On Friday, a Supreme Court panel chaired by Chief Justice UU Lalit and Justice JB Pardiwala declined to notify the States in response to a plea brought by BJP leader Ashwini Upadhyay calling for a population control strategy for India. The bench noted that it would only notify States after being satisfied with the petition itself, even as it questioned whether the “two-child ban” could be enforced nationwide. The matter is now scheduled for October 11th.

Ashwini Upadhyay, the petitioner, claimed at the start that the Center had suggested that States may also be included in the case because the problem of population control was within the concurrent list. In light of this, Upadhyay requested that the court also notify the States.

While describing the population boom as a national issue, he asserted that the “two child policy” should be the standard across the board and prayed for the adoption of the National Commission to Review the Working of the Constitution’s 24th proposal on population management (NCRWC).

The CJI enquired how the enforcement of two child policy would be possible. He orally remarked that–

“There are so many things which are idealistic in nature but at the same time when it comes before the court of law, the enforceability is one of the issues. How does one in force this kind of direction? What kind of mandamus to issue?”

The petitioner insisted that he was merely seeking the limited prayer of issuing notice to States for now. However, the court stated that they could not issue notice unless they were satisfied. CJI Lalit stated–

“We are not convinced at all. What kind of order or mandamus is to be issued in the petition? Look at the prayers that you made. You have filed a petition, notice was issued, their attention has been invited, now it is for them to take a policy decision. Therefore we will close the petition now. We will not issue notice like this. There are umpteen number of problems. Human society will always have some kind of disputes, those disputes keep resolving. We cannot say that any society will have zero problems. There will always be problems. But every problem does not have a solution through Article 32.”

However, the petitioner insisted the bench to list the matter again so that he could prove how his prayers could be granted. The bench agreed to the same and listed the matter for 11th October.

Case Title: Ashwini Kumar Upadhyay v. Ministry of Health And Family Welfare And Anr. SLP(C) No. 27597/2019


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