forwarded message begins: Download the original attachment All India Disability Alliance Plot No. 21, Sector-VI, M.B. Road,
Hon. Coordinator: Sr. Adv. Shri. S. K. Rungta Pushp Vihar, New Delhi - 110017 Mob: 9312607540 Phone: 011-29562316, 29562318 Fax : 011-29564198 [email protected] Dated: 24.2.14 To Hon'ble Smt. Sonia Gandhi Chair Person UPA New Delhi Subject: - Reconsideration of declaration made by Hon'ble Rahul Gadhi to promulgate ordinance in respect of rights of persons with disabilities Bill 2014 pending in Rajya Sabha and referred to Standing Committee. Madam, The majority of persons with disabilities and their organizations were shocked and anguished by the declaration made by Shri Rahul Gandhi that an Ordinance will be promulgated to bring into force Rights of Persons With Disabilities Bill 2014 which is pending consideration by the Standing Committee after introduction in Rajya Sabha. Various vital issues having been raised against the provisions of the Bill by all major disability organizations. Such a declaration seems to be result of misrepresentation of the position of disability organizations and persons with disabilities by a small group under the banner of DRG in the leadership of Mr. Javed Abidi who is now claiming that due to his proximity with Your goodself, he has been able to persuade for promulgation of an ordinance to give effect to the flawed bill on the rights of persons with disabilities pending in Rajya Sabha. We are aware that you have always stood by the call of persons with disabilities and have never been a party to the curtailment of their rights and to support any legal provision or policy which may perpetuate discrimination on the ground of disability. As an alliance of disability organizations we have also submitted to the Govt. a memorandum detailing some vital issues which have the effect of nullifying the existing rights in the existing legislation as well as legitimizing discrimination which the disability community cannot accept. Some of these issues include : Postponement of inclusion of definition of low vision Non-inclusion of definition of languages to include sign language which was earlier included in the draft of 2011 and which is very essential for hearing impaired persons. Section 3(3) Non discrimination: the only amendment which has been made is to retain the power with the Executive for discriminating against the disabled but the ground has been changed on which such discrimination is justified viz. if it imposes disproportionate burden. However this disproportionate burden has not been defined in the Bill which will make things arbitrary and unguided. Access to Justice : (Section 11) There is no provision for recognition or even mention of requirement of sign language, interpretation or recognition of sign language while exercising right to access to justice which is very crucial for persons with hearing impairment. Legal capacity (Section 12 & 13): The Bill by the recent amendment only recognizes the right to be treated alike and equality before law but at the same time negates this right to intellectually disabled and mentally ill persons by allowing the application of other laws to the provisions of this law also in terms of section 110. This would imply that acts such as Indian Contract Act, Indian Evidence Act or other Acts having exclusionary or negative clauses about competence of persons with disabilities would apply simultaneously nullifying the provision of the proposed Bill. Further, the Bill provides for an appeal against the appointment of guardian but no appellate forum has been prescribed making this provision redundant. Non discrimination in employment: (section 19(1) : This section prohibits discrimination against any person with disability in any matter relating to employment but circumvents this non-discrimination clause by proviso giving authority to the Govt. to exempt any 1establishment from this section in view of the type of work carried on in that establishment. This is a clear attempt to circumvent fundamental right of equality of opportunity in the matter of employment guaranteed UA 16(1) of the Constitution of India and therefore cannot be allowed to remain. Insurance Scheme (Section 25) : There is no provision with regard to non-discrimination in the matter of insurance coverage premium and policy benefits. Identification of Post for reservation (Section 32) : Linking identification with reservation is contrary to the recent supreme court judgment and therefore the formulation submitted by us should be accepted. Reservation (section 33) : In this the formulation given by us should be accepted. Further U/S 33(2) the carry forward and interchange rule should be made applicable strictly in accordance with the O.M. Dt. 29.12.2005. Further, the proviso to sub section 2 of section 33 giving right to the appropriate Govt. to interchange the percentage of reservation among five categories by diverting the reservation in favour of one category to other keeping in view the nature of vacancies should be deleted. Otherwise, it will apply against the interests of severely disabled. Accessibility (Section 39) : It provides after amendment the powers to enforce Accessibility Regulations to National Commission but there is no mechanism nor procedure to enforce them. Section 53: This section excludes the institutions of persons with disability established or maintained by the Central or State Govt. from the Registration and Regulations which is unacceptable. National Commission for persons with disabilities: The earlier suggestions have not at all been attended and we reiterate the same. Section 98: The Bill does not provide for any Tribunal or any other judicial forum for remedy against violations of rights granted in the Bill. Offences and Penalties: We strongly oppose section 108 which requires a previous sanction of the Govt. before any court could take cognizance in the event of an offence alleged to have been committed by an employee of the Govt. Such a stipulation gives a kind of immunity to the public servants to violate the provisions of this Bill. Further, the Bill does not contain the provision in the existing Act which makes reservation in all poverty allevitaition programmes for persons with disabilities. While promoting discrimination across the Board, the Bill also fails to acknowledge the specific forms of discrimination which are perpetuated against women and children with disabilities, and the need for the twin track approach in addressing these, as well as the intersection of caste and disability. The provisions with regard to protecting the rights of women and children with disabilities is unaddressed under the Bill. The right to recognizing the evolving capacity of children in taking their own decisions relating to their lives, including their right to choosing their mode of education, is denied under this Bill. This Bill also clamps down on reproductive rights of women with disabilities. Only "medical procedures which lead to infertility" are barred under the Bill (as opposed to procedures or medications which may lead to infertility or impact sexual