Does India really need a two-child law?

With fertility rates falling across states, India does not need a law enforcing a two-child norm as sought by a petitioner recently in the Supreme Court, experts told IndiaSpend. Such a law could instead have unintended impacts – sex-selective and unsafe abortions and a further skew in India’s sex ratio.

Ashwani Kumar Upadhyay, a Bharatiya Janata Party politician and lawyer, had asked for a law that would deny access to government jobs, subsidies, and certain rights to those with more than two children. The denied rights, as per the petition, would include the right to vote, to property and to free shelter.

In its response, the Indian government told the apex court that it would not implement a mandatory two-child policy. “The Family Welfare Programme in India is voluntary in nature, which enables couples to decide the size of their family and adopt the family planning methods best suited to them according to their choice without any compulsion,” said the affidavit by the Ministry of Health and Family Welfare. “In fact, international experience shows that any coercion to have a certain number of children is counter-productive and leads to demographic distortions.”

However, several states, including Assam, Maharashtra, Odisha, Rajasthan, Telangana and Andhra Pradesh, already have some form of the two-child norm in place for those running for elected government posts or government jobs.

An analysis of the government’s newly-released health data showed that such laws are unnecessary: in 19 of the 22 states and Union Territories for which data were released, women have fewer than two children, on average.

Also, Indian families still have a male preference – the sex ratio at birth in India was 896 girls for every 1,000 boys compared to a normal ratio of 943-980 girls for every 1,000 boys in 2015-’17, the latest year for which data are available. This means that if families were disincentivised from having more than two children, they are more likely to abort or abandon a daughter in the hope of having a son, worsening India’s sex ratio.

Failed earlier attempts

Earlier, Upadhyay had filed public interest litigation in the Delhi High Court to the same effect. In September 2019, the court had disposed of the petition, noting that laws are made in the Parliament or state legislatures and that the court does so only in rare situations.

Upadhyay’s PIL had also asked the first Sunday of every month be declared a “Health Day” instead of polio day and that the government be asked to spread awareness about “population explosion and provide contraceptive pill, condoms, vaccines etc to EWS [Economically Weaker Sections] and BPL [Below Poverty Line] families, with polio vaccines”. It also asked the court to direct the Law Commission of India to prepare a comprehensive report on “population explosion” and suggest ways to control it.

After this petition was disposed, Upadhyay filed a petition in the apex court reiterating that shortage of resources and problems such as crimes – especially against women – crowding on public transport services and in prisons could all be attributed to India’s high population.

In 2018 too, the Supreme Court had rejected another PIL seeking a mandatory two-child norm. Also, in February, a private member bill had been moved in the Rajya Sabha by Shiv Sena Member of Parliament Anil Desai seeking a constitutional amendment directing the government to offer incentives to only families with no more than two children.

“The fact that population of India has already crossed over 125 crore [1.25 billion] is really frightening,” the bill moved by Desai had said. India will become the world’s most populous country by 2050, ahead of China, burdening its natural resources and limiting economic growth, it added.

However, as experts pointed out, India really does not need to go in for coercive family planning strategies at this point.

Coercive family planning not needed

“Twenty-five Indian states already have fertility rates at replacement levels or near replacement levels,” said Alok Vajpeyi, joint director of the Population Foundation of India, a Delhi-based non-governmental organisation. “There is no need for coercive family planning measures.” Fertility rates lower than replacement level fertility rates (2.1 children per woman, on average) means that the current population cannot be replaced at the prevailing population growth rate.

India’s total fertility rate has fallen from 3.4 children per woman, aged 15 years to 49 years, in 1992-’93 to 2.2 children in 2015-’16, data from the National Family Health Survey 4 show. This is projected to fall to 1.93 by 2025, and to 1.8 by 2030, without any coercive law, per a health ministry report.

A policy to control population across all Indian states would be counterproductive, experts told IndiaSpend. States have widely varied fertility rates – for instance, in 2019-’20, Bihar had a fertility rate of three children per woman in the 15 years to 49 years age bracket and Sikkim, 1.1 children, as per the National Family Health Survey 5 data. That means that in Sikkim, women have fewer children than the required rate to replace the current generation.

The fertility rate across Indian states has fallen without coercive measures as family incomes increased and women were educated, IndiaSpend reported in August 2016. Socioeconomic-factors, education, modernisation, access to contraceptives, and state policies for development, all affect fertility, as we wrote.

For the 22 states and union territories for which National Family Health Survey 5 data were released, 19 have below-replacement level fertility rates.

Why coercion fails

After the 1991 census, several states prohibited those who had more than two children from holding any panchayat post. Instead of better family planning, this had unintended consequences–men deserting or divorcing wives if they became pregnant a third time, sex determination and abortions, and given the persisting preference for sons, families going in for repeated pregnancies, according to a study that spanned Andhra Pradesh, Madhya Pradesh, Haryana, Orissa and Rajasthan.

