Guest Post: A Critique of the Uttar Pradesh Population Control Bill

[This is a guest post by Samira Mathias and Shivani Vij.]


In an effort to control population growth, the Indian state of Uttar Pradesh has introduced the draft Population (Control, Stabilization & Welfare) Bill 2021, in an undoubtedly rushed manner. The poorly drafted bill, marred by numerous provisions which are violative of fundamental rights, is eerily reminiscent of the 1976 sterilization programme initiated by the then Congress government. Though the Bill does not mandate sterilizations, it incentivizes them with monetary benefits, and further corrodes reproductive autonomy by disincentivizing departures from the prescribed two-child norm through automatic ineligibility for government benefits. Pertinently, the Bill targets and has a disproportionate impact on the poor (to be discussed below).

By hastily resorting to harsher and unscientific methods of population control, the state is pre-determining a course of action for all people, instead of treating them as rational agents capable of making their own choices. Such a policy also amounts to an abdication of the state’s positive duties in facilitating the full enjoyment of human rights.

(i)  Violation of Reproductive Choice & Consent

The Bill purportedly aims to address population explosion by incentivizing compliance with the two-child norm, and disincentivizing departures. These disincentives include inter alia, denial of access to government welfare schemes and subsidies (Sec 12), limiting ration cards to up to four (units) (Sec 8(j)), ineligibility to contest elections (Sec 9), and bars on applying for government jobs (Sec 10) or promotions in government services (Sec 11). It further provides rewards for undergoing voluntary sterilization after two children, in the form of monetary assistance towards construction of houses, rebate for utilities, additional maternity and paternity benefits etc. (Sec 6) Moreover, specifically for individuals living Below the Poverty Line (BPL), having one child and undergoing voluntary sterilization draws promises of monetary benefits (Sec 7). 

The introduction of this system of incentives and disincentives obfuscates true choice, by exploiting the economic vulnerabilities and career aspirations of people. A more holistic assessment of consent needs to be conducted in light of the theory of adaptive preferences (Martha Nussbaum). The theory posits that in environments of deprivation or limited choices, individuals unconsciously change their preferences to reflect what they think is feasible. Thus, these individuals are not rendering free consent, but are merely expressing internalized inequalities of access to resources. The Bill exploits these inequalities in socio-economic status, disproportionately targeting families engaged in governmental service or living below the poverty line (BPL). The series of disincentives prescribed for violations of the norm, especially the ineligibility to avail of rations, and the disqualifications from appointments and promotions in government posts may prompt women to undergo abortions in order to avoid what are in effect penalties for having a third child. Fears of inadvertently violating the norm could motivate both men and women to undergo sterilizing or contraceptive procedures that are incompatible with their health or beliefs. The Bill also promises Rs 80,000 to a BPL family if they have a single male child and then undergo sterilization, or 1,00,000 for doing the same after the birth of a girl. These figures are more than twice the annual income fixed for a BPL family in Uttar Pradesh to receive rations.   Thus, under the guise of ‘voluntary’ sterilizations, the Bill through its economic penalties, in effect leaves no choice to families struggling to make ends meet or dependent on government supports to survive. This is a dangerous and insidious erosion of bodily autonomy, raising a serious constitutional challenge to Article 21 rights.

Sexual and reproductive autonomy are recognized as quintessential facets of privacy and thus the fundamental right to life guaranteed under Article 21 of the Constitution (KS Puttaswamy v. Union of India). Not only does the Bill restrict reproductive autonomy, but it does so in the most invasive way possible. While the State is empowered to impose limitations on privacy, it must do so in compliance with the four-part test laid down by the Supreme Court. Thus, the policy should pursue a legitimate aim, there should be a rational nexus between the restriction and the aim, it should be the least restrictive measure and, should strike a balance between the competing interests.

No evidence has been provided by the State for the need for the more restrictive measures of sterilization and a two-child norm, or even proof of their effectiveness in comparison to less restrictive measures such as providing for family planning methods, in order to achieve the aim of ‘population control’. Indeed, the Bill concedes to the existence of such less restrictive measures in Chapter V through an affirmation of the state’s duties to educate, encourage and support families with family planning.   The state should be focusing entirely on its positive role in promoting reproductive choices in line with the autonomy of persons, instead of eroding this autonomy by dictating choices for people.

