friends good evening: please read this wich i got from another list k. srinivas. ----- Original Message ----- From: Rijul Kochhar To: Meenakshi Balasubramaniam Sent: Thursday, February 13, 2014 11:51 PM Subject: Re: Question
Hello all, I think the draft suffers from a number of lacunae that merit it's pause at this stage. These concern aspects of legal capacity, questions of identification of posts, non obstante clauses regarding education institutions, access in govt. establishments as opposed to ALL public spaces run by govt. or privately, recognition of sign language, etc. Amba has dealt with these in her "comments" and we should all read them in order to understand the phenomenal paucities in the bill, ad hoc amendments notwithstanding. Although inclusion of other disabilities within the ambit of the law is vital, we must be clear that this inclusion is not mere lip-service; that there are no other clauses in the bill that will take away with another hand what the law giveth with one hand. To my mind, there is one such clause major clause amongst others, a clause that underwrites and illustrates the bad-faith that is at the heart of the legislation (and the inglorious history of its genesis). This clause is section 3(3), and it states: (3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim We must all seriously contemplate the consequences of this clause. What stops an agency or establishment from perpetrating discrimination against somebody with autism, for example, or blindness, or thalassemia, for "achieving a legitimate aim", however feeble or puerile those aims may be? Legitimate aim can be another means for perpetuating discrimination, and this time it stands with the threat of affecting all varieties of differently disabled persons; this is the legal institutionalization of discrimination! We should be careful about being seduced by increase in quotas to 5% (when even the existent 3% quotas are not filled, out of omission or commission of discriminatory practices and attitudes at the level of implementation). Nor must we allow ourselves to be seduced by the promise of enlarged categories of disabilities receiving recognition on paper--when that recognition is effectively rendered null and void by other problematic aspects of the bill. Section 3 (3) is one such troubling aspect; there are others too, pertaining to guardianship, legal capacity, the reproductive rights of women, rights of parents to bring up children, rights of disabled children to families, the identification of posts (in contravention of the recent SC judgement opening up ALL places of work, something that all of us cheered not to long ago), etc. This list of problems, problems that threaten already secured rights through the courts, is indeed a long one, and needs time to be studied and ironed-out. Ove rnight declarations and celebrations of amendments make not a law, a law that will probably remain on the books for a few decades, and a law that will affect millions of citizens, not all of who are legally conversant, but all of who hope and dream with the understanding (faulty, i might add), that this is still their promised, cherished bill from 2011. The 2014 draft, sadly is not the 2011 draft, notwithstanding what millions of people think, and its passage will be a betrayal most colossal, and it will be unforgivable. Do we want to sign away in the same bill what we think has been granted to us? And lastly, if some amongst us claim (wrongly, i think), that disability is a non-political issue--which it is not, for it deals with fundamental questions about life, the body, the state, resources, autonomy and dignity, and equal treatment before the law--then why is it that we fear that the next party-political dispensation will lack the ability to pass this or an alternative legislation? I think we must wait, ponder, regroup, and demand passage of a fresh bill that is closer to the 2011 avtaar than to a mangled version of 2014. And we have the UNCRPD to thank, for a new law must be passed according to the convention's requirements, to which we have signed up. We must decide if what we want is seductive but ultimately illusory, or whether we need a legislation that arms us with the legal resources necessary for securing the rights of a few generations of disabled lives. For the law is only a law; the real battle will come with post-facto rules, which we must be very careful about, and those rules will be effective only if we have a legislation that does not allow discriminatory interpretations. What we need is not an ad hoc law, for we already have that from 1995; we need now a legislation that has other aims--recognition of more disabilities is certainly one such worthy aim, but we must be careful that this recognition is not immediately rendered ineffective by other provisions of the bill. Section 3(3) is one such provision set deep in the heart of the bill, and it will be thorn in the years to come. What we need is more time for deliberation, to guard against overt and covert discrimination in the effecting of the law. Only then, and by those means, can we be fair to the largest number of the disabled in this country. Holding forth illusory promises while approving a wishy-washy legislation may calm our collective consciences, but this kind of legislation will only go on to wound the disabled, and individually, as they confront the law at various stages in their lives. Best, Rijul On 14 February 2014 11:51, Meenakshi Balasubramaniam <[email protected]> wrote: Dear