By Harsh Dugar and Udit Prajapat
Introduction
Our generation is experiencing one of the most profound population growths in the history of humankind. Many believe increasing population growth is characterised by low per capita income, low rates of savings and investments, low industrial output and so on. This thinking stems from the now-debunked theory presented by Thomas Malthus in 1798.[1] His theory advocated that population growth has a negative effect on the well-being of individuals.[2] Based on the same reasoning, there have been multiple attempts in India to introduce coercive population control policies with the hope that they will improve the country’s per capita GDP.
However, various scholars have opposed this theory by stating that population growth has little to no effect on economic development.[3] Their findings challenge the legitimacy of these coercive population control measures. Additionally, the coercive laws controlling the population numbers infringe on the right to life and personal liberty guaranteed under Article 21 of the Constitution. Therefore, it becomes imperative to scrutinise the constitutional validity of such laws, provided that population control in itself is not a guarantee of development and prosperity.
Part I of the paper will trace the attempts to introduce population control measures in India. Part II of the paper will examine how coercive population control policies are related to the country’s economic development. Part III will analyse the importance of the human-capital led growth model. Part IV will examine the legitimacy of the restrictions imposed by such coercive laws on the fundamental right to privacy and personal liberty guaranteed under Article 21 of the constitution.
I. History of Coercive Methods Employed to Control Population
In his book titled “An Essay on the Principle of Population as it Affects the Future Improvement of Society”, Thomas Malthus claimed that population growth would surpass production growth if left unchecked.[4] It meant that population growth would eventually lead to acute poverty. According to him, a higher population would lead to slower economic growth.[5] Based on this theory, many have presented population control as a panacea for most of the world’s problems ranging from poverty, starvation, famines, economy, and so on. This theory caused quite a stir in the nineteenth century, and several countries, particularly India, adopted population control policies.
Various bills have been introduced in parliament to control population growth. In 2019, Rajya Sabha MP tabled The Population Regulation Bill, 2019 that mentioned that people with more than two children would receive lesser government incentives.[6] Moreover, The Promotion of Two-Child Norm Bill, 2015 and The Two-Child Norm Bill, 2005 were also tabled by members of parliament. The Two-Child Norm Bill, 2005 proposed imprisonment of five years and a fine of not less than twenty thousand rupees for families having more than two children.[7] Recently, Uttar Pradesh released a draft Population Control Bill, 2019, where anyone with more than two children will be denied government jobs, promotions, subsidies and the right to contest local elections.[8]
Further, various Public Interest Litigations (PILs) have also been filed before the courts to enforce coercive population control policies.[9] BJP leader and lawyer Ashwini Kumar Upadhyay had filed a PIL before the Delhi High Court to curb population growth.[10] He contended that population explosion is the root cause of poverty, unemployment and hunger. The petitioner contended that the 24th recommendation of the National Commission to Review the Working of the Constitution (NCRWC) to include Article 47A as a part of the Directive Principles of State Policy (DPSP) must be implemented. The proposed Article 47A states that families limited to two offspring must be given tax, employment and education benefits.[11] The Delhi High Court categorically rejected the plea by stating that it did not have the power to direct the parliament to enact a specific law. Consequently, he filed a PIL in the Supreme Court. However, the court rejected the PIL seeking a mandatory two-child policy.[12]
In 2003, the Supreme Court had the opportunity to deal with the constitutionality of a provision under the Haryana Panchayati Raj Act, 1994 that disqualified persons having more than two living children from holding certain public offices in the Panchayat.[13] The Supreme Court relied on the assumption that population control policies will lead to a better standard of life and held the provision constitutionality valid. However, it is rarely enquired whether the solution presented is legitimate or capable of achieving the objective. These questions become essential as coercive population control policies will have consequences on an individual’s fundamental rights.
The authors believe that these coercive population control policies are not required. Accordingly, the next part of the article will analyse the relationship between population growth and economic growth, especially in terms of GDP per capita.
