Children as disqualification

The Supreme Court's upholding of the Haryana Act enforcing the two-child norm for elected representatives at the grassroots level evokes widespread concern.

in New Delhi

THE population debate in India, which is now several decades old, acquired a fresh perspective when the National Population Policy (NPP) 2000, was drafted. There was a marked shift from the "target oriented" approach of the 1970s and the 1980s to one that was more holistic and envisaged the "development is the best pill" outlook. It was with much effort that women's groups, health organisations, academics, social activists and a section of demographers prevailed upon the government of the day that the availability and quality of care and services and reduction in inequalities were of paramount importance if the socio-demographic goals needed to be met.

As a signatory to the action plan of the International Conference on Population and Development held in Cairo in 1994, India was committed to making the linkages between population, development and gender. Cairo set the agenda for a more progressive, holistic and people-centric outlook on the population question, which so far had been accused of being techno-centric. It was perhaps a remarkable coincidence that around the same time as ICPD, Cairo, the 1992 constitutional amendment revitalising panchayat bodies and enabling women to enter these elected bodies at the grassroots was passed in India.

But this optimism soon gave way to cynicism as several State governments took upon themselves the task of addressing the population question using incentives and disincentives. It is now a matter of concern that even as the global debate has veered away from archaic notions of achieving population stabilisation, sections of the Indian political class and, more recently, the Supreme Court of India appear to be subscribing to those very concepts that may stymie democratic participation and negate the goals of the ICPD.

On July 30, 2003, a three-Judge Bench of the Supreme Court, comprising Justices R.C. Lahoti, Ashok Bhan and Arun Kumar, upheld a controversial legislation of the Haryana government that debarred people with more than two children from contesting panchayat elections and would disqualify elected members of gram panchayats,, panchayat samitis or Zila Parishads if found to have violated the two-child norm. Section 175 (1) (q) of the Haryana Panchayati Raj Act, 1994, lays down that no person who has two or more living children shall be a sarpanch or a panch of a gram panchayat or a member of a panchayat samiti or Zila Parishad or continue as such. Further, Section 177(1) specifies that if any member of a gram panchayat, panchayat samiti or Zila Parishad who has been elected and who was subject to any of the disqualifications mentioned in Section 175 shall be disqualified from continuing to be a member and his office shall become vacant.

There were more than 200 petitions, and the petitioners included people who had been disqualified under the Act.

The provision was challenged on five grounds. It was contended that: 1) It was arbitrary and hence violative of Article 14 of the Constitution; 2) The disqualification does not serve the purpose sought to be achieved by the legislation; 3) The provision was discriminatory; 4) It adversely affected the liberty of leading personal life (sic) in all its freedom and having as many children as one chooses to have and hence is violative of Article 21 of the Constitution and; 5) The provision interferes with the freedom of religion and hence violates Article 25 of the Constitution.

CLUBBING the first three submissions under Article 14, the Bench held that one of the objects sought to be achieved by the legislation was the popularisation of the family welfare/family planning programme and that the disqualification enacted by the provision sought to achieve the objective by creating a disincentive. This was consistent with the NPP, stated the order. It is of course another issue that the NPP, which the judgment quotes, was not in favour of using either incentives or disincentives to achieve the demographic goals. Striking down the plea that the provision did not serve the purpose of the Act, the Bench held that 243 G of the Constitution vested the legislature of a State with the authority to make laws endowing the gram panchayats with such powers and authority that may be necessary to enable them to function as units of self-governance. And Clause (b) of Article 243 G entrusted panchayats with powers to implement schemes for economic development and social justice, including those in relation to matters listed in the 11th Schedule, for example, family welfare and women and child development, it held. The Haryana P.R. Act, 1994, had enumerated the duties of the gram panchayat under Sub-section XIX of Section 21 as "Public and family welfare - implementation of family welfare programme", the court said.

The Bench held that family welfare included family planning and that the legislature had, in order that the Act could carry out its purpose and serve the constitutional mandate, made the provision of making a person having more than two children ineligible to contest for the post of panch or sarpanch. First, it is not clear how the Bench clubbed family welfare with family planning. While the former addresses a wider audience, the latter by definition confines itself to narrowing the size of the family, and that too beginning with rural India.

