Notorious Verdict & The Two-child norm: After Haryana law on contesting panchayat elections, Rajasthan law for jobs | Gopal Krishna

Unlike Kerala which uses education as tool for the goal of population control and remains sensitive to the reproductive rights of citizens, the two-child norm against Panchayat members of Haryana and now for job seekers in Rajasthan is reminiscent of notorious sterilization laws and judgements of the U.S. which restricted to blacks and racial minorities. In the aftermath of the Supreme Court’s judgement in 2003. a The Two Child Norm Bill, 2005 was introduced as a private bill in the Rajya Sabha. This bill is aimed at providing for population control through promotion of "voluntary sterilization" among eligible couples having two living children and measures for promoting two-child norm. The case of Aadhaar Number shows that what is promoted as "voluntary" measure gets transformed into coercive measure. It emerges that there two kinds of norms for panchayat elections and for the election to state assemblies and parliament in Haryana and for job seekers in Rajasthan.

Meanwhile, the number of babies born in Japan totaled 758,631 in 2023, hitting a record low for the eighth straight year and representing half the figure of some 1.5 million logged in 1983. The 2023 figure declined by 5.1% from the previous year’s preliminary total of 799,728, the largest-ever margin of decline. The figure fell below the 800,000 mark for the first time in 2022. "Caring for Our Elders Institutional Responses: India Ageing Report 2023" of United Nations Population Fund and International Institute for Population Sciences indicates that an ageing population will give birth to economic crisis. The UN report estimates that India’s elderly population (people over 60 years old) will grow at a rapid 41% between 2021 and 2031. The number of elderly people will be larger than the number of children (people who are younger than 15 years old) by 2046. Notably, in 2021 there were 39 elderly persons for every 100 children in India, and 16 elderly persons for every 100 working-age persons. The UN report shows that the elderly people will constitute about 20% (or one in five members) of India’s population by 2050. By the end of the 21st century, 36%, or a little more than one-third, of India’s population will be over 60 years old.

In such a backdrop, order of Supreme Court’s bench of Justices Suryakant, Dipankar Dattaand K.V. Viswanathan upholding the judgment of a Division Bench of Rajasthan High Court dated October 12, 2022 appears to be caught in a time warp. The order ought to read with the UN report and the leading order of Justice (Dr.) D. Y. Chandrachud as part of the unanimous judgement by 9-judge Constitution Bench of the Supreme Court delivered on August 24, 2017. He observed, "When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been. The decision of the US Supreme Court in Buck v Bell (1927) ranks amongst the latter. It was a decision in which Justice Oliver Wendell Holmes Jr. accepted the forcible sterilization by tubular ligation of Carrie Bucks as part of a programme of state-sponsored eugenic sterilization. Justice Holmes, while upholding the programme opined that: ’three generations of imbeciles is enough’." In an 8-1 decision, the Supreme Court upheld Virginia’s sterilization law. The Court decided that since sterilization only occurred after months of observation and an institutional board hearing, the practice was constitutional. Justice Oliver Wendell Holmes, a eugenics enthusiast, wrote for the Court. Holmes stated that society’s welfare would be promoted by sterilizing Carrie Buck since she could likely have another child with a mental impairment. Holmes went on to say that since the country asks men to potentially lose their lives in battle, other citizens should be willing to suffer “lesser sacrifices.” Notably, Justice Pierce Butler dissented, thinking that personal liberty was at stake, and the state’s justification was not sufficient. Dr. Chandrachud referred to Siddhartha Mukherjee’s book The Gene: An Intimate History, which provides a moving account of the regressive times.

In 1942, the US Supreme Court decided Skinner v. Oklahoma ex rel Williamson case. Jack Skinner was a chicken thief that the state of Oklahoma sought to sterilize. But the Supreme Court decided differently in this case, stating that reproduction is one of the basic rights of man. Therefore, sterilization violated the Equal Protection Clause of the Fourteenth Amendment. The Court also noted that being a chicken thief was not identified as an inheritable trait. It marked a shift in public attitudes towards eugenics. Eugenics came to be associated with the Nazi party, which committed mass genocide against the Jewish people and others in the Holocaust while claiming to promote the Aryan race. The Buck v Bell case was a landmark decision for the eugenics movement. Another eight thousand three hundred people in the state of Virginia and sixty-thousand people nationwide were involuntarily sterilized until the practice and eugenics as a whole fell out of favor in the 1970s.

