Context

Recently, the government of Uttar Pradesh released a “Population Policy” in which it stated its intention to bring the gross fertility rate in the State down from the existing 2.7 to 2.1 by 2026.

Provisions in the Bill

• This draft law, titled the Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021, seeks to provide a series of incentives to families that adhere to a two-child norm.
• The Bill also intends on disentitling families that breach the norm from benefits and subsidies.
• It promises public servants who undergo sterilisation and adopt a two-child norm several benefits.
•  The draft Bill also contains a list of punishments.
• A person who breaches the two-child norm will be debarred from securing the benefit of any government-sponsored welfare scheme and will be disqualified from applying to any State government job.
• Existing government employees who infringe the rule will be denied the benefit of promotion.
• Transgressing individuals will be prohibited from contesting elections to local authorities and bodies.

Issues with coercive population control policies

1) Counter-productive measure

• Through an affidavit filed in court, the central government argued that “international experience shows that any coercion to have a certain number of children is counter-productive and leads to demographic distortions”. 

2) Against international obligations

• India is committed to its obligations under international law, including the principles contained in the International Conference on Population and Development Programme of Action, 1994.
• Foremost in those principles was a pledge from nations that they would look beyond demographic targets and focus instead on guaranteeing a right to reproductive freedom.

3) Against right to reproductive freedom and privacy

•  In Suchita Srivastava & Anr vs Chandigarh Administration (2009),  the Court found that a woman’s freedom to make reproductive decisions is an integral facet of the right to personal liberty guaranteed by Article 21.
• This ruling was endorsed by the Supreme Court’s nine-judge Bench verdict in K.S. Puttaswamy vs Union of India (2017).
• A reading of the plurality of opinions there shows us that the Constitution sees a person’s autonomy over her body as an extension of the right to privacy.
• A simple reading of U.P.’s draft law will show us that, if enacted, it will grossly impinge on the right to reproductive freedom.
• However, In Javed & Ors vs State of Haryana & Ors (2003), the Court upheld a law that disqualified persons with more than two children from contesting in local body elections.
• But the present UP Bill is far more disproportionate, therefore, the judgment in Javed can no longer be seen as good law.
• The UP government will likely argue that there is no violation of privacy here because any decision on sterilisation would be voluntary.
• But, as we ought to by now know, making welfare conditional is a hallmark of coercion.
• Therefore, the proposed law will fall foul of a proportionality analysis.

4) Negative consequences

• An already skewed sex ratio may be compounded by families aborting a daughter in the hope of having a son with a view to conforming to the two-child norm.
• The law could also lead to a proliferation in sterilisation camps, a practice that the Supreme Court has previously deprecated.
• In Devika Biswas vs Union of India (2016), the Court pointed to how these camps invariably have a disparate impact on minorities and other vulnerable groups.

Way forward

• Experiences from other States in India show us that there are more efficacious and alternative measures available to control the growth of population, including processes aimed at improving public health and access to education.

Conclusion

For one thing, the reasoning of the Bill goes against the Puttaswamy case.  But as rousing as the nine-judge Bench verdict is, its legacy depends on how its findings are applied.

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