An unconstitutional draft population control Bill that must go

Human development and human rights are interconnected to each other. The population laws and policies must be consistent with it and must promote both human development and human rights. Population control involves culling, translocation, or manipulation of reproductive capability. It curtails reproductive rights by the interference of the State in deciding the number of children.

Recently, the Uttar Pradesh Law Commission released a draft of “The Uttar Pradesh Population (Control, stabilization, and welfare) Bill 2021” (hereafter referred to as ‘the Bill’) is an attack on the rights of the marginalized groups (women, disabled and minority), privacy, with no rationale and manifestly vague. It is antithetical to the basic structure of the Constitution of India while also being manifestly arbitrary and discriminatory and infringing the fundamental right to privacy and reproductive rights. The Bill puts unconstitutional fetters on a person’s fundamental reproductive right to have children of their own choice without the interference of the State. The Bill renders the said private choices of an individual at the mercy of the Government’s permission, annihilating the individual’s liberty to choose in matters which are entirely private and in the exclusive domain of the individual.

Incentives and disincentives

The Bill (sections 4, 5, 6, and 7) provides unprecedented allurements in the name of incentives to the public servants as well as the commoners in the name of two-child norms. These incentives are unreasonable, arbitrary, discriminatory, and unconstitutional. For instance, Section 5 (a) provides four additional increments in the service other than the increments in the regular course of service. Also, Section 5 (C) of the Bill states that preference for a single child in admission in all educational institutions, including but not limited to the Indian Institute of Management, All India Institute of Medical Science, etc, is extremely discriminatory.

The disincentives (Section 8,9,10, 11, and 12) under the Bill debar an individual from government-sponsored welfare schemes, government jobs and promotions, local election, and limits the government ration cards up to four. It also makes the children ineligible to receive any kind of government subsidy. Ironically, in India where starvation is one of the major concerns, the Bill in the name of disincentives leads to inhumane conditions. It violates Article 14 of the Constitution of India as it is manifestly arbitrary which means something done by the legislature capriciously, irrationally, and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be arbitrary.

Further, the Bill is vague with no rationale. The Supreme Court of India in Kartar Singh v. State of Punjab, (1994), an enactment can be declared as void on the grounds of vagueness. It also violates article 39 (f) of the Constitution which states that the State shall, in particular, direct its policies towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The Bill punish the third child and deprived him of his rights especially in a country where women have no say in the matter of childbearing.

Violation of the rights of marginalized groups

Historically, reproductive health-related laws and policies in India have failed to take a women’s rights-based approach, instead of focusing on demographic targets, such as population control, while also implicitly or explicitly undermining women’s reproductive autonomy through discriminatory provisions. The Supreme Court of India in Suchita Srivastava v Chandigarh Administration (2009), held that reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children; and that these rights form part of a woman’s right to privacy, dignity, and bodily integrity. Suchita Srivastava was the first case where the Supreme Court used the framework of reproductive rights to recognize the right of reproductive choice by stating “There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India.”

The Supreme Court of India in the Puttaswamy judgment (2012) specifically recognized the constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution. Also, the declaration of the 1968 United Nations Teheran International Conference on Human Rights states “Parents have a basic human right to determine freely and responsibly the number and spacing of their children” and the “right to adequate education and information in this respect.” The Bill primarily violates the reproductive right of a woman which is being protected under the Constitution of India.

The Bill is extremely discriminatory and derogatory to the agency of disabled persons and children (Section 15), the manner in which this section has been drafted showcases that, only if a child is disabled can the couple have another child without contravening the act. Thus diminishing and belittling the existence of disabled children. Language such as this, especially when written in the law, will perpetuate and aggravate the discrimination faced by disabled persons, not just by society, but also by their parents and family.

The Bill contravenes the minority rights which are being protected under Article 25 of the Constitution of India which has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. The Bill attacks personal laws viz a viz Muslims (Section 18), by limiting the through various illustrations the number of children born out of the polygamous marriage should be not more than two. For instance, if an individual has four wives, he has to decide from which one or two, he will have children. These illustrations vehemently deny the rights of the Muslim women of their reproductive rights provided under the Constitution of India.

Attack on privacy

The very idea of searching marital bedrooms for contraception is repulsive to the notions of privacy surrounding the marriage relationship. Privacy represents the core of the human personality and recognizes the ability of each individual to make choices and to take decisions governing matters intimate and personal. The Supreme Court in Puttaswamy judgment (2012) held that dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty, and freedom which the Constitution has recognized. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value that straddles across the spectrum of fundamental rights and protects the individual a zone of choice and self-determination. The Bill negates the right to privacy which is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution.

Also, the freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind.

Limitation on adoption

The Bill, (Section 14) makes a blow on the adoption of the children by restricting the adoption of children to a limit of two. It states through illustration that a family who can provide care and protection to more than two children will not have access to any government schemes if they adopt more than two children. The Bill fails to address the current situation of the country where many children have lost their parents amid the pandemic. They require care and protection but the Bill massively defeats the rights of the children under the Constitution of India as well as the international treaties and conventions. There is no rationale about limiting the adoption will control the population.
Illegal sex determination and unsafe abortions.

The Bill having one major concern of unsafe termination of pregnancy violating the reproductive right of the women. The Indian patriarch society with such unprecedented allurements by the government will lead to one male child. The desire for the male child will lead to illegal sex selection and unsafe abortion. It can be well seen in China where several years into the one-child regime. China realized that couples were opting for sex selection during pregnancy and aborting if they discovered that the fetus was female. So, the one-child policy was relaxed, and couples having a daughter as their first child was allowed to have a second child. Similarly, in India legislation like this Bill opens a hornet’s nest of violence, abuse, and even unsafe abortion.

India being a signatory to numerous international conventions, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); and the Convention on the Rights of the Child (CRC), all of which recognize reproductive rights, should be incorporated in the municipal law. However, the Bill is contradictory to them. Further, the judiciary has established that the government has a constitutional obligation to respect international law and treaty obligations.

Also, India is a country where birth control methods and discourse around it are taboo. There have been instances where reproductive rights are seen through the lens of tradition and cultural norms. The rise in the population is merely because of illiteracy and poor health care facilities. The State has massively failed in creating awareness on the protective measures and the importance of reproductive health. There should be control on child marriages which is still prevalent in the country and rather amid pandemic, there have been reports of rising in the statistics of child marriage.

It can be concluded that the Bill does not have a constitutional validity, it’s indeed a mockery of human rights as well as the fundamental rights provided by the Constitution of India as well as the international treaties and conventions. It is highly patriarchal in nature with the state limiting the reproductive rights of women which have been guaranteed under Article 21. The Bill is drafted haphazardly with only political intent missing legal sanctity.

Fazal Abdali is the director of Refugee Rights Initiative.