Ms. Vibha, Greetings! This is the same question we are also asking. How long should people with disabilities wait for the Government of India to acknowledge that they are people with disabilities and that their rights are respected, protected and promoted? We should all take responsibility to push the Government for a better Law in lines with UNCRPD. We cannot just be happy with a list of 19 conditions in the bill even after 4 years of ground breaking work collectively or even if it has been the hard work of only very few people. Based on the primary census data announced last December, at the National level, the data captured under the category "Any Other" constitute 20% of the population of persons with disabilities. This is next only to people with difficulty in movement and people with visual impairment. At the State Level, for example in Tamil Nadu, we find the number to be as high as 20%, which is next only to people with locomotor impairment. Given this background, no body knows the impairments that are covered under this category. "The condition for marking the category "Any other" was that " If a person could not identify themselves with the rest of the categories mentioned in the question". None of us, even the Government / committee has not done enough research to get at least this data, while listing impairments. By this list we leave a large number of people with disabilities, MPS, LSD, interactable epilepsy etc.. just to site a few (limited to my knowledge), out of the purview of this law. My friend who is a psychotherapist shared the ICF classifies atleast 3000 conditions, and all of them should be a part of this law. How do we challenge? Neither the people in the movement nor the Government, through its various specialized bodies, have done any research in this area. This leaves all of us with question Why should some be more equal to others? When the Constitution of India is silent with respect to persons with disabilities, this bill is envisaged to be our Constitution. This may take time / or may not, but this cannot be discriminatory, divisive and regressive even for its own specific group. These are my views. Thanks & Regards Meenakshi.B On Fri, Feb 14, 2014 at 9:23 AM, Vibha Krishnamurthy <[email protected]> wrote: Dear All There have been many threads to this conversation ( as there should be in an issue as important as this one) but I cannot see the answer to a very key question. If this law, flawed as it is, goes back to the drawing board how long will it take to table a new one? Is it worth accepting the ' bird in hand' for the sake of those who are excluded from the 1995 Law, but included in this one in the interim? Of course we cannot stop lobbying for the changes that need to be made. I do not think there is ANY debate over the fact that this version is far from perfect for multiple reasons, but the question of how much longer some disabilities will remain left out needs to be answered. There are many experienced people on this list who have been advocates and influenced policy and I look to you for your thoughts best Vibha Vibha Krishnamurthy MD Medical Director Ummeed Child Development Center Ground Floor, Mantri Pride 1-B, 1/62 N.M. Joshi Marg Lower Parel Mumbai 400 011 Email - [email protected] www.ummeed.org On Thu, Feb 13, 2014 at 12:39 AM, Pavan Muntha <[email protected]> wrote: Hello everyone, I had some concerns with regard to the Rights of the Deaf under the Bill which have been clarified by the former Director, Ali Yavar Jung National Institute for the Hearing Handicapped (AYJNIHH). I am posting it for reference of all. My concerns are the following where I need clarification from the experienced leaders of the movement who believe in the cross disability perspective: a. The former Directors observations reflect the dereliction of faith in MSJE which is responsible for proposing such amendments without caring for the issues of users of sign language and the deaf culture b. Can we now believe that the MSJE is democratic/inclusive in nature in response to the recommendations made by the Sector that is asking for fair hearing? Pavan. ---------- Forwarded message ---------- From: rangasayee2002 <[email protected]> Date: Tue, 11 Feb 2014 16:57:42 +0530 Subject: Reply to With regard to the Deaf...see comments after respective paragraph To: "[email protected]" <[email protected]> > The question is whether or not the Rights of Persons with Disabilities Bill > makes a difference to persons with disabilities who are deaf, and hearing > impaired. > > The *United Nations Convention on the Rights of Persons with > Disabilities *creates > specific recognitions and rights for persons from the dead community. Sign > Language is recognized as a language in itself - not as a substitute to > communication, or as a substitute to conventional language. *"Language" is > defined to include spoken and signed languages and other forms of** non > spoken languages.* In addition, under Article 30, *persons with > disabilities are entitled, on an equal basis with others, to recognition > and support of their specific cultural and linguistic identity, **including > sign languages and deaf culture.