Laws Penalising More Than Two Children Have Lost Relevance As Fear Of Overpopulation Has Crumbled: Supreme Court Refers Issue To Larger Bench

The Court was hearing an appeal against a High Court judgment upholding the appellant’s disqualification as a Sarpanch under Section 14(1)(j-1) of the Maharashtra Village Panchayats Act, 1959, because she had more than two children. The constitutional validity of the Maharashtra provision was not under challenge before the Court.

A Bench of Justice Pamidighantam Sri Narasimha and Justice Alok Aradhe observed: “We are of the strong opinion that laws that penalise having more than two children have lost their relevance. The foundation of such laws, i.e. the fear of overpopulation, has crumbled due to demographic changes in the past few decades.”

The Bench further stated: “So, even though India’s population is not yet declining, the TFR falling below the replacement rate will soon result in a demographic transition towards an older population with a declining share of the working-age population. Therefore, laws aimed at limiting population growth have now lost their significance. If we fail to take note of such demographic changes, India will face serious consequences. Adapting to change is important for achieving justice, as failure to adapt produces injustice and is, in a sense, an abuse of power. Thus, failure to use power to adapt to change is in its own way an abuse of power. This has compelled us to stay the proceedings herein, and refer the matter to a larger Bench for immediate re-visitation of the precedent in Javed.”

Background

The appellant’s election as Sarpanch was set aside after it was found that she had given birth to a third child before contesting the panchayat election.

In Javed v. State of Haryana (2003), the Supreme Court had upheld provisions disqualifying persons with more than two living children from contesting or holding panchayat offices. The decision relied substantially upon the concern that population growth impeded economic and social progress.

The present Bench clarified that its enquiry was not into whether the High Court had correctly applied the existing provision and precedent. It instead examined whether the population-control rationale underlying such laws remained relevant after more than two decades of demographic change.

Court’s Observations

Fertility Has Fallen Below Replacement Level

The Court noted that India’s Total Fertility Rate had fallen from 3.0 when Javed was decided to 1.9. A rate of 2.1 is regarded as the replacement level at which one generation replaces itself.

It considered official data showing that the crude birth rate had approximately halved since 1971, while the Total Fertility Rate had fallen from 5.2 to 1.9 children per woman. The Court also referred to projections indicating a gradual increase in the elderly population and a future decline in the relative proportion of working-age persons.

The Bench observed: “The demographic and economic considerations which informed the decision in Javed can no longer be presumed to retain the same validity in contemporary circumstances. While population control and family planning were regarded as legitimate means of addressing the economic and social consequences of population growth, subsequent demographic developments have substantially altered the underlying assumptions.”

The Court referred to China’s reversal of its one-child policy and subsequent incentives intended to encourage childbirth. It also noted the economic and social pressures associated with ageing populations in other countries.

Law Must Respond To Changed Circumstances

The Court clarified that the validity of the Maharashtra provision was not under challenge. It nevertheless observed that a law considered reasonable when enacted may lose its original rationale when the social and economic circumstances supporting it materially change.

Referring to Malpe Vishwanath Acharya v. State of Maharashtra (1998), Satyawati Sharma v. Union of India (2008) and State of Maharashtra v. Super Max International Private Limited (2009), the Court discussed the doctrine of temporal reasonableness. Under that principle, changing circumstances may undermine the factual or legal foundation of a statutory classification that was once constitutionally sustainable.

The Bench stated: “The question, therefore, is not whether the law must remain static or be permitted to change. Change is inherent in the life of the law. The constitutional inquiry is whether the continued operation of a statutory restriction remains capable of justification in the circumstances which presently obtain. Adapting to change is important for achieving justice, as failure to adapt produces injustice and is, in a sense, an abuse of power.”

The Court recognised that it could not direct the legislature to amend or repeal a law. Constitutional courts could, however, examine whether its continued operation remained sustainable after the circumstances underlying its enactment had changed.

Political Representation And Impact On Women

The Court observed that disqualifying persons with more than two children from contesting local elections treated exclusion from elected office as an instrument of population policy. It found that the causes of higher fertility were complex and could not be attributed to persons merely because they sought participation in local self-government.

The Bench observed: “Disqualifying individuals from contesting elections to Panchayati Raj institutions on the ground that they have more than two children rests upon the assumption that restricting access to elected office is an appropriate instrument of population policy. Such an approach also risks reinforcing the stereotype that persons seeking political representation at the village level bear a particular responsibility for population growth.”

The Court further considered the impact of the norm upon women. It noted that formally equal disqualification of men and women did not account for social conditions in which women may exercise limited control over reproductive decisions.

It stated: “This Court in Javed dismissed the grave implications of such a restriction for the rights of women, stating that both men and women would stand equally disqualified. This does not sit in accordance with the social realities of the country. It has been apparent that women would be disproportionately impacted by such measures.”

The Bench also referred to Sukanya Shantha v. Union of India (2024), which had questioned the reasoning in Rajbala v. State of Haryana (2016) concerning restrictions that disproportionately excluded members of Scheduled Castes from local elections.

Two-Child Norm Impinges On Reproductive Autonomy

The Court observed that reproductive decision-making is an integral facet of life and personal liberty under Article 21. Relying on Suchita Srivastava v. Chandigarh Administration (2009) and X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi (2023), it recognised the choice whether, when and how many children to have as an intimate and personal decision.

The Bench held: “The choice of whether, when, and how many children to have is a decision of the most intimate and personal character, which must ordinarily remain within the autonomous domain of the individual, free from external coercion. This Court has observed in X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi that the right of every woman to make reproductive choices without undue interference from the State is central to human dignity.”

It further observed that electoral disqualification upon the birth of a third child forced a person to choose between reproductive autonomy and continued participation in democratic governance.

The Bench stated that even if the law was legal and valid when enacted, “it has become invalid as the foundation on which it rested has changed.”

Conclusion

The Supreme Court referred Javed v. State of Haryana (2003) to a larger Bench for reconsideration and directed the Registry to place the judgment before the Chief Justice of India for constituting an appropriate Bench.

The Court continued its earlier stay of the High Court judgment, permitting the appellant to remain in office as Sarpanch until the civil appeal is decided. Although the Bench stated that the law had become invalid because its foundation had changed, it did not formally strike down the Maharashtra provision, whose constitutional validity was not under challenge, and instead referred Javed to a larger Bench.

Cause Title: Mangala Bhimrao Ingle v. Additional Commissioner, Amravati Division and Others (Neutral Citation: 2026 INSC 1193)

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