Abstract
The article examines the proposed Uttar Pradesh Population (Control, Stabilization, and Welfare) Bill, 2021, through the lens of disability rights and argues that the draft law was prepared with complete insensitivity towards disabled people. The Bill aims to control the population by limiting government incentives and benefits to those who have two children and has received criticism for its regressive approach. The article suggests that the law should be reassessed and take into account the principles of UNCRPD, RPwD Act, and constitutional jurisprudence pertaining to disability law. The government should also consider the objections of relevant stakeholders and avoid promoting exclusionary practices and stereotypes.
Introduction
In 2021, on World Population Day, the Uttar Pradesh government expressed its intention to enact a two-child norm to control the population in the state. Against this backdrop, the State Law Commission had come out with a draft law, titled The Uttar Pradesh Population (Control, Stabilization, and Welfare) Bill, 2021, (“the Bill”) to revitalize efforts in the direction of stabilization of the population. As per the Bill, a person, procreating more than two children, shall be precluded from receiving any government incentives and benefits.
The Bill has evoked criticism from many quarters of society for adopting a regressive approach against Women, minority communities and poor families. It has also raised concerns about its potential to compromise the rights of persons with disabilities, and the author will endeavour to critically analyse its implications through a disability lens.
Examining the Social, Legal, and Ethical Implications of Draft Bill: A Rights-Based Critique
The draft Bill contains a total of 5 chapters and 30 Sections. The law contains the term ‘disability’ in three Sections which are Sections 3(2), 15 and 23(m). The major objection is with Section 15, which falls under Chapter III. Basically, this chapter outlines certain conditions in which even a person having more than two children is not considered in contravention of the two-child norm under the Act. Section 15 reads as
“Notwithstanding anything contained in this or any other law for the time being in force, an action of an individual shall not be deemed to be in contravention of the two-child norm under this Act, if the either, or both, of his children born out of the earlier pregnancy, suffer from disability and the couple conceives a third child subsequently.”
In simple terms, the two-child policy allows for a person to have a third child without being in violation of the law if their previous children were born with disabilities. This is because the policy operates on the premise that having two children with disabilities has the same effect as having one child and having a child with disabilities is comparable to having no child in terms of the policy’s restrictions. Let’s understand the aforementioned provision with an example – consider a marriage where two children are born and both suffer disabilities. Consequently, this provision would come into force and will allow the said couple to procreate a third child with the bar of the two-child policy.
This provision evoked criticism from many circles. Disability rights activists argued that a bare perusal of the Section evidently suggests that it adopts a very parochial, ableist, and eugenics-based approach. Contrary to the right-based approach, it reflects the disabled as a burden and incompetent, and having a disabled child is considered the same as having no child at all. It views the disabled child as non-existent or dead. This intention can be also gathered from the fact that Section 15 has been very strangely accommodated under the heading “Of Death or Disability of Child”.
People who favoured this provision argued that there is nothing wrong with the proposed Section as it’s axiomatic that raising a disabled child involves more cost and effort, and the presence of a non-disabled child in the family would compensate for the loss. Indisputably, given the current situation, raising a disabled child could be more costly than a non-disabled child. However, the aforementioned argument and the purported intent behind the Section have negative underlying implications and would produce several adverse ramifications in the long run.
Firstly, being a progressive welfare state, instead of making endeavours to create an accessible and inclusive environment and promoting positive attitudes towards disabled people, adopting and endorsing such an archaic approach suggests the reluctance and failure of the country to fulfil its constitutional commitments and international obligations.
Secondly, it would drive couples to go for another child in the hope of a non-disabled child believing that only a non-disabled child can support the family, reinforcing the view that disabled persons can not sustain themselves and their families. Unarguably, the import of this Section goes against the mandate of the Constitution and the Rights of Persons with Disabilities (“RPwD”) Act, 2016. It undermines their right to live with dignity enshrined under Article 21 of the constitution which guarantees a meaningful and dignified life for all including persons with disabilities as observed by the Supreme Court. No doubt, the underlying message of this Section is an assault on the idea of an inclusive and equal society for all.
Thirdly, on theoretical and normative grounds, the object of enacting any law is to eliminate the mischief present in society. In the particular matter at hand, the rapid rate of growth of the population can be considered to be a mischief/problem in the state and therefore this law is proposed to curb population growth. But if we draw its correlation to the issue of persons with disabilities, the anomaly becomes visible. The major existing problem in society is that persons with disabilities are viewed as a burden and incompetent, and the proposed Section, instead of wiping this mischief or problem out from society, will further perpetuate this stereotype.
Fourthly, there is also an apprehension that such a provision would encourage procuring fake disability certificates. To escape from the teeth of this Act, people would try to make forged disability certificates for their non-disabled children so as to avoid being deprived of government benefits.
Challenging Disability Stereotyping in Draft Law:
At this juncture, it would be apt to distinguish between “recognition” and “perpetuation” for critical examination of the issue. Recognition means the acknowledgement and understanding of the fact that several stereotypes exist, and recognizing stereotypes can be beneficial for raising awareness and taking appropriate measures to counter them. Whereas “Perpetuation” implies the act of continuing to propagate stereotypes. Perpetuation of stereotypes may result in the retrenchment of negative attitudes and beliefs. This issue has been a subject of deliberation in constitutional feminist discourse that emerged in the backdrop of Article 15(3) of the Indian Constitution. Broadly, the test to save stereotype-perpetuating law consists of the following heads:
- The law/provision must be based on a stereotype that is quantitatively true and verifiable;
- The stereotype must be perpetuated in order to remedy historical disadvantages faced by the group;
- There exists no lesser-discriminatory alternative than the impugned law/provision; and
- The advantage conferred on the historically disadvantaged group must be greater than the disadvantage generated via the perpetuation of stereotypes.
