People's Democracy(Weekly Organ of the Communist Party of India (Marxist) |
Vol. XXXVIII
No. 02 January 12, 2014 |
New
Disability Rights Bill Demanded Muralidharan THE abrupt end of the winter
session of parliament, two days ahead of the schedule,
came as a big disappointment
to the millions of disabled persons in the country. For
the umpteenth time, the
UPA’s government’s promise of tabling the Disability
Rights Bill remained
unfulfilled. This, despite the fact that the cabinet had
cleared it, on
December 12, 2013, after an inordinate and inexplicable
delay. Opinion was
divided over not just the intent and will of the
government but also on whether
in the given circumstances the bill could be tabled and
passed. UNPARDONABLE
DELAY,
LET-DOWN Nevertheless, the
delay in tabling the bill is unpardonable. It took nearly four years for the bill
to be drafted. With Lok
Sabha elections looming ahead and the uncertainty over
how much legislative
business will be conducted in the next session, there is
a legitimate fear that
all the efforts that went into putting this draft
through would go down the
drain. It is against this background
that many organisations and disability rights activists
who felt dismayed and
let down launched a campaign for the introduction and
passage of the bill. It may be recalled that the first
conference of the National Platform for the Rights of
the Disabled (NPRD) held
at Kochi from December 6 to 8, 2013 had adopted a
resolution calling for the
“Speedy Enactment of Rights of Persons with Disabilities
Bill” and also for a
review of the existing policy on disability. The conference had, through
another resolution, called for amending the Indian
constitution to include “disability”
as a prohibited
ground of discrimination.
Article 15(1) of the Indian constitution says:
“The State shall not
discriminate against any citizen on grounds of religion,
race, caste, sex,
place of birth or any of them.” Article 16(2) of the
constitution says: “No
citizen shall, on grounds only of religion, race, caste,
sex, descent, place of
birth, residence or any of them, be ineligible for, or
discriminated against in
respect of, any employment or office under the State.” Though discrimination on
various grounds is prohibited and equality of treatment
mandated in both these articles
of the Indian constitution, it is not so in the case of
its citizens with
disability. Discrimination on the basis of “disability”
is not prohibited. The constitution
also, it needs to be underlined, does not mandate
affirmative action for
persons with disabilities. The Indian constitution has
failed the disabled both
with respect to non-discrimination and affirmative
action. A sense of disquiet and angst
arose, consequent to the increasing awareness among the
disabled community in WELFARE
SQUEEZED IN NEO-LIBERAL
FRAMEWORK Though this act was
a landmark legislation at that particular point of time,
the entire framework
of the act is of the kind of a charity/medical model and
interpretation of
disability. The emphasis is more on the vulnerabilities
of the people with
disabilities. Rights, capacity building, harnessing
their potential etc – all
are completely missing. Doling out welfare measures
alone seemed to be
solution. And this in the current neo-liberal framework
has seen a squeeze. Despite its
erroneous approach and all its inadequacies, it has to
be admitted that the
1995 act did provide some opportunities for both
addressing and advancing the
concerns of the disabled in the country. At the same
time, it has also to be
underlined that while it did help in bringing issues of
disability to the
public domain, an insensitive administration and lack of
awareness among the
public saw to it that it was implemented more in
violation. Not without reason. The PwD
Act 1995 lacked teeth. There were no penal clauses for
non-implementation of
its provisions. Many of its provisions continue to be
flouted till date. There
are any number of cases that are being heard or on which
judgements are
delivered for the violation of the provisions of the
act. Even when lower
courts have delivered favourable judgements, appeals are
preferred and they
drag on for years together. The lackadaisical attitude of
the government is all the more exposed by the fact that
a department for
disability affairs at the centre was created in 2012
only, a full 65 years
after the country achieved independence! The total disregard and
neglect of this sector becomes glaringly clear when we
look at the conditions
in which the disabled live placed today: 51 percent of
the disabled persons are
illiterate; 63 per cent are unemployed. According to People with Disabilities in NECESSITY
TO AMEND
THE ACT The non-serious approach was followed
by the states as well. Though as per our constitutional
scheme of things,
disability is a state subject, no state has made any
substantial endeavour to
make things better for the disabled. There are only a
few states that have
framed a policy for the disabled. Even the national
disability policy was
announced in the year 2006 only, 11 years after the
promulgation of the PwD
Act. It is but a replica of the act, the only difference
being that there is an
added emphasis on the role of the private sector,
increased role of NGOs etc,
in consonance with the neo-liberal economic framework.
