25 Two Child Norm Policy and Law : Implications, Impact and Challenges- Part I

Nirmala Buch

 

1. The Two Child Norm and its Evolution

 

Two Child Norm is part of target oriented, family size control policies adopted by India in 1990’s, which encourages parents to limit the size of their families to two children and creates ineligibilities/denial of entitlements in public policies for couples with more than two children. These ineligibilities and denials are in two areas (a) entitlements under Government’s Welfare Programmes and Schemes and (b) ineligibility for certain elected posts in institutions of governance at different levels. While the denials and disadvantages in eligibility for a government post or to public distribution system commodities etc were created through executive instructions even earlier, the change to the eligibility to elected posts was included in the relevant legislation in the 1990’s starting with the elected representatives of rural and urban local bodies. It is this introduction of the Two Child Norm for the elected representatives that has made it a serious issue even a gender issue. It is modeled on China’s one child policy (1979) under which couples were forbidden from having more than one child. It was expected that the politicians and political leaders would set up an example and it will influence the villagers to follow their example. It was believed that through two child policy, national target of replacement level fertility of 2.1 would be achieved by 2010. The expert group under the chairmanship of M S Swaminathan was constituted in the 1990’s to draft the population policy, which set the goal of India attaining replacement level of fertility by 2010. It also recommended that the states should prepare their own population policies taking into account the state-specific situation and issues. It can be also said to have origins in the Indian policies and programmes of family planning later renamed family welfare. In general, India’s population was being perceived as a liability and a ‘ticking bomb’ responsible for slowing the rate of economic growth. Thus, coercive population policy legislations were started. The first Census Commissioner, Shri R. A. Gopalaswami, referred to “improvident maternity” as the primary cause of population problems in India.

 

The decade of 1990s started with two major developments, first, in democratic decentralisation and second, in population policy and strategies in India. The first related to the conclusion of a major exercise in 1992 with the 73rd Constitutional Amendment mandating regularly elected and more inclusive Panchayats with reservations for the scheduled castes, scheduled tribes and women and lowering of the minimum age for entry to 21 years. The second development was the State’s response to the population figures of the 1991 Census, in the conception of a two child norm for the elected representatives.

 

The “two child norm” for the elected Panchayat representatives runs counter to the objective of bringing women, weaker sections and younger members in these institutions. Hence, the law to empower them is seen as “being circumvented by these imaginatively anti-democratic population policies”. (Mohan Rao: 2003).

 

India signed CEDAW (Convention on the Elimination of all Forms of Discrimination Against Women), ICPD (International Conference on Population and Development) Cairo Programme of Action 1994, and formulated a National Policy for Empowerment of Women, and a National Population Policy. Constitutional Amendments in 1992 brought women and weaker sections and youth in the rural and urban local bodies and then another Amendment in 2002 mandated universal elementary education to all children aged 6-14 years. These do not support target oriented coercive population policy.

 

In 1994 India was signatory to the Programme of Action of the International Conference on Population and Development in Cairo (ICPD) which emphasised the relationship between population, sustainable development, comprehensive reproductive health services of good quality, gender equality and the right of individuals and couples to freely and responsibly decide on the number and spacing of their children. This was followed in 1996 by the withdrawal of centrally determined family planning targets, which reversed the trend of a target-driven approach. This change in approach was consolidated by the announcement of the Reproductive and Child Health Programme in 1998 and was given its ultimate shape by the National Population Policy in 2000 (NPP 2000).

 

The overall vision of the NPP is to ensure social and economic development and improve the quality of life of the people, to enhance their well-being, and to provide them with opportunities and choices to become productive assets in society. The NPP provides a very clear explanation of the relationship between population and development, which includes other parameters like comprehensive reproductive health services, education, decentralisation, women’s empowerment and so on. This is in consonance with the constitutional promises of the Directive Principles of State Policy. Two other social development policies namely, the National Policy for the Empowerment of Women 2001 and the National Health Policy 2002, reinforced this emphasis on women’s empowerment and social development as a key to the success of national development.

