In this article, Samridhi Shukla a second year student of law at the Hidayatullah National Law University, Raipur argues how the Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021 (Draft Bill) introduced on July 19, 2021, grossly violates individual liberties, especially that of disabled people. Samridhi concludes that the Draft Bill seeks to control the population of Uttar Pradesh (UP) by introducing some very restrictive and coercive policy measures and in doing so, has turned a blind eye towards the vulnerable position of disabled persons. In this way, the Draft Bill only promotes oppression of the already oppressed disabled section of our society and violates human rights of the disabled.
Equating Disability and Death: A Three-Tier Violation of Rights of the Disabled
The Uttar Pradesh (Control, Stabilisation and Welfare) Population Bill, 2021 professes a dangerous and outrageous policy. Clause 15 of the Draft Bill states, “Disability of the first or second child- 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”.
Clause 16 of the Draft Bill goes on to discuss situations where a couple will not be guilty of violation of the two child policy even if they conceive more than two times, if one or both the children earlier conceived have died. In simple words, so long as the total number of children alive at any point of time remains only two, a couple cannot be held liable for any violation of the provisions of the Draft Bill. In somewhat similar lines, illustrations to Clause 15 of the Draft Bill, makes it clear that couples who have previously conceived disabled children will not be held to violate the provisions of the Draft Bill unless they conceive more than two able bodied children. Thus, when Clause 15 is jointly read in the backdrop of Clause 16, the provisions of Clause16 seem to equate a disabled child to having, ‘no children’. By equating disability and death, the UP government is sending a message that a disabled child is as good as a dead one. This comes off as a massive blow to several rights of disabled persons protected by international and domestic law.
In the above backdrop, the Draft Bill violates provisions of the United Nations Convention on the Rights of Persons with Disabilities, 2006 (CRPD) to which India is a signatory, Articles 14, 15 and 21 of the Indian Constitution, and the Rights of Persons with Disabilities Act, 2016.
Our society views disability through many lenses. The most regressive view manifests as the religious model which looks upon disability as divine “curse”, or “punishment”, while the charity model perceives disability as something to be pitied upon, and the medical model views disability as a practical extension of the charity model and views disabilities as something to be “corrected” through medical treatment. However, the social model of disability professes that disabilities are societal constructs and are induced by environmental and socio-cultural hindrances that render a person disabled. It also deploys a right-based approach over the charity concept of disability and professes that sympathy has no place in ensuring welfare of the disabled and that only through upholding the ‘disabled rights’ to human dignity, individual autonomy and right to govern one’s life and life choices, can equality and equitable opportunity for the disabled be truly safeguarded. It is this very model on which the CRPD was founded, that the UP government is blatantly antagonistic towards.
A brief background, the CRPD to which India became the seventh country to ratify on October 1, 2007, is that it upholds certain human rights as inseparable and integral to a disabled person’s individual and societal existence. Article 3 of the CRPD, upholds, “……..respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; non- discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities, as part of human diversity and humanity; and respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities”. Furthermore, Article 4 of the CRPD mandates, state parties to ensure a holistic realisation of human rights and a non-discriminatory environment through affirmative legislative measures. It requires signatories to abolish already existing socio-legal norms and regulations that are discriminatory or exclusionary towards the disabled and most importantly requires signatories to refrain from engaging in any act or practice that is inconsistent with the CRPD while continuing to ensure that public authorities and institutions enforce the provisions of the CRPD.
In fact, on the day of adoption of the CRPD, the then United Nations General-Secretary Kofi Annan began his speech with the following words, “For 650 million persons around the world living with disabilities, today promises to be the dawn of a new era- an era in which disabled people will no longer have to endure the discriminatory practices and attitudes that have been permitted to prevail for all too long.”
However, the illustrations given under Clause 15 of the Draft Bill speak a different story and are particularly disheartening. It repeatedly makes reference to the phrase “suffers from disability” and implies that disabled persons are liabilities to their families, are dependent individuals and incapable of any contribution to the society. Thus, the Draft Bill’s regressive view on disability pushes India many steps backwards from its already slow progress towards empowering the differently abled through the Rights of People with Disabilities Act, 2016 (the Disability Act), which was based on the principles propounded by the CRPD, and was perceived by many as a beacon of hope for improvement of the rights of the disabled.
Aligning with the social model view of disability, the Disability Act under Section 2(c) defines “barrier” as, “any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which could hamper the full and effective participation of persons with disabilities in a society”. In fact, under the provisions of the Disability Act, “discrimination” is widely defined to mean, “any distinction, exclusion, restriction which purports to or has the effect of impairing or nullifying recognition, enjoyment or exercise on an equal basis of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”.
By making disability an exception to the “two-child norm” promoted by the Draft Bill, disabled children are disturbingly viewed as sub-humans that ought to be replaced by “abled” and “fuller” children. This is a direct violation of Sections 3 and 4 of the Disabilities Act. Section 3 of the Disability Act, entitles disabled persons to equality and non-discrimination, and mandates relevant state governments to ensure that such individuals enjoy the right to equality and respect for integrity and dignity at par with other abled bodied persons. It also assigns appropriate governments the task to utilise and foster the capacity of persons with disabilities by providing a conducive environment for their growth. Furthermore, Section 4 of the Disability Act seeks to protect disabled women and children and mandates governments to ensure that such women and children are able to exercise their rights as citizens with equal freedom.
Not only does the Draft Bill let down the Disability Act’s spirit; it also proves to be a flagrant violation of the fundamental rights of disabled individuals as provided for in the Indian Constitution, specifically Articles 14 and 15. Article 14 of the Indian Constitution mandates equal and equitable treatment of persons, and Article 15 of the Indian Constitution prohibits discrimination on the basis of several grounds and impliedly includes prohibition of discrimination on the grounds of disability.
It must be emphasised here, that diversity is the bedrock of our society and the law of the land must therefore we must strive to minimise impairments caused by threats to diversity. The community as a whole can only thrive when disability is seen as a natural part of human existence. The society should embrace and accept the unique and varied needs of every individual and promote Article 21 of the Indian Constitution which seeks to protect liberty, dignity, health and integrity of all individuals. In the case of Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802), the Supreme Court has observed that “(These are) the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials.” Similarly in the case of Maneka Gandhi v. Union of India (AIR 1978 SC 597), the Supreme Court has held that human dignity is an intrinsic part of the fundamental right to life.
In fact, Justice Sikri in Jeeja Ghosh v. Union of India (AIR 2016 SC 2393) carved out a niche for disability rights. The Supreme Court in the case of Jeeja Ghosh case stressed that, “The subject of the rights of persons with disabilities should be approached from human rights perspective, which recognises that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and given detailed contextual content of those general guarantees. There should be a full recognition of the fact that persons with disability were integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others.”
Conclusion-Rectification of the Draft Bill
The Draft Bill provisions are direct violations of legal and constitutional rights that are absolutely necessary for a dignified human existence. Implying that persons with disability are a liability and “lesser than” able bodied persons and therefore should be “replaceable” human beings is morally and ethically wrong. Such regressive views may percolate down to other integral rights guaranteed to disabled persons and push them even further away from accessing healthcare, equal opportunity, social security and actively participating in decision making and community life.
The modern century needs to be more proactive in undoing decades of injustice and discrimination against the disabled and this can only be achieved through active sensitisation and acceptance of human difference and diversity. Therefore, it is high time that the world sees the disabled community as indispensable contributors to societal progress and not as “marginal human beings” or third-class citizens. While India as a nation still has a long way to go, Clause 15 of the Draft Bill must be done away with at the earliest to prove to the world that India remains conscious and inclusive of its disabled citizens.