Falling fertility has made laws penalising violation of two-child norm outdated: SC

Why in news?

The Supreme Court held laws penalising people with more than two children outdated, citing India’s fall in fertility below replacement.

UPSC Relevance 

Prelims: Total Fertility Rate, replacement level fertility, Javed v. State of Haryana, National Population Policy 2000, Entry 20A of the Concurrent List, Panchayati Raj and local governance

Mains GS1: Population and associated issues; role of women

What did the Supreme Court say?

• The case: Mangala Bhimrao Ingle’s election as sarpanch of Kakoda gram panchayat in Maharashtra was set aside because she had more than two children.
• A Bench headed by Justice P.S. Narasimha (with Justice Alok Aradhe) said laws that punish having more than two children have lost their relevance, because the fear of overpopulation behind them no longer holds.
• India’s TFR has fallen from 3.02 to 1.9, below the replacement rate of 2.1. The share of people aged 60+ rose from about 8.3% (2014) to 9.7% (2024), and may reach nearly 15% by 2036.
  • Total Fertility Rate : Average number of children a woman would have in her lifetime at current birth rates. Replacement level (2.1) is the TFR at which a population replaces itself, slightly above 2 because of child deaths and a sex ratio at birth tilted towards boys.
• The court said the focus should now shift to ‘healthy growth of population’ rather than fear of high numbers. It added that failure to adapt laws to demographic change causes injustice and can amount to an abuse of power.
• It felt the 2003 judgment in Javed v. State of Haryana, which upheld such laws and drew on China’s population measures of that time, needs to be revisited by a larger Bench.

Constitutional and Policy Framework

• Entry 20A, Concurrent List: ‘Population control and family planning’, added by the 42nd Amendment (1976). Both Centre and States can legislate.
• Panchayats: Under Article 243F, State legislatures can lay down disqualifications for panchayat members. This is the legal basis for the two-child norm in local bodies.
• Reproductive rights: In Suchita Srivastava (2009) and K.S. Puttaswamy (2017), the SC treated reproductive choice as part of personal liberty and privacy under Article 21.
• National Population Policy 2000: Immediate aim to meet unmet need for contraception; medium-term aim of TFR 2.1 by 2010; long-term aim of population stabilisation by 2045. It is voluntary and does not support coercion.
• Mission Parivar Vikas (2016): Better access to contraceptives in high-fertility districts.

What is the Two-Child Norm?

The two-child norm is a set of State laws and rules that deny certain benefits or posts to people with more than two children. There is no central law on it. Common forms include:

• Bar on contesting local body elections: Panchayat and municipal laws in several States disqualify such persons, usually counting children born after a cut-off date. Ex – Rajasthan, Odisha, Gujarat, Maharashtra.
• Bar on government jobs and promotions: For example, Rajasthan and Assam rules. In Ram Lal v. State of Rajasthan (2024), the SC upheld Rajasthan’s rule barring such candidates from police recruitment.
• Denial of welfare benefits: Some States link schemes, subsidies or housing to family size.

Why is Fertility Rate Declining in India? 

1. Social causes

• Female education: This is the single strongest factor. Educated women marry later, use contraception more and prefer smaller families. As per NFHS-5, women with no schooling have a TFR of about 2.8, against about 1.8 for women with 12 or more years of schooling.
• Later marriage: The share of women aged 20-24 married before 18 fell from 47.4% (NFHS-3) to 23.3% (NFHS-5). Later marriage shortens the reproductive span.
• Changing family structure: The shift to nuclear families means less family support for raising children.
• Changing attitudes: Exposure to media and urban lifestyles has spread the idea of a small family. Parents now focus on the ‘quality’ of children (education, health) rather than numbers.

2. Economic causes

• Rising cost of raising children: Expenses on private schooling, coaching, health and housing make large families costly.
• Income and wealth: TFR falls as income rises. NFHS-5 shows a TFR of about 2.6 in the poorest households and about 1.6 in the richest.
• Urbanisation: Urban TFR (about 1.6) is well below rural TFR (about 2.1), due to small homes, high living costs and better access to services.
• Women at work: Women’s workforce participation has risen in recent PLFS rounds, which raises the ‘opportunity cost’ of having more children.
• Less need for children as old-age support: Pensions, savings and insurance reduce the old idea of children as security.

