Laws against people with more than two children in India are now unnecessary

Laws punishing people in India for having more than two children have now lost their relevance, the Supreme Court ruled on Wednesday. The Court noted that these laws have become irrelevant due to the decline in the fertility rate in the country. A bench headed by Justice P.S. Narasimham stated in a 37-page judgment that the foundation of such laws, namely the fear of overpopulation, has now crumbled due to demographic changes that have occurred in recent decades.

The Court observed that the decades-old opinion that population explosion is an impediment to progress has now become outdated. The previous assumption that population growth has a negative impact on development can no longer hold. Instead of worrying about the negative consequences of more population, society and courts should focus on the need to promote healthy population growth, Justice Narasimham stated in the judgment.

India's Total Fertility Rate (TFR) has declined from 3.02 to 1.9. A TFR of 2.1, known as the replacement rate, is sufficient to completely replace a generation. The Supreme Court stated that although India's population is not yet declining, the TFR falling below the replacement rate will soon shift the population age structure towards the elderly and the share of the working-age population will decrease. Therefore, laws made with the aim of limiting population growth have now lost their importance.

According to Justice Narasimham, failure to take note of demographic changes could bring serious consequences for India. Refusal to accept change is an obstacle to obtaining justice. Failure to accept change is not only an injustice but is also an abuse of power. The Court noted that the share of people aged 60 years or more was approximately 8.3 per cent in 2014, which increased to 9.7 per cent in 2024, and according to government estimates, this share will reach almost 15 per cent by 2036.

The declining fertility rate in India indicates that in the future, the proportion of youth will be lower and instead, the proportion of the elderly population will increase. This issue has been a matter of significant concern in recent years. In this context, the Court indicated the need for a larger bench to reconsider the judgment given in the 2003 Javed vs State of Haryana case. In that 2003 judgment, reference was made to the situation in China and inspiration was taken from the steps taken by China for population control.

This judgment is based on an application filed by Mangala Bhimrao Ingle. Mangala Ingle's election as the Sarpanch of Kakoda Gram Panchayat in Maharashtra was cancelled because she had more than two children. Lower courts and state authorities had observed that she gave birth to a third child in 2014, yet she contested the Panchayat elections in 2022 and won. The authorities had found her guilty of violating Section 14(1)(j-1) of the Maharashtra Village Panchayat Act, 1959, which maintains the two-child rule.

Justice Narasimham observed that such laws, which link motherhood with political representation, are a violation of Article 21 of the Constitution (Right to Life). By continuing such laws, an entire class of citizens is excluded from political representation due to reasons that have very little rational connection with their ability to hold public office. These laws force an individual to make an unsafe choice between having children or participating in democracy, which strikes at the right to reproductive autonomy under Article 21.

With a demand for immediate reconsideration of the 2003 Javed judgment, the Supreme Court has allowed the appellant to continue in her position as the elected Sarpanch of Kakoda Gram Panchayat and has stayed any proceedings against her. The bench comprising Justice Narasimham and Justice Alok Aradhe delivered this important decision.

The Maharashtra Village Panchayat Act, 1959 is the law governing the administration and composition of Gram Panchayats in Maharashtra. Under this Act, the qualifications of Panchayat members and Sarpanch are determined, which also includes population control rules.