By Akshay Lodhi and Rainy Jain

October 23, 2021

India stands second in the world population index with the current population of 1.39 billion and it is increasing with every passing second. The population growth rate in India is twice the population growth rate of China and India is expected to replace China in the world population index in next 2-3 years. When compared to other countries, population density in India per square km is on an average 3 times higher than other countries, except in the case of Bangladesh.

India is a country still attached to its root values and customs and hence Indians tend to think that a bigger family is a blessing. It is perceived that more number of family members is directly proportional to more income to the family, which is a questionable approach when the nation as a whole is developing and does not have sufficient resources to distribute to each and every individual.

On the other hand, more number of people in a family means more mouths to feed even as the resources are scarce. The impact of rapid population growth with limited resources is one of the reasons for poverty, unemployment, additional burden on health care facilities, illiteracy and increased crime rates.

In the light of these issues faced by the nation, various efforts have been made by the Legislature after independence to control the population growth. The National Population Policy 1976 was proposed to look into the aspect of increased population growth as a reason for increase in poverty, burden on health care infrastructure, etc. This policy placed emphasis on medical education to help the rural population. However, this policy was neither discussed nor adopted. Later, the National Health Policy 1983 was formulated for the purpose of spreading awareness among the common people about the need of population stabilization through improved health care services. In the wake of National Health Policy 1983, the National Population Policy 2000 (NPP) was formulated with an objective to address the concerns about the usage of contraceptive medicines and infrastructure for child health care with the long term goal to have a stable population but these efforts were in vain because of higher illiteracy rate in a majority of the states.

The 84th Constitutional Amendment 2002, followed the principle of National Population Policy by taking steps to freeze the allocation of seats in the Lok Sabha to a state which failed to pursue the agendas of population stabilization. Later, the Ministry of Health and Family Welfare setup the National Population Stabilization Fund in 2005, to review, monitor and achieve population stabilization. This program emphasized on the primary health care of women including the distribution of free contraceptive medicines.

In the year 2017, the Assam Government introduced the Population & Women Empowerment Policy for population stabilization in lieu of demographic development of the state. However, the same did not came into force. In the year 2019, the Population Regulation Bill was again introduced by a member of the Rajya Sabha, however, the same turned out to be a failure. In the year 2020, Anil Desai, member of the Rajya Sabha, introduced a proposal to amend Article 47A of the Indian Constitution in favour of population control without any success.

Recently, the UP Government proposed the Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021, for the purpose of population control and stabilization. This bill emphasizes mainly on the implementation of policies which will incentivize the target demography to adopt the two-child policy of the government in order to avail and enjoy government-sponsored benefits. Further, in case of failure to adopt the two-child policy by the target demography, there are no benefits available to these people and these people will be disincentivized, says the Bill.  The current bill can be taken as an extension of the Population Regulation Bill 2019, with the only changes being increase in both incentives and disincentives to the people who will and will not adopt the policy respectively.

There is no doubt that this bill has certain objectives that are in favour of society including population stability so that equal and sufficient distribution of resources can be achieved. With stabilized population, premium healthcare and better education can availed by society and it is highly probable that crime rates may reduce. Another aspect is socio-economic development of the nation which will help in overall growth of the State.

However, with the implementation of this bill, the chances of sex selective abortion may increase in future as a large number of Indians still prefer a male child over a female child. Further, coercive implementation of this bill will not be fruitful as India’s total fertility rate has fallen from 3.4 children per woman in year 1992-93 to 2.2 children in 2015-16 according to the National Family Health Survey 4 (NFHS 4) and the Total Fertility rate, as projected in current trend, will reduce to 1.8 children per woman in the year 2030. Further, this bill in certain cases prevents individuals from taking part in self governance, even if a candidate has been elected through the people’s mandated.

Now looking into the world perspective,  in certain countries efforts have been made to have more kids such as South Korea, Singapore, Turkey, France etc.These countries have good medical infrastructure and have the lowest birth rate, and are spending billions of dollars on policies that encourage people into having more children as the disparity between the ratio of young and old population is growing by the day and is creating an imbalance. However, it is the opposite in the case of India and it is necessary to take steps towards population stabilization but it is uncertain whether the current version of the bill and implementation of two child policy according to this bill is a bane or a boon in the long run.

