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Population policy and legal prescriptions

Every civilised nation with a vision of planned development must have a national population policy. The world today is pathologically over-populated, and one of the menaces before progress is the absence of a scientific population perspective and a global family planning project. The socio-economic situation confronting many backward countries could be attributed to heavy population density, high infant mortality rate, inflated female fertility rate and elevated maternal mortality rate.

The economic and environmental consequences of excessive demographic growth are alarming and justify prophylactic and health perspectives designed to moderate and discipline the birth rate, so that the health of mother and child, the well-being of family and community, the promotion of sustainable development, lasting peace and social security without a struggle for survival, may be achieved. The enjoyment of human rights by every person is a condition of society’s spiritual and temporal status the world over.

No society is free until its women are free. The liberty of a woman can never be a reality until she has a say on the frequency of deliveries. A potential mother’s free consent and the right to say ‘no’ are conditions for domestic justice.

As of July 2008, the world population is estimated to be just over 6.684 billion. India’s own share in this is over a billion. The number of people on the earth is booming at rates that were unprecedented earlier. If it maintains its current growth trajectory, the number could reach nine billion by 2042. No space, no resource, no future — save thanatos and chaos.

Ruling politicians suffer a certain type of cataract that blinds them to planned development — of which population control is a key component. Thomas Robert Malthus, from the economic point of view, warned the world of the consequences of population profusion outstripping means of subsistence.

When India became independent and even earlier, the explosive increase in human numbers worried social activists. Progressive visionaries such as Jawaharlal Nehru emphasised the strategic significance of a rational, humanist population policy, and the need to separate religious rivalry and communal orthodoxy from the national issue of demography and development. Nehru observed that family planning and placing limits on the number of children in each family were essential in the interests of social economy, family happiness and national planning. A committee appointed by the Congress president in the early 1940s recommended the setting up of birth control clinics and other measures such as raising the age of marriage and a eugenic sterilisation programme. A Committee on Population set up by the National Development Council in 1991, in the wake of the census results, also proposed the formulation of a national policy, Nehru pointed out. (Seminar, March 2002, Page 25.)

The paramountcy of population planning has been repeatedly stressed by the Planning Commission. The Supreme Court, in Javed vs. State of Haryana (2003 (8) SCC Page 369) speaking through Chief Justice R.C. Lahoti, stated (on Page 388): “Every successive five-year plan has given prominence to a population policy. In the first draft of the First Five Year Plan (1951-56) the Planning Commission recognised that [a] population policy was essential to planning and that family planning was a step forward for improvement in health, particularly that of mothers and children. The Second Five Year Plan (1956-61) emphasised the method of sterilisation. A Central Family Planning Board was also constituted in 1956 for the purpose. The Fourth Five-Year Plan (1969-74) placed the family planning programme, ‘as one amongst the items of the highest national priority.’ The Seventh Five Year Plan (1985-86 to 1990-91) had underlined ‘the importance of population control for the success of the plan programme…’ But, despite all such exhortations, ‘the fact remains that the rate of population growth has not moved one bit from the level of 33 per thousand reached in 1979. And in many cases, even the reduced targets set since then have not been realised’.” (Population Policy and the Law, ibid., pp. 44-46)

These facts highlight the problem of population explosion and justify giving priority to the formulation of policy-oriented legislation wherever needed.

The States have the legislative power to make provision for welfare planning, population control and diverse related issues. Family planning and birth control strategies are indispensable for the economic good of the Indian people. The constitutionality of population control legislation enacted by the state was considered by the Supreme Court and upheld emphatically by Chief Justice Lahoti in Javed. The right to life, public health and progress of Indian humanity generally compel the adoption of demographic justice. The Supreme Court eloquently elaborated the constitutional dimension of population regulation as an economic and environmental policy. The court, however, observed: “None of these lofty ideals can be achieved without controlling the population inasmuch as our materialistic resources are limited and claimants are many. The concept of sustainable development which emerges as a fundamental duty from several clauses of Article 51-A too dictates the expansion of population being kept within reasonable bounds.”

The menace of the growing population was judicially noticed and the constitutional validity of the legislative means to check size of the population was upheld in Air India vs. Nergesh Meerza. The court found no fault with the rule that would terminate the services of air hostesses on the third pregnancy with two surviving children, and held the rule to be both salutary and reasonable for two reasons, in SCC Page 374, Para 101: “In the first place, the provision preventing third pregnancy with two existing children would be in the larger interest of the health of the air hostess concerned as also for the good upbringing of the children. Secondly… when the entire world is faced with the problem of population explosion it will not only be desirable but absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of overpopulation which, if not controlled, may lead to serious social and economic problems throughout the world.”

The apex court has conclusively ruled that the right to life and right to religion are not in the least prejudiced by the family planning provisions enacted by the state. The court specifically examined the right to religion vis-À-vis birth control legislation and laid down that such a law was constitutional. Bishops and mullahs and high Hindu priests are all bound by the pronouncements of the Supreme Court. So it is subversive aberration for any such religious leader to invoke fanatical passion and communal sentiment against any legal measure that seeks to limit the number of children to two.

Any effort to grab political power through communal competition represents a cheap and lunatic stratagem that will inflict national privation and public disorder. The Supreme Court ruling held: “Assuming the practice of having more wives than one or procreating more children than one is a practice followed by any community or group of people, the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does.”

The rule of law must sustain the rule of life. Therefore, there is constitutional sanction for population restriction when the nation’s good health and public morality command disciplined escalation of population. I hold in high esteem the religious faith of all great communities that believe in god and also sections and populations that do not have belief in god.

Arcot Easwaran has quoted the example of China. The world’s most populous country has been able to control its growth rate by adopting a “carrot-and-stick” approach. Attractive incentives in the field of education and employment were provided to couples following the “one-child norm.” Drastic disincentives, even penal actions, were cast on couples who breached the one-child-norm.

Being a democracy, India has so far not gone beyond casting minimal disincentives and has not sought to penalise procreation beyond a limit. However, complacency on this front in the name of democracy could impose a heavy price.

Social justice without penal sanction will be jejune jurisprudence. So placing a limitation on the number of children to two without providing for a punishment for violation, will be meaningless. A third child is innocent and must enjoy all human rights; but the culpable parents must undergo penal infliction.

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