It was in 2005 when the government of Gujarat made changes to the Gujarat Local Authorities Act. These changes were introduced with the aim of “preventing any person having more than two children to be the councillor of a municipality or municipal corporation or a member of panchayat”.
Following this amendment, three candidates from the Municipal Corporations of Vadodara and Rajkot were listed out from the race to be posted at the above mentioned positions. In other words, on Monday, they were disqualified under the two-child policy in the state for candidates because each candidate had three children.
What is the two-child policy by Gujarat’s government?
The Gujarat government amended the Gujarat Local Authorities Act in 2005 for the reasons stated above. The same 2005 amendment added the same clause to a few other Acts as well which govern the elections to local administrative bodies. These include the Gujarat Provincial Municipal Corporations Act, 1949, and the Gujarat Panchayats Act.
This amendment was laid out with the rationale behind it being the need to “order and stabilise” the ever-growing population of the Indian subcontinent with the elected representatives being the pioneers leading rest of the people by their example.
So, who are the candidates facing negative consequence?
The following are the people who were disqualified from the list simply because of having more than two kids:
- Naran Savseta : He is a congress candidate from Rajkot Municipal Corporation and was disqualified for having three children. However, the first child was by his divorced wife.
- Dipak Shrivastav: He was a two-term sitting corporator from BJP in Vadodara. He is now contesting elections as an independent after being denied a party ticket. He made public declarations stating that his second child who was born in 2017 had been “adopted” by his father BJP MLA Madhu Shrivastav in the month of December in 2020. This was two months after the birth of his third child. His first child had been born in 2011 while other two were born during his ongoing term, that is, 2015-2020. Even after this, the election department disqualified his nomination. The department claimed that the Vadodara birth records have registered Dipak as the biological father of all the three children. Thus, in coherence to the Gujarat Local Authorities Act, according to which every biological child is to be counted as children born to the candidate (Their survival, adoption or separation does not matter).
- Viren Rami: A sitting corporator, he was contesting elections as an independent from Vadodara. He had been disqualified on the same grounds as the Naren Savseta. The information about his biological child from first marriage was not mentioned in his affidavit. Interestingly and incidentally, he won the election in 2015 because no one objected to the nomination.
So, a third child born at any time will disqualify a candidate?
Well, there is a cut-off date here which was added in the 2005 amendment to the local body Acts . It law clearly states: “Provided that a person having more than two children on the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, 2005, shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase.”
In other words, the election departments would not disqualify nominations of candidates with more than two biological children only if the children were born on or before the date of commencement of the amended Act in 2005 or even up to one year after the commencement of the act, that is, 2006, keeping into consideration the pregnancy durations. The period of one year is levied to include all those candidates, who might have been planning to have their third child before or at the time the amendments to the Act were made.
Do we take into consideration the deceased children of a candidate?
Yes, we do.
An election officer from Vadodara said that all the biological children regardless of the duration of survival are counted as “one entity” provided that they were born alive.
He claimed that there is a precedent in Gujarat High Court which has upheld the disqualification of a potential candidate stating that mortality of a biological child cannot be used to subvert the purpose of disqualification. The High Court has held that doing this would defeat the purpose of the law. The candidate’s fourth child was born and subsequently died a few months later.
In the same judgement, the Gujarat High Court also said that biological children which are given away for adoption cannot be used as a way to deviate from the number of biological children of the candidate.
Is this policy for the first-timers or does it apply to sitting corporators contesting again as well?
The policy does not take into consideration the political experience of a candidate. Therefore, if a third biological child of sitting corporators is born during the course of their tenure,the candidate is eligible to be disqualified from the post on the basis of this police.
Do we count in twins, and adopted children?
According to the section, the birth of any additional biological children to a candidate after the year 2006, would be taken as “one entity” each. This rule stands straight even in case of twins, triplets etc (one child is born in a single delivery).
However, if a candidate has only one child on or after the date of the commencement of the policy (2006), then any number of subsequently birthed children shall be considered to be one single entity.
Adopted child or children are not taken into account by the policy.
What about children from divorced spouses?
Yes, they are included.
The law states that any biological child of a candidate which is surviving is considered as “one entity”, despite the fact the marriage to the other parent has been legally dissolved or not.
According to the experts, the election department considers children from previous marriages, and if more than two, would make for a valid consideration for disqualification of the candidate. Therefore, the official enquiry does not consider “biological children” as those being only from current marriages but past marriages as well.
But, if that is the case, one of the candidates mentioned above claimed his second-born had been given away in adoption. Why was he still disqualified?
The election officer, in his order in the case of Dipak Shrivastav, said that the candidate presented a registered document which stated that his father BJP MLA Madhu Shrivastav has adopted his son and is now the father of Pratishtha Shrivastav by legal adoption. This does not remove the ground for disqualification because the law does not provide for exceptions to children given away in adoption.