It turns out the year 2021 is no exception when we don’t get to hear the talks of population control again in our waking life. Some discussions are being heard in the hallowed halls of Indian courts; some are manifesting themselves in the form of state legislatures. Last week, Firoz Bakht Ahmed, a progeny from the family of India’s first Education Minister Maulana Abul Kalam Azad, approached Supreme Court and filed a petition before it seeking directions to frame effective rules, regulations, and guidelines to control the burgeoning population in the country.
Petitions for Population Control: A Never-Ending Series
This petition sounds similar, in its form and intent, to another plea filed by Ashwini Kumar Upadhyay, a BJP leader and a lawyer. Before moving to Supreme Court in November 2019, the petitioner, Ashwini Kumar Upadhyay had approached Delhi High Court with the same plea. Delhi High Court, however, had dismissed the plea in September 2018. Ashwini Kumar Upadhyay had submitted that the Government had failed to implement one of the recommendations of Justice Venkatachaliah Commission that could help rein in the population growth. The former Chief Justice of India, Justice M N Venkatachaliah had proposed the insertion of a Directive Principle, in the form of Article 47A in the Constitution to control population explosion.
In another news from last year, in February 2020 a private member bill was tabled in Rajya Sabha on a similar issue. Shiv Sena MP Anil Desai, in his bill, sought to amend the Constitution to include Article 47A. The Article 47A, as cited in the Bill, reads ‘‘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.’’ This was also not the first time such a bill was introduced in Parliament. In July 2019, Rakesh Sinha, a member of BJP proposed a law to impose a penalty on people for having more than two children in his private member bill.
In January 2020, the supreme court issued a notice to the Union Government in regard to the petition filed by Ashwini Kumar Upadhyay. The Union Government filed an affidavit in December 2020, in response to this plea, had stated that “The family welfare programme in India is voluntary in nature which enables couples to decide the size of their family and of the family planning methods, best suited to them” and that any coercive action to limit the number of children, as evident by the international experiences, deemed to be counter-productive and “leads to demographic distortions.”
These two, Firoz Bakht Ahmed vs UoI and Ashwini Kumar Upadhyay vs UoI, aren’t the only such petitions filed with the Apex Court. Earlier in 2018, a trio of lawyers had submitted a writ petition to the Supreme Court of India “beseeching this Hon’ble Court to issue directions to the Respondent Union of India to formulate, enact and implement a strong Population Control Law, in view of the exorbitant rise in population in the Nation, which is indeed instrumental in a catena of social, economical, professional and demographical Problems in the Nation.” The petitioners referred to Javed & Ors vs State Of Haryana & Ors wherein the three judges bench of Supreme Court had “Categorically Upheld the Stringent Provisions Pertaining to Population Control as intravires of the Constitution, Salutary and in Public interest.”
The provision from the 2003 judgment, as reproduced in the writ petition, held that “175. (1) No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who – (q) has more than two living children.” Supreme Court had rejected this petition saying that it was a matter of policy and that the court cannot intervene.
It should be noted that since 2003, twelve states have implemented provisions similar to Javed & Ors vs State Of Haryana & Ors debarring people with more than two children from contesting Panchayati Raj elections. In recent times proposal of enactment of similar measures in Lakshadweep, Lakshadweep Panchayat Regulation, 2021, draft legislation proposed by Lakshadweep Administrator Praful Khoda Patel, have seen vehement opposition.
It is quite apparent now that the slew of these petitions submitted to the Indian Courts (some entertained, others rejected), form a kind of pattern, sinister and innocuous, in its language and narratives. The discourse of population control has also been sustained and maintained through other avenues as well.
For example, in 2018, 125 Law Makers had written to President Ram Nath Kovind asking him to implement a ‘hum do – hamare do” (two-child policy) law and issue penalties to those who violate the law. And how notoriously Baba Ramdev in 2019 stated, at multiple times, that India should enact a law to deny voting rights and government services if a family bears a third child. Baba Ramdev has recently been seen in a legal battle with Indian Medical Association over his remarks that Allopathy cannot cure covid. His foot-in-the-mouth statements certainly raised some eyebrows, but his influence on steering an ideology on the national canvas cannot be undermined.
As of June 2021, there were reports of the Uttar Pradesh Law Commission drafting a law to “limit the benefits of state schemes to those with two or fewer children.” Justice Aditya Nath Mittal, a retired Allahabad High Court Judge, and the current Law Commissioner of Uttar Pradesh explain the reason, as quoted in The Print: “Population control is a necessity. UP has more than 22 crore population, which is higher than many countries. So it’s necessary that at some point of time one should take measures.”
This came few days after the announcement of a proposal of population control policy by the Assam government. This new policy would impact beneficiaries of certain schemes of the Assam state government. The Assam government sought to implement a two-child policy, for example in the case of a housing scheme launched by the state government. The Assam Chief Minister also said that it would be impossible to impose the same policy on the many schemes of the Union Government such as availing free admission in schools and colleges, or houses under the Pradhan Mantri Awaas Yojana.