* > > The *Constitution of India* recognizes eighteen languages as "scheduled > languages" > (listed in Schedule VIII, Articles 343-51) while those languages not > included in the > scheduled eighteen are listed as "minority languages". The Constitution does > not provide a clear criterion for defining minority languages, neither is > "language" defined. Article 29 of the Indian Constitution allows for any > section of the citizens residing in the territory of India or any part > thereof having a distinct language, script or culture of its own to have > the right to conserve the same. > > Since even the General Clauses Act does not define what language is, it is > of utmost importance to the deaf community for this Bill to have a > definition of language which must include signed languages. There must also > be recognition of deaf culture, which has a long history in India, and > therefore scope for its promotion and preservation. COMMENTS :-THE DEFINITION OF SIGN LANGUAGE SHOULD FIND PLACE.SIGNED LANGUAGE AND SIGN LANGUAGE ARE TWO DIFFERENT LANGUAGES.THE SIGNED LANGUAGE FOLLOWS THE GRAMMAR OF THE SPOKEN LANGUAGE WHILE THE SIGN LANGUAGE HAS ITS OWN GRAMMAR. > > The Rights of Persons with Disabilities Bill omits the definition of > language which exists under the UNCRPD. Even with its definition of > Communication, the Bill fails to recognize sign language as a means of > communication. The definition uses the word "signs", which is misleading, > especially since it is used just before "large print". The inclusion of > sign language is therefore in doubt. COMMENTS- Agree with the apprehension. > > One may argue that the Bill being silent about the status of sign language > could lend credence to the possibility that it is not excluded. However - > Section 16, which deals with the appropriate government's duties with > regard to inclusive education, obliges appropriate governments to: > "*promote the use of appropriate augmentative and alternative modes > including* means and formats of communication, Braille and *sign language > to supplement the use of one's own speech to fulfill the daily > communication needs of persons with speech, communication or language > disabilities and enables them to participate and contribute to their > community and society*" > > Thus, the Bill, quite wrongly, identifies sign language as an Alternate and > Augmentative Communication method This Section could also be read as > limiting Sign Language to a supplement to the use of one's own speech. Both > of these statements clearly indicate that Sign Language is not recognized > as a language in the true sense of the term under the Bill, and therefore > by excluding the definition of language and by writing in such a provision, > the Bill clearly departs from the position of the UNCRPD that Sign Language > is to be recognized as a language and treated so. Comments:- The AAC and sign language are two different languages used by different groups of end users.Therefore,suitable accommodation is required. > > With regard to culture, the Bill has an elaborate Section 28 which deals > with culture and recreation. The focus of the Bill is to include persons > with disabilities into mainstream culture by making mainstream culture > accessible to them. However, there is no provision to recognize deaf > culture, as is provided for under the UNCRPD. Thus, there is complete > disregard for the Deaf community. Comments:- Studying the Deaf culture and facilitating its growth are priority activities in ensuring the rights of the members of the Deaf community. > > The Bill also threatens to change the position under the 1995 Act with > regard to employment. Under the 1995 Act as well, the hearing impaired were > being given 1% reservation. Under the new Bill, the protection of this > category is threatened by Section 33 (2) which says that where if the > nature of vacancies in an establishment is such that a given category of > person cannot be employed, the vacancies may be interchanged among the five > categories with the prior approval of the appropriate Government. Since the > appropriate Government is obliged only to provide "appropriate environment" > and not "reasonable accommodation" under Section 19 (2) of the Bill, and > since discrimination on the basis of disability is permitted under Section > 19 (1), as well as identification of jobs for persons with disabilities > under Section 32, the employment provisions seem rife for marginalizing the > Deaf in particular. Comments:- EQUALITY BEFORE LAW IS THE PREMISE TO BE ADHERED TO. > > Besides this also, the new Bill creates a new set of fetters for PWDs under > it which is very disturbing. > > > As a child with more than 40% disability, you can be excluded from the > protection of the Right to Education Act, as amended in 2012, and your > right to inclusive education be left to the discretion of the Government, > as you can be sent to a special school "if necessary" (Section 30). As a > woman, your pregnancy can be terminated against your wishes if a registered > medical practitioner gives a go-ahead, solely on the ground that you have a > "severe disability" (undefined under the Bill - Section 106 (f)). And if > you have more than 40% of any disability, anyone, on your behalf, can move > an Assessment Board to decide and impose upon you the means of high support > they deem you require - with no requirement to hear you or respect your > wishes (Section 37). COMMENTS:-I am ignorant...no comments. > > In all of the facts and circumstances, we are of the belief that while the > Bill is flawed for all persons with disabilities being brought under it, it > is especially disrespectful and inconsiderate of the diversity that the > Deaf community has to offer society. > > Best regards, > > Pavan Muntha Time to meet up again! 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