Seminar, #511, March 2002.

Sense and sensibility

U P E N D RA B A X I

I AM in no sense of that word an ‘expert’ in

the area of population planning. This
disclaimer is not ritual modesty on my part
(modesty being no longer a post-modern
public virtue!). I remain aware that much of
what I have to say will appear superficial to
policy-makers and specialists in the area;
indeed some of them may feel outraged by
what I say.

But outrage need not be their monopoly. I,

for one, feel deeply affronted by the fact that
much of the official and scholarly discourse
is devoid of concern with the logic and
languages of human rights. My principal
concern, in this paper, is to locate the place
of rights in population policies of the Union
of India and several states. By ‘place of
rights’, I designate the following:

(a) Rights as markers of policies: In which

ways, if at all, policy enunciations
recognize, respect and reaffirm human
reproductive rights?

(b) Rights as constraints on policy

implementation: In which ways are the
policy formulations self-consciously
constrained by human rights obligations?
What disincentives are provided for rights
violating administrative and legislative
conduct?
(c) Rights as resources for policy: How are
processes and structures of policy
implementation socially legitimated by
recourse to specific regimes of human
rights?

(d) Rights as orderings of effective legal

redress: How do the policies provide for
access to remedies for violation of human
rights in population planning and
implementation?

(e) Rights as resources for collective action:

In what ways do the policy enunciations
make space for collective social action in
terms of its political legitimacy to mobilize
default and discontent with implementation?

The ‘place’ of human rights necessarily

depends on our conceptions about the space
of human rights. In an important, even
constitutive, sense the space is instituted by
the international discourse generally
concerning women’s rights as human rights
and by specific international instruments
enunciating the human right to ‘reproductive
self-determination’, and especially the
human reproductive rights. The national
constitution, laws, policies and
administration determine their place.
Juridical geographies mark the distinctive
processes of translation of spaces into places
for human rights.

In the Indian policy discourse, agonized

over the judicious mix of consent and
coercion in the politics of fertility control,
human rights languages play a negligible
role indeed. The spaces of international
human rights are not translated into places
for constitutional or legal rights; their
translation into languages of constitutional
human rights is at best a wayward process,
requiring considerable feats of social and
judicial activist cooperation, not as yet fully
in sight. The inelegant combination of
constitutional ideals and political experience
during the fifty years of the Indian Republic
has failed to produce a charter of
reproductive human rights. All we have are
benign statements of state policy. And these
in real life terms end up with social
reproduction of rightless peoples.

Policy-makers as well as human science

specialists are not persuaded, on available
evidence, by the rights approach. The
reasons for this ‘benign neglect’ of rights
vary. Malthusians and neo-Malthusians are
wary of rights approach, in general, because
they perceive ‘overpopulation’ as a social
scandal and menace; the hard-core among
them are not perturbed by excesses in
‘family planning’ programmes and measures
implementing these. In their view,
‘man’-made policy disasters are as welcome
as ‘natural’ disasters that in net effect reduce
population levels.

The more sophisticated among these may

well argue that reduction in population
levels may serve better futures for human
rights. Theirs is a thesis that may be
described in terms of ‘carrying capacity’ of
human rights. This implies that a stable
downsizing of fertility rates is a prerequisite
for effective exercise and enjoyment of
human rights; a runaway growth in
population, in this view, affects the overall
levels of actual enjoyment of human rights.

Humane policy-makers and social theorists,

however, remain concerned with coercive
state policies. They favour elements of
consent and cooperation over coercion. The
argument here is basically that coercion is
counterproductive to the aims of the policy;
persuasion, rather than force, is a more
effective way of achieving policy purposes.

This instrumentalist perspective manifests a

kind of ‘rights utilitarianism’. It risks the
logical conclusion that unrestrained force
may be justified when shown to produce
fertility decline. The logical risk is averted
by the belief that it is unlikely that state
coercion by itself will ever produce such
results in the long term.

Second, these discourses emphasize that a

regime of human reproductive rights is not
decisive for population ‘control’ or
‘planning’. Other states of affairs like
education, status of women, reproductive
technologies, are more crucial than
enunciation of human rights. And if rights
are relevant at all, these are so only as
effective instruments of policy.

