CJP writes to UP Law Commission over the draft Population Control Bill of 2021

The Commission had called for comments and suggestions from the public over their proposed Bill

CJPImage Courtesy:lawtrend.in

Citizens for Justice and Peace (CJP) has sent its comments/suggestions to the Uttar Pradesh State Law Commission over the proposed Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021.

We, at CJP, have drawn reference from some experiments and worldwide trends that have shown that there is a “direct and deep co-relation” between basic civic amenities and healthcare available for women, (including facilities for personal sanitation and hygiene) from marginalised sections, their access to education and health needs, nutrition etc., that also facilitates ready acceptance of population control practices.

The numbers paint a picture

To clarify the position on our present population, CJP has stated that India’s population grew at a 1.3 percent a year from 2011 to 2016, down from 2.5 percent a year from 1971 to 1981, according to the Economic Survey of 2018 to 2019. Further, the total fertility rate of women was 2.2 percent in 2017 and it has been estimated that the same would plummet to 1.8 in 2021.

The report on ‘Household Social Consumption: Education in India’ as part of 75th round of National Sample Survey – from July 2017 to June 2018 reveals that Uttar Pradesh has a literacy rate of 63.4 percent among women and its total literacy rate stands at 73 percent. This is low in comparison to Kerala where the female literacy rate is 95.2 percent and has a total literacy rate of 96.2 percent. CJP has suggested that it is more appropriate to rather invest in better resources, higher literacy for women, empowerment and education of women to help control the population.

As per National Family Health Survey 2015-16, as many as 45.5 percent married women between age of 15 and 49 use contraceptives and 31.7 percent use modern contraceptive methods. Sample Registration System (SRS) survey for the year 2018 showed that Infant mortality rate (IMR) in Kerala was 7 per 1,000 live deaths while UP’s IMR worsened from 41 in 2017 to 43 in 2018. We have suggested that the introduction of this Bill will create an adverse sex ratio and lead to an increase in the infant mortality and foeticide rate in the state.

Bar on receiving government subsidy

Section 8 of the Draft Bill states that individuals who are in contravention of the two-child norm and procreate more than two children shall be ineligible to avail any incentives and benefits of Government sponsored welfare schemes and there will also be a limit of ration card units upto four. We have submitted that this has the potential to push 3.6 crore ration card holders and their families either into more poverty or become “victims of forced and targeted sterilisation.” Referring to the National Emergency in 1975-77, CJP has said that the experience during those dark years should warn us against any such target-based policies.

The Supreme Court has also set a deadline of July 31 to implement the one nation one ration card scheme which enforces ration card portability. With such provisions, myriad issues will come up and at a time when several beneficiaries were able to benefit from this scheme, such a provision will harm the national level initiative.

As many as 29,259 beneficiaries in the possession of ration cards in UP availed food grains in 18 other states between May 2020 and June 2021. Migrants from UP were able to use their ration cards in Haryana, Maharashtra, Gujarat, Andhra Pradesh, Arunachal Pradesh, Bihar, Chandigarh, Goa, Himachal Pradesh, Jammu & Kashmir, Jharkhand, Karnataka, Kerala, MP, Punjab, Tamil Nadu, Tripura and Uttarakhand. In UP, a total of 58,74,734 intra-district and 6,19,012 inter-district transactions were made under the Pradhan Mantri Garib Kalyan Yojana (PMGKAY) under which food grain was provided free of cost to ration card holders and others between May 2020 to October, 2020 and from May 2021 till June, 2021.

This restrictive provision also contravenes the National Food Security Act which mandates that 75 percent of the rural population and 50 percent of the urban population shall be provided subsidised grain through the Public Distribution System. We have also stated that under NFSA, there are two ‘entitled’ categories of ration cards – Priority and Antyodaya (poorest of the poor) and Antyodaya households get total 35 kg/month of wheat and rice at low rates, regardless of the family size. Thus, these provisions have not been accounted for in the draft bill and can pose many issues for PDS system and the crores of beneficiaries. “This has the potential to push a large chunk of poor population into starvation”, our comment states.

Furthermore, in early 2019, UP topped the list of PDS corruption cases with 328 cases and this number is likely to rise with such a provision coming in to place.

