Explained | Population control law, its Constitutional roots and legal challenges

With Union Minister Prahlad Singh Patel stating on Tuesday that India will soon have a population control law, a debate has begun as to how such a law will be implemented, what effect it will have on citizens, and whether it will be linked to employment or other government benefits as well.

While the United Nations reports that India has more than 1.4 billion people, making it the world’s second-most populous country, the world population review predicts that India will overtake China as the world’s most populous country by 2030.

The population control bill of 2019, which was withdrawn in 2022, proposed a two-child policy per couple and aimed to incentivise its adoption through educational benefits, free healthcare, better employment opportunities, home loans, and tax cuts.

What does the Constitution say?

Article 22 of the 1969 Declaration on Social Progress and Development, adopted by the United Nations General Assembly in a resolution, ensures that couples have the right to choose freely and responsibly the number of children they will have. The policy to control and regulate the number of children violates such constitutional rights as Article 16 (equal opportunity in matters of public employment) and Article 21 (protection of life and liberty).

What is the constitutional challenge if such a law is introduced?

The two-child policy has been introduced in Parliament 35 times since independence. If enacted, the law must take into account the rights of divorced couples as well as the Islamic religion. Earlier bills that were introduced lacked these features and were heavily criticised by the general public.

Position taken by states

In 2017, the Assam Assembly passed the “Population and Women’s Empowerment Policy of Assam”, which stated that candidates with two children would only be eligible for government employment and existing government employees were directed to follow the two-child family norm. In 2021, the state policy was amended to make government jobs out of bounds for people with more than two children.

Similarly, in 2021, Uttar Pradesh’s law commission came up with a proposal where any person having more than two children would be barred from getting government subsidies. The draft bill is under consideration.

Cases in courts

In response to a PIL filed by BJP leader and lawyer Ashwani Kumar Upadhyay challenging a Delhi High Court order dismissing a plea seeking certain steps, including a two-child norm for population control, the Centre told the Supreme Court in 2020 that India is unequivocally opposed to imposing family planning on its people and that any coercion to have a certain number of children is counter-productive and leads to demographic distortions.

In 2018, the Supreme Court dismissed a petition asking the court to direct the Centre to make the two-child policy mandatory throughout the country in order to ensure strict population control.

What are the ramifications of such a law?

Coercive population control measures would encourage sex-selection and unsafe abortion given the collective desire for a male child.

Women will seek abortions as an alternative, jeopardising their health and increasing illegal practises.

What do other countries’ population control laws look like?

China, the world’s most populous country, has taken the lead in instituting a strict one-child policy for families.

Kenya launched family planning campaigns with the goal of matching population size to available resources.

Russia, on the other hand, is experiencing a population decline due to high mortality rates, which are likely due to factors such as drugs and alcohol.

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