A Just Step Forward Vol. 51, Issue No. 51, 17 Dec, 2016 http://www.epw.in/journal/2016/51/editorials/just-step-forward.html
The disabilities bill is welcome, but falls short on some key issues. Disability activists have campaigned for many years for a disability law. Finally, on 14 December, the Rajya Sabha passed the Rights of Persons with Disabilities Bill, first introduced in the house in February 2014. This bill, replacing the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, is a big step forward in addressing the rights of persons with disabilities (PWDs) in India. The 119 amendments to the bill were cleared by the cabinet on 1 December. According to the 2011 Census, there are 2.68 crore (2.21% of the population) PWDs in India. This underestimation is indicative of the flaw in the 1995 act’s inclusion of only seven conditions as disabilities. The amendments bring 21 conditions under the ambit of the bill (as they do a previously excluded Jammu and Kashmir). This is sure to increase our estimates of the number of PWDs in the country. The original bill was an improvement over the 1995 act in certain basic ways: covering all PWDs, and not just those with the 40% benchmark disabilities; providing for social security and high support needs; addressing the guardianship to persons with mental disabilities; and providing for the central government to be able to notify more categories of disabilities in the schedule. The amendments have introduced first and foremost a definition for discrimination in relation to disability, keeping in mind the 2006 United Nations Convention on the Rights of Persons with Disabilities that India had ratified. However, neither the original bill, nor the amendments to it address the contentious clause prohibiting discrimination, which has a vague exception allowing such discrimination if it is shown to be “a proportionate means of achieving a legitimate aim.” This, as has been contested by disability rights activists, leaves the door open to interpretation. The amendments have also brought the reservation in government establishments for those with benchmark disabilities down to 4%, from 5% in the original bill (though it is an increase from 3% in the 1995 act), even while having added to the list of disability conditions that can avail reservations. Curiously, the amendments have removed the category of “speech impairment” from this list. Moreover, despite a Supreme Court judgment in 2013 that reservations should be decided on the basis of the total number of vacancies in a particular cadre, rather than the posts identified by the government to be filled by persons with benchmark disabilities, the bill has stuck to the latter. When questioned in the house by the opposition, the Minister for Social Justice and Empowerment claimed that the rules will ensure that this clause is “diluted.” The amendments have also expanded the definition of “establishment” to include private establishments in addition to government ones. However, it strangely makes the clauses on non-discrimination in employment mandatory only in government establishments. In addition, the amendments continue with the 1995 act’s provision of having a chief commissioner and state commissioners. Neither the commissioners nor any of the members of their advisory committees are required to be PWDs. Also, like it does for the institutions wanting to be registered as ones for PWDs, the bill does not specify the time frame for a certificate of disability to be issued (though it makes such a certificate valid across the country). This gives PWDs no way to address the trials and tribulations they face when tackling the bureaucracy in receiving what has been their right for years now. The amended bill does define public buildings and public facilities and services towards making such infrastructure accessible to PWDs in a “barrier-free” manner. However, for all the benefits that this bill strives to provide, basic issues of accessibility, including to information and communication technology, and certification of disability remain a distant unfulfilled dream in the absence of any political will. Disability activists for a long time have been pushing for the passage of this bill. Even as it has been passed with its amendments in the Rajya Sabha, their fears have not been unfounded in that the original bill has been diluted and long-criticised clauses have not been addressed. Considering the sociocultural prejudices against them, and the inability, rather the refusal, to keep in mind the needs of PWDs, this bill, as was the fate of the 1995 act, will go only so far to ensure for them the rights that should have been a given. Till they are treated as second-class citizens, and not recognised as capable individuals in their own right, India will continue to be an unjust and inequitable society. -- Avinash Shahi Doctoral student at Centre for Law and Governance JNU Register at the dedicated AccessIndia list for discussing accessibility of mobile phones / Tabs on: http://mail.accessindia.org.in/mailman/listinfo/mobile.accessindia_accessindia.org.in Search for old postings at: http://www.mail-archive.com/[email protected]/ To unsubscribe send a message to [email protected] with the subject unsubscribe. To change your subscription to digest mode or make any other changes, please visit the list home page at http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in Disclaimer: 1. Contents of the mails, factual, or otherwise, reflect the thinking of the person sending the mail and AI in no way relates itself to its veracity; 2. 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