Population populism: UP draft population bill fails tests of necessity, intrusiveness

The proposed law will lead to more abortions and adverse sex ratio at birth

By Faizan Mustafa
Published: Friday 23 July 2021
Population populism: UP draft population bill fails test of necessity, intrusiveness. Photo: Getty images

The law proposed in Uttar Pradesh bill on two-child policy is based on two assumptions: There is population explosion in the state and the dated Malthusian theory of “too many people, too few resources”. 

The UP Law Commission that drafted the bill without being asked either by the state government or constitutional courts unfortunately seems to be ignorant of the current developments in the demographic studies. 

Spacing and informed consents have emerged as far more effective methods of population control in place of permanent sterilisation. In any case, as per the 2016-17 data, we should be ashamed to have 1:52 male-female ratio in sterilisation. 

The proposed law will lead to more abortions and adverse sex ratio at birth. It will also lead to more divorces or abandonment of women and children so that parents remain eligible to contest elections.

Moreover, non-inclusion of assembly and parliamentary elections makes the classification suspect and not based on intelligible differentia with rational object to achieve and thus, is incompatible with Article 14 of Constitution.

Experts are convinced that carrot-and-stick policies do not help in controlling population explosion as incentives / disincentives do not have much relevance for the lower strata of population. 

We do not recognize our women as citizens in their own right with their distinctive individuality due to our regressive and patriarchal ideology. We treat them as passive reproductive agents. 

The bill will have the effect of denying women their right to personal liberty under Article 21. UP has already undermined their agency by denying them the right to choose their spouses through love jihad laws and this bill now tries to control even their reproductive choices. 

The reference in Section 8 of the bill to ‘whoever procreates’ clearly applies only to women. 

Are we not going to create obstacles in the way of our women in getting elected to the local bodies as there is reservation for them in such bodies? They will no longer be able to compete for public employments.

The bill is in the teeth of National Population Policy, 2000 that was approved by the National Democratic Alliance government led by Atal Bihari Vajpai. The latter focused on much more relevant socio-cultural factors such as age at marriage, age at birth, girl education, maternal and child health and above all, voluntary and informed consent, instead of coercive methods.

Being signatory to the International Covenant on Civil and Political Rights (ICCPR), India has to abide by the international norms on population control. 

The Human Rights Committee of the United Nations has categorically mandated that state parties to ICCPR cannot adopt policies that are compulsory, coercive or discriminatory. 

Even the Narendra Modi government, in an affidavit filed in the Supreme Court December, 2020, had admitted ‘the international experience shows that any coercion to have a certain number of children is counter-productive and leads to demographic distortions’. 

Clearly, the Adityanath government’s move has some electoral dividends in mind rather than population control. In any case, UP, too, has shown signs of decline in the fertility rates and 2021-22 census may show it reaching the desired replacement rate.

The commission, strangely, has demonstrated its lack of knowledge of even latest pronouncements of the Supreme Court. It is true that the apex court’s controversial judgment in Javed versus State of Haryana (2003) had upheld a similar law of Haryana, but much water has passed since then. 

Rejecting the argument of reproductive autonomy, the Supreme Court had observed that the ‘lofty ideals of social and economic justice, advancement of nation as a whole and the philosophy of distributive justice cannot be given a go-by in the name of undue stress on fundamental rights and individual liberty’.

This was an erroneous observation that was not in tune even in 2003 with the law laid down by the larger benches of the apex court. In any case, after the KS Puttuswamy judgment (2017), right to privacy has now been held to be the fundamental right of all people and therefore Javed’s decision has been overruled sub-silentio.

Personal autonomy of each person recognised by the court does include rights in respect of one’s body.

Today, every law that violates fundamental rights has to satisfy the triple test of compelling state interest, proportionality, and it being least intrusive. The UP bill fails these tests because in view of falling fertility rates, there is no need for such a law. 

In terms of proportionality, too, it goes too far and is disproportionate in creating disincentives, some of which in themselves violate Article 21. 

Finally, in the presence of more proven and fundamental rights compatible methods available to control population, the UP bill fails the test of least intrusiveness as well. 

This is the first in a series of stories on Uttar Pradesh and Assam's draft population bill. Read the second part here

Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth

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