pasting below newly prepared document of suggestions for your perusal
folowed by a statement by sk rungta on today's activities.
Non-Negotiable Changes in
Draft Rights of Persons
with Disability 2013 Before Its Introduction In the Parliament
Sl No
Section
Suggestion
Justification
Alternative formulation
1
2 (q)
Amend definition of persons with disability in keeping with UNCRPD definition
The present definition is not in conformity with the definition given
in UNCRPD as it does not include the phrase "in interaction with
barriers in the environment may"
SECTION 2 (q)
'Persons with disability' means a person with long term physical,
mental, intellectual, or sensory impairment which in interaction with
barriers in the environment may hinder his/her full and effective
participation in society on an equal basis with others
2
2 (j)
Amend definition of 'High support' to include requirement of support
Present definition omits the important aspect of requirement of
support for making independent and informed decision making
SECTION 2 (j)
High support' means an intensive support, physical, psychological and
otherwise, which may be required by a person with benchmark disability
for daily activities; independent and informed decision making;
accessing facilities and participating in all areas of life including
education, employment, family and community life and treatment and
therapy
3
2(v)
Change the term 'psychiatric' to 'psychological' in the definition of
'Rehabilitation'
The word 'psychiatric' used in the definition is misplaced and does
not convey the meaning.
SECTION 2(v)
'Rehabilitation' refers to a process aimed at enabling persons with
disabilities to attain and maintain optimal physical, sensory,
intellectual, psychological, or social function levels
4
3 (3)
Equality and Non discrimination
Omit discriminatory phrase in Equality and Non discrimination
The phrase '...unless it is shown that the impugned act of omission is
appropriate to achieve a legitimate aim,' is discriminatory and needs
to be deleted
SECTION 3 (3)
No person with disability shall be discriminated on the ground of disability.
5
12 & 13
Legal Capacity and Provision for Guardianship
Replace entire sections of Legal Capacity and Provision for
Guardianship with Article 12 of the UNCRPD formulation
The present provisions are not in line with the UNCRPD and therefore
it strikes at the very root of the objective of the bill.
SECTION 12 & 13
Article 12 of UNCRPD formulation to be retained for the aforementioned
provisions without any change
6
15
Duty of Educational Institutions
Duty of Educational Institutions to include all educational institutions
The present provision excludes the private educational institutions
not receiving funds from the Government, which is contrary to other
laws particularly RTE etc
SECTION 15
The appropriate Government and the local authorities shall endeavor
that all educational institutions recognized by them provide education
to children with disabilities and towards that end shall......
7
22 (4)
Appointment of Grievance Redressal officer
Amend Grievance Redressal
The remedy against the action taken by the grievance redressal
officer in terms of Subsection (1) is provided by way of complaint to
District Level Committee on disability, which has no control nor is
vested with adequate powers to deal with such complaints. Therefore
such a remedy is illusory and ineffective.
SECTION 22 (4)
If the aggrieved person is not satisfied by the action taken on his or
her complaint, he or she may approach the National Commission for
Persons with Disabilities or State Commission for Persons with
Disabilities as the case may be
8
25
Insurance Schemes
Insert a clause in Insurance Schemes
The preset provision does not provide any safeguard against refusal
to extend insurance policies on the ground of disability as well as
against discrimination in the matter of extending benefits and
charging extra premium on the ground of disability
SECTION
25 (1) No Insurance company whether private or public shall refuse any
insurance cover or policy on the ground of any disability and also
shall not charge any extra premium on the ground of disability and
also shall not refuse any benefit forming part of the given policy on
the ground of disability
25 (2) The appropriate government shall, by notification, make
insurance schemes for their employees with disabilities
9
32
Identification of posts for reservation
To be redrafted
The present suggested draft of this section links identification with
reservation and creates an impression that reservation is to be done
only with respect to the identified post. Such a situation in the
existing act also exists which came up for consideration of the
Hon'ble apex court in the case titled as Govt. of India Through
Secretary Vs. Ravi Prakash Gupta and UOI Vs. National Federation of
the Blind and their Lordships were pleased to hold that reservation is
independent of the identification and the identification is only for
limited purpose to utilized vacancies for filling up reservation by
giving appointment in such post
SECTION 32(1)
Every appropriate govt. shall identify posts which can be held by
respective categories of disabilities only for the purpose of using
the vacancies in such identified posts for making appointments of
respective category of persons With Disabilities against 1%
reservation for each of them as contained in Sec.33.
