Eligibility To Contest Elections With Two Child Policy
As per the statistics unveiled by the World Population Review, India is the second most populated country in the world and the most densely populated, currently consisting of estimated 1,423,784,118 people, whereas China on the other hand is the most populated country in the world, currently consisting of an estimated 1,425,801,913 people. The Chinese State Council had launched a strict One Child policy in 1979, so the rate of population growth would be brought under control as soon as possible. Whereas India still does not have any policy in place that would assist in controlling the massive population outbreak. India is projected to overtake the population of China by 2050 with a total of 1.6 billion people.
It is grossly evident that India needs a sensitised way of population control such as awareness on Family planning, contraceptives, awareness on health adversities due to less gap between children, as well as social and economic pressures resulting due to a large family.
Why has population control become a need of the hour?
There are multiple reasons why population control is essential for a developing country like India:
- Uncontrolled population results in a Socio-economic crisis,
- Poverty being one of the biggest resultants of a densely populated country,
- Poor Health & Hygiene standards,
- Disproportionately distributed wealth amongst the population.
There are several factors that influence Population growth:
- Economic growth,
- Cost of Education,
- Lack of family planning
- Social norms,
- Stability of society.
With the ever-increasing need for resources and consequent low exports there is only little margin to make profits, and with poverty being a catalyst in this process, the developing country stays ever-developing such that the dream of transforming into a developed country stays a dream forever. Thus India is in a grave need of population control law.
There is a significant rise in the demand for Population Control Law, gradually there are also those who are completely against it. One of the primary reasons for opposing this idea was that it would result in a higher mortality rate and lower birth rate. This argument however, does not consider the socio-economic threats which the problem of overpopulation poses to a developing country. Thus, in order to find a common ground between the two sides, it was necessary to draw a line somewhere. Hence, the Two-Child Policy was proposed. Supporting this policy, the NFHS-4 data shows that the optimal number of children (twelve or more years of education) for educated Indian women falls within the range of 1 to 2. Thus, if the two-child policy paradigm is implemented, it will align perfectly with the aspirations of India’s educated women In its essence, this policy shall promote greater individual equality. It is also important to note that India’s regional democratic representation shall have a greater implication through the two-child policy. Since the north-central regions of India have more representatives in Lok Sabha due to their larger populations, a two-child policy shall be useful in combating such regional imbalances in population and democratic representation among the various states in a system of parliamentary democracy.
But even then, due to opposition on several domains across the country, this policy has only been in place only in certain selective states such as Rajasthan, Madhya Pradesh, Telangana, Andhra Pradesh, Gujarat, Maharashtra, Uttarakhand, Karnataka, and recently Assam. These states have opted the two child policy that would debar anyone from opting for Government jobs or Panchayat Elections who have more than 2 children.
But there can be some peculiar instances where one becomes a parent to twins, and then an important question arises as to whether that individual would be eligible to contest elections.
The Bombay Village Panchayat Act of 1958 has enacted certain provisions u/s 14 that would disqualify a person from contesting in elections if he has more than two children. The said Act u/s.14(1)(j-1) has made a provision for those candidates with twins opting to contest elections. It says that one child or multiple children born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause. The Act further explains Clause (j-1) as, any number of children born from a single subsequent delivery shall be considered to be one entity for a couple with only one child on or after the date of such commencement.
The Judiciary has, through judgements, interpreted the statutes in order for us to understand the concept of 2 child policy. Such as:
- The Apex Court in the case of Javed & Ors. Vs. State of Haryana & Ors.,interpreted the underlying principle behind the population control and Child Policy.
In this case, a writ petition was filed by disqualified candidates in the Supreme Court challenging the constitutionality of an election law that disqualified persons having more than two living children after a certain date from holding certain public offices in the Panchayat, a local government system, of the state of Haryana (Sections 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, 1994). The challenge alleged that these disqualification provisions violated the right to equality before the law under Article 14 of the Indian Constitution (as persons with two or fewer than two children qualified for public office), the right to life and personal liberty under Article 21 of the Indian Constitution (as it prevented individuals from exercising personal liberty in regards to the number of children they choose to have), and the right to freedom of religion under Article 19 of the Indian Constitution (as the practise of polygamy in Muslims often leads to more than two children).
The Court ruled that the election law’s disqualification provisions were constitutional. The court concluded that the provisions are neither arbitrary, unreasonable, nor discriminatory, and therefore do not contravene Article 14 of the Indian Constitution. The Court observed that the law was not arbitrary because the two groups (those who have more than two living children and those who do not) are clearly defined and the classification is rationally related to the goal of promoting the socio-economic welfare and health care of the population and is consistent with the national population policy. The Court further opined that the disqualification provisions of the election law advance the overall objective of the election law and that the constraint has a connection to the objective it was intended to achieve.
The Court determined that standing for election is not a constitutional or common law right but rather a statutory right. Thus, fundamental rights have no bearing on statutory restrictions.
The Court, thus dismissing the Writ, ruled that the disqualification provisions of the election law do not contravene Article 21 (right to life and personal liberty) of the Indian Constitution, as fundamental rights must be read in tandem with fundamental duties of citizens and directive principles of the state, which oblige the government to take measures for the welfare and development of the country, such as implementing family planning policies.
- In another case of Rajkishore Dalai Vs. Kalandi Pradhan & Anr.the Orissa High Court held that the disqualification provided in Section 25(1)(v) of the Orissa Grama panchayat Act, 1964, does not apply to a candidate who conceives twins during the second pregnancy. The Court further interpreted the underlying purpose of the policy to be that those holding Panchayat and Local Board positions should serve as role models in the community, inspiring others to imitate their behaviour with regard to family welfare and family planning. The disqualification provision is thus meant for persons not adhering to the family welfare norms or flouting the family planning programme. In other words, a person must be disqualified under Section 25(1)(v) of the Act if he intentionally reproduces more than two children and completely ignores family planning norms, thereby disregarding socioeconomic programme. Birth of twins or triplet on the second pregnancy is not a normal feature, but a freak of divinity. Such birth of twins or triplet not being an intentional act of the person concerned, the person cannot be accused of violating the family welfare/family planning norms or offending the cause of social justice. Disqualifying such a person who had no intention of procuring more than two children and who had no control over the number of children born during second pregnancy could not have been the intention of the lawmakers when they enacted Section 25(1)(v) of the Act as disqualifying such person would be against equity and fair legal norms.
Thus the underlying provisions in case of Twins can be outlined as follows:
- The Court determined that standing for election is not a constitutional or common law right but rather a statutory right.
- Disqualifying such a person who had no intention of procuring more than two children and who had no control over the number of children born during a second pregnancy could not have been the intention of the lawmakers.
- The law which disqualifies persons having more than two children, except in case of multiple children in a single birth, is not arbitrary because the two groups (those who have more than two living children and those who do not) are clearly defined and the classification is rationally related to the goal of promoting the socio-economic welfare and health care of the population and is consistent with the national population policy.
Birth of twins or triplet on the second pregnancy is not a normal feature, but a freak of divinity. Such birth of twins or triplet not being an intentional act of the person concerned, the person cannot be accused of violating the family welfare/family planning norms or offending the cause of social justice.
- AIR 2003 (SC) 3057
- 100 (2005) CLT 351