Third, this instrumentalist view of rights

also relies, implicitly, on the state of rights-
administration in India. Access to justice
remains unavailable to large masses; it is
costly and cumbersome; outcomes remain
unpredictable and its processes labyrinthine.
In sum, what we need is a rights-oriented
policy and rights-sensitive administration,
not enforceable rights, legal or
constitutional, that fall within the province
and function of adjudication.

This then, in essence, is what the Roman

Law prefigured as the doctrine of parens
patriae state or governance, or much the
same thing as the mai-bap sarkar, which
knows what is best. Humane folks then hitch
their wagon to some notions of ‘good
governance’. The languages of human
rights, in this view, must yield to legal
paternalism. Though somewhat useful as the
last resort when policies go egregiously
wrong, languages of human rights may not
provide the inaugural point of public policy
discourse.

The dominant policy and social science

discourse is thus not overly human rights
friendly. Yet it is also the case that the Indian
state participates in the international
discourse on reproductive human rights,
even to the point of sculpting, or accepting,
international declarations such as the Final
Document of the Tehran and Bucharest
Conferences, the Cairo and the Beijing
Programmes. Not merely this, India also
assumes a regime of binding obligations by
ratifying the Convention on Elimination of
Discrimination Against Women (the
Women’s Convention.) It also adopts and
participates in the United Nations
Population Fund programmes. However,
India’s policies translate all this, including
binding treaty obligations, merely in terms
of policy. Very few reproductive human
rights translate into constitutional and legal
human rights. State policies, overall, remain
human rights allergic.

How is one to understand this, apart from

the mindsets so far described? One reason, I
think, is the ‘lobotomy’ of the bureaucratic
and political mind performed by the
practices of Indian federalism. Treaties and
declaration of human rights are an aspect of
the executive and legislative power of the
Union (federal) governance. State legislators
and bureaucrats are not involved in the
process, and often choose to remain ignorant
of India’s human rights obligations under
contemporary international law. No one
reading the spate of population policies in
various Indian states, especially in 2001
(which we study below) can honestly
entertain a contrary view.1

A brief rejoinder to anti-reproductive rights

position: The threshold difficulty then is one
of education of epistemic communities
(policy makers and social theorists). They
need to be persuaded that making effective
place for human rights is both necessary and
desirable. This at least entails two tasks:
first, a critique of the above positions and
second, a new approach to thinking about
rights.2 I can here respond only skeletally to
these tasks.

The Malthusian and neo-Malthusian

approaches manifestly violate the notion of
equal worth and dignity of all human beings;
in so far as they deny these values, these are
not worthy of ethical analysis. Implicit in
their approach is the notion that those
human beings who ‘over breed’ ought to be
treated with hostile discrimination; they
forfeit their right to be human and to remain
human. Such people belong to the
unregulated realms of discipline and
punishment. This is a ‘virtue’ easy of
practice when the brunt of errant population
planning policies is shifted exclusively to
the Other, who do not belong to the
epistemic communities of power and
knowledge. Advocacy of criminalization of
human fertility is also class and race based,
and it is, with overwhelming clarity, brutally
patriarchal. Such approaches, in turn, also
render barbaric the exercise of power in
state and civil society.
The argument from the ‘carrying capacity’
of human rights is somewhat attractive at
first sight. Effective enjoyment and exercise
of human rights (food, clothing, shelter,
health, education, for example) is to a
considerable extent a matter of matching
resources to needs. When needs,
normatively enshrined in human rights
logics and languages, exceed resources, they
remain unmet. The ‘carrying capacity’
argument then can be presented as a human
rights reinforcing argument; population
policies are desirable and necessary because
these constitute a response to just anxieties
concerning the enjoyment and exercise of
human rights for future generations.

Expressed thus, with extravagant

simplicity, the idea appears fairly
persuasive, indeed to the point of justifying
notions concerning ‘sustainable’
populations. Thus, a two child family norm,
now vigorously espoused by Indian
population policies, stands self-evidently
justified by models of sustainable
development. Difficulties, however, arise
when we consider the question of exercise
and enjoyment of human rights of the here
and now human beings.

