NEED FOR POPULATION CONTROL LAWS IN INDIA

Paikar Mustafa

Law College Dehradun, Uttarakhand

Graduate 2019



ABSTRACT

Population explosion is a term we all are acquainted with and have familiarity with the issues and problems arising due to the uncontrolled population growth. The population in India has grown fourfold since independence while we stand on the threshold of becoming the most populous country in the world with the tag of developing nations. The ongoing times of pandemic have brought into radar several aspects of problems that are either being ignored or not reflected in legislative policies. Population control laws are one of them lying at the root of other problems. The article throws light upon the genuine need for the population control laws while analyzing the attempts made in this regard with the current status of the population growth graph in India.


1.1. INTRODUCTION

In a democratic Polity like India, the largest in the world, the laws are made on the foundation of Salus Populi Suprema lex esto i.e., the welfare of the people should be the supreme law. Few would disagree with the fact that Population control laws should be made in the priority which would cater to the welfare of the nation, its citizen, and futuristic developments. The Outbreak of pandemic COVID-19 is an unprecedented, unpredicted and till today is the Gargantuan problem of the whole humankind exposing deep inequalities and feeble combating mechanism in a multitude of areas to tackle the outbreak and its impact which are going to be forever imprinted on the history of humanity at the brink of hopelessness. The increasing level of the uncontrolled population has demerits in every aspect say one the healthcare need and availability of good healthcare facility to the populace while it remains the most craving yet basic facility in the ongoing times. The immediacy of this need has never been felt more acutely than now as the other surfacing problems can rightly be called the progeny of this nodus predicament. The desperate times require desperate measures, investing in a strict population control law in order is thus a desperate measure needed. India is becoming a leading nation to the world in several aspects of learning and improvement and being the most populous country with exceedingly increase rate is the last thing the world expects from this nation and to lead by example is to make sure the most obvious problem does not remain ignored for long now. It is thus in this light, the article throws light upon the attempts that were made in the identification of the issue, curbing it, the sensitivity of the issue, and the urgent need of laws addressing the worldwide known issue.


1.2. INDIA’S CURRENT STATUS

India has a population of 1.37 Billion people and the ongoing rate is set to surpass China as the World’s most populous Country by 2027. India is expected to add 230 million by 2050.

However, Population growth in India is on slow but steady decline comparatively. Population growth declined Population growth declined in India by 21.5% between 1991 and 2001 and declined by 17.7% between 2001 and 2011. As per the reports of the United Nations Population Division India’s Population is projected to peak at 2059.

India's fertility has also decreased precipitously in recent decades. In 1985, India's total fertility rate ( TFR) according to the Sample Registration System of the Indian Government stood at 4.3 children per woman of reproductive age. However, by 2017 the national TFR had decreased to 2.2.

Usually replacement fertility — the minimum fertility level needed to replace each generation — is estimated at around 2.1 children per woman. But the rate of replacement could be higher in countries where an infant or child mortality is high, or in countries where the sex ratio is significantly distorted by the practice of sex-selective abortion and postnatal daughter neglect.

A recent report by the Population Research Institute found that about 15.8 million girls in India have been eliminated from the population since 1990 due to sex-selective abortion practice.

In its recently published Economic Survey 2018-2019, the Indian Ministry of Finance claims that replacement fertility rates in India currently lie somewhere between 2.15-2.2 due to these significant imbalances in the population sex ratio. In 2017 the real average fertility rate was 2.2. Considering the downward trend in fertility over the past few decades, today is likely to be even lower – and below – replacement rate.


1.3. ATTEMPTS TO CONTROL POPULATION

Talks of population control are not new in India. It dates back to the time since India attained her independence and starts treading on Sovereign freedom. In 1951, India became the first country to introduce the State-Sponsored Family Planning Program called the National Family Planning Program with the primary objective of lowering fertility rate and slowing population growth with the motive to promote economic development. The program was conflated with nationwide awareness with a view to developing healthy and economically sound benefits of small families through various public programs, policies, and nationwide appeals of lawmakers. The era of the National Family Planning Programme met with the onset of developing India where ruralization had the grappling power and responsibility of development and little did education could be used to enlighten the people freed from clutches of century-long shackles of colonization.

