• Legal Aid Society


This article is written by Utkarsh Shubham, third-year student at Faculty of Law, University of Allahabad


With the rapid escalation in population and scantiness of resources to curb the menace of the pandemic, two states of India are mulling to implement a two-child policy [“policy”] in their respective region. Under the policy, people with more than two children might be debarred from the benefit of welfare schemes, impeded in getting government jobs, and restrained from contesting in elections. These states are not the first with this kind of policy, various states have already executed this, in one form or another. Although, before the K.S Puttaswamy verdict, the Supreme Court of India has validated this approach. But the right to privacy verdict was a progressive pronouncement where the court had boldly enunciated that an individual’s personal autonomy is deeply embedded in the core of Article 21. Although there is a dire need to control the growing menace of population, family planning does not deserve to be controlled by the State, as the same will run counter to the cherished principles of international law, besides falling foul of the divine mandate of Article 21 of our Constitution.

The Apex Court held it in Vishakha vs State of Rajasthan, that whenever an international convention, to which our country is party to, is not in contradiction with the fundamental rights guaranteed by the Constitution, the State should strongly incorporate its true mandate while framing its policies. Numerous Indian States are exercising their legislative power ingrained in Entry 20-A of the Concurrent list under the Seventh Schedule of our Constitution, to legislate on the subjects of population control and family planning. However, while enacting any such measures to deal with the exploding numbers of population, the States have to bear in mind the landmark verdict of Vishakha along with those international conventions, which India has ratified.


Article 12 of UDHR and Article 17 of the ICCPR prohibits the state from despotically interfering in the privacy and family of its citizens. Furthermore, Article 16 of CEDAW, Article 16 of UDHR and Article 23 of ICCPR acknowledge the right to enter into a family. It includes the right to conceive, gestate and deliver a child. It is wholly onto the couple to decide the number of children they would nurse. General Assembly, through its resolution, also asks the same. A state is permitted to carry out family planning policies, subject to, they are not inconsistent with the ICCPR and other human rights agreements. However, it must not act as a compulsion upon the couple. Prima facie, the policy is not an obligation upon the couple to restrain themselves from having more than two children; but it is a colourable attempt. Since India has sanctioned the aforementioned conventions in its parliament, the states of the Union also have a requirement not to violate the rights inducted in the conventions.

Article 21 is considered as the mother of all fundamental rights, as its guarantee of personal liberty is not limited to its citizens but to “all persons.” The term “personal liberty” mentioned in this Article not only embraces the freedom of one’s body from the four walls of prison but also the freedom to make decisions about one’s own body. The intrinsic choice of reproduction also comes within its purview, including a prerogative to carry a pregnancy, giving birth to children, and raise them. Also, the decision to propagate comes under the domain of the right of privacy, dignity and bodily integrity. Since reproductive rights come under the umbrella of the right to privacy, any attempt to transgress it would have to satisfy the three-fold test of legality, need for a legitimate aim, and proportionality. The apex court in the celebrated case of K.S. Puttaswamy vs. Union of India has clearly enunciated that the policy doesn’t satisfactorily advance the criterion.


The proposed policy would possibly have a cascading effect on the right to health of women. In order to comply with the rule, they have to undergo an abortion to avoid the third delivery. Abortion has a miserable repercussion on the physical and psychological health of the woman. Furthermore, the problem of forced sterilization of women has still not found a concrete solution. Our patriarchal society has always thrown the woman into perils instead of “shrinking the masculinity” of the husband.

Additionally, we also have a precedent of China whose one-child policy has augmented female feticide, as the people aspire to conceive a male child. This would be witnessed in India also. Unlike the USA, India does not issue the right to life of an unborn. The USA recognizes the right to life of a human foetus by designating it, with the validation of courts, the legal victim of a crime at both Federal and State levels. Following this, India should also ponder upon expanding the reach of Article 21 to keep a check on feticide as the present laws are insufficient to bridle the consequences of the policy.


Since, there are finite resources in the country and uncontrolled population upsurge would deplete it on a high pace; there is an exigency of reasonable family planning. As the right to live a quality life is also a right incorporated under Article 21, every person should use his/her right in such a manner that right of another person must not be hampered. In upholding anyone’s privacy and health rights, someone’s right to live a quality life must not be tampered. However, the policy is not the only way by which this could be secured. On the one hand, there is a ban on the advertisement of condoms and other contraceptives in the day-time and on the other it is expected that people would contribute to population control. People must be aware of the use and importance of condom/contraceptives to contribute in family control. It is crystal clear from the condom advertisements, that they are sexually provoking and appraise on the other way round but instead of banning them it must be regulated. Just like the advertisements of sanitary pads voices in clear and sound words that it must be used during menstruation; condom ads also essentially utter that it necessarily be used during intercourse to prevent unwanted pregnancies and population control. The campaign with the slogan “nirodh ka mat karo virodh” walks on this path and has given phenomenal results. To add on, the stigma of shame for using contraceptives must be eradicated to ensure this goal. Therefore, the policy clearly contravenes the proclamation of Article 21 as other methods to uphold other rights are also available.


India lacks central legislation on child policy. However, various endeavours are made to do so, with the latest in 2020. The insertion of Article 47A will perform the role of a ladder by which family planning would get a solid backing of the Constitution. Till then, instead of espousing a negative approach of snatching something, an attempt must be made in a positive sense of giving something. People must not be imposed towards the family planning instead need to be encouraged to do it. They must be provided with some incentives like rebates in taxation, concession in education fees, etc. The two sides of the scale must be balanced to achieve the target of clinching maximum resources for all.

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