'Society has disputes, moving court won't resolve all problems': SC on PIL on population control

The Supreme Court on Friday, while hearing a PIL on population control, said the matter has invited the government's attention and it is for the government to take a policy decision, not the court.

A bench of Chief Justice U.U. Lalit and Justice J.B. Pardiwala observed that disputes are integral to societies, but every problem cannot be resolved by moving the top court directly.

Reluctant to entertain the petition, the bench told the petitioner, advocate Ashwini Upadhyay, that government's attention has been invited on the matter and it has also applied its mind to the issue. "Now, it is for them to take a policy decision. Our job is over... we will close the petition," it said.

The bench also expressed its disinclination to issue notice to all the states, as sought by the petitioner. Upadhyay argued that since population comes under the concurrent list of the Constitution, states can also make laws to control it and urged the bench to issue notice to all state governments.

Wondering how it could issue notice to states on population control issue, it told Upadhyay that he needs to satisfy the court first on the matter.

Emphasising that no society is free of problems, the bench said every problem cannot be solved through Article 32, under which pleas including PILs are directly filed before the apex court.

After hearing arguments, the top court scheduled the matter for hearing on October 11. Upadhyay's plea sought direction to the Centre and states to take steps, including enforcing a two-child norm, to control population.

The top court, in January 2020, had sought Centre's response on Upadhyay's plea, who moved against the Delhi High Court order, which dismissed a PIL seeking introduction of certain steps, including the two-child norm, to control population.

A bench comprising the then Chief Justice S A Bobde and Justices B R Gavai and Surya Kant had issued notices to the Centre and others.

The appeal filed by Upadhyay challenged the September 3, 2019 high court order, which said it was for Parliament and the state legislatures to enact laws and not the court.

It said the high court "failed to appreciate that the right to clean air, the right to drinking water, the right to health, the right to peaceful sleep, the right to shelter, the right to livelihood and the right to education guaranteed under Articles 21 and 21A of the Constitution could not be secured to all citizens without controlling the population explosion".

"The high court failed to appreciate that after a detailed discussion, debate and feedback, Entry 20-A was inserted in List III of the 7th Schedule through the 42nd Amendment to the Constitution in 1976, which permits the Centre and the states to enact a law on population control and family planning," the plea filed through advocate Ashwani Kumar Dubey said.

It also said the high court did not take note of the fact that after a comprehensive discussion, the National Commission to Review the Working of the Constitution, one of the most eminent judicial commissions headed by former Chief Justice of India Justice M N Venkatachaliah, on March 31, 2002 recommended to insert Article 47A into the Constitution to control population explosion.

The plea in the high court had claimed the population of India had "marched ahead" of China, as about 20 per cent of Indians did not have Aadhaar cards and therefore were not accounted for, and there were also crores of Rohingya and Bangladeshis living illegally in the country.

It claimed the "population explosion is also the root cause of corruption", apart from being a contributory factor behind heinous crimes like rape and domestic violence.

It also held population explosion responsible for pollution and the dearth of resources and jobs.

The petitioner argued that without population control campaigns such as "Clean India" and "Save the Girl Child" will not succeed.

He said by the time the government provides housing to the over two crore homeless people, the number of such individuals would have risen to 10 crore.