UP's Draft Population Bill Legally Violates Privacy & Socially Alienates Muslims

The draft Bill violates women's right to privacy by disregarding their personal autonomy & reproductive rights.

The draft Bill will disproportionately affect Muslim families in Uttar Pradesh.

(Photo: The Quint/Aroop Mishra)

In yet another ill-thought out and immature move, the Yogi Adityanath government in Uttar Pradesh has churned out the draft Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021.

The entire premise of the Bill is captured in the words of the Bill which read as below:

"In Uttar Pradesh, there are limited ecological and economic resources at hand. It is necessary and urgent that the provision of basic necessities of human life including affordable food, safe drinking water, decent housing, access to quality education, economic/livelihood opportunities, power/electricity for domestic consumption, and a secure living is accessible to all citizens."

The multi-layered issues in this Bill require urgent attention.

First, there is the obvious argument that coercive population control measures are probably not effective, especially in the Indian context.

Second, the Bill will disproportionately affect Muslim families in Uttar Pradesh, effectively lowering their social, economic and political status.

Consequences of Coercive Population Control Measures

In the past decade or so, there have been growing calls for the implementation of coercive population control policies in India’s most populated state.

However, the one crucial thing these demands lack, is concrete evidence.

To further lower the strength of their calls, the review of these policy measures enforcing a two-child or one-child norm, shows no proof of effectiveness, and on the contrary, bring out adverse outcomes.

Thus, it becomes important to analyse this new draft Bill from a more fact-driven lens and pay due attention to its possible negative consequences.

Choice to Reproduce has Been Constitutionally Guaranteed 

In this context, it becomes imperative to discuss the concept of privacy with reference to the landmark case of Justice K. S. Puttaswamy v. Union of India, which upheld privacy as an inalienable fundamental right.

In that case, the Court held that privacy extends to personal autonomy relating to one’s mind, body and choice-making. The prime facet of this personal autonomy are reproductive rights, which entail the rights to make reproductive decisions, as recognised by the 1994 United Nations International Conference on Population and Development.

In the landmark case of Suchita Srivastava v Chandigarh Administration, the top court of the land held that ‘liberty’ under Article 21 of the Constitution includes a woman’s right to make reproductive choices. This right includes within its ambit a woman’s entitlement to give birth and make decisions regarding reproduction, free from discrimination.

Now, the aim of the National Population Policy, 2000 cannot be left out of this discussion. The Policy includes a commitment towards “voluntary and informed choice and consent of citizens while availing reproductive health care services, and continuation of the target-free approach in administering family planning services”.

Even the ​​International Conference on Population and Development [ICPD] Programme of Action, which India adopted, stresses the importance of such free and voluntary choice.

Providing incentives and disincentives, as the Bill does in its Chapter II, goes against the very basis of allowing women to make a free and informed decision in this regard. It violates their right to privacy by disregarding their personal autonomy and as a direct result, their reproductive rights suffer.

Even if we turn a Nelson’s eye to this issue for a moment, another problem quickly grabs our attention.

Sex-Selective Abortions May Increase

In a country like India, where there is a strong son-preference, patriarchy governs the number of children a woman will conceive. Coercive population control measures will lead to an increase in the cases of sex-selective abortions and eventually, a skewed sex ratio.

The thrust and importance attached with schemes such as ‘Beti Bachao, Beti Padhao’ will slowly die out. Comparably, when China introduced its one-child-per-couple policy and the subsequent two-child policy, it led to an increase in evils such abandonment of girl children, falling sex-ratios and a forced sterilisations plaguing society.

A major setback in the Bill is the absence of any exclusion of rape-survivors. The only exceptions mentioned are in relation to cases of adoption, multiple births and death or disability of a child. There is no mention of the status of those women who give birth as a result of a rape-related pregnancy. In a state where at least 11 rape cases are reported everyday, it seems almost ignorant to not factor in the circumstances of rape survivors.

Now, the ‘two-child norm’ is defined as the ideal family size in the Bill. This will further stigmatise those families which dare to step outside this boundary of what will now constitute the norm. This is another major concern with the Bill - its impact on certain segments of society.

Indirect Discrimination: Stigmatising Muslim Families?

As per available data, the Total Fertility Rate, that is the number of children per women, of the Muslim community in Uttar Pradesh, was 3.10 in 2015-16 and for Hindus, it was 2.67. Anyone can conclude from these figures that Muslim families are larger in size, when compared to their Hindu counterparts.

Justice Chandrachud’s words from Lt. Col. Nitisha & Ors v. Union of India & Ors. come to mind.

There, indirect discrimination was defined as an action which has a disproportionate impact on a certain community, even if it appears ‘neutral’ on the face of it. The Court referred to the case of Fraser v. Canada, which laid down a simple test for understanding if a policy action has a disproportionate impact on a particular group - one must embark on an inquiry to see if the law in question has the effect of ‘reinforcing, perpetuating or exacerbating disadvantage’.

Now, apart from the social stigma that Muslim families will face due to the usage of terminology such as ‘norm’, they will also be pushed further down in the country’s socio-economic strata.

One of the ‘disincentives’ in the Bill for couples with more than two children is exclusion from benefits of government welfare schemes. Such families will also be barred from contesting local elections. Further, promotions and appointments to government services and jobs will also be barred.

The broad framing of the Bill which bans receiving any form of government subsidy and limits ration cards to only four per family, serve as the last nail in the coffin of the basic human rights of these families.

The state government will effectively deny welfare schemes and measures to those very people who need it most desperately.

The standard for indirect discrimination laid down in Fraser v. Canada has been more than just met in this new draft law. The optics of this Bill, if it comes into effect, will be disastrous.

With the disregard that the ruling government has shown towards public comments on contentious Bills in the past and the majority enjoyed by it in the Uttar Pradesh State Legislature, it can be foreseen that this demonic law is likely to be introduced in its present form.

The Way Forward for Population

Perhaps the only praise-worthy part of the Bill is Chapter V, that focuses on the duties of the government.

Spreading awareness about family-planning measures, establishing maternity centres, distributing vitamin capsules, organising campaigns and the like are the only acceptable ways to make citizens consider smaller families.

Empowering couples to make their own choices and providing a boost to the much-needed expansion of quality health services is the need of the hour.

We must shift our emphasis from controlling people to counting on people and lay emphasis on reproductive choices and rights instead of blinding our beliefs by chanting a population-control mantra.

(Ishika Garg is a a law student at the National Academy of Legal Studies and Research, Hyderabad. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)