Finding A Middle Ground Between The Population Control Policies And the Reproductive Rights

The right to Reproduction and Population Control Policies don't necessarily cause impediments for each other and the two concepts have their independent existence till the time the equilibrium is maintained. But, in recent times due to a rise in population at an extremely rapid rate has led to the question 'whether population control policies can be used to restrict reproductive rights'. This debate came to the forefront when the Uttarakhand High Court on 17 September 2019 in State of Uttarakhand v. Urmila Masih [1], set aside an order passed by a single judge of the High Court whereby a provision denying maternity leaves to female government servants having two or more living children was struck down as unconstitutional. The essential question that this judgement put forward is whether the judgement considering the current state of population explosion is justified or does it defeat the purpose of the legislation like the Maternity Benefit Act, 1961 which were meant to preserve the private right of a person to reproduce and also provide with conducive terms of employment.

At the very first instance, both concepts i.e. respecting the right to reproduce as well as controlling the extraordinary growth of population appear to be equally important as the former forms an integral part of the right to privacy which is further an essential component of Article 21,[2] and the latter will ensure availability of resources for the overall growth and development of each and every person. However, when faced with a difficult question of selecting one of them, a definite and reasonable explanation should subsist in order to justify why one was chosen over the other.

Issues That May Arise When Searching For A Middle Ground

The conflict between the population control and right to reproduce involves mainly three stakeholders i.e. the woman who gives birth to the child, the child who is born and the community at large. The Maternity Benefit Act, 1961 was introduced with the objective to regulate the employment of women in certain establishments for a certain period before and after child-birth and to provide for maternity benefit and certain other benefits. Thus, essentially the idea of the legislation is to look after the welfare of pregnant women, new mothers, and the newly born children. To reach a conclusive solution to resolve the conflict it is important to realize that population control policies can’t be executed by denying maternity benefits to a woman on the grounds that it is her third child as it would lead to the violation of her fundamental right to live a life with dignity and enjoy other constitutional rights such as right of a woman to make reproductive choices. [3]

Also, one of the other things that is necessary to be keep in mind is that it is not the third child who is at fault and thus denying maternity leave would lead to denying the right to a healthy life [4], as the child would not be able to get proper nutrition which is very essential during the initial years of growth. If the needs of the child are neglected at the nascent stage, it would further lead to health complications such as malnutrition which ultimately puts pressure on the state resources to bear with the expenses of the ill-health of the child thus making the child a liability on the country. This way the government would end up spending more money than it could gain by denying maternity leave to the women.

Furthermore, ‘health’ being a state subject [5] leads to different policies being followed by different states and thus leads to variation in the enforcement of various health policies. This can possibly result in women of a particular state being discriminated against the women of other states. Another important aspect to this conflict is that in Indian society which essentially continues to be dominated by the male community, the choice of having a third child in most cases is made by the male and not by the female and denying her the maternity benefits would be equivalent to punishing her for something she hasn’t voluntarily done.

The other side to this debate is the problem of population explosion which has been the lead cause for many other problems such as poverty, climate change, excessive pressure on the existing resources and various other problems that the entire world is facing as a whole. Also, in case the government agrees to give maternity benefits to working females having two or more living children, it will also go against the family planning measures that the government is advocating over the years. So, this brings us to a question of how to resolve this sensitive conflict and can the solution be such that both the issues are appropriately addressed and co-exist without interfering in each other’s domain.

The Way Forward

What we realize after going through the issue at hand is that a balancing point must be reached which preserves the right to reproduce as well as ensures that the population doesn’t grow at an extraordinary pace as we have seen that both the issues come with their own set of problems. The first and foremost step that needs to be taken is educating people and spreading awareness among the people. It is very essential to make people, especially the poor and uneducated realize the cascading effect that a huge family has on the financial and other resources of the family as well as the country. The use of contraceptives can be promoted in order to address this issue. One of the other ways to address the problem of population boom is to promote women empowerment so that women are not forced or coerced into having a third child thus making her undergo unnecessary pain and sufferings. Women should be empowered so that they are capable of making their own decisions and can independently deny in case they don’t want to have a third child. This will not only help in improving the quality of life of the women but also prove useful for Indian society as a whole.

Until and unless a strict call is taken by the Government, the problem of the excessive population would continue to linger on and will only increase over the years. The ‘Population Regulation Bill, 2019’ was introduced in the Rajya Sabha in July 2019, calling for punitive action against people with more than two living children and making them devoid of all government services. The proposed legislation aims to accrue certain disadvantages such as disqualification from being an elected representative, denial of financial benefits and reduction in benefits under the Public Distribution System (PDS) for people having more than two children. The bill also suggests that government employees should give an undertaking that they will not procreate more than two children.

Also, the National Commission to Review the Working of the Constitution (NCRWC) headed by Justice Venkatachaliah after making immense efforts for two years and elaborate discussion had suggested the addition of Article 47A which stated that “The State shall endeavour to secure control of population by means of education and implementation of small family norms in the Constitution and formulation of Population Control Law”. However, on the other side, it is contended by some that a population control policy does not only lead to violation of human rights to a great extent but also affects the poor, weaker and marginalized sections of the society. So, one of the ideal ways as of now till the time a substantive policy is made in order to serve as a requisite solution to the problem of population explosion is by incentivizing the people who follow birth control policies. The focus should be on coming up with innovative ideas for family planning as compared to putting a complete ban on having more than two children.

[Pallav Arora is a third-year law student at Rajiv Gandhi National University of Law (RGNUL), Punjab.]

1. State of Uttarakhand v. Urmila Masih, 2019 SCC OnLineUtt 927
2. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
3. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
4. Arjun Gopal v. Union of India, (2017) 16 SCC 267
5. INDIA CONST. schedule VII, list 2, entry 6.