Moreover, the Bill creates a peculiar impact on personal laws which permit polygamous marriages. Section 19 of the Bill provides for each woman in a polygamous marriage to have two children but allows the man in the marriage to have only two children in total across all his spousal relationships (Sec 19). If the husband violates his two-child quota, he will be subjected to the disbenefits prescribed for violators, but his wives and children will not be so penalized if each of them are compliant with the norm (Sec 18). Yet this simultaneously exists as a potential source of marital discord and indirectly restricts the reproductive rights of women in polygamous marriages Furthermore, there is potential for great confusion in the application of these sections. For instance, section 5 of the Bill promises benefits to single children on the basis of the status of the couple’s compliance with the norms (Sec 5). Yet, the provisions on polygamous marriages ascribe different statuses to both persons in the couple.

(ii) Attack on the right to livelihood & other constitutional rights

Another disproportionate impact is found on the rights to health and food of the poor, who depend on daily rations to survive. By providing for only four units of ration cards to seek compliance with its two-child norm (Sec 8(j)), the State violates these socio-economic rights which the Apex Court of India in Bandhua Mukti Morcha v. Union of India and PUCL v. Union of India settled as falling under the Directive Principles of State Policy and Art 21 rights of individuals. The National Food Security Act 2013, the statute enabling the provision of ration cards to the poor, was legislated with this very focus on ensuring a life with dignity by securing the right to food and basic necessities. Denying access to rations thus breaches Constitutional guarantees. By causing a disparate impact on the well-being of an economically struggling section of the population, the Bill denies the equal protection guarantee under Article 14 of the Constitution.

Worryingly, children’s rights to equality under Article 14 are also implicated. Single children are promised free education, healthcare, and insurance, as well as scholarships and preferences in admissions to higher educational institutions and jobs (Sec 5). This irrationally penalizes children for having siblings and represents an abdication of the state’s responsibility to look after the rights and well-being of all children.

Section 8(k) of the Bill further confers on the government the following power to enforce “Other disincentives as may be prescribed”. This is overly broad language, vesting the government with sweeping powers to revoke or disqualify persons from welfare schemes if they breach the two-child norm. There are no safeguards for how these disincentives can be determined and prescribed, and no provisions mandating that there be a rational nexus between the disincentive and procreation beyond the norm.

Indeed, a rational nexus is already absent within the prescribed disincentives. Persons who have more than two children after the Act comes into effect are barred from contesting government jobs and local body elections (Secs 9 & 10). The number of children a person has is in no way a reflection of their capacity and competence to fulfil these roles. Penalizing them for having more than two children automatically denigrates their family choices.

The Bill further mandates that existing local body electives and government employees undertake to have no more children (Sec 9(2) & 10(2)). There is no reason why the continuance of a government job should be contingent on the size of a family. The proposed law is effectively economically coercing couples into sterilizations and abortions.

(iii) Attacks on the integrity and dignity of persons: a means to an end

Individual dignity has been recognized as attainable only where liberty is seen as inhering in each individual, and equality as subsisting between all persons (para 189, Dr. D.Y. Chandrachud J., Indian Young Lawyers Association and Ors. v State of Kerala and Ors.). The state’s attempts to instrumentalize women’s reproductive capacities by fixing a cap on the number of children they can have, simultaneously reduces their human right to a state tool, while degrading women and children to ‘means’ to policy ends.

Further, instead of seeking to change regressive attitudes towards children on the basis of gender, the Bill monetizes them – offering couples living below the poverty line one lakh rupees if they have single child who is a girl, and eighty thousand rupees if the child is a boy (Sec 7).

The Bill also encourages a commodifying attitude towards children, through its approach to disabilities. Disabled children are not counted for the purposes of determining whether couples have breached the two-child norm (Sec 15). The Bill also enjoins the government to provide for reversing sterilizations, in cases where a child subsequently becomes permanently disabled (Sec 23(m)). These provisions place the worth of all children on their abilities and treat disabled children like inferior persons that do not discharge a quota. These are deeply disturbing attitudes that should not receive such implicit encouragement from the state.

Finally, the Bill’s choice of language where a ‘two child norm’ is defined as the ‘ideal size’ of a family implicitly belittles the choices of couples departing from such a norm. The Bill in effect promotes a homogenization of family structures, attacking the right of couples to make deeply personal choices about their family life.

