This article is co-authored by CPPR Intern Yashasvi Pandit.
The Law Commission of the state of Uttar Pradesh has come up with the highly debated and contentious draft of the Uttar Pradesh (Control, Stabilization, and Welfare) Bill, 2021. The Bill proposes to address the requirement for the provision of basic necessities of human life including affordable food, safe drinking water, decent housing, access to quality education, economic/livelihood opportunities, power/electricity for domestic consumption, and a secure living to all citizens. In order to meet these basic rights and in lieu of the limited ecological and economic resources, the bill aims to control the population of the state by implementing and promoting the two-child norm for eligible couples by means of incentives and disincentives. The Bill raises two sets of significant questions related to – i) the Constitutionality, and ii) the necessity of the two-child norm itself.
Will it be able to pass the constitutionality test?
The disincentives mentioned in the Bill challenge the very fundamental rights of the citizens, especially women and children. The Bill with its aim to “control” and stabilize the population through “welfare” provisions such as “voluntary sterilization” is itself directed at controlling the fertility and reproductive rights of the women. It transgresses the right to procreation recognized by the Supreme Court in the Rajagopal v. State of Tamil Nadu judgment in 1994. The judgement read that ‘a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent— whether truthful or otherwise and whether laudatory or critical.’ It falls under the ambit of the right to privacy under the right to life and personal liberty of Article 21 of the Constitution. The Bill is inherently draconian and highly discriminatory, it compromises the very basic right to equality of opportunities by denying the right to contest in elections, the right to employment in certain government jobs, and denying promotion in government services. In addition, it debars the couple who do not conform to the two-child policy from the benefit of government welfare schemes which challenges the very spirit and philosophy of the Constitution. Further, the Bill extends the disincentives by depriving children, who are already from below the poverty line, of rations by limiting the cap up to the four members in a family. This directly contravenes the Food Security Act (FSA), 2013 whose guiding principle is to ensure healthy and nutritious food to the children in the age group of six months to 14 years. The policy clearly sets out provisions that might increase hunger, malnutrition, and worsen the child mortality rate. However, it is pertinent to note that the Bill presented by the Law Commission of Uttar Pradesh might pass the test of constitutionality considering the fact that these fundamental rights are not absolute.
Debunking the myth of “population boom” in the state
Interestingly, according to the National Family Health Survey- 4 (2015-16), the total fertility rate (children per woman) in Uttar Pradesh has declined from 3.8 in 2005-06 to 2.7 in 2015-16. There has been a noticeable decline in population growth without the introduction of any coercive measures. This essentially raises the question about the necessity behind the introduction of the two-child norm itself. Even the Supreme Court recently in 2020, while rejecting a petition asking for the enforcement of the two-child provision noted that “with fertility rates falling across states, India does not need a two-child policy”. According to the World Bank, the fertility rate of India has reduced from as high as 3.11 in 2000 to 2.2 in 2019 which is close to the replacement levels. The overall fertility of the country is projected to decrease without resorting to any coercive methods. Analyzing the fertility trends, the new UP two-child policy Bill looks rather irrelevant. The reason for tabling such a bill fails to match the actual facts. The haphazardly put-out Bill seems to do more harm than benefit to the state. The skewed sex ratio of the Chinese one-child policy is no big secret. It has led to demographic distortions and gross sex discrimination. In addition, the Bill might be suspected to have communal motivations. Various political leaders, time and again have demanded for a population control law specifically aimed at controlling the alleged population boom among the minority communities. Considering the earlier narratives from many BJP leaders, one cannot deny the claim that the Bill intends to alienate and vilify the Muslim community. Although facts suggest that the TFR of the Muslim community has dipped; opposition party leaders, policy analysts and demographers are skeptical about the intentions behind this Bill especially considering the timing of the Bill, before the Assembly elections of 2022.
