Introduction

On 7 July 2021, the Law Commission of Uttar Pradesh, a state in northern India, released a draft bill on population control.  The Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021, pursuant to the 2022 elections in the state, is purported to be a draconian draft to control the population of the State. The Bill did not come as a surprise as many believed it was long overdue that some measures were required to control the fast-growing population. The Uttar Pradesh Government, led by the ‘path-breaking leader and lawmaker’ Chief Minister Yogi Adityanath, went in for a strong-arm tactic instead of a non-coercive measure to achieve this objective to control the population. The poorly drafted Bill is also being criticized for being discriminatory, unconstitutional, dangerous, and a bundle of threats to many.

The goal of the Bill is to reduce the state’s fertility rate to 2.1 per thousand population by 2026 and 1.9 by 2030. Uttar Pradesh’s current fertility rate is 2.7 per thousand population. It is proposed to help improve the overall welfare of the people of the state, which would lead to sustainable economic development. However, it is noticed that the Bill, though introduced for a noble objective, has a great potential to lead to a political and demographic disaster. The makers were reckless while framing the Bill as they didn’t take into account the negative consequences it could potentially induce on the society at large, after its enactment.

Uttar Pradesh is not the first state to adopt such a regressive policy in India. Other states like Assam, Madhya Pradesh, Haryana, Rajasthan, and Odisha had also tried this population control technique wherein it was noted that such a two-child policy increased sex-selective and unsafe abortions, giving children up for adoption and men divorcing and deserting their spouse to avoid disqualification. The policy seems to be gender-blind, disproportionately impacting women and also the poor and marginalized sector of society.

Issues with The Bill

The Bill can be said to divide the population into two groups: first, encouraging individuals along with their spouse to go for “voluntary” sterilization after their two children with government jobs, promotions, education, and increments; and second, debarring individuals with more than two children from applying to government jobs, promotions, subsidies. This makes it hard to ignore whether the sterilization is more “voluntary” or mandatory in nature to avail the opportunities provided. The objectives of the bill are not being realized by incentivizing sterilization and in fact are in violation of Article 14 of the Indian Constitution.

One of the disincentives mentioned in the Bill is the “bar on the application of government jobs”, and “bar on receiving any kind of government subsidy” for procreating more than two children. In Uttar Pradesh, where almost 32.8% of its population falls below the poverty line and in the current COVID pandemic situation where several people have lost their jobs or are being underpaid, the state government has proposed to debar such people from availing government facilities. The government seems to disentitle the state’s population relying on government subsidies and government job opportunities. These incentives and disincentives seem to be dividing individuals by making reservations based on “voluntary” sterilization in government jobs and promotion opportunities, which renders it in violation of Article 16 of the Indian Constitution. Therefore, the classification of individuals based on sterilization can render this Bill unconstitutional.

In a state like Uttar Pradesh, where patriarchy and misogyny are common and treatment of women is a not commonplace, the Bill can have disastrous consequences on women and their personal health. In such a society it will not be wrong to assume that the majority burden will be borne by women to undergo sterilization operations risking her life. The data released by NFHS-4 claiming female sterilization as the most popular modern contraceptive (36%) amongst married women between the ages of 15 – 49 age portrays the unfortunate burden on the females. This data also shows that male participation in the sterilization process has decreased from 4% to 0.3% since NFHS-1 (1992-1993).

Undergoing the sterilization procedure is not the only problem; it would lead to other major consequences as well. The substandard health infrastructure in India and the poor hygiene of the government hospitals will have a severe effect on the individual’s health whose likelihood of being a woman is exponentially high. The proposed Bill is likely to deteriorate women’s health and their reproductive rights thus becoming unconstitutional since it violates the Right to Equality. To avail of the benefits and incentives in the Bill, one has to undergo a sterilization operation. Execution of this would mean that a sterilization certificate would be necessary to ensure access to these government benefits. This would result in two children being born in quick succession, which would only have an ill effect on the health of the mother.

The harsh reality of society leads us to believe that such a two-child norm would either leave us with a gender-biased policy or an exponential growth in female feticide, unsafe abortions, abandoning girl child, or even the husband deserting his wife along with the girl child. In a 2017 case, an Indian Netball player was asked for a divorce from her husband because she gave birth to a girl child; this case is not one of a kind. It shows the unfortunate reality of our country. If the woman is pressured into undergoing sterilization after the birth of one child, in the case, the child being a female or in the case of the child losing its life, there is every probability of the woman being divorced. In a society like ours, it would be acceptable for a man to lead a normal life and marry again. However, it would be the women who would have to face with an extremely uncertain future because of sterilization. This is not an exaggerated assumption. There are innumerable cases of women facing domestic violence, divorce, and death because they have only given birth to girls.

The Bill appears to have discouraged adoption culture in the state. Section 14 of the Bill shall apply to individuals having no child or one child born out of the marriage, subsequently having more than two children as a result of adoption. The outcome of the execution of the Bill may discourage adoption whilst increasing the abandonment of children. The Bill also precludes individuals governed by personal laws practicing polygamous and polyandrous marriages. They will be in contravention of the policy if they have more than two children from different marital relationships and will be exempt from these incentives under Section 19 – 21 of the Bill. Hence, making the policy discriminatory. It also provides an exception to be able to have a third child in case of a disability of the first or the second child according to Section 15 of the proposed Bill, which gives an impression of non-inclusion of children born with a disability and makes this policy prejudiced on that basis under Article 14 of the Indian Constitution. This selective relaxation in the policy would lead to increased atrocities against children, which is socially discouraged.

Authors’ Opinion

NFHS data indicates that there has been a considerable decline in the family size in India. Young couples in states like Uttar Pradesh, with huge population, already seem to have a small family size. Despite this decline in fertility, the population keeps growing. This is called the ‘population momentum’, which essentially means that even if all the young couples have two children, the population of the country will continue to grow because of the large population of young people there. The population is growing not because of the increase in the fertility rate but because there is an increase in the number of young married couples in the state.

To conclude, it can be said that the current policy will not have the desired impact on the population, but could lead to a host of unintended consequences. This Bill should have primarily aimed to bring down the childbirth rate rather than to decrease the fertility rate. Enhancing access to family planning is another way to help bring down the state’s fertility rate. Measures like improving education and teaching the common masses about family planning and usage of other contraceptive measures will have better results. Improving the literacy rate of the state has shown remarkable decrease in the fertility rate and childbirth in states like Tamil Nadu, Kerala, and Andhra Pradesh. It is a common/old belief that sometimes-using coercive ways to control something or get the desired objective can turn out to be completely ineffective in achieving that objective. So can be the case in Uttar Pradesh, here it would also violate the basic human rights of the citizens. It would in fact also lead to an increase in corruptive practices in our country along with the increasing amount of red-tapeism and paperwork. The carrot and stick approach to population control doesn’t really seem like an appropriate solution to the problem.

Sanjica Kumar and Vedica Nigam are students at Dr. Ram Manohar Lohiya National Law University, Lucknow, India.

Suggested citation: Sanjica Kumar and Vedica Nigam, Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021: A Critical Analysis, September 1, 2021, https://www.jurist.org/commentary/2021/09/kumar-nigam-analysis-uttar-pradesh-population-bill-2021/.

This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org