SESSION: 2021-22

SUBJECT: LEGAL METHODS

TOPIC: POPULATION CONTROL IN INDIA

SEMESTER - 1

SUBMITTED TO:
ASST. PROFESSOR. JHARNA SAHIJWANI
School of law, NMIMS (Deemed to be University)

SUBMITTED BY:
SHIKHAR SANADAYA
B.A LLB(DIVISION-B)

1
S.no TITLE
1. Introduction
2. Research Objective
3. Research Problems
4. Coercive Methods and Population Control Laws
5. Drawbacks: Demographic dividend
6. Constitutional and Judicial Prospects of laws
7. Conclusion – The way ahead
8. References

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Introduction
In 2019 the UN department of economic and social affairs1 revised world population prospects and
said that at the current growth rate India's population will surpass China by 2027 to become the
world's most populous country. it further said that India's population would peak in 2059 and begin
declining thereafter however the figures show that the country is already heading towards population
stabilization.
The 2018-19 economic survey of India2, states that the population growth rate has been gradually
slowing down in recent decades .It also mentions that the population growth rate which was 2.5 %
annually during 1971 -81 has come down to 1.6 % during 2011-16.More significantly state such as
Bihar ,Uttar Pradesh Rajasthan and Haryana that were infamous for their large population at one
point, are now experiencing a deacceleration in population growth the TFR3, the number of children
born to a woman during her lifetime also indicates towards growing population stabilization.
according to census, the country has witnessed a signal significant decline in TFR from 5.2 to 4.1
between 1971 and 1981 and from 3.6 to 2.4 between 1991 and 2016.A fertility rate of 2.1 is an
approximate figure indicating population stabilization. as per the national family health survey data
for 2015-16 the TFR has declined to 2.2 from the early 2.7 in nfhs-3 2005- 08. 20 out of 36 States and
Union Teritories have already achieved the replacement level of fertility4 of 2.1 % to less.
Therefore, one can clearly allude that now India's population is not exploding. However, the huge
disparity in terms of population growth rate and TFR among States needs to be taken note of. six
States Uttar Pradesh, Bihar, Chhattisgarh, Jharkhand, Rajasthan, Madhya Pradesh which accounts for
approximately and roughly about 40% of India's population still have to TFR above 2.1 and require
special attention to slow down their population growth. A 2020 report by the technical group on
population projections said that nearly one fifth of countries population increase between 2011 and
2011-36 may take place in Uttar Pradesh. To contain the exponentially growing population in Indian
union government and many state government have used coercive and some legal methods.

RESEARCH OBJECTIVES
• To analyse the coercive and legal methods used by government to curb the
exponential growth in population in India.
• To discover the drawbacks of controlling and containing population.
(A) Widening of drift of demographic dividend in country
(B) China’s Example
• To study constitutional and judicial aspects of population control laws via case study
(JAVED VS GOVT. OF HARYANA)

1
United nations department of economic and social affairs,
https://www.un.org/development/desa/publications/world-population-prospects-2019-highlights.html (last
visited 18 Nov, 2021)
2
Gaurav Vivek Bhatnagar, Economic survey Predicts sharp slowdown in population growth in India, THEWIRE.
In, https://thewire.in/society/india-population-growth-economic-survey (18 Nov,2021)

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RESEARCH PROBLEMS
Containing the problem of exploding population with using coercive method and population
control law have become a new trend which is followed nationwide as well as globally
recently India's most populous state’s law commission (Uttar Pradesh law commission)
released a draft for Population (Control stabilization and welfare) Bill 2021. Similar, policy is
being discussed in Assam. Although, it is vital to control exponentially growing population in
country to lead to achieve sustainable development growth. However, controlling population
the in a “young” country likewise, India can have certain drawbacks such as widening rift
between demographic dividend among the different age group. Population controlling laws
are also broadly seen as laws violating individuals right, it is necessary to access the scope
and vitality of the corrective method used by government as well as of population control
laws it is essential to analyse the constitutional aspect of rights clashing with the population
control laws and also find the constitutional validity of the existing two child norms