It was during the time of the infamous emergency period, 1975 when the efforts of the government to control population growth turns to horrific figures whereby the nationwide emergency was imposed to forcibly sterilize the people. The figures show that around 8 million people were sterilized, mostly poor men in an attempt to reduce the population. The move was met with aggressive criticism and was termed as a violation of human rights which can hardly be argued otherwise. Moreover, the quality of the contraceptives care administered to women, clinical trials for hormonal contraceptives constantly received acerbic remarks from human rights organisations, women organisation as it was claimed that procedures followed were largely unethical. On the release of the Five Years Plan in 1985 the government acknowledged the concerns hindering the execution of the National Plan, vigorous sterilization was viewed in non-conformity of the plan. Method specific family planning targets were removed by 1996 and in 1997 the National Program was reoriented and the approach was shifted to broadly address health and family limitations. It was done by launching the Reproductive and Child Health Program.

As many as 36 Private Members’ Bill have been introduced in the Parliament calling for population control which could not meet their fate of translating into law. The demand for urgent population control is growing in recent times. In 2015, the Rashtriya Swayamsevak Sangh (RSS), an ideological parental wing of the ruling Bharatiya Janta Party passed the resolution requesting the government to revisit the Country’s population policy in the wake of the alarming problem of a demographic imbalance. One such series of events include the 79th Constitutional Amendment 1992 introduced by the then Health and Family Minister in the Tenth Lok Sabha which is still under consideration.

On February, 22 the then Prime Minister Late Atal Bihari Vajpayee constituted the National Commission to Review the working of the constitution headed by Justice Venkatachalliah. The report running 1979 pages was presented on 31 March 2002 proposed the provision of small families for the purposes of population control albeit the report was not tabled before the parliament. Recently a case was filed before the Delhi High Court by the BJP leader Ashwini Kumar Upadhayay seeking the implementation of the Committee report of 2002 whereby the Government should adopt the recommendations. The concern of the population control is being raised by filing the PILs in the Supreme Court seeking to force the government to adopt the nation-wide two-child policy.

Notably in this backdrop, In 2017 Assam adopted the two-child policy barring anyone with more than 2 children from holding any government post. It is pertinent to note that in the election of local self-government, the condition of two or three children to consider candidacy has surfaced to appear.


1.4. TWO CHILD POLICY: BRIEF ANALYSIS

Currently, the National Population Policy, 2000 addresses the problem of population control which aims at affirming the commitment of the government towards voluntary and informed choice and consent of citizens while availing of reproductive health care services, and continuation of the target free outlook in administering family planning services. The NPP 2000 provides a policy framework for advancing goals and prioritizing schemes during the next decade, to meet the reproductive and child health needs of the people of India, and to achieve net replacement levels (TFR) by 2010. The objectives of the policy are to address the unmet needs for contraception, health care infrastructure, and health personnel. The goal of the policy remains stabilization of the population for promoting sustainable development with more equitable distribution. However, the presence of policy could not achieve the substantial stabilization of the population.

At present, there are two private member bills in the Rajya Sabha on the two-child Policy - The Population Regulation Bill, 2019, and The Population Control Bill, 2020.The Population Regulation Bill aims at promoting the two-child policy while making holistic provisions for voluntary sterilization and the benefits coming annexed therewith. It provides for the obligation of the government to make provisions for accessible, affordable, and quality reproductive health 20 care services across the public health system across the country. It makes provision for stripping of benefits or barring people from availing facilities or additional penalty including a reduction in subsidies, reduction in the ration, lower rates of interest in banking institutions, etc.

The Bill makes provision for the establishment of Primary Health Care Centres, spreading awareness about small family norms, distribution of contraceptives, etc. It gives power to the central government to make necessary arrangements to give effect to the provisions of this Act.


1.5. The Population Control Bill, 2020

This Bill was introduced to seek the Amendment in the Constitution which provides for the insertion of a new Article 47A in Part IV, Directive Principles of State Policy.

Article 47A- The State shall promote small family norms by offering incentives in taxes, employment, education, etc. to its people who keep their family limited to two children and shall withdraw every concession from and deprive such incentives to those not adhering to the small family norm, to keep the growing population under control.

There are supports to the Bill(s) which sought to long change that could altogether reshape the policy and measures of realizing the population control.


