Thanks for this posting on AI.
Since, I was a member of the new bill drafting committee, I want to respond
to some of the issues mentioned in the article. You all know that I am a
silent reader of the postings on AI and very rarely wrote.
It is absolutely true that mental disability is not only among the most
deprived human beings in the world, they are also the most neglected and
face lifelong barriers to access education, work, play, social
participation, marriage, and a life of ordinary human aspirations.
Firstly, we had a number of detailed civil society consultations all over
our country and almost all suggestions emerged in these consultations have
been included in the new bill. So, I state that consultations have been
done, of course, we can discuss more.
We must recognize that legal capacity is a very serious issue facing the
mental health sector in particular. There has been a serious deliberations
in the committee about legal capacity and many schools of thought emerged.
If we talk about legal capacity, we all will have to strongly advocate
amendments to the Constitution of India. Article 326, explicitly excludes
mentally unsound persons from voting and disability, unlike SC, ST, senior
citizens,etc. has not been mentioned in any of the articles in a
deterministic fashion. So, unless and until we advocate to amend the
Constitution, the discussion about legal capacity will only remain a dream.
We must also strongly advocate with the Government to be a part of the
optional protocol of UNCRPD and do the needful.
Since, plenary guardianship is fraught with possibilities of exploitation,
the committee suggested limited guardianship. I agree that this is not the
best solution, but, we should not make a law, wherein, fearing exploitation
by 10%, we punish the remaining honest 90%. Not all guardians are dishonest
and there are some people, who will be sensitive to the problems of mentally
disabled. But, in any case, there should be a detailed discussion with the
advocates of mental health sector and such matters should be decided and not
by mere articles in news papers.
I am not in agreement that the present PWD act is acknowledged to be
out-dated. Let us remember that many of us benefited from this act. We
should recognize that disability is an evolving concept, which is mentioned
even in UNCRPD and no law will ever remain relevant for all times to come.
There are very strong case laws and judgments generated by the PWD act and
disabled persons withstood the discrimination on account of the intervention
of courts from time to time, based on PWD act.
As regards the definition of disabilities, the new bill has taken a twin
approach. Disabilities are defined based on social model, but, when it comes
to entitlements, the medical model will have to be depended up on. We had
also suggested that the Government must put in place a medical model, which
is contemporary and globally relevant. We must note that, inn the absence of
a medical model, disabled persons will be left to whims and fancies of the
medical profession for certification for various entitlements, which will
only make our lot worse.
It is for discussion, if all those under poverty, sociel economic exclution
etc. should be covered under the present bill. In that case, I am afride
that not less than 50% to 60% of our country will have be trreated as
disabled.
I saw a rreport from PTI about the delibarations at the National Advisary
Council (NAC). Whhile, I agree with the most of the statements in that
write-up, I think that one law and multiple laws have been wrongly reported.
NAC only said that all the four acts viz. RCI, MH, NT and PWD acts relating
to the disability sector should be revviewd for any internal contrediction,
which In any case, the committee had taken care of, it was reported that NAC
favours marging all the four laws in to one law. I am sorry that this is
incorrect. In this contect, people should see the original write-up from
NAC.
Finally, all the stands taken by the three blind welfare institutions, NAB,
NFB and AICB has totally vindicated by the NAC, which includes, among other
things, choice among alternative education model viz. special schools,
integrated education, inclusive education, home based education, etc. by the
candidate, a single law and no need for any forther review,etc. But, we
don't agree with the creation of national commissions, which has been a
failure earlier. There has to be a very strong grevence redress machanism,
may be in the form of district, state and national tribunal, which has been
clearly outlined in the draft.
Let us all hope that we will see the new law sooner rather than latter.
regards
----- Original Message -----
From: "avinash shahi" <[email protected]>
To: "accessindia" <[email protected]>; "jnuvision"
<[email protected]>
Sent: Sunday, July 01, 2012 3:22 AM
Subject: [AI] Resisting exclusion
July 1, 2012
As the Government looks at a new law to protect the rights of the
disabled, some issues need discussion.
Bring the barriers down.Photo: R.V. Moorthy People with physical and
mental disabilities, in the words of Amartya Sen, “are not only among
the most deprived human beings in the world, they are also, frequently
enough, the most neglected.” They face life-long barriers to access
education, work, play, social participation, marriage, and a life of
ordinary human aspirations.
