Two-child policy: Experiments, legal jurisprudence on population check in India

From politics to law, the UP law commission’s proposal is likely to be judged on various parameters. However, the draft bill has triggered a debate on the necessity and feasibility of a population control law in India

A draft bill on population control prepared by the Uttar Pradesh (UP) State Law Commission to promote the two-child policy has invoked strong reactions from several quarters.

The country does not have a national policy restricting the number of children a couple can have. Therefore, the Supreme Court has not had the occasion to examine such a policy. (Representational image/Bloomberg)

Some have questioned the timing of the move since the state goes to polls in eight months; others have supported the proposition by highlighting that several other states already have the two-child norm in place. The policy has also been criticised for being unnecessary, violating women’s rights, and for allegedly discriminating against Muslims.

From politics to law, the UP law commission’s proposal is likely to be judged on various parameters. However, the draft bill has triggered a debate on the necessity and feasibility of a population control law in India.

What does the UP law commission’s draft bill on population control say?

The draft proposal on population control contemplates making people with more than two children ineligible for local body polls along with placing curbs on applying for government jobs. The proposal seeks to disentitle those already in service to promotions and exclude them from the benefits of 77 schemes.

The draft bill, for which suggestions have been invited from the public by July 19, also proposes to prohibit people who have more than two children from receiving any kind of subsidy while suggesting incentives such as tax rebates for those with two children or less.

The proposed incentives for government employees with one child include increments, promotions and concessions in housing schemes. For non-government employees, the incentives are rebates in taxes on water, housing and home loans. If a single child’s parent opts for a vasectomy, then the child will be entitled to free medical facilities until the age of 20. Such children are also proposed to get free education, insurance and preference in government jobs.

The draft bill also said that it shall be the duty of the government to introduce a compulsory subject relating to population control in all secondary schools. The proposal has further mooted setting up maternity centres at all primary health centres and improving the access to family planning programmes through community health workers. A State Population Fund will be constituted for implementing the provisions, if it comes into effect.

After the commission receives suggestions from the public, it will finalise the draft bill and will submit it to the Yogi Adityanath government with its recommendations. The recommendations of the commission are not binding on the government. The state government can, therefore, take action on the recommendations as per its policies.

Do other states in India follow the two-child norm?

Yes. Various states have framed laws which set the two-child limit as a criterion for certain government jobs and elected posts.

In Rajasthan, those having more than two children are not eligible for appointments in government jobs. The Rajasthan Panchayati Raj Act, 1994, also states that if a person has more than two children, he or she will be disqualified from contesting the election as a panch or a member. However, the two-child norm is relaxed in the case of a disabled child.

Madhya Pradesh follows the two-child norm since 2001. Under Madhya Pradesh civil services (general condition of services) rules, if the third child was born on or after January 26, 2001, a person becomes ineligible for government services. The two-child norm also applies to higher judicial services. Madhya Pradesh followed the two-child norm for candidates of local body elections until 2005 when it was discontinued by the then Bharatiya Janata Party (BJP) government.

In Maharashtra too, candidates are disqualified from contesting local body elections (from gram panchayats to municipal corporations) for having more than two children. The Maharashtra civil services rules also bar a person with more than two children from holding a post in the state government. Women with more than two children are also not allowed to benefit from the public distribution system.

Gujarat also amended the local law in 2005 to disqualify anyone with more than two children from contesting elections for bodies of local self-governance — panchayats, municipalities and municipal corporations.

Under the panchayati raj laws in Andhra Pradesh and Telangana, if a person had more than two children before May 30, 1994, they will be disentitled from contesting elections. In Uttarakhand too, the condition of the two-child norm applies to elections of zilla panchayat and blocks development committee membership. Enacted in 1992, the Odisha Zilla Parishad Act also prohibits people with more than two children from holding any post in panchayats and urban local bodies.

A population policy is already in place in Assam. In 2019, the previous BJP government had decided that those with more than two children would not be eligible for government jobs from January 1, 2021. This was a follow-up to a resolution passed by the assembly in 2017 on the population and women empowerment policy of Assam.

In 2019, the Uttarakhand government also passed a law to bar anyone with more than two children from contesting panchayat elections.

In 2011, the law reforms commission headed by former Supreme Court judge VR Krishna Iyer recommended the two-child norm in respect of certain provisions in the Kerala women’s code bill. The commission suggested providing a norm for restricting the number of children in a family to be two, and that any movement, campaign or project which would stand against the said norm would attract a penalty. These recommendations, however, were not incorporated as laws.

How has the Supreme Court viewed the two-child norm and a policy on population control?

