On 25th February 2021, The Draft Lakshadweep Panchayat Regulations [hereinafter mentioned as “Draft Regulations”] were placed in the public domain for seeking comments. Rule 14 of the Draft Regulations states that any person having more than two children would be disqualified from becoming or continuing as a member of the Gram Panchayat. While it has been drawing a lot of flak, this isn’t the first time such a rule has been proposed. Around 12 States in India including Rajasthan, Madhya Pradesh, Andhra Pradesh, and Telangana, Gujarat, Odisha, Uttarakhand have such provisions. Assam is the newest addition to the list.
Are there any States which have similar Rules?
The Maharashtra Civil Services (Declaration of Small Family) Rules, 2005 define a ‘small family’ as one having two children and makes anyone who has more than two children after 2005 ineligible for a government job. Recently, the Maharashtra Administrative Tribunal had held that small family is the rule, and relaxation may be there only in ‘just and reasonable’ circumstances, in the absence of which, there can be no deviation from such rule.
Section 19 of the Rajasthan Panchayati Raj Act, 1994 has a similar disqualification. A person having more than two living children is disqualified from being elected as a panch or a member.
In Madhya Pradesh, according to the sub-rule (6) or Rule 4 of Madhya Pradesh Civil Services (General Condition of Services) Rules, 1961, a candidate having more than two living children, one of whom is born on or after the 26th day of January 2001, is disqualified from being appointed to government services, including the higher judiciary.
The Gujarat Provincial Municipal Corporations Act, 1949 was amended in 2005 to incorporate a similar provision. Under Section 10 of the Act, a person is disqualified from being elected if he has more than two children. Similar provisions are found in Maharashtra Zilla Parishads And Panchayat Samitis Act, 1962, Telangana Panchayat Raj Act, 1994, and Andhra Pradesh Panchayat Raj Act, 1994.
Almost all of these provisions come with a rider that the bar would not apply on a person having more than two children at the time of commencement of the provision, provided that the number of children does not increase after the date of coming into force of the provision.
What does the Judiciary say?
The most important case on this issue is Javed & Ors. v. State of Haryana (2003). Sections 175(1)(q) and 177(1) of the Haryana Panchayati Raj Act, 1994 were challenged. The provision disqualified a person having more than two living children to become or continue as a Sarpanch or a Panch of the Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad. The proviso to the section stated that a person having more than two children on or up to the expiry of one year of the commencement of this Act, shall not be deemed to be disqualified. It was contended that such a classification went against Article 14 of the Indian Constitution.
Article 14 forbids class legislation, however, classification based on a reasonable differentia in having a rational nexus with the object sought to be achieved is allowed. The Court observed that there exists a clear intelligible differentia as persons having more than two children constituted a different class as opposed to persons having less than 2 children. One of the objectives of the legislature is to achieve a family welfare/family planning program and this distinction serves as a reasonable classification.
The Court also held that there was no merit in the submission that the competence of a person is not affected by the number of children he has. Clause XIX (1) of Section 21 of the impugned Act mentions ‘family welfare’ as one of the primary functions and duties of the Grama Panchayat. The disqualification is there to carry out the purpose of the Act as well as the mandate under Article 243G of the Constitution. Therefore, the provision is neither arbitrary nor unconstitutional.
Article 243G of the Constitution provides that the State legislature may pass laws as may be necessary to enable the Panchayats to carry out their powers, responsibilities, and functions and serve as institutions of self-government. The Eleventh Schedule of the Constitution lays down the distribution of power between the State and Local government. Entry 24 of the Schedule mentions ‘Family welfare’. The Second Schedule of the Lakshadweep Draft Regulations is a reproduction of the Eleventh Schedule of the Constitution.
Recently, in a 2018 judgment, the Supreme Court had held that the birth of a third child would disqualify a person, even if the child was given up for adoption. The petitioner had challenged his disqualification under the Odisha Gram Panchayat Raj Act. The Court observed that the intent of the legislature in enacting such disqualification is to restrict the number of births in a family and that it couldn’t be circumvented by the provisions of the Hindu Adoptions and Maintenance Act.
The Lakshadweep Regulation
As seen above, many States across India have passed a two-child policy. Then why has it only become a matter of concern when it was passed in Lakshadweep? The agitation against the two-child policy stems from not just the policy itself, but from the sense of insecurity that the inhabitants of the Island have been feeling in the past six months owing to the enactment of many other policies which the people believe are against their interests. ,
Proviso to Rule 14(n) of the Draft Regulations clarifies that the bar of two children would not operate retrospectively, and the disqualification would not be applicable on a person to whom a child or more than one child is born in a single delivery, within one year from commencement of the Rules. The Uttarakhand High Court in 2019, declared that the Uttarakhand Panchayat Raj (Amendment) Act, 2019 which also prescribes similar disqualifications, was constitutional so long as it did not operate with retrospective effect. Furthermore, the Explanation to the rule also provides that for the purposes of clause (n), a child would not include an adopted child.
Therefore, according to the Supreme Court’s ruling in Javed(supra), and the subsequent rulings by various High Courts, State legislatures are within their rights to pass a rule for disqualifying those who have more than 2 children.
Lakshadweep is a tiny archipelago with a population of around 70 thousand people. The latest statistics determine that the population growth of the Island in the second decade of the millennia is expected to be around 3 percent as opposed to 6.30 in the first decade. It is evident that the population expansion rate has been reduced even before the two-child policy was proposed.
The two-child policy of Lakshadweep has been compared with a number of similar policies from around the country. But one must not turn a blind eye to the fact that the overall population of the Islands of Lakshadweep is minuscule as compared to the States it has been weighted against. This makes us question whether the draft regulations were enacted with the sole purpose of population control and family planning or whether it has ulterior motives as feared by Lakshadweep’s inhabitants.