The Bench also rejected the contention that the provision was discriminatory as it did not apply to other States. The Bench held that if such a submission were accepted, it would violate the autonomy given to the Centre and the States within their respective fields under the constitutional scheme. Citing previous judgments of the Supreme Court, it observed that the implementation of a policy decision in a phased manner was suggestive of neither arbitrariness nor discrimination (Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna etc vs the State of Bihar and Ors, 1988).

But, interestingly, the Bench strongly advocates the introduction of reforms at the grassroots level. Panchayats, it notes, are grassroots-level institutions of local self-governance. They have a wider base. "There is nothing wrong in the State of Haryana having chosen to subscribe to the national movement of population control by enacting a legislation which would go a long way in ameliorating health, social and economic conditions of rural population and thereby contribute to the development of the nation which in turn would benefit the entire citizenry,"observes the Bench

The judgment includes a long quote from the NPP, 2000, the gist of which is that if elected leaders and opinion-makers demonstrate support with close involvement in the reproductive and child health programme, this would greatly influence the behaviour and response patterns of individuals and communities. But nowhere in the quote from the NPP, 2000, is there any suggestion that the NPP had advocated the two-child norm to be implemented at the grassroot-level institutions or at any other level of governance. In fact, the use of the new term Reproductive and Child Health - considered a paradigm shift - in the NPP only goes to show that family welfare had long ceased to be looked upon with the narrow lens of "family planning". Neither is population control a national movement as described in the order.

What is erroneous is the understanding that the provision for disqualification contained in the Haryana Act, which seeks to achieve socio-economic welfare and healthcare of the masses, is consistent with the NPP. The NPP itself has never identified baby boom as the reason for population growth. High infant mortality rates, high level of unmet needs owing to poor access to services, the low age of marriage still prevalent in several parts of the country and early childbearing were cited as some of the main reasons for the high population growth rate. The policy has always stressed socio-demographic goals and not just demographic goals.

The petitions that challenged Articles 21 (Protection of life and personal liberty) and 25 (Right to freedom of religion) were also struck down as constitutionally invalid by the Bench. The Judges held that the right to contest elections was not a fundamental right but one conferred by a statute. The disqualification was "conceptually devised in national interest", it was stated.

Going into the constitutional validity of the legislation with reference to both the Articles, the Bench held with reference to Article 21 that "the lofty ideals of social and economic justice, the advancement of the nation as a whole and the philosophy of distributive justice - economic, social and political - cannot be given a go by in the name of undue stress on fundamental rights and individual liberty."

But the achievement of these lofty ideals has been solely linked with the "burgeoning population" question. While there cannot be any disagreement with the Bench's views that undue stress on fundamental rights and individual liberty could affect the lofty ideals of social and economic justice, it is also important that there can be and there are other means of achieving such objectives. The order compares the global population scenario with that of India's and laments that "it is a matter of regret that though the Constitution is committed to social and economic justice for all, yet India has entered the new millennium with the largest number of illiterates in the world and the largest number of people below the poverty line".

Quoting a paper by a Reader in the University of Delhi, the Bench observed that population control assumed a central importance for providing social and economic justice to the people of India. It quoted another paper that said that population growth was responsible for impacting the per capita income, resulting in a shortfall of foodgrains in spite of the Green Revolution; hampered improvement on the educational front; and caused the swelling of unemployment numbers (sic), creating a new class of pavement and slum-dwellers and leading to congestion in urban areas as a result of migration by the rural poor. "Complacence in controlling population in the name of democracy is too heavy a price to pay, allowing the nation to drift towards disaster," the Bench observed, and further stated that the facts and excerpts mentioned had highlighted the problem of population explosion as a national and global issue and provided a justification for priority in policy-oriented legislation wherever needed. It was futile to assume that the impugned legislation violated the right to life and liberty under Article 21, the Bench held.

On the contention that the legislation violated Article 25, the Bench held that the freedom (of conscience and free profession, practice and propagation of religion) was subject to public order, morality and health. It held that the Article itself permitted legislation in the interest of social welfare and reform, which are obviously part and parcel of public order, national morality and the collective health of the nation's people.