Entry 20-A in the Concurrent List of the Seventh Schedule, inserted through the 42nd constitutional amendment in 1976, permits both Union and state legislatures to enact laws on population control and family planning. The demands for a population control law are based on this entry in the Seventh Schedule.

The country does not have a national policy restricting the number of children a couple can have. Therefore, the Supreme Court has not had the occasion to examine such a policy. However, there have been petitions in the top court for seeking a directive to the Union government for framing a policy on population control by enforcing the two-child norm.

In 1981, the Supreme Court upheld a provision that made third pregnancy a ground for termination of services of an air hostess in Air India. It noted: “When the entire world is faced with the problem of population explosion, it will not only be desirable but absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of overpopulation which, if not controlled, may lead to serious social and economic problems throughout the world.”

With regard to the two-child policy in states, it was first tested before the Supreme Court in the 2003 case of Javed v State of Haryana which involved a challenge to Section 175(1) of the Haryana Panchayati Raj Act, 1994. The provision disqualified a person with more than two living children from holding specified offices in Panchayats. The petitioners argued that the prohibition violated the right to equality under Article 14 because it did not disqualify persons with two or less than two children, besides trampling on the right to life and personal liberty under Article 21 since it prevented persons from freely choosing the number of children that they want.

The Supreme Court, however, upheld the law holding that the classification created by it was “founded on intelligible differentia” and based on the objective of controlling population growth. With respect to the argument on reproductive autonomy under Article 21, the top court said that “the lofty ideals of social and economic justice, the advancement of the nation as a whole and the philosophy of distributive justice cannot be given a go-by in the name of undue stress on fundamental rights and individual liberty”. The two-child norm, however, was later revoked in Haryana.

In 2018, the Supreme Court held that the birth of a third child would automatically disqualify a person from contesting panchayat polls and from being a member or sarpanch. “We do not know whether the law intended to make panchayat members and sarpanches the role model for entire India by fastening the two-child norm on them. But the legislative intent appears clear that it wanted to put a cap on the number of children at two for those holding elected posts in panchayat,” the court had said while affirming the disqualification of a sarpanch from Odisha.

However, in March 2018, the Supreme Court had declined to entertain a plea for issuing directions to the Centre to ensure strict population control measures by making the two-child policy mandatory across the country. The court had asked the petitioners to approach the government, saying population control measures were policy matters.

A year later, in March 2019, the Supreme Court dismissed a petition by BJP leader and advocate Ashwini Upadhyay, seeking a direction to the Election Commission to insert an additional condition that “political parties shall not set up candidates, who have more than two children.” But Upadhyay’s endeavour for a nationwide two-child policy persuaded the top court to examine the issue. In January 2020, the Supreme Court sought a response from the Union government on Upadhyay’s petition for a population control law in India.

In its reply, the Centre said that it is “unequivocally” against forcing people to have only a certain number of children in a bid to control the population. The Union government, in its affidavit filed in December 2020, maintained that the family welfare programme in India gives couples the right to decide the size of their family without any compulsion as it rejected the need to have a mandatory two-child norm or frame a specific law on limiting the size of families in the country. It added that India was a signatory to the Programme Of Action (POA) of the International Conference on Population and Development, 1994, which was unequivocally against coercion in family planning. The case is still pending before the Supreme Court, awaiting final orders.

Have foreign courts ruled on State sanctions over the two-child norm?

While the Supreme Court of India is yet to scrutinise a national population control policy restricting the number of children, the United Kingdom (UK)’s highest court last week delivered a ruling on a similar issue in favour of the government there.

The UK court rejected a challenge to the government’s “two-child limit” for welfare payments and other state benefits. The rule, which came into force in April 2017, restricts child tax credit and universal credit to the first two children in a family, and was challenged on the ground that it was incompatible with the rights of adults and children under articles 8 and 12 of the European Convention on Human Rights.

Giving the lead ruling on Friday, the court’s president Lord Reed emphasised that courts must avoid the risk of unduly interfering with political choices when hearing challenges against the government.

“The democratic credentials of the measure could not be stronger. It was introduced in parliament following a general election, in order to implement a manifesto commitment. It was approved by parliament, subject to amendments, after a vigorous debate at which the issues raised in these proceedings were fully canvassed, and in which the body supporting the appellants was an active participant. There is no basis, consistent with the separation of powers under our constitution, on which the courts could properly overturn parliament’s judgment that the measure was an appropriate means of achieving its aims,” held Lord Reed.

The panel of seven judges concluded that while the policy did have a greater impact on women, who make up 90% of single-parent families, there was an “objective and reasonable justification” for that effect, namely to “protect the economic wellbeing of the country”.