Lotika Sarkar
Usha Ramanathan
published in

(March 2002) , p. 40

Collateral concerns

A law, meandering away from its original intent so as to address a collateral concern, becomes an impostor. A reordering of priorities that coerces the law to pursue an altered agenda may reduce the primary purpose to a mere rump. So it has been with every law visited by escalating anxiety about an exploding population.

Take as illustration the Child Marriage Restraint Act 1929 (CMRA), popularly known as the Sarda Act. In 1929, the legislation simply stated that it was intended ‘to restrain the solemnisation of child marriages.’ ‘Child marriages’ were those where the bride was younger than 14 years (in 1949, this was raised to 15) or the bridegroom below 18. Law is a hardy entity, capable of surviving a world war, independence from colonial rule, constitution making and promulgation, industrialisation, and neo-cultural assertiveness. The CMRA still survives, even as the problem of child marriage persists.

In 1978, however, this largely dormant law was shaken out of its near-slumber to service an urgent cause – that of growing numbers. Raising the age of marriage to 18 and 21 for women and men (a bit odd to continue calling them children, wouldn’t you say?), the statement of objects and reasons (SOR) of the amending Act read: ‘The question of increasing the minimum age of marriage of males and females has been considered in the present context where there is an urgent need to check the growth of population in the country. Such increase of the minimum age of marriage will result in lowering the total fertility rate on account of lesser span of married life.’ And, in what was to become an ‘also-ran’ purpose: ‘It will also result in more responsible parenthood and in better health of the mother and child.’

In 1993, in the first flush of neo-liberal enthusiasm as it inflicted its accent on policies beyond evident economics, there was talk of raising the ages further – yet under the appellation of a restraint on ‘child marriage’! This, thankfully, did not experience the wave of the legislators’ voting wand or the flourish of the presidential pen.

Child marriage, in the meantime, continues as an issue unresolved, claiming victims epitomised by Bhanwari Devi in a battle that appears less and less to get help from the law.

A yarn of a similar fibre yet with a different pattern is spun out in the Maternity Benefit Act 1961 (MBA). In 1995, it underwent a significant revision. But, before speaking of the hijacking of the MBA by amendment, it would be wise to pause at the enactment of the Medical Termination of Pregnancy Act 1971 (MTPA). This law was avowedly enacted ‘(i) as a health measure – when there is danger to the life or risk to physical or mental health of the woman; (ii) on humanitarian grounds – such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc.; and (iii) eugenic grounds...’

This SOR is silent about a further reason that emerges on a reading of the law. ‘Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children,’ the Act offers in explanation, ‘the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman’ – giving legality to the abortion that may be carried out.

This unsubtle message of the adoption of abortion as a measure of population control is distant from abortion rooted in a liberal ideology. Yet, furthering as it does the liberal agenda, and not unpopular among women activists for its potential for autonomy and choice, its intent has remained in the dungeons of the debate – till the 1995 amendment to the MBA was mooted, and enacted.

The MBA was expected to provide protection to the health and safety of pregnant women and the children born to them. Incidentally, the Act was also intended to ease one of the hurdles in women’s employment. The language of ‘benefits’ is an exercise in deception and includes: 12 weeks of paid leave in all – including up to six weeks preceding the expected date of delivery; the right not to be required to do arduous work during the four weeks preceding the first six week period; an additional four weeks where complications arise out of child birth, and two 15 minute breaks in a working day to feed the child in the 18 months after birth. Miscarriage also entailed the ‘benefit’ of leave with wages for a period of six weeks from the date of miscarriage.

In 1995, the 1961 Act was amended to place medical termination of pregnancy at par with miscarriage. This, on its own, perhaps would not have excited adverse comment. It was the insertion of a provision for leave with wages for a period of two weeks in the case of a woman undergoing a tubectomy operation which raised hackles: not because of the leave provided, but because of the brazenness of the statement that the onus of reduction of population growth, and its enchanting accompaniment of family planning, was being foisted on the woman.

The kid glove treatment of male virility, and the use of a ‘protective’ law to offer blandishments to women to adopt abortion and to bear the burden of the sterilisation option deserved the resistance that should have killed the law even in its making. What did meet a fate resembling death – till a karmic cycle resuscitated it in some form or other – was a proposal that women be denied maternity ‘benefit’ for children beyond the second.

