Laws that penalise having more than two children lost relevance, says SC

NEW DELHI: The Supreme Court on Wednesday said laws that penalise having more than two children have lost their relevance as the fear of overpopulation has crumbled due to demographic changes in the past few decades.

Observing that India's total fertility rate (TFR) has fallen from 3.0 to 1.9 since 2003, the apex court said laws aimed at limiting population growth have now lost their significance.

The top court delivered its verdict on a plea filed by Mangala Bhimrao Ingle, whose election as 'sarpanch' of Kakoda gram panchayat was set aside on the ground that she was disqualified from contesting the polls as she had more than two children and it was in violation of Section 14(1)(j-1) of the Maharashtra Village Panchayats Act, 1959.

A bench of Justices P S Narasimha and Alok Aradhe referred to a July 2003 verdict of the apex court which, after examining the vires of the Haryana Panchayati Raj Act, 1994, had upheld the disqualification of persons with more than two living children from running or holding panchayat positions.

Noting that the right to make reproductive decisions is an integral facet of the right to life and personal liberty under Article 21, the top court referred the matter to a larger bench for reconsideration of the ratio laid down in Javed versus State of Haryana (2003 verdict).

"We are of the strong opinion that laws that penalise having more than two children have lost their relevance. The foundation of such laws, i.e. the fear of overpopulation, has crumbled due to demographic changes in the past few decades," the bench said.

It said a TFR of 2.1, known as the replacement rate, would allow one generation to completely replace itself.

"So, even though India's population is not yet declining, the TFR falling below the replacement rate will soon result in a demographic transition towards an older population with a declining share of the working-age population," the top court said.

"If we fail to take note of such demographic changes, India will face serious consequences. Adapting to change is important for achieving justice, as failure to adapt produces injustice and is, in a sense, an abuse of power," it said.

The apex court said equally concerning was the reasoning employed in the 2003 verdict to justify a "manifestly arbitrary act".

"Allowing such laws to stand excludes an entire class of citizens from political representation on grounds bearing little rational connection to their capacity to hold public office," it said.

The bench said it also compels an unconscionable choice between bearing children and democratic participation, impinging on the right to reproductive autonomy under Article 21.

It said population statistics about the country predict noticeable changes.

"It would be dangerously complacent to ignore the consequences of India's changing population growth rate merely because it already has a large population -- the stakes are too high," it said.

The bench said the need of the hour is to have policies in tune with the present realities.

"We need to guard against potentially irreversible decline in fertility and respond to the changing demographic realities," it said.

The bench said it seems that years of population control measures, coupled with development efforts by the State, have borne fruit faster than what one could have expected.

"Very soon, we may face an ageing population in which a disproportionately large share of people are beyond the working age. Learnings from across the world warn us of the detrimental effects of this increase in the ageing population," it said.

The bench said the rolling effect of a decelerating population growth is very hard to reverse.

It said when the apex court had decided the case in 2003, it had referred to China as a successful instance of stringent population control.

The bench noted that China abandoned its one-child policy in 2015 and moved towards providing incentives for having two children, acknowledging the need to improve its population structure, augment labour supply and respond to an ageing population.

It said the policy was liberalised yet again in 2021 to permit three children, accompanied by the removal of earlier disincentives and introduction of affirmative measures intended to encourage childbirth, including support for childcare, education, maternity protection and family welfare.

"The Chinese experience therefore demonstrates the danger inherent in treating fertility reduction as a policy achievement capable of being calibrated at will," the bench said.

It said beyond China, there have been other nations that are now bearing the weight of a declining and ageing population.

"It is high time we recall Javed. We 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 said.

It said the pursuit of population control cannot, by itself, justify coercive interference with A married couple's decision to bear children.

The top court directed the registry to place its verdict before the Chief Justice of India to constitute an appropriate bench.

It noted that while issuing notice on the plea earlier, it had stayed the August last year judgment of the Bombay High Court in the matter and permitted the appellant to continue in her elected position as 'sarpanch'.

"The interim order shall continue until disposal of the civil appeal," it said.