– Tanishk Goyal*
On March 14th, 2020, Dr. A.M Singhvi sought to introduce the Population Control Bill, 2020 in the Rajya Sabha. However, this is not the first time when a National Population Policy has been proposed for the Indian demographic setup. Throughout the course of the past four years, there have been multiple instances where representations for having a national two-child policy have been made to the Parliament. A common feature of all these policies has been the disqualification or debarment of the violators of such policies from contesting elections. The rationale behind such disincentives has essentially been that such disqualification of people who are ostensibly considered as role models, will have a deterrent effect on the masses, and this will consequently incentivise them to adopt contraceptive measures, thereby enabling the State to achieve its population control targets.
A national two-child policy has not yet been formalized by the Parliament. However, there are laws governing village panchayats and rural areas of various states which have, inter-alia, disproportionately affected the growth rates, literacy gaps, and sex ratios of the stakeholders concerned. Concurrently, they have also skewed these ratios in favour of those who have a relatively easier access to resources and healthcare facilities.
It is pertinent to note here, that the implications of having a national two-child policy involve a long running debate and thus, have been excluded from the scope of this article. The proponents of such a policy emphasise on its positive implications believing that it is required for increasing the per-capita GDP which can contribute to the rapid economic development of the country. On the other hand, the opponents of the policy emphasise on its negative implications, believing that it leads to an imbalance in the gender ratio of the country which subsequently affects the sectors of marriage, labour force and educational opportunities amongst other things.
Notwithstanding this long-running debate on the positive and negative implications of a Two-Child policy, there are certain inherent unarticulated concerns regarding its legality which are far from trite and remain unaddressed till date. These unarticulated premises stem from the obligation of the State to reconcile reproductive and decisional autonomy with the public interest which it ostensibly seeks to protect. In addition to harmonizing its welfare obligations with the decisional autonomy of the citizens, the State is also under an obligation to ensure that even its facially neutral policies do not have an unwarranted discriminatory impact on the citizens.
Through the course of this article, I shall be addressing the noticeable legal impediments which the policy might face if enforced in India. My ultimate objective is to conceptualize a non-restrictive framework which is able to harmonize the decisional and reproductive autonomy of the citizens with the public interest obligation of the State, while concurrently ensuring that the citizenry is safeguarded from any intent or impact based discriminatory action by the State.
In order to do so, I begin by apprising the reader of the underlying social narrative of preferring a male child, which influences the demographic trend not only in India but in other jurisdictions such as China & Vietnam as well. Subsequently, I interlink the prevalence of such a narrative with the ease of access of a particular class of citizens to sex-selection techniques and abortion facilities. Next, I use this information to address the constitutional permissibility of the policy. My examination of the constitutional permissibility of the policy, would first, be through the lens of Article 14, and secondly, through the lens of Article 21 of the Constitution of India. From an Article 14 perspective, I will argue how the policy, although ostensibly neutral, possesses the potential to preclude a significant percentage of the marginalized castes from obtaining elected positions due to circumstances which are beyond their control and are completely unrelated to the objective qualifications required to be satisfied in order to get elected. While my analysis of the constitutional permissibility of the policy from an Article 14 perspective is largely notional, my analysis of such permissibility from an Article 21 perspective is based on the established norms of privacy and personal autonomy as recognized by the Supreme Court in the case of K.S Puttaswamy v. Union of India. Drawing from my conclusions in the previous part, I move on to suggest that the decision of the Supreme Court, in the case of Javed v. State of Haryana, (which is by far, the only judicial acknowledgement of the constitutionality of a two-child policy) is a discordant note under the current jurisprudence in India and requires to be reconsidered by a larger bench of the Supreme Court. Having said that, I recommend a non-restrictive framework which can harmonize the competing interests of the State and the individual, while concurrently ensuring that the policy does not have any discriminatory impact on the person(s) concerned. I conclude by emphasizing that the said framework would be of little assistance, if it is not accompanied by a systematic intervention and sincere efforts at the community level in order to bring about a change in the narrative of the country and the mindset of the people.
