This article is written by Sarthak Bhardwaj, 3rd Year, VIPS, IP University.
In recent times, questions regarding family life and marriage in India have sparked much controversy. The newest addition to the ongoing discourse vis-a-vis regulating family life is an idea that India has long dabbled with — childbirth policy. Not only is a petition for introducing a population control law pending[i] before the Supreme Court, several private member bills to disincentivise couples from having more than two children are being debated in the Parliament.
These developments are a matter of grave constitutional concern and this article shall address various issues pertinent to the ongoing discourse. The article will begin by providing a brief background to the two-child policy’s recent emergence in Indian polity. It will then proceed to analyse the proposed two-child policy on the touchstone of the Constitution and argue that such a policy is patently unconstitutional. This shall be done by arguing that the two-child policy is an affront to the individual’s right to equality, liberty, and life and that it is an ineffective method of controlling the growth of population. Finally, the article shall conclude by highlighting the way forward.
The matter of a two-child policy was recently agitated in the Delhi High Court in May 2019. The petition sought a court mandated implementation of the 24th recommendation of the National Commission to Review the Working of the Constitution (NCRWC) on population control. The petitioner argued that the recommendation of NCRWC, headed by former Chief Justice of India Justice MN Venkatachaliah, to include Article 47A as part of the Directive Principles of State Policy was never implemented. The proposed Article 47A contemplates promoting family norms by giving benefits in tax, employment, education, etc. to those who limit their family to just two offsprings. It was further prayed that the central government be directed to make two-child policy the norm to avail all government jobs, aids and subsidies.
The Delhi High Court, however, dismissed the petition without allowing a rejoinder to be filed. The division bench held that the court had no power to direct the parliament or state legislatures to enact a specific law.
An appeal against the Delhi High Court’s order is now filed before the Supreme Court with the top court issuing notice to all concerned parties. Interestingly, three similar petitions, calling for a stronger ‘Population Control Law’, are also pending before the Supreme Court.
The Parliament, too, is actively engaged with the matter of birth control and population regulation. A Member of Parliament (MP), in July 2020, introduced a private member bill in the Lok Sabha to control the rapidly increasing population. In February 2020, another private member bill for population control sought to amend the Constitution to include Article 47A in Directive Principles of State Policy. A third private member bill, is pending in the Rajya Sabha, wherein, an MP seeks to take away statutory rights like the right to vote and contest elections from those who fail to conform with the two-child policy. The bill also requires all central government employees to sign an undertaking that they shall not conceive more than two children. Assam has gone one step ahead and declared that people with more than two children are ineligible to apply for government jobs. This law shall come into effect from January 2021.
These demands gain legitimacy from two primary sources. Firstly, Entry 20-A in the Concurrent List of the 7th Schedule, which permits both, state and union government to legislate on matters of ‘Population Control and family planning’. And, secondly, the fact that a few state laws that prohibit people with more than two children to avail subsidies and government posts have been held constitutionally valid by the apex court.
Two Child Policy – Affront To Constitutional Protections:
The existence of a policy controlling and regulating the number of children a family can have is a gross violation of human rights, the right to self-determination and an individual’s reproductive autonomy.
The two-child policy fails to satisfy the ‘Golden Triangle Test’[ii] devised by the Supreme Court to examine the constitutional validity of any legislation. This test requires[iii] a conjunctive reading of equality, liberty, and freedom of rights to ensure that no law encroaches a citizen’s constitutionally guaranteed rights.
Firstly, a two-child policy will infringe the Right to Equality enshrined under Article 14 of the Constitution. Although the law is framed in seemingly impartial terms, its actual implementation will potentially have a varying and negative impact on different classes of people. The law will adversely affect the poor and economically weaker sections of the society who do not have easy access to affordable contraceptives and medicines to prevent child birth as opposed to urban elites. This form of indirect discrimination – where a facially neutral law has a disproportionate impact upon one segment of the society – is, after the Navtej Singh Johar[iv] judgement, both impermissible and prohibited. Further, as explained by Justice Sikri in Jeeja Ghosh v. Union of India, “The principle of non-discrimination seeks to ensure that all persons can equally enjoy all their freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public services are set on standards out of the reach for some persons, it leads to exclusion and denial of rights.” Therefore, a disability to prevent the birth of more than two children due to economic disadvantage and the state’s inability to provide affordable contraceptive measures must not be punished.
