UP Population Control Bill 2021 : An Analysis

of the Constitutional Validity

INTRODUCTION
The total population of India is 1.38 billion. India adds up to around
1,095,890 people to its population every 20 days and will probably
become the country with highest population by 2024. One of the
main causes of the increasing population within the country is that
the pronatalist approach within the society, i.e., people believe that
higher the number of youngsters will help increase thefor the family
income and also it will also make assure that there will be more
numbero. of people to look after in their old age. This rapid increase
in the population leads to a lot of dilemmas for the country as a
whole, given the limited resources which do not amplify
proportionate to the population eruption. It leads to complications
such as unemployment, lack of opportunities, slumping environment
etc. For these reasons it is important to take measures for controlling
the increasing population of the country.
The Government of India has been taking several measures since
independence to keep a record on the population eruption in the
country, trying hard to live up to the Cconstitutional soft mandate to
improve public health in the country. It has initiated measures such
as the- National Ffamily Pplanning program launched in the year
1951, making India the first developing country to propose such a
policy measure to control its increasing population. The; report of
the National Commission to Review the Working of the Constitution
(NCRWC) which recommended insertion of Article 47A in the
Constitution of India directing the States to “attain control over
population by proper means of education and implementation of
small family norms”. Furthermore,; Mission Parivar Vikas was
introduced to increase the access to contraceptives as well as family
planning services in the 146 districts where the total fertility rate
wasis 3 or more. Lastly, the; and 42ndnd Constitutional (Amendment)
Act, 1976 which had put forward the issue of controlling the
population under the eExisting List 3 of Schedule VII of 20A of the
Constitution of India, thereby empowering the State as well as Union
government to take measures in this respect. Consequently, States
such as Assam, Andhra Pradesh, Rajasthan, Madhya Pradesh etc.
have undertaken certain policy measures to keep a record on the
increasing population.
In spite of these measures taken by the governments, the use of
birth controls methods for population control continues to be a
taboo for the masses mainly due to the controversial past of the
issue, the front runner being the government initiated forced
sterilization programme/mission to control the erupting population
during the emergency in year 1976.
While, more than many attempts have been made in the past to pass
a law for the purpose of controlling the population by way of
introducing private member bills, the same could not be passed in
the Parliament. It is the need of the hour that the government uses
severe measures for controlling population. Even more so, given the
fact that as majority of the population is still unaware of the birth
controls, measures and approach of the people in the Indian society
is "as the crow flies" pronatalist in general.
A blanket of hope for a legislation has been seen in the UP
Population Control Bill , 2021 (hereinafter referred to as “Bill”)
which wasis introduced on 11thth July 2021 by the Honorable Chief
Minister of Uttar Pradesh, Mr. Yogi Adityanath. The Bill is a
combination of incentives and disincentives looking forward towards
implementation of strict policy measures for controlling the
population in the state of Uttar Pradesh. It administers to the need
offor a uniform law governing the country as a whole, then in
fragments divided by State boundaries. This articlepaper
contemplates to provide a comprehensive analysis of the
Cconstitutional validity of the Population Control Bill by taking into
account, of the landmark judgment of the Hon’ble Supreme Court in
the case of Javed v. State of Haryana and Articles 14, 21 and 25 of
the Indian Constitution.

