The past and present of two-child policies 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.
Some have questioned its timing, since the state goes to polls in eight months; others have supported the proposition by highlighting several other states that already have a 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?
It contemplates making people with more than two children ineligible for local body and 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, and suggests incentives such as tax rebates for those with two children or less.
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, 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.
After the commission receives suggestions from the public, it will finalise the draft bill and submit it to the Yogi Adityanath government with its recommendations. The state government can take action on the recommendations.
Do other states in India follow a two-child norm?
Yes. Various states framed laws that 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 case a child is differently abled.
Madhya Pradesh follows the two-child norm since 2001. Under Madhya Pradesh civil services rules, if the third child was born on or after January 26, 2001, a person becomes ineligible for government services. The norm also applies to higher judicial services.
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 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 zila 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 decided that those with more than two children would not be eligible for government jobs from January 1, 2021. 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 Kerala women’s code bill. The commission suggested providing a norm for restricting the number of children in a family to 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 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 a flight attendant 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 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 “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.
But, in March 2018, the Supreme Court declined to entertain a plea for 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.
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 Centre on Upadhyay’s petition for a population control law in India.
In its reply, the Centre said 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 family welfare programme in India gives couples the right to decide the size of their family without compulsion as it rejected the need for a two-child norm or a specific law limiting the size of families in India. 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.