 

2.    India and Family Planning Programme and Population Policy

 

In 1952 independent India became the first country to adopt a policy for population control identifying family planning as an important component. During the 1st Five Year Plan period 1951-56, the family planning programme in India was focused on setting up of clinics for those who needed such services which was modelled on Planned Parenthood Organisation in the west. In the 2nd Five-Year Plan period (1956-61), the distribution of contraceptives was extended through PHCs, government hospitals and dispensaries, and maternity homes run by the state governments. From 1966-69, the earlier programmes were continued with annual budgeting and target setting. The camp approach was not introduced until the Fourth Five-Year Plan (1969-74). By the 7th Five-Year Plan (1985-90), clear long term demographic goals were set up and in order to achieve the targets the government stipulated 31 million sterilisations. By the 9th (1997-2002) and 10th (2002-2007) Five-Year Plans, reduction in the population growth rate was recognised as one of the priority objectives.

 

Most of the population policy makers and citizens have internalised the warning of biologist Paul Ehrlich in the Population Bomb 1968 about world’s population growth outpacing the production of food and other critical resources and resulting in mass starvation striking in the 1970’s and 1980’s. There was strong IEC in the programme for family planning/control – two children e.g. ‘Hum do, Hamare do’ Ek bachcha bas, which impacted in strong awareness but only some practice and behavior change.

 

The introduction of the Two Child Norm for elected representatives in Panchayats and Municipalities started after the results of the 1991 Census was due to some urgency and increased focus of planners and policy makers on population stabilisation/control measures. The NDC (National Development Council) set up a Committee under the Chairmanship of the then Chief Minister of Kerala in 1992. It recommended in its report in 1993 that legislation should be brought up in Parliament prohibiting persons with more than two children from holding any post from Panchayat to Parliament in future. Its report did not result in such a law at the national level due to an inconclusive debate on the recommended measure but a number of States adopted it by including it in the Panchayat and urban local bodies legislation for conforming to the 73rd and 74t h Constitutional Amendments which too were made in 1992 and required conformity within a year. Rajasthan was the pioneer in introducing this norm for Panchayats and Municipalities in 1992. Andhra Pradesh and Haryana introduced it in Panchayats in 1993. Orissa introduced it for Zila Parishads in 1993 and for Village and Block Panchayats in 1994. Thus these States introduced the Norm before the first elections under the post-Amendment legislaton. Himachal Pradesh and Madhya Pradesh introduced it in 2000 (Chhattisgarh inherited in this law) and Maharashtra and Gujarat in 2005 after two State Panchayat elections.

 

The Two Child Norm introduced in Panchayats and urban local bodies disqualified persons from entering or remaining in the local body as elected representatives if they have more than two children after a specified date. Children born before the date specified in the law itself, which generally also gave one year’s grace time were not taken into account to see if the law was violated. Some States e.g. Madhya Pradesh also extended this as law to elected representatives in cooperative societies and Agricultural Market Boards (Mandies).

 

The Two Child Norm is also introduced to deny these persons benefits of State Welfare Programmes and Schemes (see Annexure-I) of special services or benefits like concessional food grains, scholarships, maternity benefits etc. for the third or additional child born beyond the Two Child Norm. This measure thus seeks to compel citizens to take fertility decisions in compliance of this limit and set example for others.

 

This measure is hopelessly out of tune with the pre and post ICPD national and international discourse which gives centrality to women’s autonomy and agency and responsible choice of individuals in population policies and population stabilization. In fact this discourse also takes note of the past experience of the futility of coercive methods in enforcing fertility decisions.

 

Introduction of the Two Child Norm in the elections to the new local bodies in rural and urban India ignores the objective and content of the major initiative of the 73rd and 74t h Constitutional Amendments of bringing the earlier politically, socially and economically marginalized sections in a critical number to participate in grass roots democracy. This initiative targeted participation of younger persons by the Amendment reducing the minimum age to contest these elections to 21 years (a fact generally not noticed by media) and mandated at least ⅓ women in members as well as Chairpersons of Panchayats and urban local bodies by reservation for them. This reservation has now been enhanced to 50 percent by most of the States.

