The Uttar Pradesh Law Commission tabled population control law, which sets an upper limit for two children, has been criticized – for good reason – for being based on outdated thinking and unconstitutional means.
In the small print of the draft law, however, there is an extremely important provision that has not received any attention in the discourse on the draft law. We are talking about Section 15. The provision says that the two-child norm created by the Bill does not apply if one or both of the couple’s born children have a disability. In such a case, the couple are entitled to three children. In other words, the bill says that a child with a disability is simply not considered a child, which means that the parents of such a child have a right to redress.
Also Read: Why UP’s Population Control Act Can Be Disastrous for Women and Poor Families
A step backwards
At a time when there is an ongoing global campaign to enable people with disabilities to lead fulfilling and equal lives, and the majority of the challenges they face are in the societies in which we live, are increasing anchoring, as opposed to their medical condition, is an archaic determination if it were to become law. It would be an eyesore on our law books.
The provision violates the 2016 Law on the Rights of Persons with Disabilities, the constitutional rights inherent in persons with disabilities, and the United Nations Convention on the Rights of Persons with Disabilities. It betrays a deeply regressive and impoverished understanding of the way disabled bodies inhabit and must inhabit the world.
In order to create a deviation from the two-child norm, the draft law falls back on the disability definition of the Disability Rights Act 2016 [2016 Act]. However, it ignores the basic tenets of this progressive law.
As the objective of the 2016 Act recognizes, people with disabilities “enjoy, like others, various rights such as the right to equality, a dignified life, respect for their integrity, etc.”.
The preamble to the law introduces a number of animating principles on which the law is based, as they emerge from the UN Convention on the Rights of Persons with Disabilities (UNCRPD). Crucial to our current discussion are respect for the dignity and autonomy of the individual, non-discrimination, full and effective participation in society, and respect for the differences and diversity that represent disabled people.
Section 3 of the Act prohibits discrimination on the basis of disability. Section 13 guarantees disabled people “the right to everywhere the same recognition as any other person before the law”.
In a ruling by a three-member chamber of the Supreme Court earlier this year in the Vikash Kumar v. Union Civil Service Commission, this law was described as a legal manifestation of a constitutional obligation. The court found that the golden triangle of Articles 14, 19 and 21 applies to disabled people with “full force and vigor”. It states that the 2016 law “aims to implement the promise of full and equal citizenship made in the constitution for disabled people and implement its ethos of inclusion and acceptance”.
Similarly, the Supreme Court ruled in 2016 that the rights of people with disabilities are based on the constitutional value of human dignity.
The court in Vikash Kumar impressively reaffirmed the dignity of the disabled, stating that the 2016 law is based on the belief that “they” [the disabled] include that they are important, that they are assets, not liabilities, and that they make us stronger, not weaker ”. At a time when the 2016 law and the case law of its interpretation seek to give disabled people a sense of empowerment in their otherness, this provision does the exact opposite.
A frontal attack on disabled bodies
The unspoken premise of the provision that a disabled child is needed to compensate for a disabled child is a frontal assault on the dignity of disabled bodies. The provision negates their legal personality by assuming that their disability nullifies their personality. This contradicts a statement by a two-member chamber of the Supreme Court earlier this year with the following words: “The legal personality of people with disabilities cannot be presupposed from social stereotypes of their supposed” inferiority “, an insult to their dignity and a negation of the principle of equality.”
The provision contradicts the spirit and intent of the UNCRPD, which India ratified in 2007. Article 8 of the Convention obliges States parties to take measures to combat stereotypes against children with disabilities (CmDs) and to promote respect for the rights and dignity of CWDs.
Some may argue that this view ignores the structural realities that disabled people face today in India. Given that raising a disabled child involves much more expense and energy in overcoming any obstacles they are likely to face, it could be argued that there is nothing wrong with placing an extra burden on a family to reduce the disabled child as compensation.
In fact, as several case studies and reports show, a significant proportion of the 29.6 million orphaned and abandoned children in India are disabled. This problem has recently been exacerbated by the COVID-19 pandemic. Many of these children are abandoned in institutions, hospitals, streets and train stations, often due to perceived stigma, prejudice against the disabled and a lack of awareness.
The ingrained prejudices against CmDs are evident in statistics showing that of over 1,000 CWDs housed in childcare homes, only 49 CWDs were adopted in 2016 and 2017, and 40 CWDs in 2018 and 2019. Even the Central Adoption Resource Authority website highlights CWDs as “children with special needs” versus “normal” children. As highly functional and professionally successful adults with disabilities, we know all too well the attitude, infrastructural, and related barriers that people with disabilities face.
However, the state provision of Uttar Pradesh offers the wrong solution to the right problem. The appropriate response to this dire situation must be for appropriate governments and civil society to ensure that people with disabilities receive the additional support they need to reach their full potential. Such a response must consist of targeted interventions that provide families with the financial and informational support they need to raise children with disabilities, and schools with the expertise and resources to provide these children with the extra support they need. It must consist of the sensible enforcement of progressive legal guarantees, the creation of a barrier-free environment and the sensitization of all relevant actors.
In other words, the focus needs to shift from treating a disabled fetus as a waiting disaster to making sure CmDs are prepared for success. This provision reflects the stance of a state that has chosen to give CmDs the extra support they need to reach their full potential of washing away from them entirely.
Also read: Activists criticize government for lack of budget allocations for people with disabilities
This provision is also emblematic of a larger trend towards the downgrading of disabled people to second class citizens. As an example, Section 92 (1) (F) of the 2016 Act provides that the fetus of a pregnant woman with a severe disability can be terminated without her consent on the basis of a medical opinion. This provision assumes that women with disabilities are ineligible mothers.
Similarly, some states such as Odisha (2.50,000 rupees), Madhya Pradesh (2,000,000 rupees), Telangana (1,00,000 rupees), and Maharashtra (50,000 rupees) have introduced equalization schemes to employable people who marry people with disabilities. These systems assume that disabled people are broken goods and cannot maintain marital society without government intervention and monetary compensation.
The provision in the UP Act codifies the stereotype that disabled people are just like non-eligible parents and non-eligible partners, but also unwanted children. Such legal endorsements have the potential to encourage more people to give up CWDs and to discourage more people from adopting them. You are therefore likely to turn perceived prejudices into lived realities.
We are of the opinion that a provision with such a tone and tenor, as well as the subtext on which it is based, does not stand up to constitutional scrutiny and runs counter to the principles of equality and dignity. This is particularly true in the context of the Supreme Court ruling in Vikash Kumar, which places the rights of the disabled in the golden triangle of fundamental rights and emphasizes the social model of disability.
Therefore, the draft law needs to be re-examined in the light of the 2016 law, the UN CRPD and the constitutional case law on disability rights. India’s disabled children and disabled citizens deserve nothing less.
Rahul Bajaj is a Senior Resident Fellow at the Vidhi Center for Legal Policy, New Delhi. Anchal Bhatheja is a student at the National Law School of India University in Bangalore and heads the Law and Society Committee of the Law School and the NLS Diversible Alliance.