The Supreme Court has said that laws penalising people for having more than two children have lost their relevance, holding that the fear of overpopulation on which such laws were founded has crumbled in the face of India’s falling fertility rate. A bench headed by Justice P.S. Narasimha delivered the observation in a 37-page judgment on 4 November, referring its own 2003 ruling upholding such laws to a larger bench for reconsideration.
“We are of the strong opinion that laws that penalise having more than two children have lost their relevance. The foundation of such laws, that is, the fear of overpopulation, has crumbled due to demographic changes in the past few decades,” the bench observed. Justice Narasimha, sitting with Justice Alok Aradhe, said India’s total fertility rate has fallen from 3.0 in 2003 to 1.9 today, below the replacement level of 2.1 at which one generation exactly replaces itself.
The case before the court concerned Mangala Bhimrao Ingle, whose election as sarpanch of Kakoda gram panchayat in Maharashtra was set aside on the ground that she had more than two children. She was disqualified under Section 14(1)(j-1) of the Maharashtra Village Panchayats Act, 1959, which bars a person with more than two children from holding panchayat office. The bench set aside her disqualification and stayed the proceedings, referring the broader constitutional question to a larger bench.
The 2003 judgment now under reconsideration is Javed v. State of Haryana, in which a three-judge bench upheld the constitutional validity of a Haryana law disqualifying candidates with more than two living children from contesting panchayat elections. The court in 2003 had accepted that population control was a legitimate state objective and that the disqualification did not violate the right to equality. Twenty-three years on, the present bench has said that reasoning needs to be revisited in light of how India’s demography has changed.
The demographic picture has inverted. Where the earlier court worried about a population explosion impeding progress, the present bench warned that ignoring falling fertility could bring an ageing population and a shrinking working-age share. The decades-old view that overpopulation impeded progress is now outdated, the court said.
Information placed before the court showed a patchwork of state practice. Seven states have repealed the two-child norm, while 15 states never had such a policy. States including Assam, Goa, Gujarat, Maharashtra, Odisha and Uttarakhand still retain some form of the restriction. The referral does not, by itself, strike down every two-child restriction across India. It sends the constitutional question to a larger bench, which will decide whether Javed still holds.
The practical effect is limited but significant. Ingle’s case has been resolved in her favour, and the court’s observations will be cited in pending challenges to similar disqualifications. States that retain the norm must decide whether to wait for the larger bench or reconsider their own laws.
The case also touches reproductive autonomy. The bench linked the restrictions to personal choice, suggesting a law that once claimed a public purpose in curbing population growth now restricts individuals on a ground that no longer matches demographic reality. If adopted by the larger bench, that framing could reshape other population-linked conditions too.
For the moment, the law stands in an in-between state: the old precedent has been questioned but not overruled, and the new position has been stated but not yet given final legal force. What the judgment has done, unambiguously, is to put the fertility numbers at the centre of the debate. A rate of 1.9, below replacement, is now the figure against which every two-child penalty in India will be judged.