One of the contentions was that as four marriages were permissible under the Muslim law for the purpose of procreating, any restriction on this would be violative of the right to freedom of religion enshrined under this Article. Quoting certain previous judgments, including the famous Shah Bano Constitution Bench judgment (Mohd Ahmed Khan vs Shah Bano Begum and Ors (1985) 2 SCC 556), where it was held that where there would be a conflict between the personal and the statutory law, the latter shall prevail over the former, the Judges held that 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. "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," the three-Judge Bench noted.

It was also submitted that the disqualification would hurt women the most as they had no independence in Indian society and they helplessly bore a third child if their husbands wanted them to do so. This has been a major issue after several States introduced the two-child norm resulting in the disqualification of several women sarpanchs and panchayat members. Addressing this matter, the Bench noted: "A male who compels his wife to bear a third child would disqualify not only his wife but himself as well. We do not think that with the awareness that is arising in 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."

While it would be very desirable to have a situation as described by the Bench, unfortunately in India, it is not so. The reproductive rights of women are scarcely recognised, resulting in the gross neglect of women's health, beginning from the adolescent stage. However, the discrimination begins much earlier, in the pre-conception stage itself. The skewed sex ratios are but an indicator of the prevalent discrimination against the girl child and the Indian woman. A recent study by the Mahila Chetna Manch, a Bhopal-based organisation, on the implications and consequences of the two-child norm on panchayati raj institutions shows how many States have, at variance with the NPP, disallowed people from contesting panchayat elections and also disqualified elected members.

The exploratory study, commissioned by the Ministry of Health and Family Welfare and supported by the United Nations Population Fund (UNFPA), was conducted in Andhra Pradesh, Haryana, Madhya Pradesh, Orissa and Rajasthan. Although Rajasthan was the pioneer in introducing the two-child norm, it came to be implemented only in 1995. The norm became functional in the other four States too around the same time. According to some of the preliminary findings of the study, there were a relatively large number of disqualified women members from Haryana in the districts of Ambala, Mewat and Gurgaon. Similarly, a large number of disqualified members were found in the districts of Alwar and Ajmer in Rajasthan. Nirmala Buch, a former Chief Secretary to the Madhya Pradesh government and the director of the Mahila Chetna Manch, told Frontline that it was quite possible that in the future someone might be barred from contesting elections because he or she was five feet two inches tall. "Even that is not a democratic right," she said.

Commenting on the judgment, Brinda Karat, general secretary of the All India Democratic Women's Association (AIDWA), said that the judgment contradicted the Cairo declaration to which India was a signatory. The order was also contrary to the NPP charter, she said. Brinda Karat said that the judgment justified the extension of the economic and social inequalities in democratic processes. In prescribing disincentives to control population, the court's perception of the "national interest" appeared to be one that ignored the interests of the majority who constituted the nation, she said. In a country son-preference was strong and where severe imbalances in sex ratios, including juvenile sex ratios, prevailed, the implementation of the judgment would result in the widening of these distortions, she said. The AIDWA has demanded that Parliament reiterate the basic premises enshrined in the Cairo declaration as well as NPP 2000 against coercion, disincentives and targets.

Inderjit Singh, secretary of the Haryana unit of the Communist Party of India (Marxist), said that his party had objected to the inclusion of this provision in the State Panchayati Raj Act as it went against the very spirit of decentralisation of power. It excluded several aspiring candidates from their right to get elected, he said. Another basic objection raised by both the CPI(M) and the AIDWA was that a woman would be disqualified for an act over which she hardly had any control. Women till date had no say in the size of the family, Inderjit Singh said. He argued that it was an established fact that the size of the family was directly proportional to its socio-economic status. He said that children were being declared illegitimate and even given away in adoption to escape disqualification - the social and economic consequences of which had to be borne by women and their children. "We say that such a norm be not applied at any level, panchayat or Parliament," he said. The State unit of the CPI(M) has demanded a review of the judgment.

The portents of such legislation are dangerous. Methods of coercion have never succeeded, whether by legislation or by other means. The demographic transition will come about but this does not seem to be the right way. It will only dissuade people from coming forward to contest elections. As Inderjit Singh remarked: "No one is going to have fewer children in order to contest elections. The good candidates will simply stay away."