WWW.LIVELAW.

IN

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO …. OF 2019

(PIL UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

ASHWINI KUMAR UPADHYAY …PETITIONER

VERSES

UNION OF INDIA & ANOTHER ...RESPONDENTS

PAPER BOOK

[FOR INDEX KINDLY SEE INSIDE]

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Sr. No. Date of Record of Proceedings Page

10

11

12

13

14
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N documents which it belongs k

O
Part-I Part-II
(Contents (Contents
of Paper of file
Book) alone)

(i) (ii) (iii) (iv) (v)

1 Listing Performa A-A1 A-A1

2 Cover Page- Paper Book A-2

3 Record of Proceedings A-3

4 Defect List A-4

5 Note Sheet NS1

6 Synopsis & List of Dates B-H

7 Writ Petition & Affidavit 1-29

Appendix: Para 6A, 6B and

6C of the Election Symbol
Order, 1968, Section 2(a)
8 of the Prohibition of Child 30-31
Marriage Act, 2006,
NCRWC recommendation,
Article 21 and 21A.
Annexure P-1: SC Order in
9 32
WP(C)157/2018, 9.5.2018
Annexure P2: Petitioner
10 Representation to Home 33-38
Minister dated 21.5.2018
Annexure P3: Petitioner
11 Representation to the CEC 39-43
dated 21.5.2018

12 F/M 44

13 V/A 45
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The case pertains to (Please tick / check the correct box):

Central Act: The Constitution of India

Section: Articles 21,

Central Rule: N/A

Rule No: N/A

State Act: N/A

Section: N/A

State Rule: N/A

Rule No: N/A

Impugned Interim Order: N/A

Impugned Final Order / Decree: N/A

High Court: N/A

Name of Judges: N/A

Tribunal / Authority Name : N/A

1. Nature of Matter: Civil

2. (a) Petitioner / Appellant : Ashwini Kumar Upadhyay

(b) Email ID:

(c) Phone No:

3. (a) Respondent: Union of India and another

(b) Email ID: N/A

(c) Phone No: N/A

4. (a) Main Category: 08 PIL Matters

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7. Criminal Matters: N/A

(a) Whether accused / convicted has surrendered: N/A

(b) FIR / Complaint No: N/A

(c) Police Station: N/A

(d) Sentence Awarded: N/A

(e) Period of Sentence Undergone including period of

detention/custody under gone: N/A

8. Land Acquisition Matters:

(a) Date of Section 4 Notification: N/A

(b) Date of Section 6 Notification: N/A

(c) Date of Section 17 Notification

9. Tax Matters: State the Tax Effect: N/A

10. Special Category: N/A

11. Vehicle No in case of motor accident claim matters): N/A

12. Decided Cases with Citation: N/A

Date: 8.2.2018

(R. D. UPADHYAY)

ADVOCATE FOR PETITIONER

Advocate-on-Record

SYNOPSIS

Petitioner is filing this petition to insert an additional condition-

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Paragraph 6C “Conditions for continued recognition as a National or

State Party” of the Election Symbols Order, 1968, and Model Code of

Conduct. This would not breach the principle of separation of powers

because there is a legislative vacuum insofar as the Parliament has not

enacted any legislation in the field covered by the Symbols Order, which

has been issued by the ECI in exercise of its plenary powers under the

Article 324.

The powers of the ECI under Article 324 of the Constitution

operates in areas left unoccupied by legislation and is plenary in

character. [Kanhiya Lal Omar v. R.K. Trivedi, (1985) 4 SCC 628, Para 16]

The power of “superintendence, direction and control” of the conduct of

elections, vested in the Election Commission, is executive in character.

[A.C. Jose v. Sivan Pillai, (1984) 2 SCC 656, p. 22] The Symbols Order is

traceable to the power of the Election Commission under Article 324.

[Kanhiya Lal Omar, para 16] The power to amend, vary or rescind an

order which is administrative in character under Section 21 of the

General Clauses Act, specifically referred to in paragraph 2(2) of the

Symbols Order, would permit the Election Commission to withdraw

recognition of a political party. [Janata Dal (Samajwadi) v. Election

Commission, (1996) 1 SCC 235, para 6] Accordingly, it is clear that the

proposed amendment in the Symbols Order would operate in a field

where there is a legislative vacuum.

The proposal is vital because the functions performed by legislators are

vital to democracy and there is no reason why they should be held to

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considered at all if they have more than two children. However, it is

worth noting that the proposed amendment is not an eligibility

condition for legislators but rather merely imposes a condition on

political parties.

Proposal would only be to impose an additional condition on a

political party for obtaining and retaining the status of a “recognized

national party” or “state party”, which would entitle it to a reserved

symbol under the Symbols Order. The statutory right to register a

political party under Section 29A, RPA and contest election as an

independent candidate, would not be affected in any way. Moreover,

under Section 13A, Income Tax Act, 1961, political parties are exempted

from paying income tax on contributions received by them. So, imposing

a condition during elections preventing them from fielding candidates

having more than two children in election, is a reasonable restriction,

keeping in mind the concessions and privileges enjoyed by them.

At present, 122 crore Indians have AADHAAR Card, around 20%

viz. 25 crore citizens (particularly children) are without AADHAAR, and

around 04 crore Bangladeshi and 01 crore Rohangiya intruders, illegally

reside in India. From this, it is evident that the total population of our

country is around 152 crore instead of 130 crore and we have marched

much ahead of China. If we calculate natural resources, then we have

only 2% of agriculture land of the total land and only 4 % drinking

water. However, our population is 20 % of the world. If we compare

with China then our agricultural area is only one-third of China and the
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children are born every minute and in India 33 children are born every

minute.

Population explosion is the root cause of most of our problems

including shortage of water, forests and land, Roti, Kapra and Makan

(Bread, clothes and house), poverty and unemployment, hunger and

malnutrition and air, water, soil and sound pollution. It is also the root

cause of the crowds in trains, police stations, tehsils and jails, High

Courts and Apex Court. Population explosion is the rootcause of theft,

dacoity and snatching, domestic violence, physical and mental

harassment of women and separatism, fanaticism, stone pelting etc.

From a survey, conducted on thieves, dacoits, snatchers, rapists and

mercenaries, it is apparent that about 90% criminals and offenders are

such that their parents have not followed policy of “Ham Do – Hamare

Do”. Therefore, it is evident from the above stated facts that population

explosion is the basic cause of more than 50% problems of India.

We celebrate the International Day for the Elimination of Violence

against Women on 25 November every year, but violence on women is

increasing and the root cause is population explosion. After birth of a

girl, the woman is subjected to physical and mental harassment, though,

as per medical science, it depends on the Husband. Some people

abandon their first wife if 3-4 daughters are born, and perform second

marriage to fulfil their desire to have a son. For daughters, to have good

health, social economic and political justice, liberty of thoughts,

expression, belief, faith, and worship, equality of status and opportunity,

 WWW.LIVELAW.IN

Population explosion is also the root cause of the pitiable

condition of our International Ranking. We are ranked 103rd in the

Global Hunger Index, 43rd in Suicide Rate, 168th in Literacy Rate, 133rd

in World Happiness Index, 125th in Gender Discrimination, 124th in

Minimum Pay, 42nd in Employment Rate, 66th in Rule of Law Index,

43rd in Quality of Life Index, 51st in Financial Development Index, 177th

in Environment Performance Index, 139th in GDP Per Capita. However,

we are the first in the matter of draining underground water, though we

possess only 4% of ground water and merely 2% of agricultural land of

the world.

Population explosion is also one of the root cause of corruption.

We are ranked 66th in 1998, 72nd in 1999, 69th in 2000, 71st in 2001 and

2002, 83rd in 2003, 90th in 2004, 88th in 2005, 70th in 2006, 72nd in 2007,

85th in 2008, 84th in 2009, 87th in 2010, 95th in 2011, 94th in 2012, 87th in

2013, 85th in 2014, 76th in 2015, 79th in 2016, 81st in 2017 and 79th in

2018.

We celebrate National Pollution Control Day on 2nd December and

we have made immense efforts to control pollution. But, air, water, soil

and sound pollution is constantly increasing due to population

explosion. Therefore, success of Clean India and Healthy India Campaign

is doubtful in the absence of a strict population control law.

Save Girl Campaign may be successful, but torture after marriage,

cannot be stopped in absence of a strict and effective population control

law. After birth of 3-4 daughters, physical and mental torture are hurled
 WWW.LIVELAW.IN

urgently needs an effective population control law to stop

discrimination between boys and girls, provide them equal rights and

equal opportunity.

The tax payers follow “Ham Do-Hamre Do”, but the persons

getting subsidized food cloths and houses are not adhering it.

Thousands of years before, Lord Ram had initiated the rule of Ham Do-

Hamare- Do, and for giving clear message to common man, he along

with his brothers Laxman, Bharat and Shatrughan, followed “Ham

Do–Hamare Do", though, problem of population was not so dangerous.

Population explosion is more dangerous than bomb explosion and

without implementation of effective population control measures,

campaigns like Clean India, Healthy India, Literate India, Prosperous

India, Resourceful India, Strong India, Secured India Sensitive India and

Corruption and Crime-Free India won’t succeed.

