The Uttar Pradesh State Law Commission has released a draft Bill on population control. Titled “The Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021”, it comes on the heels of the 2022 Assembly elections in the state.

While much of the debate on the legislation has been centred around whether it is targeted at the Muslim community or not, the Bill has ramifications for all residents, both Muslims and non-Muslims, of Uttar Pradesh.

Incentivising ‘voluntary’ sterilisation

The Bill is proposed to be enacted under entry 20A of the Concurrent List enumerated in the Seventh Schedule to the Constitution. Entries in the Concurrent List contain subjects on which both the Parliament and the state Assemblies can legislate. Entry 20A, which deals with “population control and family planning” was inserted into the Constitution in 1976 by the Indira Gandhi government, at the height of the Emergency.

Section 4 of the Bill is titled “incentives to public servants” and states that those government employees who adopt the “two-child norm by undergoing voluntary sterilisation” shall be entitled to various benefits. These benefits can also be availed if the spouse of the government employee undergoes sterilisation.

Benefits include additional salary increments, maternity/paternity leave of 12 months, housing loan assistance, rebates on house tax, electricity, water charges and free health care and insurance coverage extension to the employee’s spouse. Section 6 makes these benefits available to members of the general public if they too are willing to “abide by the two-child norm” and undergo sterilisation.

Under these provisions, it is not enough that the public servant/member of the public in question has two children or less. It is not enough that an undertaking is given by the public servant/member of the public in question that he/she shall not have more than two children. It is mandatory for public servants/members of the public to undergo “voluntary” sterilisation irrespective of whether they have two children or not in order to avail numerous benefits.

Additional benefits are conferred if sterilisation is undergone after having just one child. Benefits include free education up to graduation level and preference in government jobs for the single-child of the public servant/member of the public.

Demographic dividend

On the face of it, the provisions of the Bill are a textbook violation of the constitutional right to equality. However, before proceeding to assess the constitutionality of such differential treatment on the basis of sterilisation, an understanding of the divergent approaches taken by India and China in tackling the “population problem” is likely to be instructive.

A key metric in measuring the rate of population growth is the “total fertility rate”. The total fertility rate denotes the average number of children a woman has during her child-bearing years. A total fertility rate of 2.1 is considered to be ideal, as this means that a woman will bear two children with her partner, and these two children will take the place of their parents when they pass on. The additional factor of 0.1 accounts for children who might not reach adulthood or do not outlive their parents.

In 1980, when the stringent one-child policy was introduced in China, the total fertility rate was 2.61. In 2019, the total fertility rate in China had dropped to just 1.69 per woman after three-and-a-half decades of rigid enforcement of the one-child policy. In 2015, the Chinese State did away with the one-child policy – Chinese nationals were allowed two children.

In May, China adopted a three-child policy following the failure of the two-child policy in increasing the total fertility rate. China is now staring down the abyss of a demographic deficit because of its low total fertility rate: the younger generation are simply not having enough children to replace the older generation.

Given the brute majority enjoyed by Chief Minister Adityanath’s government in the Assembly, the Bill will be passed without much debate or legislative scrutiny. Photo credit: Sanjay Kanojia / AFP

India, meanwhile, is bearing the fruits of a rich demographic dividend. The United Nations Population Fund defines the demographic dividend as “the economic growth potential that can result from shifts in a population’s age structure, mainly when the share of the working-age population (15 years to 64 years) is larger than the non-working-age share of the population (14 years and younger and 65 years and older)”.

According to the Centre’s Economic Survey of 2018-’19, 62.5% of India’s population is between the ages of 15 years and 59 years and is expected to peak in 2041. As per the Union government’s projections in the survey, India’s total fertility rate is likely to touch the ideal replacement level of fertility of 2.1 this year.

Interestingly, the total fertility rate in Uttar Pradesh has fallen dramatically from 1999, when it was 4.07, to 2.7 in 2016 – a staggering 30% decline in just 17 years. A paper in the medical journal Reproductive Health noted that the use of sterilisation as a means of family planning was just 18% among women in Uttar Pradesh compared to the national average of 36%. Sterilisation had not contributed significantly to the drop in fertility rate. Instead, the paper notes, the fertility decline in Uttar Pradesh was driven by an increase in the use of contraceptive methods among married women.

With only one in five women in Uttar Pradesh resorting to sterilisation as a means of family planning, what is not needed to achieve the total fertility rate target of 2.1 is coercing citizens into having less than two children by essentially forcing them to choose between undergoing so-called voluntary sterilisation or missing out on benefits conferred by the state for non-compliance.

Unconstitutional means

Under Article 14, the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The state is, however, allowed to group citizens into a particular class and treat them differently from those who do not fall into the class so-created.

The Bill is a blatant attempt to create two subsets of government employees and members of the general public in Uttar Pradesh: those who have undergone sterilisation and those who have not.

Is the creation of two classes of public servants/members of the public on the basis of sterilisation by the Bill constitutionally permissible under Article 14? In layman’s terms, the questions for consideration are these: is the differential treatment of public servants/members of the public on the basis of sterilisation reasonable? Does such differential treatment actually further the objects sought to be achieved by the population control Bill?

According to the Bill, it is necessary to control and stabilise the population of the state to ensure sustainable development. Thus, proponents of the Bill will first have to demonstrate that sterilisation is the only means of ensuring that the state’s population is controlled and stabilised. Once they are able to do so, they will then have to demonstrate that controlling population growth ensures sustainable development.

While it is hard to argue with the ends sought to be achieved by the Bill – sustainable economic development is a laudable objective that is undoubtedly constitutional – the means adopted are a violation of Article 14. Even assuming that sterilisation is a valid ground for treating individuals differently, the objects of the Bill are not realised by incentivising sterilisation.

The fatal conceit underlying the Bill is that a reduction in the total fertility rate will lead to sustainable economic development. If the object of the Bill was population control, it could plausibly be argued that incentivising sterilisation would achieve this objective. But given that the object of the Bill is sustainable economic development, and such development is hampered, not furthered, by a drop in the total fertility rate, a court should ideally find that the classification on the basis of sterilisation is unconstitutional.

Abhishek Sudhir is a constitutional lawyer who supports the Samajwadi Party.