The Myth of Population Explosion
“Population explosion is the root cause of more than 50% problems of India”, Firoz Bakht Ahmed states in his petition, as reported in many news articles. He also invokes, in the same manners many others did in the past, the implementation of the recommendation of Justice Venkatachaliah Commission, Article 47A, in his petition. While we await the fate of this PIL and its course in the coming days, we certainly remember how the Ministry of Health, a respondent in the case of Ashwini Kumar Upadhyay vs UoI, opposed the two-child norm in no uncertain terms.
The term Population Explosion was almost obsolete, since the devastating policies of population control measures in the Emergency Rule imposed by the former Prime Minister Indira Gandhi, until 2019 Independence Day when Prime Minister Narendra Modi mentioned it in his speech. He implored the people of his country with the pleas of population control and how this would be an act of patriotism.
The population currently stands at 1.37 Billion and is projected to grow 1.52 Billion in 2036. Even with these numbers, India is making significant progress in stabilizing its population growth. One of the common worries among the proponents of population control legislation is that this growth would burden the already shrinking natural resources of India. The population explosion has also been blamed for the prevalent unemployment, poverty, poor health infrastructure, environmental degradation, and climate change. This echoes with the global anxiety that increasing population would enhance the impacts of “climate emergency”.
The racist, imperialist overtones of such population control measures are perceived as directed specifically towards the developing nations in the Global South. The fact that in 2017 the Total Fertility Rate (TFR) (the average number of children that a woman is expected to bear in her lifetime) in the country was 2.2 (it was close to 6 in 1960), though slightly above the expected 2.1 marks, shatters the myth of a population explosion or even the unbridled growth. Moreover, TFR is projected to drop to 1.3 by 2100, and this should certainly ameliorate some of the anxieties around population growth.
The idea of a population explosion or “bomb” that one day would “explode” and rupture the already inefficient and crumbling social, economic, and ecological fabric of this country surely is a sustained myth that has been resurrected time and again. And it often finds itself entangled with the public conscience and psyche, mainly driven by zealot demagogues for the wants of social, political, and economic power. At the global level, the population control narratives show the hues of racism, at home this takes the forms of classism, casteism, and islamophobia.
The tragic deaths in Bilaspur District, Chhattisgarh in November 2014 is a grave reminder (as if the mass sterilization programmes of the Indira Gandhi-led Emergency era could not warn us enough!) of what could go utterly wrong with adopting coercive measures for population control. Out of about 140 women who attended these camps, 13 women died and about 70 women were in critical condition.
Most of these women who had undergone sterilization were from Dalit, tribal and backward communities. The Fact-Finding report (by Sama-Resource Group for Women and Health, Jan Swasthya Abhiyan, National Alliance for Maternal Health and Human Rights) also mentions one woman among the dead as from the Baiga Community, designated as ‘Particularly Vulnerable Tribal Group’, a protected tribe. “Most of the families were landless and their main source of income was daily-wage work. Many women who lost their lives had up to 3 children. Some of them, with infants as small as 3 months old, had undergone the sterilization surgeries.”
The country’s obsession with “top-down target-setting” coercive population control measures, whether with incentives or disincentives to achieve those sterilization targets, has been invariably oppressive, and fatal, to the women from underprivileged communitites. “This gendered approach takes full advantage of women’s lack of sexual and reproductive autonomy and their desperation to end their childbearing”, the fact-finding report says. With the scant infrastructure, underfunded, and poorly planned public health system in India, these sterilization camps are often conducted in “schools, abandoned buildings, makeshift camps” with unhygienic conditions and poor quality services.
Dr. R K Gupta, who performed these surgeries, was arrested on the charges of negligence and attempted culpable homicide, a few days after the tragedy. A star surgeon in the eye of the State Government who performed the highest number of sterilizations in the state, Dr. Gupta garnered support from the Indian Medical Association, Chhattisgarh, in the form of a statewide strike after his arrest in 2014. He is now acquitted by the Bilaspur High Court in February 2017 as the Chhattisgarh government “did not give sanction for his prosecution.”
Not only these ill-designed and ill-planned population control measures, through sterilizations camps (many a time involuntary or without consent, or in the form of coercion), have proven to be deadly to the population, especially to the women, but the two-child norms also have often resulted into increased sex-selection, preference for a male child, and as a consequence, skewed sex ratios.
The existing and planned two-child norms in Panchayati Raj elections have often turned out to be more atrocious to the wives whose husbands faced the threat of disqualification, as these women experienced “desertion or abandonment, divorce, forced abortion, forced adoption, etc., despite not having had any say or decision in the matter of family size or in the holding of political power.”
As a signatory to the International Conference of Population and Development, in 1994, India gave assurances to “pay greater attention to male responsibility in contraception and to the special needs of adolescents rather than to a ‘population control’ approach”.
Back home, the National Population Policy, 2000 “affirms 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 approach in administering family planning services” (as quoted in the Fact-Finding Report by Sama and others on Sterilization Deaths). Given these obligations, the past and proposed population control measures, often coercive, poorly planned, and poorly executed, are highly unethical, and also are in gross violations of the fundamental rights of an individual provided by the Constitution of India.