The total population of India in 2018 was 1.353 billion. 1 India adds up to 1,000,000 people to its population every 20 days 2 and will probably become the country with highest population by 2024. One of the major causes of the increasing population in the country is the pronatalist approach in the society, i.e., people believe that higher the number of children higher will be the family income and there will be more people to look after them in their old age.This rapid increase in the population leads to a lot of predicaments for the country as a whole,given the limited resources which do not amplify commensurate to the population explosion. It leads to complications such as lack of employment opportunities, deteriorating environment etc. for these reasons it is important to take measures to control the increasing population of the country.
The Government of India has been taking several measures since independence to keep a check on the population explosion in the country, in an endeavor to live upto the constitutional soft mandate to improve public health in the country. 3 It has undertaken measures such as- National family planning program launched in the year 1951, making India the first developing country to propose such a policy measure to control its increasing population 4; report of the National Commission to Review the Working of the Constitution (NCRWC) which recommended insertion of Article 47A in the Constitution of India directing the States to “secure control of population by means of education and implementation of small family norms” 5; Mission ParivarVikas to increase the access to contraceptives as well as family planning services in the 146 districts where the total fertility rate is 3 or more; and 42nd Constitutional (Amendment) Act, 1976 which had put the issue of population control under Concurrent List of Schedule VII of the Constitution, thereby empowering the State as well as Union government to take measures in this respect. 6Consequently, States such as Assam, 7Andhra Pradesh, 8Rajasthan, 9Madhya Pradesh 10 etc. have undertaken certain policy measures to keep a check on the increasing population.
In spite of these measures taken by the governments, the use of contraceptives for population control continues to be a taboo for the masses mainly due to the controversial past of the issue, front runner being the government initiated forced sterilization to control the exploding population during the emergency in year 1976.
While, many attempts have been made in the past to pass a law 11for the purpose of population control by way of introducing private member bills, the same could not be passed in the Parliament. It is the need of the hour that the government uses severe measures for population control. Even more so, given the fact that as majority of the population is stillunaware of the contraceptive measures and approach of the people in the Indian society is unswervingly pronatalist in general. A ray of hope for a legislation has been seen in the private member Bill, namely, the Population Control Bill, 2020 12(hereinafter “Bill”) which has been drafted by Dr. Abhishek Singhvi. The Bill is a combination of incentives and disincentives inclined towards implementation of strict policy measures to control the population. It caters to the need for a uniform law governing the country as a whole, than in fragments divided by State boundaries. This paper intends to give a detailed analysis of the constitutional validity of the Bill in the light of the landmark judgment of the Hon’ble Supreme Court in the case of Javed v. State of Haryana 13 and Articles 14, 21 and 25 of the Constitution.
Keeping in mind the adverse impacts of India’s rapidly increasing population on its restricted natural resourcesDr. Abhishek Singhvi, Senior Advocate and Congress leader, is planning to present the Bill in order to promote a two-child policy for the country. 14 The Bill will be applicable only to the married couples, wherein, the boy is not less than 21 years and the girl is not less than 18 years. 15
The Bill provides for various incentives in order to encourage people to follow the two-child policy:
a.) The contraceptives to be made available at reasonable rates. 16
b.) If a married couple with a single child voluntarily undergoes sterilization, the child shall be able to avail benefits such as- preference for admission in institutes of Higher Education and government jobs; and such other benefits as may be prescribed by the appropriate Government. 17
c.) If a married couple with a single child andliving below the poverty line, voluntarily undergoes sterilization, in addition to the benefits conferred under Section 6, such couple shall also be eligible for payment of a one-time lump sum amount of sixty thousand (if the single child is boy) or one lakh rupees (if the single child is a girl)from the Central Government. 18
d.) Introduction of a compulsory subject with respect to population control in all senior secondary schools in States where the average fertility rate is more than the replacement level of 2.1 children per woman. 19
e.) Constitution of the National Population Stabilization Fund by the Central Government and redistribution of money so collectedto the States and Union Territories that have implemented reforms to control population and have been able to significantly reduce their population growth rate. 20
f.) While recruiting employees, the Central Government shall give preference to candidates having two or less than two living children 21
The Bill provides that in case a married couple has two or more than two children, both the husband and the wife shall be debarred from the following 22:
a.) Contesting in Lok Sabha, State Legislature, and Panchayat elections;
b.) Getting elected to the Rajya Sabha, the State Legislature, and similar elective bodies;
c.) Getting promotion in government services;
d.) Applying to ‘Group A’ jobs 23 under the Central and State Governments;
e.) Receiving any kind of Government subsidy, in case the married couple falls inthe Above Poverty Line category.