Laws which punish families for having a third child or force abortions of the third child “will increase female foeticide and unsafe abortions”, said Anjani Kumar Singh, a programme manager with Vatsalya, a Lucknow-based organisation working for woman and child health. “We have seen on the ground, and the data also shows, that for the first child the sex ratio is not too bad but it is very bad for the second or third child. Families only want a boy,” said Singh, who has been working on gender preference in rural and urban Uttar Pradesh for nearly 18 years.

Vajpeyi of PFI gave the example of China’s one-child policy which led to sex-selective abortions and an ageing populationwith a fast-declining workforce. The skewed sex ratio also led to increased trafficking of women and forced prostitution in China, some said.

Singh, while not opposed to a law withholding benefits from three-child families, maintained that such a norm would work only if people actually understood the law, and had access to contraceptives and good health services.

In India, there is already a demand for family planning not met by current policies. About 13% of women (about 30 million) between the ages of 15 and 49 years wanted to prevent or delay their pregnancy but were not using contraceptives, according to National Family Health Survey 4 data. This could be because they did not have access to contraceptives or did not have the agency to choose to use one, Vajpeyi added.

It is also likely that women would bear the brunt of a two-family norm, experts said. Over eight years to 2016, the use of condoms declined by 52% and vasectomies fell by 73% showing the reluctance among men to engage with birth control, as IndiaSpend reported in February 2017.

One of the fallouts of this has been unsafe abortions – more than half of the abortions in India are unsafe – showing that though women want to control family sizes, they do not have access to safe methods.

“Sometimes because families want the abortion to be hidden, especially if the foetus is female, or because there is no access to registered practioners, quacks perform unsafe abortions [that are] dangerous for the health of the woman,” Singh of Vatsalya said.

Education, awareness work better

Women’s education, awareness about family planning and easy availability of contraceptives would be more effective than coercive measures, other experts from Population Foundation of India said.

Currently, about 4% of the National Health Mission budget is spent on family planning programmes, of which the majority is for incentives to families and service providers for sterilisation, according to an analysis by Population Foundation of India.

The 2019 bill in the Rajya Sabha for population control had asked for incentives for sterilisation by giving special benefits to those families in which either spouse undergoes sterilisation.

If doctors or other service providers are incentivised for sterilisation operations, it could result in a dangerous situation where doctors do many operations in a day without quality care, Vajpeyi said. He cited the example of Bilaspur where 13 women died after sterilisation of 83 women who were operated on in a single day in 2014.

The budget for family planning would be better spent in greater adolescent care and awareness, programmes to reduce social and cultural taboos in using contraception, and behaviour change communication, especially for men, Vajpeyi suggested.

Previous bills for population control

As we said earlier, this is not the first time the government has discussed punitive action for population control but no such law has been passed yet.

In 2002, a government committee to review the working of the Constitution had recommended adding directive principle Article 47A which said: “Control of population: The State shall endeavour to secure control of population by means of education and implementation of small family norms.” However, this had not been done.

A Population Control Bill introduced in 2016 in the Lok Sabha by Prahlad Singh Patel, currently India’s tourism minister, suggested the denial of all welfare benefits to those who had a third child after the bill was passed. The bill also required families to get official permission for a third child. It never came to vote, reported CNN in January 2019.

In June 2019, Ajay Bhatt, a Lok Sabha MP from the BJP, introduced another Population Control Bill, 2019 in the Lok Sabha asking for benefits for single- and two-child families and the removal of benefits and a fine for those who have a third child. Families would have to take permission from a committee before having a third child, the bill said.

Rakesh Sinha, Rajya Sabha MP and a member of the BJP, introduced the Population Regulation Bill, 2019, in July 2019. It suggested that two-children families where either spouse had undergone sterilisation would be eligible for several benefits including an additional increment in public sector jobs, housing subsidies, income tax rebate, travel subsidies, health insurance benefits and preference in admission to higher education institutions. Several benefits would be withdrawn from those who had more than two children after this bill was introduced, including reduced benefits under the Public Distribution System, loans at higher rates and reduced savings rates, the bill said.

From January 2021, Assam will bar people from government jobs if they had more than two children, according to a decision by the state cabinet, The Times of India reported in October 2019.

Population growth could benefit economy

Even if couples in India decide to have only one or two children, India’s population will continue to increase until 2051 as the population is young, with over 60% under the age of 35 years, explained Vajpeyi of Population Foundation of India.

A large population does not necessarily impede economic growth: India can use its large working population to fuel fast economic growth if the right programmes and policies are put in place, said a 2018 paper by the United Nations Population Fund, as IndiaSpend reported in August 2019.

This article first appeared on IndiaSpend, a data-driven and public-interest journalism non-profit.