UP Population Bill Violates Basic Rights of Women, Says Memorandum Submitted to President

A group of women, women’s organisation, academics, health and legal rights activities, health networks have submitted a memorandum to the President of India opposing the proposed Draft Uttar Pradesh (UP) Population Control, Stabilisation and Welfare Bill, 2021. The Bill is “extremely-anti-poor, anti-women and adversely affects both the democratic rights and reproductive choices of women, who are at the receiving end”.

The Draft Bill was prepared by the State Law Commission of UP and launched on July 11, with the last date for submission of responses being July 19. It seeks to control population through coercive and discriminatory norm in the form of various incentives and disincentives, which include barring persons with more than two children from contesting municipal and panchayat elections, disqualifying from government jobs, disincentives in education, health and other social security spheres.

According to the memorandum, the proposed Bill is “a violation of Reproductive Health and Rights, which are considered basic human rights of women”.

Further, the Bill also violates “the Declaration adopted at the conclusion of a colloquium on population policy, organised by the National Human Rights Commission (NHRC), the Ministry of Health and Family Welfare (MoHFW), and the United Nations Population Fund (UNFPA) (2003)”, the memorandum added.

The signatories of the memorandum include All India Democratic Women’s Organisation, Jan Swasthya Abhiyan, Sama - Resource Group for Women and Health, Saheli, Women’s Resource Centre, National Federation For Indian Women, Medico Friend Circle, National Platform for the Rights of the Disabled, All India Dalit Mahila Adhikar Manch, among others.

The memorandum, which has also been submitted to the the Governor of Uttar Pradesh; Chairperson, Rajya Sabha; Speaker, Lok Sabha; and to the Uttar Pradesh State Law Commission, has requested the President to declare the proposed Bill unconstitutional as it violates the right to equality guaranteed to all citizens of the country under Article 14 of the Constitution of India.

The complete memorandum is given below.

To

The President of India

Respected Shri Ramnath Kovind ji,

We, the undersigned women, women's organisations, health networks, academics, health and legal rights activists, and concerned individuals, express our dismay, concern, and protest at the proposed Draft Uttar Pradesh (UP) Population Control, Stabilisation and Welfare Bill, 2021, which forms part of its Population Policy 2021-2030. The Draft Bill was made public on 11 July 2021.

At the outset, we would like to state that the proposed Bill is a violation of Reproductive Health and Rights, which are considered basic human rights of women. These rights have been well defined and duly recognised within varied International Human Rights Commitments that India is a signatory to, as well as the national policy level processes in the country to advance India’s compliance to reproductive rights of women.

Reproductive Rights are well defined in the 1994 International Conference on Population and Development’s (ICPD) Programme of Action (POA) in Cairo- declaration was adopted by 179 countries including India.

As per paragraph 7.1 in Programme of Action, reproductive rights are defined as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.

This approach was further reflected in the National Population Policy 2000 adopted by India under Prime Minister Vajpayee, which committed the government toa target-free approach based on informed and voluntary choice of citizens. It is well understood since then how ‘two-child norm’ or any such restrictive policies are coercive in nature and work against the development agendas and goals set for the nation to achieve both nationally and internationally. The UP government, with a complete lack of understanding of this, takes us a step back by proposing this rejected, anti-development, anti-women, and coercive approach in the form of the proposed Bill.

This Bill is also in violation of the Declaration adopted at the conclusion of a colloquium on population policy, organised by the National Human Rights Commission (NHRC), the Ministry of Health and Family Welfare (MoHFW), and the United Nations Population Fund (UNFPA) (2003). The Declaration explicitly recognised the two-child norm as a violation of human rights-

“Population policies framed by some State Governments reflect in certain respects a coercive approach through [the] use of incentives and disincentives, and are violative of human rights. The violation of human rights affects, in particular, the marginalised and vulnerable sections of society, including women; [and] the propagation of a two-child norm and [the] coercion or manipulation of individual fertility decisions through the use of incentives and disincentives violate the principle of voluntary informed choice and the human rights of the people, particularly the rights of the child.”

As recently as December 2020, in an ongoing petition in the Supreme Court, the Ministry of Health and Family Welfare (MoHFW) stated in its Affidavit (in response to a petition) that "the Ministry will not implement a mandatory two-child policy by denying government jobs and subsidies and has reportedly remarked in it that Programme of Action of the International Conference on Population and Development 1994 (ICPD) to which India is a signatory, is unequivocally against coercion. The MoHFW pointed out that there is a decline in India's total fertility rate as per NFHS 4."

