The draft Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021, prepared by the State Law Commission, appears to have innocuous objectives. Expressing concern about limited economic and ecological resources, it says that people urgently need access to basic necessities of life such as food, drinking water, decent housing, quality education, economic and livelihood opportunities, and power for domestic consumption. To promote sustainable development and more equitable distribution of resources, the draft states, it is necessary to control and stabilise the population of the State. In the drafters’ view this can be achieved by spacing out child births through quality reproductive health services. Accordingly, the draft Bill proposes to implement the two-child norm with a set of incentives and disincentives.
The draft begins by describing the application of the two-child norm in polygamous marriages, clearly indicating which community is being addressed. A married couple with two children is described as the “ideal” family size. According to the Bill, in cases where personal laws allow polygamous marriages, the cumulative number of children from all the marriages would be used to determine the size of the family.
Significantly, the Bill seeks to provide incentives to public servants (themselves or their spouses) who choose terminal methods of contraception such as sterilisation. The incentives offered are: two increments, a subsidy towards buying a house site, soft loans at nominal interest rates to construct or buy a house, a rebate on charges levied on utilities, maternity leave for 12 months with full salary and allowances, 3 per cent increase in employers’ contribution to the National Pension Scheme, and free health care and insurance to the spouse. The draft Bill hints that the list of incentives may be expanded. There is another list of incentives for public servants who opt for sterilisation after having one child.
Incentives have also been offered to the general public. Lest the draft Bill be dismissed as being discriminatory to the poor and the girl child, there are incentives also for below poverty line (BPL) families with a single child. In such cases, sterilisation of either couple after the birth of a child is necessary to receive Rs.80,000 as an incentive for a male child and Rs.1 lakh for a female child. The disincentives for violating the two-child norm after the Act comes into force are exclusion from government welfare schemes and a limit on the number of ration card units in a family to four members.
Disincentives for government employees include a bar on promotions if the undertaking is violated. Individuals who violate the two-child norm would also not get any government subsidy. The Bill also places restrictions on the maximum number of children a childless couple can adopt.
Bar on contesting in local bodies
As has been done by some other State governments, the Bill seeks to prohibit those with more than two children from contesting local body elections. However, it exempts from the two-child norm those who are already members of local bodies at the time of the commencement of the Act. Newly elected members will have to give an undertaking on the two-child norm; those violating it would be dismissed and debarred from contesting elections in future.
The Bill is gender sensitive in a most perverse way in that it debars women as well who “contravene” the two-child norm from contesting local body elections. For example, a woman in a polygamous marriage or a monogamous marriage would face the same consequences as a man for violating the two-child norm. Surprisingly, the Bill seems to be oblivious of the degree of autonomy that Indian women have in deciding the size of the family as well as the policy’s impact on the sex ratio and the child sex ratio at birth, which is already skewed in favour of the male child.
Uttar Pradesh is not alone in bringing about such policies. The Bharatiya Janata Party (BJP)-led government in Assam, too, plans to implement the two-child norm. In Assam, however, the idea is to exempt the Scheduled Castes, the Scheduled Tribes and tea garden communities from the ambit of the law.
The current narrative on the two-child norm takes place against the backdrop of sustained and vituperative campaigns by right-wing leaders in both States against minorities. However, the norm as a concept predates the moves by both Uttar Pradesh and Assam. According to a 2009 research project commissioned by the Union Ministry of Panchayati Raj and conducted by the Udaipur-based Institute of Social Development, it was a Committee on Population, headed by K. Karunakaran, that first recommended legislation regarding the two-child norm from panchayats to Parliament. Despite the fact that a national policy never came into force, States such as Rajasthan, Madhya Pradesh, Odisha, Himachal Pradesh, Andhra Pradesh, Chhattisgarh and Gujarat introduced the two-child norm in local bodies.
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Rajasthan was the first to introduce the two-child norm in panchayats, followed by Andhra Pradesh and Haryana. Odisha introduced it in 1993-94, Himachal Pradesh and Madhya Pradesh in 2000, and Chhattisgarh shortly after. Gujarat did so in 2006. After a year, both Madhya Pradesh and Chhattisgarh discontinued application of the norm in panchayati raj institutions (PRI) but continued it for those seeking jobs in the government and judicial services. When Telangana was carved out of Andhra Pradesh in 2014, the Telangana Panchayati Raj Act inherited the features of the Andhra Pradesh Panchayati Raj Act prohibiting persons with more than two children from contesting local body elections.
