All I am pasting here an interesting perspective on the standing committee report. Read on. Harish Kotian Quoting:
Parliamentary Standing Committee's Report on Rights of Persons with Disabilities Bill-- some Positives and Negatives By Prasanna Kumar Pincha, Former Chief Commissioner for Persons with Disabilities Government of India This brief write-up makes a modest attempt to identify some examples of positives and negatives including some glaring contradictions and silences in the Parliamentary Standing Committee's report on RPD Bill. The write-up has been divided in to four segments, namely, part one, part two, part three, and, part four respectively. Part one makes some prefatorial observations; part two briefly alludes to and enlists some positive aspects of the Committee's recommendations; likewise, part three, gives some illustrative examples of negative aspects of Committee's recommendations including references to some glaring contradictions and silences; part four contains the concluding remarks. Part one Prefatorial Observations I must begin by congratulating and complimenting the Standing Committee not just for tabling its report on RPD Bill before both houses of Parliament on seventh of may 2015; but also for making a commendable effort to improve the Bill in the larger interests of Persons with Disabilities. While it is true that the Standing Committee's report also contains some highly disturbing, regressive and negative recommendations, this does not in any way, take away from the fact that the intentions of the Committee have throughout been bonafide and above board. My quick and cursory reading of the report leaves me thoroughly persuaded that the Committee certainly deserved better guidance from its officials including from the Department of Empowerment of Persons with Disabilities than it actually seems to have got. The Committee's failure to internalize the current and progressive narrative of disability is comprehensive and is also evident from a number of negative recommendations which, for example, talk of equating disability with certain ailments, such as, diabetes type I, blood cancer and kidney failure; or for that matter recommendations pertaining to changing the title of the proposed legislation in a manner that it actually will become more patronising if the said recommendation is accepted by the Government and the Parliament. Another sorry spectacle is that some civil society group or groups have already plunged in to a race of competing for credit hunting when they lost no time in claiming, contrary to facts, that almost all their recommendations have been accepted by the Committee. My own sense is that the Committee must have done its best to elicit views, comments and suggestions from all stakeholders and must accordingly have finalised the set of their recommendations. Besides, it is also likely that same or similar suggestions in certain matters must have been received by the Committee from various quarters. This explains why my humble advice to these credit-mongers and fame-hunters is that at least for now, they will do well to focus their creative energies in getting the best possible piece of legislations for Persons with Disabilities. Let the good be not the enemy of the perfect. Part two Positive aspects Following are examples of positive aspects of the Committee's recommendations: 1 insert definition of "Discrimination on the basis of Disability" as this expression occurs in the Bill in several places. The Committee has further favoured formulation of definition of the said expression on the lines of the United Nations Convention on the Rights of Persons with Disabilities [UNCRPD]. This recommendation is of enduring significance as it will have far-reaching implications for Persons with Disabilities. 2 recast section 3.3 of the Bill: another recommendation of enduring significance is the Committee's view that section 3.3 should be recast as it is likely to infringe on the fundamental rights of Persons with Disabilities in its present form. It goes without saying that this provision, as it now exists in the Bill, will provide a handle/license to officials to discriminate on the basis of disability, more particularly, in the face of the fact that the question as to what constitutes "Legitimate End" is highly subjective and has neither been defined nor explained anywhere in the Bill. The said section 3.3 states that no person shall be discriminated against on the basis of disability unless it is shown that the impugned act or omission is aimed to achieve a legitimate end. 3 modify definition of "Reasonable Accommodation": the Committee rightly recommends that the definition of "Reasonable Accommodation" be modified in a manner so as to make it incumbent on the concerned authorities to provide reasonable accommodation upto the maximum of its available resources. The Committee has accordingly also suggested deletion of the "Disproportionate Burden" clause as this may provide a handy excuse to authorities for not making reasonable accommodation. 4 enlarge definition of "Establishment": the Committee has recommended that the private sector be brought within the ambit of the definition of "Establishment". This, if accepted by the Government and adopted by the Parliament will have enormous path-breaking implications, particularly in respect of matters relating to employment and accessibility involving persons with disabilities. For example, such a move, will ensure statutory reservation in jobs in the private sector also for persons with disabilities. 5 modify the definition of "Barriers": hats off to the Committee for recommending modification in the definition of "Barriers" so as to include attitudinal and psychological barriers. 6 ensure free food etc: commenting on provisions relating to social security, the Committee has emphatically recommended that the proposed piece of legislation must also provide for free food, shelter, clothing, and healthcare services to persons with disabilities irrespective of whether a person with disabilities is below or above poverty line, and irrespective also of income ceiling. 7 disability related information to figure in school curriculum also: the Committee has strongly recommended that disability related information should form part of the school curriculum also. This, if accepted and adopted, will go a long way towards sensitising the posterity of our citizenry. Part Three Negative aspects: It is indeed shocking that the same Committee which has made such positive recommendations as stated above, has also disappointed persons with disabilities by making some recommendations which are abjectly negative, comprehensively prejudicial and outrageously erroneous. These also include the Committee's silences on crucial issues apart from some serious contradictions. Let us deal with some of them briefly: 1 recommendation regarding change in the title of the proposed Legislation: the Committee's recommendation that instead of "Rights of Persons with Disabilities Act", the proposed Legislation should be renamed as "Rights of Persons with Different Abilities Act". Or "Rights of Differently Abled Persons Act", or "Rights of Persons with Special Abilities Act". The justification put forth by the Committee is that "Persons with Disabilities" is a derogatory expression; and that the intention of this Legislation is to empower persons with disabilities. Strangely, the Committee also goes on to say that there was a consensus amongst the stakeholders on this issue. The Committee also remained unconvinced by the Government's response wherein the Government has said, among other things, that even the relevant United Nations Convention has used the expression "Rights of Persons with