Please circulate.
*Comments on the Amendments to the Rights of Persons with Disabilities
Bill as presented at "RPD Bill 2013 - Question of Protection of Equal
Rights of Persons with Disabilities" at Jeevan Jyoti Hyderabad, on 8th
February, 2014*
Compiled by Prof. Amita Dhanda (NALSAR University), Amba Salelkar
(Inclusive Planet Centre for Disability Law and Policy), Pavan Muntha
(Swadhikaar)
Last night, the Ministry of Social Justice and Empowerment notified a
list
of amendments which were to be carried out on the Bill as introduced in
Parliament yesterday at noon. The Hon'ble Minister did not make any
mention of the Amendments while introducing the law as seen from the
Rajya
Sabha transcripts, but it is reported that there was a Cabinet Meeting
on
6
th February 2014 for the purpose of discussing proposed Amendments to
the
Bill.
The Amendments are as follows, as seen from
http://pib.nic.in/newsite/erelease.aspx?relid=103259
- *Definition of person with disability in terms of interaction with
barriers also;*
This is in line with the UNCRPD definition. Disability is recognized to
be
a social construct, which occurs not because of a person's impairment,
but
because of barriers which exist which prevent their full and equal
participation in society.
Merely changing this definition changes absolutely nothing without a
legislation that removes these barriers. This law in fact reinforces
barriers like guardianship, identification of jobs etc. which are
legislative barriers.
- *High support needs person enabled to take independent and inform
decision also (sic)*
*Note: We assume this means "person with high support needs" to include
persons who require high support to take independent and informed
decision
also.*
Persons with high support needs are subjected to the procedure under
Section 37 of the Bill where any person with benchmark disability, who
considers himself to be in need of high support, or any person or
organisation on his or her behalf, may apply to an authority requesting
to
provide high support, which in turn is to forward the request to the
Assessment Board. There is no legal requirement for a hearing or even
considering the request of the person with benchmark disability. In a
sense, because of the inaccessibility of everything - all persons with
benchmark disabilities come under the category of persons with high
support
needs, and even the sensory impaired persons require "high support" to
take independent and informed decisions e.g. materials in accessible
formats etc. Therefore, the Assessment Board can impose conditions on
the
exercise of legal capacity by these persons also.
- *Definition of low vision will be notified by the Government*;
No comment as no clarity.
- *The appropriate Government to take necessary steps to ensure
reasonable accommodation for persons with disabilities*;
The problem in the Bill is the recurrence of the use of the term
"appropriate environment" instead of "reasonable accommodation". This
may
be one section, but it is subverted throughout the rest of the Bill.
- *No person with disability will be discriminated on grounds of
disability*;
We would require to see the exact wording of this Section to ensure that
there is no clause similar to the one which existed in the Bill which
allowed for discrimination on the grounds of a legitimate aim. The
definition of "discrimination on the ground of disability" is a specific
term defined under the UNCRPD, which is not included under the Bill.
- *Appropriate Governments to ensure that the persons with disabilities
enjoy legal capacity on an equal basis with others, in all aspects of
life
to have equal rights as any other person before law*;
What is required is a definitive statement that all persons with
disabilities have legal capacity. In fact, this is the true position
under
Law, and so why this position is being modified is impossible to
comprehend.
- *Recognizing legal capacity of person with disability, limited
guardianship would be the norm, to enable the person with disability to
take joint decision with legal guardian;*
Limited guardianship is defined as a system of "joint decision making".
However, the use of the term guardianship is contradictory to the
principle
of legal capacity, especially if it is to be "the norm". In case of a
conflict of interest, the Bill says that a support structure may be
discarded - but in case of a conflict of opinion, there is no redressal.
More importantly, the UNCRPD talks about recognizing legal capacity and
the
need to provide safeguards, which is still in question under this Bill.
- *Person with disability would also have the right to appeal against
the
decision of appointment of legal guardian;*
A person with disability has no ability to appeal decisions taken on
their
behalf by a guardian. Clearly, if person with disability can express
displeasure regarding the appointment of a guardian for them, the person
is
able to exercise legal capacity.
*- Disability Certificate to be valid across the country;*
Existing disability law from 1995, and the amended rules from 2002
already
recognize the "applicability for all purposes" of the disability
certificate. The real issue faced with regard to certification is at the
level of implementation, and the constant need to renew it every 3-5
years,
even in cases of permanent disabilities. The process is arbitrary and
excruciating, and inter-state recognition is not sufficient, by any
means,
and means very little for PWDs who remain with their families in their
hometowns/villages, or even those staying away who have to keep
returning
for renewals to their domicile District.
