By Rahul Cherian Disability policy reform is not new to India and the most significant reform exercise in the history of the disability sector is under way. The Rights of Persons with Disabilities Bill, 2011, was prepared by the Ministry of Social Justice and Empowerment (MOSJE) last year. This bill is intended to bring the disability rights discourse into the 21st century in accordance with the United Nations Convention on the Rights of Persons with Disabilities, which India has signed and ratified. Unfortunately, ever since it was drafted in June last year, the bill has divided the disability sector and was even rumoured to have been rejected by the MOSJE, responsible for its drafting in the first place.
The wrangling in the disability sector brought the bill to the attention of the National Advisory Council (NAC), which recently gave its recommendations on the bill. The NAC recommendations are timely since the bill has yet to be taken up by Parliament and there is still time for the MOSJE to rework the bill to ensure that it is legally sound. While the NAC has made some positive suggestions, it has failed to address certain critical issues — possibly due to the divergence within the disability sector. It also takes some inexplicable, contradictory positions. The NAC correctly identifies that the detailed definition of disability in the bill is medical in nature, which means persons with disabilities are considered patients at a fundamental level. The NAC recommends that disability be defined in terms of the social model, which states that social barriers form the primary reason why persons with disabilities cannot exercise their rights on an equal basis with others. The implications of this change are profound because it means remedies will aim to remove social barriers to make society inclusive rather than use medical intervention to achieve the same objective. Similarly, the NAC correctly recommends that families with disabled members be given higher weightage during surveys for BPL and food insecure households. It also recommends preferential access to all poverty alleviation and social security programmes, including social security allowance to households with disabled members. In addition, the NAC states that destitute, the homeless and the poor who are disabled, as well as single women and aged women with disabilities, must be given specific social protection over and above any blanket social security for all disabled persons. Unfortunately, the NAC also creates confusion in some areas. There are currently several laws relating to persons with disabilities. These include the National Trust Act (for the creation and monitoring of a trust for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities), the Mental Health Act (to regulate mental health services), the Rehabilitation Council of India Act (RCI Act, to regulate rehabilitation services) and the Persons with Disabilities Act ( which this new bill seeks to replace). All these acts are in the process of being amended. Since these amendments are being worked on in isolation, it is likely that there are contradictions and overlaps between the amendments being proposed. So the NAC says that all relevant laws concerning the rights of persons with disabilities must be reviewed to avoid inconsistencies and duplication, and amendments should be carried out through close coordination between various ministries. From this, it appears clear that the NAC is recommending different laws for the different areas that these laws cover. However, NAC also recommends that the various institutions that exist under each of the above laws/ amendments — such as the board of trustees of the National Trust as proposed under the amendments to the National Trust Act, and the Rehabilitation Council as proposed under the amendments to the RCI Act — be converged into a single institution. The creation and operation of each of these institutions is one of the primary reasons for the existence of the National Trust Act and the RCI Act. If these institutions are to be eliminated, then what shape will the National Trust Act and the RCI Act take? The NAC appears not to have thought through this issue carefully and unless this apparent contradiction is clarified there will be complete disarray with respect to the services and support to be provided to persons with disabilities. Another area that the NAC should have tackled, but did not, is the issue of reservations for persons with disabilities in the private sector. The bill prescribes 7 per cent reservation across the board, including in the private sector. This part of the bill is unconstitutional, since the Constitution of India does not permit reservation in the private sector. The NAC has completely ignored this contradiction. Nevertheless, the NAC has made several other recommendations, and it appears that the bill has to be taken back to the drawing board and redrafted. This is a good thing in my opinion as a lawyer, and even though it may take a few more years for a new disabilities law to become a reality, it is always better to have a well-drafted law than a half-baked one. The writer is with the Inclusive Planet Centre for Disability Law and Policy http://www.indianexpress.com/news/not-another-halfbaked-law/966617/0 -- You can join my Google Group: 'World Opinion' https://groups.google.com/group/worldopinion/about?hl=en Avinash Shahi M.A. Political Science CPS JNU New Delhi India 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
