Editor’s Note: This post is the first post in NLSIR Online’s 2-part series on the legitimacy of population control laws in India, in light of the recent revival of the policy debates surrounding population control, strengthened further by the COVID-19 pandemic and the resultant mass healthcare crisis.
Controlling India’s Population Explosion: The Constitutional Question
– Dhruva Gandhi* and Nikita Garg**
Last year, in his address to the nation on Independence Day, the Prime Minister expressed concern over the prospect of a ‘population explosion’ in India, and went as far as to say that keeping small families was patriotic. There has since been a renewed interest in bringing about a law or policy that seeks to control population growth in India. Three Private Member Bills have been tabled in the Parliament (here, here and here), and much discussion by Union Ministers on the need to control population has followed.
At present, India hosts 16 per cent of the world’s population with only 2.45 per cent of the global surface area and 4 per cent of total water resources. In light of the coronavirus pandemic, this debate has acquired a new dimension. Several policymakers have pointed to our population density as a challenge. Some have even expressed concerns over the heightened number of childbirths that may take place in the course of this year with respect to the added burden on the exchequer. While a law that seeks to control India’s population growth may seem desirable, many argue that it fails to address the problem.
Those opposed to population control measures often draw attention to India’s Total Fertility Rate (TFR) which is currently 2.2. This is close to the Global Replacement Rate of 2.1, a level of fertility at which a population exactly replaces itself from one generation to the next. With a TFR of 2.2, it is expected that India’s population will soon hit ‘replacement level’. It will peak at about 160-170 crores by 2060 and eventually decline. While ‘replacement level’ fertility is a useful measure, it is dependent on mortality rates and migration which are unlikely to remain the same over a sustained period of time in India. Thus, it is possible that the State may seek to introduce measures that reduce population in absolute terms rather than merely reducing the fertility rate to a ‘replacement level’.
After the coronavirus outbreak, these measures may not just be limited to policy directives, but may translate into a law to regulate India’s population. The pandemic, however, has already taught us why knee-jerk responses to the coronavirus could do more harm than good. In such a scenario, it is imperative that we debate the need, modalities, and validity of such a law a priori, rather than prematurely being forced into revision or reversal. In this article, we seek to discuss one of the first questions that may have to be asked with such a law: would it be constitutional?
When it comes to the constitutionality of a population control law, two questions arise: one that pertains to the legitimacy of population control as an objective, and a second that pertains to the validity of the means used to achieve this end. We think that in light of India’s demographics and limited resources, population control would qualify as a legitimate end. The Supreme Court too has acknowledged this. Therefore, we focus instead on the incentives and disincentives that may be employed to effectuate population control. Fortunately, we do not have to look far to imagine what this incentive-disincentive structure might look like. Three Bills drawn up so far have already laid the legislative foundations, and any final law is likely to not look very different from them. Broadly, these Bills propose disincentives for families with more than two children (“large families”) and incentives for families with only two or less children (“small families”). We contend that most disincentives, and even a few incentives, would be unconstitutional.
Disincentivizing Large Families
A common measure proposed to downsize families is to cut-off access to welfare services, government subsidies, and in some cases, even to benefits under the Public Distribution System (PDS) if a third child is born into the family. With large swathes of our population dependent on these subsidies and benefits, the impact of such a measure on the fundamental rights to food and livelihood would be disproportionate.
To justify a measure which impacts a fundamental right under Article 21 of the Constitution, it must meet a ‘proportionality’ standard. The Supreme Court has defined this parameter in four prongs: the law must have a legitimate purpose (legality); there should be a rational relationship between the means employed and the ends (suitability); the measure should be the least restrictive alternative (necessity); and there must be balancing exercise between the extent to which rights are infringed and the State’s legitimate purpose (proportionality).
When subsidies and PDS benefits are taken away, the necessity and proportionality prongs are breached. For several poor and marginalized communities, a food safety net and other subsidies may be their only mode of sustenance. Pushing people to the brink of starvation or cutting off subsidy on kerosene which may be their only source of fuel, may perhaps be the most (and not least) restrictive measure to reduce population in absolute numbers. This strikes at the very core of the rights to food and health. Even in a proportionality analysis, there must be an indissoluble core at the heart of every right without which the right itself may lose meaning. When the State seeks to balance away the bare minimums essential for survival, this core is breached. Moreover, the impact is only compounded by a lack of access to safe abortion services and birth control techniques for the marginalized communities.
In all of this, the children themselves cannot be forgotten. Born into a world of poverty and dependence for no fault of their own, they are punished for such birth. In a country that has a staggering rate of malnutrition in the 0-5 age group, this could prove disastrous.
Although not comparable in terms of its impact, another proposed disincentive that is worrying is an increase in the rate of interest on bank loans and a decrease in earnings on savings instruments for those with large families. With unplanned pregnancies, such disincentives may again be disproportionate in their impact on the right to livelihood. With more mouths to feed, costlier money, and a wider gap between the rate of earning and inflation, several parents may be pushed into a debt trap. These debt traps might be worse for parents in the low-income category groups in metropolitan cities, making it harder for them to meet the basic needs of their family. Yet again, the worst affected are those who are not at fault – the children in the family.