Evidence in the past has clearly shown how such a norm is discriminatory and threatens people’s civic-political rights to participate in electoral democracy. It also poses tremendous barriers to accessing reproductive health information, care, and the benefits of social welfare particularly for women.Some states, after implementing such a policy, have also withdrawn the ‘two-child norm’ such as Madhya Pradesh (MP) in 2004. Over the past several years, many of us have strongly opposed the two-child norm policy that continues to be implemented in several states. Many studies on the two- child norm in the past highlighted that any enforcement of the two-child norm on Panchayat representatives had encouraged sex selection, increase discrimination against the girl child, and worsened the already declining sex ratio, given the strong son-preference in the society. It begs the obvious question as to why are we proposing a law despite of the proven worse outcomes for women, children and marginalised communities; instead of taking learning from this policy led mistakes in the past.

The ICPD Programme of Action (POA) had clearly stated in 1994 itself that "Over the past century, many Governments have experimented with such schemes, including specific incentives and disincentives, in order to lower or raise fertility. Most such schemes have had only marginal impact on fertility and in some cases have been counterproductive. Governmental goals for family planning should be defined in terms of unmet needs for information and services”.

It is critical to understand that the recent references to “population explosion” and the need to ‘‘control” completely ignore the robust evidence that the total fertility rate (TFR) in the country is already down to 2.2 in 2015-16, marginally above the 2.1 replacement rate in almost 24 States. The Desired Fertility Rate is 1.8, which also indicates that women in India prefer to have no more than two children. Further, the Census data also showed that the decadal growth rate during 2001-2011 had reduced to 17.7 per cent from 21.5 per cent over 1901-2001.

The Bill also directly contradicts the ruling under Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India and Ors (August 2017) which clearly states – “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone.” [Page 263] The judgement held the right to privacy as a constitutionally protected right emerging from the right to life and personal liberty under Article 21 of the Constitution of India.

Sir, as you may also fully understand that in complex socio-economic and political realities such as of Indian society, the proposed Bill raises several concerns on range of aspects. Following are some examples to mention for your kind reference-

• Whereas such a Bill builds up a situation for people to not register their marriages/marriage like relationships in the light of incentives/disincentives; this will make the women and children further vulnerable in situations of domestic violence, or abusive relationships wherein they would face hardships to access the legal recourses such as-maintenance and support, right to property etc. It clearly poses the risk for decreased reporting of gender-based violence which is already an issue across the country including the state of UP.

• The Bill also limits the identity of women and their reproductive rights expressions within marriages alone. It defines women only in relationship to a ‘man’ within a marriage. Women face situations of child birth outside marriages too, whether it is an outcome of an unwanted pregnancy from a sexual assault/rape. Women also face situations of continuing an unwanted pregnancy due to lack of access to safe abortion services which is the primary responsibility of the state governments to provide and ensure. It is to be reminded that during the COVID-19 related lockdown in India (March to May 2020)-1.85 million Indian women could not terminate an unwanted pregnancy; out of which 80% or 1.5 million compromised abortions were due to the lack of availability of medical abortion drugs at pharmacy stores. The gap in abortion services will further lead to violence and abandonment of women, children, and vulnerable persons.

• In 2018, infant mortality rate for Uttar Pradesh was 43 deaths per 1000 live births and the maternal mortality rate is that of 197 deaths per 1,00, 000 live births. The casual mention of ‘child death’ within the Bill-does not make any provisions for improving these indicators, but instead treats them as a reality around which the two-child policy will be implemented. Coercing population control without improving the health conditions of the people which the government is aware of, raises deep concerns.

• Sec. 15 of the Bill includes a terribly pejorative almost eugenic rationale where the Bill says that if couples have one or two children who “suffer” from disability, they can have more children and will not be seen to contravene the two-child norm. Notwithstanding the other contentious provisions in the Bill, this Section seeks to invoke an ableist mindset and tends to view the disabled as equivalent to being dead, which is atrocious and unacceptable. Disability is a condition and one does not “suffer” from a disability but rather suffers because of it.

• "The Rights of Persons with Disabilities Act, 2016, which the Bill invokes has equality and non-discrimination as its guiding principles. This is a blatant violation of those principles and reinforces the concept of viewing children with disabilities as a burden, unwanted by families and society".

We unequivocally oppose the proposed Bill, and register our concerns for any such policy level thinking which are extremely-anti poor, anti-women as they adversely affect both the democratic rights and reproductive choices of women, who are at the receiving end.

We are concerned that young women of the reproductive age group will be targeted to achieve demographic goals. The Bill is geared to control (and reduce) women’s fertility rather than improving women’s health and promoting women’s reproductive rights. Such policies disempower women, treat them as objects of control and surveillance, and violate the basic feminist tenets of reproductive choice and bodily integrity.