(iv) Social context

The Bill has a disproportionate impact on the constitutional rights and dignity of women by ignoring the social context of childbirth in India and the fact that women may not have any real choice in family planning. Notable academician Professor Sandra Fredman (in her book Comparative Human Rights) has argued that any legislation affecting the reproductive autonomy of women must take into account the social and cultural dimensions around it. This is so because decisions regarding child-bearing and child-rearing are influenced by numerous social factors besides the choice of an individual, such as childcare leave, adequacy of personal resources etc. One such factor in India, is the pressure exerted on a woman to continue to have children until a male child is born. The desire for a male child has been and continues to be one of the primary causes of female infanticide and/ or feticide in many states of the country. In addition to this, marital rape, which is still not a punishable offence in India, also severely constrains choices of women and is one of the reasons for unplanned pregnancies. Amidst these peculiar social and cultural factors that surround childbirth, imposing a two-child norm and prescribing disincentives would mean that a man who forces his wife to have more children penalizes himself as well as his wife under the new law. Thus, the Bill, once implemented, would restrict the fundamental rights of women because they had more than the prescribed number of children – a decision which was never entirely within their control. The restrictions on their bodily autonomy, reproductive choice and life under Article 21 would thus be curtailed disproportionately to the legitimate aim of population control. The proposed law must therefore be viewed through the special lens of impacts on the constitutional rights of women in particular.

To steer clear of constitutional issues, the State must endeavour to restrict the right to reproductive autonomy with the least restrictive means. This can be done by empowering citizens to make responsible choices about family sizes by providing resources for better education and access to family planning for all households. This would enable informed choices about childbirth and promote attitudes where children are valued in and of themselves. The State should also align the initiatives on prevention of female infanticide and feticide with its policy on population control and address childbirth in the context of marital rape, which is not an offence under the Indian Penal Code. It is only when the focus shifts from coerced sterilizations and compliance with a strict two-child norm to the exercise of informed choice, that the State will be able to implement a sustainable policy of matching population numbers with resources within the ambit of permissible restrictions to fundamental rights.

Conclusion

In sum, the UP Draft Population Bill is profoundly problematic. It is constitutionally objectionable in the ways that it erodes privacy and reproductive autonomy, treats socio-economic rights like policy tools, and confers overly broad powers on the government. It is also incompatible with other existing laws, and disproportionately impacts already vulnerable sections of society, while constructing a system of incentives and disincentives devoid of rational links to policy goals.

 The Bill is invasive and denigrating of the choices of people, treating people as means to ends, and perpetuating regressive and damaging attitudes to women, children and the disabled. The state should be focusing on its positive duties, looking on the citizenry as partners in constructing a sustainable future. Sustainability, after all, depends on long-sighted, rational and cohesive solutions. A fragmented approach such as this fails to zero in on long term solutions – educating the people, equipping them to make responsible choices, promoting better attitudes towards the family and the human person, empowering the vulnerable, and advocating for comprehensive solutions to resource utilization that involve scientifically backed, environmentally sustainable choices as to use of resources. It is the need of the hour to take this ‘leap of reason’ from (forced) compliance with a restrictive policy to informed choice that will not only respect constitutional and moral rights, but be more sustainable for the future.

Guest Post: The Abortion Petition – Some Key Questions

(This is a guest post by Gauri Pillai.)


This post examines the recent writ petition filed in the Supreme Court of India, challenging the constitutionality of certain provisions of the Medical Termination of Pregnancy Act, 1971 (‘Act’). The Act permits termination up to a period of 20 weeks. It requires the approval of one medical professionals for termination prior to 12 weeks, and two medical professionals for termination between 12 and 20 weeks. Termination is permitted only when continuation of pregnancy would cause grave injury to the physical or mental health of the pregnant woman, or where there is substantial risk that the fetus, if born, would suffer from such physical or mental abnormalities so as to be seriously handicapped (Section 3(2)). If the pregnancy is caused due to rape, or failure of contraceptive device used by a ‘married woman or her husband’, it is presumed that there is grave injury to the mental health of the woman (Explanation, Section 3(2)). Beyond 20 weeks, the Act permits termination only if ‘immediately necessary to save the life’ of the pregnant woman (Section 5).