 

3.    Two Child Norm and ICPD 1994

 

ICPD 1994 in CAIRO was a milestone in the history of population and development and in the history of women’s rights1. The POA (Programme of Action) finalized in this conference says that reproductive health care should enhance individual rights, including right to decide ‘freely and responsibly’ the number and spacing of one’s children and to have the information, education and the right to a ‘satisfying means to do so’ and have safe sex life. State should provide universal access to family planning and sexual and reproductive health services and reproductive rights, deliver gender equality, empowerment of women and equal access to education for girls. ICPD approach though agreed in POA has not been followed in the coercive Population Policies and the Two Child Norm Law and Policy.

 

Women’s groups had even before ICPD 1994 attempted to reshape population agendas and advocated a shift from the ‘democratic imperative language’ to one of women’s rights, sexual and reproductive health and rights. Government itself admitted the failure of earlier target oriented approach of population control. From mid 1990’s Govt. attempted to make a paradigm shift in its approach to family planning to advocacy, quality of care and individual choice. But

 

1  Three world conferences on population have been held. First in 1974 in Bucharest – World Population Conference, the second in Mexico City in 1984 – International Conference on Population. The next in Cairo was appropriately named as International Conference on Population and Devel opment. there have been continuous efforts to push targeted, coercive measures thus U.P Population Control Bill 2002 which was aborted due to strong protests by women’s groups and health activists embodied series of disincentives e.g. denying ration cards and education in govt. school for the third child, debarring from govt. jobs and from contesting elections for local bodies. Maharashtra had tried to deny irrigation water but dropped the proposal in view of strong protests against it.

 

4.    Two Child Norm and 73rd, 74th Constitutional Amendme nts

 

The introduction of Two Child Norm in elections to Panchayats and Urban Local Bodies was after 73rd, 74t h Constitutional Amendment, with introduction of reservation for women and SC/ST and contesting elections at a younger age of 21 years. The States of Andhra Pradesh, Haryana, Rajasthan and Orissa introduced at in their Panchayat laws in 1994, 1995 In. fact they used the opportunity of bringing new/ amended Panchayat law for conformity to the provisions of the constitutional amendment. Madhya Pradesh, Himachal Pradesh, introduced it later in 2000and and Gujarat and Maharashtra in 2003. Madhya Pradesh, Chhattisgarh, Himachal Pradesh and Haryana have later removed it by amending the law after successful advocacy by women’s groups and other social activists. But others continue to retain the provision. The mindset in favour of continuing this coercive measure and its impact and result continues. Thus recently – the ruling BJP legislators in Rajasthan asked state government to review the law that disqualifies persons with more than two children from contesting Panchayat elections and seeking government jobs. The MLAs argued that the law was prompting couples to commit feticide, which was leading to a skewed sex ratio in Rajasthan. But the State’s Health Minister turned down the demand and rejected the reasoning that the law was responsible for the state’s skewed sex ratio. “Rajasthan has the highest TFR (total fertility ratio) in the country with 17 lakh babies born here” he said, adding that the law was framed as a population control measure.

 

5.    Legal and Judicial Perspectives

 

A study of the law of Two Child Norm law in Panchayats (MCM 2006) in five states in 2006 elaborated on the treatment of the issues involved in this law in the courts.

 

To the legal mind, the two child norm is firmly positioned against issues such as population explosion, resource depletion and sustainable development, requiring measures to contain population growth. The norm, therefore, is not seen as directly interfering with the right of any citizen to take a decision in the matter of procreation. It is seen as only generating a legal consequence for a person who has had more than two children on the relevant date of seeking the elective office under the Act.

 

The courts have accepted the legality of this clause and rejected the arguments of violation of human rights, democratic rights, personal law of minorities or equality as the clause is not applicable to MPs/MLAs. The judgments have statements of concern about “Population Bomb”, “Population Explosion”. Apparently the efficacy of social development and women’s empowerment to further the goal of population stabilization on the one hand and the likely negative consequences of law of two child norm on the other hand, had not been brought up before the courts.