The National Commission to Review the Working of Constitution

after making immense efforts for two years and elaborate discussion,

had suggested the addition of Article 47A in the Constitution and

formulation of Population Control Law, which had not been

implemented till date. Till now the Constitution has been amended 124

times, the decision of the Supreme Court has been altered twice,

hundreds of new laws have been enacted, but population control Law,

utterly required for the country, is not made, though it will curtail more

than 50% problems of India.

The NCRWC is a very prestigious Judicial Commission. The former

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The former attorney General Mr. Keshav Parasaran and Soli Sorabjee

and Loksabha Secretary General Mr. Subhash Kashyap were its

members. The Member of Parliament Sumitra Jee and late P.A. Sangama

Ji were also its Member. Senior Journalist C.R. Irani and Mr. Abid

Hussain, former Ambassador to America, were also the members of

Commission.

As long as two crore homeless people would be given homes,

more than 10crore homeless children will born. Many Legislators,

intellectuals, sociologists, environmentalists, educationists, judges,

philosophers and thinkers and journalists agree to the point that

population explosion is the root cause of more than 50% problems of

our country. The NCRWC, making immense efforts for two years and

discussion with all stake holders, had handed over its report to the

Union Government on 31st March, 2002. Many laws viz. MANREGA, Right

to Education, Right to Information and Right to Food were enacted on

its recommendations but the population control law was not even

discussed in the parliament. The proposals related to Electoral and

Admin Reform and implementation of fundamental duties is pending till

date. So, recommendations rendered by the NCRWC should be put on

the floor of the House and extensive discussion should be held,

particularly on the population control.

The separation of power cannot prevent this Hon’ble Court to

address the menace of population explosion. The proposed amendment

cannot result in a violation of the fundamental right under Article 19(1)

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that the political party does not give him a ticket as a condition for

recognition as a State or National party, to guarantee continued usage of

the reserved symbol, does not impinge on freedom of association of

either candidate or political party. Further, even assuming that it could

be characterized as falling within the scope of Article 19(1)(c), the

proposed amendment arguably is a reasonable restriction that is

narrowly tailored and can be justified on the ground of public order and

morality in the Article 19(4).

LIST OF DATES

09.05.2018: Petitioner filed a WP(C) 157/2018 seeking a direction

for implementation of NCRWC recommendation on

Population Control and to make Two Child Norm

mandatory criteria for contesting election of

Parliament and State Assembly. However, withdrew

the PIL with liberty to approach authorities.

21.05.2018: Petitioner submitted a detailed representation to the

Union Government for implementation of proposals

of the National Commission to Review the Working of

the Constitution on population control. But,

government has not taken apposite steps in this

regard till date.

21.05.2018: Petitioner submitted a detailed representation to the

Election Commission of India to make two child norm

a mandatory criteria for contesting election from

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has not taken appropriate steps in this regard till

date.

08.02.2019: It is impossible to secure fundamental rights viz. right

to clean air, right to drinking water, right to health,

right to peaceful sleep, right to shelter and right to

livelihood and right to education guaranteed under

Articles 21 and 21A. Moreover, the great golden goals-

Justice, Liberty and Equality to all citizens cannot be

secured and fraternity, unity and national integration

cannot be promoted without population control. But,

Central Government & ECI did nothing. Hence this

PIL.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO ….. OF 2019
(PIL UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

Ashwini Kumar Upadhyay
...Petitioner

Verses
1. Union of India
Through the Secretary,
Ministry of Home Affairs,
North Block, New Delhi-110001

2. Election Commission of India

Through the Director Law,
Nirvachan Sadan, Ashoka Road, New Delhi-110001 ……Respondents

WRIT PETITION UNDER ARTICLE 32 SEEKING DIRECTION TO THE ELECTION

COMMISSION TO MAKE TWO CHILD NORM A MANDATORY CRITERIA FOR
CONTESTING ELECTION AND UNION OF INDIA TO ASCERTAIN THE
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THE HON’BLE CHIEF JUSTICE OF INDIA

AND LORDSHIP’S COMPANION JUSTICES
OF THE HON’BLE SUPREME COURT OF INDIA
HUMBLE PETITION OF ABOVE-NAMED PETITIONER
THE MOST RESPECTFULLY SHOWETH AS THE UNDER:

1. Petitioner is filing this PIL under Article 32 seeking direction to the ECI

to insert additional condition- “political party shall not setup candidates,

who have more than two children” in Paragraph 6A “Conditions for

recognition as a State Party”, Paragraph 6B “Conditions for recognition as

National Party” and Paragraph 6C “Conditions for continued recognition

as a National or State Party” of the Election Symbols Order and Model

Code of Conduct. It also seeks a direction to the Government to ascertain

feasibility of implementing the NCRWC proposal on Population Control.

2. Petitioner has not filed any other petition either in this Hon’ble Court or

in any other High Court seeking same and similar directions as prayed

in this petition except WP(C) 157/2018. The Order of this Hon’ble Court

dated 9.5.2018 is annexed as Annexure P-1. (Page 32)

3. Petitioner’s full name is Ashwini Kumar Upadhyay, The Petitioner is an

Advocate and social-political activist, contributing his best to

development of socially-economically downtrodden people.

4. The facts constituting cause of action accrues on 21.5.2018 and continue

for the failure of the State to implement any effective population control

strategy or programme such as to ensure that the health and wellbeing

of the citizens are not adversely put to peril due to the rampant

population explosion in this country. Furthermore, the oblivion of the

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population explosion, further makes the State amenable to the writ

jurisdiction of this Hon’ble Court. It is continuing apathy of the State and

the Executive to implement population control measures, which in turn

jeopardizes the enjoyment of fundamental rights under the

Constitution, which compels the Petitioner to invoke the jurisdiction of

this Hon’ble Court as a matter of last resort.

5. The injury caused to the public because right to clean air, right to

drinking water, right to health, right to peaceful sleep, right to shelter

and right to livelihood and right to education guaranteed under Articles

21-21A of the Constitution can’t be secured to all citizens without

population control.

6. Petitioner has no personal interests, individual gain, private motive or

oblique reasons in filing this petition. It is not guided by gain of or for

any other individual person, institution or body.

7. There is no civil, criminal or revenue litigation, involving the petitioner,

which has or could have legal nexus, with the issue involved in this

petition. The present petition is filed bona fide and in public interest.

8. Population in India is growing rapidly. The growth is so alarming that it

has nullified the impact of all development. In 1947, the population was

nearly 30 crore, which has increased about five times today with around

152 crore. In the first, Below Poverty Line Survey of 1961, BPL

Population was 18 crore and in 2011, it was 36 crore and UN says its 50

crore.

9. Petitioner submitted a representation to both respondents on

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appropriate relief. Furthermore, as shall be more fully elaborated below,

different states have differing policies with respect to population

control programmes. While some States make it an electoral

disqualification to have more than two children, such policy is not

uniformly applied across the country. That by itself creates an

anomalous situation wherein, under the same Constitution which

governs the entire country, varying thresholds of accountability are to

be discerned. Therefore, appropriate orders from this Hon’ble Court

may remedy the malaise and thus this Court is optimally positioned to

address the issues at hand and the Petitioner does not have any other

alternative efficacious remedy. Copy of representation to the ECI is

annexed as Annexure P-2 (Page 33-38) and Copy of Representation to

Union of India is Annexure P-3.(Pages 39-43)

10. Petitioner is filing this petition to insert an additional condition-

“political party shall not setup candidates, who have more than two

children” in Paragraph 6A “Conditions for recognition as a State Party”,

Paragraph 6B “Conditions for recognition as a National Party” and

Paragraph 6C “Conditions for continued recognition as a National or

State Party” of the Election Symbols Order, 1968, and Model Code of

Conduct. This would not breach the principle of separation of powers

because there is a legislative vacuum insofar as the Parliament has not

enacted any legislation in the field covered by the Election Symbols

Order 1968 and Model Code of Conduct, which has been issued by the

ECI in exercise of its plenary powers under Article 324 of the

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11. The powers of the Election Commission of India under Article 324

of the Constitution operates in areas left unoccupied by legislation and

is plenary in character. [Kanhiya Lal Omar v. R.K. Trivedi, (1985) 4 SCC

628, Para 16] The power of “superintendence, direction and control” of

the conduct of elections, vested in the Election Commission, is executive

in character. [A.C. Jose v. Sivan Pillai, (1984) 2 SCC 656, p. 22] The

Symbols Order is traceable to the power of the Election Commission

under Article 324. [Kanhiya Lal Omar, para 16] The power to amend,

vary or rescind an order which is administrative in character under

Section 21 of the General Clauses Act, specifically referred to in

paragraph 2(2) of the Symbols Order, would permit the Election

Commission to withdraw recognition of a political party. [Janata Dal

(Samajwadi) v. Election Commission, (1996) 1 SCC 235, para 6]

Accordingly, it is clear that the proposed amendment in the Symbols

Order would operate in a field where there is a legislative vacuum.

12. The proposal is vital because the functions performed by

legislators are vital to democracy and there is no reason why they

should be held to lower standards than Councilor and Gram Pradhan. In

many States, Candidates for Councilor and Gram Pradhan certainly

would not be considered at all if they have more than two children.

However, it is worth noting that the proposed amendment is not an

eligibility condition for legislators but rather merely imposes a

condition on political parties.