- *Educational institutions funded and recognized will have to provide
inclusive education for children with disability;*
This is a proposed amendment of Section 15. This doesn't help children
with more than 40% disability, who enter into the realm of "special
provisions for children with benchmark disability" in Section 30. A *non
obstante *clause excludes the provision of the Right to Education Act,
2009, and children can be denied inclusive education and be sent to a
special school "if necessary" - to be apparently deemed by the State,
and
not the parent, or child herself, which violates the UNCRPD and the
Universal Declaration of Human Rights.
- *The appropriate Governments to constitute to expert committee with
representation of persons with disabilities for identification of posts
for
Government employment for persons with disabilities;*
The Hon'ble Supreme Court set aside the interpretation of the 1995 Act
which allowed for reservations only within identified posts. It also
overturns the same Judgement which says that legislative intent is
clearly
to include even private establishments by a conjoined reading of Section
33
and 41 of the 1995 Act with the definition of "Establishments". The very
concept of reservation of posts for persons with disabilities is against
the spirit of the UNCPRD which empowers persons with disabilities to
employment commensurate to their qualifications, and removes barriers by
the provision of reasonable accommodation. The fact that there are token
members of the Committee with disabilities is not making it better.
*- Review period shortened from 5 years to 3 years in case of identified
posts;*
This still doesn't solve the problem, also, there is no provision for
appealing the decisions of this committee which identifies posts.
*- 5 per cent vacancies reserved for persons with disabilities will be
computed against the total number of vacancies in the cadre strength;*
The Explanation to Section 33 already provides for this: "For the
purpose
of this section, the computation of reservation of vacancies for the
persons with benchmark disabilities shall be computed on five per cent,
of
the total cadre strength."
*- National Commission and State Commission will have power to exempt
any
post in an establishment from the purview of reservation for persons
with
disabilities;*
Though this improves upon exemption of entire establishments it still
perpetuates the discriminatory practice of blanket exemptions of posts
for
all persons with disabilities.
*- For greater coverage and employability in Government sector, the
appropriate Governments to prescribe relaxation for upper age limit for
employment of PwDs;*
Section 33 (3) already provides that the appropriate Government shall by
notification, provide relaxation of upper age limit upto five years for
employment of persons with bench mark disability. Does this Section
further
amend that? It is not clear.
*- National Commission shall formulate and enforce regulations.*
This is not clear. If this is regard to accessibility, it still limits
the
scope only to Establishments. The Section 39 now reads: National
Commission
shall, formulate regulations for the persons with disabilities laying
down
the standards of accessibility for the physical environment,
transportation, information and communications, including appropriate
technologies and systems, and other facilities and services *provided to
the public *in urban and rural areas. Those provided by private entities
are not included under this provision. In any case, with regard to
transport, the provisions are geared towards preventing accessibility
(see
below). There is no deadline for framing these regulations, so the
question
of enforcing these is a huge question mark. Even imposing a fine of Rs.
50,000 as provided for under the Bill is pointless if there are no
regulations to adhere to.
On Fri, Feb 7, 2014 at 1:36 PM, Amba Salelkar <
[email protected]> wrote:
Quick update: two sources have confirmed that the Bill was introduced
in
the house, to a huge ruckus and it was almost immediately adjourned.
Prior
to adjournment, Shri. Yechury took strong opposition and asked that the
Bill be referred to the Standing Committee or Select Committee, and the
Deputy Chairman of the House said that the same could be considered by
the
Chair once the House reconvenes at 230pm.
Since the Bill is introduced I assume it becomes a public document so I
request our friends in Delhi, if they can, to obtain the same and put
it
out to us. As of now, I have no independent source informing me of the
contents of the Bill as introduced.
---
Inclusive Planet Centre for Disability Law and Policy
12/21, Custain Beach Road,
Santhome, Chennai,
INDIA 600004
+914424611313
----
www.inclusiveplanet.org.in
On Thu, Feb 6, 2014 at 11:14 PM, Amba Salelkar <
[email protected]> wrote:
This is to update you with some news about the Bill I received via
phone
call from Mr. Javed Abidi just now. I'm assuming since this is on
facebook
(I am not on facebook so I do not know) I can share it here for those
like
me who are social media challenged.
