The Bill on population control introduced by the Uttar Pradesh Law Commission, creating a ceiling of two children, has been criticised – for good reason – for being based on outdated thinking and adopting unconstitutional means.
Tucked away in the fine print of the Bill, however, is an extremely significant provision that has not received any attention in the discourse surrounding the Bill. We speak here of Section 15. The provision states that the two-child norm created by the Bill shall not apply in circumstances in which one or both of the children born to the couple has a disability. In such an event, the couple is entitled to have three children. In other words, the Bill says that a child with disabilities simply does not count as a child, thereby meaning that the parents of such a child are entitled to a do-over.
A regressive move
At a time when there is a sustained global campaign to equip persons with disabilities to lead full and equal lives, and to ground a majority of the challenges they face in the society that we inhabit, as opposed to their medical condition, this is an archaic provision, if it were to become law. It would be a blot on our statute books.
The provision runs contrary to the Rights of Persons with Disabilities Act, 2016, the constitutional entitlements that inhere in the disabled and the United Nations Convention on the Rights of Persons with Disabilities. It betrays a profoundly regressive and impoverished understanding of the way disabled bodies do, and must, inhabit the world.
For the purpose of creating a deviation from the two-child norm, the Bill draws on the definition of disability contained in the Rights of Persons with Disabilities Act, 2016 [2016 Act]. However, it ignores the foundational tenets of this progressive law.
As the Statement of Objects to the 2016 Act recognises, persons with disabilities “enjoy various rights such as the right to equality, life with dignity, respect for his or her integrity, etc., equally with others”.
The preamble of the law presents a series of animating principles underpinning the law, as drawn from the UN Convention on the Rights of Persons with Disabilities (UNCRPD). Critical amongst these for our present discussion is respect for individual dignity and autonomy, non-discrimination, full and effective participation in society and respect for the difference and diversity that the disabled represent.
Section 3 of the Act prohibits discrimination on the basis of disability. Section 13 guarantees to the disabled “the right to equal recognition everywhere as any other person before the law.”
In a judgment delivered by a three-judge bench of the Supreme Court earlier this year in Vikash Kumar v. Union Public Service Commission, this Act was characterised as being a statutory manifestation of a constitutional commitment. The court held that the golden triangle of Articles 14, 19 and 21 apply to the disabled with “full force and vigour”. It stated that the 2016 Act “seeks to operationalise the promise of full and equal citizenship held out by the Constitution to the disabled and to execute its ethos of inclusion and acceptance”.
Similarly, in a 2016 judgment, the Supreme Court had held that the rights that inhere in the disabled are grounded in the constitutional value of human dignity.
In a powerful affirmation of the dignity of the disabled, the court in Vikash Kumar observed that the 2016 Act is grounded in the conviction that “they [the disabled] belong, that they matter, that they are assets, not liabilities and that they make us stronger, not weaker”. At a time when the 2016 Act, and the jurisprudence surrounding its interpretation, seek to offer the disabled a sense of empowerment in their difference, what this provision does is the exact opposite.
A frontal assault on disabled bodies
The unstated premise of the provision – that an able-bodied child is needed to compensate for a disabled one – constitutes a frontal assault on the dignity of disabled bodies. The provision negates their legal personhood, by assuming that their disability cancels out their personhood. This flies in the face of an observation made by a two-judge bench of the Supreme Court earlier this year in the following terms: “The legal personhood of persons with disabilities cannot be premised on societal stereotypes of their supposed “inferiority”, which is an affront to their dignity and a negation of the principle of equality.”
The provision runs contrary to the purport and intent of the UNCRPD which was ratified by India in 2007. Article 8 of the Convention obligates the state parties to take measures to combat stereotypes against children with disabilities (CwDs) and foster respect for the rights and dignity of CWDs.
Some might contend that this view ignores the structural realities that the disabled face in India today. Given that raising a disabled child involves far more cost and energy, to confront all the barriers she is likely to face, the argument might run, there is nothing wrong with lightening a family’s burden by having an additional able-bodied child as compensation.
Indeed, as several case studies and reports indicate, a significant portion of the 29.6 million orphaned and abandoned children in India are disabled. This issue has of late been exacerbated by the COVID-19 pandemic. A lot of these children are abandoned in institutions, hospitals, roads and railway stations often due to perceived stigma, prejudices against the disabled and lack of awareness.
The deeply embedded biases against CwDs are quite amply manifested in statistics which reveal that out of over 1,000 CWDs staying in child care homes, only 49 CWDs were adopted in 2016 and 2017, and 40 in 2018 and 2019. Even the Central Adoption Resource Authority website singles out CWDs as “special needs children” in juxtaposition to “normal” children. As high-functioning and professionally successful adults with disabilities, we know all too well the attitudinal, infrastructural and allied impediments that the disabled face.
However, the Uttar Pradesh government provision offers the wrong solution to the right problem. The appropriate response to this grim state of affairs has to be for appropriate governments and civil society to ensure that the disabled are provided the additional support that they need to realise their full potential. Such a response must consist of targeted interventions that offer families the financial and informational support needed to raise disabled kids and schools the know-how and resources to offer such children the additional support they require. It must consist of the meaningful enforcement of progressive legal guarantees, the creation of a barrier-free environment and efforts to sensitise all relevant stakeholders.
Differently stated, the focus must switch from treating a disabled foetus as a catastrophe in waiting to ensuring that CwDs are primed for success. This provision reflects the attitude of a state that, instead of providing CwDs the additional support that they require to realise their full potential, has decided to wash its hands off them altogether.
This provision is also emblematic of a larger trend of relegating the disabled to second-class citizens. Illustratively, Section 92 (1)(F) of the 2016 Act provides that the foetus of a pregnant woman with severe disability can be terminated without her consent, on the basis of medical opinion. This provision presumes women with disabilities to be ineligible mothers.
In the same vein, 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 instituted schemes to compensate able-bodied individuals marrying persons with disabilities. These schemes assume that the disabled are broken goods and cannot receive marital companionship in the absence of state intervention and monetary compensation.
The provision in the UP Bill codifies the stereotype that just like the disabled are ineligible parents and ineligible partners, they are also undesirable children. Such legal affirmations have the potential to encourage more people to abandon CWDs and to discourage more people from adopting them. They are thus likely to turn perceived prejudices into lived realities.
We submit that a provision of such a tone and tenor, and the subtext underlying it, does not withstand constitutional scrutiny and is antithetical to the principles of equality and dignity. This is especially so in light of the Supreme Court’s judgment in Vikash Kumar which locates the rights of the disabled within the golden triangle of fundamental rights and emphasises the social model of disability.
Therefore, the bill requires re-consideration in light of the 2016 Act, UNCRPD and the constitutional jurisprudence around disability law. India’s disabled children and disabled citizens deserve nothing less.
Rahul Bajaj is a Senior Resident Fellow with Vidhi Centre for Legal Policy, New Delhi. Anchal Bhatheja is a student at the National Law School of India University, Bangalore, and heads the law school’s Law and Society Committee and the NLS Diversible Alliance.