July 18, 2021

UP Population Control Bill: A Draconian Proposal

Brinda Karat

ON July 11, World Population Day, Uttar Pradesh chief minister Adityanath, released the UP Population Policy 2021-2022. This policy approach which has been further reflected in the draft legislation on population control stresses on coercive measures. In addition, the policy approach mentions the need to bring “balance between communities”. Although  this issue of “balance” is not mentioned in the proposed bill, it betrays the communal approach of the government. 

The UP policy seeks to resurrect retrograde Malthusian frameworks which were challenged and buried decades ago. The UP chief minister should learn from the Kerala experience. The state with the best social indicators also has the lowest fertility rates -- based on informed voluntary choice.

Adityanath also has spoken about global debates. He should start with  the historic  International Conference on Population and Development held in Cairo in 1994 which gave the slogan of “development is the best contraceptive” and the declaration was adopted by 179 countries including India. This approach was reflected in the National Population Policy 2000 adopted during Vajpayee ji’s time which committed the government to “a target free approach” based “on informed and voluntary choice of citizens.”  In 2019 at the Global Population Conference in Nairobi,  India once again reiterated its policy to guarantee voluntary and informed choices of contraception. As recently as December 2020, in an ongoing petition in the Supreme Court the central ministry for health stated in its affidavit that “ the ministry will not implement a mandatory two child policy by denying government jobs and subsidies.” It further stated “international experience shows that any coercion to have a certain number of children is counter-productive and leads to demographic distortions."  The regime in Delhi with its deafening silence on the issue is encouraging BJP run governments like in UP and Assam to reverse this approach.

The operationalisation of the UP Population Policy approach is through the proposed bill. This bill called UP Population (Control, Stabilisation and Welfare) Bill 2021 is by far the most draconian assault on the rights of citizens compared to all the other 35 or so legislations, measures for population control or proposals made in private member’s bills, in the last few decades. So far most critics of the bill see it as being ‘anti-minority' and as an 'election ploy to divide the people'. This may certainly be the intention and agenda of the Adityanath government. But the scope of the bill is much wider making it anti-poor, anti-women and anti-children. Unfortunately, since many political parties when they have been in government have themselves adopted punitive measures of population control, they find it convenient to make it into a one dimensional critique thus playing into the game of communal polarisation that the ruling regime in UP is known for.

In a period of neoliberal reforms where inequalities have grown hugely, this bill seeks to deprive citizens of constitutionally and legally guaranteed rights and in effect creates two sets of citizens based on fertility.  It is well established that fertility rates are linked to social and economic indicators like poverty, health, literacy, infant mortality.  In India as NFHS data shows, social communities which have higher fertility rates are Scheduled Tribes, dalits, Muslims followed by OBCs. Further, women of those sections of the population with the lowest income had the highest fertility rate. In other words, they are both poor and socially oppressed. This bill punishes the poor and oppressed for their poverty.

In the bill, Clause (8) and its various sub clauses debar all benefits from government sponsored welfare schemes to those who break the two child norm, denial of government jobs and even promotions thus violating labour laws. Since SCs and STs have higher fertility rates in UP, this will also affect reservations. The clause is  open ended which means that rights to housing, to education, to various social security schemes can all be denied if a third child is conceived after the Act comes into force. This means also that a third child may be debarred from going to an anganwadi, or to access a mid day meal. This is not as unlikely as it may seem. There is a specific sub-clause that subsidised rations will be given to only four units. This is in clear violation of the Food Security Act that has no such conditions. The bill has an obnoxious clause that it “overrides any other law in force.” Can a state government deprive citizens in the state of benefits of a national law adopted by parliament. Only recently in Delhi when the Delhi government proposed a scheme to provide doorstep delivery of rations, the central government held it was against the FSA. Now why is it silent on this proposal which deprives a child of rations against the FSA? It hardly needs to be stated that such policies will increase hunger, malnutrition and lead to worsening child mortality rates apart from constituting a gross assault on rights of children. How can a government punish a child for being born -- but this is what the UP government proposes.