These come to the fore rather acutely in the

choice of means adopted to achieve this end.
We consider these later in some detail. The
means become morally repugnant when
these elevate the politics of cruelty in
population planning programmes beyond the
reach of redress, rehabilitation and
restitution, thus investing freely with
impunity civic and political cultures the
power to determine the human rights of the
existing, and membership of future,
generations.

The second and third arguments of the

‘humane’ folks must also be rebutted
skeletally. The second argument makes the
point that reproductive human rights
romanticism overlooks the need for other
inputs for the success of projects of
population planning. If human rights
strategists ignore the value of these inputs
(education, economic development, gender
equality, and medical technology), they
invite the indictment of romanticism.
However, responsible and responsive human
rights communities also maintain that these
inputs need to be rights-oriented.

It is only now being recognized, in the

proposed fractured right to education (The
Constitution 93rd Amendment Bill), that
recognition of a constitutional, fundamental
right to education is a historic necessity, as
mere statements of national education policy
have failed to achieve their purpose. Much
the same can be said of the conversion of a
pro-women policy into the language of
enforceable rights.

And we must not overlook, in a TRIPS

dominated India, that advances in
contraceptive and medical technology
remain anchored in the trade-related,
market-friendly human rights paradigm,
where global corporations claim the very
same order of human rights protection as
hitherto available to individuals and
associations of human beings.3 These other
‘inputs’ are also thus rights-based.

The third objection also does not carry

conviction. True, legal regimes for the
protection and promotion of human rights
are shot through with the problem of
bureaucratisation of rights; human rights are
not always ‘delivered’ by legal
administration and adjudication. This is an
argument for effective law reform, not
against enunciation of reproductive rights.
The related argument from legal paternalism
also fails in that rights-oriented and sensitive
administration (good governance)
presupposes the existence of regimes of
rights in the first place!

What are reproductive rights? Human

reproductive rights are best expressed in
terms of ‘right to reproductive self-
determination.’4 The range of interests to be
protected by this right extend to
reproductive security and sexuality, health,
equality, and autonomous decision-making.5

I have elsewhere reviewed in some detail6

the existing international law enunciations
of reproductive human rights. For the
present it is sufficient to note that these
entail respect for the right to reproductive
self-determination; maternal health;
elimination of gender-based discrimination
in provision of health care; special
protection of women from harmful
conditions of work during pregnancy; child
care, and related assistance to working
parents; free nutrition, where necessary;
maternity relief; and special provision of
health care to rural women.

These rights are guaranteed specifically by

Article 3 of the CEDAW and also find a
place in Cairo and Beijing Programmes of
Action, as well as many prior international
declarations.
I have explored in my UNFPA Lecture the
lack of fit between these international
human rights obligations and the National
Population Policy, 2000 (pp. 19-22), which
does not even once mention these rights!
The Union Secretary of the Department of
Family Welfare, Government of India, in his
Presidential speech, assured us all (amidst
just ovation) that the government will
redress this lack either by a revised policy
statement or through the work of the
National Population Commission. Nothing
seems to have happened in this direction (as
far as I know) and the declarations of
national and state policies have been, in the
meantime, translated into veritable
encyclopaedias of coercive population
planning strategies.

These strategies are not reproductive rights

affirming. No fundamental right to maternal
health care is affirmed or acknowledged in
Indian law and jurisprudence. Provisions for
maternity relief did not extend in any case to
disorganized labour (the comforting class
euphemism for this being unorganised
labour). And now the structurally adjusted
judicial activism of the Supreme Court
gnaws at whatever little rights disorganized
workers had under, for example, the contract
labour law.

No legislative provisions exist for childcare

and assistance to working parents. There is
no principled recognition of the ‘elimination
of gender based discrimination’ in provision
of health care (as the excessive percentages
of tubectomy, frequently reported, for
example discloses). And less said the better
when it comes to the question of protection
of maternal health of rural women. ‘Free
nutrition’, where necessary, is a far cry,
when even the incumbent prime minister of
India finds it necessary to assert that the
perennially starving in Kalahandi have
assets, which media expose intentionally
does not disclose! The legalization of
abortion and partial prohibition of sex-based
amniocentesis are perhaps the only
legislative measures that approach respect
for women’s reproductive rights; even here
just anxieties remain concerning policy
respect for women’s rights as human rights.

