By: Aditya Maheshwari & Deesha Reshmi
The state law commission of Uttar Pradesh has released a proposed draft bill on The Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021 (hereinafter ‘proposed bill’). It approaches population control from the angle of coercive force instead of consent. It mandates the two-child policy on its citizens and punishes them with disincentives in the form of disqualification from welfare schemes and subsidies, contesting elections in the local body, applying and getting promotion in government jobs, and the limitation in ration card units up to four members. Equipping the population with education, healthcare, and fulfilling their contraceptive needs is treating them with dignity and as individuals who are capable of making a choice, whereas forcing it on people without fundamentally changing their living conditions is a top-down approach and undemocratic.
The two-child policy has been unsuccessfully applied in twelve Indian states with four of them retracting it. Despite this, the government of Uttar Pradesh has sought to adopt this regressive law which opens a Pandora’s Box of ill effects on its vulnerable communities. It is an attempt by the government to shift the responsibilities of a welfare state onto the citizen and legitimise inequality. In this article, the authors explore the various provisions of the proposed bill and analyse it from constitutional and sociological perspectives.
SYSTEMATIC VICTIMISATION OF THE VULNERABLE
The proposed bill seems to be counterintuitive in nature because of the impact that it has on the marginalised communities. Its implications run in contradiction with the 73rd amendment to the Indian Constitution which introduced the third tier of governance in India, the local self-government bodies. The objective of the amendment was to increase the “representation of weaker sections like Scheduled Castes, Scheduled Tribes, and women.” Whereas studies have indicated that the two-child policy leads to disproportionate disqualifications among these vulnerable communities. This is primarily due to three factors—firstly, the two-child policy presupposes that if the citizens wanted to adopt contraceptive measures, they would have already done so. What the bill fails to take into consideration is that there is a dominant section of the Indian society which is not able to access or afford contraceptives. The National Health Family Survey shows that 18.1% of the married women in Uttar Pradesh have unmet needs when it comes to family planning. This is exacerbated when it comes to rural areas with women not able to acquire contraceptives because of stigma and lack of public transportation, time, and privacy.
Secondly, there is a dearth of education and awareness of family planning among these groups. Uttar Pradesh has one of the worst literacy rates in India at 56.3%. Moreover, knowledge and usage of contraceptives is as low as 45.5%. The state has only made meagre efforts to educate the non-users with only 12.8% of them having received any advice about family planning. Among the states which had already adopted the norm, there was also a lack of general awareness regarding the provisions of the policy.
Thirdly, there is the occurrence of circumvention of the law and its misuse. Previous studies in the states which have implemented the two-child norm policy have discovered that in order to avoid the disqualifications, wives were divorced or sent away, pregnancies were aborted, and kids were abandoned. Moreover, the norm is known to accentuate existing caste rivalries as it is being used as a political weapon to target the scheduled and backward caste members. A whopping 25% of all the crimes that are committed against the scheduled castes in India occur in Uttar Pradesh, and with the implementation of the bill, the situation is likely to worsen.
Another assumption made by the two-child policy is that the choice of the number of children is independent of the sex of the children. This is not true especially in the light of a strong preference towards male children in India due to social, economic and, religious reasons. Although the bans the determination and disclosure of the sex of the foetus, pre-natal sex selection is rampant in India with 5,90,000 female births prevented by prenatal sex determination in 2020. In the same year, there were 3,60,000 female infanticides. In this scenario, the introduction of the two-child norm policy will mean that the already skewed sex ratio of India will be aggravated like it did in China. When parents have a strong preference to have a male child, and they are restricted to having one or two children only, then they tend to circumvent the law and as a result, the crimes against the girl child increase. It is not reasonable for the state with its already declining sex ratios to implement this policy.
LEGALITY OF TWO-CHILD POLICY IN INDIA
The issue with precedents such as Javed v. State of Haryana, where the disqualification from elections as a result of two-child policy has been upheld, is that reproductive autonomy is placed at a lower pedestal, but after the Puttaswamy and Aadhar Case, it was decided that the reproductive and decisional autonomy cannot be interfered until absolutely necessary. Hence, this case is an instance of a bad precedent set in law.
Article 14 test
In contrast to the traditional notion of assessing a legislation on its facial neutrality, the scope of article 14 has been widened to include an effects-based approach. The principle of effects test was used for the first time in Anuj Garg v. Hotel Association of India in which the court held that “a legislation should not be only assessed on its proposed aims but rather on the implications and the effects. ”In the case of Madhu v. Northern Railway the Delhi High Court held that “law does not operate in a vacuum” and the order passed by the Northern Railways was held to be indirectly discriminatory when it was examined in the “social context” of its operation.
As already highlighted, the proposed bill has a disparate impact on the marginalised sections. When the effects of the bill are analysed in the social context in which the law is sought to be enforced, it fails the test of article 14.
Article 21 test
The recognition of an individual’s right to privacy in the Puttaswamy and Aadhar Case means that an individual has reproductive and decisional autonomy and can make informed choices without being controlled by the State. The proposed bill affects this autonomy of individuals as it casts a chilling effect on their reproductive choices by subjecting them to a disincentives mechanism. Moreover, it does not stand the four-pronged proportionality test used in Puttaswamy. This test allows for a constraint on constitutional rights only when:
- A measure restricting a right must have a legitimate goal (legitimate goal stage).
- It must be a suitable means of furthering this goal (suitability or rationale connection stage).
- There must not be any less restrictive but equally effective alternative (necessity stage).
- The measure must not have a disproportionate impact on the right holder (balancing stage).
Here, with regards to the fourth principle, it must be ensured that the public benefit that the state wants to arrive at is of a value greater than the right being infringed. To understand the idea of reproductive rights, the case of Devika Biswas v. Union of India can be considered. In this case, the undertaken sterilisation can only be described as criminal in nature. The SC reiterated the definition of reproductive rights as “the capability to reproduce and the freedom to make informed, free and responsible decisions.” and that this reproductive right should be “free from any form of coercion.”
With respect to the second principle, the centre has stated that it is firmly committed to the Programme of Action (hereinafter ‘POA’) which was adopted at the International Conference on Population and Development (hereinafter ‘ICPD’) in Cairo. This POA focuses on reproductive autonomy and under this Governments are encouraged to focus most of their efforts towards meeting their population and development objectives through education and voluntary measures rather than schemes involving incentives and disincentives and the same is also reflected in the National Population Policy of India.
The above analysis of the proposed bill reveals that the government has failed the fundamental challenge of planning for its dynamic demography in a socially equitable manner. India’s experience with population control, reflected through the case laws reveals that when the state adopts a coercive policy then the health, safety, and fundamental rights of women are ignored. There is a need to dislodge the targets-based approach from population control and move towards a broad sphere of reproductive health and autonomy. It must be remembered that the high population growth is a symptom of unjust distribution of wealth, illiteracy, and the lack of resources and empowerment. The inadequate performance of Uttar Pradesh in these aspects only reveals the scope of its improvement. It is only when the state adopts a comprehensive and inclusive approach towards family planning, it will see meaningful results not only in terms of reduced fertility rates, but also a general betterment in the standard of living of its populace.
Cite as: Aditya Maheshwari & Deesha Reshmi, ‘The UP-Draft Population Control Bill – An Archetype of Misguided Policy-Making’ (The RMLNLU Law Review Blog, 07 September 2021) <https://rmlnlulawreview.com/2021/09/07/up-population-bill/> date of access