COERCIVE METHOD
State sponsored and backed population control has a long and contentious history in India. In 1952,
India became the first developing country to introduce the National Family Planning Programme5
with the objective of controlling the country’s population growth rate. Since, India’s Independence, as
many as 36 Bills on population control have been introduced in parliament of the country.
Implementation of the National Family Planning Programme reached its climax in 1975-77 when
forced mass sterilisation during the Emergency long left an indelible mark on public consciousness in
India. It was only in the 1990s that a number of states tried and brought in some form of two child
policy with provision for disincentivising violators and incentivising adherents.
However, a punitive approach to population control has always been questioned. Putting strict limits
on the number of children often leads to rapid increase in sex specific abortions and divorce. That’s
why experts warn against a coercive two child policy which can increase female foeticide and also
have further potential to destabilise the sex ratio. Laws restricting eligibility for people with more than
two children in Andhra Pradesh, Haryana, Madhya Pradesh, Odisha and Rajasthan concluded that the
two children policy in various states led to rise in sex selective and unsafe abortions: Men divorced
their wives to run for local body polls and families gave up children for adoption to avoid
disqualification.
Additionally, India is a signatory to the declaration at the International Conference on Population and
Development6 (ICPD) held in Cairo in1994, and in Nairobi in 2019, which advocates the honouring of
the reproductive rights of couples to decide freely and responsibly the spacing and number of their
own children.

5
Jagriti Gyanopadhaya, Family planning in India: Alternate approaches, DownToEarth (28Nov,2021),
https://www.downtoearth.org.in/blog/governance/family-planning-in-india-alternative-approaches-56000
6
United Nations Population & Development, https://www.unfpa.org/resources/cairo-declaration-population-
development , (Last visited 28 Nov, 2021)

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POPULATION CONTROL LAWS
Recently, two of our states Uttar Pradesh and Assam proposed to introduce population control bill but
they are neither first nor the only States which have taken or proposed coercive methods like
disincentivising those who do not adhere to the two child policy by depriving them of government
benefits for population control .while U.P and Assam might have attracted more attention for their
announcements about demographic worries7, why is there are at least 11 other states where almost
same coercive methods are already in place .in Rajasthan those having more than two children are not
eligible for appointments in government jobs ,in Maharashtra8 too candidates are disqualified from
contesting local body elections from gram Panchayat to municipal corporation for having more than
two children the Maharashtra civil service also bar a person with more than two children from holding
a post in state government .also women with more than two children are not allowed to benefit from
public distribution system .Gujarat disqualifies anyone with more than two children from contesting
local body election .in Bihar an individual having more than two children cannot contest urban local
body elections. Odisha bars individuals with more than two children from contesting civic body
elections. in Madhya Pradesh and Chhattisgarh if third child was born on, or after January 26, 2001 it
makes the parent ineligible for government jobs. Andhra Pradesh too disqualifies any person from
contesting local body election if he or she had more than two children after May 30 1994.
1. Rajasthan –
(A) Rajasthan Panchayati Raj act 1994, makes individual ineligible to contest election if he/she
has more than 2 children.
(B) Rajasthan Civil Services (Pension)Rules 1996, section 53(A) entails mandatory retirement of
a government employee on birth of 3rd child but later it was scrapped on 18th July ,2018.
2. Gujrat-
(A) On 23rd march,2005, The state election commission added a new provision in the section
(10) of Bombay Provincial Municipal Corporation Act ,1949 which restricts with more
than 3 children by date of commencement of Gujrat Local Authorities Laws (amendment)
act.
(B) Provided further that a child or more than single child born in a delivery within the time
of one year from date of the commencement of amendment will not be taken into
consideration for purpose of disqualification under this clause.
3. Maharashtra –
(A) The Maharashtra Zilla Parishad and Panchayat Simitis Act, disqualifies individuals
having more than two children from contesting local government Elections
(B) The Maharashtra Civil Services (declaration of small family) Rules 2005, says that a
person having more than 2 children from holding a state government job.
(C) Women with more than two children are not allowed to get the benefit from Public
Distribution System.
4. Madhya Pradesh –

7
Samarth Srivatava, UP prepares control bill draft, India Today, https://www.indiatoday.in/india/story/up-law-
commission-population-control-bill-govt-jobs-2-children-1826357-2021-07-10 , (last visited 28 Nov, 2021)
8
Agni Chakarabarti, How UP’s proposed population policy compares two-child norm in other state,
https://theprint.in/india/how-ups-proposed-population-policy-compares-to-two-child-norms-in-other-
states/695086/ , (last visited 28 Nov, 2021)

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 (A) Madhya Pradesh Civil Service (General condition of services) act states that, if the third
child is born on or after 26th Jan, 2001, the candidate becomes ineligible for higher
judicial services and government services.
(B) Madhya Pradesh and Chhattisgarh adopted the two children norm in 2001 for the local
bodies election but later it was discontinued it as a criteria for contesting election as it was
not applicable to assembly and parliamentary elections.
5. Telangana-
(A) According to section 19(3) with section 156(2) and 184(2) of Telangana Panchayat Raj
act 1994, a person with more than 2 children are not allowed to contest in local election.
(B) If a person had more than 2 children before May 30 ,1994. He or she shall not be
disqualified from contesting in election.
6. Andhra Pradesh-
(A) The Andhra Pradesh Panchayat act, 1994, states that a person having more than 2 children
should be disqualified from contesting elections.
7. Odisha-
(A) The Odisha Zilla Acts bars individuals with more than 2 children from contesting
elections.
8. Uttarakhand-
State government decided to restrict people with more than two children from contesting
elections. Later decision was challenged in High court and court ruled that two children norm
will only applied to person who contested the election of Zilla Panchayat and blocks
development committee membership.