The programme of disincentives: The

National Population Policy, and its state
cohorts or counterparts, remain suffused
with important policy goals, without any
articulation of responsibility for failure or
malfeasance in implementation. These
enunicatory regimes, however, impose a
number of duties and (penal) sanctions on
individuals for their failure to comply with
the objectives of the policies. This
asymmetrical distribution of responsibilities
arises, I believe, because the policies have
no place for human rights.

Let us first map out the regime of legal

duties and responsibilities cast on
individuals by these various policies:

* The Uttar Pradesh policy states: ‘Those

marrying before the legal age of marriage
will not be eligible for any government job
or for any job in government-managed
organization.7

* The Madhya Pradesh policy, in addition to

the Maharashtra type embargo on
employment, also prohibits such people
from contesting panchayat elections.8
* The Maharashtra policy has been backed
by an executive order providing two-child
norm as a criterion of eligibility for public
welfare access, including programmes for
the weaker sections, public distribution
system, and government school education.9

* So does the Andhra Pradesh policy even

on a wider scale.10

* All policies, almost uniformly subject

allocation of financial resources to panchayti
raj institutions to efforts at the achievement
of two-child family norm.

* All policies envisage more stringent

legislation concerning registration of
marriages and child marriages.11

* The Uttar Pradesh policy goes the farthest

in encouraging and commending invasive
contraceptive technologies, including
injectible/implantable techniques.

Clearly, the notion that rights may set

constraints on public policy such that
derogations from them require the strongest
justification is altogether absent from the
‘minds’ of our policy-makers.

Deprivation of access to government jobs

and offices and to panchayti raj institutions
for those marrying before the legal age
assumes capabilities in them than do
otherwise; thus, the already rightless persons
in civil society now become dvija (the
twice-born) in the realm of state-based
opportunities for survival and development.
That such hapless persons may have Article
21 based rights to livelihood (in terms of
judicial activist expansion of the right to
life) and equality under Article 14 of the
Indian Constitution is of little or no
pertinence to the framing of public policy.

Much the same may be said were this

prohibition to extend to parents or guardians
participating in child marriages. To render
them liable to dismissal from government
employment, or to disentitle them from
poverty alleviation programme benefits,
may destroy whatever life chances they have
of dignified livelihood. The impoverishing
sequences of this policy, were it to be further
extended cooperatively, or by legislation, to
economic enterprises are indeed too
catastrophic to warrant an imaginative
excursus.

The real life achievement of such a policy

prescription would be to swell the ranks of
the industrial reserve army, where casual
labour stands condemned to contingent and
cruel patterns of livelihood (without a
semblance of secure entitlement of fair wage
or welfare entitlements). This achievement
relates more to the needs of the agents and
managers of the current Indian globalization
than to any human rights responsive and just
population planning policy.

Much the same may be said concerning

proposals or provisions that disentitle
persons in violation of two-child norm from
participation in grassroots governance
through the panchayti raj institutions. It may
be argued that this disqualification derives
legitimacy from the constitutional ‘freezing’
of representation, now renewed till 2026, by
the 91st Constitution Amendment. We know,
or should know, that the connection between
the implementation of family planning
strategy and the allocation of seats to the
national Parliament is too tenuous to be
taken other than as a smokescreen for
meaningful political considerations that
address not fears about ‘population’ but
‘political’ control.12

Moreover, if institutions of grassroots

governance have value as forums of public
pedagogy, such disenfranchisement is
counter productive. Policy enunciations on
this count simply shun reasoned discourse,
installing in its place manufactured self-
evident political truths.

The linking of financial resources of

panchayti raj institutions to the effective
promotion of the family norm is no doubt an
exercise in installing ‘community
motivation’. But resourcing these is now a
constitutional obligation and it remains to be
seen how far this may be said to amount to
the imposition of unconstitutional conditions
on their constitutionally enshrined
autonomy.

