Updated: February 11, 2021 8:50:56 am
Three candidates from the Municipal Corporations of Vadodara and Rajkot were disqualified on Monday under the two-child policy in place in the state for candidates. The nominations were challenged because each candidate had three children.
What is Gujarat’s two-child policy?
In 2005, the Gujarat government amended the Gujarat Local Authorities Act to “prevent a person having more than two children to be a member of panchayat, or the councillor of a municipality or municipal corporation”. The amendment also added the clause to the other Acts governing elections to local administrative bodies such as the Gujarat Provincial Municipal Corporations Act, 1949, and the Gujarat Panchayats Act. The rationale behind the two-child policy was said to be the need to “order and stabilise” the growing population of the country, beginning with elected representatives, who should lead by example.
So, who are the candidates facing disqualification?
Congress candidate from Rajkot Municipal Corporation Naran Savseta was disqualified for having three children, the first by a wife now divorced.
In Vadodara, two-term sitting corporator from BJP, Dipak Shrivastav, contesting as an independent after being denied a party ticket, declared that his second child (born 2017) had been “adopted” by his father BJP MLA Madhu Shrivastav in December 2020 — two months after the birth of his third. Both children were born during his ongoing term (2015-20); the first had been born in 2011. But the election department invalidated his nomination citing Vadodara birth records as having registered Dipak as the biological father and the Gujarat Local Authorities Act, which states that every biological child is to be counted as children born to the candidate, regardless of their survival, adoption or separation.
The third candidate, sitting corporator Viren Rami from Vadodara who was contesting as an independent, was disqualified on the same grounds as the Rajkot candidate — he had a biological child from his first marriage, who was not mentioned in his affidavit. Rami, incidentally, had been allowed to contest in 2015 (and won) because no one objected to the nomination.
Does a third child born at any time disqualify a candidate?
There is a cut-off date. The section added in the 2005 amendment to the local body Acts 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.”
It essentially means that the election departments would consider nominations of candidates with more than two biological children, if the children were born before the commencement of the amended Act in 2005 or up to one year after the commencement i.e. 2006. The Act had considered the period of one year from the date of commencement to include those candidates, who might have been on the way to have their third child at the time the Act was amended.
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What about twins, and adopted children?
The section states that the birth of any additional biological children to a candidate, post 2006, would be counted as “one entity” each, even if more than one child is born in a single delivery (twins, triplets etc). Where a candidate has only one child on or after the date of the commencement of the policy, any number of children born out of single subsequent delivery shall be deemed to be one entity.
The policy does not include an adopted child or children.
And what about children from divorced spouses?
Yes. According to the law, any biological surviving child of a candidate is considered as “one entity”, even if the marriage to the other parent has been legally dissolved. Experts said that the election department does not consider “biological children” as those being only from current marriages. Therefore, children from previous marriages, if more than two, would make for a valid consideration for disqualification.
One of the candidates claimed his second-born had been given away in adoption. Why was it not considered?
The law does not provide for exceptions to children who may have been given away in adoption. In his order in the case of Dipak Shrivastav, the election officer said, “… The candidate has presented a registered document stating that his father Madhu Shrivastav is the father of Pratishtha Shrivastav by legal adoption, which does not remove the ground for disqualification…”
Do deceased children count?
Yes. According to an election officer from Vadodara, even biological children who were born alive, regardless of the duration of survival, are counted as “one entity”. “We have a precedent in Gujarat High Court which has upheld the disqualification of a district panchayat candidate, whose fourth child was born and subsequently died a few months later. The HC has held that mortality of a biological child cannot be made relevant to subvert the purpose of disqualification because it would defeat the purpose of the law… In the same judgement the HC also said biological children given in adoption to other persons, cannot be disregarded from the number of biological children of the candidate.” 📣 Express Explained is now on Telegram. Click here to join our channel (@ieexplained) and stay updated with the latest
Does the policy apply to sitting corporators contesting again?
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Yes. If their third biological child is born during the course of their tenure, it is a ground for disqualification from the post.
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