Bar on contesting elections and applying for government jobs

Section 9 of the Draft Bill provides that individuals who have more than two children will not be able to contest elections to local bodies. CJP’s comment on this states that this bar not only violates one’s right to contest elections but also stands to exclude a chunk of population from having a say in local government bodies which play a very important role, especially in rural areas.

Reservation of seats at 33 percent for women in Panchayati Raj Institutions has been a game changer in the social sphere for women in rural areas, with all the itinerant limitations. In the state, out of the 9.1 lakh representatives, 3, 04,638 are women but this provision could exclude women from rural politics and reverse this change that has taken years to come.

We referred to Rajabala v. State of Haryana, (2016) 2 SCC 445, where the Supreme Court held that right to vote and right to contest at an election to a panchayat are constitutional rights subsequent to the introduction of Part IX of the Constitution of India.

Section 10, that excludes parents with more than 2 children from applying to government jobs is violative of right to practise any profession, or to carry on any occupation, trade or business under Article 19(1)(g), according to CJP. While clause 6 under Article 19 does allow reasonable restrictions on this right, the same have to be “reasonable”.

Adoption of children

Another problematic issue in this Bill is the approach towards adoption. Section 14 effectively creates a bar on adopting more than 2 children if a couple already has 2 naturally born children. So, if a couple has 2 biological children, they can adopt only one child and if a couple has 1 biological child, they can adopt only one child. In either case, every family can only adopt 1 child. CJP has submitted that adopting a child is a statutory right (subject to restrictions prescribed) under The Hindu Adoption and Maintenance Act, 1956 or The Juvenile Justice Act, 2015.

“To put a bar on adopting children does not really serve the purpose of population control by any measure since these children are already in existence and are in need of care and protection of a family. This will not only impinge upon the right of an individual to adopt who has the resources to raise more adopted children but also impinges upon the right of orphan/destitute children who deserve to be in the care of a family who is willing to adopt them”, reads the comment.

Autonomy of women

Chapter II of the Bill lays down all such incentives and disincentives of having more than 2 children, that will hamper a woman’s ability to make an informed decision. It violates her right to privacy, autonomy, that consequently impinges on her reproductive rights.

Referring to the famous privacy judgment of Justice KS Puttaswamy vs Union of India (2017) 10 SCC 1, CJP has quoted some important sentences which states that privacy is founded on the autonomy of the individual and the ability of an individual to make choices lies at the core of the human personality. This judgment also states that the right of personal security involves a legal and uninterrupted enjoyment of your own life, body and health and that decisions regarding reproduction are a distinct connotation of privacy.

CJP has referred to another landmark ruling of the Apex Court in Suchita Srivastava & Anr vs Chandigarh Administration (2009) 9 SCC 1, where it held that a woman’s right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution of India, and that it is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating.

The 1995 judgment in R Rajagopalan vs State of Tamil Nadu has ruled on similar lines that a citizen has the right “to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters.”

Impact on the marginalised

The incentives/disincentives approach, according to CJP, will cause discrimination against marginalised persons causing abject poverty and on the other hand welfare schemes (which this bill seeks to debar) have empowered women and encouraged rational choices in family planning with reduced fertility rates.

Factors like poverty and low literacy rates, have a major role to play in their inability to afford contraceptives or abortion. According to the latest NFHS data, social communities that have higher fertility rates are Scheduled Tribes, Dalits, Muslims, followed by Other Backward Classes. Woman in sections of the population with the lowest income also tend to have higher highest fertility rate, for this reason. CJP has argued that the Bill (clause 8), bars such backward classes an opportunity to get subsidies, welfare schemes, access to education, contesting elections, when they especially need it the most.

Lastly, CJP has suggested that many states like Kerala, Karnataka and Tamil Nadu have seen a drop in their fertility rates over the years without having to employ any law to impose population control measures. Coercive policy measures in fact are detrimental towards a goal that all Indians should aspire too. Instead of bringing this law, there is a need to study what concerted measures were taken by these states in terms of health and education that can be adopted by the UP government in order to ensure socio-economic development in the long term.

The state should aim to meet the unmet need for contraception for women instead of disempowering them. These provisions could also see a rise in unauthorised and illegal sex-selective abortions as well as men divorcing their wives or giving up their children for adoption so they could contest polls or secure government jobs.

The comments may be read here:


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