Additionally, after one year from the commencement of this Act, all employees of the Central Government shall submit an undertaking in writing to the respective appointing authority that they shall not procreate more than two children. In cases where the employees already have more than two children at the commencement of the Act, they shall submit an undertaking that they shall not procreate any more children. 24
Although the Bill has been framed for the greater good of the society, it might face certain drawbacks, which can be as follows:
a.) Increase in sex selective abortions- The Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (hereinafter “PCPNDT Act”) was enacted with the aim to prevent sex selective abortions in the country.Thereafter, female feticide became difficult anda large section of the population started procreating until they had a son. However, when disincentives provided under the Bill will be imposed on people with more than two children and incentives on the people with two or less children, people will be enticed towards restricting the number of children. This creates an apprehension that the Bill will ultimately lead to increase in illegal act of sex selective abortions 25 under PCPNDT Act, for the reason that a large population of the country still prefers a male child over female child as a girl child is considered to be a burden on the family. Thereby leading to a decreased sex ratio.
b.) Anti-democratic restrictions- The bill imposes restrictions on people with more than two children with respect to contesting elections for Lok Sabha, Rajya Sabha, State legislature and Panchayat.
c.) Violation of individual’s reproductive rights- The law puts certain restrictions with regard to the number of children a person is allowed to procreate, which is violative of the individual’s reproductive rights, which are a part of right to privacy under Article 21 of Constitution of India. 26 Every individual has a decisional autonomy with respect to his intimate personal choices, such as the number of children he wishes to procreate. 27
The main objective of this Bill is to keep a check on the increasing population and promoting the Family Planning Programme. It tends to make a distinction between the people who have more than two children living and the people who have two or less number of living children, for the purpose of conferring certain benefits as well as restrictions.
Article 14 of the Constitution of India ensures that no citizen of India is denied equality before law or equal protection of law by the State within the Indian territory. 28 The Bill provides for unequal treatment to people with more than two living children and people with two or less living children, however, it does not violate Article 14,given the fact that Article carves out an exception rational discrimination and affirmative action. 29
In order to take benefit of the exemption, the classification should be based on the principles of ‘intelligible differentia’ and rational nexus 30 . Arguably, the Bill fulfills both the above conditions as there exists a clear distinction between the two classes; and it is based on the principle of rational nexus 31 as it confers certain benefits on persons with two or less number of children living and provides for certain disadvantages for persons with more than two living children, which ultimately serves the purpose of the Bill,32 i.e., encouraging family planning in India to keep a check on the rapidly increasing population of the country.
Moreover, the guarantee for equality before law does not mean identical applicability of the same rules over all persons in spite of different circumstances, 33i.e., unlike should not be treated on a par 34 because different classes of people need different treatment 35 and treating un-equals as equals 36 would itself result in violation of Article 14. 37
For a law to be violative of Article 14, it needs to be proved that the classification made under it is arbitrary or it does not have any rational nexus to the object sought to be achieved. 38 As long as there is a rational basis for classification and all persons falling under the same class are treated similarly, there does not exist any violation of the equality clause. 39
Article 21 of the Constitution of India is a sacred and cherished right to life and personal liberty, it has an important role to play in every person’s life 40 as it ensures that no person is deprived of his life or personal liberty except for the procedure established by law. 41
On the face of it the Billmight seem to deprive a person of his right to personal libertyas he cannot procreate as many children as he wants because of the disincentives provided by the Bill. It also infringes the newly recognized un-enumerated right to privacy of an individual as choices with respect to reproduction are intimate personal choices and every individual has a decisional autonomy over them. 42 However, the Bill cannot be held to be violative of Article 21 for the reason that the essence of this right is enjoyment of a quality life by people, 43 and the Bill attempts to achieve the same by way of keeping a check on the rapidly increasing population of the country and promoting family planning programme. Moreover, for the Bill to be depriving a person of his personal liberty there must be a direct, overt and tangible act threatening a person’s fullness of life, and not a vague or remote act that threatens the quality of life. 44
Furthermore, it might be contended that a child is deprived of his right to life by way of the restrictions imposed in the Bill.However,application of Article 21 extends only to a “person” and an unborn child in a mother’s womb holds the status of a “foetus” as per the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. 45 An unborn child attains the status of a “person” only after being born, thereby, the right to life under this Article does not extend to an unborn child.