The Uttar Pradesh type free for all induction

of deleterious medical technology is,
hopefully, an exception to the otherwise
noble rhetoric concerning maternal and
reproductive health. But this state of hope
needs to be more non-contingently
articulated in terms of human rights. A
‘progressive’ population policy regime
ought not to cast on human rights
communities and activist adjudication the
aggravated burden of redressing manifestly
human rights violative executive policies.

Finally (without being exhaustive) then, the

‘threat’ of ‘stringent’ legislation ought to
acquire a human rights visage. What
stringent pena order may be envisaged for
the enforcement of legal age of marriage or
two-child norm? What human rights costs
may be incurred by such regimes of
penality? What may be defences at
prosecution? What guidelines for sentencing
ought to be in place? How do we in India
feminize administration of ‘due process’?

Developmentalism versus development: A

close reading of the national and state
polices is wearisome in the extreme and
should, indeed, be accompanied by a health
warning: ‘such readings are dangerous for
human rights cultures.’

Everything is in place here; yet everything is

out of joint! All the right incantations and
vibrations are duly installed and ‘run’ (to
mimic our cyber dependence!) The state is,
at last, seized with all the right concerns: the
prose is there for all to see and share.
Neither the national, nor the state, policy
articulation can be faulted for failure of
manifest concern with the ‘virtues’ of a just
population policy. Here, we have a riot of
exuberance of legal paternalism. Everything
that is wrong is acknowledged in fullness;
everything that is right stands solemnly
affirmed. It is almost impossible to fault the
prose of concern for maternal mortality
rates;13 infant mortality rates;14 availability
and recourse to contraceptive technology;15
increasing the age of marriage;16 provision
for safe abortion services;17 regional
disparities;18 literacy and education;
administrative decentralization; women’s
empowerment;19 effective communication of
policy objectives; and production of forms
of social cooperation between the state and
civil society, especially business and
industry and the activist communities.
Like the National Population Policy, 2000,
the state policies remain suffused with
‘target free’ population policy
implementation, too wearisome to deserve
even the dignity of footnote citation. But in
reality targets dominate state policy
enunciations. These, expressed variously,
become less visible as they are transferred to
the level of grassroots governance, the
panchayti raj institutions. Targets for
‘voluntary’ sterilization are now to be
achieved not by highhanded bureaucratic
regimes but through participatory grassroots
governance.

The aspiration may not be wholly faulted

but just anxieties concerning coercion
remain alive, given the past experience and
lack of any effective rights of redress. And
even the aspiration remains clouded by the
auspices of the policy formation; people still
remain recipients, not the authors or co-
authors of population polices. The top-down
mode of enunciation is most egregiously
articulated in the Madhya Pradesh policy.
The Chief Minister, Digvijay Singh, in his
Preface to the Policy mentions the factors
that ‘motivated me to provide a population
policy that is effective...’20

In the main, the policies smack of the

ideology of ‘developmentalism’ where
epistemic communities of knowledge and
power construct public policies, without
much regard for the life experiences and
organic knowledges of people for whose
benefit the discourse is ostensibly
constructed.21 The various policies contain
no acknowledgement of real life experience
of the ‘targets’ of population policies. Their
voice is conspicuous by its absence.
Contrary to the leitmotiv of the United
Nations Declaration on the Right to
Development, individual human beings
remain objects, not subjects, of
development.22 Even if we were to regard
governmental monopolies over construction
of public interest and common good as a
brute institutional fact of political life, and
top heavy implementation administrative
structures as a necessary evil, the near total
absence of codes of state responsibility in
these population policies remain a cause for
anxious citizen concern.

Nowhere do these policies state who, and in

what manner, and to what social effect, is to
be held responsible, in politics and
administration, for non-performance or
malfeascence. No enforceable obligations
whatsoever attach to the top echelon policy
as well as administrative actors. In contrast,
‘lesser’ levels of governance, the panchayti
raj institutions, remain subject to depletion
of meagre resources for failure to implement
the targets.23

Similarly, individuals, held in violation of

the policies, are to be subjected to a regime
of stringent disincentives and even penal
sanctions. This asymmetry is the kiss of
death for population policies. Individuals
have legal duties; the administration has
none. It remains a realm of pure discretion
and impunity, a regime (to borrow the
phrase-regime of Nicolas Luhmann) of pure
‘positivization of arbitrariness.’