The study found that the norm adversely affected a large number of women in the reproductive age group, who were disqualified from contesting because of the family size. As a result, several techniques were used to evade disqualification: non-registration of child births, manipulation of the date of birth in case of home births, denial of paternity to the third child, false sterilisation certificates, abandonment or desertion of the wife, and abortion of female foetuses after a sex-determination test. According to the study, the violation of the two-child norm was the main reason for the disqualification of PRI members.
Courts’ interpretations and the norm
Significantly, courts too have not shown much understanding of the negative consequences of the two-child norm. In two cases challenging the constitutional validity of sections on disqualification (for violating the two-child norm) in the Haryana Panchayati Raj Act, 1994, the Supreme Court held that the disqualification was neither arbitrary nor discriminatory. In Javed and Ors vs State of Haryana, 2003, the court held that the law sought to achieve socio-economic welfare and health care of the masses and that it was consistent with the National Population Policy. The court noted that “if anyone chooses to have more living children than two, he is free to do so by law as it stands now but then he should pay a little price and that is of depriving himself of holding an office in the panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality.”
In Rameshwar Singh and Ors vs State of Haryana , the court held that the two-child norm was “not arbitrary and disqualification was based on intelligible differentia having rational relation to the objects sought to be achieved”. The Haryana government later revoked the two-child policy in PRIs.
National Population Policy 2000
Surprisingly, the courts did not take into account the National Population Policy 2000 (NPP 2000), which for the first time introduced the idea of incentives to promote the small family. It was adopted at a time when a BJP-led government under Atal Bihari Vajpayee was in power at the Centre.
The NPP did not specify the disqualifying criteria for those with more than two children, but it nevertheless laid down the conceptual framework. It noted that while the total fertility rate (TFR) had improved to 3.3 (1997 Sample Registration System) from 6 in 1951, when the first national family welfare programme was launched, it was still higher than the ideal replacement level fertility of 2.1. (Replacement level fertility is the level at which a population exactly replaces itself from one generation to the next.)
While maintaining that population stabilisation was necessary for sustainable development for equitable growth, NPP 2000 “affirmed the commitment of the government towards voluntary and informed choice of citizens while availing of reproductive health care services and continuation of the target-free approach in administering family planning services”. Given the growing uneasiness with the camp approach of sterilisation, the key term was changed to ‘target-free approach’.
By then the international perspective on demographic goals too had changed considerably. Women’s organisations had made it clear to all governments that family planning targets, coercive methods, and invasive and hazardous family planning methods were unacceptable given the toll they took on women and the girl child. Therefore NPP 2000 did everything that was politically correct to change the approach. It listed as its immediate objectives the unmet needs of contraception, health care infrastructure, and integrated service delivery for basic reproductive and child health care. Its medium-term objective was to bring the TFR levels to replacement levels by 2010.
Likewise, the socio-demographic goals in the NPP included making school education compulsory and free until 14, reducing school dropouts by 20 per cent for both boys and girls, lowering infant mortality rate (IMR) to below 30 per 1,000 live births and maternal mortality rate (MMR) to below 100 for every one lakh live births, promoting the idea of delayed marriage of girls and universal immunisation of children, and achieving 100 per cent registration of births, deaths, marriage and pregnancy.
If the NPP objectives were fully implemented, the document said, a TFR of 2.1 could be easily attained by 2010. At least nine States had recorded significant reduction in family size, with many of them already reaching the replacement levels of TFR. Thirteen States had a TFR of over 3. Nonetheless, as a substantial proportion of the population was in the reproductive age group, NPP 2000 felt the small family norm should be promoted.
The policy recognised maternal mortality as an injustice, not just a social disadvantage, and recommended interventions in nutrition and health to alleviate poverty. Family services not only included contraception but a range of facilities such as referral services and health infrastructure catering to urban and rural populations.
There was no mention whatsoever of coercive policies of population control. Instead, the NPP recognised the importance of the role of men in planned parenthood, noting that 97 per cent of sterilisation were tubectomies, and that this gross gender imbalance needed to be corrected.