We know that historically all population control policies are centred on control over a woman’s body and are premised on a denial of the woman’s reproductive rights. In India, this patriarchal framework is further strengthened by cultures of son preference accompanied by sex selective tests and abortions of female foetuses. Since the data for UP was not available for the first round data of the NFHS-5 published in December 2020, for 18 States and UTs, we go by the figures used by the Niti Aayog for 2015. UP had an alarmingly low sex ratio of just 879 females to 1000 males -- one of the worst records in the country. To impose a two child norm in such a situation will surely lead to further pressures on pregnant women to undergo sex determination tests and abort female foetuses if they do not have a son. Women have little choice in the matter. Since it is women’s fertility which is sought to be controlled, most population control measures have a disproportionate impact on women.

This was seen in earlier highly negative experiences of laws passed by several state governments to impose the two child norm as a condition to be  eligible to stand as a candidate in local body  elections. Surveys at the time  had clearly shown that the main brunt was borne by poor women including those who would have fought in reserved constituencies. Many women were disqualified.  In some cases, where candidates were male,  they denied that the third child was theirs. In others, women and children were asked to leave the marital home. A 2009 report supported by the panchayati raj ministry quoted a study which showed that from “21 districts in five states where the two child norm was operational: 54 per cent of the disqualified candidates were either illiterate or had only primary education;  78 per cent  of disqualified candidates belonged to SCs/ STs/ OBCs which are socially weaker sections of population; nearly half the respondents had annual income of less than Rs 20,000.” At the time, the Supreme Court had done a grave disservice to democratic processes by upholding such laws when they were challenged by women’s organisations and affected women candidates.  The UP bill includes the two child norm disqualification clause in local bodies ignoring past experiences which show its detrimental impact on the democratic rights of the poor particularly on dalit and adivasis and women.

In the bill, even the so-called incentive clauses from Clauses 4-7 will go against women. Several incentives such as promotions for a government employee, interest free loans etc are conditional on “the employee or spouse” in getting sterilised after two children and the incentive goes up if the sterilisation is done after one child. It is clear that it is the woman who will be pressurised into getting  sterilised. According to a report published by the National Health Mission, between 2017-18, 93.1 per cent of the sterilisations performed in India were on women. Since all the incentives in the bill are linked to sterilisations, we can expect a further increase on the burden on women in this regard.

This reversal from reproductive rights to fertility control comes at a time when data of the NFHS-5 shows a remarkable secular decline of fertility rates. Of the 17 states analysed, all states except Bihar, Manipur and Meghalaya have a TFR of 2.1 or less, which implies that most states have attained replacement level fertility. Further the data shows that between 2006-2006 to 2015-2016 while the fertility rate of Hindu households fell from 2.6 to 2.1 the fertility rate of Muslim households registered a sharper fall from 3.4 to 2.6 registering the highest decline of any community. State wise the sharpest decline was seen in Assam, where the fertility rate of Muslim women came down from 3.7 to 2.4.  This is lower than the fertility rate of Hindu households in Bihar at 2.9. In Jammu and Kashmir the fertility rate among Muslims is 1.45, again lower. This data leads to two important conclusions. The first is that fertility rates are declining in many states to below replacement level put at 2.1 without the use of coercive laws. Secondly, the communally motivated propaganda against Muslims regarding family planning is clearly refuted by facts. In general,  India’s population is bound to increase because of the large percentage of younger people who will be planning families. But going by current trends, the health ministry has projected that the fertility rate is projected to fall to 1.93 by 2025 and to 1.8 by 2030.

While the UP government  may want to target Muslims, it is the VHP which has come out in opposition to the “one child norm” mentioned in the bill. It was none other than the RSS chief Mohan Bhagwat who had said in 2016 at a meeting in Agra: “Which law prevents Hindus from having more children, when their population is increasing, why can't yours”. Hindutva leaders have exhorted Hindu women to produce more children as their patriotic duty. Will they be happy with this bill? Moreover they may also feel a certain sense of discomfiture with the legal recognition the bill gives to practices of polygamy. The bill states in Clause 18 that a Muslim man under personal law may marry more than once -- under sub clause (2)  his wives can have two children each and qualify for incentives under the law. He will be disquallified from incentives and disincentives will apply as the numbers of children he produces will be counted cumulatively, but his children and wives can have the benefits. 

The CPI(M) and the Left have been consistent fighters against coercive population policies. The Party has worked in coordination with and supported the sustained struggles of women’s organisations including AIDWA against such policies. As can be seen from the current developments, a much bigger intervention is required from other mass organisations also.