It is equally important to realise that equality is no longer about requiring an even-handed treatment by the State. It is the realisation that disadvantages are the product of how social institutions are designed[v]. Inequality is apparent in the effects the workings of these institutions have on different groups and individuals. For instance, the non-availability of cheap contraceptive medicines in rural areas, according to a recent study, is more likely to burden women, as men remain resentful of contraceptives and family planning practices. Further, denying statutory rights, access to government aids and subsidies to those who have a third child, will push huge sections, especially in rural areas, more towards the margins of the society and outside the fold of state welfare. Therefore, several aforementioned Bills which penalise parents for having more than two children, shall do more harm than good, as rural population’s access to the already limited resources will be severely affected.
Secondly, a two-child policy violates the right to life and personal liberty enshrined under Article 21 of the Constitution. The expression ‘liberty’ has a wide meaning and includes[vi] the fulfilment of all those conditions necessary for holistic human development. Several rights which together constitute personal liberty of a human have been accorded the status of a Fundamental Right by the virtue of judicial interpretation. Right to marry[vii], for instance, is now an intrinsic component of personal liberty and therefore protected under Article 21. An extension of this right – freedom to make reproductive choices – is also protected under Article 21. In Suchita Srivastava v Chandigarh Administration[viii], the Supreme Court held, “There is no doubt that a women’s right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution” Further, by intruding into the personal affairs of family planning and severely limiting a woman’s reproductive rights, the two-child policy violates the fundamental right to privacy. Moreover, the right to privacy recognises the right to bodily autonomy and therefore can also be extended to reproductive choices that a person makes. Any state action interfering with a citizen’s privacy must satisfy the test of — legality, legitimate state aim, and proportionality. It is evident that less coercive measures like — promoting the use of contraceptives, access to affordable abortions, and economic development — can also achieve the aim of checking unbridled population growth.
A two-child policy not only violates constitutional provisions but also numerous internationally recognised human rights. The International Conference on Population and Development states that couples have the twin right of choosing whether and when to have children as well as the number of children they wish to have. Further, Article 16(1)(e) of the Convention on the Elimination of All Forms of Discrimination against Women, enables a couple to choose the “number and spacing” of children.
Moreover, the aim to reduce poverty through population control is not backed by evidence, and research goes on to show that such a policy can prove to be counterproductive. International experience, especially with China, has now revealed the many failings of a two-child policy and its ineffectiveness.
Fortunately, better sense prevailed and the Central Government’s recent affidavit filed in the Supreme Court as a response to the petition seeking implementation of a two-child policy, suggests disinterest to legislate on the matter. The affidavit rightfully stated, “The family welfare programme in India is voluntary in nature which enables couples to decide the size of their family and of the family planning methods, best suited to them. In fact, international experience shows that any coercion to have a certain number of children is counter-productive and leads to demographic distortions”
Any law in India must not be passed without first fully understanding its possible repercussions and societal implications. A two-child policy, as envisaged by various MP’s and the petition in the Supreme Court, will open a pandora’s box. For instance, preference given to male children in India might lead to greater female infanticide as parents will only have ‘two attempts’ at having babies. This might also compel women to forcefully undergo abortion often through unsafe and illegal means due to a lack of easy and cheap access to facilities.
The present petition in the Supreme Court and the Centre’s affidavit has presented the apex court with an opportunity to unambiguously hold family planning and reproductive choices as part of an individual’s autonomous right to self-determination. The court must also revisit its previous position on the two-child policy in light of the Puttaswamy judgement and prevent further affronts to the rights and liberties of citizens.
[i] Ashwini Kumar Upadhyay v. Union of India & Anr., S.L.P. (C) No.275967 of 2019 (SC).
[ii] Minerva Mills Ltd & Ors. v. Union of India, (1980) 2 SCC 591.
[iv] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
[v] Gautam Bhatia, The Transformative Constitution 332-333 (1 ed. Harper Collins 2019).
[vi] National Legal Services Authority v. Union of India., (2014) 5 SCC 438.
[vii] Shakiti Vahini v. Union of India & Ors., (2018) 7 SCC 192.
[viii] Suchita Srivastava v. Chandigarh Administration, (2009) SCC 1.