MMR levels varied greatly between States, with Kerala at one end of the spectrum and Uttar Pradesh, Rajasthan, Madhya Pradesh, Bihar and Odisha at the other. From 1901 to 1991, India’s sex ratio fell from 972 to 927. The reasons cited were ‘son preference’ and high mortality rates for women of all ages.
The NPP 2000 listed a set of measures to promote the small family norm. These included rewarding panchayats and zilla parishads for achieving reductions in IMR and birth rates and for promoting literacy. Other incentives listed were cash benefits on the birth of the girl child and maternity benefits for women who gave birth after the age of 19. This benefit was restricted to two children. The NPP did not list any disincentive.
However, the NPP was not without flaws. Although it did not directly recommend the two-child norm, it proposed a reward for BPL couples, who married after reaching the legal age of marriage, for adopting a terminal method of contraception after two children. It also suggested linking the provision of ongoing facilities to urban slum-dwellers with their adherence to the small family norm. In conclusion, NPP 2000 observed that the spread of literacy, education, availability of reproductive and child health services, convergence of service delivery at village levels, participation of women in the paid labour force, and steady improvement in family incomes would lead to the early achievement of socio-demographic goals.
However, many State governments had developed their own policies and amended their respective Panchayati Raj Acts to implement the two-child norm. The NPP itself and all State government population policies should ideally have been inspired by the seminal International Conference on Population and Development at Cairo in 1994 which declared that “development was the best pill”. The resolution, which was adopted by 179 countries, including India, stated that there was a need to focus on human lives rather than demographic targets. In 1999, the United Nations General Assembly adopted it.
Central government’s stance
Interestingly, last year, in response to a petition on population control in the Supreme Court, the Union government said it was “unequivocally against forcing” people to have a certain number of children. It said that the family welfare programme gave people the right to choose the family size. It also rejected the two-child norm or a law that limited the size of the family. The government also made a reference to India being a signatory to the 1994 Cairo Declaration which was against coercive methods of family planning.
An increase in the current methods used for family planning was observed across almost all States between the fourth and fifth National Family Health Surveys (NFHS-4, 2015-16 and NFHS-5, 2019-20). However, women bore the burden of terminal methods of family planning.
A large number of States had already attained the replacement level fertility rate of 2.1; the national average was 2.2. In a written reply to the Rajya Sabha on March 3, 2020, the Minister of State (Health and Family Welfare) informed that 13 of 22 big States had achieved a TFR of 2.1.
The TFR in most States, with the exception of a few, was under 3. Ladakh and Lakshwadweep had a TFR of 1.4 and 1.3, respectively. Sikkim had a TFR of 1.1, which was significantly lower than other States, but its overall sex ratio (990) and sex ratio at birth (969) reflected an imbalance.
The Muslim majority State of erstwhile Jammu and Kashmir had a TFR of 1.4, which was lower than Bihar’s 3. Even Assam, which has planned to introduce the two-child norm, had a TFR of 1.9, marking a decline from 2.2 recorded in NFHS-4. Uttar Pradesh had a TFR of 2.7, which marked a decline from previous years.
When sex ratio at birth (number of females for every 1,000 males) showed a worrisome decline in some States, in others it improved marginally. In Maharashtra, for instance, where the two-child norm is in force for government jobs and in PRIs, the TFR was 1.7, but the decline in sex ratio at birth was not very encouraging (924 in NFHS-4 to 913 in NFHS-5). This decline could well have happened at the cost of the girl child. Female sterilisations made up for 49.1 per cent of the total family planning methods while male sterilisations were less than 1 per cent.
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In Telangana, too, where the two-child norm was in force in PRIs, the TFR was 1.8 in both NFHS rounds; the sex ratio at birth here was 894. Just as in Maharashtra, a large proportion of women had opted for sterilisation than men.
In most States which had the two-child norm in PRIs, such as Maharashtra, Gujarat, Andhra Pradesh or those like Assam that planned to introduce it, the average TFR was below 2 which required a reconsideration of their policies.
If anything, the Uttar Pradesh government ought to be taking a cue from the lessons learned from past experiences, including the Union government’s own approach towards the two-child norm. But when the agenda itself is not about the science of demography or concern for people but about targeting a community, especially before elections, the “politics of population” comes in handy even if there is no basis for it.