 

The Courts (Supreme Court and before that a number of High Courts) endorsed the legality of introduction of Two Child Norm. The SC in a judgment in Haryana case in July 2003 observed. Disqualification on the right to contest an election for having more than two living children does not contravene any fundamental right nor does it cross limits of reasonability. In fact the Court endorsed the law as a ‘disqualification conceptually devised in national interest’

 

The Andhra Pradesh High Court upheld the validity of these provisions. Upholding the validity of sub-section 19(3) of the state law, the court observed, “The said provision has been incorporated in view of the population explosion which is beyond imagination…. There will be no place to live in and if there is a place to live in, there will be no place for other resources like agricultural land, water resources and other material resources for sustenance. If the population is not contained, leave apart food, we may not get potable water to drink. As such, the restriction of the number of children for the elected representatives has got nexus with the object to be achieved, i.e. containing the population by the measure of practicing family planning. As such, there is no violation of any of the Constitutional rights and the provision is intra vires the Constitution”. [Are Gangadhar vs. Zila Parishad, Karimnagar and others, 1995(5) ALD 585(DB): 1995(5)] (emphasis added).

 

Similarly, in another case, the High Court observed that Section 19(3) does not directly interfere with the right of any citizen to take a decision in the matter of procreation. It only creates a legal disability on the part of any person who has procreated more than two children as on the relevant date of seeking an elected office under the Act. [B.K. Parthasarathi vs. Government of Andhra Pradesh and others, 2000(1) ALD 199(DB)].

 

The Punjab and Haryana High Court observed (in Fazru vs. State of Haryana and Lalaram vs. State of Haryana) in 1994, “to make life meaningful, worth living, the legislature can provide limiting one’s family. How can she State assure one the right to work, education and to public assistance in case of unemployment, old age, sickness and disablement and in other cases of undeserved want, if there is no check on the growth of population? Constitutional dream inhering the Article 41 of the Constitution of India will remain only an idle dream and will never be translated into reality of there is no check on population growth through some legislative measure”. (emphasis added)

 

“It is observed the government is spending a huge amount of money on propagating Family Planning. In the recent years, the growth of population in the country is alarming. It is expected from the Panches and Sarpanches to set good examples and they are supposed to maintain the norm of two children. If they themselves violate the same, what examples they can set before the public. The population can be checked by adopting the Family Planning measures. If the same are not adopted, then the Nature takes its own turn, i.e. people die by natural calamities. Right to contest election is not a fundamental right. We are not oblivious of the fact that the nation’s interest is supreme”.

 

“Growing population is the greatest problem, absolutely essential for every country to see that the Family Planning Programme is maintained at a sufficient level so as to meet the danger of overpopulation which, if not controlled, may lead to serious social and economic problems throughout the country. No enactment, which promotes social and economic justice, can be held to be ultra vires. No doubt every citizen has a right to live with human dignity. But, how can one expect citizens of this country to live with human dignity and social equality when the population goes on increasing by leaps and bounds. If the existing rate of growth of population is allowed to continue it is bound to take the country to a dangerous stage where persons may die of hunger and may not have a roof over their heads to live. “[1998(1) PL 5). (emphasis added)

 

“The purpose of enacting this provision under challenge and the right to life, keeping in view the same, cannot be extended in the manner that endless millions keep multiplying when everyone has thereafter to live an animal existence. The restriction, therefore, cannot be termed to be arbitrary”. (emphasis added).

 

The Rajasthan High Court considered the validity of this norm (Mukesh Kumar Ajmera and others vs. State of Rajasthan and others: AIR 1997 Rajasthan 250) and ruled that this provision “cannot be declared as arbitrary of discriminatory as no provision has been made with respect to the Members of Parliament, Members of State Legislative Assembly or the members of Cooperative Societies”, etc. “Though having more than two children does not, in any way, affect the working of the Sarpanch, Panch or a Member of a Panchayat Raj Institution but the population explosion has affected the economic condition of the State and it is with the purpose to implement the mandate of the Directive Principles of State Policy and this measure was considered necessary”. (emphasis added)

 

As a result of these early judicial pronouncements, the Panchayat representatives have only tried to circumvent the law by adopting practices to show reduced number of children. It has also, to some extent, led to the issues and implications and ineffectiveness of coercive measures, the ICPD consensus, the spirit of the National Population Policy 2000 have not been adequately placed before the courts. Hence the courts could not look at social justice friendly and gender just, and hence more effective, route to achieve pop ulation stabilisation.

