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LEGALITY OF POPULATION CONTROL IN A CONSTITUTIONAL DEMOCRACY: AN ANALYSIS

Header Picture Credits:- World Atlas

The government of Uttar Pradesh has recently introduced a draft proposal titled Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021[1] which primarily aims at controlling and stabilizing the population of the state in advancement of its vision for sustainable development with equitable distribution of resources. The proposed bill inter alia also seeks to promote two-child norms by incentivizing and disincentivizing citizens. This move has sparked a row across various sections of the society who consider the bill as trampling of one’s personal autonomy to procreate. Moreover, there is a growing concern among a few legal commentators over the constitutional validity of the bill which according to them, defies constitutional provisions.

Thus, a pertinent question that arises here is whether such a control mechanism is desirable in a vibrant constitutional democracy like ours or not? The answer to this question lies in the fact that Uttar Pradesh is the most populous state of India comprising of 16% of total population, without actually possessing a proportional landmass. Had it been a country, it would have been fifth largest country of the world. At the time when the state is envisaging a $1 trillion economy, total fertility rate [TFR] of around 2.7% is enough to stifle the economic trajectory of the state. The aforementioned facts give a clarion call for making sincere efforts to achieve a demographic dividend.

This is not the first time that a state government has come up with such a population policy. In the past, various states like Rajasthan, Haryana etc. have already adopted such measures through legislations to curb the population menace which has become a major snag in improving standards of governance. The legitimacy to make such law is derived from Entry 20-A on the Concurrent list of VII Schedule, inserted by 42nd Constitutional (Amendment) Act, 1976. It allows for making legislation on “Control of population and family planning” by both State as well as the Union government. Moreover, the existing rules of law propounded through plethora of judgments by Hon’ble Supreme Court of India constitutionally validate certain laws that bar citizens with two or more children from availing government benefits.[2] We need to dig a little deeper to understand the nitty gritty of the issue in order to test whether the proposed bill follows the letter and spirit of constitution or not.

The legislation regarding population control requires a two-pronged approach to qualify the constitutional test of permissibility: firstly, it relates to the legitimacy of population control as an objective of the state, secondly it pertains to the validity of the medium used in fulfilment of such objective. The prevailing circumstances which clearly hint towards a proportional scarcity of resources in India, a legislation for population control duly qualifies to be a legitimate objective for the said purpose. This view has been upheld by the Hon’ble Supreme Court of India in the landmark judgment of Javed v. State of Haryana[3], which duly acknowledged the need for policy-oriented legislations to counter the national and global issue of population explosion.

It is not violative of Article 14

It is undoubtedly a settled principle of law that scrutiny of a legislation in order to determine the violation of the guarantee of equal treatment as per Article 14 of the Indian constitution is done on the basis of ‘classification test’. This test is heavily based upon American Jurisprudence and requires fulfilment of two criteria i.e., there must exist a) an intelligible differentia between the stakeholders subjected to differential treatment, and b) a rational nexus between the intelligible differentia and objective sought to be achieved through legislation.[4] The basis for classification may rest on conditions that may be geographical or according to objects or occupation or the like.[5] Also, equality does not necessarily mean uniformity in the application of the same rules for all classes of individuals rather it allows an equal treatment for equals and a different treatment for un-equals.

The classification made in the draft proposal appears to be well defined and well perceptible at first instance as it creates an unambiguous distinction between persons with more than two children i.e., the ones who’re overpopulating the state, and persons with less than two children i.e., the ones who’re supporting the family planning exercise. Thus, it fulfils the first criteria of the ‘classification test’ which requires classification to be founded on an intelligible differentia between the individuals exposed to differential treatment. The intelligible differentia created herein seeks to achieve the objective of popularizing family planning in order to raise humanitarian standards by achieving the goals of sustainable development. This is consistent with the National Population Policy and is based upon the recommendations[6] of commissions and provisions of Indian Constitution itself. The classification does not suffer from any arbitrariness as the choice of number of children is based on legislative wisdom. The number is a matter of policy decision which is not open to judicial scrutiny.[7]

It is not in conflict with Article 25

It is also alleged that the policy is violative of one’s fundamental right to religion. However, one needs to have a clear distinction between the essential and non-essential religious practices. In the Javed’s case, it was contended that the Muslim Personal Law permits performance of marriages with four women, primarily for the purpose of procreation of children and any restriction therein would amount to an infringement of Article 25 of the Indian Constitution. The Hon’ble apex court relying upon the rule of law laid down in M. Ismail Faruqui (Dr.) v. Union of India[8] held that the protection provided under Articles 25 and 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of practice of that religion. The latter is not protected by Article 25. Thus, the population control mechanism proposed by the various states time and again is constitutional as the procreation of children being non-essential religious practice is not violative of anyone’s right to religion.

CONCLUSION

It can be concluded that there is a need to assess this policy matter through an objective prism. It is high time that we remove our ideological lenses and dissociate ourselves from giving a political twist to a policy capable of bringing positive impact in lives of 24 crore people in UP. We must follow the path of wise saying that ‘a stitch in time saves nine.’ Indeed, this policy has the potential to stitch a healthy social fabric by allowing planned population movement within the stipulated time. It can be asserted that this policy change will act as a catalyst in advancement of common cause of sustainable development.


[1] https://www.livelaw.in/pdf_upload/up-population-control-bill-draft-396420.pdf last accessed 30 October 2021.

[2] Rajbala v. State of Haryana, CWP No. 671 of 2015, SC.

[3] Javed v. State of Haryana (2003) 8 SCC 369

[4] Vikram Cement v. UOI, AIR 2007 SC 7

[5] Budhan Choudhary v. State of Bihar (1955) 1 SCR 1045.

[6]Report of The National Commission to Review the Working of the Constitution, The Hindu Center, https://www.thehinducentre.com/multimedia/archive/03091/ncrwc_3091109a.pdf , last accessed 30 October 2021.

[7] Supra note 2.

[8] M. Ismail Faruqui (Dr) v. Union of India (1994) 6 SCC 360.

Views expressed are personal.

The author of this post Shubham Shukla, is a fourth-year student of Law at Rajiv Gandhi National University of Law, Punjab

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