The Sociological Underpinnings Influencing the Demographic Trends in India and Abroad
One of the fundamental aspects which the State overlooked while coming up with the policy was the underlying sociological narrative of the society which prefers a son over a daughter. This is mainly due to the inherently patriarchal setup of the society, which has been the norm not only in India but all over the world. For instance, the introduction of a two-child policy in Vietnam led to a skewed Sex Ratio at Birth (‘SRB’) in favour of males. This skewed SRB was observed despite the enforcement of legislations which criminalise sex-selective abortions. Similarly, the introduction of a One-Child Policy in China gave impetus to an information asymmetry where the people were increasingly resorting to literature on how to conceive a baby of the male sex. The policy, inter-alia, led to an increase in the female mortality rate, and exponentially increased the number of abortions and pre-natal sex determinations conducted in China. Similarly, the male child preference in India is a well documented phenomenon, which is influenced by an underlying mindset which builds a narrative that a male child alone can, inter-alia, inherit ancestral property, help in labour, and provide support to the parents in their old age. This ultimately illustrates the latent sociological mindset of preferring a male child which influences the decisional autonomy of the citizens and contributes to an imbalanced demographic trend where a one or two-child policy is enforced.
One of the necessary implications of having such a policy in a society whose notions of personal autonomy are based on patriarchy, is that it starts to affect those who do not have the access to resources, or the privilege of being able to circumvent the law to their advantage. In other words, the discriminatory impact caused by the enforcement of the policy has been observed to be directly proportional to the access to sex-selection technologies and abortion facilities despite the fact that they have been criminalised in multiple jurisdictions around the world.
Determining the Constitutionality of an Indian Two-Child Policy
A. The Article 14 Perspective: Moving Towards an Impact-Based Understanding of Discrimination
Before analysing the Constitutional permissibility of the policy from an Article 14 prism, it becomes pertinent to note here that the Indian school of thought on Article 14 discrimination has been largely restricted to an intent based liability on the State only. Although there exist cases like Anuj Garg v. Hotel Association of India &Ors. and Navtej Johar v. Union of India, where the effects test and the anti-stereotyping principle have been expressly accommodated, yet the lacuna which still exists is that the effects tests and the anti-stereotyping principle remain largely restricted to sex-based discrimination only. This is to say, that while Indian jurisprudence has expressly adopted the anti-stereotyping principle in the context of gender roles, it has not extended the same to caste-based discrimination.
This essentially implies that a facially neutral legislation which has no intent to discriminate, but which ends up indirectly discriminating against a particular caste of citizens, may still be constitutionally permissible under Indian jurisprudence.
However, this restrictive understanding of the term is problematic in as much as it fails to take into account the reinforcement of existing social inequalities which such kind of facially neutral legislations bring with them. An impact/effect based understanding of discrimination was given by the Andhra Pradesh High Court, in 1983, in the case of T. Sareetha v. T. Venkata Subbaiah. Here, the court found that the provision of restitution of conjugal rights in the Hindu Marriage Act, 1955 had a discriminatory impact on women and subsequently struck it down as unconstitutional. By the time the hourglass ran to 2007, the Supreme Court, in Anuj Garg, accepted that a legislation should also be assessed on its differential impacts and implications. Although, the legislation which was the subject matter of the Anuj Garg case was directly discriminatory, this ruling of the court paved the way for affixing a discriminatory impact based liability on the State.
This differential impact test was revived by the Delhi High Court, in the year 2015, in the case of Inspector (Mahila) Ravina v. Union of India. Here, it was held that a seemingly neutral legislation, if not probed closely, could end up being discriminatory, impacting the legal rights of the citizens. This ruling was in pursuance of the American impact-only standard which was propounded by the United States Supreme Court in the case of United States v. O’Brien, and subsequently reiterated in the case of Palmer v. Thompson. The ruling essentially stated that when the dis-incentivising provisions of a legislation disproportionately impact a historically marginalized section of the society, such an impact amply demonstrates that the legislation is neutral merely in form and not in substance or application.
Since the Population Control Bill has not yet been enacted by the Parliament, such disproportionate impact of the policy on the historically marginalized castes of the society can only be seen in Panchayat Samitis and Zilla Panchayats which are governed by local laws prevailing in various States of India. These local laws, inter-alia, include the Rajasthan Panchayati Raj Act 1994, Telangana Panchayati Raj Act 1994, Gujarat Local Authorities Act, Maharashtra Zilla Parishads & Panchayat Samitis Act 1961, and Odhisa Zilla Parishad Act 1959.