This need not be so. At last, postcolonial

India has come of age in terms of legislative
modelling. The Bonded Labour Act and the
Environment Protection Act now provide
penal sanctions for wilful administrative
default in implementation, thus marking an
inaugural space for rights in public policy
performances. Is there any justification for a
differential treatment of welfarist population
planning measures?

Why should manifest state failure to realize

the population policy aims escape civil and
criminal liability? May women deprived of
safe abortion facilities, assurances of
protection of maternal health, safe
contraceptives, for example, remain bereft
of civil remedies (compensation, restitution,
rehabilitation)? May not they, or their next
of kin (the activist communities), have a
legal standing to prosecute negligent
performance or wilful non-performance of
the duties enjoined by the population
policies? Should social activist actors
mobilizing the vaunted objectives of
women’s empowerment be condemned to
the fate of a Bhanwari Devi? Should there
be one law for social activists and another
for state managers?

These interrogations suggest, at the very

least, the need to encase population polices
in a rule of law framework. Public policies
serve their purpose of empowering people
best or most when they ameliorate the
asymmetry of obligations between those
who govern and those who stand ruled. The
present population policies, national and
state, fail to achieve this. Indeed, these
achieve the enhancement of
‘democratization of disempowerment.’ Mere
Directive Principles of State Policy genre
policy enunciations, as half a century of
cruel experience teaches us, only result in
the expansion of rightless peoples.
Any serious regard for human rights in
population polices entails a non-negotiable
prohibition: population policies may not
create or augment the number of rightless
human beings. Population policies in a
republican democratic India may not
penalize people who violate the two-child
norm in the absence of a total commitment,
mandated both by the Indian Constitution
and India’s international human rights law
obligations, to reproductive rights as an
integral aspect of protection and promotion
of women’s rights as human rights.24 Should
activist discourse fail to move towards this
agendum of just and humane population
policies, these will meet, with tragic impact
for the Indian future, their early
amniocentesis.

Footnotes

1. To be fair, a couple of state policy declarations

(e.g. Madhya Pradesh, Andhra Pradesh) do passingly
mention the Cairo and the Beijing Programme of
Action.

2. See, Amartya Sen, ‘Fertility and Coercion’, 63,

Chicago University Law Review 1035 (1996) who
maintains that a ‘goal-rights’ approach is more
preferable than approaches that endow rights with a
lexical priority or endow them with a ‘trumping’
feature in relation to ‘policy.’ He suggests that this
‘integrated’ approach allows us to ‘attach importance
simultaneously (i) to the fulfilment and realization of
rights (including reproductive freedom) and also (ii)
to the other consequences of these rights (including
welfare consequences’ (at p. 1041.) He, rightly, urges
then that engaging ‘advocates of coercion on their
own terms’ requires us to attend to the
‘consequences’ of rights. ‘The real issue,’ Sen insists,
‘lies in our ability to distinguish between (i) big doses
of governmental bullying to make people do what
they are unwilling to do, and (ii) leaving matters to
the responsible reflection of the people themselves,
helped by the process of economic and social
development’ (at p. 1044).
It is, however, not self-evident that limits to
reproductive rights may not be derived from the logic
of rights themselves and may depend on
consequentialist/policy arguments. For example, Alan
Gewirth, The Community of Rights (Chicago
University Press, 1996) richly draws our attention to
the ways in which rights entail mutuality of
obligations such that foster ‘the conciliation of rights
with community.’ At another level, Sen’s conclusion,
based on empirical analysis, leading him to the
conclusion that nothing ‘justifies transgressing basic
reproductive rights for the sake of achieving other
positive consequences’ (p. 1061), suggests that the
goal-rights approach performs the same function (of
protecting rights), perhaps even better, than insistence
on the priority of rights. If so, the case remains yet to
be fully made for our migration from the rights based
approach to Sen’s.

3. See, Upendra Baxi, The Future of Human Rights,

Oxford University Press, Delhi, 2002.

4. Rebecca J. Cook, ‘Human Rights and

Reproductive Self-determination,’ 44 American
University Law Review 975 (1995).

