By Rupal Dugar and Shamik Datta
Introduction
Recently, the Uttar Pradesh State Law Commission proposed the draft The Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021 (hereinafter ‘the Bill’), in an effort to control the state’s population and promote sustainable development.[1] The Bill disincentivises people not adhering to the two-child policy through a ban on promotion in government services, debarment of benefits from any government-sponsored welfare scheme, and a ban on receiving any kind of government subsidies, among others.
This article aims to analyse the implications of the Bill on an individual’s fundamental rights against the backdrop of recent judicial precedents. It aims to explore the state’s infringement into the ‘private sphere’ of the individual and its implications on the ‘public-private’ dichotomy. Moreover, through an analysis of the Bill using eminent Sociologist, Dr. Frank Parkin’s model of downward exclusionary closure, the authors argue that the Bill has a larger implication on the social mobility of socially disadvantaged groups.
A Legal Analysis
As per recent legal developments, decisional autonomy and reproductive rights have been upheld as a fundamental aspect of an individual’s right to privacy. The authors shall argue that the Bill violates this right by mandating a two-child policy. Further, the authors shall demonstrate that the disincentives listed in the Bill are in contravention to Article 16 of the Constitution.
1. A Travesty of Personal Autonomy
Reproductive autonomy is the right to make sexual and reproductive decisions such as whether or not to have children, and it entails the right to determine the number of children had as well as the means and methods to exercise this choice.[2] The Apex Court in K.S. Puttaswamyv.Union of India expressly recognised “decisional autonomy” as an imperative facet of privacy.[3] This decisional autonomy encompasses the right to make intimate decisions, including reproductive autonomy.[4] The Court clearly legitimised procreative choices as a key aspect of the individual’s right to privacy, protected under Article 21 of the Constitution.[5] Furthermore, even prior to Puttaswamy, the Apex Court in Suchita Srivastavav. Chandigarh Administration held that the individual’s reproductive choices fall within their personal liberty under Article 21 of the Constitution.[6]
The Bill, by attempting to mandate a two-child norm among the population of the state, amounts to regulating the reproductive choices of the individual, including their right to make intimate choices such as determining the number of children. Therefore, this directly goes against the unhindered decisional autonomy of the individual and their personal liberty, as guaranteed under Article 21 of the Constitution. The consequence of such a regulation of decisional autonomy would be the inability to exercise one’s fundamental rights at the cost of State-imposed disincentives.
2. Implications of the disincentives on fundamental rights
Section 10 of the Bill imposes a restriction on applying to government jobs for persons in contravention of the two-child policy.[7]Further, Section 11 bars the promotion of such persons in government services.[8] This provision is antithetical to the object and purpose of Article 16 of the Indian Constitution, which mandates equality of opportunity in matters related to public employment or appointments.[9] This violation restricts such opportunities exclusively to people in conformity with the Bill by debarring the rest with no reasonable classification for the same. Such an unreasonable classification, without an intelligible differentia and a rational nexus with the object sought to be achieved by such classification, would violate the standard for reasonable classification under Article 14, as laid down in State of West Bengal v. Anwar Ali Sarkar.[10]
While it may be argued that the State may lay down certain qualifications for recruitment or promotions in government services. However, in the case of R.S.E.B Accountants Association v. Rajasthan State Electricity Board, the Supreme Court recognised such qualifications to be limited to ‘educational qualifications’ or ‘experience in service’ for the purposes of recruitment and promotion.[11] Only reasonable qualifications, selective tests and processes may be employed, as per the nature of the post.[12] However, classifications based solely on contravention of the Bill through an exercise of an individual’s decisional autonomy to procreate cannot be construed as a reasonable qualification under Article 16. Hence, this classification based on the contravention of the two-child policy is unconstitutional and violative of Article 16 of the Constitution.