Not the first state to bring in such a law
The state of Uttar Pradesh has not been the first to implement a two-child norm. Prior to this, other states like Andhra Pradesh, Madhya Pradesh, Haryana, Odisha, Rajasthan, and recently, Assam have enforced the two-child norm at various points of time for elected panchayats, urban local bodies, and also for entry and promotions of employees in public services and to decide the eligibility for government’s welfare programs and services. Nirmala Buch (2005) studied the implications, consequences, and experiences of the policy across these states. The study came up with interesting and significant findings of the norm which was widely considered to be coercive at the grassroots levels. It was noted that the powerful classes and castes were able to circumvent and bypass the provisions of the law. Other disquieting findings of the study were sex-selective abortions, desertion of wives and bigamy, induced abortions, denial of paternity to the third child, and increased infant mortality rates. It is clear that this norm is already set to hamper the rights and state of women and children the most, at the intersections of castes and economic classes. The norm rather than ensuring the control and stabilization of the population has been a recipe for crass oppression. There have been examples of states like Kerala, Tamil Nadu and West Bengal that have successfully controlled the population growth without turning to coercive measures.
What does evidence say?
Many empirical studies have proven a causal relationship between female literacy and the fertility rate. The measures of family planning and awareness when substantiated with an increase in the education and empowerment of women have consequently led to a decline in the fertility rate. Examples of this are the states of Kerala, West Bengal and Tamil Nadu with Crude Birth Rates (CBR) of 14.3, 15.0 and 15.4 in 2016. Study conducted by the National Institutes of Health (2014) noted that the northern states had higher unwanted fertility due to unmet need of contraceptives and son preference while the Total Fertility Rate (TFR) in the southern states were lower due to a weak son preference, lower unwanted fertility and a leaning towards further education and employment. Further, the demographic transition and developmental success in the state of Kerala is remarkable, where the Infant Mortality Rate (IMR) is as low as 4.4 and the total fertility rate of 1.8 as reported in the National Family Health Survey- 5 (2019-20). These resulting trends can be attributed to the high female and overall literacy in the state. Studies have ascertained that it is because of high levels of education that the state has been able to achieve population stabilization without enforcing coercive methods like sterilization or the two-child norm. The state focused on increasing awareness regarding family planning through education, reducing infant mortality rate, and providing healthcare services. The Law Commission of the state of Uttar Pradesh could have looked deeper into the need and potential ways to stabilize the population. An emphasis on female literacy, healthcare facilities, and awareness about the use of safe contraceptives are proven viable and rational policy decisions. The two-child bill of the state seems to fail the test of evidence and rationality, it is certainly not a case of effective policymaking. The research team of the Commission was either deliberately indifferent to these facts or just plain incompetent to not have taken them into due account. The factual reality disproves the motivations of the proposed Bill. Indeed, the norm introduced in a haste right before the arrival of the assembly elections looks like a bitter pill that is too hard to swallow and all the more difficult to digest!
 National Family Health Survey (NFHS-4) Uttar Pradesh – Factsheet. (2015-2016). Ministry of Family and Health Welfare
 Buch, N. (2005). Law of Two-Child Norm in Panchayats. Economic & Political Weekly. Vol. 40, Issue No. 24, 11 June, 2005
 Female Literacy, Fertility Decline and Life Expectancy in Kerala, India: An Analysis from Census of India 2011. Journal of Asian and African Studies 2016, Vol. 51(1) 32–42© The Author(s) 2014 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/0021909614541087
 SRS Report. (2016). Chapter 3-Estimates of fertility indicators. T (Pg 48, Table- Statement 14) https://censusindia.gov.in/vital_statistics/SRS_Report_2016/7.Chap_3-Fertility_Indicators-2016.pdf
 National Family Health Survey (NFHS-5) Phase-1. (2019-2020). Ministry of Family and Health Welfare. (pg 73)
Views expressed by the author are personal and need not reflect or represent the views of Centre for Public Policy Research.
This article was written by Goutham K A & Yashasvi Pandit