DEMOGRAPHIC DIVIDEND
Controlling population in itself posess many major drawbacks like ethical concerns, religious
concerns, interference with freedom and individual rights. One of the most horrific drawback is the
widening rift of demographic dividend of age in country which will reciprocate the workforce of the
country. The Sample Registration System’s 20189 report revealed that nearly two-thirds population of
India is between 15 and 59 of age. With the largest working with the largest working-age population
in the world, it enjoys our demographic dividend of a young population whereas major economies of
the world struggle with a declining working-age population. Its share of the working-age population is
set to almost peak by the end of this decade from 55.8% in 2021 to 58.8% in 2031. The economic
survey of 2018 -19 says that working-age population will grow by 9.7 million per year during the
2021- 31 and 4.2 million per year in 2031-41.
However, the same survey also warns that India's population at the national level and in several States
will begin aging significantly in the next 8 years. The share of the young population (0-19years) of the
country could drop to 25% in 2041, from 41% in 2011. The same period will see the share of the
elderly population (over 60 years) doubling from 8% to 16%. To put this in perspective, 2016
research paper by the bureau of economic research showed that a 10% increase in the shadow of 60 +
population of reduces the per capita GDP growth rate by 5.5%.
While 11 out of 22 big states will witness the size of their working-age population declining, it will
continue to rise and state like Bihar UP, MP and Rajasthan. These states could meet the labour
deficient in states with an aging population but only if their young population could be converted into
an employable manpower.

9
OFFICE OF THE REGISTRAR GENERAL & CENSUS COMMISSIONER, Sample registration system statistical report
2018, pg. 187, https://censusindia.gov.in/Vital_Statistics/SRS_Report_2018/SRS_Statistical_Report_2018.pdf

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CHINAS EXAMPLE
China’s example too, could be an eye – opener case for India. Right at the time of ushering in
economic reforms, it brought in and rigorously followed a strict one child policy. There are studies
that have shown that the policy resulted is undesirable consequences such as sex selective abortions,
depressed fertility levels, irreversible ageing of population, labour shortage and economic slowdown.
The critics of the policy also say that the negative effects forced China has grown to the world’s
second largest economy, the one child policy did contribute to the country’s phenomenal rise.
Because the one child policy in China prevented up to 400 million births, it meant that there were
more employment opportunities for everyone, more chance of getting educated, more facilities for
healthcare and less competition in almost in everyone in China. Without the one child policy, China’s
economic progress would certainly have been less shining. After taking all advantages of the one
child law, it is only now that China revising it according to present requirements.

CONSTITUTIONAL AND JUDICIAL APPROACH TOWARD

POPULATION CONTROL LAWS.
42nd constitutional amendment10 in 1976 inserted ENTRY-20 in the concurrent list of seventh
schedule, it permit both union as well as state legislature to enact laws for population control and
family planning .The demands for a population control laws are based on this entry in the 7th
schedule and supreme court of India has not encountered to examine such policy although there has
been petition seeking directive to the legislative entities to formulate policy on population control
however this laws have been questioned on various incidents on the basis of article 14, article 21, and
article 25 let's examine supreme court’s observation on these objections with example of one of the
landmark case of JAVED & ORS vs STATE OF HARYANA &ORS

# JAVED & ORS vs STATE OF HARYANA &ORS11

SUMMARY OF FACTS –
A writ petition was documented by Javed & Ors to check the lawfulness of a law that excludes people
having more than two children from contesting election for local government under the section 175
(1)(q) and 177(1) Of Haryana Panchayati Raj Act 1994. These laws were enacted to control the
population the petitioner claimed that these laws abused the privilege to uniformity understudy keys
of law insured by the article 14 right to life and freedom of individual under article 21 off Indian
constitution and article 25 of confusion which ensured freedom of religion to all person in India (as
act of polygamy in Muslims regularly prompts multiple) kids.
COURT’S DECESION AND ANALYSIS-
(A) The court held that the disqualification provisions mentioned in the law were constitutional
and in good faith court established that the law was not arbitrary as the two groups are
classified and well-defined define and the motive of the classification is related to promote
socio-economic welfare and health care of the population.