Nevertheless, the policy
does acknowledge the necessity to amend the PwD Act. However, a paradigm shift was
brought about with Having singed the UNCRPD, it
was not a question of amending the laws alone. All the
four disability specific
legislations – the Mental Health Act 1987,
Rehabilitation Council of India Act
1992, Persons with Disability (Equal Opportunities,
Protection of Rights and
Full Participation) Act 1995, and the National Trust Act
– had to be harmonised
with the provisions of the UNCRPD. The government failed
on that. Only the
Mental Health Care Bill was introduced in parliament. It is against this background
that the process of drafting a new law to replace the
PwD Act of 1995 started.
Initially, in 2009, the Ministry of Social Justice &
Welfare proposed to
amend the PwD Act of 1995. Around a hundred amendments
running into 87 pages
were proposed. Disability rights organisations opined
that the proposed
amendments are not aligned to the UNCRPD. They pointed
out that the amendments
do not reflect a paradigm shift envisaged in UNCRPD as
it does not view
disability as a form of human diversity and that it is
not written in the
rights based framework. The emphasis was still on
conceptualising disability as
a disorder. It did not acknowledge the barriers that
persons with disability
face everyday and shies away from making a commitment to
challenge these
barriers. The key principles and tenets of UNCRPD, for
example, effective participation,
inclusion, legal capacity, individual autonomy, liberty
of movement, political
participation, and participation in decision making were
not reflected in the
amendments. The opinion was unanimous --- that
the changes to be made are so substantive that it would
be better to write a
new law rather than just amend the present one. THE
NEW DRAFT A committee was set up by the
government with Dr Sudha Kaul at its head, which took on
board various
stakeholders. Several rounds of consultations at various
places were held. The
recommendations made by the committee were sent to the
NALSAR University of
Law, which prepared a draft. Again a round of discussion
followed, after which
the government uploaded the second draft on the
ministry’s website. That was in
September 2012. The draft of the bill
that is available on the ministry’s website takes into
account a number of
crucial areas that were missing in the 1995 act. These
include but is not
restricted to the issues of social security, disabled
women, accessibility,
preschool and higher education, the rights of the
mentally ill, and many such
issues and
rights that are taken for
granted by the non-disabled people. The draft bill has
three times more the medical conditions
than those identified by the 1995 act. The definition
has also been widened. The
1995 act had listed the following medical conditions as
disabilities: (i) blindness;
(ii) low vision; (iii) leprosy-cured; (iv) hearing
impairment; (v) locomotor
disability; (vi) mental retardation; (vii) mental
illness. The current draft
of the new bill lists 18 conditions as
disabilities -- autism spectrum disorder, blindness,
cerebral palsy, chronic
neurological conditions, deaf-blindness, haemophilia,
hearing impairment,
intellectual disability, leprosy cured, locomotor
disability, low vision,
mental illness, muscular dystrophy, multiple sclerosis,
specific learning
disability, speech and language disability, thalassemia
and multiple
disability. In the earlier
draft there was almost equal emphasis
on special schools (catering only to children with
disabilities) and inclusive
schools (catering to all children in a common
environment). But in this draft
the emphasis is on integration of children with
disabilities into an inclusive
education framework. All educational institutions funded
or recognised by the
government, have a duty to provide inclusive education.