32(2)
For this purpose, every appropriate government shall constitute an
expert committee consisting of at least one representative of
respective DPO working in the field of each of the categories of
benchmark disabilities entitled to get the benefit of scheme of
reservation.
32(3)
It shall be obligatory upon every appropriate govt. to undertake
periodic review of the identification of posts at an interval of at
least every three (3) years to update the list of identified posts.
32(4)
Every appropriate govt. shall notify in the official gazette the list
of identified posts which may be used for appointment of respective
category of Person With Disability after his selection against the
reservation for his/her category of Disability.
32(5)
The notified list of identified posts shall be treated as an
illustrative list of posts which can be held by Persons With
Disabilities and not as an exhaustive list.
32(6)
No person with Disability shall be denied consideration for
appointment or appointment against any post which is not included in
the notified list of the identified post, if he is otherwise eligible
for such post as per the notified eligibility criteria for the same.
10
33
Reservation
To be redrafted
A true interpretation given to section 33 of the existing Act makes a
minimum of 3% reservation in the total No. of vacancies in the cadre
strength in an establishment whereas scheme of reservation as
contained in section 33 in the present bill is both self contradictory
and an attempt to dilute the existing right.
SECTION 33(1)
Every appropriate govt. shall appoint in every establishment such
percentage of vacancies not less than 6% of the total number of
vacancies in the cadre strength in each group of posts filled by any
mode of recruitment in the establishment for the following class of
persons with benchmark disabilities in the following manner:
Person with blindness- 1% of all categories of posts.
Person with low vision-1% of all categories of posts.
Persons with hearing and speech impairment- 1% of all categories of posts.
Person with locomotors disability including cerebral palsy, leprosy
cured and muscular dystrophy- 1% of all categories of posts.
Person with autism, intellectual disability and mental illness 1% of
all categories of posts.
Persons with multiple disabilities of combination of any two or more
disabilities detailed hereinabove from clause -1 to v including deaf
blindness.
Provided that National Commission for persons with disabilities or
State Commission for persons with disabilities, as the case may be,
may, having regard to the duties of the particular post in any
establishment, office or department exempt the recruitment to such
posts by notification from the purview of this section. However,
National Commission or State Commission for persons with disabilities,
as the case may be, shall review such a decision every two years.
SECTION 33(2)
The percentage of reservation and its distribution among different
categories of disabilities may be reviewed once every three years by
the National Commission for persons With Disabilities only for the
purpose of including more disabilities in the scheme of reservation by
simultaneously enhancing the percentage of reservation
proportionately.
SECTION 33(3)
Where in any recruitment year, any vacancy reserved for the aforesaid
classes of persons with disabilities and advertise as such could not
be filled up due to non availability of a suitable person with
disability in spite of the selection process having been under taken
to fill up the said reserved vacancy, such vacancy shall be carry
forward to next three succeeding recruitment years.
Section 33(4)
And if in third succeeding recruitment year also suitable person
belonging to the said class of disability is not available, it may
first be filled by interchange among the classes of persons with
disabilities entitled for reservation.
SECTION 33(5)
In the event of filling up vacancy reserved for a different category
of disability by interchanging the same, equal number of vacancies so
filled by interchange will be diverted to the category of disabilities
whose vacancies were filled by interchange from the reserved vacancies
for the categories of disabilities which benefited from such
interchange.
SECTION 33(6)
If the vacancy is not filled even after carrying forward the vacancy
and trying to interchange the same with other classes of disabilities,
the Employer may apply to National Commission for persons with
disabilities or State Commission for persons with disabilities, as the
case may be, for de- reservation of the given post, whose decision
shall be final.