Conclusively, the Bill cannot be said to be violation of right to life, liberty or privacy under Article 21 of the Constitution and thus is valid as per the Constitutional mandates.
It might be contended that the Muslim personal law permits performance of marriage with four women with an objective of procreation and thereby, restrictions imposed by the Bill would be in violation of freedom of religion under Article 25 of the Constitution of India.
Article 25 of the Constitution of India guarantees to every person, the freedom of conscience and the right to freely profess, practice and propagate religion, subject to public order, health, morality and other provisions related to fundamental rights. 46 From a bare reading of this provision it can be interpreted that, the rights conferred under this article are not absolute, but subject to the condition of public health.
Therefore, it cannot be held that the Bill is not violative of the right of Muslims under Article 25 because- firstly, although four marriages are allowed under the Muslim law, it is neither mandatory nor an integral part of the religion; and secondly, the Bill provides disincentives to people with more than two living children with the ultimate object of achieving improved public health. Additionally, a practice which is not an integral part of religion is not given any protection under this Article 47, and thus can be superseded by the Stats in interest of public order. 48
Javed vs. State of Haryana,49 is a landmark judgment of the Supreme Court of India which was delivered by the Court in the year 2003. This judgment is significant with respect to the Bill because herein the Court upheld the constitutionality of Section 175(1)(q)of the Haryana Panchayati Raj Act, 1994, 50 which provides for disqualification of a person with more than two living children from contesting an election for Sarpanch/ Panch/ Gram Panchayat/ member of a Panchayat Samiti or Zila Parishad; and Section 177(1) which provides for disqualification for continuing as member if one is disqualifies under Section 175(1)(q). The said provisions were challenged on the grounds of – a) violation of rights conferred under Article 14; b) violation of the right to life and personal liberty under Article 21; and c) violation of right to freedom of religion guaranteed under Article 25.
The Hon’ble Supreme Court held that,firstly,the classification made by said provisions is based on the principle of intelligible differentia and reasonable nexus as persons with more than two living children can be distinguished from persons with two or less living children. Moreover, the disqualification provided for in these provisions have a rational nexus with respect to the socio-economic objective sought to be achieved, i.e., to foster the Family Planning Programme in the State by way of creating a disincentive for procreating more than two children.
Secondly, the disqualifications prescribed under the Act arenot in contravention of the right to liberty as it is within the limits of reasonability and has been included in the Act for benefit of the nation as a whole.
Lastly, the freedom under article 25 is subject to public order, morality and health. Moreover, the Muslim Law just gives permission to marry four women, it is not mandatory. Conclusively, Section 175(1)(q) and 177(1) of the Act were held to be intra vires the Constitution.
While India prides on having the youngest population in the world, it is partly owed to the population boom in the country. The obvious downside of this population boom is being experienced during the current times when COVID-19 reigns supreme even after nationwide lockdown for almost a month now. The numbers of cases are rapidly increasing as it is difficult to observe precaution and suggested preventive measures like social distancing given the density as high as455 people per square kilometer area. 51COVID-19 is transmitted via airborne droplets, and therefore people must be near someone already infected to catch the virus. The only way to prevent the transmission is social distancing but as a large section of the Indian population lives in crowded cities and small houses with a large number of people in their family, it becomes even strenuous torespect quarantine restrictions and to control the spread of this pandemic. 52
Moreover, the current scenario of nationwide lockdown has created food shortage/ starvation among the poor,thereby,imposing obligation on the government to provide them with food and other essentials. This would result in consumption of a substantial part of the government funds, which could’ve been otherwise used by the government for improving the medical facilities or for investment in research and development.
If population of a country is low, people can live in dispersed environments, with less human interaction and lower risk of transmission.Hence, there would be no better time than now to realize the vices of overpopulation. When the coronavirus pandemic terminates and Indiais ready tochange for better, The Population Control Bill, 2020needs to be on the table in orderto control the rapidly increasing population of the country.
Furthermore, the Billis constitutionally valid as can be seen from the interpretation of Article 14, 21 and 25 as well as from the decision given by Hon’ble Supreme Court in the landmark judgment of Javed v. State of Haryana. 53