Regulating the Private Sphere: Locating the Bill’s Impact through the Habermasian Dichotomy
The violation of an individual’s personal autonomy also results in an infringement into the realm of an individual’s private sphere. This conception of the ‘private sphere’ stems from the distinction between the public and private spheres, characterised by German philosopher, Jurgen Habermas.[13] In this context, ‘public sphere’ includes areas of social life where individuals discuss, deliberate, and formulate governmental policies.[14] It is also extended to cover governmental institutions aiming to regulate public life while respecting the private sphere of an individual.[15] ‘Private sphere’ comprises areas of life where an individual exercises a significant degree of autonomy, free from state regulation or control.[16] As demonstrated earlier, an individual’s reproductive autonomy falls within their decisional autonomy. This falls within the realm of the Habermasian ‘private sphere’, as it grants the individual a significant degree of autonomy over their reproductive choices and intimate decisions. Such a separation between the two spheres is essential to regulate state interference, where the public sphere constitutes the appropriate terrain of state regulation, while the private sphere is considered to be beyond the purview of the state.[17] This state-intrusion would amount to governmental regulation of private affairs such as reproductive autonomy, over which individuals are recognised as the ‘final arbiters’ of their decisions.[18] The dilution of the boundary between the two spheres endangers the purpose of ‘protecting’ the private sphere, making such decisions vulnerable to politicised state action.
The Bill seeks to regulate the individual’s private sphere by mandating a two-child policy, thereby interfering with an individual’s decisional autonomy over their reproductive choices. Consequently, there is a state-imposed intrusion into the private sphere of an individual, thereby breaking the ‘public-private dichotomy’. This undermines the basic purpose of this dichotomy, which is to ensure unrestricted autonomy over areas falling within the private sphere, thereby separating the state from the ‘private’.[19] Further, as will be examined later, this state-intrusion has a disproportionate impact on certain members of society based on their position in the social hierarchy.
Closing the Routes to Social Mobility: An Analysis using Parkin’s Model of Downward Exclusionary Closure
The Bill can be studied in the background of British Sociologist, Dr. Frank Parkin’s model of downward exclusionary closure.[20] Parkin’s closure model reflects the mobilisation of power so as to enhance a particular group’s share of resources while closing off another group’s rewards. Exclusionary closure, according to Parkin, involves the exercise of power in a downward direction by way of subordination, wherein one group gains an advantage at the cost of another group, which the first group has classified as ineligible and inferior.[21]
The Bill creates two sets of citizens who adhere to the two-child norm and others who do not. Under Section 8 of the Bill, all those who are found to have broken the two-child norm are debarred from claiming benefits accruing from state-sponsored welfare schemes[22] and are denied government jobs and promotions under Sections 8, 10 and 11.[23] Further, if a public servant having only one offspring undergoes voluntary sterilisation, incentives such as free insurance, healthcare, and educational benefits in the form of preference in admission in educational institutions are provided to their offspring.[24]
The authors shall analyse the disproportionate impact of such classification using the Total Fertility Rate (TFR), which represents the average number of children borne by a woman during her childbearing years.[25] Studies reflect that the TFR is intrinsically linked to social and economic indicators such as access to proper and adequate healthcare, poverty, infant mortality, etc.[26] Data collected from the National Family Health Survey (hereinafter ‘NFHS’) indicates that over a period of time, the level of fertility has declined in UP, however, the decline is not spread evenly across social and economic groups, with[27] socially-backward communities like Scheduled Tribes (hereinafter ‘STs’), Dalits and Other Backward Communities (hereinafter ‘OBCs’) having the highest TFR in the state.[28] Furthermore, among the socio-economic groups hailing from urban areas and having quality education, the fertility rate has declined.[29] Apart from social and economic backwardness, religion is another key socio-economic indicator that influences the TFR.[30] In UP, the latest NFHS data suggests that the TFR for the Muslim community, being 3.10, is higher than that for Hindus (2.67),[31] chiefly because of the difference in contraceptive usage.[32] Hence, given that the TFR is comparatively higher in these communities, the individuals belonging to these communities would be relatively disincentivised under the Bill. The effect of such disincentives such as debarment from government subsidies and a limitation on procuring ration cards would adversely affect the individuals belonging to these communities, thereby “closing off this group’s rewards”.