If the author borrows this test to invoke normative claims in the concerned subject, the Draft law appears to perpetuate stereotypes owing to the following reasons:
- It is acknowledged that the expenses associated with raising a child with a disability may be greater than those for a non-disabled child. However, it is important to recognize that not all families with disabled children face financial difficulties. The perception that having disabled child results in financial strain is a detrimental stereotype that reinforces the notion that individuals with disabilities are a burden on society. Additionally, the cost of caring for a child with a disability can vary greatly depending on the severity of the disability and the family’s financial circumstances. There is no evidence to back up the claim that all families with disabled children struggle financially.
- Instead of remedying the historical disadvantages faced by persons with disabilities, such measures could result in further stigmatization of disabled individuals, as they would be viewed as a “loophole” to have more children, rather than a natural aspect of human diversity. It would be noteworthy that the Supreme Court has observed that “the legal personhood of persons with disabilities cannot be premised on societal stereotypes of their supposed ‘inferiority’”. Furthermore, some parents may exploit their child’s disability status for the sake of having more children.
- There are many better alternative measures in place of the said provision, which include providing financial assistance and other forms of support for all families with disabled children, regardless of the number of children. This support may include financial assistance for care, education, and vocational training, accessible housing, healthcare services, and counselling and parenting classes. The alternative approach is suggested to be less discriminatory and in line with the mandate of the RPwD Act, 2016.
- The two-child policy has an exception for families with disabled children, which aims to benefit individuals with disabilities or their families. However, it fails to outweigh its negative impact of perpetuating stereotypes. It basically shifts the attention from other relevant and critical issues such as accessibility, support, and discrimination that these families and individuals with disabilities may face.
Additionally, upon careful analysis of the law, it is also evident that it promotes indirect discrimination. Indirect discrimination occurs when a neutral measure is implemented, which in practice disproportionately harms individuals belonging to a particular group. The most salient aspect of indirect discrimination is that it restricts behaviour that, while not deliberately discriminatory, results in discriminatory effects. Needless to say, the Draft Bill would eventually result in the endorsement and entrenchment of a paternalistic approach towards persons with disabilities.
Moreover, the proposed Section uses the expression ‘suffer from disability’ which is not regarded as an appropriate expression in the domain of disability studies since it shows that a disabled person is ‘suffering’ or has a life of reduced quality.
It is worth noting that there are several models to view disability, such as the charity model (which perceives persons with disabilities as subjects of charity or help), the medical model (which locates disability inside the individual and focuses on treating the individual), the social model (which views that disabilities lie outside the individual and are a social construct), and the human rights model (which recognizes that persons with disabilities are also bearers of entitlements and equal fundamental freedom). Notably, the social and human rights models have emerged as the prevailing discourse in defining the accepted positioning of disabled persons. However, the present Draft law appears to take a regressive approach, relying on the medical and charity models instead. It fails to recognize that a child with disabilities is equally entitled to human rights, fundamental freedom and respect.
Negation of the Fundamental Principles of the UN Convention and the RPwD Act:
It would be apt to mention that the Preamble of the United Nations Convention on the Rights of Persons with Disabilities (“UNCRPD”), which was ratified by India in 2007, talks about the significance of mainstreaming disability as an essential facet of sustainable development. It also obliges the state parties to combat prejudices against persons with disabilities and foster respect for the rights and dignity of disabled persons in society including at the family level. However, the draft law negates the fundamental principles of the Conventions which provide “respect for difference and acceptance of persons with disabilities as part of human diversity and humanity”.
The Bill also goes against the objective of the RPwD Act which imbibes and seeks to promote the principles of the aforementioned Convention including the right to dignity and the right to non-discrimination for all. Section 3 of the RPwD Act guarantees the right to equality and respect for disabled person’s integrity equally with others. Further, Section 13 provides persons with disabilities the right to equal recognition everywhere as any other person in the eyes of the law. Section 39 of the Act provides that the appropriate government shall encourage and support campaigns and programs to promote the significance of inclusion, empathy, respect for diversity, and recognition of the merits of persons with disabilities. The Supreme Court has also held that the RPwD Act attempts to concretize the constitutional mandates set out in the preamble and Part III of the constitution, and the golden triangle of Articles 14, 19 and 21 includes within its ambit the disabled. Though the statement of objects of the Bill highlights the necessity of sustainable development, its discriminatory provision appears antithetical to this idea and also the objective of the RPwD Act. It fails to appreciate disability as a part of diversity and tangentially undermines the ability of disabled persons and perpetuates stereotypes against them.
Conclusion
It is apparent that while adopting a highly coercive and regressive approach to population control, the draft law seems to have been prepared with complete insensitivity. It needs reassessment keeping in mind the principles of UNCRPD, the RPwD Act and constitutional jurisprudence pertaining to disability law. The State Law Commission had invited suggestions and amendments to the Draft Law and received over 8500 responses. Being a welfare state, the government should draft such laws very carefully considering the objections of relevant stakeholders. The law should not promote exclusionary practices and stereotypes. It is imperative that diversity be embraced with sincerity, and to achieve a fair and equitable society, every individual should have the right to live with dignity, without any disparity.
This article is a part of the DNLU-SLJ (Online) series, for submissions click here.
LLM Student at National Law School of India University, Bangalore