As excluded people whose human rights are most consistently violated,
many of them today are investing a great deal of hope in a strong law,
as a decisive instrument in struggles to secure and defend their
rights. The current Persons with Disabilities Act 1995 is acknowledged
to be out-dated and too weak, and a new law is therefore currently
under consideration of the Government of India.
Many lively and important debates have arisen among disability
organisations about many features of the proposed new law for
disability rights. One of the most important questions relates to how
disabled people should be defined.
Defining disability
Traditionally, disability has been defined mainly in terms of the
medical impairment a person lives with. However, a person is not
primarily disabled only because her vision is clouded, or limbs are
feeble, or because she cannot hear or speak, or her mind is slow. She
is disabled because society does not allow her to exercise the many
abilities she does have, to live a life of relative self-reliance and
dignity.
All over the world, it has been demonstrated, for instance, that
mentally slow persons may perform as well or better than other workers
in assembly line jobs; hearing impaired persons are more accurate in
data entry tasks; and visual impairment is an asset in manufacture of
photosensitive materials. If these persons still cannot find work, the
barrier is not their medical disability, but the attitude of
employers.
Therefore, the disability of an individual should not be evaluated
merely in terms of the physiological difficulties that the person
encounters, but the ways the physical and socio-cultural environment
responds to these medical impairments. Such socio-medical scales of
disability have been developed in other parts of the world, and the
new law should make it mandatory for governments to develop these also
for India.
Another contested debate around the proposed law pertains to the
question of “legal capacity” of persons with disabilities: whether
persons with disabilities, especially intellectual, psycho-social and
multiple disabilities, are able to responsibly think for themselves;
and whether they should be legally empowered to take decisions for
themselves, or instead they should be “protected” by guardians who
decide on their behalf.
The current legal position in India is that on a finding of
“incapacity” in a disabled person, the guardian substitutes for the
person with disability as the person before the law, and takes all
legally binding decisions for the disabled person. The decisions of
the person with disability have no binding force in law. The guardian
is under no legal obligation to consult with the person with
disability or determine his or her will or preference whilst taking
decisions for him or her.
It is acknowledged even by government that this system, called
“plenary guardianship”, is fraught with possibilities of exploitation
and unfair dispossession of disabled persons, because guardians can
oppose or distort a person’s will. But many parent groups still
believe that some kind of appropriately safeguarded guardianship is
necessary to protect these categories of persons with disabilities
from exploitation, abuse and neglect.
The current official position takes a middle path in this debate,
providing for “limited” guardianship, which prescribes that all
guardians shall act in close consultation with the person with
disabilities to arrive at legally binding decisions, in a system of
joint decision making which operates on mutual understanding and trust
between the guardian and the person with disabilities.
Critics, however, fear that this can, in practice, still result in
legal capacity being denied. It does not protect a disabled person
when there is a lack of agreement between the guardian and the person
with disability. Guardians would tend to neglect the choices of the
disabled person, given the vast difference in power between them.
Disability groups suggest that where local networks of disabled
persons exist, they should be given a much greater role in ensuring
that the supported “joint” decision reflects the true aspirations and
best interests of the disabled person. There is also a need to have a
stronger mandatory review system of these supported decisions, to
ensure in such cases that there is no conflict of interest,
exploitation, and that the will and best interests of the disabled
person are indeed secured to the extent feasible.
Another hurdle
Another great challenge in drafting a law for disability rights is the
great diversity between disabled people, not just in terms of the
range of physical and mental disabilities, but also their
socio-economic situations. It is critical to recognise poverty and
social exclusion as crucial factors affecting the rights of children
and persons with disabilities; and the many ways that disability
intersects with other traditionally socially excluded groups such as
the dalits, adivasis, and the Muslims, to create a complex matrix of
vulnerability in the Indian context. Destitute women and men, single
women, lower castes, homeless, and the aged who are also disabled
women need specific social protection over and above any blanket
social security given to all the disabled. The law should also contain
stringent anti-discrimination provisions to lower barriers to their
productive employment.
It costs a great deal to take care of persons with disabilities,
therefore families with disabled members are effectively much poorer
than those with the same income but no disabled persons. Such families
deserve to be recognised to be poor (and food insecure) in official
identification surveys of poor households.
No law in itself can alter the destinies of a group of persons as
marginalised as disabled persons. But it can be used by organised
collectives of disabled people to resist and ultimately reverse the
intense exclusion and discrimination which characterises the lives of
most disabled people.
http://www.thehindu.com/todays-paper/tp-features/tp-sundaymagazine/article3590217.ece
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Avinash Shahi
M.A. Political Science
CPS JNU
New Delhi India
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