Falling fertility rate makes two-child penalties outdated in India, says Supreme Court

The Supreme Court on Wednesday (November 4, 2026) said the rolling effect of a decelerating population growth is very hard to reverse, stressing the need to guard against a potentially irreversible decline in fertility and respond to the changing demographic realities.

Observing that the evolution of law to keep up with changing realities is important, the top court said the continued relevance and justification of a legislation must be assessed in light of contemporary social realities rather than solely by reference to the circumstances prevailing at the time of its enactment.

"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," a bench of Justices P.S. Narasimha and Alok Aradhe said.

The observations came from the bench which said laws that penalise having more than two children have lost their relevance as the fear of overpopulation has crumbled due to demographic changes in the past few decades.

The bench delivered its verdict on a plea by Mangala Bhimrao Ingle whose election as 'sarpanch' of Kakoda gram panchayat was set aside on the ground that she was disqualified from contesting the polls as she had more than two children and it was in violation of Section 14(1)(j-1) of the Maharashtra Village Panchayats Act, 1959.

The bench said legal reform through legislative correction improves the legal system and it would require assessment of the working of law, its accessibility, utility and abuse as well.

It said the executive branch has a constitutional duty to ensure that the purpose and object of a statute is accomplished while implementing it.

"As stated above, reviewing and assessing the implementation of a statute is an integral part of the Rule of Law. The purpose of such review is to ensure that a law is working out in practice as it was intended. If not, to understand the reason and address it quickly," it said.

It said a law, enacted to address a particular social problem, may cease to serve its intended purpose when the circumstances underlying it have materially changed.

"While this court cannot direct the legislature to repeal or amend a law, it can certainly examine whether the continued operation of that law remains constitutionally sustainable in light of changed circumstances," the bench said.

It noted that India's total fertility rate (TFR) has fallen from 3.0 to 1.9 since 2003.

It referred to a July 2003 verdict in the case of Javed versus State of Haryana in which the apex court, after examining the vires of the Haryana Panchayati Raj Act, 1994, had upheld the disqualification of persons with more than two living children from running or holding panchayat positions.

"The need of the hour is to have policies in tune with the present realities. We need to guard against potentially irreversible decline in fertility and respond to the changing demographic realities," the bench said.

It said that very soon, India may face an ageing population in which a disproportionately large share of people are beyond working age.

The bench said learnings from across the world warn us of the detrimental effects of this increase in the ageing population.

"The rolling effect of a decelerating population growth is very hard to reverse," it said while citing the example of China.

It said that beyond China, there have been other nations that are now bearing the weight of a declining and ageing population.

"Japan, for instance, after years of severe population decline, continues to face high public debt and high public expenditure on health and long-term care for its ageing population, all of which add to its fiscal and developmental challenges," the bench said.

It said the doctrine of temporal reasonableness recognises that the constitutional validity of a legislation cannot always be determined exclusively by reference to the circumstances prevailing at the time of its enactment.

"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," it said.

It said the earlier perception that population has a negative impact on development does not hold water anymore.

The bench said the very rationale of linking population control with the right to participate in elections deserves reconsideration.

"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 said.

The bench said the preference for male children provides an important illustration.

"Demographic studies have demonstrated that son preference influences reproductive decisions, including the desire to have additional children until the birth of a son," it noted.

It said reproductive autonomy is not entirely immune from regulation, but any such restriction must be continuously tested for its reasonableness.

"The imposition of electoral disqualification upon the birth of a third child places a person in the position of choosing between the exercise of their reproductive autonomy and continued participation in democratic governance," it said.

The top court referred the matter to a larger bench for reconsideration of the ratio laid down in the 2003 verdict.

The bench said its earlier interim order permitting the appellant to continue in her elected position as 'sarpanch' would continue until disposal of the appeal.