BREAKING| Laws Penalising Having More Than 2 Children Have Lost Relevance Due To India's Falling Fertility Rate : Supreme Court
Gursimran Kaur Bakshi
4 Nov 2026 10:59 AM IST
The Supreme Court has called for revisiting the earlier verdicts which upheld the laws imposing 2-child norm.
The Supreme Court has expressed the strong opinion that laws disqualifying persons having more than two children from contesting elections to local bodies have lost their relevance in view of India's declining fertility rate, observing that the rationale underlying such restrictions has crumbled due to demographic changes.
Observing so, the referred to a larger bench the 2003 judgment in Javed v State of Haryana, where a three-judge bench upheld the constitutional validity of the Haryana Panchayati Raj Act, 1994, which disqualified candidates with more than two living children from contesting local elections.
The Court stated that such laws which impose disqualifications on people for having more than 2 children need to be revisited, especially in light with the India's declining fertility rate.
A bench comprising Justice PS Narasimha and Justice Alok Aradhe also set aside the disqualification incurred by former Sarpanch at the Kakoda Gram Panchayat, Mangala Bhimrao, under Section 14(1)(j-1) of the Maharashtra Village Panchayat Act, 1959, on the birth of her third child. The 1959 Act imposed a cap of more than two children from September 13, 2000, when the amendment to the legislation was enforced.
The Court said that India's total fertility rate (TFR) has fallen from 3 in 2003, when the Supreme Court upheld the constitutional validity of the two-child norm in Javed v. State of Haryana, to 1.9 currently.
The Court observed that the declining fertility rate, which has fallen below the replacement level of 2.1, would soon lead to a demographic transition characterised by an ageing population and a declining share of the working-age population.
Justice Narasimha pronounced the verdict as follows :
"We are of the strong opinion that the laws which penalise having more than two children have lost their relevance. The foundation of such laws, that is the fear of over population, has crumbled tdue o demographic changes in the past few decades. We have explained how, from 2003 after Javed v State of Haryana upheld such laws, India's total fertility rate has fallen from 3 to 1.9. A total rate of 2.1, known as the replacement rate, would allow one generation to completely replace itself. So even though India's population is not yet declining, the total fertility rate falling below the replacement rate would soon result in a demographic transition to an older population, with a declining share of the working population.
Therefore, laws limiting population growth have lost its relevance. If we fail to take note of such demographic changes, India will face serious consequences...This has compelled us to stay the proceedings, we have referred the matter to a larger bench."
It also expressed concern over the reasoning employed in Javed v. State of Haryana to uphold the two-child norm, observing that the law's continuation would exclude an entire class of citizens from political representation on grounds having little relevance to their capacity to hold public office
"Equally concerning is the reasoning employed in Javed to justify a manifestly arbitrary act. Allowing such laws to stand excludes an entire class of citizens from political representation on grounds bearing little relevance to their capacity to hold public office. Further, it compels an unconscionable choice between bearing children and democratic participation, infringing upon the right to reproductive autonomy under Article 21."
Background
While reserving the judgment on August 4, the Court had expressed its inclination to consider whether Javed v State of Haryana(2003) requires reconsideration by the present bench or requires a reference to a larger bench. It has asked the Advocate Rukmini Bobde(amicus curiae) and the petitioner's counsel, Advocate Pratik Bombarde, to give a list of all State laws barring having more than two children.
As per the compilation filed by Bobde, seven States have repealed the two-child norm, whereas fifteen States don't have such a policy. In summary, there is no uniform approach adopted across States. States that continue to have the two-child norm include Assam, Goa, Gujarat, Maharashtra, Odisha, and Uttarakhand.
To give a factual background, a complaint against Mangala was filed before the Additional Collector, based on which the proceedings were initiated and an order was passed of disqualifcation. She appealed before the Additional Commissioner, which came to be rejected, against which he approached the Bombay High Court.
By an order dated August 5, 2025, the High Court found that the petitioner tried to distance herself from the birth certificate of her third child, but the document can't be discarded as it mentions the names of both parents. Considering that there was no material to show otherwise, the High Court upheld the disqualification. Against this order, she filed a special leave petition before the Supreme Court.
On November 4, 2025, the Court had stayed the operation of the impugned judgment of the High Court.
