"How Can A Constitutional Court Say That If You Have More Than Two Children, You Can't Contest Elections?" SC

The Supreme Court on Monday dismissed a PIL seeking a direction to the Election Commission of India to require all political parties to not field candidates who have more than two children and to also declare the two-child norm a mandatory criterion for government jobs, subsidies, besides other measures to control the population explosion.

"What is your prayer. Let us understand your prayer", Chief Justice Ranjan Gogoi humoured petitioner-advocate and BJP Leader Ashwini Kumar Upadhyay.

When Upadhyay advanced that the two-child norm may be inserted as a restriction in the Election Symbols Order of 1968 which governs the recognition of national and regional political parties, the Chief Justice asked, "So these prospective candidates hoping to contest elections should be debarred?"

"We don't think we can do much...How can a constitutional court say that if you have more than two children, you can't contest assembly elections? Apart from the issues of propriety, legality and jurisdiction, is it a proportionate judicial order?", observed Chief Justice Gogoi.

"Two judges in Madhya Pradesh were terminated because they have three children...this is a very important matter", insisted Upadhyay.

"Yes, a very important matter", the Chief Justice quipped.

"Leaving out the first prayer", the petitioner-in-person drew the bench's attention to the second one concerning different marriageable ages of 18 and 21 for females and males respectively. He spoke of gender justice and gender equality in view of the 2018 Sabarimala Temple verdict.

"You have moved on from the Election Commission to the Prohibition of Child Marriages Act? How do you combine both the prayers?", remarked Chief Justice Gogoi.

The Chief Justice commented, "That golden caption (in the PIL) is not attractive at all".

At the end of the board, Upadhyay mentioned before the bench, also comprising Justice Sanjeev Khanna, that his representation in behalf of the two-child policy is pending before the Home Ministry and the Chief Election Commissioner and should his PIL be dismissed, the authorities would be reluctant to entertain his concern. Accordingly, the court allowed the matter to be dismissed as withdrawn.