This subservience of the health concerns of women to the imperatives of population control is, it would appear, not confined to issues of abortion, tubectomy and the temporarily stilled possibility of withdrawal of ‘benefits’ as punishment for child-bearing. It is also seen in the battle by women’s groups, which began in 1986 in the Supreme Court and ended on 24 August 2000, to get an assurance from the Ministry of Health and Family Welfare that they would introduce Net-en injectible as a contraceptive in the national family welfare programme only in such places where adequate facilities for follow up and counselling are available. It needed a court-appointed committee in the course of the spirited and sustained litigation, to discourage the mass use of Depo Provera in the national family planning programme, and to recommend restricting its use to women who would be aware of all the implications of its use.

Private members’ bills, which propose punishment by denying rations to a third child, exclude the child from state sponsored schools and the parents from jobs and the acquisition of shelter, are more direct attacks on the poor on whom the weight of these sanctions are bound to fall heavily.

In the contest between the 1993 constitutional prescription for participative democracy and the conversion of this arena to fit the priority of population control, the latter appears to be winning. After the introduction of panchayati raj into the Constitution by the 73rd amendment, along with reservation of a third of the seats and positions of chairperson for women, some states have wedged in the population issue into this attempt at grassroots democracy.

Rajasthan and Haryana have, for instance, enacted legislation which prescribes a disqualification for contesting in panchayat elections or continuing in office, if a person has a third child and over after a prescribed date. A study commissioned by the Rajiv Gandhi Foundation, ‘Panchayati Raj in India – Status Report 1999’, records a finding that ‘(b)y March 1998, 417 ward panches, 38 sarpanches and 5 members of panchayat samitis had been disqualified for violation of this provision.’ And these numbers where states are just beginning to adopt this disqualifying provision!

In Mukesh Kumar Ajmera v. State of Rajasthan (AIR 1997 Rajasthan 250), 12 elected panches challenged the orders of the chief executive officers of their respective panchayats disqualifying them on the basis of the birth of a child beyond the second. The Rajasthan High Court struck down the order of disqualification, but only on the ground that the chief executive officers had not followed the procedure and had exceeded their brief. But, on the question of the constitutionality of the provision of disqualification itself, and of the imposition of population concerns on grassroots democracy, the court endorsed the state’s position.

‘These provisions have been enacted by the legislature to control the menace of population explosion,’ the judges said, adding: ‘The social policy is designed to secure social order for the promotion of the welfare of the people, adequate means of livelihood, raising the level of nutrition.’ With this, it was not only made explicit that the main purpose of providing for disqualification on the basis of number of children was to bring centrestage the government’s ‘family planning’ programme into the law, but also that the object of panchayati raj, which was avowedly ‘to confer status and dignity and to function as units of self-government,’ had been relegated to the wings.

The Punjab and Haryana High Court too has refused challenges to the imposition of this disqualification in a law meant to serve a wholly unconnected purpose of working at participative democracy at a decentralised level of governance. One of the issues raised in the Haryana cases [Fazru v. State of Haryana (1998), 118 Punjab Law Reporter 222] was the objection that the two-child norm and its violation leading to disqualification of the panches went against their personal law as some of the petitioners were Muslim. The assertion was that their personal law did not permit family planning.

The court answered with the dictum that personal law was not a part of fundamental rights. The fundamental right is only to practise and propagate religion. And even this right is subject to public order, morality and health. In any case, the court held, no evidence that had been led indicated that the Quran implicitly prohibited family planning.

But it is in its exclamatory exasperation that the court revealed its ‘true’ mind: ‘The government is spending large sums of money propagating family planning. One of the agencies to which the project of family planning has been entrusted for implementation is the gram panchayat. The panches and sarpanches are to set the example and maintain the norm of two children. Otherwise what examples can they set before the public?’

Neither the Rajasthan nor the Punjab and Haryana High Courts appear to have acknowledged the position of women which, in large measure, gives them little say in the matter of child bearing. The disqualification then makes it doubly discriminatory for women. Moreover, there is no thought spared for the woman who is the prime target of all population control measures. Even while the debate rages on about the safety of these measures and their impact on the health of women, the linking up of the population control programme with the democratisation of grassroots governance raises doubts about the state’s seriousness in seeing women play an active role in local administration and politics.

Moreover, Muslim men are permitted polygamy; this is legal as the law stands. Should the two-child norm for Muslim men, and their wives, mean the same thing that it does for those permitted only monogamous practices in marriage? Does it mean the same thing for Muslim men and women?

