By Anubhav Kumar

Economic development of a country and its population have a controversial relationship with each other, viewed differently by various economists. While some fear the growth may affect negatively, others consider it as a potential workforce. The Malthusian ‘fears’ of overpopulation, sans any scientific evidence, historically have been the major force leading governments to take coercive action such as adoption of ‘one child policy’ or force sterilisation. 

This sentiment also seems to be the motivation behind the recent Uttar Pradesh Population (Control, Stabilization and Welfare) Draft Bill 2021 where two child “norm” is referred to as necessary due to limited “ecological” and “economic” resources in the state of Uttar Pradesh. Ever since the draft has been made public, inviting comments, it has received sharply divided opinions on its need, current form, legality, implementation, and various other factors such as its potential to increase imbalance in different communities.

The draft ‘rag-bag’ bill aims to incentivise and penalise “residents” of the state in order to implement the two-child norm. Some of them include additional increment to public servants, additional subsidy on land purchase, soft loans, maternity and paternity leave upto 12 months on voluntary sterilisation after two children. In case the couple undergoes sterilisation after one child, additional two increments, free education of child to upto graduation level and medical facilities etc. is provided for in the draft. It also bars people who do not follow the two-child norm, after the commencement of act, from holding government positions or promotion, limits the number of ration cards and restricts people from contesting panchayat elections. This bill, which is on surface a combination of coercion and incentives has already begun to face serious scrutiny, social and legal as to whether it infringes any fundamental right or if it is backed by any material evidence and stands on sound policy, in addition to political concerns on its sweet timing of introduction.

At this point it is important to note that India’s obsession with the two child norm is not recent and in the past there have been numerous attempts via PILs in courts and private member bills, as recently in February 2020, advocating constitutional amendment to incorporate the two child policy. 

However patently neither the previous attempts nor the current draft bill, according to demographers, is backed by scientific evidence. While it is true that the ‘absolute population’ of the state of Uttar Pradesh is huge, the ‘rate of population’ is already falling down. 

According to the National Family Health Survey (NFHS), in India there is a steep decline in the rate at which population is growing. As per NFHS4, currently India’s total fertility rate is 2.2 which is less than from 2.7 in 2005 and 3.4 in NFHS1. It should also be noticed that ever since India started to document the fertility rate with NFHS, it has seen a constant decline in her “Total Fertility Rate”. Hence experts believe that population is already slowing down, and these coercive measures do not serve any other purpose which currently is not achieved.

On constitutional touchstone, there seems to be more problems than solutions that the bill aims to offer. The bill primarily appears to be  an attack on “reproductive autonomy” of a woman in a marriage, including polygamous marriage (if permitted by personal law) where her choices are placed subservient to the benefits which her husband maybe entitled to, affecting her right to procreate. 

Interestingly, although the right to Procreate is not a declared fundamental right but in the case of  Jasvir Singh v. State  of Punjab, denial to procreate was held to be violative of article 21. In a progressive judgement of Suchitra Srivastava v. Chandigarh Administration (2009), the court recognized woman’s reproductive autonomy and said “a woman’s freedom to make reproductive decision is an integral facet of right to personal liberty guaranteed under article 21 and it is important to recognise the reproductive choices that can be exercised to procreate as well as abstain from procreating”. 

This also forms an essential element of right to privacy recognised unanimously by the nine Judge bench in the case of  K S Puttaswamy v. Union of India. Justice Chandrachud while extensively dealing with “reproductive autonomy” said, “Right to privacy partakes different connotations which includes liberty over personal choice  related to reproduction including reproductive autonomy.”

In all possibilities, the bill if made into law in its current form and challenged before the court may face hurdles in passing the legal muster. However, the state might find its defense in the case of Javed v. State of Haryana (2003) where the Supreme Court upheld the law which placed a bar on people from contesting local body elections if they have more than two children considering it as “compelling state interest”. 

While it is true that after the declaration of right to privacy as a fundamental right in Puttaswamy, the judgment of Javed today seems to be bad in law. However, the three step “proportionality test” devised in Puttaswamy to restrict the right to privacy should not be brushed off which includes the requirement of “compelling state interest” in curbing the right. With a monumental change in constitutional jurisprudence and scientific evidence showing no causal relation in growth of population and economic development, it seems very unlikely to prove a compelling state interest in this case.

Apart from these issues there are some pressing concerns on increased illegal abortion, female foeticide, and deserted children which the draft bill has seems to have missed on. With so many legal anomalies and lack of scientific evidences, the bill is nothing but coercive clamping of fundamental rights of multiple stakeholders and might fail to stand the constitutional scrutiny in its current form.

(Anubhav is Co-founder, The Analysis and LLM student in Constitutional Law at Maharashtra National Law University, Aurangabad. He tweets at @iam_anubhav)

The Analysis (TA) is a research and communication group | Analyzing India’s legal, policy and political affairs. Write to us at contact@theanalysis.org.in