The proposed Bill should be deemed unconstitutional since they violate the right to equality guaranteed to all citizens of the country under Article 14 of the Constitution of India, it is a gross violation people’ human, reproductive and sexual health and rights as committed within India’s compliance towards International Human Rights Conventions and Treaties as well.

We strongly believe that incentives and disincentives will not improve the quality of health services and address the problems of equity and access to health facilities. It will not enhance the accountability of service providers to the community, especially to women and poor. These incentives and disincentives completely impinge on rights of women, poor and marginalized.Additionally, social protection as a form of incentive or disincentive by itself is a violation of human rights. All citizens of the country should fundamentally have the right to food, education, employment, health, and more regardless of the number of children they have.

The timing of the Uttar Pradesh Population Control, Stabilisation and Welfare Bill, 2021 reflects the insensitivity of the state government towards the concerns of the people and dismissal of lived realities. Theon-going pandemic has led to social and economic devastation in the form of loss of lives and livelihoods, hunger, escalation of domestic violence, etc. The proposed Bill will further exacerbate these experiences through its proposed conditionalities and disincentives by depriving the people of rations, health care, education, employment, etc., creating deeper deprivation, loss of health and lives. Hence, this Bill must be immediately withdrawn.

Date: 19 July 2021

Signed by

1. All India Democratic Women’s Association, AIDWA

2. Sama - Resource Group for Women and Health

3. Jan Swasthya Abhiyan, JSA 

4. Saheli, Women’s Resource Centre

5. National Federation For Indian Women, NFIW

6. National Alliance for Maternal Health and Human Rights, NAMHHR

7. Medico Friend Circle, MFC

8. National Platform for the Rights of the Disabled, NPRD

9. All India Dalit Mahila Adhikar Manch, AIDMAM

10. Population Foundation of India

11. Sujatha Rao, Former Union Health secretary

12. Wada Na Todo Abhiyan, WNTA

13. All India Progressive Women’s Association 

14. Sarojini N, Jan Swasthya Abhiyan JSA

15. Deepa,  Jan Swasthya Abhiyan JSA

16. Adsa, Sama

17. Aakriti P, Sama 

18. Ayesha Kidwai, Centre for Linguistics, Jawaharlal Nehru University 

19. Aruna Roy, Mazdoor Kisan Shakti Sangathan (MKSS)

20. Nikhil Dey, Mazdoor Kisan Shakti Sangathan (MKSS)

21. Dr Mira Shiva, Public Health Physician ,  Initiative for Health & Equity in Society 

22. Prof. Mohan Rao, former prof, Centre of Social Medicine and Community Health, JNU

23. Sandhya Gokhale, Forum Against Oppression of Women 

24. CEHAT, Mumbai

25. Dr Amar Jesani, Mumbai 

26. Veena Johari,Lawyer

27. Rama V Baru Professor, Centre of Social Medicine and Community Health, JNU

28. Ravi Duggal Independent Sociologist and Public Health Researcher, Mumbai

29.  Dr Suhas Kolekar, NAPM

30. Dr Sunita Sheel, Director, Institute of Forum for Medical Ethics Society

31. Poonam Kaushik Pragatisheel Mahila Sangathan, New Delhi

32. Sandhya Srinivasan, Indian Journal of Medical Ethics, Mumbai

33. Sagari R Ramdas Food Sovereignty Alliance, India

34. Veena Shatrugna Former Deputy Director National Institute of Nutrition, Hyderabad

35.  Pravesh Verma - MASVAW UP 

36. Dr Vandana Prasad, Public Health Expert

37. Women's Collective, Chennai.

38. AkhilaVasan, Karnataka JanaarogyaChaluvali

39. Shriyuta Abhishek, SEARCH Gadchiroli

40. Dr Archana Prasad, Jawaharlal Nehru University, New Delhi

41. Kamayani Bali Mahabal, Co-Convenor Jan Swasthya Abhiyan- Mumbai 

42. Vikalp (Women's Group)

43. Aawaaz-E-Niswaan

44. Saheli Sangh, Pune

45. Punjab Women Collective 

46. Dr. Anant Phadke, Pune

47. Renu Khanna  SAHAJ