Its order dated February 20, 2024 reiterated Supreme Court’s judgement in Javed v. State of Haryana (2003) which had held that "the classification, which disqualifies candidates for having more than two living children, was non-discriminatory and intra-vires the Constitution, since the objective behind the provision was to promote family planning."

The aggrieved appellant, Ramji Lal Jat, an ex-serviceman had applied for the post of Police Constable in the Rajasthan Police but his candidature was rejected in light of a Rule of the Rajasthan Police Subordinate Service Rules, 1989, on the ground that since he had more than two children after June 1, 2002, he stood disqualified for public employment under the State, as per the Rajasthan Various Service (Amendment) Rules, 2001, which provides that “no candidate shall be eligible for appointment to the service who has more than two children on or after 01.06.2002.” He had approached the Rajasthan High Court which turned down his claim on the premise that the subject-Rule, under which the appellant has been disqualified, falls within the realm of policy and does not warrant any interference by the Court.

On July 30, 2003, the Supreme Court’s bench of Justices R.C. Lahoti, Ashok Bhan and Arun Kumar delivered its judgment in the case of Javed v. State of Haryana [Writ petition (Civil) No. 302 of 2001]. In this case the constitutionality of Sections 175 and 177 of the Haryana Panchayati Raj Act, 1994 was upheld by the Court. The cumulative effect of these Sections is to disqualify persons having more than two children from becoming Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such. The Court observed, "“Fundamental rights are not to be read in isolation. They have to be read along with the Chapter on Directive Principles of State Policy and the Fundamental Duties enshrined in Article 51A. Under Article 38 the State shall strive to promote the welfare of the people and developing a social order empowered at distributive justice - social, economic and political. Under Article 47 the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular the constitutionally down-trodden....The concept of sustainable development which emerges as a fundamental duty from the several clauses of Article 51A too dictates the expansion of population being kept within reasonable bounds.” The order was authored by Justice Lahoti.

The Court held that "We are clearly of the opinion that the impugned provision is neither arbitrary nor unreasonable nor discriminatory. The disqualification contained in Section 175(1)(q) of Haryana Act No.11 of 1994 seeks to achieve a laudable purpose - socio-economic welfare and health care of the masses and is consistent with the national population policy. It is not violative of Article 14 of the Constitution."

It observed that "Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a Statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right —a right originating in Constitution and given shape by statute. But even so it cannot be equated with a fundamental right. There is nothing wrong in the same Statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office."

The Court drew on the law laid down in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency (1952) Jagan Nath v. Jaswant Singh (1954) SCR 892 and Jyoti Basu v. Debi Ghosal (1982 wherein the Supreme Court held that "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation."

The Court observed that "In our view, disqualification on the right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross the limits of reasonability. Rather it is a disqualification conceptually devised in national interest."

The judgement concluded that "The challenge to the constitutional validity of Section 175(1)(q) and 177(1) fails on all the counts. Both the provisions are held, intra vires the Constitution. The provisions are salutary and in public interest." Once upon a time even eugenics and forceful sterilisation of human beings were deemed in public interest.

Supreme Court’s bench of Justices Suryakant, Dipankar Dattaand K.V. Viswanathan missed the opportunity of rectifying the judgement in Javed v State of Haryana. The Court’s insensitive approach towards reproductive rights has been criticized in a paper published in National Law School of India Review. Unlike Indian Supreme Court, the US Supreme Court has held that "The right to procreation is a fundamental right, so a state cannot require the sterilization of criminals convicted of certain crimes." Subsequent to this order, the Virginia sterilization law was repealed in 1974. In 2002, Virginia became the first State to issue a formal statement of regret for its past support of eugenics and involuntary sterilization. In 2015, the General Assembly approved a financial compensation program for living survivors of eugenic sterilization that allowed them to claim up to $25,000. Notably, The Washington Post criticized Virginia’s compensation plan for the “insulting” amount offered to victims, noting that North Carolina offered victims $50,000 in its editorial published on November 28, 2015.

A day will come when the Haryana, Rajasthan laws and Aadhaar Act too will either get repealed or overturned by the Supreme Court and a statement of regret will be issued and compensations will be paid to the victims of these laws.

(Author: Gopal Krishna, is a lawyer and a researcher of philosophy and law. His current work is focused on philosophy of digital totalitarianism. He has appeared before Supreme Court’s Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject oif national and international legisaltions. He is the co-founder of East India Research Council (EIRC). )