THE POPULATION CONTROL BILL, 2021

Considering the adverse impacts of India’s rapidly increasing
population on its restricted natural resources, Mr.Honorable Chief
Minister, of Uttar Pradesh, Yogi Adityanath, is planning to present the
Bill in the Parliament order to promote a two-child only policy for the
country. The Bill will only be applicable tofor the married couples,
wherein, the boy shouldis not be less than 21 years of age and the
girl should not be belowis not less than 18 years.
BENEFITS TO BE CONFERRED UNDER THE BILL
The Bill provides for various incentives in order to embolden people
to follow the two-child policy:
a.) The birth controls to be made available at reasonable rates.
b.) The public servants under the control of State Government who
adopts two-child norm by undergoing voluntary sterilization
operation upon himself or spouse shall be given various incentives
such as two additional increments during the entire service; subsidy
in purchasing plot, house, etc; soft loan on minimum interest for the
construction of house; etc.
c.) If a married couple with a single child voluntarily undergoes
sterilization, the child shall be able to grab the several advantages
such as- preference for admission in institutes of Higher Education
and government jobs; and such other benefits as may be prescribed
by the said Government.
d.) If a married couple with a single child and living below the
poverty line, voluntarily undergoes sterilization, in addition to the
gained advantages under Section 7, such couple shall also be eligible
for payment of a one-time lump sum amount of eighty thousand (if
the single child is boy) or one lakh rupees (if the single child is a girl).
d.) Introduction of a compulsory subject with respect to controlling
the population in all senior secondary schools in States.
e.) There shall be constituted a State Population Fund on such date
as may be notified by the Government, which shall be utilized for the
purposes of implementation of this Act.
f.) While recruiting employees, the State Government shall give
preference to applicant having two or less than two living children.
DISINCENTIVES PROVIDED UNDER THE BILL
This Bill provides that in case if a married couple has two or more
than two children, both the spouses shall be debarred from the
following:
a.) Contesting in local authority or anybody of the local self-
government elections; Debarring from benefit of Government
sponsored welfare schemes, Limit of ration card Units up to Four.
b.) Barrier on applying government jobs, in contravention of two
child norm procreates more than two children shall be ineligible to
apply for government jobs under the State Government.
c.) Barrier on Promotion in government services, any employee of
the government jobs under the State Government, after the
commencement of this Act, in contravention of two child norm
procreates more than two children shall be ineligible to get
promotion in government services.
DISADVANTAGES OF THE BILL
Although the Bill has been framed for the assistance betterment of
the society, it might face certain drawbacks, that are discussedwhich
can be as follows:
a.) Increase in Ssex-S selective Aabortions- The Pre-Conception and
Pre-Natal Diagnostic Techniques Act, 1994 ("PCPNDT Act”) was
enacted with the goal to prevent sex selective abortions in our
country. Thereafter, female feticide became difficult and a large
section of the population initiatedpopulation indulged in procreating
until they had a son. However, when disincentives given under the
Bill will be imposed on people with more than two children and
incentives on the people with two or less children, hence, people will
be ultimately enticed towards resisting the number of children. This
develops an apprehension that the Bill will ultimately tend to
increase in illegal act of sex selective abortions under PCPNDT Act,
for the reason that a large population of a female children is still
thought to be a burden on the family in the country, whereas aas a
male child is seen as a blessing. Thereby it is dominentdominant to a
decreased sex ratio.
b.) Anti-Ddemocratic Rrestrictions- The bill lay down restrictions on
people with more than two children with respect to contesting
elections for “local authority” that means-
(i) a Gram Panchayat constituted under the U.P Panchayat Raj Act,
1947;
(ii) a Kshetra Panchayat or Zila Panchayat constituted under the Uttar
Pradesh, Kshetra Panchayats and Zila Panchayats Adhiniyam 1961;
(iii) a Municipality constituted under the U.P. Municipalities Act,
1916; or
(iv) a Municipal Corporation constituted under the Uttar Pradesh
Municipal Corporation Act, HYPERLINK
"https://www.janaagraha.org/asics/report/Uttar-Pradesh-
Uttarakhand-Municipal-Corporation-Act-1959.pdf"1959 ;
c.) Violation of an Iindividual’s Rreproductive Rrights- There are
assertive restrictions as to how many children people can have,
which is in violation of Article 21 of the Indian Constitution's Rright to
Rprivacy enshrinedsuch as in the case of (Justice K. S. Puttaswamy v. Union of India, (2015) 8
SCC 735). Each person has a decisiveonal autonomy with respect to his

intimate personal choices, such as the number of children he wishes

to procreate.

