The Supreme Court of India noted on Wednesday that legislative acts penalizing the birth of more than two children have 'lost their relevance' because the 'fear of overpopulation' has weakened due to 'demographic changes that have occurred over the past decades.'
Judges P.S. Narasimha and Alok Arathe made this observation while hearing a petition by Mangala Bhimrao Ingle. Her election as sarpanch of Gram Panchayat Kakoda in Maharashtra was revoked because she was disqualified from participating in elections for having more than two children, which violates the Maharashtra Village Act of 1959.
The bench referred the case to a larger bench for reconsideration of the 2003 judgment in Javed versus State of Haryana. In that ruling, the Supreme Court upheld the disqualification of individuals with more than two living children from participating in or holding positions in panchayats under the Haryana Panchayati Raj Act of 1994.
The judges quoted PTI, stating: 'We are convinced that the laws penalizing the birth of more than two children have lost their significance. The basis of such laws, namely the fear of overpopulation, has eroded due to demographic shifts of recent decades.'
The judges pointed out that the Total Fertility Rate (TFR) in India has declined from 3.0 in 2003 to 1.9, which is below the replacement level of 2.1. They warned that this could lead to an aging population and a decrease in the working-age population.
The Supreme Court cautioned that ignoring these demographic changes could have 'serious consequences' for the country. Furthermore, the bench stated that the two-child laws 'exclude' a whole segment of citizens from political representation, forcing them to choose between having children and participating in democracy, which violates their right to reproductive autonomy under Article 21.
The Court added: 'It would be dangerous to complacently ignore the consequences of changing population growth rates in India just because it already has a large population—the stakes are too high.'
Warning of a potentially irreversible decline in fertility, the bench noted that India may soon face an aging population with a disproportionately large share of people older than the working age.
Referencing China's transition from a one-child policy to allowing three children, the bench emphasized the risks associated with viewing declining fertility as a policy achievement. The Court stated: 'Thus, China's experience demonstrates the danger inherent in treating declining fertility as a policy achievement that can be regulated at will.'
Returning to its 2003 judgment in Javed, the court observed: 'We cannot move into the future on a dead horse. It is not the strongest or the smartest that survives, but the one most adaptable to change.'