It is hereby clarified for removal of doubts that the post sought to
be de reserved shall be kept vacant until the decision has been
communicated by the competent Authority on the application of the de
reservation.
SECTION 33(7)
The existing benefit in the area of employment including those
benefits available to the employees with disabilities such as age
relaxation in upper age limit, transport/ conveyance allowance etc.
shall not be curtailed by the appropriate Govt. in any manner
whatsoever. However, it would be lawful for the appropriate Govt. to
enhance the existing benefits for improving the status of employment
for persons with disabilities.
11
53 Act not to apply to institutions established or maintained by
Central or State Governments
To be deleted
By exempting the institutions run by Central or Stage Govt. from the
provisions of registration under this chapter, it may result into
compromise with the quality of services in such institutions and its
management becoming unregulated which is not correct.
Delete
12
57
Procedure for Certification
Insert a new section
Migrant population in many states face great difficulty due to the
Disability certificates that vary across states. Disability
certificates must be valid across the country
SECTION 57 (2) (b)
A certificate thus issued will be valid across states, boards and departments
13
61 (b) 67 (b) Disqualification
Delete existing clause on unsound mind
This provision recognizes the unsoundness of mind as a
disqualification for holding or continuing to hold the office of
member of Central Advisory Board and State Advisory Board whereas the
bill is premised on the legal capacity of all groups of persons with
disabilities. Thus, such a disqualification on that ground runs
counter to the spirit of the UNCRPD and the bill
SECTION 61 (b) & 67 (b)
Delete
14
73(2)
National Commission
To be redrafted
The chairperson of the commission has to be a person with disability
and clear stipulation should be made to that effect in the provision.
SECTION 73(2)
The National Commission shall consist of a chairperson who is a person
with disability with distinguished record of service of not less than
twenty five years in the field of disability, and two members with
distinguished record of service of not less than twenty years in the
field of rehabilitation, advocacy, law, management and technology
concerning disability matters:
Provided that out of the two members one member shall necessarily be a
person with disability ensuring representation to each category of
benchmark disability by rotation.
15
76 (1) (c) & 89(1) (c)
Removal of Chairperson and Members
Delete the clause
This provision disqualifies a person to hold the office in the
Commission on the ground of physical or mental incapacity, thereby
implying that certain benchmark disabilities would not be entitled to
be represented on this commission which is against the very spirit and
foundation of UNCRPD and the bill.
SECTIONs 76 (1) (c) & 89(1) (c)
Delete
16
83 Action of Appropriate Authorities on recommendation of National Commission
To be Redrafted
The present section dilutes the status of the directions and orders
issued by the existing enforcement mechanism in the form of chief
commissioner and the state commissioner for persons with disability,
and thereby further weakens the enforcement machinery
Section 83
Whenever the National Commission issues a direction to an authority in
pursuance of clause (b) of subsection (1) 0f 73 , that the authority
shall take necessary action on it and inform the Commission of the
action taken within 3 months from the date of receipt of the
recommendation:
Provided that where an authority refuses to implement the direction
issued by the National Commission or fails to implement it within the
prescribed period, the national Commission shall approach the head of
the department/establishment for ensuring the implementation of its
direction.
17
Addition of a new section in the form of section 98(A)
To provide for establishment of the Disability Rights Tribunal in
line with Industrial Tribunal
Section 98 of the Bill envisages a special court for trying the
offences under it of the level of sessions judge in each district.
However, the bill does not provide for seeking enforcement of rights
under the Bill in the form of a Tribunal. As such, the Bill does not
provide any judicial machinery for enforcement of rights under the
bill which are of civil nature.
SECTION 98(A)
Every appropriate Govt. shall establish Disability Rights Tribunal for
adjudication of the cases of deprivation and violation of rights
conferred under this Act or under any other law for the time being in
force or Rules and Regulations framed thereunder or facilities granted
through executive instructions or matters involving discrimination on
the ground of disability of any kind in every district.