13. Proposal would only be to impose an additional condition on a

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symbol under the Symbols Order. The statutory right to register a

political party under Section 29A, RPA and contest election as an

independent candidate, would not be affected in any way. Moreover,

under Section 13A, Income Tax Act, 1961, political parties are exempted

from paying income tax on contributions received by them. So, imposing

a condition during elections preventing them from fielding candidates

having more than two children in election, is a reasonable restriction,

keeping in mind the concessions and privileges enjoyed by them.

14. At present, 122 crore Indians have AADHAAR Card, around 20%

viz. 25 crore citizens (particularly children) are without AADHAAR, and

around 04 crore Bangladeshi and 01 crore Rohangiya intruders, illegally

reside in India. From this, it is evident that the total population of our

country is around 152 crore instead of 130 crore and we have marched

much ahead of China. If we calculate natural resources, then we have

only 2% of agriculture land of the total land and only 4 % drinking

water. However, our population is 20 % of the world. If we compare

with China then our agricultural area is only one-third of China and the

rate of population growth is three times that of China. In China 11

children are born every minute and in India 33 children are born every

minute.

15. Population explosion is the root cause of most of our problems

including shortage of water, forests and land, Roti, Kapra and Makan

(Bread, clothes and house), poverty and unemployment, hunger and

malnutrition and air, water, soil and sound pollution. It is also the root
 WWW.LIVELAW.IN

dacoity and snatching, domestic violence, physical and mental

harassment of women and separatism, fanaticism, stone pelting etc.

From a survey, conducted on thieves, dacoits, snatchers, rapists and

mercenaries, it is apparent that about 90% criminals and offenders are

such that their parents have not followed policy of “Ham Do – Hamare

Do”. Therefore, it is evident from the above stated facts that population

explosion is the basic cause of more than 50% problems of India.

16. We celebrate the International Day for the Elimination of Violence

against Women on 25 November every year, but violence on women is

increasing and the root cause is population explosion. After birth of a

girl, the woman is subjected to physical and mental harassment, though,

as per medical science, it depends on the Husband. Some people

abandon their first wife if 3-4 daughters are born, and perform second

marriage to fulfil their desire to have a son. For daughters, to have good

health, social economic and political justice, liberty of thoughts,

expression, belief, faith, and worship, equality of status and opportunity,

a strict population control law, based on the Model of China, is urgently

required.

17. Population explosion is also the root cause of the pitiable

condition of our International Ranking. We are ranked 103rd in the

Global Hunger Index, 43rd in Suicide Rate, 168th in Literacy Rate, 133rd

in World Happiness Index, 125th in Gender Discrimination, 124th in

Minimum Pay, 42nd in Employment Rate, 66th in Rule of Law Index,

43rd in Quality of Life Index, 51st in Financial Development Index, 177th

 WWW.LIVELAW.IN

possess only 4% of ground water and merely 2% of agricultural land of

the world.

18. Population explosion is also one of the root cause of corruption.

We are ranked 66th in 1998, 72nd in 1999, 69th in 2000, 71st in 2001 and

2002, 83rd in 2003, 90th in 2004, 88th in 2005, 70th in 2006, 72nd in 2007,

85th in 2008, 84th in 2009, 87th in 2010, 95th in 2011, 94th in 2012, 87th in

2013, 85th in 2014, 76th in 2015, 79th in 2016, 81st in 2017 and 79th in

2018.

19. We celebrate National Pollution Control Day on 2nd December and

we have made immense efforts to control pollution. But, air, water, soil

and sound pollution is constantly increasing due to population

explosion. Therefore, success of Clean India and Healthy India Campaign

is doubtful in the absence of a strict population control law.

20. Save Girl Campaign may be successful, but torture after marriage,

cannot be stopped in absence of a strict and effective population control

law. After birth of 3-4 daughters, physical and mental torture are hurled

on the woman, though the girl child depends on male instead of female.

Several people prefer polygamy in the desire of son. Therefore, India

urgently needs an effective population control law to stop

discrimination between boys and girls, provide them equal rights and

equal opportunity.

21. The tax payers follow “Ham Do-Hamre Do”, but the persons

getting subsidized food cloths and houses are not adhering it.

Thousands of years before, Lord Ram had initiated the rule of Ham Do-
 WWW.LIVELAW.IN

Do–Hamare Do", though, problem of population was not so dangerous.

Population explosion is more dangerous than bomb explosion and

without implementation of effective population control measures,

campaigns like Clean India, Healthy India, Literate India, Prosperous

India, Resourceful India, Strong India, Secured India Sensitive India and

Corruption and Crime-Free India won’t succeed.

22. The National Commission to Review the Working of Constitution

after making immense efforts for two years and elaborate discussion,

had suggested the addition of Article 47A in the Constitution and

formulation of Population Control Law, which had not been

implemented till date. Till now the Constitution has been amended 124

times, the decision of the Supreme Court has been altered twice,

hundreds of new laws have been enacted, but population control Law,

utterly required for the country, is not made, though it will curtail more

than 50% problems of India.

23. The NCRWC is a very prestigious Judicial Commission. The former

Chief Justice of India Justice Vankatchalaih was its chairman and Justice

Sarkaria, Justice Jeevan Reddy and Justice Punnaiya were its members.

The former attorney General Mr. Keshav Parasaran and Soli Sorabjee

and Loksabha Secretary General Mr. Subhash Kashyap were its

members. The Member of Parliament Sumitra Jee and late P.A. Sangama

Ji were also its Member. Senior Journalist C.R. Irani and Mr. Abid

Hussain, former Ambassador to America, were also the members of

Commission.
 WWW.LIVELAW.IN

intellectuals, sociologists, environmentalists, educationists, judges,

philosophers and thinkers and journalists agree to the point that

population explosion is the root cause of more than 50% problems of

our country. The NCRWC, making immense efforts for two years and

discussion with all stake holders, had handed over its report to the

Union Government on 31st March, 2002. Many laws viz. MANREGA, Right

to Education, Right to Information and Right to Food were enacted on

its recommendations but the population control law was not even

discussed in the parliament. The proposals related to Electoral and

Admin Reform and implementation of fundamental duties is pending till

date. So, recommendations rendered by the NCRWC should be put on

the floor of the House and extensive discussion should be held,

particularly on the population control.

25. The separation of power cannot prevent this Hon’ble Court to

address the menace of population explosion. The proposed amendment

cannot result in a violation of the fundamental right under Article 19(1)

to form an association. A candidate, having more than two children, can

become or continue to be a member of political party. The condition

that the political party does not give him a ticket as a condition for

recognition as a State or National party, to guarantee continued usage of

the reserved symbol, does not impinge on freedom of association of

either candidate or political party. Further, even assuming that it could

be characterized as falling within the scope of Article 19(1)(c), the

proposed amendment arguably is a reasonable restriction that is

 WWW.LIVELAW.IN

26. According to the United Nation Parameters, BPL Population of

India was more than 50 crores in 2011. It is not a trifling matter that

the population density is at a humongous 404 persons per square

kilometer of area, whereas the global density is at a nominal 51 persons

per square kilometer of land area. The enormity of the crisis becomes

quickly apparent when the population density figures of certain other

countries (both developed as well as developing nations) are juxtaposed

with that of India. While developed nations such as USA and UK are at

population densities of 33 and 271 persons respectively per square

kilometre, those in countries of comparable economic conditions such

as Brazil and South Africa fair tremendously better with a density figure

of 25 and 46 persons per square kilometer respectively. What stands in

stark contrast to underpin the magnitude of the crisis is that China,

being the most populous country in the world, has a population density

of only 144 persons per square kilometer.

27. The Taxpayers are regularly increasing their contribution through

taxes to fight with poverty but the vote bank politics has been misusing

the hard-earned money of taxpayers for past 70 years and there is an

utter lack of implementation strategy to banish poverty from the Nation.

India has 2% land area of the world with the Population of nearly 20%.

28. Taxpayers have been contributing for the development of India

since 1947. The money paid by them in terms of taxes is used for

growth, development and security of nation, services for citizens and

many more. Taxpayers are earning member and are the real nation
 WWW.LIVELAW.IN

representatives elected by them and public servants are using their

funds properly or not.

29. Every year population is increasing but the amount of natural

resources to sustain this population are diminishing. We have to think

about conditions of our natural resources. Now we have no fresh air to

breathe, no fresh water to drink, no fresh food to eat and many more.

India is an agricultural based economy but agricultural area is

decreasing every subsequent year. Same with forest covered, glaciers,

fresh water reserves and many more. The only and one thing that is

increasing is population and the result is drastic increase in

unemployment, poverty, starvation, food adulteration, health issues,

crime and many more. Supply demand ratio in our country has a huge

difference. Safety and revival of our natural resources are must for us

and for our coming generations. The population is quite large and

rapidly increasing. One percent growth rate means an addition of about

1.5 crore people every year. Therefore, an effective population control

measure is the need of the hour. We know that birth rate is mainly

responsible for rapid population growth. Hence, measures, which can

reduce the birth rate, should be adopted.

30. Fertility depends on the age of marriage. Therefore, the minimum

age of marriage of female should be raised. Presently, minimum age for

marriage is 21 years for male and 18 years for female, which is arbitrary

discriminatory and offends Articles 14-15. Petitioner feels that

minimum age should be 21 years for both male and female and it should
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to rearing and bearing of children. Female should be given more

opportunities to develop socially and economically. Free education

should be given to them, but, it is impossible without strictly following

child marriage act.

