Indian top court rejects batch of pleas seeking two-child policy

The problem of population explosion is for the legislature to examine, the Indian Supreme Court said on Friday as it refused to entertain a batch of petitions demanding a law on “two-child norm” and for a report to be prepared in this regard by the Law Commission of India.

“The problem emanating from population explosion is for the legislature to examine. This cannot be subject matter for the Law Commission to examine or for the courts to issue directions,” said a bench of justices Sanjay Kishan Kaul and AS Oka, as it dismissed a batch of petitions on this issue. As the petitioners sought to withdraw the matter, the court permitted the petitioners to withdraw.

The oldest among the petitions was filed by Delhi Bharatiya Janata Party (BJP) leader Ashwini Kumar Upadhyay on whose plea, the top court had issued notice to the central government in January 2020. He had come to the top court in appeal against a Delhi high court order that dismissed his plea to enforce a two-child norm. About three months ago during August and September, the Supreme Court tagged four separate petitions seeking similar orders to be heard with Upadhyay’s plea.

The bench told Upadhyay, “Ultimately you want a law on two-child norm. It is to be tested by Parliament.” Upadhyay requested the court to allow the Law Commission to examine the matter on the feasibility of introducing such law.

The bench said, “Population is not something that finally one day will stop. I have read material on this that suggests we are reaching a stabilising point. What report can the Law Commission prepare on population explosion.”

Upadhyay told the court that 20% of population is occupying 2% of the country’s land and is thus creating pressure on resources. The bench shot back, “So now, courts will decide how to fix the population. Bring some reasonable issues to court.”

Solicitor general Tushar Mehta appeared for the Centre and agreed with the court that matters such as these cannot be decided by courts. He pointed out that the government was committed to take all steps necessary towards family welfare programmes.

In December 2020, the Centre filed an affidavit in response to Upadhyay’s plea and said: “The respondent (ministry of health and family welfare) plays a supportive and facilitative role in achieving the health care reforms and outcomes. It merely acts as a facilitator for providing accessible and affordable health care through state-led reforms in the health sector.”

The government further stated that the family welfare programme in India was voluntary and allows families to adopt family planning methods best suited to them.

The other petitioners cited the response of the Centre to urge the court to keep the matter pending. Two of the petitioners were Hindu religious leaders – Swami Jeetendranand Saraswatee and Devkinandan Thakur – while the remaining petitions were filed by Amber Zaidi and Firoz Bakht Ahmed.

“Do not make us say why these petitions are being filed,” the bench observed. When the petitioners requested permission to move representation in this regard before the government, the court said, “We do not want this matter to be back before us.”

India is a signatory to the Programme of Action of the International Conference on Population and Development, 1994, which is strictly against coercion in family planning.

As per the report of the fifth round of the National Family Health Survey (NFHS-5), India’s total fertility rate (TFR), which measures the average number of children born to a woman in her lifetime, has declined from 2.2 in 2015-16 to 2.0 in 2019-20. A TFR value below 2.1 (which is known as the replacement level) means that a country’s population will not grow in the long-term.