Column | Population Control Law, Its Necessity, And Legal Challenges

On the occasion of world population day, the debate around the uncontrolled population growth of the country was at the epicentre of public discourse. The proponents demand a strict population control bill wherein the punishment for bearing more than two children would be disenfranchisement and ineligibility for a government job, contesting elections, or purchasing a new property in the country. In contrast, the antagonists are optimistic about the various awareness campaigns carried amongst the masses, increasing literacy among the common citizenry, and dwindling the total fertility rate (TFR) in the country.

With respect to the issue described above, it is also germane to mention the last session of the Parliament wherein the matter was intensively brought up and debated with MP Rakesh Sinha introducing a private member bill to check population growth. Unfortunately, it was withdrawn as it did not get the desired support from the government.

In the light of this pertinent discussion, we would explore the historical perspective, the issues involved and the constitutional and legal validity of any such proposed Act.

Background

The clamor to pass a stringent population control act is not a novel one and has been at the centre stage as a burning issue for four decades now. After independence, as many as 36 private members' bills for population control have been introduced in the Parliament.

Unlike the current ordeal of partisan attitude in such discussions, the population control bill laid down on the floor of the house before has found representations from almost all the major national and regional parties. To get a glimpse of such rare moments when the members of the house have risen above the party lines in the national interest, the party-wise break-ups of the members who moved such bills are - Congress - 15, BJP - 9, TDP - 5, AIADMK - 2, TMC - 1, RSP (Revolutionary Socialist Party) - 1, SP - 1, MNS – 1, and RJD – 1.

But, unfortunately, despite its presentation 36 times, dialogue and the discussion remained a distant hope.

However, for the first time, such a bill was debated when it got introduced by Rakesh Sinha in the last session of the Parliament seeking the enforcement of the two-child norm by giving incentives to those who adopt the small family practice, and penalties for those contravening it.

Interestingly, in 1992, during Narasimha Rao's government, the then Health and Family Welfare Minister, Late M.L. Fotedar, introduced the 79th Constitutional amendment bill to make the two-child policy an eligibility criterion to contest Lok Sabha and assembly elections. It was tabled in the Rajya Sabha but the discussion could not take place as Fotedar resigned from the government as well as from the Congress party after the demolition of the Babri mosque. The bill is still pending and has not been discussed hitherto.

Lack of consensus on such a significant issue shows apathy and evasiveness amongst the political class who are merely driven by their vote banks, a motivation that far supersedes their concern with the national interest. However, the country got a ray of hope when Hon'ble Prime Minister, Narendra Modi, flagged up the monstrous issue of population explosion from the ramparts of Red Fort during his Independence Day speech in the year 2019.

This has indeed paved the way for enacting a law to check the exponential growth of the population, which is eating into the country's varied yet limited resources. If the aforesaid task is not undertaken at the earliest, days are not far when India would become a perfect exemplar of Malthusian Theory.

Robert Malthus, an English expert on political economy and demography, propounded that population grows in geometric progression whereas the food supply grows in arithmetic progression. Therefore, in all probability, such disequilibrium will destabilize the country. India is in seventh place in terms of area whereas second in terms of population, and if the population continues to grow at such a rapid pace as in the current times, then it will inevitably overtake China next year.

A country of meagre 2% of the world area is housing a whopping 17.7% of the world population whereas China having an almost equal population has more than 6% of the world area. Therefore, it is axiomatic to bring such laws with stern punitive measures to curb the rate of population growth in the country.

Importantly, it may be noted that a PIL seeking framing of the guidelines for the two-child policy was filed on Mar 09, 2018, but the Hon'ble Supreme Court of India refused to accept the petition by calling it a legislative issue.

Legal Issues Involved

The most pertinent of all questions that address the root cause of the issue is whether or not the government can pass such a law to check the population explosion. The answer is an emphatic yes. The government has the power to pass the legislation on population control and family planning as per item 20A in the concurrent list of the 7th Schedule of the Constitution of India. This was added through the 42nd Constitutional Amendment in 1976, and was rendered applicable from 1st January, 1977.

On 22nd February, 2000, the then Prime Minister, Atal Bihari Vajpayee, constituted the National Commission to review the working of the Constitution, headed by Justice Venkatchalliah. After two years of in-depth study, a report of 1,979 pages was presented to the then Minister of Law and Justice, Sh. Arun Jaitley, on 31st March 2002. In this report, the commission put forth a proposal for a provision of small families for the purpose of population control. However, the report was never tabled in the Parliament.

Government still relies on the National Population Policy, 2000 which is second such policy. The first national population policy was announced in 1976 wherein the nuptial age of boys and girls was increased to 21 and 18 years respectively. But, it is axiomatic from the statics that any such efforts sans de rigueur mandatory provision is carte blanche for the violators.

