Can Law Control Population

In one line

Law can make a fertility measure lawful, and it cannot make it work, and in a country already at replacement fertility it has almost nothing left to do.

In the wording a student can write in an exam: the question whether law can control population has three parts. Is a fertility measure lawful? Javed holds that a disincentive attached to an office is, and no Indian case decides whether a compulsory measure would be. Is it effective? The demographic evidence is that fertility falls with child survival, female education, age at marriage and access to contraception, and not with legal compulsion. And is it necessary? India's fertility is at about replacement level, so the demographic return from any fertility measure is now very small, while the constitutional and social cost is not.

The case for a legal measure

State it fairly, because MU's question invites an argument.

Aggregate demand is a public problem. Every additional person consumes resources held in common, and a legal system regulates the use of common resources in every other context.

Voluntary programmes have limits. Where a preference for large families or for sons persists, a service-based programme meets an unwilling demand.

Disincentives are ordinary. The law attaches consequences to conduct constantly, in taxation, in licensing and in eligibility for public office. A two-child condition on a panchayat seat is not different in kind.

And a State that will bear the cost may set a condition. If a State provides schooling, health care and subsidised food, it is argued that it may set the terms on which they are provided.

The case against

Six answers, and each is independent.

It arrives too late. A disqualification or a penalty operates on a person who has already had the children. The birth has occurred; only the punishment is new.

It falls on the least advantaged. Fertility is highest among the poorest and least educated, so any disincentive is by construction a measure directed at them, and any coercive practice is applied to those least able to refuse. That is the Emergency's lesson.

It damages the voluntary programme. Acceptance of family planning fell sharply after 1977 and took years to recover, so a coercive measure sets back the thing it was meant to accelerate.

It produces perverse consequences. A small family norm meeting a preference for sons produced sex-selective elimination, and Parliament had to enact the Act of 1994. That is the argument in the previous chapter and it is the strongest one available.

Momentum makes it nearly pointless. As the chapter on how many people there are explains, a population at replacement fertility continues to grow for a generation because of its age structure, so a measure reducing fertility today changes almost nothing about the population of the next thirty years.