One of the many disincentives which are common to all these legislations is the disqualification of persons who violate their norms, from contesting the local elections. It is interesting to note here that the similar disincentives from the local laws mentioned above also form a part of all the Population Control Bills which have been tabled before Parliament till date.
An empirical case study of 23 districts from 5 States, where such disincentives were being enforced, observed that out of a total of 111 respondents whose legal rights to contest elections were directly affected by these disincentives, 40 belonged to the Scheduled Caste (‘SC’), 5 belonged to the Scheduled Tribe (‘ST’), and 44 belonged to the Other Backward Classes (‘OBC’) category. Additionally, out of these 111 respondents, 53 had an income of less than Rs.20,000 per annum. Moreover, a significant number of those marginalized castes (SCs, STs & OBCs) which had not been affected by such disincentives, revealed to have undertaken pre-natal sex determination tests, and aborted female foetuses. These statistics notably reveal the fact that, unfortunately, people with access to resources can still have access to illegal pre-natal sex determination techniques and informal abortions, in order to comply with the mandate of the two-child policy and preclude themselves from getting debarred or disqualified from contesting elections. This puts a blanket burden on the other part of the masses who do not have access to such resources and succumb to the prevalent mindset of preferring a male child (without having the means to access illegal abortion or sex selection procedures) while having to forego their right to contest elections. In other words, the citizens who are already vulnerable to caste-based discrimination have to eventually bear the brunt of the disincentives of the policy.
These statistics amply illustrate and substantiate the premise made in Part II, that the discriminatory impact caused by a policy has been observed to be directly proportional to the ease of access to resources and healthcare facilities, particularly those of sex-selections and abortions, which in turn is inadvertently linked to the class and caste of the citizens. This essentially suggests that a two-child policy in India would fail an Article 14 scrutiny, thus rendering it liable to be struck down as unconstitutional.
B. The Article 21 Perspective: Addressing Reproductive Autonomy, Decisional Autonomy, and the Proportionality Test
An autonomous man is considered to have his own sense of rationality which leads him to his own conclusions for which he alone is responsible. Reproductive and decisional autonomy is the right of the citizens to make informed choices without being controlled by the State. This notion of autonomy was affirmed by the Supreme Court in Puttaswamy case, where it was held that reproductive and decisional autonomy constituted an essential choice which was protected by the inalienable right to privacy under Article 21 of the Constitution of India. The judgement called into question the utilitarian approach used by the State in restricting reproductive and decisional autonomy of the citizens in the name of public interest. This was followed in the Aadhar case where decisional autonomy was understood to be a manifestation of the fundamental right to privacy. Decisional autonomy was affirmed to be that safeguard which prevents the State from using citizens as puppets and controlling their body and decisions.
It is pertinent to note here that while a two-child policy may not be directly affecting the reproductive autonomy of the woman herself, it does affect the decisional autonomy of the family by casting a chilling effect on exercising one’s reproductive choices. This chilling effect is manifested when reproductive choices (which are “personal intimacies of the home” and are protected by the fundamental right to privacy in furtherance of “the right to be let alone principle”) are made in fear of one being affected by the State’s disincentives. This compromise of one’s decisional autonomy due to the creation of a chilling effect on the individuals is antithetical to the guarantee of unhindered fulfilment of one’s personal decisions under Article 21 of the Constitution.
The second reason why a two-child policy may be hit by the Indian privacy jurisprudence is because it fails to comply with the four pronged proportionality test laid down in the case of Modern Dental College & Research Centre v. State of Madhya Pradesh & Ors, and subsequently followed in the Puttaswamy judgement. The test recognises any limitation on a constitutional right to be permissible only if:
- It is backed by a law with a legitimate purpose;
- There is a rational relationship between the means employed and the object sought to be achieved;
- It is the least restrictive alternative available with the State; and
- There is a balance between the extent to which rights are infringed and the State’s legitimate purpose (proportionality stricto sensu), which basically implies that the measures employed by the State should not have a disproportionate impact on the right-holder, lest the essence of the balancing stage of the proportionality test is lost.
