A Criticism : The Kerala Children's Code Bill

The Kerala government is seeking to enact the Kerala Children's Code Bill, 2011. This bill is aimed at curbing population growth by encouraging couples to stick to the two child norm. The bill imposes a fine of Rs 10,000 or three months simple' imprisonment on the expectant father of a third child. The parents or those who abet it will also be deemed to be legally disqualified if they have a third child and the parents will be deprived of benefits from the state.

This particular provision of “legal disqualification” is not legally sustainable as it is unreasonable. Just because there is a third child the parents cannot become entities who are non-existent in the eyes of the state. The disqualification will violate the fundamental rights of the parties.

It is pertinent to note that in the Javed And Ors. vs State Of Haryana And Ors [1] case the Supreme Court was looking into the constitutionality of an enactment which disqualified a person to stand for the panchayats elections if he had a third child. The right to contest election is neither a   fundamental right nor a common law right.  It is a statutory right. This right cannot be compared with the inherent and natural right of reproduction contained in Art.21.

The grants given by the state includes maternity benefits. In the case of N. Mohammed Mohideen And Sahana vs The Deputy Commissioner Of Labour it was held that there is no provision under the M.B. Act fixing any ceiling on the number of deliveries made by a female worker. So long as Article 42 of the Constitution read with the provisions of the M.B. Act is available, every female worker covered by the Act is entitled to claim maternity benefits without any ceiling on the number of deliveries made by them. That will be the correct interpretation which will be in tune with the judgment of the Supreme Court rendered in B. Shah's case.

Family planning is a laudable objective. Yet the manner of implementing it must be reasonable and constitutional. Many judgments of the Supreme Court such as  Javed case and J.Sharmila vs The Secretary To Government have compared pointed to China in its bid to encourage population control policies. A policy or law of one country should not be copied or grafted onto the existing legal framework as such. China is a totalitarian state and not a democracy. No law in any state of India can enact a law which forces a couple to limit the number of children. India is a democracy and the people have the right to choose. This right should not be artificial in the sense that religious or political groups should influence the decision of a couple to determine the number of children they must have. Hence no penal measures can be taken for having a third child. Kerala will become a totalitarian state if criminal actions are taken against the fundamental right belonging to a citizen to reproduce.

A factor must be considered before framing a law on family planning by a state is the socio-economic and demographic nature and conditions of a state. Kerala has taken up family planning for the past twenty years. The families of Kerala have been limiting the number of children to two. The reasons are many. Some of them are indirect and the others indirect. One reason is literacy and the other is the increased exposure from other cultures. It is said that you will always encounter a Malayali in any part of the world. The advantages of a small family was first recognized by Malayalis-which was a higher standard of living, increased life expectancy and better gender empowerment.

The population of Kerala has been falling. One indicator is the decrease number of children in the schools. Many schools are actually being forced to close down. The results of the first official enumeration undertaken this academic year indicate that there are 42,30,311 students on the rolls in government, aided and recognised unaided schools following the State syllabus – a decline of 1.21 lakh compared with the last year. Of them, 94,000 study in the languishing aided schools. In 2010-11, too, there was a decrease of 1.15 lakh students, a trend seen in previous years too.[2]  

It is true that Kerala is one of the most densely populated states of the country. In other states three births are equal to one death. In Kerala the birth rate is 14.7 in 2007 and  its death rate  declined in the same period from 9 to 6.8. The presence of the largest ageing population in the country is leading to an age pyramid that has a shrinking base (of children) and a swelling top (of senior citizens).

The quality of life in the state cannot be compared to the other states. Here the rich as well as the poor practice family planning. The law should step into the marital bedroom only if the husband or the religious entities is forcing the wife to bear more children.

A shortcoming of the Bill in this area is that the children of one marriage are a different entity. So the more number of marriages a person makes the more the number of children. If a woman is compelled to bear children a mechanism must be created such a commission or inspectors like those under the Maternity Benefit Act. 

Today the state is the grip of a sharp decline of youth population. Family planning should not lead to a crumbling economy and non-availability of labour. The recommendations were made without studying properly the socio-economic condition of Kerala and the legal sustainability of the recommendations. The decision to have children must be left to a couple. The couples of Kerala are educated enough to make the correct decision in the interest of the nation. The interference of the law will already step up the number of divorces.  Kerala already has the highest number of divorces.

Law of one country should not be copied or grafted onto the existing legal framework as such. China is a totalitarian state and not a democracy. No law in any state of India can enact a law which forces a couple to limit the number of children. India is a democracy and the people have the right to choose. This right should not be artificial in the sense that religious or political groups should influence the decision of a couple to determine the number of children they must have. Hence no penal measures can be taken for having a third child. Kerala will become a totalitarian state if criminal actions are taken against the fundamental right belonging to a citizen to reproduce.

A factor must be considered before framing a law on family planning by a state is the socio-economic and demographic nature and conditions of a state. Kerala has taken up family planning for the past twenty years. The families of Kerala have been limiting the number of children to two. The reasons are many. Some of them are indirect and the others indirect. One reason is literacy and the other is the increased exposure from other cultures. It is said that you will always encounter a Malayali in any part of the world. The advantages of a small family was first recognized by Malayalis-which was a higher standard of living, increased life expectancy and better gender empowerment.

The population of Kerala has been falling. One indicator is the decrease number of children in the schools. Many schools are actually being forced to close down. The results of the first official enumeration undertaken this academic year indicate that there are 42,30,311 students on the rolls in government, aided and recognised unaided schools following the State syllabus – a decline of 1.21 lakh compared with the last year. Of them, 94,000 study in the languishing aided schools. In 2010-11, too, there was a decrease of 1.15 lakh students, a trend seen in previous years too.[2]  

It is true that Kerala is one of the most densely populated states of the country. In other states three births are equal to one death. In Kerala the birth rate is 14.7 in 2007 and  its death rate  declined in the same period from 9 to 6.8. The presence of the largest ageing population in the country is leading to an age pyramid that has a shrinking base (of children) and a swelling top (of senior citizens).

The quality of life in the state cannot be compared to the other states. Here the rich as well as the poor practice family planning. The law should step into the marital bedroom only if the husband or the religious entities is forcing the wife to bear more children.

A shortcoming of the Bill in this area is that the children of one marriage are a different entity. So the more number of marriages a person makes the more the number of children. If a woman is compelled to bear children a mechanism must be created such a commission or inspectors like those under the Maternity Benefit Act. 

Today the state is the grip of a sharp decline of youth population. Family planning should not lead to a crumbling economy and non-availability of labour. The recommendations were made without studying properly the socio-economic condition of Kerala and the legal sustainability of the recommendations. The decision to have children must be left to a couple. The couples of Kerala are educated enough to make the correct decision in the interest of the nation. The interference of the law will already step up the number of divorces.  Kerala already has the highest number of divorces.