5. Id. at 979.

6. Upendra Baxi, ‘Gender and Reproductive Rights:

Problems and Prospects in the New Millennium’, pp.
4-14 (The Sixth Anniversary of ICPD Public Lecture,
UNFPA, Delhi; 6 September 2000).

7. See Uttar Pradesh Population Policy, p.13

(Lucknow, July 2000).

8. See Madhya Pradesh Population Policy, January

2000.

9. I do not, at the moment of writing, have direct

recall of the title and date of this order as notified in
the Government Gazette.

10. See Andhra Pradesh State Population Policy, pp.

19-20, Hyderabad, 1997.

11. The Population Policy of Rajasthan (Jaipur,1999)

is perhaps the most explicit when it urges ‘stiff penal
policies for the violation of the legal age to marriage’
and an omnibus indication that observance of ‘the
minimum age of marriage’ be ‘made compulsory for
availing government facilities and services’ (p. 19).
12. See Alistair McMillan, ‘Constitutional 91st
Amendment Bill: A Constitutional Fraud?’ Economic
and Political Weekly, 14 April 2001.

13. Highest in Madhya Pradesh (498 mothers dying

for 100,000 live births): see Madhya Pradesh Policy
at p. 7. The correlation between this and ‘institutional
deliveries’ does not seem clear but the presumption is
that maternal health is endangered in home-based,
traditional deliveries. In Madhya Pradesh, only 22%
deliveries (as of 1998-1999) were institutional; the
corresponding figure for Andhra Pradesh is 33%.
Andhra Pradesh planned to secure 100% institutional
deliveries by the year 2000, this in unlikely to have
been achieved.

14. Highest in Orrisa (103 per 1000 live births),

Madhya Pradesh ranks second with 94 infant deaths.

15. Uttar Pradesh plans increase in availability and

recourse from 26% at present to 34% by 2006, 46%
by 2011, and 52% by 2016 (Policy, at p.21.) Madhya
Pradesh aims to escalate contraceptive prevention
from the present 42% to ‘around 65% in 2011’
(Policy, at 9).

16. This is the universal refrain of all policies. So is

the notion of stringent law enforcement. There is
little analysis of the problem, though at least one
policy statement recognizes that changes ‘in the value
system’ are needed, followed by the brash assertion
that the ‘State will bring about such a social change’
(Madhya Pradesh Policy, p. 15).

17. Illegal abortions are ten times higher, nationwide,

than legal abortions (Madhya Pradesh Policy, p. 14.)
Andhra Pradesh policy (p. 14) attributes 15%
maternal mortality to unsafe abortions.

18. The Uttar Pradesh and the Madhya Pradesh

policies remain extraordinarily sensitive to this
dimension.

19. This is a welcome theme common to all policy

statements. The emphasis here swings from specific
programmes (such as prevention of femicide, female
literacy, reduction of school drop out rates for girls,
vocational training) to larger concerns for gender
equality, political participation, and prevention of
violence against women. On this last, the Rajasthan
policy is perhaps most explicit (p. 20) in referring to
specific forms of violence, which include dowry
deaths and misuse of pre-natal diagnosis to abort
female foetuses.
20. Madhya Pradesh Policy (emphasis added).

21. See, Arturo Escobar, Encountering Development:

The Making and the Unmaking of the Third World,
Princeton University Press, Princeton, 1995.

22. See, Upendra Baxi, ‘The Development of the

Right to Development’, in Mambrino’s Helmet:
Human Rights For a Changing World, Har Anand,
Delhi, 1994, 18-32.

23. This, in turn, raises the issue of ‘unconstitutional

conditions.’ The panchayti raj institutions are now
constitutionally enshrined structures and states may
not impinge on their financial base just as they
please.

24. I have been made aware that the presentation of

my paper disappointed the votaries of disincentives.
Questions were raised whether my human rights
oriented approach prohibits sanctions for individuals
who intentionally violate the norm. This misreads
altogether the central thrust of my presentation,
which is that sanctions attain legitimacy only when
states fully adopt and implement a charter of
reproductive rights. As fully discussed in the
preceding two sections of this presentation, present
policies never reach this issue, excepting in terms of
the political impiety of a ‘pious’ rhetoric.