It is acknowledged that the limitation is backed by law (in the States where it is enforced) and has a legitimate goal, that is, population control. However, the disincentives which form a material tenet of the policy are not suitable means of furthering that goal. In other words, disqualifying elected leaders from their positions with the objective that they will be considered as role models, and this process will consequently incentivise others to adopt contraceptive measures, is not only an attenuated causal link which is discouraged internationally, but also, not even a rational means to achieve the objective of population control. This is in fact a failure of the State to take note of the ground realities in Indian villages where the power structure is rampant with caste-based hierarchies and proxy candidatures. The move may in fact lead to the mushrooming of dummy candidates in villages. This unfortunate ground reality has been amply illustrated by the mushrooming of a “pradhan pati” system in villages where the position of “Sarpanch” had been reserved for women. Thus, the objective of population control is not sub-served by disqualifying elected leaders, as the power structures in villages do not actually permit a paternalistic ‘role model’ system to exist.
Thirdly, disincentivising citizens from procreating more than two children, by disqualifying them from electoral positions is also not the least restrictive measure available with the State. (Lesser restrictive measures have been explored in the next Part.)
Lastly, the fourth limb of the proportionality test, as has also been argued before, asks the court to make a value judgement. It essentially asks the court to consider whether the public benefit in pursuing the State interest is greater than the importance of the right which is being infringed.
The court held in the Aadhar case that against the layer of the public interest which aims at “the efficient transparent and targeted delivery of subsidies, benefits and services with the objective of checking the corrupt practices at various levels of distribution system which deprive genuine persons from receiving these benefits”, the invasion of privacy rights was minimal, and the legislation in question had, in fact, achieved a fair balance between the State’s interest and the individual right to privacy.
However, in the context of a two-child policy, with respect to the fourth limb of the proportionality test, a court will have to determine whether the public benefit in pursuing a national population target by the State, is greater than the importance of the individual notions of decisional and reproductive autonomy which have been categorically affirmed as a part of Article 21 of the Constitution of India.
Unlike the Aadhar case, where the court upheld its constitutional validity because the means were used as enablers to provide sections of the society with certain social assistance benefits, thereby bringing their Article 21 rights to fruition, a two-child policy through its means (disincentives and disqualifications) is actually disenabling a certain section of the society from exercising their decisional and reproductive autonomy under Article 21 of the Constitution.
Thus, the policy, in its current form, infringes on the justifiable exceptions to the right to privacy of the citizens and is violative of Article 21 of the Constitution of India.
Javed v. State of Haryana: A Discordant Note
Having empirically illustrated the disproportionate impact of a two-child policy in India under Article 14 and its incongruence with the Indian privacy jurisprudence under Article 21 of the Constitution, an important point of departure, here, would be understanding how Javed v. State of Haryana was a missed opportunity for the Supreme Court which, while terming the right to contest an election as merely a statutory right, circumscribed the established principles of autonomy and dignity by subjecting them to statutory limitation.
It is rather unfortunate that Javed v. State of Haryana, remains one of the very few cases to have been considered by the Supreme Court with reference to a two-child policy in India. The case, inter-alia, involved a challenge to Section 175(1)(g) of the Haryana Panchayati Raj Act 1994, which provided for the disqualification of a person from contesting an election for Sarpanch/ Panch/ Gram Panchayat/ member of a Panchayat Samiti or Zila Parishad, if they had more than two living children. The section was challenged on the grounds of violating Articles 14, 21, and 25 of the Constitution of India. For the purposes of the present piece, the court’s reasoning while upholding the constitutional validity of this Act on the grounds of Article 21 is instructive.
Before even delving into an Article 21 analysis, the court held that the right to contest an election is neither a fundamental right nor a common law right. It went on to say that, since the right to contest an election was a right conferred by a statute, it would necessarily be subject to statutory limitation. The court even remarked that: “At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right, a right originating in Constitution and given shape by statute.”
After having explicitly expressed its unwillingness to conduct an Article 21 scrutiny of the provision, the Supreme Court, in a tokenistic attempt to answer the question of law which was posed to it, held that:
“The lofty ideals of social and economic justice, the advancement of the nation as a whole and the philosophy of distributive justice – economic, social and political – cannot be given a go-by in the name of undue stress on fundamental rights and individual liberty.”
