The Invoice over population control introduced by the Uttar Pradesh Law Commission, creating a two-child cap, has been criticized – rightly – for being based on outdated thinking and adopting unconstitutional means.
Hidden in the fine print of the bill, however, is an extremely important provision that has received no attention in the discourse surrounding the bill. We are talking here about clause 15. The provision states that the two-child standard created by the bill does not apply in cases where one or both children born to the couple have a disability. In such a case, the couple has the right to have three children. In other words, the bill states that a child with a disability simply does not count as a child, which means that the parents of such a child are entitled to a recast.
A regressive movement
At a time when there is a sustained global campaign to empower people with disabilities to lead full and equal lives, and to ground the majority of the challenges they face in the society we live in, as opposed to their condition health, it is an archaic provision, if it were to become law. It would be a stain on our law books.
The provision is contrary to the Disability Rights Act 2016, the inherent constitutional rights of persons with disabilities and the UN Convention on the Rights of Persons with Disabilities. It betrays a deeply regressive and impoverished understanding of how disabled bodies inhabit and should inhabit the world.
For the purposes of creating a derogation from the two-child standard, the bill relies on the definition of disability contained in the Disability Rights Act 2016. [2016 Act]. However, he ignores the fundamental principles of this progressive law.
As the Statement of objects of the 2016 law recognizes that people with disabilities “enjoy various rights such as the right to equality, to a dignified life, to respect for one’s integrity, etc., on an equal basis with others”.
The preamble to the law presents a series of guiding principles that underpin the law, drawn from the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Of these, respect for individual dignity and autonomy, non-discrimination, full and effective participation in society, and respect for the difference and diversity that persons with disabilities represent are central to our discussion. current.
Section 3 of the law prohibits discrimination based on disability. Article 13 guarantees people with disabilities “the right to be recognized everywhere as any other person before the lawâ€.
In a judgement handed down by a three-judge bench of the Supreme Court earlier this year in Vikash Kumar c. Union Civil Service Commission, this law has been described as a legislative manifestation of a constitutional commitment. The court held that the golden triangle of sections 14, 19 and 21 applied to disabled people with “all their might and vigourâ€. He said the 2016 law “aims to fulfill the Constitution’s promise of full and equal citizenship to persons with disabilities and to implement its philosophy of inclusion and acceptance”.
Likewise, in a judgment 2016the Supreme Court had ruled that the inherent rights of persons with disabilities are based on the constitutional value of human dignity.
In a powerful affirmation of the dignity of persons with disabilities, the court of Vikash Kumar observed that the 2016 law is based on the belief that “they [the disabled] belong, that they matter, that they are assets, not liabilities and that they make us stronger, not weakerâ€. At a time when the 2016 law, and the case law surrounding its interpretation, seeks to offer people with disabilities a sense of autonomy in their difference, what this provision does is the exact opposite.
A frontal assault on disabled bodies
The provision’s tacit premise – that an able-bodied child is necessary to compensate for a disabled child – constitutes a frontal attack on the dignity of disabled bodies. The provision denies their legal personality, assuming that their disability negates their personality. This goes against a observation made by a bench of two Supreme Court judges earlier this year in the following terms: “The legal personality of persons with disabilities cannot be based on societal stereotypes of their alleged ‘inferiority’, which is an affront to their dignity and a negation of the principle of equalityâ€.
The provision runs counter to the content and intent of the UNCRPD which was ratified by India in 2007. Article 8 of the Convention obliges state parties to take measures to combat gender stereotyping. towards children with disabilities and promote respect for rights and dignity. CWDs.
Some might argue that this view ignores the structural realities that disabled people face in India today. Since raising a child with a disability involves far more cost and energy, to face all the obstacles she is likely to face, the argument could run, there is nothing wrong with easing the burden of a family by having an additional valid child in compensation.
Indeed, like several case studies and reports indicate, a significant part of the 29.6 million orphans 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, roads and train stations often due to perceived stigma, prejudice against the disabled and lack of awareness.
The deep-seated prejudices against CwDs manifest quite amply in statistics which reveal that out of more than 1,000 CWDs staying in child care centres, only 49 CWDs were adopted in 2016 and 2017, and 40 in 2018 and 2019. Even the Central Adoption Resource Authority website distinguishes children with disabilities as “children with special needs†in juxtaposition with “normal†children. As high-achieving, professionally successful adults with disabilities, we know all too well the attitudinal, infrastructural, and related barriers that people with disabilities face.
Greater discomfort
However, the provision of the government of Uttar Pradesh offers the wrong solution to the right problem. The appropriate response to this grim situation must be for the appropriate governments and civil society to ensure that persons 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 needed to raise children with disabilities and schools with the skills and resources to provide these children with the additional support they need. It must consist of the meaningful application of progressive legal safeguards, the creation of an unfettered environment and efforts to sensitize all relevant stakeholders.
In other words, the focus should shift from treating a disabled fetus as a disaster waiting to ensure that CwDs are prepared for success. This provision reflects the attitude of a State which, instead of providing CwDs with the additional support they need to realize their full potential, has decided to wash its hands of it completely.
This provision is also emblematic of a broader tendency to relegate the disabled to the rank of second-class citizens. To illustrate, Section 92(1)(F) of the 2016 Act provides that the fetus of a severely disabled pregnant woman may be terminated without her consent, based on medical advice. This provision assumes that women with disabilities are ineligible mothers.
Similarly, some state governments, such as Odisha (Rs. 2,50,000), Madhya Pradesh (Rs. 2,00,000), Telangana (Rs. 1,00,000) and Maharashtra (Rs. 50,000) have programs in place to compensate able-bodied people who marry disabled people. These programs assume that people with disabilities are broken property and cannot enjoy spousal companionship in the absence of state intervention and monetary compensation.
The provision in the UP bill codifies the stereotype that just as the disabled are ineligible parents and partners, they are also unwanted children. Such legal assertions have the potential to encourage more people to abandon CWDs and discourage more people from adopting them. They are thus likely to transform perceived prejudices into lived realities.
We submit that a provision of such tone and tenor, and the subtext behind it, do not withstand constitutional scrutiny and are contrary to the principles of equality and dignity. This is particularly the case in light of the Supreme Court ruling in the Vikash Kumar case which situates the rights of persons with disabilities within the golden triangle of fundamental rights and emphasizes the social model of disability. .
Therefore, the Bill needs to be reconsidered in light of the 2016 Act, the UNCRPD and constitutional case law relating to disability law. Disabled children and disabled citizens of India deserve nothing less.
Rahul Bajaj is Senior Resident Fellow at the Vidhi Center for Legal Policy, New Delhi. Anchal Bhatheja is a student at the National School of Law, India University, Bangalore, and leads the Law School’s Law and Society Committee and the NLS Diversible Alliance.