Legality of Population Control Law in India 2021

 


The Indian population is seen as the most significant impediment to the country's economic growth, and it is often used as a scapegoat by administrations trying to explain their ineptitude. The "two-child policy" is constantly at the center of the population discussion. However, limiting family size has not only constitutional implications, but it is also a fruitless effort to control population increase.

In recent years, several private member proposals have been introduced in Parliament arguing for the two-child rule. Several Public Interest Litigations, or PILs, have been filed in the Supreme Court and other high courts. Several states, including Assam, Maharashtra, Odisha, Rajasthan, Telangana, and Andhra Pradesh, have enacted some kind of two-child rule for individuals seeking elected office or government employment.

PILs have also been filed in front of the Supreme Court and other high courts. Several states, including Assam, Maharashtra, Odisha, Rajasthan, Telangana, and Andhra Pradesh, have enacted some kind of two-child rule for individuals seeking elected office or government employment.

 

Bill has been introduced 35 times!

Since independence, the two-child policy has been introduced in Parliament 35 times. It was last discussed in the Rajya Sabha in February 2020, when Member of Parliament Anil Desai introduced a private member bill. The bill aimed to alter the Constitution so that Article 47A of the DPSP may be included.

Unlike previous proposals, this amendment would not have been a hard law, but rather a moral responsibility on the government to promote small-family norms by providing tax, job, education, and other incentives to individuals with no more than two children.

MP Rakesh Sinha has introduced The Population Regulation Bill, 2019, in the Rajya Sabha. People with more than two children will get less government benefits, according to the report. Even people at the bottom of the socioeconomic ladder may get money and limited advantages via the Public Distribution System. It was also suggested that individuals with more than two children be barred from running for public office. Under the bill's terms, new government workers would be required to pledge not to have more than two children.

People having more than two children, according to the Population Regulation Bill, 2019, presented in the Rajya Sabha by MP Rakesh Sinha, would get fewer government services, including restricted benefits under the PDS, even if they are impoverished. It was suggested that individuals with more than two children be barred from running for office, and that new government workers pledge to have no more than two children.

Members of parliament Dr. Ramesh Pokhriyal and Dr. T. Subbarami Reddy introduced the Promotion of Two Child Norm Bill, 2015 and the Two Child Norm Bill, 2005, respectively. The latter recommended a five-year sentence of simple imprisonment and a fine of not less than Rs. 20,000 as a criminal penalty.

Another private member bill proposed include a "adopted kid" in the criteria of two live children. The issue is, how does a kid, even if he or she is a couple's third child, impact population growth?

A lawsuit filed in the Delhi High Court in May 2019 seeks court-ordered execution of the National Commission to Review the Working of the Constitution's 24th proposal on population restriction (NCRWC).

The petitioner claimed that the NCRWC's proposal to incorporate Article 47A in the DPSP, which was led by former Chief Justice of India MN Venkatachaliah, was never adopted. The proposed Article 47A aims to promote family values by providing tax, job, and educational advantages to individuals who restrict their family to two children.

The petition also demanded that the federal government make the two-child limit the default for all government employment, assistance, and subsidies. The Delhi High Court, on the other hand, rejected the plea and barred the filing of any rebuttal. The Division Bench ruled that the HC lacked the authority to order Parliament or state legislatures to pass particular legislation.

The calls for population control have two major sources of validity. Both state and federal governments may pass laws on "control of population and family planning" under entry 20-A of the Concurrent List of the Seventh Schedule.

Second, the Supreme Court has upheld state laws prohibiting individuals with two or more children from receiving government benefits and jobs. This, too, acts as a justification for the two-child rule.

 



Reproductive autonomy is under attack.

The presence of a policy that limits and regulates the number of children a family may have is a flagrant violation of human rights, the right to self-determination, and reproductive autonomy.

Although the right to procreate is not expressly stated in the Constitution, it is covered by Article 21, as argued in Jasvir Singh vs State of Punjab. The court said that the "State has denied the petitioners the right to procreate solely because such a right is not included in the rulebooks or laws." It cannot be presumed that the petitioners' request violates any law in the absence of such a right being set out in codified law.

The denial of the right to reproduce is therefore claimed to be arbitrary and irrational, since such a right does not violate any rule or law, and its denial amounts to a monstrous breach of Article 21 of the Constitution.”

As a result, in accordance with the Universal Declaration of Human Rights, such a policy would deprive people of their basic right to life and personal liberty. On August 24, 2017, a nine-judge Supreme Court panel unanimously upheld privacy as a constitutionally protected right. The court recognized privacy as an inherent right rooted on principles like dignity that underpin all of our basic rights, and it unequivocally placed privacy in the individual.

While the judges expressed their views on privacy in a variety of ways, the bench agreed that privacy encompasses both physical, mental, and decision-making autonomy as well as informational privacy. Reproductive rights, which include the ability to choose sexual and reproductive choices, are an important element of human autonomy.

Couples have the freedom to choose the number and spacing of their children freely and responsibly, according to Article 22 of the 1969 Declaration on Social Progress and Development, which was approved by the United Nations General Assembly in Resolution 2542. The subject was also addressed during the International Conference on Human Rights in Tehran, Iran.

The Supreme Court said in R Rajagopalan vs State of Tamil Nadu that "the right to privacy is inherent in the right to life and liberty given to residents of this nation by Art. 21." It is a fundamental human right to be left alone. A person has the right to protect his or her own private, as well as the privacy of his or her family, marriage, reproduction, motherhood, childbirth, and education, among other things.

Any right to privacy must include and preserve personal intimacies related to the home, family, marriage, motherhood, reproduction, and childbearing. This list-style approach to the issue is less informative since it ignores the unique features of the right to privacy. The statement that a claimed right must be a basic right inherent in the notion of ordered liberty is perhaps the sole unifying premise underpinning the concept.

The “right to physical integrity implies that all persons have the right to control their own bodies, including their sexual and reproductive lives, and be free from any intervention, medical or otherwise, except with their full, free, and informed consent,” according to Reproductive Rights Are Human Rights: A Handbook for National Human Rights Institutions.

Divorced people and Muslim personal rules are also left out of the draft measure. A divorced individual who has two children from a previous relationship is unable to have a kid with their new partner. This also violates a prospective spouse's right to procreation, since he or she may not have two children.

Furthermore, Muslim males are permitted to have four wives, and such a rule would restrict the number of children his wives may produce after the family has reached the age of two. If an exemption is made for such families, the father will have a maximum of two children with each of his wives, for a total of eight children. Even yet, this would be a violation of Article 14 (right to equality), since everyone except Muslim males would be limited to two children.

No law may be passed until its long-term effects and societal implications are well understood. Because parents will only have "two tries" to produce kids in India, the preference for male offspring may lead to a stronger anti-female child sex-selection. Due to a lack of easy and affordable access to facilities, this may lead to risky and illegal abortions.

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