The Challenge 

The Act, the petition argues, imposes a severe restriction on women’s right to ‘reproductive choice’, that is, ‘the right to choose whether to conceive and carry pregnancy to its full term or to terminate, [which lies] at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self-determination and right to health, recognised by Article 21 of the Constitution’. This is because termination, even within the first trimester, is permitted only upon fulfilling certain conditions, set out above; termination on account of fetal abnormality is allowed only up to 20 weeks; and finally, termination beyond 20 weeks is restricted to instances ‘immediately necessary’ to save the ‘life’ of the pregnant woman.

By critiquing these restrictions for being excessive, harsh and disproportionate, the petition mounts a challenge to the Act under Article 21. However, I argue, the petition does not interrogate, and dislodge, the assumptions that lie behind these restrictions. Instead, it takes these assumptions as given and works within them, to argue for more expansive rights.

The Presumption of Motherhood

The Act is premised on two fundamental assumptions.

First, the Act views women primarily as mothers, and pregnancy as natural and inevitable. This is indicated by provisions of the Act which allow abortions only under exceptional, adverse circumstances, suggesting that the default option for women is to continue with their pregnancy. It could be argued that women’s right to an abortion is restricted to exceptional situations in order to balance the interests of the woman against interests of the fetus. If so, the present framing of the Act implies that in exceptional, adverse circumstances, the interests of the woman take precedence over that of the fetus. However, in the absence of such circumstances, the interests of the fetus override that of the woman.

This framing assumes one of two things (or both): (a) in the absence of exceptional circumstances, women are happy to continue their pregnancy; and/or (b) in the absence of exceptional circumstances, women should be expected to continue their pregnancy. In case of (a), it is assumed that there would be no harm to women’s interests because women, under ordinary circumstances, would want to continue their pregnancy (and be mothers). For instance, in the landmark decision of Suchitra Srivastava v Chandigarh Administration, the Supreme Court observed, ‘the termination of pregnancy has never been recognised as a normal recourse for expecting mothers’. Since there is no harm to women’s interests, fetal interests are given priority. In case of (b), it is assumed that the harm to women’s interests from continuation is lesser than the harm to fetal interests from termination. This is premised on the assumption that even if the individual woman does not desire the pregnancy, pregnancy is natural and inevitable, something all women go through. Therefore, in the absence of exceptional circumstances, the harm from continuation of an unwanted pregnancy is minimal. As a result, in these circumstances, the harm to women’s interests from continuation of pregnancy is considered to be lesser than the harm to fetal interests from termination. Thus, the Act starts from a position where women are seen first and foremost as mothers, and pregnancy as natural, inevitable, and desired by all women. This assumption then influences the assessment of harm and balancing of interests carried out by the Act. This is not to say that no other considerations influence the balancing, but to highlight that the current framing of the Act suggests that presumptions regarding women’s role as mothers is one such consideration.

The petition appears to resist this narrative by asking for abortion on demand within the first trimester. However, a close reading of the petition reveals that the reason behind this claim is not the recognition that it is ‘normal’ for women not to be mothers, and opt for termination. Instead, the claim is made because the health risk to women from continuation of pregnancy is more than the health risk accompanying termination during the first trimester. Thus, even in asking for abortion on demand within the first trimester, the petition fails to dislodge the gendered assumption underlying the Act which views women as mothers, and pregnancy as natural and inevitable; instead, it merely works to expand the instances of termination permitted within this narrative.

A Strand in a Gendered Web

Second, the Act views abortion as an ordinary medical procedure, with no larger social import. This is obvious in the very title of the Act, which refers to ‘medical termination of pregnancy’, rather than ‘abortion’; the Statement of Reasons or Objects of the Act which describes abortions as ‘health measures’ to alleviate ‘danger to the life or risk to the physical or mental health of the woman’, and prevent ‘wastage’ of her life; the predominance given by the Act to the opinion of medical professionals, viewing them as co-decisionmakers along with the women; and, the reliance placed by courts on the decisions of Medical Boards—set up to weigh the risk of continuation of pregnancy against the medical risk of termination—in allowing abortions beyond 20 weeks, under Section 5 (see here, here and here). Women’s decisions to undergo an abortion are overridden if the Medical Board opines that the continuation of pregnancy is ‘less hazardous’ than termination at that stage (see here). Thus, the medical risk of termination becomes the primary consideration while making a decision under the Act.

