government if such citizen has more than two living children.
- Every serving government employee shall give an undertaking not to procreate more than two children”
On February 7th, 2020, the Constitution (Amendment) Bill, 2020 was introduced in the Rajya Sabha by Anil Desai, a Shiv Sena MP. Desai proposed to amend the Article 47A of the Constitution of India to state –
“The State shall promote small family norms by offering incentives in taxes, employment, education, etc. to its people who keep their family limited to two children and shall withdraw every concession from and deprive such incentives to those not adhering to the small family norm, to keep the growing population under control.”
Both the proposed bills are pending before the Parliament and yet take the shape of Law.
Enactment of the rule
Regarding the same provisions, on August 31st 2020 Shri Yogi Adityanath, the Chief Minister of Uttar Pradesh came up with a decision, where he stated that for the upcoming panchayat election the Government would bring in an amendment in the Panchayat Raj Act to enforce two-child norm for the contestants. In Uttar Pradesh, the Panchayat elections are due to be held on December 2020, but due to the unavoidable pandemic conditions, the State Government said that it might be shifted to 2021. U.P. Government is determined to bring a proposal in the cabinet for the amendment of the Panchayat Raj Act. As per news reports, the Bill is expected to be presented in the next session of the Legislative Assembly and the Government would likely implement new Law before the preparations for the proposed three-tier panchayat elections are completed in 2021.
It is to be noted here that Uttar Pradesh will not be the first state to bring such change in the Panchayat Raj system, as Rajasthan in the year 1992 was the first one to impose a two-child limit that prevents people with more than two children from contesting Panchayat election specifically at Village, Block and District level.
Other States Having Similar Policy
Rajasthan: The Rajasthan Panchayat Raj Act, 1994, states that if a person has more than two children, he/she will be disqualified from contesting the election as a panch or a member.
Madhya Pradesh: Madhya Pradesh followed the Two children Norm for Candidates of local body election until 2005.
Telangana and Andhra Pradesh: According to Telangana Panchayat Raj Act, 1994 under section 19(3) read with sections 156(2) and 184(2), a person with more than two children shall be disqualified from contesting the election. The same Provision applies to Andhra Pradesh, under Andhra Pradesh Panchayat Raj Act 1994, a person having more than two children shall be disqualified from contesting the election of a local body.
Gujrat: The Government amended the Gujrat Local Authorities Act in the year 2005, where it has disqualified anyone with more than two children from contesting election for bodies of Local Self Governance – panchayats, municipalities and municipal corporations.
Maharashtra: The Maharashtra Zila Parishads and Panchayat Samitis Act disqualifies people who are having more than two children from contesting elections comprising Gram Panchayats to municipal corporations.
Uttarakhand: The State Government had decided to ban people with more than two children from contesting panchayat election and also passed the Bill in Legislative Assembly. The decision was challenged before the High Court of Uttarakhand inthe case of Pinki Devi V/S State of Uttarkhand and Others. A Division Bench comprising Chief Justice Ramesh Ranganathan and Justice Alok Kumar Verma, held in their Judgment dated 19.09.2019 that this rule will be given prospective effect only and shall not affect those who have more than two children before July 25th 2019.
Orrisa: The Odisha Zilla Parishad acts as a bar to those individual with more than two children from contesting the election.
Every coin has two sides; similarly, the TWO CHILDREN POLICY will have its positive and negative impacts, which are adumbrated here:
POSITIVE IMPACTS OF THE TWO CHILDREN POLICY:
- If this Act comes into force there will be a reduction of the birth rates.
- People in rural areas will gain knowledge about family planning.
- By this policy, the place of woman will change in the society because in various parts of the country, women are just seen as a source of giving the child, and they are not given sufficient opportunity for their development.
- It will increase job opportunities and wages.
- It will help to reduce the level of extreme poverty in our country.
- It will overall improve the living standards
NEGATIVE IMPACTS OF THE TWO CHILDREN POLICY :
- This move will have a direct impact on the weaker section of the society, including women whose reproductive choices are often subjected to a variety of constraints.
- Some critics have claimed that two children policies are a way to discriminate against the Muslims.
- Rural women who are predominantly from the lower socio strata would be forced to go for unsafe abortions.
- Enforcement of such policies will create gender imbalances.
- Couples would be forced by such rule to go for sex-selective abortion as there are only two attempts
- There will be many cases of Neglect and death of female infants and induced abortion of the foetus.
In Javed& Ors V/S State of Haryana (2003) 8 SCC 369, popularly known as “TWO-CHILD NORM CASE” is a leading Judgment on the issue. Bunch of Writ Petitions and Appeals were filed before the Supreme Court challenging the constitutional validity of provisions of Section 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, 1994 (Act No. 11 of 1994). The Provision in question provided that “No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who has more than two living children”. However, it was also provided that a person having more than two children on or up to the expiry of one year of the commencement of this Act, shall not be deemed to be disqualified. The object behind such proviso was that If a woman has conceived at the commencement of the Act, then any one of such couples would not be disqualified.