health), and there are inclusion of provisions like Section 106 (f) which permits women with "severe disabilities", which is undefined under the Bill, certified by a Registered Medical Practitioner, to be subjected to abortions even without their consent. There is also conditional freedom of liberty granted under the Bill under Section 3 (4), which provides for no deprivation of liberty only on the grounds of disability - but which therefore allows for deprivation on the grounds of associated conditions, like destitution and tendency for self harm, a formulation which was specifically objected to in UNCRPD drafting Sessions. This will continue to encourage unnecessary and involuntary institutionalization, which is not specifically barred under the Bill. There is no respect for the integrity of the person with disability: a decision on what "high support needs" Persons with "Benchmark" Disabilities may require is left entirely to the discretion of an Assessment Board under Section 37, which can be moved by any person on behalf of the person with disability, even without the consent of the person who it is meant for, and with no obligation to consult the person or respect his or her wishes. Persons with Disabilities are kept away from the private sector: be it through denial of reservation in non-government employment, or by the limitation of accessibility provisions only to Government buildings- as the definition of "Establishments" exempts the responsibility of the Private sector towards persons with disabilities. >From the above it is clear that the move to promulgate ordinance to give effect to the pending flawed (rights of persons With Disabilities Bill 2014) before Rajya Sabha and referred to the Standing Committee to replace the existing The Persons With Disabilities Act 1995 is not only detrimental to the existing rights of persons with disabilities but would legitimize discrimination on the ground of disability. In case the Govt. decides to go ahead with this move, this would be a clear example of abuse of power U/A 123 of the Constitution of India. This declaration has shakened our fate in the party and its leadership. We therefore request your honour to intervene and ensure that no such is promulgated which otherwise also is unconstitutional. In case, the Govt. wants to extend benefits in the existing Act to those disabilities which are not included in the existing Act but are included in the proposed Bill pending in Rajya Sabha, Govt. may bring in an ordinance to include other disabilities within the definition of the "persons with disabilities" as contained in Section 2(i) of the Persons With Disabilities Act, 1995. Thanking you, Yours sincerely, S.K. RUNGTA Coordinator Dated: 25.2.14 Dear friends! Here is the latest update on developments regarding the RPD Bill. The All-India Disability alliance has intensified its campaign to stall the promulgation of the RPD Bill through the ordinance route. As a part of the said campaign, the alliance held demonstrations at 10 Janpath in front of Congress President Mrs. Sonia Gandhi's residence as well as at Akbar Road in front of the Congress office yesterday. Opposing any prospective move to promulgate the RPD Bill in its present form, the demonstrators expressed the view that in case the Govt. is keen to promulgate the Bill through ordinance apparently in order to include the categories of persons with disabilities left out of the purview of the Current PWD Act, it could do so by amending the extant PWD Act; rather than by promulgating the RPD Bill in its present form which, inter alia, seeks to legitimize discrimination against persons with disabilities. Congress Treasurer Mr. Motilal Bora and Dr. Jay kumar, Secretary AICC met me yesterday in the wake of the said demonstrations. Mr. Motilal Bora assured me that if at all any ordinance is brought in, it will, as demanded by the All-India Disability Alliance, only be for the purpose of amending the definition related Section of the current PWD Act so as to include persons belonging to those other categories of disabilities who are not covered under the existing provisions of the PWD Act. AICC Secretary Dr. Jay Kumar stated that no ordinance will be promulgated without the active concurrence of the All-India Disability Alliance. Sunday update On behalf of the said alliance, a delegation met Mr. V. Narayan Swamy, Minister of State in the PMO in Pondicherry who categorically stated that no ordinance is in contemplation of the Govt. in violation of established procedures. Another delegation of the National Federation of the Blind also met Mr. Rahul Gandhi in Dehra Dun, Uttarakhand on behalf of the Alliance and submitted a memorandum requesting him to ensure that the RPD Bill is not promulgated through the ordinance route in its present form albeit the Govt. may, in order to include persons belonging to some other categories of disabilities as stated above, may appropriately amend the existing PWD Act. Mr. Gandhi, after hearing out the delegation assured that whatever is in the best interest of persons with disabilities will be done and that he will look into the demand of the Alliance. Tuesday Update A delegation comprising of members of National Federation of the Blind met Smt. Sonia Gandhi in Rai Bareilly U.P. on behalf of the Alliance and submitted her a memorandum making similar demand of not promulgating the ordinance to give effect to the RPD Bill in its present form and instead, consider amending the existing Act so as to include other categories of disabilities not included in the present Act by amending the definition of "persons with disabilities". She assured the delegation that the Ordinance to give effect to RPD Bill in its present form which is pending consideration before the Standing committee of Rajya Sabha, will not be promulgated. Please find attached the memorandum submitted to Mrs. Sonia Gandhi on behalf of Alliance. Thanking you, Yours sincerely, S.K. RUNGTA Coordinator The AIDA is an Alliance of Organizations working on disability rights including: All India Confederation of the Blind, Deafenabled, Delhi University Physically Challenged Teachers Association, Human Rights Law Network, Indian Association of Special Education and Rehabilitation, National Association for the Blind India, National Federation of the Blind, PARIVAAR (National Confederation of Parent's Organizations for persons with intellectual and developmental disabilities), Rashtrikya Viklang Manch, Saksham, Handicapped Welfare Federation, Tamilnadu Disability Rights Alliance, Association of Challenged People and Bethany Society Meghalaya, Sambhavna -- Ajay Arora phd research scholar Centre for the Study of Law and Governance JNU Nelson Mandela Marg New Delhi India Register at the dedicated AccessIndia list for discussing accessibility of mobile phones / Tabs on: http://mail.accessindia.org.in/mailman/listinfo/mobile.accessindia_accessindia.org.in Search for old postings at: http://www.mail-archive.com/[email protected]/ To unsubscribe send a message to [email protected] with the subject unsubscribe. 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