This tendency to prioritise the medical risk of termination over other considerations, including the woman’s choice, is evident in the petition as well. For instance, the petition constructs the right under Article 21 in the following terms: ‘Where the termination of pregnancy itself does not involve risk to the physical life of the woman, her right to choice…[has] to be respected’. Similarly, as mentioned above, the petition argues for abortion on demand within the first trimester only because ‘there is no dispute [that] the risks involved when pregnancy is carried to full term far outweigh the minimal and negligible risks involved when pregnancy is terminated in the first trimester. Keeping this in view, the State cannot make any law restricting the right of the woman seeking abortion’ during the first trimester. In this sense, the petition follows the Act in viewing abortion primarily as a medical procedure, by respecting women’s choice only when medical opinion favours it.

However, this understanding of abortion is reductive, and ignores that at the centre of abortion lies a group of persons—women—who have been historically oppressed on account of their reproductive ability. The fact that women can reproduce is translated into the essentialist, universal assumption that women must. These gendered expectations, however, do not end at the moment of birth. Women are not only expected to bear children but also assume primary responsibility for their care. This largely unilateral responsibility of child-care has confined women to the domestic sphere, and maintained the distinction, and the hierarchy, between the public and private spheres. Motherhood and paid employment are constructed as incompatible. Several empirical studies demonstrate that the presence of young children in the house is associated with lower female workforce participation in India, with women quitting work after childbirth (see here and here). At the same time, childcare—women’s contribution in the home—has a low status in society. Though ‘reproduction entails incredible liabilities and workload, [it] is still considered to be of lesser value compared to men’s engagement in production that yields market value’. In this sense, pregnancy is not an isolated nine-month episode in the life of a woman; it is instead located within gendered structures of power, which require women to bear children and raise them, compelling them to sacrifice other opportunities they value, while, at the same time, devaluing their labour. Articles 14 and 15 provide constitutional grounding to this perspective on pregnancy. However, the role of these provisions is outside the scope of the specific argument being made by this post, and is thus not developed.

Against this context, abortion cannot be viewed as just another medical procedure. Instead, it should be seen as allowing women to take back control over their bodies and lives—control they have been historically denied, and on the basis of which they have been disadvantaged. This recognition is absent within the petition, which argues for permitting women to undergo termination only as long as there is no threat to their life or health. In this manner, the petition places abortion on the same page as other medical procedures, where the opinion of the medical professional is given overriding priority. Through this, women seeking abortions are seen merely as patients seeking medical care, stripping away the gendered social context of reproduction in India.

Thus, the Act is deficient because it is premised on two underlying assumptions: women as mothers, and abortion as an ordinary medical procedure. The petition, in challenging the Act as restrictive and unconstitutional, does not dislodge these assumptions, and shift abortion outside these narratives. Instead, it retains the framing offered by these assumptions, and therefore constructs a limited right to medical termination of pregnancy. This might be an intentional strategy, to ensure that the claim has a greater chance of being accepted by the court. However, it is important to question whether in making this concession and failing to interrogate these assumptions, the petition, even if granted, will result in real and effective reproductive control for women.

The Remedy

The remedies sought by the petition include striking down as unconstitutional Section 3(2)(a) to the extent it makes termination during the first trimester conditional; Section 3(2)(b) to the extent that it imposes a 20 week limit on termination in case of grave mental or physical injury to the woman, or fetal abnormality; and, Section 5 to the extent that termination beyond 20 weeks is permitted only when ‘immediately necessary’ to save the ‘life’ of the pregnant woman. If the approach I propose is adopted, and the fundamental assumptions underlying the Act are challenged, certain remedies—such as abortion on demand within the first trimester—would remain the same. Others could, however, differ. If the balancing exercise does not start with viewing women as mothers, and pregnancy as natural and inevitable, then the balance struck between the woman’s and fetal interests could change. Similarly, if abortion is not viewed as an ordinary medical procedure, a case could be made for why the choice of a woman who wishes to undergo termination even after being informed of the risk to health or life needs to be respected. These would change the very structure of the Act, by questioning the imposition of conditions and time limits. However, even if the specific remedies do not change, by challenging the assumptions underlying the Act, the petition, if accepted, could shift the discourse on abortion, and set us on the path towards meaningful reproductive choice for women.