VALIDITY OF THE BILL IN CONSTITUTION

The main purpose of this Bill is to keep an eye on the increasing
population. It tends to make a bifurcation between the people who
have more than two children living and the people who have two or
lesser number of living children, for the purpose of gaining asserted
betterment as well as restrictions.
PROMOTING EQUALITY UNDER ARTICLE 14 OF THE CONSTITUTION
OF INDIA
Article 14 of the Constitution of India ensures that no citizen of India
should beis refused for equality before the law or equal protection of
law by the State within the Indian territory. The Bill implements for
unequal treatment to people with more than two living children and
people with two or less living children, nonetheless, it is notn't
violative ofing Article 14, given the fact that Article engraves out an
omission, rational hatred and ratifying action.
In order to take advantage of the exemption, the categorization
should be established on the principles of intelligible differentia and
rational nexus . Perhaps, the Bill accomplishes both the
requisiteabove conditions as there exists a clear bifurcation between
the two classes; and it is established on the principle of rational
nexus (Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34) . as it confers certain advantages
on persons with two or lesser number of children living and ministers
for certain disadvantages for persons with more than two living
children, which ultimately delivers the purpose of the Bill (Budhan Choudhry v.
State of Bihar, AIR 1955 SC 191) , i.e., encouraging family planning in India to keep

aan eye on the rapidly rising population of the country.

Furthermore, the guarantee for equality before the law does not
mean corresponding applicability of the same rules over all persons
in spite of different conditions, (Chiranjeet Lal v. UOI, AIR 1951 SC 41) i.e., unlike should
not be treated likethat they are equally good or bad, nor equally
important because different classes of people require different
treatment and treating un-equals as equals would itself amount to
violation of Article 14.
For a law to be violative of Article 14, it needs to be established that
the bifurcation made under it is arbitrary or it does not have any
rational nexus to the object sought to be achieved (Jaila Singh v. State of Rajasthan,
AIR 1975 SC 1436) . As long as there is a rational basis for bifurcation and all

persons falling under the same class are treated similarly, there does
not exist any violation of the equality clause.
JUST, FAIR, AND REASONABLE PROCEDURE FOR
DEPRIVATION OF RIGHT TO NON-PUBLIC LIBERTY
UNDER ARTICLE 21 OF CONSTITUTION OF INDIA
It may seem that this bill deprives an individual of their freedom,
because there are disincentives in this law that prevent them from
having as many children as they want. A person's reproduction
choices are intimate personal choices, and each individual has a right
to make decisions regarding these choices. This also leads to new
findings concerning the un-enumerated right to privacy of an
individual (Justice K. S. Puttaswamy v. Union of India, (2015) 8 SCC 735). Although the Bill is not in
direct conflict with Article 21, the essence of this right is the
enjoyment of a quality life (Hinch Lal Tiwari v. Kamla Devi, AIR 2001), so, it cannot be
declared as violating this right, as a result of the Bbill, the rapid
population growth of the nation will be controlled while family
planning will be promoted. The Bill must restrict an individual's
freedoms directly, overtly, and not vaguely or remotely, in a way that
is depriving him of his rights to freedom (Ram Sharan v. Union of India, AIR 1989 SC 549).
Additionally, it is possible to argue that the restrictions imposed in
the Bill deprive a child of his Rright to Llife. In the Pre-Natal
Diagnostic Techniques (Regulation and Prevention of Misuse) Act,
1994, an unborn child within a mother's womb is defined as a "fetus"
according to Article 21 of the Universal Declaration of Human Rights.
An unborn child does not fall under this Article, since the
personhood of a child is determined by birth, thus, the Rright to Llife
is not applicable.
Thus, the bill is valid as per the Constitutional mandates, because it
cannot be interpreted as a violation of Article 21.
IN ARTICLE 25, RELIGION IS CONDUCTED BY PUBLIC HEALTH
According to the Muslim Ppersonal Llaws, a muslim man may marry
four women may be married with the aim of reproduction and the
restrictions imposed by the Bill would therefore be in violation of
Article 25 of the Constitution of India regarding Ffreedom of
Rreligion.
A Ffundamental Rright guaranteed underin Article 25 of the Indian
Constitution is the freedom of conscience, the right to live a life of
religion in a way that is consistent with public order, public health,
morality, and other principles related to fundamental rights. If you
read this provision literally, it can be interpreted that the rights
granted under this Aarticle are not absolute but are subjected to
conditions of public health.
Consequently, itwe cannot be considered in complianceas complying
with Article 25 of the Constitution because, firstly, the Bill does not
define four marriages as a universal requirement; and secondly, its
provisions penalize people with more than two living children as it
upholdswith the ultimate aim of achieving improved public health.
Theis Article further provides that no protection against practices
that are not integral to religion ( HYPERLINK "https://indiankanoon.org/doc/37494799/"Dr. M. Ismail
Faruqui and Ors. v. Union of India and Ors., AIR 1995 SC 605) , and thus, the States may supersede