With regards to the proposed bill in the State of Uttar Pradesh, its implementation may infringe upon the rights of the people. These rights have been defined under various laws and the same has been recognized by the Constitution of India.

The Right of Self Determination in light of the Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021

The Declaration of Social Progress and Development, proclaimed by the United Nations General Assembly Resolution 2542 of December 1969 begins with “reaffirming faith in human rights and fundamental freedoms and in the principles of peace, of the dignity and worth of the human person, and of social justice under the resolution”. Upon reading Article 22 of the Resolution, it is easy to understand that the common concern of the international community is the development and co-ordinations of policies to strengthen the functions of families as a basic unit of society. Further clause (b) of Article 22 of the resolution puts emphasis on the right to determine freely and responsibly the number of spacing of their children. The International Conference on Human Rights Teheran 1968, under Chapter 3 (VIII), emphasizes that right to self-determinations is a basic human right, which provides decision making autonomy to an individual and the absence of such right amounts to violation of basic Human Rights in International Law Regime.

In case of Indian social structure, the Constitutional Bench of the Hon’ble Supreme Court in case titled as Justice K.S.Puttaswamy(Retd) vs. Union Of India, was of the opinion that“…Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects…”. Furthermore it was also observed that “…The sanctity of marriage, the liberty of procreation, the choice of family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity.” Here intimacy and autonomy includes the right to procreate or to make sexual or reproductive decisions.  Furthermore, in R. Rajagopal vs. State of Tamil Nadu, the Hon’ble Supreme Court, while deciding right to privacy under the ambit of Article 21 of the Constitution of India, opined that privacy interest in autonomy must also be placed in the context of other rights and values. Further, right to privacy also includes right to be let alone which can further be extended to privacy of an individual, his family, marriage, procreation, child bearing and others.

In Justice K.S. Puttaswamy (Retd.) vs. Union of India(Supra), the Hon’ble Supreme Court dwelled into the ambit of Article 21 in the light of “procedure established by law”. The Hon’ble Supreme Court upon analyzing numerous judgments including Maneka Gandhi vs. Union of India (1978) 1 SCC 248; Bachan Singh vs. State of Punjab (1980) 2 SCC 684: (1982)3 SCC 24 and Mithu vs. State of Punjab (1983) 2 SCC 277, analyzed that the ambit of Article 21 not only restricted to the procedure that has been established by law, but put the procedure established by law to the test of fair, just and reasonableness. The application of the test of  fair, just and reasonableness becomes the paramount consideration while determining the substantive procedure established by law laid down by the parliament and if the substantive procedure fails to justify the test of fair, just and reasonableness, the same can be challenged under Article 14 and 21 of the Constitution of India. The application of Article 14 with Article 21 justifies fairness and reasonableness not only in the procedure established by law but also the law enacted by the legislation in its entirety.

Similarly,in the case of Mohd. Arif vs. Supreme Court of India, JusticeRohinton Fali Nariman brought in the observation laid down by Justice Krishna Iyer in Maneka Gandhi vs. Union of India(supra),“…Procedure’ in Article 21 means fair not formal procedure. ‘Law’ is reasonable law, not any enacted piece…’. And later on, Justice Rohinton Fali Nariman was of the opinion that “…the wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty…”

The Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021 (hereinafter “the Bill”), is one such Bill that has been brought in by the State government with the object to control and stabilize the population of the State of Uttar Pradesh. But upon careful perusal of the Bill in the ambit of the test laid down by the Apex Court under Article 21, the bill fails to justify the substantive process established by law as no regulatory authority has been defined in the bill, neither any protective mechanism has been mentioned through which people can seek relief in case of any grievance. Thus, in the light of the rulings of the Apex Court, violation of rights under Article 14 and Article 21 of the Constitution of India can be claimed. It is further to be observed that the bill itself can be challenged on the ground that it does not provide any procedure by which the people can approach the state or any other authority. Therefore, this bill does not survive the test of fair, just and reasonableness laid down in the case of Justice K.S. Puttaswamy (Retd.) vs. Union of India (Supra) and other cases as discussed above.