Furthermore, Section9 of the Bill imposes a bar on contesting in local body elections for people in contravention of the two-child policy.[33] These ‘local authorities’ include gram panchayats, zila panchayats, municipalities and municipal corporations.[34] In order to examine this, it is essential to delve into the very object and purpose behind the establishment of such local authorities. These bodies are a result of the process of decentralisation, which involves the devolution of power from higher-level authoritative bodies to lower-level authoritative bodies. This is essentially to increase the public’s participation in governance and development at the grass-root level. In the recent case of Rajeev Suriv. Delhi Development Authority and Ors., the three-judge bench of the Supreme Court explicitly noted that the Indian democracy has “strong elements of a participatory democracy embedded in it”.[35] This participatory character of a democracy hinges upon an equitable involvement of the public and their participation in the democratic process. However, such a bar as imposed under the Bill, would be antithetical to this conception of an equitable involvement of the public in the democratic setup. This lack of representation would go against the fundamental principle of participatory democracy, which is to encourage the involvement of the public, spread across all strata of society.
Additionally, the purpose of increasing a particular community’s participation is to foster their upward mobility, as political participation is a key factor in determining their status in society.[36] Hence, by barring socially disadvantaged people, who may be in violation of the two-child norm from contesting for such local body elections, the Bill closes off this route to social mobility. While the state did invite suggestions from the public on the Bill, most of the suggestions were in support of it, and thus the provisions discussed above have been retained.[37]
Moreover, the possible implications of this lack of representation are worsened by the pre-existing conditions prevailing in the state. Since independence, UP has witnessed unsatisfactory representation of Muslims in the sphere of education, government employment, and politics.[38] The Dalits in UP, too, have been subjected to systematic caste discrimination and violence in matters involving rural elections.[39] This clearly shows that in the Hindu majoritarian state of UP, these socially-backward groups have been classified as inferior and ineligible. Therefore, the Bill is nothing but the downward exercise of power by one socially dominant group over another. The Bill, through its draconian provisions, not only reinforces the pre-existing hierarchy but also essentially leads to higher representation of socially dominant groups at the expense of these socially-backward communities. This is a clear representation of what Parkin has labelled as downward exclusionary closure.
Conclusion
While the authors recognise that population control is undoubtedly a legitimate concern that needs to be addressed, the inextricable link between the TFR and the socio-economic reality of the state needs to be taken into account while formulating population control policies. The Bill, as argued, is exclusionary and disproportionately impacts the weaker sections of the society, viz, the STs, OBCs and Muslims in the state of UP. Furthermore, it is imperative to understand the need for a change in the narrative of population control policies, which hinges upon the state exercising control over an individual’s decisional and reproductive autonomy. The state should instead focus on devising alternative less-restrictive policies to tackle the problem of population explosion while respecting the fundamental rights of all its citizens. The state can consider distributing free contraceptives in rural areas, where most families are uneducated on this aspect. This should go hand in hand with the increase in state expenditures for making birth control knowledge and methods freely available. Additionally, given that many couples have more than two children, to ensure financial support in their old age,[40] the state can implement new social security schemes ensuring the same.
The authors, Rupal Dugar and Shamik Datta, are undergraduate law students at the West Bengal National University for Juridical Sciences (NUJS), Kolkata and the National Academy of Legal Studies and Research (NALSAR), Hyderabad, respectively.
[1]Uttar Pradesh Population (Control, Stabilisation and Welfare) Act, 2021; Vatsala Gaur, UP population bill draft: Incentives for couples with less than 3 kids, July 10, 2021, available at https://economictimes.indiatimes.com/news/india/up-population-bill-draft-incentives-for-couples-with-less-than-3-kids/articleshow/84277568.cms?from=mdr (Last visited on August 26, 2021).
[2]International Conference on Population and Development (ICPD), Report of the International Conference on Population and Development, (September, 1994), available at https://www.unfpa.org/sites/default/files/event-pdf/icpd_eng_2.pdf (Last visited on August 26, 2021); Jyotsna Gupta Agnihotri, New Reproductive Technologies, Women’s Health and Autonomy: Freedom or Dependency? (2000).
[3]Justice K.S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 1 SCC 1.
[4]Id.
[5]Id.
