UP and Assam Take the Lead in Tackling Population

The proposal of a two child policy is back in news, with the Chief Minister of Assam having announced that the State of Assam will implement a policy wherein benefits under the various schemes will only be given to the people having two or less children. The details of the policy have not been announced yet. Similarly, the State of Uttar Pradesh (UP) has also announced that it is soon going to enact a law that will not give benefits of Government Schemes to people having more than two children, and may even debar them from contesting Panchayat elections. Bill is still being drafted by the Law Commission of the State of Uttar Pradesh, as per media reports.

The news coming from Assam and UP has already generated a lot of heat and a possible battle line is being drawn, politically speaking. The issue of State induced population control measures, with an element of force behind it, has always been an extremely contentious issue, with limited degree of success in the past. The most classic example of a possible good intention but bad execution takes us back to the days when late Sanjay Gandhi tried to do forced sterilisation in the Old Delhi area during the mid 1970s, as a population control measure, and the move not only failed, but backfired. That has resulted in State and Central Governments being generally vary of enacting any law which attempts to bring and enforce a two child Policy.

In a few States, namely Rajasthan, Madhya Pradesh, Telangana, Gujarat, Maharashtra, Uttarakhand, some rules and laws were made at various points of time, which either barred people having more than two children from contesting local body elections, or made them ineligible for government jobs. However, Madhya Pradesh later discontinued the two child Policy and in Uttarakhand, it was set aside by the High Court. The past experiences should be a test case for the upcoming laws in Assam and UP, for both political and legal reasons. It is in this backdrop that the new legislations are coming in Assam and Uttar Pradesh, and is bound to become a major election issue in Uttar Pradesh, if the law is passed before the State Elections, which is due there in early part of 2022.

Any law made in this regard by either Assam or UP or any other State, restricting the benefits of State Schemes to, or debarring people having more than two children, from contesting elections, or any other kind of disentitlement or disqualification, may be challenged in the Court of law. The State Governments would do well to pre-empt these grounds of challenges and ensure that law passes muster legally, since the issue is both sensitive and serious. Therefore, all foreseeable legal loopholes must be plugged in the Act itself. It has to be particularly kept in mind that no provisions of the proposed Law should contravene Part III of the Constitution of India (Fundamental Rights) and/or any other provision of the Constitution, so that a well intentioned idea, whose time has come, must not get lost in legal battles.

We are sure that the State Governments would take note of the legal developments of the past on this issue. In 2018, the Hon’ble Supreme Court of India had dismissed a Special Leave Petition seeking a 2 child Policy. Recently, in a Special Leave Petition filed in the Supreme Court Of India, wherein petitioner had prayed for introducing a population control law, the Union Of India, through Ministry of Health and Family Welfare, submitted that:

The Family Welfare Programme in India is voluntary in nature, which enables couples to decide the size of their family and adopt the family planning methods, best suited to them, according to their choice, without any compulsion.” It further added that India was a signatory to the Programme Of Action (POA) of the International Conference on Population and Development, 1994, which was unequivocally against coercion in family planning. “In fact, international experience shows that any coercion to have a certain number of children is counter productive and leads to demographic distortions.”

There are strong scientific, legal, social and moral arguments both in support of, and in opposition to the need of law controlling people’s choice to have the desired number of children, and the issue of population explosion. However, one should wait to see the text of the proposed Acts/Policies in Assam and UP to discuss the legality of the same and reach any conclusion.

In our considered opinion, time has come for having a law on the issue of population control in the country. The proposed legislations of Assam and UP, which works on the underlying philosophy of controlling the burgeoning population, must be welcomed solely on the ground that resources of the country, natural and man made, are limited and scarce. We are consciously not getting into the complexities surrounding this debate at this juncture, but feel that law must respond to and change as per the evolution of social realities, and no one can contest the fact that there is a large populace in our country who can be provided better facilities by the Governments of the day, and they can aim for better lifestyle for themselves, if the distribution of resources is to be done among less number of people. Even recognizing the need and benefits of a strong human resource for any country, one cannot loose sight of the fact that no Government of the day can provide facilities, expected from the State, to an infinite size of population. Therefore, we once again hope that the new laws and policies announced by the State of UP and Assam should usher an era, and it becomes a model for other States to follow. The final word on this is awaited.