31. The education changes the outlook of people. The educated men

prefer to delay marriage and adopt small family norms. Educated

women are health conscious, avoid frequent pregnancies, and thus help

in lowering birth rate. Some parents don’t have any child, despite

medical treatment. They may be advised to adopt orphan children. It

will be beneficial to both. Social outlook of the people should undergo a

change. Issueless women should not be looked down upon. More and

more people should be covered under-social security schemes. So that

they do not depend upon others in the event of old age, sickness,

unemployment etc. with these facilities they will have no desire for

more children.

32. It’s noteworthy that as far back as 1976 at the time of

implementing the 42nd Amendment Act to the Constitution, Entry 20A

was inserted in the List III (Concurrent List) to Schedule VII of the

Constitution which is “Population Control and Family Planning”. The

imperative of the insertion in the Concurrent List is palpable that the

federal States also have a say in the matter of population control.

However, the years following the said amendment has only brought to

light the apathy of respondent in tackling the problem of population

explosion, and the entire scheme of population control and family

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there is no chapter on menace of population explosion in the syllabus

and curriculum. It is highlighted that the plight of an enormous

population growth is not a matter which can be solely handled or

effectively tackled by the States alone. A high population growth rate

cuts across various rights and sectors which can only meaningfully be

controlled or tempered by the intervention of the respondents.

33. Following the 42nd Amendment to the Constitution in 1976, some

states such as Haryana has indeed implemented laws to disqualify

individuals from contesting elections to local bodies in the circumstance

that one has more than two children. However, sporadic changes to law

in only certain states shall never manage to yield results. It is therefore,

the need of the hour that the respondents takes steps to assess and to

control the rapid growth of population. In fact, an anomalous situation

has arisen due to the dispersed nature of these legislations directed

towards population control in certain States. While a representative to a

local body in the State where population control laws have been

implemented stand disqualified for having more than two children,

those in other States enjoy a complete immunity from any such

disqualification. Thus, an elected public representative under the

Constitution is subjected to differing standards of public accountability

while all along being subjected to same constitutional standards.

Therefore, a uniform system of population control strategies and the

creation of a national matrix is not only the pressing need of the hour,

but is also in line with the constitutional mores. Same shall not only be a
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but also go long way in ensuring economic planning to garner

constitutional rights to all.

34. The Government should raise the employment avenues in rural.

Generally, in rural areas there is disguised unemployment. Therefore,

efforts should be made to migrate unemployed persons from rural side

to urban side. If agriculture and industry are properly developed, large

number of people will get employment. When their income is increased

they will improve their standard of living and adopt small family norms.

35. People in urban areas have low birth rate than those living in the

rural areas. Therefore, urbanization should be encouraged in villages.

Girl’s marriage should be solemnized after the age of 21 years. This will

reduce the period of reproduction and bring down the birth rate. But,

the Executive is not willing to review the minimum age of marriage.

36. Improved standard of living acts as a deterrent to large family

norm. In order to maintain higher standard of living people prefer to

have small family. According to survey, those who earn less than Rs. 100

per month have on an average a reproduction rate of 4 children and

those earn more than Rs. 300 per month have a reproduction rate of 3

children.

37. Self-control is the best powerful methods to control the

population. It is an ideal and healthy approach and people should be

encouraged to follow. It helps in reducing birth rate. This method

implies family by choice and not by chance. By applying preventive

measures, people can regulate birth rate. This method is being used
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there are different recreational facilities - cinema; theatre, sports and

dance etc. are available to people.

38. Communication media viz. TV, radio and newspaper are the good

means to propagate the benefits of the planned family to the

uneducated and illiterate persons especially in rural and backward

areas of country. The Executive can give various types of incentives to

adopt birth control measures. Monetary incentives and other facilities-

leave and promotion can be extended to the working class, which

adopts small family norms. Other method to check population is to

provide employment to women. Women should be given incentive to

give services in different fields.

39. The Executive has not appropriately formulated and successfully

implemented policies to control population explosion. There is no

aggressive sterilization campaign, targeting men and women both. India

is world’s most populous country. Teaching poorly educated women

about use of contraceptive pills in remote communities is more

expensive than mass sterilization campaigns, despite successive years of

economic growth, governments have systematically chosen the cheaper

option.

40. The problem of child marriage is highly prominent in many States.

A marriage at a tender age leads to a long reproductive span in women.

Also marriage at a young age prevents people from acquiring the

education and awareness required to be sensitive towards and

understand the consequences of raising too many children. However,

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41. One big drawback of India is that of limited and highly centric

medical facilities. Because of the high rural-urban divide, availability of

good hospitals and doctors is limited to urban centers thus resulting in

high infant mortality rate in rural areas. Rural people, in order to ensure

that at least some of their kids survive, give birth to more and more kids

thus contributing to population growth. If provided with optimum

medical facilities population rate will almost certainly decline.

42. From the above, it is evident that the issue of population control

and family planning is not one which can be tackled on a piecemeal

basis. The phenomenon of population explosion in this country is a

result of multifarious factors, social, economic, health etc. Therefore,

development of a national matrix, taking into account these diverse

factors is essential for a meaningful strategy to contain population

growth.

43. Not much result can be achieved, if family planning and use of

contraception remains optional instead of mandatory. Strict legal steps

are required for child marriage, education, abolition of child labor and

beggary and family planning to reap significant benefits from it. Proper

enforcement of laws related to child labor, slavery and beggary,

polygamy will ensure that parents do not sell their children or send

them out to work thus forcing them to raise lesser number of kids.

44. The women folks are not considered equivalent to men in terms of

force and might and such opinions are extremely common and it is a

major reason for population growth. People keep giving birth to kids in
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say in matters concerning them like childbirth and educating them to

fight against discrimination will ensure a healthy society.

45. Child labor, slave trading and human trafficking is highly

prevalent. People give birth to kids and sell them to rich people who in

turn employ these kids in various laborious and unethical tasks. If not

sell, these parents force their kids to beg or work at a very tender so as

to earn some extra money for the family. These people believe that more

kids mean more hands for begging and work and thus more money.

Without concrete measures, other methods will not to be ineffective.

46. Ensuring that people have easy and cheap access to contraception

tools will help avoiding cases of unwanted pregnancies and births.

Every State owned hospital should be made to provide cheaply efficient

birth control medicines or surgeries since poor people have neither the

means not awareness to use contraception. Use of condoms and

contraceptives must be advertised and promoted along with ensuring

cheap and ready access to these. Contraceptives do not only prove to be

an important population control measure but also prevents spreading of

sexually transmitted diseases like AIDS thus ensuring small healthy

families. Therefore, it is duty of Central Government and State

Governments to take appropriate steps to control the population.

47. Enormous population and the increasing rate of it is the biggest

challenge while the same is only of little concern in developed countries

like America, Europe or Japan. Lack of development implies high

poverty, illiteracy, discrimination, lack of awareness, lack of medical

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gender discrimination, ensuring development of whole population

instead of a given segment of society would eliminate challenge of

population growth. A U.N. report has suggested that there would be a

significant decline in population if legal age for marriage is 25 years.

48. Family planning is based on efforts largely sponsored by the

Central government. In 1965-2009 period, contraceptive usage has

more than tripled (from 13% of married women in 1970 to 48% in

2009) and fertility rate has more than halved (from 5.7 in 1966 to 2.4 in

2012), but the national fertility rate is still high enough to cause long-

term population growth. India adds about 1,75,00000 people to its

population year. So, the efficacy and success of a national matrix, when

undertaken across the country is evident from the above. In light of the

same, it is essential that a concerted and holistic approach is adopted for

population control instead of stand-alone, sporadic and dispersed

strategies adopted in a variegated fashion across different states in the

country.

49. Awareness of contraception is near-universal among married

women in India. However, the vast majority of married Indians (76% in

a 2009 study) reported significant problems in accessing a choice of

contraceptive methods. In 2009, 45% of married women were

estimated to use contraceptive method, i.e. more than half of all married

women did not. About three-fourths of these were using female

sterilization, which is by far the most prevalent birth-control method in

India.
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contraception among all States. UP and Bihar reported usage below

30%. Comparative studies have indicated that increased female literacy

is correlated strongly with a decline in fertility. Studies have indicated

that female literacy levels are an independent strong predictor of the

use of contraception, even when women do not otherwise have

economic independence. Female literacy levels may be the primary

factor that help in population stabilization, but they are improving

relatively slowly. A study estimated that it would take until 2060 for

India to achieve universal literacy and total fertility rate at the current

rate of progress.

51. Mr. Raghunath Karve in magazine “Samaj Swasthya” (1927-1953)

discussed issues of society's wellbeing through population control by

use of contraceptives so as prevent unwanted pregnancies and induced

abortions. He proposed that the Government should take up a

population control programme, but was met with opposition by

Mahatma Gandhi because he believed that self-control is the best

contraceptive. However, Periyar’s views were strikingly different from

that of Gandhi. He saw birth control as a means for women to control

their own lives.

GROUNDS

A. Because the NCRWC has noted with concern that proper planning and

monitoring of socio-economic development is considerably hampered

and neutralized by exponential growth of population and recommended

that an Article should be added as Directive Principles of State Policy

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Population - The State shall endeavour to secure control of population by

means of education and implementation of small family norms.”