The draft also provides
for five percent of the total seats in each course in
all government
educational institutions to be reserved for persons with
disabilities. Five percent
reservation in employment for persons
with disabilities (one percent each for blind/low
vision; hearing/speech
impairment; locomotor disability including cerebral
palsy, leprosy cured and
muscular dystrophy; autism, intellectual disability and
mental illness; and
multiple disabilities has been provided for in the
draft, as against the
existing three percent. The draft also has
provision for social security. It
says: “Appropriate governments shall promulgate
necessary schemes and
programmes to safeguard and promote rights of persons
with disabilities to
adequate standard of living and living conditions to
enable them to live
independently and in the community. In devising these
schemes and programmes
the diversity of disability, gender, age, and
socio-economic status shall be
relevant considerations.” It provides for unemployment
allowance to those
registered with special employment exchanges, provision
of aids and appliances,
medicines and diagnostic services etc free of cost to
persons with
disabilities, support to women with disabilities for
livelihood, support to
abandoned children etc. There are specific provisions
for health care,
insurance, rehabilitation etc. POSITIVE PROVISIONS One of the basic
flaws of the PwD Act 1995 was the lack of penal clauses
for non-implementation
of its provisions. This is sought to be
set right in the current draft bill. There are penal
provisions for not making
premises accessible within a set time frame; there are
penal provisions for
various offences – for hate speech, assault or use of
force, for denial of
food, sexual exploitation, for causing injury and even
for fraudulently
availing or conferring benefit meant for persons with
disabilities by
non-disabled persons. There is provision for central and
state advisory boards on disability,
which would basically be an advisory body on policy
matters. These apart, it
also provides for national and state commissions which
are empowered to monitor
the implementation of this act and whenever they find
violations either suo moto
or in the form of representations, they can enquire and
make recommendations to
the concerned governments. Whenever a commission makes a
recommendation, the concerned authority has
to report back to the commission within three months on
the action or not
taken. The commission has the powers of a civil court in
some matters like
summoning witnesses, calling for documents etc. Provisions are there for Special
Disability Rights Courts for speedy
disposal of suits concerning persons with disabilities,
basically regarding
violation of their rights in each subdivision. Exclusive
Disability Rights
Courts have to be set up in each district and in cities
with population of more
than ten lakh. LACUNAE REMAIN However, this should not in any way
convey the impression that the entire
disability sector is satisfied with the current draft of
the new law. There are
several issues on which not all disability rights
organisations and groups are
agreeable – on the question of legal capacity, on the
question of reservation
in promotions (an issue that has been agitating disabled
government employees),
political representation, etc. While the question of
reservation in promotions
was there in the first version of the draft, it has been
omitted in the latest
version. Then there is also the demand made by some
sections for political
reservation, on which there is no unanimity. It is not that the NPRD was oblivious
of these issues, some of which had
become contentious. Nor does it contend that this draft
could not or cannot be
improved upon. But the NPRD views the current draft bill
as progressive and rights
based and a break from the charity/medical approach
adopted in 1995. It sees no
reason why the introduction of this bill should be
delayed further. The NPRD also
strongly feels that the bill must be introduced and
passed only after a debate,
unlike what had happened in 1995 when it was passed
without a debate. To this
day, most parliamentarians and unfortunately even a
majority of the disabled in
the country are not aware of this act. It is against this
background that the Disabled Rights Group (DRG) and the
National Platform for
the Rights of the Disabled (NPRD) have come together and
have unitedly demanded
that the bill be tabled and adopted when parliament is
reconvened. In the first phase
of the campaign, a call was given for candlelight vigils
in different parts of
the country. A large number of disabled persons
participated in the vigils in In the second phase
a delegation of the NPRD-DRG leaders met the vice
president of In the third phase
of the campaign, NPRD-DRG leaders will tour to various
centres addressing
meetings and emphasising on the necessity of tabling and
passing the bill. A
meeting each has been fixed in Chennai and Kolkata on
January 30 and February
2. Meetings, seminars etc will be held in small towns
and rural areas to take
the campaign down to the grassroots. The mass of the
disabled have to be mobilised
and galvanised. Despite its shortcomings,
the Rights of Persons with Disabilities Bill raises new
hopes and aspirations.
It is incumbent upon the UPA government to ensure that
it is tabled, debated
and passed. The onus is entirely on it. It brooks no
further delay.