India with an enormous ever-increasing population of more than a billion in 2020 has been projected to surpass China within the next decade as per a recent United Nations report published last year. In such circumstances, one perhaps cannot dispute the country’s reasonable concerns for its massive population.
In a recent development a certain Member of the Parliament belonging to the Shiv Sena party has proposed a ‘Constitution (Amendment) Bill’, 2020 (hereinafter, ‘Bill’) in the Rajya Sabha (Upper House of the Indian Parliament). The Bill in effect moots an express introduction of incentives, by way of a Constitutional amendment, to promote a ‘Two-Child’ policy thereby limiting the number of children that can be conceived by a couple to two. Additionally, the Bill also recommends the withdrawal of incentives and concessions from all such families who have more than two children.
The consequences of this Bill seem to directly come in conflict with the rights guaranteed to the Indian Muslim community under the Muslim Personal Laws (Shariat) Application Act, 1937. Therefore, clearly putting Indian Muslims in a disadvantageous position. Moreover, the text of the Bill seems to present a myopic understanding of societal realities thereby displaying an inherent arbitrariness in its target vision.
This article endeavors to critically analyze the legal implications of the Bill. In seriatim, we aim to demonstrate that this Bill does not satisfy the dual tests of ‘intelligible differentia’ and ‘manifest arbitrariness’ under Article 14 of the Indian Constitution.
Muslim Personal Law and The Test of Intelligible Differentia:
The test of intelligible differentia has been propounded by the India Supreme Court (‘SC’) over the years in a catena of landmark decisions. The test requires that a classification made must be reasonable and have rational nexus with the legislative objective sought to be achieved by such classification. The Bill divides ‘Families’ in two categories: those who have two or less children and those who have more than two children. The second category of families are clearly in a weaker position given that not only would they be ineligible to avail the new government incentives and concessions, but they would additionally have to forego some of the existing social benefits that they derive from the State.
Now, who might such a group possibly include? Muslims!
The Muslim community in India is governed by the Muslim Personal Laws. As many a reader might know, a Muslim man, as per the holy Quran is allowed to marry up till four wives at the same time. This religious custom has also been acknowledged by the SC as early as in 1958 in the decision of Razia Begum vs. Sahebzadi Anwar Begum and reiterated subsequently in the 1995 judgment of Sarla Mudgal vs. Union of India. Interestingly, such custom is coupled with a mandatory religious duty to extend ‘equal attention’ to all the four wives. Such a duty is expressly mentioned in the Quran and has also been formally codified under Section 2 (viii) (f) of the Dissolution of Muslim Marriage Act, 1939.
It might be pertinent to note here that a Muslim marriage (Nikah) is a contract with an objective of ‘procreation’ of children. (See Mulla’s Principles of Mohammedan Law, 21st edition as under Section 250 at page 338). Therefore, one can reasonably argue that a Muslim male having four wives might want to have a child from each one of his four wives in order to abide by his religious duty and legal obligation of treating all four of them equally. In such a case, the Bill, if passed, would discriminate such a Muslim male to the effect that he cannot have more than two children without voluntarily foregoing the existing social welfare concessions, thereby making it impossible for him to give equal treatment to all four of his wives.
Thus, the Bill directly conflicts with the existing rights and duties of a Muslim married couple thereby discriminatorily and unreasonably classifying them in the second category of families having more than two children who would undoubtedly be put in a weaker position.
The socio-legal framework built by the Bill and the religious and legal obligations of the Muslims under the Muslim Personal Law, is a capricious yet seemingly excogitated attempt to target the Muslim households. The implementation of the Bill and effective differentiation of the ‘small families’ on the basis of the number of children is rife with impasses and obscurity leading the Bill to be in violation of Article 14 of the Indian constitution. One such example of obscurity in the Bill is the meaning of ‘small family’ under the Bill, which makes one wonder if a plausible argument can be made to the effect that in a case where a Muslim man has four wives – each separate couple with the husband being common in all four of them is an ‘independent small family’ in itself. Therefore, each such couple may conceive two children each in order to avail the concessions and incentives espoused by this Bill.
Myopic vision of the Bill and the wrath of Manifest Arbitrariness
The test for ‘Manifest Arbitrariness’ has been discussed in detail by the SC in the case of Shayara Bano vs. Union of India . This judicial test identifies an act done by the Parliament ‘capriciously, irrationally and/or without adequate determining principle’. Similarly, an act which is disproportionate and excessive would be held manifestly arbitrary. A testing of the Bill on the touchstone of the test of ‘Manifest Arbitrariness’, as we argue, will reveal the arbitrariness that vitiates the Bill. We will, in the following paragraphs, allude to various instances of internal hindrances in the implementation of the Bill, that are a testament to its arbitrariness.
First, as a general biological fact, a pregnant woman does not have control over the number of children that she might give birth to at the time of her delivery. Thus, a woman may give birth to twins or triplets simultaneously. This is what medical science terms ‘multiple-pregnancy’. How does one apply the Bill in a situation where a woman already having one child gives birth to twins (or triplets) during her second delivery? Or, what if a woman gives birth to three children (triplets) on her very first delivery? Surely, such a family has no control over this, however, the Bill while exhibiting a blatant ignorance of such possible situations would still withdraw incentives from such families.
Second, a similar confusion seems to arise in the case of divorced individuals. What would happen if a divorced individual having two children decides to remarry? Would the Bill discriminate by withdrawing concessions to such individuals who wish to conceive children from the new wedlock, or would the individual have a ‘renewed privilege’ to have two children with their spouse from second marriage while being entitled to avail the new incentives and other similar benefits.
Likewise, a confusion arises with the understanding of the term ‘children’. The Bill does not define the term ‘children’, neither is it defined under any other provision of the Indian Constitution. Does it mean a ‘minor’? or, a ‘dependent’? – A reasonable inquiry which arises is that does the married couple have a right to conceive again when the ‘two children’ of their family grow up to become financially independent adults who subsequently branch out to live separately? Will the couple then be a ‘small family’ with a renewed privilege of conceiving two more ‘children’ without having withdrawn their state-given concessions? The Bill does not answer such queries.
We submit that this Bill adopts a very myopic vision of existing social realities and fails to take into consideration a number of situations thus showcasing an inherent impracticability. This makes it manifestly arbitrary and susceptible to be struck down as unconstitutional.
Lastly, one fails to understand as to how the Bill demands a withdrawal of concessions and benefits from those families who already have more than two children. Such ‘Retrospective Application’ which results in withdrawal of various forms of social benefits cannot be held constitutional in light of various decisions of the SC which have held to the effect that existing rights and privileges as granted by the State cannot be withdrawn arbitrarily and through laws which are in contravention of Article 14 of the Constitution. (See, J.S. Yadav vs. State of U.P.)
In conclusion, it must be said in all fairness that while the aspirational objective of this Bill may be rationalised from a pragmatic viewpoint, the societal vision that this Bill seeks to implement is inherently discriminatory and adversely affects a certain minority religious community whose religious rights are very much a part of India’s societal reality. On an ending note, we hope that if this Bill is passed, the Supreme Court of India while testing the Bill on the touchstone of Article 14 will not be tied down by a hollow display of societal pragmatism driven by ulterior political motives.
Anirban Chanda and Sahil Bansal are final year law students at Jindal Global Law School, Sonipat. Views expressed are personal