Do laws that limit the number of children in a family help control population? Will they pass the test of the Constitution? SHIVANSH SAXENA explains how such laws can cause deprivation and inequality instead of controlling population growth. 

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THE population of India is seen as the biggest obstacle to its economic development and is the fall guy for governments seeking to justify their incompetence. At the centre of the population debate is always the “two-child policy”. However, a policy to limit family size has not just constitutional repercussions but is also a futile attempt to regulate the growth of the population.

Some private member bills have been tabled in Parliament in recent years, advocating the two-child norm. Multiple Public Interest Litigations or PILs have also been filed before the Supreme Court and high courts. Several states including Assam, Maharashtra, Odisha, Rajasthan, Telangana and Andhra Pradesh already have some form of the two-child norm in place for those running for elected posts or government jobs.

Multiple Public Interest Litigations or PILs have also been filed before the Supreme Court and high courts. Several states including Assam, Maharashtra, Odisha, Rajasthan, Telangana and Andhra Pradesh already have some form of the two-child norm in place for those running for elected posts or government jobs. 

Bill Tabled 35 Times!

The two-child policy has been tabled in Parliament over 35 times since Independence. It was last brought up in the Rajya Sabha in February 2020 via a private member bill by Member of Parliament Anil Desai. The bill sought to amend the Constitution to include Article 47A in the Directive Principles of State Policy.

Unlike other bills, this amendment would not have been a hard law but would have posed a moral obligation upon the government to promote small-family norms by offering incentives in taxes, employment, education etc., to people whose families had no more than two children.

Another bill, The Population Regulation Bill, 2019, was also tabled in Rajya Sabha by MP Rakesh Sinha. It said that people with more than two children would receive fewer government services. This includes money and limited benefits under the Public Distribution System, even for those at the bottom of the socio-economic strata. It also proposed that those with more than two children be disqualified from standing for elections to public office. New government employees would have to agree to not have more than two children under the bill’s provisions.

The Population Regulation Bill, 2019 tabled in Rajya Sabha by MP Rakesh Sinha said people with more than two children would receive fewer government services, including limited benefits under the PDS, even if they are poor. It proposed that those with more than two children be disqualified from elections and that new government employees commit to having no more than two children. 

The Promotion of Two Child Norm Bill, 2015 and the Two Child Norm Bill, 2005, were also tabled by members of parliament Dr. Ramesh Pokhriyal and Dr T. Subbarami Reddy respectively. The latter had proposed a criminal sanction of five years of simple imprisonment and a fine of not less than Rs. 20,000.

Another private member bill said an “adopted child” should be included in the definition of two living children. The question is, how does a child affect population growth, even if he or she is a couple’s third child?

In May 2019, a petition in the Delhi High Court sought a court-mandated implementation of the 24th recommendation on population control made by the National Commission to Review the Working of the Constitution (NCRWC).

The petitioner argued that the recommendation of the NCRWC, headed by the former Chief Justice of India MN Venkatachaliah, to include Article 47A as part of the Directive Principles of State Policy was never implemented. The proposed Article 47A contemplates promoting family norms by giving benefits in tax, employment, education, etc. to those who limit their family to just two offspring.

The petition also sought that the central government be directed to make the two-child policy the norm to avail all government jobs, aids and subsidies. The Delhi High Court, however, dismissed the petition and disallowed any rejoinder from being filed. The Division Bench held that the High Court had no power to direct Parliament or state legislatures to enact a specific law.

The demands for population control draw legitimacy from two main sources. Entry 20-A on the Concurrent List of the Seventh Schedule allows for legislation on “Control of population and family planning” by both State and the Union governments.

Second, the Supreme Court has constitutionally validated certain State laws that bar citizens with two or more children from using government subsidies and positions. This, too, serves as a legitimising factor for two-child norms.

Attack on reproductive autonomy 

The existence of a policy to control and regulate the number of children a family can have is a gross violation of human rights, the right to self-determination and an individual’s reproductive autonomy.

A right to procreation is not explicitly mentioned in the Constitution but it comes under the ambit of Article 21, as discussed in Jasvir Singh vs State of Punjab. The court held that the “State has denied the right to procreate to the petitioners only because such a right does not find any mention in the rulebooks or statutes. In the absence of such a right having been spelled out in codified law, it cannot be assumed that the petitioners’ prayer contravenes any law.

The denial of the right to procreate thus is alleged to be unreasonable and arbitrary as such a right not being violative of any rule or law, its denial amounts to be a monstrous violation of Article 21 of the Constitution.”

Therefore, such a policy would deprive citizens of their fundamental right of protection of life and personal liberty, read with the Universal Declaration of Human Rights.

On 24 August 2017, a nine-judge bench of the Supreme Court unanimously affirmed privacy as a fundamental right under the Constitution. The bench recognised privacy as an inalienable right, grounded in values such as dignity which underlie all our fundamental rights, and it categorically located privacy in the individual.

While the judges phrased their conceptions of privacy differently, the bench commonly held that privacy covers personal autonomy relating to the body, mind, and to making choices as well as informational privacy. A key aspect of personal autonomy is reproductive rights, which entail rights to make sexual and reproductive decisions.

Article 22 of the 1969 Declaration on Social Progress and Development adopted by the General Assembly in Resolution 2542 provides that couples have the right to determine freely and responsibly the number and spacing of their children. The same was discussed in International Conference on Human Rights Tehran, Republic of Iran.

In R Rajagopalan vs State of Tamil Nadu, the apex court propounded that “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Art. 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters”.

In R Rajagopalan vs State of Tamil Nadu, the apex court propounded that “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Art. 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters”. 

Any right to privacy must encompass and protect personal intimacies of the home, family, marriage, motherhood, procreation and child-bearing. This catalogue approach to the question is not as instructive as it does not take into account the distinctive characteristics of the right to privacy.

Perhaps the only unifying principle underlying the concept is the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.

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

The proposed bill also fails to take into account divorced persons and Muslim personal laws. A divorced person who has two children with a prior partner cannot bear a child with their next spouse. This also violates the right to procreation of a future spouse, who may not have two children.

Furthermore, Muslim men are allowed to have four wives, and such a law would limit the number of children his wives can bear once the family has two children. If an exception is created for such families, the man would have, at most, two children with each wife or eight children in all. Even this would violate Article 14 [right to equality] as all persons except Muslim men would be allowed to bear only two children.

No legislation must be enacted unless its future impact and social effect are first completely realised. In India, the preference for male children may lead to a greater anti-female child sex-selection because parents will only have “two attempts” to have babies. This can lead women to dangerous and unlawful abortions due to the lack of convenient and inexpensive access to facilities.

(Shivansh Saxena is a student of law at VIPS, Indraprastha University. The views expressed are personal.)