Sadly, the few but thorough discussions on the urgent need to introduce the population control bill are met with several roadblocks such as the complex issues of constitutional and legal importance. It is relevant to deal with such challenges one by one.

• Firstly, the population control act may lead to unsafe and sex-selective abortion, in the want of a male child. It is difficult to accept such concern which is premised upon an argument which is illegal as the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003, commonly called PC-PNDT Act, makes it illegal to determine the sex of the unborn child or even use sex-selection technologies. At best, this argument may hold water in the case of the one-child policy but when there is already an option to go for another child then no question of resorting to any illegal technique occurs. In contrast, according to a study by Lancet, 15.6 million abortions took place in India in 2015. Although the law has not been implemented yet, the menace of an ever-increasing abortion rate still continues to afflict Indian society in grave ways.
• Secondly, in case of non-production of a male child, a man may divorce his wife. Such argument is axiomatic of misandry. Filing for and getting a divorce is a cumbersome process that requires a proper legal procedure. Non-production of a boy cannot be a ground to file a divorce petition. Therefore, no person can approach the Court seeking divorce on this ground.
• Thirdly, due to the ineligibility for contesting elections, candidates may give up their children for adoption to contest them. Such an argument is completely out of context. Had that been the situation, this norm would have been the order of the day in the states like Rajasthan, Andhra Pradesh, Madhya Pradesh, Haryana, and Orissa where two-child norm is mandatory to contest local bodies elections. The rule has been implemented successfully and no adverse effect has been reported.
• Fourthly, such an Act/rule may be counterproductive for the SC/ST, weaker sections and women. This contention also falls short to satisfy the logic. It is germane to mention that proper arrangements through various welfare schemes of the government for their upliftment and empowerment are already undergoing. There are provisions for the reservation of seats for SC/ST and women in local bodies elections, therefore, no other person except the one who belongs to the same category and fulfilling the criteria will be benefitted after the passage of this rule. Calling this law anti-Dalit or anti-women is completely misplaced and inappropriate, only an attempt to thwart the progress of the nation.
• Fifthly, what is the road ahead in the case of two-child with disabilities? Foremost, an exception cannot be a general rule. Further, making such an argument itself is discriminatory and a law-abiding egalitarian society would not accept it. Giving any window for the third child in such cases would amount to inequality. This will send a wrong message of not treating the person with disability at par with a normal person. Such an argument which predicates upon the pillars of inequality ought to be rejected at the very threshold.
• Sixthly, the disenfranchisement as punishment would be a violation of Art. 21 and Art. 19(1)(a). It is pertinent to mention here that many democratic countries have a similar provision of disenfranchisement in other cases. For instance, various states of the USA, such as California and Virginia, have a rule of disenfranchisement for the convict of felony offences. As of 2020, 5.1 million Americans are prohibited from voting and that does not imply that they are confined in jails. Around 75% of them live in communities after getting parole and other remedies. The number of such convicts were 1.17 million in 1976 which went to 5.1 million in the 2020 US Presidential election. Exception to Section 2 of 14th amendment which prohibits such convict from voting was challenged before US Supreme Court in Richardson Vs. Ramirez, 418 US 24 (1974). US Supreme Court upheld the validity of California law, which was earlier declared unconstitutional by California Supreme Court. US Supreme Court delineated that typically, in voting rights cases, states must show that the voting restriction is necessary to a "compelling state interest," and is the least restrictive means of achieving the state's objective. Likewise, in India's case too, when the country is on the verge of inevitable civil war, due to its increasing population, density is increasing by leaps and bounds leading to certain haywire.
• Seventhly, it is often seen that whenever parliamentarians put up questions related to population control, the government always refers to ICPD (International Conference for Population and Development), stating that India is bound by the rules and, therefore, to bring a legislation for population control does not seem feasible. In 2015, MPs J.C. Reddy and Parvesh Sahib Singh had questioned the government with respect to population control and the reply mentioned the watertight report of the ICPD. Similarly, identical reasons were given to questions asked by MPs Suresh Doddalalli and Uday Pratap Singh in the year 2017. It is an established position that in the case of a conflict between the two, municipal law would always take precedence over international law. Since the treaty of Westphalia (1648), it is the well-accepted principle of international law that every sovereign country has the right to protect its unity and integrity and ensure its security. Further, even the manifesto of ICPD allows any country to adopt processes and laws for any kind of population control and family planning measures for its citizens as per applicable legal provisions and culture, and there is no restriction in place on the freedom of the countries to do so. Neither can any such restriction be imposed on any sovereign country.
• Eighthly, any such rule is barred by Art. 22 of the 1969 declaration on Social Progress & Development adopted by UNGA in Resolution 2542 which lays down that couples have the right to choose the number of children freely and responsibly. This is also a settled principle of law that personal interest will always make way for the national interest especially the security, unity, and integrity of the nation. If the rights of any individual go against the national interest, reasonable restrictions can be imposed. After passing of any such an Act, the couples will have the right to choose the number of kids only till two children, and not thereafter. It is not the case that the state/government is interfering in the personal affairs of citizens for the very first time. Over the past, the government through various rules and Acts has in fact regulated various choices of the individual which are quite personal in nature. For instance, the number of spouses (keeping more than one spouse, bigamy, is an offence under sec 494 of IPC), adultery (sexual choice), divorce, food choice (by bringing anti-cow slaughter act), and dress code in police and armed forces, property (land holding limit under land reform act), The Muslim Women (Protection of Rights on Marriage) Act, 2019, to check instant triple talaq etc.
• Ninthly, the antagonists of such a proposed law point out that in case of any restriction on jobs, the Act would be violative of Art. 16 which prescribes equal opportunity in the matters of public employment. It is submitted herein that the increasing population is forcing millions to become unemployed as the country has a dearth of resources to accommodate such a huge number. Therefore, it is an attempt to give work to each hand. The population of India has risen by 42 crores in the past 18 years which means a rise of over 2 crores a year. Since 1974, the government has spent around Rs 2.25 lakh crore on population control measures and family planning programmes. If the sum of money at the current value of the rupee will be gauged, it amounts to over Rs 20 lakh crore. Had the increase in population not been at such a high rate, this amount could have been utilised in nation-building activities and for creating employment for citizens.
• Tenthly, the sympathetic issue of the divorced citizen who has a child with their former partner is being argued to give it an emotional colour. To address such issues and to make coherence with the existing laws, an amendment in the adoption provisions of personal laws can be made. Save in exceptional circumstances, in case of divorce, each partner will get custody of a maximum of one child only. If the logic given by the opponent is accepted then the two-child policy may even lead to lesser divorce cases.
• Eleventhly, it is also very important to destroy the myth of decadal growth, replacement level, and total fertility rate (TFR) which are the main argument against the passage of any such bill. As per the data on Total Fertility Rate (TFR), the national average is maintained in 174 districts, while the TFR is 4 in 72 districts. The marital fertility rate (MFR) in Bihar is more than 6%, whereas the overall rate in India is 4.9%. In Andhra Pradesh, the MFR is 3.4%, in Kerala 5.1%, in Tamil Nadu 3.7%, and in Telangana 3.6%. Average is always delusionary. As per the critics, Andhra Pradesh (1.5) and Kerala (1.6) have achieved the replacement level, whereas MFR is 3.4% and 5.1% respectively.