Or, consider another possibility. In A.K. Reddy v. Depot Manager, APSRTC (2000 Andhra Law Times 214), a driver was given an incentive increment when his wife went through a tubectomy after their second child. She died thereafter. He remarried and had a child with a second wife. He was declared disentitled to the incentive increment, not only in the thereafter, but he was also to repay what he had received thus far. Should such changed circumstances invite punishment?

Or, in Shakuntala Sharma v. State of U.P. (2000 Allahabad Law Journal 1550), a husband’s vasectomy operation failed. Before they knew of this failure, the wife got pregnant. The burden of the aspersions cast on her, and the onus that she felt shift onto her upon the arrival of the unexpected child, was agitated in the High Court. The state was directed to pay her compensation ‘for her mental agony and torture and insult and humiliation… as well as for the expenses she had incurred in bringing up the child.’ As she did not want another child, ‘it is the duty of the state to maintain the child…’ Suppose she were to wish to contest local elections? Would the law, in one breath, acknowledge error and demand an apology and reparation from the state, while disqualifying her from seeking a share in local political power?

Where the infant mortality rate is struggling to go down; where failure of family planning devices including of sterilisation are within the law’s experience; where women’s autonomy stays eroded and participative democracy with the assistance of reservations is meant to improve their position; where maternal mortality and health continue to be cause for grave concern... punishment by exclusion from grassroots processes intended to empower is paradoxical. However, the blinkers that shelter sight when population control looms into view have descended into the arena of panchayati raj, and look set to stay unless the Supreme Court restores the law to the intent of the constitutional amendment.

Meanwhile, the bias against the girl child continues with unabated fervour, the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994 (PNDTA) regardless. In May 2001, the Supreme Court exhorted, and issued directions to the central and state governments to use the regulatory force of the 1994 Act, as ‘prima facie it appears that despite the PNDTA being enacted by the Parliament five years back, neither the state governments nor the central government has taken appropriate action for its implementation’ [CEHAT v. Union of India (2001) 4 Scale 53].

When the neglect of the PNDTA is set against the backdrop of the employment of abortion as a population control measure, there is an innocence to the court’s statement when it states: ‘Unfortunately, developed medical science is misused to get rid of a girl child before birth. Knowing full well that it is immoral and unethical as well as it may amount to an offence, the foetus of a girl child is aborted by qualified and unqualified doctors or compounders’ (emphasis added).

Despite concerns about the declining sex ratio, there is a stereotype of the unwanted girl child emerging in the law, which has set down roots in the population debate. Perhaps its most categorical enunciation is found in a decision of the Supreme Court in State of Haryana v. Santra [(2000) 5 Supreme Court Cases 182]. In 1988, Santra underwent a sterilisation operation under a ‘sterilisation scheme’ launched by the Haryana government. Despite the operation, she conceived. She opted for abortion but was advised against it as being likely to endanger her life. Mother of seven children, she then delivered an eighth, a girl child.

Medical negligence, said the court, plays its games in strange ways. Sometimes it gifts a poor labourer woman with a female child. And when this happens ‘in a country where the population is increasing by the tick of every second on the clock and the government had taken up family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilisation operation, the doctor as also the state must be held responsible in damages... (for) failure on account of... negligence... ’ In awarding ‘full damages from the state government to enable (Santra) to bring up the child at least until she attains puberty,’ the court showed a particular sympathy as the ‘unwanted child (girl) born to her has created additional burden for her...’

This passive acceptance of the rejection of the girl child is a theme not unique to the law. But when laws and court decisions begin to equate the birth of a girl child with the monetary burdening of the parents, it is a question of legitimising this perception of the girl child. When this gets located in the imperatives of population control, the law seems to speak with a forked tongue. And in the telling of Santra’s tale, it is difficult not to notice that it is not medical negligence that acted as a spur on the court; it was the ‘additional burden’ of an ‘unwanted child (girl)’ (emphasis added).

The pragmatism of population control has permitted the reprioritising of many of law’s concerns. The burden rests inordinately on women, in particular the impoverished to whom distributive justice could make a positive difference. The deprioritised concerns of the health and safety of labouring women or of their participation in political power, for instance, have had to move over and make place for (dis)incentive regimes in law, revealing a disjunction between the original purpose of a legislation and the import of its altered text.