18
104
Offences and Penalties
companies and establishment
Change 'person' and 'company' to 'persons, company, establishment',
and public servant
The proposed section does not provide for imposing penalty or
punishment on the Government authorities,companies and departments in
the contravention of any of the provisions of this Bill,though the
likely breach of the provisions is from the government authorities and
public servants.
SECTION 103
Any person, company or establishment who contravenes any of the
provisions of this Act, or of any rule or regulation made....
19
1 of the Schedule
Amend the definition of Autism Spectrum Disorder
The definition of Autism Spectrum Disorder as proposed in the bill is
conceptually wrong and incorrect
SECTION 1 of
SCHEDULE
'Autism Spectrum Disorder' means a neuro-developmental condition....
20
11 of the Schedule
Change of definition of low vision
The definition of blindness given in the Sec 2 of the Schedule
provides that if anyone has a vision not exceeding 3/60 or 10/200
(snellen) in the better eye. At the same time the definition of low
vision provides that if anyone has a vision not exceeding 6/18 or
20/60 and less than 6/60 or 20/200 (snellen) in the better eye with
correcting lenses, he may be certified as low vision. It implies that
a person could fall in both the categories at the same time and so be
certified both blind and low vision. The suggested draft of the
definition in question is in line with the WHO definition of low
vision.
SECTION 11 of SCHEDULE
"Low -vision" means a condition where a person has any of the
following conditions, namely:
Visual acuity not exceeding 6/18 or 20/60 and not less than 3/60 or
10/200 ( Snellen) in the better eye with correcting lenses."
Limitation of the field of vision subtending an angle of more than 10
and upto 40 degree
---------- Forwarded message ----------
From: Santosh Kumar Rungta <[email protected]>
Date: Tue, 28 Jan 2014 17:08:19 +0530
Subject:
To: Dipendra Manocha <[email protected]>, "National Platform
For The Rights of the Disabled (NPRD)" <[email protected]>, J L Kaul
<[email protected]>, "A.K. Mittal 2" <[email protected]>, K
Ramkrishna <[email protected]>, [email protected], Jo
Chopra <[email protected]>, Sayaji Hande <[email protected]>,
Dheepakh PS <[email protected]>, Reena Sen <[email protected]>,
[email protected], prateeksha sharma <[email protected]>,
[email protected], Goutam Agarwal <[email protected]>, Imran
Ali <[email protected]>, [email protected], [email protected],
[email protected], [email protected], J P Gadkari
<[email protected]>, Bhushan Punani <[email protected]>,
[email protected], [email protected], krishan pal singh
<[email protected]>, Nationalfederation Oftheblind
<[email protected]>, Deepak Tandiya <[email protected]>
Dear Colleagues,
As already informed, National Federation of the Blind has already started
its indefinite agitation against the introduction of the Bill without
necessary changes as suggested by a group of NGOs in the filed of
disability copy of which is also attached herewith. As a first step about
one thousand blind persons under the banner of National Federation of the
Blind held a demonstration outside Shastri Bhawan where Deptt. Of
Disability Affairs and Law Departments are located. The Federation has
also started its indefinite Dharna at Shastri Bhawan. I have already
outlined our entire agitation plan in my previous mail. However, for the
benefit of those who might not have received the earlier, let him inform
that we will continue to hold demonstrations every day at different places
including Prime Minister's house and also would start relay fast from
2ndof February and ultimately fast unto death by adding one person
daily from 4
th of February, 2014. We would organize strong protest demonstration
on 4thand 5
th February, 2014 and thereafter in which members of the Federation and
other activists are likely to take part in huge number. A delegation met
Hon'ble Kapil Sibbal Minster of Law and IT under the leadership of the
undersigned who has agreed to refer the Bill to the Attorney General for
his opinion. However this does not serve our purpose.
With regards
S.K. Rungta
Sr. Advocate &
General Secretary
National Federation of the Blind, India
--
Ajay Arora phd research scholar
Centre for the Study of Law and Governance
JNU
Nelson Mandela Marg
New Delhi India
Contact Mobile +91-8826360111.
email:
[email protected]
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