Population PIL: Every problem can't be resolved by approaching us, says SC

Society will always have some disputes needing resolution but every problem cannot be resolved by approaching the apex court directly, the Supreme Court said on Friday while expressing disinclination to continue hearing a PIL on population control.

A bench comprising Chief Justice Uday Umesh Lalit and Justice JB Pardiwala was also reluctant to issue notices to all the states, as sought by petitioner Ashwini Upadhayay, on the plea which sought directions to the Centre and states to take steps, including enforcing a two-child norm, to control the country's rising population.

“You have filed the petition. The notice was issued and their (government) attention has been invited. They have applied their mind to the problem and now it is for them to take a policy decision. Our job is over. Therefore, we will close the petition now,” the bench said.

The observation came when Upadhyay, a lawyer, said since population comes under the concurrent list of the Constitution state governments can also make laws to control it.

He then sought issuance of notices to all the states on the issue.

“We will not issue notices like this unless we are satisfied,” the CJI said, adding as to how the court can issue a writ to the states on the issue of population control.

“A society will always have some kind of disputes and those disputes need resolution and so it is not as if there will be a zero problem society. There will always be certain problems but every problem cannot be solved through Article 32 (under which pleas including PILs are directly filed in the SC),” the bench said.

The bench initially said it will close the petition but later adjourned the hearing to October 11.

Earlier, on January 10, 2020, the top court had sought the Centre's reply to Upadhyay's plea challenging a Delhi high court order that had dismissed a PIL seeking introduction of certain steps, including the two-child norm, to control the country's rising 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.