3. Health and demographic causes

• Fall in child deaths: The infant mortality rate fell from about 80 per 1,000 live births in 1990 to about 27 (SRS 2021). When children survive, parents no longer have ‘extra’ children as insurance.
• Wider use of contraception: Use of any modern or traditional method rose from 53.5% (NFHS-4) to 66.7% (NFHS-5). Female sterilisation is still the most common method.
• Rising infertility and delayed childbearing: Late marriages, stress, lifestyle disorders and conditions like PCOS add to the decline, especially in cities.

Impact of Falling Fertility on India 

1. Economic impact

• Demographic dividend: A large working-age population can boost growth, savings and investment. The Economic Survey 2018-19 estimated that the dividend will peak around 2041. The benefit is not automatic; it needs jobs and skills.
• Risk of ‘growing old before growing rich’: Unlike Japan or South Korea, India is ageing at a much lower per capita income, so it has less money to support the elderly.
• Labour shortages: Southern States may face shortages of workers in farming, construction and services, and will depend more on migrants from northern States.
• Fiscal pressure: Higher spending on pensions, health care and elderly welfare, while the tax-paying working population grows more slowly.
• India as a global workforce supplier: With ageing in Europe, Japan and East Asia, India’s young workers can fill global skill gaps through mobility agreements.

2. Social impact

• Ageing population: The elderly share may reach about 20% by 2050. More elderly people will live alone as children migrate for work.
• Feminisation of ageing: Women live longer but often have no pension, assets or income, which makes elderly widows especially vulnerable.
• Care burden: With fewer children per family, the care of ageing parents falls on fewer shoulders, mostly women.
• Sex ratio concerns: Where son preference persists, having fewer children can increase sex-selective abortion, as couples try to ensure at least one son.
• Education: School enrolment is already falling in low-fertility States like Kerala and Tamil Nadu, leading to merger of schools and a need to rethink teacher deployment.

3. Political and federal impact

• Delimitation: If Lok Sabha seats are redrawn by population after the freeze ends, States that controlled population (mostly southern) may lose seats relative to high-fertility northern States.
• Finance Commission devolution: Using population as a criterion can penalise States that did well. The 15th Finance Commission gave 12.5% weight to ‘demographic performance’ to reward lower fertility.

4. Health impact

• Rising burden of non-communicable diseases: Diabetes, heart disease, cancer and dementia will rise with ageing. The LASI survey shows a large share of the elderly live with at least one chronic disease.
• Need for geriatric care: India has very few geriatric specialists and long-term care facilities.
• Positive side: Fewer and better-spaced births improve maternal and child health.

5. Gender impact

• Opportunity for women: Smaller families free women’s time for education, paid work and leadership roles.
• But new pressures: Without childcare and elder-care support, women may face a ‘double burden’ of work and care.

6. Regional impact

• Two Indias: The south and west are ageing, while Bihar, Uttar Pradesh and Jharkhand are still young. This makes a single national population policy unsuitable.
• More internal migration: Young workers from the north will move to the south and west, which may raise questions of language, identity and local politics.

Way Forward

• Repeal or review penal norms: States should withdraw disqualifications linked to family size, and the larger Bench can settle the constitutional question.
• Region-specific policy: Focus on girls’ education, women’s employment and contraceptive choice in high-TFR States, without coercion.
• Prepare for ageing: Stronger pension coverage, geriatric care, long-term care insurance, and schemes like Ayushman Vay Vandana for senior citizens.
• Use the dividend window: Invest in skills, health and female labour force participation before the window closes.
• Support families: Childcare, maternity benefits and work-life balance matter more as fertility falls, as seen in East Asian countries.
• Prepare southern States for labour needs: Ease inter-State migration with portable welfare (One Nation One Ration Card), housing and language support for migrant workers.
• Settle federal concerns early: Build consensus on delimitation and devolution so that States are not penalised for controlling population.
• Update the population policy: NPP 2000 needs a fresh look to shift focus from control to population quality, ageing and regional balance.

Mains Practice Question 

“India’s fertility rate has fallen below replacement level faster than expected.” Discuss the factors behind this decline and examine its economic, social and political implications for India. (15 marks, 250 words)

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