Two-child norm: Not by religious fundamentalism

published on November 8, 2011

COURTESY: K Jagadeesh and Express News Service

At a time when the population of India has crossed 1027 million, in Kerala a controversy has erupted with the recommendation of Justice V R Krishna Iyer Law Reforms  Commission  in respect of certain provisions in the Kerala Women’s Code Bill. The commission suggested for  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 penalty.

The concept of two children in a family unit is not something new. The National Planning Committee set up by Prime Minister  Pandit  Jawaharlal  Nehru  considered ‘Family planning and limitation of children’ essential for the interest of social economy, family happiness and national planning. The committee had recommended for the establishment of birth control clinics, sterilisation programmes and other measurers. Even now the said policy and programmes are being continued throughout the country.

The scourge of population was taken note of by the Supreme Court of India about 30 years ago in one of its  decisions and the constitutional validity of the same was upheld. The Supreme Court had occasion to consider   the validity of termination of service of an Air Hostess for the reason that she gave birth to her third child.

The court held that the provision which forbids third pregnancy would be in the larger interest of the health of the Air Hostess concerned as also for the good upbringing of the children. The court observed that “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 over -population which, if not controlled, may lead to serious social and economic problems throughout the world”( Air India Vs. Nergesh Meerza  AIR 1981 SC 1829  = 1981(4) SCC 335).  Similar laws  do exist in various states  of this country. The provisions of Maharashtra Civil Services( Declaration of Small Family) Rules, 2005 provide that a person having more than two children is ineligible to be appointed as judge of a  family court.

  The Haryana Municipal Act, 1973 was amended in  1994 incorporating a disqualification of membership if a person is having more than two children. The said  enactment  was challenged before the Supreme Court and it was held : “It may be permissible for Muslims to enter into four marriages with four women and for any one whether a Muslim or belonging to any other community or religion to procreate as many children as he likes but no religion in India dictates or mandates as an obligation to enter into bigamy or polygamy or to have children more than one. What is permitted or not prohibited by a religion does not become a religious  practice or a positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is permitted. Assuming the practice of having more wives than one or procreating more children than one is a practice followed by any community or group of people the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does. 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 Panchayath in the state of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it”.(Javed Vs.  State of Haryana (2003) 8 SCC 369).

The Bombay Village Panchayath Act, 1958  which was enforced on September 13, 2011 provides that no person shall be a member of a Panchayath and continue as such , who has more than two children. 

Similar provision was incorporated in the Mumbai Municipal Corporation Act. Considering the challenge against the enactment, the Mumbai High Court held that restriction on number of children is to create awareness of danger of increasing population.

The High Court held that restrictions on the right to contest election by a person having more than two children living does not contravene any fundamental right nor does it cross the limits of reasonability. It is a disqualification conceptually devised in national interest.  

   Addressing the issue of violation of Article 21, the court observed that complacence in controlling population in the name of democracy  is too heavy a price to pay allowing the nation to drift towards disaster.(Mangesha A Chavan Vs. Sayajirao D Khamkar 2010(1) Bom. C.R 136)

  A private Bill captioned ‘Two Child Norm Bill’ was introduced in the Rajya Sabha on  May 3, 2010 to provide for population control through promotion of voluntary sterilization among eligible couples having two living children and measure for promoting two child norm and for matters connected therewith and incidental thereto. The Bill is pending consideration.

  Thus the two-child norm has been the approved norm existing in India ever since  Independence. The Supreme Court and various state legislatures have enacted legislation with the above norm in their mind. All such enactments were considered by the general public and the learned men as something in the greater interest of the nation. There were seldom any controversy or opposition to the same. All through the years since Independence, there were learned religious leaders, sabhas, organisations etc and no one had objected to the same. If there was no such opposition even during the turbulent time of Independence, what justification would there be now  after a lapse of 60 years.  

If there is any opposition to the said norm, it can be sawwfely reckoned to be one not related to religion  but essentially  related  to  persons of religious leaders and organisations and that is otherwise termed as religious fundamentalism.

   The correct view would be to abide by religion rather than be led by religious fundamentalism, especially in national interest. Are the interest of the people at large to be decided by the national policy or by the dictates of religious leaders or rather fundamentalists?

(The writer is a lawyer)

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