10
INDIA CONST. art.246, amended by The Constitution (42nd Amendment) Act, 1976
11
Javed & ORS V. State Of Haryana &ORS, AIR (2003) SC 3057

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 (B) Court opined that the laws are neither unreasonable not discriminatory and did not violate
article 14 of constitution. Court said law is not discriminatory as other panchayats and self-
governance institution do not have same requirement, as different organ of local self-
government may have different powers.
(C) The court noted that contesting in an election is not a fundamental right but a statuary right.
Thus, fundamental rights do not be you're on restrictions imposed by the statue.
(D) The court held that the law does not violate article 21 of constitution fundamental. rights
should be read in conjunction with fundamental of citizens and directive principle of state
which compel states to take step for welfare of country including family planning policies.
(E) Court rejected the argument that the law has somehow violated article 25 the court stated that
article 25 is subject to exception for public order, morality and health, permits to limit its
ambit by a mean of social welfare legislation.
(F) Court concluded by rejecting the petition of many women lacking independence to make
choices about having a child and being impacted by law court suggested to make exception to
this disqualification criteria for women but if legislature does do not make amendment, law
will still be constitutional.
(G) The court also greatly emphasize the challenge that country faces due to its rising population.
It gave weightage on controlling a population is necessary to fulfil the state's obligation and
States duty of sustainable development.

THE WAY AHEAD

We do not have a population explosion but we still need to bring down a TFR to a universal 2.1
coercive methods of population control are neither advisable nor fruitful. moreover force and dis
appropriate suppression of population growth may put India at risk of losing its demographic dividend
.experts opine at promoting education and awareness about family planning is better way forward
,experiences from all over the world convincingly illustrate that education particularly of women is
the most important factor contributing to reduction in infertility in India .instead of undue and dis-
appropriate suppression of population growth India must focus on educating and skilling its young
population in order to take full advantage of thedemographic dividend before it begins to decline. in
post pandemic World India has a unique opportunity, the world is looking for alternative source of
supplies amidst a booming demand. India must prepare and position itself accordingly Time has come
for India to capitalise on its demography not to fritter away through a necessary option with
population control.

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REFERENCES

1. https://theprint.in/india/how-ups-proposed-population-policy-compares-to-two-child-norms-in-other-
states/695086/
2. https://lj.maharashtra.gov.in/Site/Upload/Acts/The%20Maharashtra%20Zilla%20Parishads%20and%2
0Panchayat%20Samitis%20Act,%201961.pdf
3. https://cdn.s3waas.gov.in/s374071a673307ca7459bcf75fbd024e09/uploads/2018/12/2018121939.pdf
4. http://dtcp.ap.gov.in/dtcpweb/act/Panchayathraj%20Act.pdf
5. https://www.newindianexpress.com/nation/2019/sep/19/parents-of-more-than-two-kids-can-contest-
panchayat-polls-uttarakhand-hc-2035979.html
6. http://www.bareactslive.com/Raj/rj038.htm#:~:text=As%20per%20the%20existing%20provisions,one
%20Panchayat%20Samiti%20to%20another.
7. https://lawsofindia.blinkvisa.com/pdf/gujarat/1962/1962GUJARAT16.pdf
8. https://www.ndtv.com/india-news/rajasthan-relaxes-two-child-policy-for-government-employees-
1886200
9. https://indianexpress.com/article/india/two-child-policy-in-indian-states-6082879/
10. https://www.hindustantimes.com/india-news/the-past-and-present-of-two-child-policies-in-india-
101626304115798.html
11. https://indianlawportal.co.in/javed-v-state-of-haryana/
12. https://uniteforreprorights.org/resources/javed-v-state-
haryana/#:~:text=curtailed%20through%20statute.-
,The%20Court%20held%20that%20the%20disqualification%20provisions%20of%20the%20election,r
equire%20the%20state%20to%20take
13. https://indiankanoon.org/doc/57675307/
14. https://www.unfpa.org/events/international-conference-population-and-development-icpd
15. https://www.prb.org/resources/what-was-cairo-the-promise-and-reality-of-icpd/
16. https://www.hindustantimes.com/analysis/icpd-25-india-must-prioritise-reproductive-rights/story-
SAykhnSPbOuTA2wtArawBI.html

Research paper referred

1. Gabe T. Wang, Population control laws and Implementations in India,

http://jsswnet.com/journals/jssw/Vol_7_No_2_December_2019/14.pdf
2. S.N Aggarwal, Population control in India: Progress and Prospects,
https://www.jstor.org/stable/1190756