B. Because various committees and commissions has said that

Government can’t secure fundamental rights viz. right to education,

right to health, right to shelter, right to water, right to speedy justice,

right to healthy environment, right to development, right to dignity,

right to livelihood, right to live peacefully, right to equal pay for equal

work, right to free legal aid etc. without taking apposite steps to control

the population explosion and implementing the NCRWC

recommendations.

C. Because in Javed v. State of Haryana [AIR 2003 SC 3057: (2003) 8 SCC

369], this Hon’ble Court has held that “the fundamental rights should not

be read in isolation. They have to be read along with Directive Principles

of State Policy and the fundamental duties enshrined in the Article 51A.

None of the lofty ideals envisaged under the Articles 38 to 47 can be

achieved without controlling the population inasmuch as the material

resources are limited and claimants are many”.

D. Because this Court, in Air India v. Nergesh Meerza, (1981) 4 SCC 335

held “… same considerations would apply to a bar of third pregnancy

where two children are already there because when the entire world is

faced with the problem of population explosion it will not only be

desirable but absolutely essential for every country to see that the family

planning programme is not inly whipped up but maintained at sufficient

levels so as to meet the danger of over population which, if not controlled,

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E. Because this Hon’ble Court has held that the problem of population

explosion is a national and global issue for which priority in policy-

oriented legislation, wherever needed, is necessary. Legislative

measures to check menace of growing population is valid. A provision

that a person who has more than two children is not qualified to hold

office in a local authority was, therefore, the legislation is valid.

F. Because despite the fact that India was the first country in the world to

have a population policy, but it has not achieved much in terms of

population control due to negligence of governments. India is facing an

intense crisis of resources. There is furious competition for the limited

natural resources leading to quarrels between States, communities and

even families. Our land and water resources are being exploited to the

extreme. The exploitation of mineral resources is threatening forests,

nature, reserves and ecology and its over use is contributing to natural

disasters occurring more frequently and with greater impact.

G. Because in 1952, India was the first country in the world to launch a

National Population Policy program, emphasizing family planning to the

extent necessary for reducing birth rates to stabilize the population at a

level consistent with the requirement of national economy. National

Health Policy, 1983, stated that replacement levels of the Total Fertility

Rate (TFR) should be achieved by the 2000, but it failed due to

negligence of the successive governments.

H. Because India was projected to have one billion people in 2011 i.e. is

15% of the world’s population on 2% of the globe’s land area. But, now
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global population has increased threefold during the previous century,

the population of India has increased nearly five times. Current annual

increase in population of 17.5 million is large enough to neutralize

efforts to conserve the natural resources and endowment and

environment.

I. Because stabilizing population is an essential requirement for

promoting sustainable development with more equitable distribution.

However, it is as much function of making reproductive healthcare

accessible and affordable for all, as of increasing the provision and

outreach of primary and secondary education, extending basic

amenities including sanitation, safe drinking water, housing, besides

empowering women and enhancing the employment opportunities,

providing transport and communication. Therefore, the menace of

overpopulation has a direct bearing on the right of the citizenry to enjoy

a healthy environment. Overpopulation indeed constrains the resources

of the nation and leads to pollution, and poverty thereby denuding the

citizenry of a chance to enjoy clean and safe environment in the country.

Overpopulation has direct nexus with impoverishment of the masses

insofar as it exerts undue pressures on natural resources, which it is

duty bound to distribute equitably. The higher the population, the slice

of national pie that falls for consumption of individual is exponentially

diminished. Therefore, it is actually in the interest of all and sundry

deriving their rights under the Constitution that the present population

explosion in this country is contained.

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consent of citizens while availing of reproductive healthcare services,

and continuation of the target free approach in administering family

planning services, but, unfortunately, it was not implemented in letter

and spirit. NPP-2000 provided Policy for advancing goals and

prioritizing strategies for the decade, to meet the reproductive and child

health needs of the people, and achieve net replacement levels (TFR) by

2010. It was based upon need to simultaneously address issues of child

survival, maternal health, and contraception, while increasing outreach

and coverage of a comprehensive package of reproductive and child

health services by government, industry, and voluntary NGOs, working

in partnership.

K. Because the immediate objective of NPP-2000 was to address the unmet

needs for contraception, healthcare infrastructure and health personnel,

and to provide integrated service delivery for basic reproductive and

child healthcare. The medium-term objective was to bring the TFR to

replacement level by 2010 through hearty implementation of inter-

sectoral operational strategies. Long-term objective was to achieve

stable population by 2020, at a level consistent with requirements of

sustainable economic growth, social development and environmental

production. But, Executive has not taken appropriate steps in this

regard.

L. Because population is inter-connected with pollution and poverty and it

has become a major challenge for our Country. Root cause of population

explosion is illiteracy and negligence but it is controllable. ‘Polio Day’

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every month and now India is free from Polio. Similar strategy can be

adopted for controlling the menace of population outburst. Government

may declare the ‘First Sunday’ of every month as the ‘Health Day’

instead of continuing the ‘Polio Day’ and provide contraceptive pills,

condoms and vaccines free of cost to the EWS and BPL families in

addition to polio vaccines to children. The Government should

implement the NCRWC recommendations in this regard urgently and

religiously.

M. Because this Hon’ble Court has reiterated that ultimate goal of

Executive, Legislature and Judiciary is ‘Welfare of the People’. The

Constitution is organic in nature and being a living organ, it is ongoing.

Hence, with passage of time, new Laws may be enacted or existing Laws

may be amended. The Constitution is intended to serve needs of the day

when it was enacted and to meet the needs of changing conditions in

new circumstances. Hence, words and expressions used in the

Constitution have no fixed meaning and receive purposive

interpretation based on experience of the people in the course of the

working of the Constitution.

N. Because right to health is an integral part of right to life guaranteed

under Article 21 of the Constitution. It includes protection, prevention,

cure and improvement of health and is a minimum requirement to

enable a person to live with human dignity. State has a constitutional

obligation to provide health facilities to all the citizens, especially to

EWS and BPL families. In a Welfare State, it is obligation of the State to

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State to take appropriate steps to improve health of the citizens and

provide necessary information instruction and infrastructure in this

regard.

O. Because environmental issues have become a matter of serious concern

and present scenario where the populations increased is seriously

polluting environment and increasing pressure on the natural resources

of the country. Population is increasing with geometrical progression

and it is necessity of the time that we should adopt the necessary

measures by way of adoption of two child norms. India is the most

popular country in the world and there is no immediate ray of hope

where mostous population explosion could be stopped to protect our

environment and the natural resources. Life of common man is

becoming more and more complicated and it has become extremely

difficult to fight with growing epidemic of poverty among the increasing

population of the country.

P. Because population explosion is uncontrolled due to feeble measures

adopted by the government. Rising population is a matter of serious

concern, which has to be fought tooth and nail, or else next generation

will have to face a serious danger to their peaceful existence. Population

explosion is still increasing with alarming rate and it cannot be allowed

to increase further to save the future generation from the obvious

danger to the environment and national resources. Increasing

population will bad to mounting pressure on available resources, which

will not be available to the people in the required quality and surplus
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Q. Because there is strong need to take strict measures to controlled

arising population. The increasing population is imposing and

increasing burden on the already limited resources of the country which

are continuality degrading. The growth of the population has led to the

serious issues of air and water pollution and a issue of global warming

this is direct threat to the human civilization and the existence of

peaceful human existence.

R. Because India has become the most popular country having 20% of

world population and area comprising of only 2% of the total land. The

increase in population rate is very devastating hereby there is

intensifying effect on environment with the combined effect on the

desperate property and rising level of consumption, consequent

depletion of natural resources. There is increasing pressure on the fuel

demand for looking and earning of livelihood for survival of the masses.

The increase of population has led to development of slums in the urban

areas and the consequent unequical distribution of resources.

Population increase has resulted in the degradation of natural resources

forests and environment. There is mounting pressure in agriculture

land as over past 50 years, population has increased by 5 times

whereas the area under cultivation as increased only about 20% and

even this insignificant increase in cultivation of land has taken place at

the expense of forests and grazing land.

S. Because population explosion is cause of mounting pressure on the

forest resources of the country as we have only 2% of the total world’s

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for providing raw materials to the Industries and generating income

and employments. The population growth has resulted in downward

trend in per capita availability of forest/agriculture land and this is

further bound to decline further if population growth continues. It is

danger to the enhancing of the quality of environment by influencing

the ecological balance and life supporting system like checking soil

erosion, maintain social fertility, conserving water and floods and

further balancing Carbon dioxide and Oxygen in the atmosphere.

T. The mounting pressure of population is a threat to prudentially valuable

local crops and the biodiversity of lands. The population growth further

leads to a development programmes at the cost of natural habitat and

environment whence creation of reservoirs, laying of communication

and transport networks. With increase of population the number of

Vehicles have increased resulting in more an pollution, traffic jams and

demand for road Construction at the cost of agriculture lands. It is

leading to an increase in vehicular pollution and also in a number of

environmental problems like air/pollution and global warming.