1.6. Reasons for Population Explosion

There are innumerable reasons that can be attributed as the cause of the uncontrolled population growth. The major reasons for the same in the Indian subcontinent are as follow:

1) Indian population largely irrespective of educational qualifications or achievements are heavily skewed towards having a male child. Express ban on sex-selective practices has given rise to the birth of multiple children for the same reason of extending lineage.

2) The same reason leads to more than one marriage which results in multiple progenies adding to the population growth.

3) Early Marriages: Though there are legislations making practices of child marriages a penal offense still the legal age of marriage in India is in teenage. The fertility in a spouse in the early marriage is high and often leads to accidental pregnancies.

4) The use of contraceptives is still considered taboo in many parts of India especially rural areas, thus unwanted pregnancies are at a high rate.

5) Marrying and having children necessarily is imposed as a compulsive norm by giving the whole process the meaning of “settlement”. Adoption is the least considered method for having and raising a child.

6) The abortion process (Medical Termination of Pregnancy) is complicated and not an easy option to resort to which results in the maturity of pregnancies for the unprepared parents themselves.

7) As unfortunate as it may sound, the offense of rape is regularly on increase in India and tops the list of the crime against women. Many rape victims (survivors) conceive a child of their offenders and the rarity of the abortion because of its adverse impact on the reproductive and mental health of the woman (mother) leaves them with no option but to sustain the pregnancy and give birth to the child with undetermined fate.

There are several other loads of reasons which personally touch the lives of married people ultimately cumulating into the amoebic (uncontrolled) population growth.


1.7. POPULATION: A DEBATABLE ISSUE

Population growth and control are nothing but two sides of the coin making the issue debatable for both apparent sides. In this context, where the current focus of India remains the curb on the increasing population there are countries that have promoted and supported the population growth. Hence, the support of the population growth is termed as Pro Natalist Policy while the other that seeks control are Anti-Natalist Policies.

Pro Natalist Policy

Pro Natalist policy encourages more births through incentivising process, believes in promotion of reproduction of human lives. These policies are designed with the purpose of increasing birth rate of a given area. France, Singapore in late 1980s and America are pro-Natalist countries.


The French Policy

France comes amongst few of highly developed nation of the world with consistent growth rate in terms of technology and economy. The French introduced the "Code de la famille" in 1939, a nuanced piece of pro-natalist legislation. The policies included the pro natalist methods:

- Offering cash bonuses to mothers staying at home to take care of the children.

- Subsidizing holidays.

- Prohibition of the marketing of contraception (abrogated in 1967).

Currently, France is facing a crisis of rapidly decreasing support ratio, low fertility rate and falling birth rate. Today, more than 21 per cent of the population in France is over 60 and it is projected that by 2050, 1⁄3 of the population will be over 60. The economic impacts of this low assistance ratio are huge. France's fertility rate was 2.75 children per woman in 1960, well above the replacement point of 2.1. By 1992, however, the overall fertility rate had dropped to 1,67, slightly lower than the point of replacement. The reason that can be attributed to this downfall are very obvious. The women became self-concerned and empowered and started focusing on employment rather than sticking to raising families.

The Policy of 1939 offered many incentives including:

· Payment of hefty sum to couples having their third child

· Generous Maternity Grants/Benefits.

· Increased Family allowance to keep up with increasing purchasing power of the family.

· For the first child up to 40 weeks or more, for the third child, maternity leave on near full pay for 20 weeks.

· 100 per cent mortgage and preferential rates in three-bedroom council flats distribution.

· Parents get full tax benefits before the youngest child reaches 18.

· Ticket cut of 30 per cent for three children Families.

· Beneficial Pension Schemes for mothers/ housewives

· State funded childcares for children aged 3 months, again ensuring that women will continue to work with minimum financial penalties after giving birth, etc.

This legislation of 1939 has undergone several changes till now and the success of the implementation are evident as the fertility rate of Frances has risen from 1,67 in 1992 to 1,98 today, and although this is still below the replacement point, it shows that the family code is rising the fertility rate as needed.

However, the policy has been controversial due to budget required to for its long run and the several other factors adding to the population growth of the country. The policy has been maintained by successive governments so far and yielded results; its discontinuation appears to be far-fetched in the Country.