Incentives for Small Families
A second type of proposed measures are incentives for small families. Typically, these include government subsidies of various kinds, rebates on income tax and charges for utilities, allowances for up to two children, increase in employer’s contribution to pension for such employees, and free healthcare and insurance cover for the family.
If population control is accepted as a legitimate purpose, such incentives may be constitutional. They only incentivize certain behaviour, without infringing on the rights of parents or children. The grant of additional government subsidies to a person who chooses to have a small family is a mere benefit accorded by the State. While it is possible that those with better socio-economic backgrounds may be in a position to ignore these incentives and choose to have larger families, this is a flaw that inheres in a policy that incentivizes but does not penalize.
In addition to these, there are provisions that we see in the Bills mooted thus far for further incentives for families with only one child. These include free healthcare facilities for the single child till 25 years of age, free education up to graduation level and scholarship for higher studies for a single girl child, and preference to the single child in admission to all government educational institutions (including IIT, AIIMS, etc.) and government jobs. Given that under a proposed law, it may be permissible to have up to two children, it is important to consider the harms of such policies on the second child in other families.
The first two incentives – free education for single girl child and free healthcare facilities for single child till 25 years – mean that while a single child would be the recipient of State largesse, children in a two-child family would not. While we find it a little disconcerting that it is the children who are disadvantaged based on a decision their parents made, the difference seems hard to contest on a traditional constitutional analysis under Article 14. Moreover, for a single girl child, there would be additional justifications such as the prevalence of female foeticide and poor gender ratios in our society.
However, with measures that seek to give preference to a single child in admission to educational institutions and in government jobs, there does not appear to be a reason why a second or third child born into one family should be treated differently from the first and only child born into another family. If both meet the minimum qualification, it appears that a preferential treatment to the single child does not meet the traditional classification test under Article 14. Evidently, the differentia is the number of children one’s parents chose to have. Now, the State might claim that this has a rational nexus to the end of population control. However, it would also have to show a rational nexus with admission to an educational institute or selection for government jobs. Selection criteria for these institutions or jobs usually measure whether a person has the requisite aptitude/competence or not. Whether or not a student’s parents chose to have one or more children has no nexus with aptitude for admission.[i]
There is also a deeper dignitarian harm involved in some of the incentives proposed. One of the Bills suggests that a sum of Rs. 1,00,000/- for a single girl child and Rs. 60,000/- for a single boy child be paid to parents below the poverty line. A sum of money is effectively handed out to not have a second child. The law, therefore, equates the life of a second child to a sum of money. Or, to put it more crudely, the State effectively buys that life and asks parents to instead undergo sterilization. We think that this is fundamentally opposed to the idea of human dignity and to legalize the monetization of life may lead us down a slippery slope wherein human dignity is constantly chipped away. In a way, this is also reminiscent of the mass sterilisation programme in the Indira Gandhi regime when the State sought to remove the poor instead of poverty.
In fact, there is also a problem in the way beneficiaries for these incentives are sought to be chosen. Incentives are usually made contingent on those claiming them (or their spouses) undergoing sterilization. Mandating such a procedure involves a clear infraction of one’s right to life and personal liberty guaranteed under Article 21 of the Constitution. Though the incentives themselves may be valid, the means of granting them involve a bodily harm that infringes on one’s right to privacy and reproductive rights, and does so in a manner that may not be ‘necessary’ in our proportionality matrix. Surely, parents could be asked to submit an undertaking, a breach of which could attract legal consequences.
On a broader level, any legislation seeking to promote small families through incentives or disincentives will also have a direct, disproportionate impact on women. Given the deep-seated cultural preference for sons in India (“son meta-preference”), such measures will further increase the gender imbalance at birth due to a higher incidence of female foeticide as well as sex-selective and unsafe abortions.
Further, in case of measures that disallow persons who have large families from holding positions in government jobs or public offices, studies show that there is a likelihood that the male candidates would desert or divorce their wives or give up their children for adoption to avoid disqualification. Notably, one such instance has even reached the Supreme Court which upheld the disqualification notwithstanding the adoption.
Population control often appears to be an intuitive solution to a host of problems such as poverty and the lack of adequate social and health services that plague India today. However, a law enacted for this purpose would be riddled with constitutional questions. While most proposed disincentives have a significant impact on fundamental rights guaranteed under Article 21, some incentives also have the potential of being discriminatory and causing serious dignitarian harms.
With little left of such laws that may withstand constitutional scrutiny, it is worth asking whether a law may be a solution at all. For a population control law to be successful, it would need a structure of innovative and compelling incentives that change behaviour without infringing upon the Constitution. Not to mention, this will have to be accompanied by concerted efforts to disseminate contraceptives and family planning awareness.
Authors’ Note: Some of the Bills relied upon contain provisions where a family is allowed to have a third child if one of the pre-born children is disabled. There are further provisions where a family may need permission from a government functionary before they conceive of a third child. All of these measures also infringe upon various constitutional rights, in our opinion. We have not dealt with them in this piece due to spatial constraints.
*Dhruva Gandhi is an Advocate based at the Bombay High Court.
**Nikita Garg is a lawyer based in Delhi.
[i] For similar reasons, there is no rational nexus between the number of children one chooses to have and their competence or capacity to hold public office or positions in government jobs. To this extent, the decision of the Supreme Court in Javed v. State of Haryana upholding disqualification of persons having more than two children from local panchayat elections may have to be revisited (see here).