U. High population growth rate is increasing a number of people below

poverty line and also the increase in the population density and

pressure on natural resources. Population pressure on the arable lands

is contributing to land degradation affecting the productive resource

base of the economy. Increasing population is a fundamental factor in its

relationship to national resources and environment. There is urgent

need to control the population to alleviate poverty and to

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V. Because Two Child Norm for contesting local body election has been

adopted by some States like Andhra Pradesh, Gujarat, Maharashtra,

Odisha, Rajasthan, Haryana, which has yielded very positive results in

reducing the population growth in those States. Therefore, such two

child norm should be adopted by all the States to implement the

population control policy to bring fruitful results. People

Representatives are not only Public Servants but also Law-Maker, Hence

they should set an example for others for adopting two child norms so

that common people of the country can be encouraged to emulate Two

Child Norm.

W. The separation of power cannot prevent this Hon’ble Court to address

the menace of population explosion. Therefore, keeping in view the

above stated facts, this Court direct the ECI to insert an additional

condition: “political party shall not setup candidates who have more than

two children” in Paragraph 6A “Conditions for recognition as a State

Party”, Paragraph 6B“Conditions for recognition as National Party” and

Paragraph 6C “Conditions for continued recognition as a National or

State Party” of the Election Symbols (Reservation & Allotment) Order

1968 and Model Code of Conduct for the political parties and

candidates.

X. Proposed direction to the ECI cannot result in a violation of

fundamental right under Article 19(1) to form an association. A

candidate, having more than two children, can become or continue to be

a member of the political party. The condition that the political party
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does not impinge on the freedom of association of either the candidate

or the political party. Further, even assuming that it could be

characterized as falling within the scope of Article 19(1)(c), the

proposed direction arguably is a reasonable restriction that is narrowly

tailored and can be justified on the ground of public order and morality

in Article 19(4) of the Constitution.

Y. Because definition of the child in Section 2(a) of the Prohibition of Child

Marriage Act, 2006, is arbitrary, unreasonable and offends Articles 14,

15 and 21 of the Constitution, hence, void and inoperative.

Z. Because this Hon’ble Court may declare that minimum age of marriage

shall be 21 years for all citizens without any discrimination as it will

definitely help to control the menace of population explosion.

PRAYER

It is the most respectfully prayed that this Hon'ble Court may be pleased

to issue a writ, order or direction or a writ in the nature of mandamus

to:

a) direct the Election Commission of India to insert an additional

condition- “political party shall not setup candidates, who have more than

two children” in Paragraph 6A “Conditions for recognition as a State

Party”, Paragraph 6B “Conditions for recognition as National Party” and

Paragraph 6C “Conditions for continued recognition as a National or

State Party” of the Election Symbols (Reservation and Allotment) Order,

1968;

b) direct the Union of India to ascertain the feasibility of implementing the

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State may set Two Child Norm, a mandatory criteria for government

Jobs, aids and subsidies, and, may withdraw statutory rights viz. right to

vote, right to contest, right to property, right to shelter, right to free

legal aid etc.;

c) direct and declare First Sunday of every month as ‘Health Day’ to

spread awareness against population explosion and provide

contraceptive pill, condoms, vaccines etc. to EWS and BPL families, with

polio vaccine;

d) direct the Government to ascertain the feasibility of having a minimum

age of marriage 21 years for all citizens without any discrimination;

e) in the alternative, direct and declare that the words “if a male” and “and

if a female, has not completed eighteen years of age” in Section 2(a) of the

Prohibition of Child Marriage Act, 2006, arbitrary, unreasonable and

against Articles 14, 15, 21 of the Constitution, hence, void & inoperative;

f) pass such other order or direction as this Hon’ble Court may deem fit.

08.02.2019 (R.D.UPADHYAY)
NEW DELHI ADVOCATE FOR PETITIONER
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO ……. OF 2019
IN THE MATTER OF:
Ashwini Kumar Upadhyay …Petitioner
Verses
Union of India & another ...Respondents

AFFIDAVIT
I, Ashwini Kumar Upadhyay aged 44 years, son of Sh. Suresh Upadhyay, Office
at: 15, New Lawyers Chambers, Supreme Court, New Delhi-110001, Residence
at: G-284, Govindpuram, Ghaziabad-201013, at present at New Delhi, do hereby
solemnly affirm and declare as under:
1. I am the sole petitioner above named and well acquainted with facts and
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4. I have not filed any other petition either in this Hon’ble Court or in any other Court
seeking same or similar directions except WP(C) 157/2018.
5. I have no personal interests, individual gain, private motive or oblique reasons in
filing this petition. It is not guided for gain of any other individual person,
institution or body. The only motive is public interest.
6. There is no civil, criminal or revenue litigation, involving petitioner, which has or
could have legal nexus, with issue involved in this petition.
7. There is no requirement to move concerned government authority for relief
sought in this petition. There is no other remedy available except approaching
this Hon’ble Court.
8. I have gone through the Article 32 and the Supreme Court Rules and do hereby
affirm that the present petition is in conformity thereof.
9. I have done whatsoever enquiry/investigation, which was in my power to do, to
collect the data or material, which was available; and which was relevant for this
Hon’ble Court to entertain the present petition.
10. I’ve not concealed any data/material/information in this petition; which may have
enabled this Hon’ble Court to form an opinion, whether to entertain this petition or
not and/or whether to grant any relief or not.
11. The averments made in this affidavit are true and correct to my personal
knowledge and belief. No part of this Affidavit is false or fabricated, nor has
anything material been concealed there from.

(Ashwini Kumar Upadhyay)

DEPONENT

VERIFICATION
I, the Deponent do hereby verify that the contents of above affidavit are
true and correct to my personal knowledge and belief. No part of this affidavit is
false nor has anything material been concealed there from.
I hereby solemnly affirm and declare it today 8th day of February 2019 at New
Delhi.

(Ashwini Kumar Upadhyay)

DEPONENT
APPENDIX

ELECTION SYMBOLS (RESERVATION&ALLOTMENT) ORDER, 1968

[6A. Conditions for recognition as a State party.—A political party

shall be eligible for recognition as a State party in a State, if, and only if,
any of the following conditions is fulfilled:––
(i) At the last general election to the Legislative Assembly of the State,
the candidates set up by the party have secured not less than six per.
Cent. of the total valid votes in the State; and, in addition, the party has
returned at least two members to the Legislative Assembly of that State
at such general election; or
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(iii) At the last general election to the Legislative Assembly of the State,
the party has won at least three per. Cent. of the total number of seats in
the Legislative Assembly, (any fraction exceeding half being counted as
one), or at least three seats in the Assembly, whichever is more; or
(iv) At the last general election to the House of the People from the
State, the party has returned at least one member to the House of the
People for every 25 members or any fraction thereof allotted to that
State. ]
6B. Conditions for recognition as a State party.—A political party,
other than a National party, shall be treated as a recognized State party
in a State or States, if, and only if,— either
(A)(i) the candidates set up by it, at the last general election to the
House of the People, or to the Legislative Assembly of the State
concerned, have secured not less than six per cent. of the total valid
votes polled in that State at that general election; and (ii) in addition, it
has returned at least two members to the Legislative Assembly of the
State at the last general election to that Assembly; or
(B) it wins at least three per cent. of the total number of seats in the
Legislative Assembly of the State (any fraction exceeding one-half being
counted as one), or at least three seats in the Assembly, whichever is
more, at the aforesaid general election.
6C. Conditions for continued recognition as a National or State
party.—If a political party is recognised as a National party under
paragraph 6A, or as a State party under paragraph 6B, the question
whether it shall continue to be so recognized after any subsequent
general election to the House of the People or, as the case may be, to the
Legislative Assembly of the State concerned, shall be dependent upon
the fulfilment by it of the conditions specified in the said paragraphs on
the results of that general election.]
THE NATIONAL COMMISSION TO REVIEW THE WORKING OF THE
CONSTITUTION

(24) After article 47, the following article should be added, namely:-
47A. “Control of population.- The State shall endeavour to secure
control of population by means of education and implementation of
small family norms.”.

ARTICLE 21 IN THE CONSTITUTION OF INDIA

21. Protection of life and personal liberty No person shall be deprived of
his life or personal liberty except according to procedure established by
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The State shall provide free and compulsory education to all children of
the age of six to fourteen years in such manner as the State may, by law,
determine.]

SECTION 2 IN THE PROHIBITION OF CHILD MARRIAGE ACT, 2006

2. Definitions.-In this Act, unless the context otherwise requires,-

(a) "child" means a person who, if a male, has not completed twenty-one
years of age, and if a female, has not completed eighteen years of age;
(b) "child marriage" means a marriage to which either of the contracting
parties is a child;
(c) "contracting party", in relation to a marriage, means either of the
parties whose marriage is or is about to be thereby solemnised;
(d) "Child Marriage Prohibition Officer" includes the Child Marriage
Prohibition Officer appointed under sub-section (1) of section 16;
(e) "district court" means, in any area for which a Family Court
established under section 3 of the Family Courts Act, 1984 (66 of 1984)
exists, such Family Court, and in any area for which there is no Family
Court but a city civil court exists that court and in any other area, the
principal civil court of original jurisdiction and includes and other civil
court which may be specified by the State Government, by notification
in the Official Gazette, as having jurisdiction in respect of the matters
dealt with in this Act;
(f) "minor" means a person who, under the provisions of the Majority
Act, 1875 (9 of 1875) is to be deemed not to have attained his majority.