48. Shankar Singh, MKSS 

49. P. Rajamanickam, General Secretary, AIPSN

50. Shabnam Hashmi, ANHAD

51. Rosamma Thomas

52. Mridul Eapan

53. Jyoti Goyal Co-Founder of TOLI NGO   

54. Rajni Palriwala, Former Professor of Sociology, University of Delhi                                     

55. Kuldip Chand, Director, Arpan Society, Ropar

56. Pamela Philipose, Journalist, New Delhi

57. Sadhna Arya, University of Delhi

58. Nachiket Udupa

59. Dr. Narendra Gupta, Chittorgarh

60. Sheelu Francis Women’s Collective, Chennai

61. Ramesh Awasthi, Pune

62. Swayam, Kolkata

63. SWATI

64. The Alternate Space, Women's Collective, Jharkhand

65. Chhattisgarh Mahila Kisan Manch

66. Chhattisgarh MahilaJagritiSangathan

67. Naga Baiga Naga Baigin Jan Sangathan, Zila Gorela, Pendra, Marwahi, Chhattisgarh

68. Adivasi Adhikar Samiti, Koriya district, Chhattisgarh

69. Dalit Adivasi Mahila Manch, Bilha

70. Dalit Adivasi Manch, Chhattisgarh

71. Chhattisgarh Mahila Manch

72. Dalit Adhikar Abhiyan, Chhattisgarh

73. Gowramma, Janwadi, Karnataka

74. Khadijah Faruqui, The Alternative Space, Ranchi

75. AchketUdapa, concerned individual

76. Pallavi Gupta, Public Health Practitioner, New Delhi

77. Vimala Kalagar, AIDWA Karnataka

78. Abha Bhaiya

79. Kaninika Bose-Ghosh, Sara Bharat Ganatantrik Mahila Samiti 

80. Sabyasachi Chatterjee Retired Scientist, Bengaluru

81. Deepa Vasudevan Sahayatrika, Thrissur

82. K S Lakshmi Karnataka

83. Imrana Qadeer Retired Professor, CSMCH, JNU

84. Ammu Joseph Journalist and Author, Bangalore

85. Bimala Chandrasekaran Director, Ekta, Madurai, TN

86. Dr Shakeel CHARM

87. Dr Amritranjan Basu Shaheed Hospital, Dalli Rajhara

88. Manisha Gupte, Pune

89. Rekha Awasthi

90. M M P Singh

91. Prachi Hativlekar, Akhil Bharatiya Janwadi Mahila Sanghatana

92. Prarthana,Gender Resource Center Sangini

93. Aiman Khan,Researcher, Innocence Network India

94. Amita Pitre,Gender and Health researcher and practitioner

95. Archana Dwivedi, Haryana

96. Ashalata, Mahila Kisan Adhikar Manch (MAKAAM)

97. Asim Sarkar, BGVS Jharkhand

98. Bandana Sharma, Aakanksha Seva Sadan, Bihar

99. Bharat, Vishakha, Jaipur

100. Bijoya Roy, Public Health Researcher, New Delhi

101. Chandrakant, Jan Swasthya Abhiyan

102. Deepika, Jan Swasthya Abhiyan Chhattisgarh

103. Dipika Jain, Centre for Justice, Law and Society (CJLS)

104. Disha Chaudhari, Centre for Justice, Law and Society (CJLS)

105. Dr. Abhay Shukla,Jan Swasthya Abhiyan

106. Dr. Padma Deosthali

107. Dr.Suhas Kolhekar, NAPM (Health Rights Activist)

108. Enakshi Ganguly, Delhi

109. Gayatri Sharma,Lawyer

110. Sulakshana Nandi,Public Health Researcher

111. Suraj Sanap,Lawyer

112. Sunita Singh ,Health Watch Forum, UP 

113. Githa Hariharan, Writer

114. Harshita, Nagrik Samwad Manch UP

115. Indranil, Jan Swasthya Abhiyan, Delhi

116. Malini Ghose, Independent researcher

117. Pratibha, Sama – Resource Group for Women and Health

118. Rajalakshmi Ram Prakash, PhD (Independent Consultant), Chennai

119. Rathod, Mahila Kisan Adhikar Manch (MAKAAM)

120. Ritika Kar, Sama

121. Abhiti Gupta, Sama

122. Roshan, Mahila Kisan Adhikar Manch (MAKAAM)

123. S.Srinivasan, LOCOST, Vadodara

124. Sangeeta, Jan Swasthya Abhiyan

125. Seema Kulkarni, Mahila Kisan Adhikar Manch (MAKAAM)

126. Seethalakshmi, Mahila Kisan Adhikar Manch (MAKAAM)

127. Sheba George, SAHR WARU : Women's Action and Resource Unit

128. Shruti Arora,Delhi

129. Susheela, Sama

130. Usha,Mahila Kisan Adhikar Manch (MAKAAM)

131. Vasundhara Rangaswamy,Microbiologist, Primary Care Physician, Independent

132. Vinita Deshmukh, Senior Journalist, RTI columnist & activist

133. Chhattisgarh Saajha Manch

134. Pahadi Korwa Mahapanchayat

135. Chhattisgarh Kisaan Majdoor Andolan

136. Jan Jagriti Manch, Abhanpur

137. Madhu Mehra, Delhi

138. Jyotsna Singh, Health Writer and member, People's Health Movement

139. Paula R Das