Articles

Article Title: THE TWO CHILD NORMS - A FLASH BACK
Date of Article: January 1, 1970

 THE TWO CHILD NORMS –

A FLASH BACK

                                           P.B.Sahasranaman, Advocate

                                        High Court of Kerala 

The Commission headed by Justice.V.R.Krishna Iyer in Kerala State recommended the family norm to be adopted by every citizen, which includes a two children restriction. Any movement, campaign or project contrary to the same will attract penal provision. 

 The concept of two children is not something new to law.  The menace of growing populations was judicially noticed and constitutional validity of legislative means to check the population was upheld in many cases.

Supreme Court of India[i] has considered the issue in a case where an Air Hostess was terminated from the service for the reason that she gave birth to a third child . Her termination was upheld based on a rule barring employment if the person had a third child. The Court held that the provision preventing the third pregnancy with two existing children 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 held 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.

Similar laws are prevailing in other states. The Maharashtra Civil Services (Declaration of Small Family) Rules, 2005, prescribes that a person having more than two children is ineligible to be appointed as Judge of Family Court.

The Haryana Municipal Act, 1973 was amended on 4-10-1994 incorporating a disqualification from membership, if the person is having more than two children. Upholding the validity of this enactment Supreme Court of India[ii] has held:

It may be permissible for Muslims to enter into four marriages with four women and for anyone 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 Panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it.

The Bombay Village Panchayat Act, 1958, Sec.14 (1) (a) (j) stipulates that no person shall be a member of a panchayat and continue as such, who has more than two children, which was enforced from 13^th September, 2001. Similar provision was inserted in the Mumbai Municipal Corporation Act.  A division bench of the Bombay High Court[iii] has held that restriction on number of children is to create awareness of danger of increasing population. The High Court  noted that the restrictions imposed on the right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross the limits of reasonability. Rather it is a disqualification conceptually devised in national interest. Addressing itself to the issue of violation under Article 21, the court noted that it has to be remembered that complacence in controlling population in the name of democracy is too heavy a price to pay, allowing the nation to drift towards disaster.

A private bill named as “Two Child Norm Bill” was introduced in the Rajya Sabha on 3^rd May, 2010 to provide for population control through promotion of voluntary sterilization among eligible couples having two living children and measures for promoting two child norm and for matters connected therewith and incidental thereto. The bill is still pending consideration.

 India has the (dis) credit of being second only to China at the top in the list of the 10 most-populated countries of the world. As on 1.2.2000 the population of China was 1,277.6 million while the population of India as on 1.3.2001 was 1,027.0 million (Census of India, 2001, Series I, India - Paper I of 2001, page 29).  The National Planning Committee set up by the Pandi Jawaharlal Nehru, considered ‘family planning and a limitation of children’ essential for the interests of social economy, family happiness and national planning. The committee recommended the establishment of birth control clinics and other necessary measures such as raising the age of marriage and a eugenic sterilization programme.

 A sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief and not practice. If religious practices run counter to public order  that should be propounded to law just like we had done in the case of Sati, Animal Sacrifice, Child Marriage, Dowry, etc , which were prohibited by law, the morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole. Law is necessary for the country, and the people. The intention of the law is the welfare of its citizens, taking into which the Women’s Code was enacted.