 

The Supreme Court’s judgment in Javed and others vs. State of Haryana and others in July 2003 [2003(8) SCC] also appears to continue the same concern for “Population Control”. The court accepted the constitutional validity of the Haryana law disqualifying persons with more than two living children to contest election to or continue in Panchayats, also observing that it seeks to achieve the objectives of popularising Family Welfare/Family Planning Programme. The submission that a person’s number of children did not affect his capacity, competence and ability to serve the Panchayat office and had not nexus with the purpose of the Act was not accepted observing that since one of the objects of this law was to popularise Family Welfare/Family Planning programme and which was also consistent with the National Population Policy it serves the purpose of the Act as mandated by the Constitution. The court further observed that this achieves a laudable purpose of social welfare and health care of the masses and is consistent with the National Population Policy provisions that “Demonstration of strong support to the small family norm, as well as personal example, by political, community, business, professional and religious leaders, media and film stars, sports personalities and opinion- makers, will enhance its acceptance throughout society”.

 

There are important aspects of the spirit of the National Population Policy, for instance, in Para 6 that the policy “affirms the commitment of government towards voluntary and informed choice and consent of citizens while availing of the reproductive health care services and the continuation of the target free approach in administering Family Planning Services” and in Para 11 about forming of committees headed by elected women Panchayat members “to promote a gender standard for population stabilisation”. These do not seem to have been placed for the consideration of the Supreme Court.

 

There are also other observations of the court, e.g. “the torrential increase in the population of the country is one of the major hindrances in the pace of India’s socio-economic progress”, reference to the example of China and that “complacence in controlling population in the name of democracy is too heavy a price to pay, allowing the national to drift towards disaster”, “who can better enable the discharge of functions and duties and such constitutional goals being achieved than the leaders of Panchayats themselves taking a lead and setting an example?” The Court also observed, “we don’t think that with the awareness which is arising in the Indian women folk they are so helpless as to be compelled to bear a third child even though they do not wish to do so”. The issues involved in these observations in the light of the experiences and limitations of the “population control” measures, the realities of Indian women’s empowerment at the grass root level and in different domains, from the public to the private, need to be seriously debated.

 

Supreme Court’s declaration in the judgment on the Two Child Norm that “the problem of population explosion was a national and global issue and provided the justification for priority in policy oriented legislation wherever needed” is not justified. Labeling a demographic transition as a population ‘explosion’ is alarmist and unsubstantiated by data. The Crude Birth Rate has fallen by about half from 49.2 in 1911 to 24.8 in 2001. The total Fertility Rate has come down to 3.2. The population growth can largely be attributed to a large ‘young’ population and increased life expectancy, from an average of about 23 years in 1911 to about 65 years in 2001. When development issues like poverty eradication, female literacy, health, sanitation and infant mortality are addressed, people voluntarily opt for smaller families, as the experience worldwide, and closer home in Kerala, shows.

 

References and Furthe r Reading:

  1. 73rd and 74t h Constitutional Amendments 1992
  2. National Policy on Women’s Empowerment
  3. ICPD (1994): ‘Programme of Action’, UNFPA Report of the International Conference on Population and Development Cairo, September 5-13.
  4. MoHFW (2000): National Population Policy, 2000, Ministry of Health and Family Welfare, New Delhi.
  5. NHRC (2003): Declaration: National Colloquium on Population Policies, National Human Rights Commission, New Delhi.
  6. Buch Nirmala – The Law of Two Child Norm in Panchayats – Concept publish 2006
  7. Buch, Nirmala (2005): ‘Law of Two-child Norm in Panchayats: Implications, Consequences and Experiences’ Economic and Political Weekly, Vol. 40, No 24, June 11, pp 2421-29.
  8. Leela Visaria, Akash Acharya, Francis Raj – Two Child Norm, victimising the vulnerable (EPW January 7, 2006).
  9. SAMA – Study of Two Child Norm in MP, 2003-04.
  10. S. Arukrits and Abhisek Chakravarty – Two Child Norm for Local Bodies hurts sex ratio. The Hindu Sept.7, 2014.
  11. State Population Policies – AP, Rajasthan, MP