[6] Suchitra Srivastava v. Chandigarh Administration, (2009) 14 SCR 989.
[7]Uttar Pradesh Population (Control, Stabilisation and Welfare) Act, 2021, §10.
[8]Uttar Pradesh Population (Control, Stabilisation and Welfare) Act, 2021, §11.
[9]The Constitution of India, 1950, Art. 16.
[10] State of West Bengal v. Anwar Ali Sarkar (1952) SCR 284.
[11] Rajasthan State Electricity Board Accountants Association v. Rajasthan State Electricity Board, A.I.R 2005 S.C 2775, p. 2782.
[12]BanarasiDass v. State of Uttar Pradesh (1956) SCR 357, State of Maharashtra v. Raj Kumar (1982) 3 SCC 653.
[13]JürgenHabermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (translated by Thomas Burger with the assistance of Frederick Lawrence, 1962).
[14]Id.
[15]Id.
[16]Id.
[17]Margaret Thornton, The Public/Private Dichotomy: Gendered and Discriminatory, 18(4) Journal of Law and Society (1991).
[18]RaiaProkhovnik, Public and Private Citizenship: From Gender Invisibility to Feminist Inclusiveness, 60 Feminist Rev. (1998).
[19]Robert H. Mnookin, Public/Private Dichotomy: Political Disagreement and Academic Repudiation, 130 University of Pennsylvania L. Rev. (1982).
[20]Frank Parkin, Marxism and Class Theory: A Bourgeois Critique (1979).
[21]Id.
[22]Uttar Pradesh Population (Control, Stabilisation and Welfare) Act, 2021, §8.
[23]Uttar Pradesh Population (Control, Stabilisation and Welfare) Act, 2021, §8, 10,11.
[24]Id., §4, 5.
[25]Organisation for Economic Co-operation and Development, 2021, Fertility Rates (indicators), available at https://data.oecd.org/pop/fertility-rates.htm (Last visited on August 26, 2021).
[26]Id.
[27]International Union for the Scientific Study of Population (IUSSP), Socio-economic Development and Fertility Socio-economic Development and Fertility change in Uttar Pradesh, (2013), available at https://iussp.org/sites/default/files/event_call_for_papers/iussp_1.pdf (Last visited on August 26, 2021).
[28]Id.
[29]Id.
[30]Roger Jeffery & Patricia Jeffery, Religion and Fertility in India, 35(35/36) Economic and Political Weekly (2000).
[31]Ministry of Health and Family Welfare, (2015-16), National Family Health Survey, http://rchiips.org/NFHS/NFHS-4Reports/India.pdf (Last visited on August 26, 2021).
[32] Kartik Kwatra, What a narrowing Hindu-Muslim fertility gap tells us, February 21, 2019, available at https://www.livemint.com/news/india/what-a-narrowing-hindu-muslim-fertility-gap-tells-us-1550686404387.html (Last visited on September 6, 2021).
[33]Uttar Pradesh Population (Control, Stabilisation and Welfare) Act, 2021, §9.
[34]Id., §3(4).
[35]Rajeev Suri v. Delhi Development Authority and Ors., (2020) SCC OnLine SC 7.
[36]TosibAlam&Surinder Kumar, Social and Economic Status of Backward Muslims in Uttar Pradesh: Need for an Inclusive Policy?, 49(1) Social Change, 78–96 (2019).
[37] Omar Rashid, Two-child policy: U.P. law panel submits draft law to Adityanath, August 16, 2021, available at https://www.thehindu.com/news/national/two-child-policy-up-law-panel-submits-draft-law-to-adityanath/article35945325.ece (Last visited on September 6, 2021).
[38]Id.
[39]News18, #BeingADalit: Everyday Caste Discrimination and Violence in Uttar Pradesh’s Rural Areas Far From Over, February 2, 2018, available at https://www.news18.com/news/india/beingadalit-everyday-caste-discrimination-and-violence-in-uttar-pradeshs-rural-areas-far-from-over-1645213.html (Last visited on August 26, 2021).
[40] Richard J. Ward, Alternative Means to Control Population Growth, 27(2) Review of Social Economy, 130 (1969).
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