II. Economic Analysis of Population Control Laws
There exist numerous studies that have analysed the relationship between population growth and per capita GDP. Per capita GDP is often taken as a measure of living standards, and improving the same is the primary objective behind population control laws. It is often argued that reducing population improves the per capita GDP that will further help the country reduce unemployment, improve education standards and ensure better health facilities.[14]
Contradictorily, William Easterly, in his book titled “The Elusive Quest for Growth”, has asserted a positive relationship between per capita GDP growth and population growth.[15] This means that population growth adds to the economic growth of a country. To support his assertion, he mentions several facts about population growth and per capita GDP.[16] Firstly, both GDP per capita and population have grown simultaneously over the long run.[17] Secondly, the variation in per capita GDP and population growth across the countries does not support a negative relationship.[18] Per capita GDP varied between -2 and +7 percent from 1960 to 1992, whereas population growth varied from 1% to 4%.[19] This variation in the population growth explains only one-third of the variation in per capita GDP figures. Thirdly, even though population growth slowed down by 0.5 percent in the Third World, its per capita GDP growth slowed down simultaneously.[20] These instances doubt the population alarmists’ assertion that population growth is negatively related to the per capita GDP growth and hampers growth and development.
India has benefited from a large labour force in economic terms, affirming a positive relationship between population growth and per capita GDP.[21] More number of workers provide more hands to drive the economic growth. Further, scholars like Dawson and Tiffin analysed India’s annual data from 1950 to 1993 and ascertained neither a positive nor a negative relationship between per capita GDP growth and population growth.[22] Thus trying to control one may not give desired results in the other component. Notably, economists’ general wisdom remains that existing research and studies do not provide concrete evidence where population growth affects per capita GDP growth.[23] These studies contradict the views of the alarmists that population is a major impediment to economic growth.
As discussed above, there are several examples where the theory of the negative relationship between population and economic growth has failed to survive. Economic growth depends on several other factors, and once these factors are taken care of, there is no evidence that population growth can affect per capita GDP.[24] Even the proponents of population control policies accept that merely controlling the population is not the solution and requires active steps on behalf of the government.[25] For instance, even after a significant slowdown in fertility rates in Latin America over the last three decades, it has not witnessed any significant improvement in poverty reduction and income distribution.[26] The major factor behind the decline in economic growth has been the government’s failure to adopt sound economic policies.[27]
III. Relevancy of Human-Capital Led Model for India
Several researchers propose including population quality as a variable while ascertaining the relationship between population growth and economic growth.[28] Investing in human capital to improve educational levels, skill development, health etc. becomes an essential consideration for improving the living standards, given that reducing fertility cannot guarantee the desired results. Lack of education and skill development is shown as a big obstacle for India to realise the full potential of its vast population base in economic development.[29]
In the future, the shortage of a working-age population will be a major obstacle to growth, especially in developed countries, as fertility declines below replacement levels.[30] On the other hand, India’s situation will be better as it will benefit from a huge demographic dividend. India’s population is expected to peak in 2048, with a figure of 1.6 billion.[31] By 2100, India is forecasted to have the largest working-age population, thus giving it a comparative advantage.[32]
Researchers have established that the human-capital led growth model is relevant to the Indian economy.[33] It is estimated that by adopting economic policies that allow working-age individuals to be productively employed, India can receive a demographic dividend of almost 1 per cent in per capita GDP compounded annually.[34] Comparison of China and India’s figures makes the relevancy of the human capital led growth model clear-cut. The ratio of per capita GDP of China and India is much greater than the ratio of per worker GDP.[35] In simple terms, gainfully employing people can significantly help India bridge the economic gap with China.
However, to reap benefits from the human-capital led model, it is necessary to ensure that the investment in human capital provides a return. Accordingly, William Easterly caveats that countries lacking sufficient incentives in terms of well-functioning institutions and markets cannot ensure a return to the investment in education.[36] Thus, India must focus on effectively utilising its demographic dividend by implementing policies for the skill development of its young population and ensuring employment opportunities that guarantee a return to the investment made on the human capital.
IV. Fundamental Rights Scrutiny
In this part, we will address whether it is justifiable to bring such laws restricting an individual’s Fundamental Rights, taking into account the viability of population control to address the issues of living standards effectively. This is a crucial perspective that is rarely considered by the population alarmists while proposing population control as an answer to most of the challenges faced by society.