Mr. Abidi said that his amendments were "broadly" accepted, and he
said
that the Bill was being introduced in the Rajya Sabha tomorrow. The
proposed introduction of the Bill appears to be true,
http://164.100.47.5/newlobsessions/sessionno/230/R070214.pdf
We did not get a chance to discuss each and every section, but since
he
called me with the specific point of legal capacity, I asked him to
tell
me
what the Cabinet had decided upon. On my request, he read out some of
the
amendments to me.
With regard to legal capacity, he read out the amendment of Section 12
which was to include the line of "all persons with disabilities have
the
right to legal capacity on an equal basis with others and shall be
recognized as persons before the law" with the other sections of law
With regard to Section 13, he also said something to the effect that
"not withstanding anything contained to the contrary in any law, a
district
court can order for persons with high support needs who cannot
exercise
legal capacity after being given requisite support to be given limited
guardians and in some cases plenary guardians". All plenary guardians
in
existence at the time of coming into force of the Act will be limited
guardians. Other provisions include the appropriate government and
designated authorities being empowered to make rules for the exercise
of
legal capacity.
Apparently the other changes in the non negotiables have been broadly
implemented, which apparently he discussed on facebook.
Personally I would like to see the copy of the Bill. We have been
misled
in a similar situation in December/January, and I would like to see
the
final bill before making any comment. Regardless, the 20 non
negotiables
were not sufficient to address the concerns in the Bill, as I have
pointed
out time and again to members of the joint forum as well. Mr. Abidi
told
me
that it would be a public document after being tabled in the Rajya
Sabha
and then it would be easy to get access to it. Till I receive a copy
of
the
Bill, however, I am working on the presumption that it is the
unamended
draft which is being introduced in the parliament.
The Inclusive Planet Center for Disability Law and Policy is a cross
disability organization, looking at the rights of persons with
disabilities
across the board, and while we feel strongly on the point of legal
capacity, we feel as strongly for all of the other blatant infirmities
under the law which effect all persons with disabilities. Ours is a
non
partisan research organization. I still strongly feel that the Bill
needs
to be reconsidered in its entirety. While I look forward to reading
the
amendments, the issue is that the entire approach of the Bill is
flawed,
and a few changes here and there will not solve any problems.
For example, with regard to high support needs - persons who fall
under
the category of high support needs can have their support systems
decided
for them by an Assessment Board. The Assessment Board is not obliged
to
hear the person with disability. If I recollect the formulation
explained
by Mr. Abidi correctly, I still find that the "support systems" for
persons
with disabilities are still to be decided for them. It's not a
question
of
arguing semantics and nitty-gritties, the point is that the manner in
which
this plays out in real life is what leaves much to be desired. At
best,
again, the amended bill is just 20 changes, many of them being one
word
substitutions which, like legal capacity, conflict with other sections
of
this very complicated Bill. Of course, Mr. Abidi pointed out to me
that
the
Law Secretary himself signed off on these changes, so I guess I should
defer to that.
The 7th of February marks the death anniversary of my friend,
philosopher and guide, Rahul Cherian. One of the most important
lessons
he
left me with was that we need to be transparent ourselves if we expect
transparency from others. Therefore, I am sharing this with everyone,
as
I
attempt to share all information I get, or further steps I take,
however
insignificant it may be.
That said, I think the introduction of this Bill on the 7th of
February
would be rather cruel.
Best regards,
Amba.
---
Inclusive Planet Centre for Disability Law and Policy
12/21, Custain Beach Road,
Santhome, Chennai,
INDIA 600004
+914424611313
----
www.inclusiveplanet.org.in
On Tue, Feb 4, 2014 at 9:51 AM, Amba Salelkar <
[email protected]> wrote:
In the meanwhile someone forwarded this to me, for comment, I believe
it is off Facebook.
"NEW DISABILITY RIGHTS BILL UPDATE; 3RD FEBRUARY: After extensive
discussions with the powers that be, the following issues were
satisfactorily addressed today: (1) Definition of persons with
disability;
Section 2(q): "which in interaction with barriers in the environment
may"
restored. (2) Definition of High Support; 2(j): "independent and
informed
decision making" restored. (3) Section 2(v): In the definition of
Rehabilitation, the word psychiatric replaced by the word
psychological.
(4) Definitions of Autism and Low Vision also corrected as demanded
by
the
sector/subject experts. (5) Equality and Non discrimination; 3(3):
The
word
appropriate replaced by the word proportionate. (5) Section 15 on
Duty
of
Educational Institutions: The word funded replaced by the word
recognised
and that would prove to be a game changer! More good news will
hopefully
follow tomorrow. Watch this space"