*******************

To, 21.5.2018

The Hon’ble Home Minister

Government of India, New Delhi,

Through: The Principle Secretary – HMO

Subject: make Two Child Norm a mandatory criteria for contesting election,

applying for government jobs and receiving subsidies

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various Committees and Commissions have concluded that the Government

cannot secure basic rights to its citizenry (right to education, right to health, right

to shelter, right to water, right to speedy justice, right to healthy environment,

right to development, right to dignity, right to livelihood, right to live peacefully,

right to equal pay for equal work, right to free legal aid etc.), the Executive has

remained unconcerned with regard to this mounting crisis, and has failed to take

apposite/remedial steps to control population explosion in this country.

2. It is not a trifling matter that the population density of this country is at a

humongous 404 persons per square kilometer, whereas the global density is 51

persons per square kilometer. Enormity of crisis becomes quickly apparent when

population density figures of other countries (both developed as well as

developing nations) are juxtaposed with that of India. While developed nations

such as United States of America and United Kingdom are at population

densities of 33 and 271 persons respectively per square kilometre, those in

countries of comparable economic conditions such as Brazil and South Africa fair

tremendously better with a density figure of 25 and 46 persons per square

kilometer respectively. What stands in stark contrast to underpin the magnitude

of the crisis is that China, being the most populous country in the world, has a

population density of only 144 persons per square kilometer.

3. The National Commission to Review the Working of the Constitution has noted

with concern that proper planning and monitoring of the socio-economic

development of the country is considerably hampered and neutralized by

exponential growth of population. It recommended that an Article should be

added as Directive Principles of State Policy after Article 47 of the Constitution

as: “Article 47A. Control of Population - The State shall endeavour to secure

control of population by means of education and implementation of small family

norms.”

4. In Javed versus State of Harayana [AIR 2003 SC 3057: (2003) 8 SCC 369], the
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envisaged under the Articles 38 to 47 can be achieved without controlling the

population inasmuch as the material resources are limited and claimants are

many. The Court has held that problem of population explosion is a national and

global issue for which priority in policy-oriented legislation, wherever needed, is

necessary. Legislative measures to check menace of growing population is valid.

A provision that a person who has more than two children is not qualified to hold

office in a local authority was, therefore, held to be valid.

5. The Supreme Court in Air India v. Nergesh Meerza, [AIR 1981 SC 1829], has

observed that a rule whereby the services of air hostesses (with two existing

children) on the third pregnancy would be terminated, was salutary and

reasonable. The Court did not find anything wrong with such a rule and went on

to uphold its validity and constitutionality. In holding so, this Court opined that

when many countries are faced with the problem of population explosion, it will

not only be desirable but absolutely essential for every country to see that the

family planning programme is not only whipped up but maintained at sufficient

levels so as to meet the danger of overpopulation which, if not controlled, may

lead to serious social and economic problems throughout world.

6. Despite the fact that India was the first country in the world to have a population

policy, but it has not achieved much in terms of population control due to

negligence of successive governments. India is facing an intense crisis of

resources. There is furious competition for the nation’s limited natural resources

leading to disputes between States, between communities and even families.

Our land and water resources are being exploited to the extreme. The rampant

exploitation of mineral resources is threatening forests, nature, reserves and

ecology. Over use of natural resources is contributing to natural disasters

occurring more frequently and with greater impact. It is in the very nature of

limited resources and economics, that provision of a resource for an individual or

a group, necessarily excludes the others from its enjoyment or exploitation.

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7. In 1952, India was the first country in the world to launch a National Population

Policy program, emphasizing family planning to the extent necessary for reducing

birth rates to stabilize the population at a level consistent with the requirement of

national economy. National Health Policy, 1983, stated that replacement levels of

the Total Fertility Rate (TFR) should be achieved by the 2000, but it failed due to

negligence of the successive governments.

8. India was projected to have one billion people in 2011 that is 16% of the world’s

population on 2% land area. But we are now 152 crore (122 crore citizens with

AADHAAR and 20% without AADHAAR, about 04 crore Bangladeshis and 01

crore Rohingyas). Thus, India is the most populous country. It is pertinent to

note that China is three times bigger than India. While global population has

increased threefold during previous century, population of India has increased 07

times from 238 million to 1.5 billion. Annual increase in population of 17.5 million

is large enough to neutralize efforts to conserve natural resources and

environment.

9. Stabilizing population growth is an essential requirement for promoting

sustainable development with more equitable distribution. However, it is as much

a function of the State to make reproductive healthcare accessible and affordable

for all, as it is for the State to increase the provision and outreach of primary and

secondary education, extending basic amenities including sanitation, safe

drinking water and housing, besides empowering women and enhancing their

employment opportunities, providing transport and communication. The

aspiration of poverty alleviation shall remain unrealized in case effective

population control measures are not formulated.

10. Population is inter-connected with poverty and pollution and it has become a

major challenge for our Country. Root cause of population explosion is illiteracy

and negligence but it is controllable. ‘Polio Day’ was started throughout the

country to educate and sensitize the people about its ill effect and Polio
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‘Health Day’ or “Family Day” instead of continuing ‘Polio Day’ and provide

contraceptive pills, condoms and vaccines free of cost to the EWS and BPL

families in addition to polio vaccines. Government should implement the NCRWC

recommendations in this regard urgently and religiously.

11. Ultimate goal of Legislature, Executive and Judiciary is ‘Welfare of People’. Our

Constitution is organic in nature and being a living document, it is ever evolving.

Hence, with passage of time, new laws may be enacted or existing laws may be

amended. The Constitution is intended to serve not just the needs of the day

when it was enacted but also to meet the needs of a changing society in new

circumstances. Therefore, the words and expressions used in the Constitution

have no fixed meaning and receive purposive interpretation based on experience

of people in the course of the working of the Constitution.

12. The Constitution is framed and accepted by the People to govern themselves for

all times. It is fundamental to governance of the country, whereby the ‘People’

have provided constitutional polity consisting of certain primary organs,

institutions and functionaries to exercise the powers provided under the

Constitution of India.

13. Right to health is part of right to life. It includes protection, prevention and

improvement of health and is a minimum requirement to enable a person to live

with dignity. The State has a constitutional obligation to provide health facilities to

all citizens, especially to EWS and BPL families. In a Welfare State, it is

obligation of State to ensure the creation and sustaining of conditions congenial

to good health.

14. The contours of fundamental right to health have both, a positive and a negative

connotation. While in its positive content the State is expected to ensure

provision of healthcare facilities, in its negative content, State must be

understood to be prohibited from undertaking any measure, which may adversely

affect the citizenry’s right to health. The apathy of State in enforcing measures to
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Constitution whereby it is an expectation of citizens that the State shall ensure

equal access to resources for a dignified existence of the people.

15. Articles 21, 39 and 47 casts a duty on the State to take steps to improve health of

citizens, provide necessary information instruction and infrastructure. The

Executive has constitutional obligation to extend its services with due expertise

for protecting the health. Apex Court has reiterated that right to live is not insured

by meeting only the animal needs of man but it is secured only when he is

assured of all facilities to develop himself and is free from restrictions, which

inhibit growth. All human beings are designed to achieve this object. Therefore,

in circumstances of acute shortage of resources, right to life cannot be secured

without controlling the population explosion in this country.

Sir,

Keeping in view the above stated facts and circumstances and to secure

fundamental rights of citizens, please take appropriate steps to:

a) add Article 47A to the Directive Principles of State Policy in line with the 24th

recommendation of the National Commission to Review the Working of the

Constitution (also known as Justice Venkatchaliah Commission);

b) make ‘Two Child Norm, a mandatory criteria for contesting election, forming

political party and becoming political office bearer;

c) make ‘Two Child Norm, a mandatory criteria for applying the government Jobs

and receive government aids and financial subsidies;

d) formulate, enact and enforce strict ‘Two Child Law, in line with China’s

Population Control Law to control Population Explosion;

e) formulate policies with a vision to encourage and reward the families, who are

voluntarily adhering ‘Two Child Norm;

f) take steps to withdraw constitutional, statutory and legal rights viz. right to vote,

right to contest, right to property, right to education, right to health, right to

shelter, right to water, right to justice, right to healthy environment, right to

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g) declare first Sunday of every month as ‘Health Day’ (in place of Polio Day) and

provide contraceptive pill, condoms and vaccines etc. free of cost, in addition to

polio vaccine and take such other steps as you deem fit and proper to implement

‘Two Child Norm, throughout the Country.

Thanks and Regards.