The Provision was challenged on the following grounds :-
- The Provision is arbitrary, hence violative of Article 14 of the Constitution;
- The disqualification does not serve the purpose sought to be achieved by the legislation;
- The Provision adversely affects the liberty of leading personal life in all its freedom and having as many children as one chooses to have and hence is violative of Article 21 of the Constitution.
- The Provision interferes with freedom of religion and hence violates Article 25 of the Constitution.
The Court, after giving due consideration to all the arguments and legal issued, held that:
- The classification is well-defined and well-perceptible. Persons having more than two living children are distinguishable from persons having not more than two living children. The two constitute two different classes, and the classification is founded on an intelligible differentia clearly distinguishing one from the other.
- The number of children, viz., two are based on legislative wisdom. It could have been more or less. The number is a matter of policy decision which is not open to judicial scrutiny.
- The object of the enactment is to popularize Family Welfare/Family Planning Programme, which is consistent with the National Population Policy. Further, under Article 243G of the Constitution, the Legislature of a State has been vested with the authority to make Law endowing the Panchayats with such powers and authority which may be necessary to enable the Gram Panchayat to function as institutions of self-Government. Therefore the impugned disqualification does have a nexus with the purpose sought to be achieved by the Act; hence it is valid.
- To make a beginning, the reforms may be introduced at the grass-root level so as to spiral up or may be introduced at the top so as to percolate down. Panchayats are grass-root level institutions of local self-governance. They have a wider base. There is nothing wrong in the State of Haryana having chosen to subscribe to the national movement of population control by enacting a legislation which would go a long way in ameliorating health, social and economic conditions of rural population, and thereby contribute to the development of the nation which in its turn would benefit the entire citizenry.The implementation of policy decision in a phased manner is suggestive neither of arbitrariness nor of discrimination.
- We are clearly of the opinion that the impugned Provision is neither arbitrary nor unreasonable nor discriminatory. The disqualification contained in Section 175(1)(q) of Haryana Act No. 11 of 1994 seeks to achieve a laudable purpose – socio-economic welfare and health care of the masses and is consistent with the national population policy. It is not violative of Article 14 of the Constitution.
- Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a Statute. There is nothing wrong in the same Statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office.
- Disqualification on the right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross the limits of reasonability. Rather it is a disqualification conceptually devised in national interest.
- Fundamental rights are not to be read in isolation. They have to be read along with the Chapter on Directive Principles of State Policy and the Fundamental Duties enshrined in Article 51A.
- The freedom of religion is subject to public order, morality and health. So the Article itself permits a legislation in the interest of social welfare and reform which are obviously part and parcel of public order, national morality and the collective health of the nation’s people.
- The Muslim Law permits marrying four women. The personal Law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority has been brought to our notice which provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates or the religion.
- If anyone chooses to have more living children than two, he is free to do so under the Law as it stands now but then he should pay a little price and that is of depriving himself from holding an office in Panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it.
In the case of J.Sharmila vs The Secretary To Government (W.P. M.D. No. 13555 of 2009, Madras High Court set aside a rule, which provided that a married woman Government servant is not entitled to get fully paid towards maternity leave availed if she has already two surviving children. The Court observed:
“A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work, they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomenon in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realize the physical difficulties which a working woman would face in performing her duties at the workplace while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimized for forced absence during the pre- or post-natal period.”
The Court further added “It is suffice to state that if the intention of the State Government is to afford protection of the woman for her second delivery, then it should not be based upon the number of children she delivers during those two deliveries. The importance has to be seen only from the health point of the woman Government servant and not the number of children one delivers during each delivery.”
This kind of rule will not show immediate results, but it is very sure that it will cause a great impact in the long term and benefit the rate of development and maybe a cure of many social issued too. The Two-child Norm has both pros and cons, which exist in every Law; therefore, now it is up to the citizens and Government how to take up this Law and implement it. The success of family planning largely depends on people themselves, realizing the futility of having more children rather than the Government telling them what is right or wrong for them. Political interference in this sensitive issue needs to be discouraged. To achieve a stable, sustainable family planning, India requires to adopt a right based approach and focus on overall social development rather than coercive population control. Population control policies must be understood on a broad basis and beyond the fear of becoming the most populous country. The two-child system can cause more hurdles than it promises to solve if not implemented in the right way. The two-child Norm policy will be very beneficial for India if it is well-executed, as Bertrand Russell said: “Population explosion is more dangerous than Hydrogen Bomb.”
Rajat Rajan Singh
-Swarnail Mukherjee (Intern) has done legal research and prepared brief on this Article.