In its attempt to prioritise the “lofty ideals of social justice” over fundamental rights of the individual and their liberties, the court did not consider the fact that at the heart of the Indian Constitution, is the individual who forms the bedrock on which our Constitution and our institutions function. This sentiment was shared by Dr. B.R Ambedkar in the Constituent Assembly Debates, and was echoed by the Supreme Court itself, as recently as 2018 in the Aadhar judgement where it was said that, individual dignity forms the foundation of all Constitutional Rights. It was further held that the the right to privacy (which is based on individual notions of autonomy and includes the aspects of family, marriage, procreation, etc.) is an essential manifestation of individual dignity which lies at the heart of the Constitution and is the interpretative principle for determining the scope of all constitutional rights.
Thus, the individual, whose existence and dignity should have actually determined the scope of the constitutional right(s) to contest elections was, in fact bypassed at the altar of, inter-alia, social and economic justice by the Supreme Court in Javed. It is for these reasons, I believe that Javed is a discordant note under the current Indian jurisprudence and requires to be reconsidered by a larger bench of the Supreme Court.
Seventeen years hence, the ghost of Javed still remains to be buried explicitly, and precedent indicates that the Supreme Court has completely disregarded the principles of individual dignity, reproductive autonomy, and decisional privacy while dealing with disqualifications in the right to contest elections. Therefore, going by the Supreme Court’s tryst with reproductive and decisional autonomy in cases where it is pitched against the State interest of population control, there is reason to believe that there is scope for Javed to resurrect, unless it is expressly overruled by a larger bench.
Reconciling an Individual’s Reproductive and Decisional Autonomy with the Public Interest Obligation of the State
The Indian approach to reproductive autonomy has always been utilitarian in character. There have been instances where States have used the two-child norm as a criterion of eligibility for public welfare schemes. There have also been instances where the disincentives have assumed a coercive character in order to regulate population growth while completely disregarding the reproductive and decisional autonomy of the individuals concerned. Therefore, there is a pressing need to reconcile such autonomy of the citizens with the public interest obligations of the State.
It is against the backdrop of these competing interests that the question of reconciling reproductive and decisional autonomy with the State interest arises. This can be done by harmoniously construing the two competing interests. Such harmonious construction could ensure that the objective of the State to control population growth is achieved without compromising the reproductive or decisional autonomy of the citizens, while concurrently ensuring that the policy has no discriminatory impact on the historically marginalized sections of the society.
The methodology which could be followed in order to implement this harmonious construction is the implementation of a non-restrictive framework, which dispenses with disincentives which are used to deter individuals from having more than two children. The seeds for the development of such a framework were sowed in 1994 when the Programme of Action was adopted at the International Conference on Population and Development (‘ICPD’) in Cairo, to which India remains firmly committed. The Programme of Action which was adopted at the ICPD, focusing on reproductive autonomy, and expressly stated that: “7.22 Governments are encouraged to focus most of their efforts towards meeting their population and development objectives through education and voluntary measures rather than schemes involving incentives and disincentives.”
In pursuance of the mandate of the ICPD, this framework could, inter-alia, require that coercive and discriminatory disincentives are replaced with alternative and equally efficacious affirmative action such as imparting sex education, increasing awareness, ensuring ease of access to contraceptives and most importantly, making an effort to gradually change the sociological narrative of preferring a male child.
In the absence of disincentives, the implementation of such a framework could ensure that there is no disproportionate discriminatory impact on the marginalized sections of the society. The framework could concurrently ensure that the means are used as enablers to secure individual interests and achieve the welfare obligations of the State. These measures, in turn, would also satisfy all the four requirements of the proportionality test, and thus, would bring the policy in line with the justifiable standards of privacy under Indian jurisprudence.
The two-child policy which adheres to the above framework may have the potential to control the proximate drivers of a rise in the population. However, the policy cannot, in a watershed move, completely alter the sociological mindset of the Indian demographic which prefers a male child. Thus, the potential of the policy is circumscribed by a fundamental systematic problem which exists with the socio-legal ethos of India. This problem essentially pertains to the fact that access to resources and education is limited only to a particular privileged demographic of the society. Therefore, unless sincere efforts and interventions are made at the community level, there is little as to what a two-child policy and a non-restrictive framework can do in order to achieve the objective of population control and stabilisation.