Conclusion

People are being clearly misled in the name of demographic dividend. Many countries need cheap labour, including Pakistan, Bangladesh, and India, so they try to mislead and drive the discourse to the advantage of demographic dividend. They talk about replacement level, which is nothing but an eyewash. An increasing population cannot bring any positive change in the country rather it would lead to unprecedented chaos and an increase in crimes.

As per the proponents of this Act, some incentives like Housing Subsidies, Soft Loans for construction/purchase of a house, tax rebates, free health care facilities, out-of-turn promotion, two extra increments, paternity leave (6 months) can be introduced in the bill whereas in case of violation, serious punishments like disenfranchisement, snatching property rights (for purchase of new properties), higher house tax, barring from accessing government-sponsored welfare schemes and from contesting local bodies elections, restriction in government jobs, limited access to food rations (will be provided only to the legal child) can be imposed.

Unfortunately, any debate pertaining to population growth has been given a religious colour whereas this is the need of the hour, a truly rational debate and is definitely in the national interest. Such a law is clearly not against any religion.

Critics, who are stirring up the sentiments of Muslims whenever such an Act is discussed, mischievously concealed the fact that the country having the highest Muslim population in the world, Indonesia, has successfully adopted family planning measures, and no question of it being anti-Islamic has ever come up. Thus, the only requirement is the presence of a strong political willpower.

Various state governments have passed the Act on similar lines, and the time has come to pass a central law to curb the menace of overpopulation. Until the grisly growth of population is checked, no government can meet the demands of its citizens in an efficient manner. Undoubtedly, there will be a perpetual scarcity of resources, which goes against the very ethos of the sustainable development agenda.

Thus, India is in dire need of a population control law. Despite the adversities and challenges, one may still be optimistic and have reasonable hopes from the present government owing to its clear majority in Parliament. They can indeed take a bold step to protect the nation from the menace, as they had done previously inter alia abrogation of Art 370 and passing of CAA. One may even hope for better sense to prevail even amongst the opposition parties, and that the much-needed law eventually sees the light of the day.

The Author is an Advocate, Supreme Court of India & Delhi High Court

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]