such practices in the interest of public order (Smt. Sarla Mudgal, President, ... vs Union Of
India HYPERLINK "https://indiankanoon.org/doc/733037/"& HYPERLINK "https://indiankanoon.org/doc/733037/" Ors on 10 May, 1995

HYPERLINK "https://indiankanoon.org/doc/733037/") .
ELECTORAL REPRESENTATION - JUDICIAL PRECEDENCY
The Supreme Court of India delivered aits landmark judgment in
Javed vs. the State of Haryana in the year 2003. It is noteworthy that
this judgment upheldolds the Cconstitutionality of Section 175(1)(q)
of the Haryana Panchayati Raj Act, 1994, which stated thatprovides
that a person with more than two living children is ineligible to
contest an election for Sarpanch/ Panch/ Gram Panchayat member/
Panchayat Samiti or Zila Parishad member; and
A member who isis disqualified as a member under Section 175(1)(q)
cannot continue as a member under Section 177(1). Henceforth, aA
contention hallenge was filed against these provisions for the
following reasons:
a) violation of Article 14 – Right to Equalityrights;
b) violation of Article 21 - Rright to Llife and Ppersonal Lliberty; and
c) violation of Article 25 – Right to Ffreedom of Rreligion.
The Supreme Court of India noted that, for instance, the
classification of such beneficiaries falls under the principle of
intelligible differentia and rationaleasonable nexus, since those with
more than two children can be distinguished from those with two
children or fewer. The disqualifyingication clauseprovision in these
provisions also hads a rational nexus with the socio-economic
objective sought, namely to create a disincentive for procreating
more than two children for the Government through creating
disincentives against over procreation.
Additionally, the acts of disqualification prescribed by the Act dido
not violate the Rright to Personal Lliberty as they werare reasonable
and hadave been introduced to benefit the whole of the Nation.
Lastly, Aarticle 25 states that ffreedom is subject to morality of public
order, and health. Also, marryingiage to four women is only
permitted and is not , not mandatory, accordingmandatory according
to Muslim Law. As a result, it was held that the Constitution prohibits
the passage of Sections 175 (1) (q); 177 (1) of the Act and hence it
was deemed intra-constitutional.
CONCLUSION
India's youthful birth rate is in part due to a population boom, and
the country is proud to have the youngest population in the world.
Despite the nation's ongoing national lockdown, COVID-19 reigns
supreme, which is obviously one of the downsides to the population
boom. In the densely populated areas, it is difficult to undertake
recommended prevention measures such as social distancing given
the large number of people per square kilometer area which is
454.94 inhabitants. People who are not infected with COVID-19 can
still catch the virus from airborne droplets, so it cannot be caught
from people who are infected already. Keeping the disease away
from vulnerable people is the only way to prevent transmission,
however, as a large part of the Indian population lives in crowded
urban zones and in families with many people, it is increasingly
difficult to maintain quarantine restrictions and to keep this
pandemic under control.
Furthermore, the current lockdown situation has led to food
shortages among the poor, requiring governments to provide these
individuals with food and other necessities. In other words, the
government would end up consuming a significant portion of its
funds that could have otherwise been used to invest in research and
development or to upgrade medical facilities.
People can live in dispersed environments in a country with a low
population, resulting in fewer human interactions and a lower risk of
disease transmission. Thus, the time is right now for people to
recognize overpopulation's vices. When the Coronavirus pandemic
ends and India is ready to move forward, the Population Control Bill
needs to be considered in order to control the rapidly increasing
population of the country.
In addition, Article 14, 21, and 25 of the Constitution and the
landmark judgment of the Hon'ble Supreme Court in Javed v. State of
Haryana illustrate the validity of the Bill.
By,
Shreyansh Srivastava
4th Year Student of BALLB(Hons) from Galgotias University.