This Bill also does not adhere to the principle of Reasonable Classification as given under Article 14 of the Constitution. The bill, 2021, creates two separate classes among the citizens of state of Uttar Pradesh-one being the government employees and the second being the non-government employees/self-employed/businessmen/small occupations and others. Now in the given scenario, if this Bill comes into force it may result in forced sterilization of either of the spouses who are government employees so that the incentives given under section 4 of the Bill can be availed, and if the same is not done the government employee will have to bear the consequences in the form of disincentives. On the other hand, there is no procedure or guidelines given in the bill with regard to the application of the bill on non-government employees and other employees. Thus, it is only the government employees or the persons who are appearing for government service/job who will have to go through voluntary sterilization in order to avail the incentives. Therefore, there is intelligible differentia among the class of people created by this bill on the basis of sterilization. And therefore, this bill clearly violates Article 14 of the Constitution.

Further, there is no Reasonable Nexus between the intelligible differentia and the object to be sought by the Bill. It can be seen that the country’s fertility rate has decreased in last two decades. It can also be seen that the rate of sterilization is much lower in U.P as compared to rest of Indian States (18% to 36%). As per research conducted by a researchjournal, the cause of higher fertility rate is lack of education and the families which are not educated enough opt for sterilization instead of using contraceptives. The fertility rate in the state of U.P has decreased drastically from 4.4 to 2.7 children per couple from 2000 to till 2017-18. This paper has also observed that the fertility rate declined because of modern contraceptive methods than due to sterilization. In the absence of any concrete demonstration that population can solely be controlled through sterilization, the bill in itself takes away the constitutional right from the citizen of the state and therefore, the Bill violates Article 14.

Thus, in the light of above-noted judgments it is clear that every individual has the right to privacy which also includes and protects personal intimacy of a person including procreation and child bearing rights. The right under Article 21 cannot be taken away through implementation of two-child policies, nor by way of providing additional subsidies and increment policies, as is the case of Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021.

The major concern that can be seen in implementation of this bill is that, it will also violate the Right to Equality under Article 14 of the Constitution of India as this bill will divide married couples on the basis of the number of marriage one can enter into. A Hindu married couple can only have two children, whereas a Muslim man who can have upto four wives can have eight children from all the wives together and therefore, the ambit of this bill lacks in case of polygamy marriages. Further, this bill under section 18 and 19, determines polygamy marriages and the issue related to the birth of two or more children.However, these sections are not crystal clear upon the aspect of rights of a spouse to procreate. For example, in case of a Muslim man having four wives, if each wife has one child then there is no contravention of section 18 and 19, when looked from the perspective of the wife. Whereas, from the perspective of a husband he has four children, thereforethe husband has violated the objective of the Bill.

This bill will cease the right of a future spouse to procreate, if he/she marries a divorced/widow/widower already having two children. Thus, in the light of pre-existing rights, it is highly impossible to support the social structure of democracy when any bill may create social imbalance among the community of people on one hand and taking away the fundamental rights enshrined under Article 14 and 21 on the other hand.

Conclusion

The Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021, comes with an objective of better socio-economic structure of society in which families are in a position to avail better medical facilities and a healthy lifestyle. This bill further provides incentives to those people who are ready to accept the two child policy norms. However, the bill does not instill confidence in the minds of people as to how this bill will not infringe upon decisional autonomy of the public to decide how many kids they want and enforces the two-child policy upon them.

Furthermore, it can be observed that the implementation of this bill will clearly result in violation of fundamental rights. This bill is a better version of all the previous bills that have been placed before Parliament.However,this bill still fails to address the question about how society is benefited from this bill without violating the constitutional mandate under Articles 14 and 21.

Akshay Lodhi is Advocate, Delhi High Court.

Rainy Jain is an Associate at Samyag Legal, Jaipur.

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