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Universal civil code talk fails to address 'vulnerability' of persons with disabilities

Counterview Desk 

In a submission to the 22nd Law Commission of India On Uniform Civil Code (UCC) from the disability perspective, four disability rights leaders -- Muralidharan, general secretary, National Platform for the Rights of the Disabled (NPRD); Roma Bhagat, advocate, Delhi High Court; Seema Baquer, cross-disability professional; and Sadhna Arya, gender and disability activist -- have said that UCC would adversely impact persons with disabilities (PwDs).
Seeking wider support, they said in a statement that PwDs are extremely vulnerable to a range of abuses and exploitations within the familial, community and social spheres, insisting, "Uniformity and equality are not synonymous with each other", especially when PwDs are "deprived of their share in family property"; are subjected to "abuse within the family, in case they are chosen to inherit the property willed to them..."

Text:

This submission is being made in response to the Public Notice dated 14th June 2023 issued by the 22nd Law Commission of India soliciting views and ideas of the public about the Uniform Civil Code. As organisations and individuals working with persons with disabilities (PwDs), we would like to state that we are an interested stakeholder in this process and therefore are submitting our views and concerns on the same.
At the outset, bereft of a draft or even an outline of the proposed UCC, responding to this public notice is an extremely challenging exercise. Nevertheless, we are submitting our response, from the disability perspective, on the premise of the right to equality for all and the obligation on the State to ensure that it endeavours to provide both de jure and de-facto rights to all. This must be done with the clear intention to strengthen existing systems and processes in order to reduce inequalities especially for all minorities and vulnerable sections, including PwDs. There is no gainsaying the fact that uniformity and equality are not synonymous with each other.
As we understand, a proposed UCC would cover the following aspects:
  • Institution of Marriage
  • Provisions of Maintenance (spousal and children)
  • Adoption
  • Guardianship
  • Inheritance (inclusive of succession and wills)
  • Real time execution of property rights
  • Trust/ Gifts/ Endowments
  • HuF and Waqf
Community properties such as forest land, shamlat lands, sarbasadharana or poramboke etc. can be governed by either customary laws in certain cases like tribal related properties and/or managed by local panchayats. These common lands get used for the benefit of the community and this includes their use for the community’s vulnerable including the disabled.

Our Concerns

If these laws are changed, PwDs as individuals are due to get impacted, as they encompass different roles of being children, spouses, siblings, parents, grandparents, aunts and uncles, dependent family members and members of a vulnerable and invisiblised population within the larger community, during the course of their lives. Across age, sex, genders, sexual identities, religious identities, caste identities, ethnic identities, class identities and regional locations, PwDs, a very diverse and heterogeneous population, inhabit all these spaces, within and outside marriage, within family and in institutions. Therefore, any discussion on these issues needs to take their voices, concerns, needs and vulnerabilities into account.

Vulnerability of PwDs

Our experience reveals that PwDs are extremely vulnerable to a range of abuses and exploitations within the familial, community and social spheres. For example, there are cases where PwDs are deprived of their share in family property; they are subjected to abuse within the family, in case they are chosen to inherit the property willed to them with the express intent of providing security to them over their siblings. Many are deprived of the right to marry, adopt and reproduce and have families of their own. These aspects are further impacted by the provision of ‘unsoundness of mind’, which grossly impact persons with intellectual, developmental and psychosocial disabilities in comparison to other disabilities.
In contrast to these realities, are existing benefits for PwDs in certain aspects of the various personal laws and customs. For example, under the HuF system, PwDs have to be taken care of and provided for from the HuF funds by the Karta, as they are shareholders in the HuF property by birth. Under Muslim law also PwDs inherit by birth, marriage and consanguinity and their share has to be at par with other non-disabled inheritors. For emphasis, it is clarified that this ratio cannot be changed through a will.

Synchronise with Other Laws

Any process addressing the legal framework related to these domains of life will have to synchronise on the issue of legal capacity and supported decision making, as provided for both under the Rights of Persons with Disabilities Act, 2016 (RPwD Act, 2016) and the Mental Healthcare Act, 2017 (MHCA, 2017).
In addition to personal laws with regard to PwDs, other civil laws, schemes and notifications also cover some of these aspects. For instance, the UN Convention on the Rights of Persons with Disabilities, 2007 (UNCRPD), which India ratified consequent to which we enacted the RPwD Act, 2016 and MHCA, 2017 reaffirms the rights to home, family, parentage, right to own property etc. for PwDs. Both the RPwD Act, 2016 and The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 2000 create systems for endowments to support PwDs including destitute and abandoned PwDs and guardianship processes to assist PwDs in managing their lives and assets including immovable properties. These domestic laws create a strong regime of social protections for PwDs. The role of the State ought to be that of a regulator, which acts within a needs-based model to eradicate bad practices and strengthen good practices through legal reform. Its role must be limited to ensuring that all persons including PwDs are able to freely exercise and enjoy the rights guaranteed under these life domains and seek justice through equitable, accessible and inclusive processes.

Existing vs Proposed New Regime

Furthermore, personal law regimes have some safeguards for disabled persons as already stated above. If these safeguards in customary and personal laws were to be strengthened with further safeguards access to justice becomes easier for vulnerable populations including PwDs because they don’t have to fight the community conscience as well as a legal battle. It is well known that when faced with no option the government had previously brought in prohibition of child marriage and sati. However, it took almost a century for the practice of sati to die out and child marriage still continues. In such a case if a disabled minor is married off against their wishes, it becomes very hard to go against the entire community and deal with an adversarial justice system. 
Similar situations can be anticipated where the law is in conflict with societal customs instead of being used as a tool to amend these systems to provide equal rights and protections within the customary and societal context. For example, the 2005 amendment to Hindu law which extended coparcenary rights to daughters has provided an avenue for women to access their rights within the societal context. We feel that it is easier to amend an existing legal regime to remove impediments to equality than to replace the same with a completely new regime.

Hold Consultations

Reform of personal laws, or for that matter any law, should only be done after wide consultations with all stakeholders. We therefore urge the Law Commission of India, to not go ahead without adequate consultations with all stakeholders including the disabled by hearing their voices and that of their representative groups and organisations. It would also be pertinent to note that the RPwD Act, 2016 recognises 21 types of disabilities. Their lived experiences and interactions within these domains may vary depending on their disabilities and the degrees of their impairment. Consultations with all of them is therefore imperative. We urge the Law Commission of India, to give serious consideration to our views and also hear the voices of PwDs and their representative groups and organisations.

Additional Recommendations

At the same time, we would also recommend that the Law Commission should take up for consideration some important issues on which many of us have been advocating since long. These include:
  • Harmonisation of all Indian laws in consonance with the provisions of the UNCRPD;
  • Amending Article 15, 15(1), 15(2), 15(4) and 16(2) of the Constitution of India to include “disability” as a ground on which discrimination is prohibited;
  • Amending Section 3(3) of the RPwD Act, 2016 which legitimises discrimination of the disabled; and
  • Removing other discriminatory provisions against PwDs under various laws in force; repeal/ amending laws that bar disabled from contesting elections (municipal/ panchayat/ cooperative societies), removing the provision of “unsoundness of mind” etc.

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