Ashwini Kumar Upadhyay

15, M.C. Setalvad Chambers,

Supreme Court, New Delhi-110001,

#08800278866, aku.adv@gmail.com
To, 21.5.2018
Sh. O.P. Rawat Ji,
The Chief Election Commissioner,
Election Commission of India, New Delhi-01,
Subject: To make Two Child Norm mandatory for contesting election
Sir,
1. Petitioner is filing this petition to insert an additional condition- “political party
shall not setup candidates, who have more than two children” in Paragraph 6A
“Conditions for recognition as a State Party”, Paragraph 6B “Conditions for
recognition as a National Party” and Paragraph 6C “Conditions for continued
recognition as a National or State Party” of the Election Symbols Order, 1968,
and Model Code of Conduct.
2. This would not breach the principle of separation of powers because there is a
legislative vacuum insofar as the Parliament has not enacted any legislation in
the field covered by the Symbols Order, which has been issued by the ECI in
exercise of its plenary powers under the Article 324.
3. The powers of the ECI under Article 324 of the Constitution operates in areas left
unoccupied by legislation and is plenary in character. [Kanhiya Lal Omar v. R.K.
Trivedi, (1985) 4 SCC 628, Para 16] The power of “superintendence, direction
and control” of the conduct of elections, vested in the Election Commission, is
executive in character. [A.C. Jose v. Sivan Pillai, (1984) 2 SCC 656, p. 22] The
Symbols Order is traceable to the power of the Election Commission under
Article 324. [Kanhiya Lal Omar, para 16] The power to amend, vary or rescind
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Accordingly, it is clear that the proposed amendment in the Symbols Order would
operate in a field where there is a legislative vacuum.
4. The proposal is vital because the functions performed by legislators are vital to
democracy and there is no reason why they should be held to lower standards
than Municipal Councilor and Gram Pradhan. In many States, Candidates for
Municipal Councilor and Gram Pradhan certainly would not be considered at all if
they have more than two children. However, it is worth noting that the proposed
amendment is not an eligibility condition for legislators but rather merely imposes
a condition on political parties.
5. The effect of proposal would only be to impose an additional condition on a
political party for obtaining and retaining the status of a “recognized national
party” or “state party”, which would entitle it to a reserved symbol under the
Symbols Order. The statutory right to register a political party under Section
29A, RPA and contest election as an independent candidate, would not be
affected in any way. Moreover, under Section 13A of the Income Tax Act, 1961,
political parties are exempted from paying income tax on contributions received
by them. Hence, imposing a condition during elections preventing them from
fielding candidates having more than two children in an election, is a reasonable
restriction, keeping in mind the concessions and privileges enjoyed by them.
6. At present, 122 crore Indians have AADHAAR Card, around 20% viz. 25 crore
citizens (particularly children) are without AADHAAR Card, and around four crore
Bangladeshi and one crore Rohangiya intruders, illegally reside in India. From
this, it is evident that the total population of our country is around 152 crore
instead of 125 or 130 crore and we have marched much ahead of China. If we
calculate natural resources, then we have only 2% of agriculture land of the total
land and only 4 % drinking water. However, our population is 20 % of the world. If
we compare with China then our agricultural area is only one-third of China and
the rate of population growth is three times that of China. In China 11 children
are born every minute and in India 33 children are born every minute.
7. Population explosion is the root cause of most of our problems including
shortage of water, forests and land, Roti, Kapra and Makan (Bread, clothes and
house), poverty and unemployment, hunger and malnutrition and air, water, soil
and sound pollution. Population explosion is also the root cause of the crowds in
trains, police stations, tehsils and jails, High Courts and Supreme Court.
Population explosion is the rootcause of theft, dacoity and snatching, domestic
violence, physical and mental harassment of women and separatism, fanaticism,
stone pelting etc. From the survey conducted on thieves, dacoits, snatchers,
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8. We celebrate the International Day for the Elimination of Violence against

Women on 25 November every year, but violence on women is increasing and
the root cause is population explosion. After birth of a girl, the woman is
subjected to physical and mental harassment, though, as per medical science, it
depends on the Husband. Some people abandon their first wife if 3-4 daughters
are born, and perform second marriage to fulfil their desire to have a son. For
daughters, to have good health, social economic and political justice, liberty of
thoughts, expression, belief, faith, and worship, equality of status and
opportunity, a strict population control law, based on the Model of China, is
urgently required.
9. Population explosion is also the root cause of the pitiable condition of our
International Ranking. We are ranked 103rd in the Global Hunger Index, 43rd in
the matter of suicide, 168th in the Literacy Rate, 133rd in the World Happiness
Index, 125th in Gender Discrimination, 124th in the minimum pay scale, 42nd in
the employment rate, 66th in the Rule of Law index, 43rd rank in the Quality of
Life Index, 51st rank in Financial Development Index, 66th rank in Rule of Index,
177th rank in Environment Performance Index, 139th rank in the Per Capita GDP.
However, we are the first in the matter of depleting the underground water,
though we possess only 2% of agricultural land of the world and only 4% of
ground water.
10. Population explosion is also one of the root cause of corruption. If we see last 20
years Corruption Perception Index, our ranking is pathetic. We were ranked 66th
in 1998, 72nd in 1999, 69th in 2000, 71st in 2001 and 2002, 83rd in 2003, 90th in
2004, 88th in 2005, 70th in 2006, 72nd in 2007, 85th in 2008, 84th in 2009, 87th in
2010, 95th in 2011, 94th in 2012, 87th in 2013, 85th in 2014, 76th in 2015, 79th in
2016 and 81st in 2017.
11. Every year we celebrate National Pollution Control Day on 2nd December and we
have made immense efforts in the last 4 years to control pollution, but due to
population explosion, air pollution, water pollution, soil pollution and sound
pollution are constantly increasing. Therefore, success of Clean India and
Healthy India Campaign is doubtful in the absence of a strict population control
law.
12. Beti Bachcho-Beti Padhao Campaign may be successful, but torture after
marriage, cannot be stopped in absence of a strict and effective population
control law. After birth of 3-4 daughters, physical and mental torture are hurled on
the woman, though the girl child depends on male instead of female. Several
people prefer polygamy in the desire of son. India urgently needs an effective
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Do, and for giving message to common man, along with Laxman, Bharat and
Shatrughan, he in person had followed the rule of Ham –Do Hamare- Do, when
during the period, problem of population was not so dangerous. All the political
parties admit that at present, population explosion is more dangerous than bomb
explosion. Therefore, without implementation of effective population control law,
making of Ramrajaya- Clean India, Healthy India, Literate India, Prosperous
India, Resourceful India, Strong India, Secured India, Sensitive India and India
free from Corruption and Crime is not only difficult, but also impossible.
14. Keeping in view the above facts, the National Commission to Review the
Working of the Constitution (Justice Venkatchallaih Commission), after making
immense efforts for two years and elaborate discussion, had suggested the
addition of Article 47A in the Constitution and formulation of Population Control
Law, which had not been implemented till date. Till now the Constitution has
been amended 124 times, the decision of the Apex Court has been altered twice,
hundreds of new laws have been framed, but population control Law, utterly
required by the country, is not made, though it will curtail more than 50% of the
problems.
15. The Constitution Review Commission is the most prestigious Judicial
Commission. The former Chief Justice of India Justice Vankatchalaih was its
chairman and Justice Sarkaria, Justice Jeevan Reddy and Justice Punnaiya
were its members. The former attorney General of India, Mr. Keshav Parasaran
and Soli Sorabjee and former Loksabha Secretary General Mr. Subhash
Kashyap were its members. The Member of Parliament Sumitra Jee and late
Sangama Ji were also Member of this commission. Senior journalist C.R. Irani
and Mr. Abid Hussain, Ex-Ambassador to America were also the members of
Commission.
16. The Vankatchalaih Commission, making immense efforts for two years and
discussion with all the concerned parties in detail, had handed over its report to
the Union Government on 31st March, 2002. On the ground of recommendations
rendered by the said commission exclusively, the remarkable laws such as
MANREGA, Right to Education, Right to Information and Right to Food were
enacted, but the population control law was not even discussed in the parliament.
The said commission had also rendered significant opinion in the matter of
effective implementation of fundamental duties, which is not put into force till
now. The recommendation related to Electoral Reform, Administrative Reform
and Judicial Reform are pending till date. So, recommendations rendered by
Venkatchaliah Commission should be put on the floor of the House and
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more than 10 crore homeless people will be born. Therefore, the population
control law of China with required amendments may be put up in the Lok Sabha
in the forthcoming session.
18. The Population Control Law should be strict and effective and the person found
violating the said rule may be forced to surrender his ration card, voter ID,
AADHAAR card, bank account, electric connection and mobile connection.
Simultaneously, the persons violating the rule of Ham Do –Hamare Do may be
restricted for whole life from getting government jobs and contesting elections
and becoming political office bearers. Such people should be debarred from the
facilities of government schools and hospitals, including the other subsidies and
facilities.

Sir,

The separation of power cannot prevent the ECI to address the systemic problem
of population explosion. Therefore, keeping in view the above stated facts,
please take apposite steps to insert an additional condition: “political party shall
not setup candidates who have more than two children” in Paragraph 6A
“Conditions for recognition as a State Party”, Paragraph 6B“Conditions for
recognition as National Party” and Paragraph 6C “Conditions for continued
recognition as a National or State Party” of the Election Symbols (Reservation &
Allotment) Order 1968 and Model Code of Conduct for the political parties and
candidates.

Please also inform all political parties that the violation of proposed
amendment shall result in seizure of recognition and election symbol.

The proposed amendment cannot result in a violation of the fundamental

right under Article 19(1) to form an association. A candidate, having more than
two children, can become or continue to be a member of the political party. The
condition that the political party does not give him a ticket as a condition for
recognition as a State or National party, to guarantee continued usage of the
reserved symbol, does not impinge on the freedom of association of either the
candidate or the political party. Further, even assuming that it could be
characterized as falling within the scope of Article 19(1)(c), the proposed
amendment arguably is a reasonable restriction that is narrowly tailored and can
be justified on the ground of public order and morality in Article 19(4) of the
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Ashwini Kumar Upadhyay

15, M.C. Setalvad Chambers,

Supreme Court, New Delhi-01,

8800278866, aku.adv@gmail.com,