Anti-Natalist Policy

The Policy aims at reducing birth rate or fertility rate by encouraging people to abstain from giving birth to keep population check and incentivising small family norms. China leads in example when it comes to Anti-Natalist Policy, the rigour of implementation and results of which are axiomatic.


One Child Policy

In 1979, China introduced one child policy rule as direct result of the increasing population of china. The fertility rate of China in 1960s stands high at 5.7 percent which could not be afforded or sustained by the country economically. The policy brought in penalties and fines for the people violating it by having more than one child and providing financial incentives to those who adhere with the policy. Law implemented to restrict the number of births that were extended to the Han majority (90% of the population) but not to the ethnic minorities.

· Cash incentives, better accommodation, and free education / medical care given couples are limited to one child.

· Free birth control, and guidance on family planning.

· Age limitations and marriage certificates.

· Couples will need to seek marriage certificates.

· The policy was met with aggressive protests and civil unrest with the following reasons:

· Women were subjected to coercive sterilisation and abortion.

· In rural areas, people opposed the policy because they need males to work on their fields.

· Sex selective abortion practices started and girl child is abandoned at large rate.

· Policing was increased invading the private space of families and couples.

As a result, the policy was revised and major amendments were brought about including:

· In rural areas, where first child is girl, the couple may have second child.

· If the first child is unhealthy, the couple may go for second child

· If both parents are only children of their parents, they can have two children

The policy exhibited high success rates including:

· The average fertility rate fell from 6.2 in 1950 to 1.6 in 2009, which is below replacement. Natural growth rate has fallen from 2.2 per cent in the 1970s to 0.5 per cent.

· Strategy has met with the greatest success among urban populations. It was less effective in rural areas where families kept having two or three children.

· It was calculated that about 400 million births may have prevented by this policy

· There is high level proclivity of female employment in China, where the society was inclined to having a male child.


1.7. IMPORTANCE OF POPULATION CONTROL

The topic of population control has been a causes célèbres for a while now giving rise to the unwarranted speculations, hypothesis, and theories that should and need to be work in the only way that is to bring upon this most needed reform. The merits outweigh the disadvantages which dare I say do not pose relevancy in the comparison. To begin with, the advantages that are globally known and being the subtle reality is that natural resources are limited and they are on the continual exhaust and the ongoing times of pandemic having exposed the limitation of humankind has brought forth the actualization of the need to utilize and limited consumption of resources while maintaining the sustainable development goals. We cannot be selfish enough to leave our future generation struggling with barrenness. Can we? Further, it goes without saying that the development of human resources holistically sits at the core of the development of any nation. The issue involves concerns such as better education, health care system, better employment opportunities, and certain other benefits including but not limited to environmental cleanliness, personal physical and mental health concerns, freedom, and independence in sustenance terms. The Prime Minister of India has expressed his concern and called for population control policies to contain reckless and shoddy population explosion in India. He warned the people of existing problems that are aggravating due to increased population and referred that having small families and embracing small family norms is an “act of patriotism”. The phrase per se contains a wide array of interpretations which has to be looked just the way it appears. Nation-building is inchoate without popular support and participation because the legitimate expectation from the state holds ground when the citizenry acknowledges the responsibility on their own without a statutory mandate.


1.8. CONCLUSION

As much straightforward, the issue appears and as simple the resolution sounds, the excessive political contour creates a Hullabaloo out of the identification, deliberation, and resolution of the issue. The population control is viewed as “Agenda” because of the way it is presented, the exhibition of support towards it, and the opposition of the same as not being the pressing issue. Viewing the current scenario when pandemic onslaught is a daily routine and the coping mechanism is brought to the knees, it would be in the fitness of the things to say that now more than ever, the issue needs to be considered towards settling a plan that works and aims towards strict population control law even if that means time-slab two-child policy. This should be understood that the issue should not be made any community-centric nor should its resolution contain any bias, it is for furthering the betterment of people and so of the nation as a whole. The current health crises and the arrangement being made on a regular basis to mitigate the impact of the loss that is being caused due to the pandemic is a war far from over. For one thing, this pandemic has reaffirmed to the humankind is that future is always bleak, the least that we can do is to better prepare ourselves. Who’d have known that we’d be living in pandemic struggling for survival as the number is in abundance, the resources, unfortunately, are not so.

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