In Jasvir Singh v. State of Punjab, the Supreme Court held that the right to procreation comes within the ambit of the right to life and personal liberty.[37] Further, in Justice K.S.Puttaswamy(Retd) v. UOI, the Supreme Court held that the right to life and liberty under Article 21 includes the right to privacy that protects individual autonomy regarding one’s body and mind and extends to the right to reproductive choices.[38] Population control policies restricting the number of children will have a bearing on the fundamental right to life and liberty and the right to privacy as it prevents one from freely choosing the number of children one wants.
In Modern Dental College v. State of M.P[39], the Supreme Court proposed the four-prong Proportionality Test and later, it was confirmed in Puttaswamy[40] for justifying any measure restricting the right to privacy under Article 21. The Supreme Court gave the following four prongs for Proportionality Test[41]:
(i) Legality (requirement of a law with legitimate objective), (ii) suitability (rational nexus between means and ends, i.e., means should be suitable for addressing the objective), (iii) necessity (means proposed should be the least restrictive to achieve the aim) and (iv) balancing (balancing action between the extent to which rights are infringed and the state’s purpose).
The first prong of legitimate purpose can be easily satisfied as the government has the legitimate aim to improve people’s standard of life by controlling the population numbers. For clarity in scrutinising these laws under the Proportionality Test, instead of ‘population control’, improving quality of life should be considered the legitimate purpose, and population control should be considered a way to fulfil the purpose.
The effectiveness of population control in increasing per capita GDP (taken as a measure of standard of life) is seldom questioned when proposing it as a solution.[42] As per the economic analysis presented in the preceding part, there is no guarantee that population control is a suitable way to address the targeted problems of unemployment, poverty, and unequal distribution of income. Controlling the population does not have a rational nexus with the stated purpose as it is difficult to establish a robust connection between population growth and economic growth. Therefore, coercive population-control laws do not pass the suitability prong of the Proportionality Test.
Further, any coercive population control policy will not satisfy the necessity prong. Presently, India’s Total Fertility Rate (TFR) is at 2.2, which is on the verge of reaching the desired replacement rate of 2.1, where the population exactly replaces itself from one generation to the next.[43] India will achieve the desired TFR of 2.1 by 2025.[44] Further, India’s present Family Planning Programme, which does not employ coercive methods, has successfully reduced the TFR.[45] Further, there exist several less restrictive and trustworthy measures like access to abortions,[46] reduction in infant mortality rate,[47] eradication of child marriage,[48] promotion of contraceptive use,[49] and promotion of female literacy and empowerment[50] that can be employed to reduce population growth.
Thus, in light of the fact that less restrictive measures can be employed and are working efficiently by producing the desired results, coercive population control laws fail to satisfy the Proportionality Test’s necessity prong.
Conclusion
Coercive Population control policies have always been looked as a solution to several problems such as poverty, lack of health services and decline in economic development. This has allowed the government to justify introducing coercive population control laws over the years. However, there is little to no evidence that population growth affects the per capita GDP of a country. While it is true that India is currently the second-most populous country in the world, population growth has been slowing down over the last two decades. Its TFR will also reach the optimal replacement rate of 2.1 by 2025. This decrease in population growth cannot be attributed to the coercive policies introduced by the government. It is largely a result of sound family planning programmes, improved access to healthcare, women’s education policy and promotion of contraceptives. Therefore, any coercive policy introduced by the government for population control would not pass a fundamental rights scrutiny. These policies would have a significant impact on the right to privacy guaranteed under Article 21 and would not be able to satisfy the proportionality test laid down in Puttuswamy. Hence, rather than introducing coercive population control policies, the government must focus on spreading family planning awareness, promoting contraceptives, and promoting female literacy and empowerment.
The authors, Harsh Dugar and Udit Prajapat, are undergraduate law students at the West Bengal National University of Juridical Sciences (NUJS), Kolkata.
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[7] The Promotion of Two Child Norm Bill, 2015, 32 of 2015; The Two Child Norm Bill, 2015, 15 of 2005.
[8] The Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021.
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