Disabilities"; and, the said Convention has also been ratified by India. With due respect to the Committee do i wish to submit with all the humility and also with all the conviction at my command that this misconceived recommendation thoroughly exposes the Committee's blatant ignorance of the correct, current and progressive narrative or construct of disability espoused also by the UNCRPD. Disability is a part of human diversity and humanity and it results from interaction between impairments and various barriers which hinder participation on an equal basis with others. Now, coming to what the Committee has suggested, one may ask the question: can you show me any two living entities under the sun which are uniformly abled or uniformly disabled? If not, why is it that one is singling me or the likes of me out and labelling me or them as "Differently Abled"? when you describe me as a differently abled person, the message that i get as a person with a disability is that i am not one amongst you; that i am different. That way, each individual is unique in himself or herself; and, that we must respect that difference. Therefore, if i am differently abled or differently disabled in relation to you, you too are differently abled or differently disabled in relation to me. The fact of the matter is that by describing me as a differently abled person, you are harping more on the differentiality dimension whereas, you should actually be harping more on the equality dimension. Wherever necessary and relevant, there is nothing wrong or derogatory in a person bei ng described as a person with disability as long as there is nothing wrong or derogatory in someone being described as a fair complexioned person or a tall person, etc. Therefore, the expressions such as, "Differently Abled", "Specially Abled", are far from being empowering as the Committee seems to think. On the contrary, they are condescending, patronising, and hence also derogatory. Let it be clearly understood that disability is not synonymous with overall inability. Thus, the title/name proposed by the Government/Department of Empowerment of Persons with Disabilities is acceptable and is in sync with the correct and current narrative of disability as espoused by the UNCRPD. 2 recommendation pertaining to inclusion of certain ailments within the ambit of disability: the Committee in its report has wrongly recommended that ailments like blood cancer, kidney failure, and diabetes type I should form part of disabilities. This is tantamount to equating disability with ailments or sickness. We should not lose sight of the fact that here we are talking of impairment-based disabilities and not ailment-based or disease-based disabilities. Hence, this recommendation, if accepted and adopted will dilute the narrative of disability to a catastrophic extent. For argument sake, one may cite mental illness which already forms part of disabilities. Here, my contention is that since mental illness has a psycho-social angle to it and since it has also been accepted at the international level as a part of disabilities after due deliberations. All we can do is to ensure that no more ailments/illnesses are included within the ambit of disability. Here, it would be of some interest to note that there is a glaring contradiction in the Committee's report inasmuch as in one place the Committee seeks to prohibit the use of the expression "Suffering from Disability" while in another place inclusion of some ailments/diseases within the ambit of disabilities is recommended. Now the question one asks is this: does one enjoy an ailment/disease? Or does one suffer from ailment/disease? Obviously, one suffers from blood cancer; one suffers from kidney failure; and, likewise, one also suffers from diabetes type I. It is sheer common sense; but alas! Common sense is not so common. Some favour prohibition of the expression "Suffering from Disability" because they do not want disability to be equated with ailment or illness; and, rightly so. 3 silence regarding guardianship: while the Committee's observations on recognizing legal capacity of persons with disabilities are quite positive, more especially, in relation to persons with blindness and persons with speech and hearing impairment, it failed to offer any credible solution to the nuanced and vexed issue around guardianship involving persons with severe intellectual disabilities and persons with mental illness/psycho-social disabilities. All it does is that it conveniently advises the Department of Empowerment of Persons with Disabilities to resolve the issue in consultation with stakeholders and experts. The Committee has, in its report, referred to a ridiculous statement by a group representing one particular disability and the said ridiculous statement says that all persons with disabilities need guardianship. Here, what the Committee has done could be done by any lesser mortal with all the ease in the world. The Committee could well have appreciated the fine distinction between "Legal Capacity" per se, and "Legal Capacity to act"; and, dwelling on this distinction the Committee could well have recommended provision for "Need-based Guardianship" for persons with intellectual disabilities/mental retardation and for persons with mental illness/psycho-social disabilities. The support mechanism which the Committee could recommend could generally be non-substitutive support while in rare and exceptional cases, it could also provide for substitutive support. Provision for need-based guardianship in appropriate cases would render the provisions of "Limited Guardianship" and "Plenary Guardianship" redundant. 4 silence on employment related issues: absence of any substantive recommendation on employment related issues is shocking. The Committee, in its report, refers to differences of perception between the Department of Empowerment of Persons with Disabilities and Department of Personnel and Training in the matter of extending the benefit of reservation in jobs/vacancies to persons with autism, persons with intellectual disabilities, etc. and ones again abdicates its responsibility by conveniently advising both the departments to resolve the differences and evolve a scheme of reservation for persons with disabilities. No recommendations what so ever by the Committee in respect of extending benefit of reservation in promotion, no recommendation in relation to retaining the gains which have accrued to persons with disabilities as a result of progressive judicial pronouncements, etc. The Committee's silence on such crucial issues is both recondite and unfortunate. 5 regarding National and State Commissions for persons with disabilities: the Committee's recommendations on the National Commission and State Commissions for persons with disabilities leave much to be desired. While It is heartening that the Committee has recommended that two out of three members of the Commission should be persons with disabilities, it is silent on the question of restricting the chairmanship of such a Commission to persons with disabilities only as is the case with similar other Commissions where chairmanship is restricted to the given target group. The Committee also failed to challenge the Government's contention that since many persons without disabilities have also contributed to the field of disability, it would be a negative notion to restrict chairmanship of such a Commission only to persons with disabilities. If the above rationale of the Government is accepted as it has been accepted by the Committee, then i have this to ask: many men have significantly contributed to women's rights issues, many so-called high cast people have significantly contributed to the advancement of SC/ST communities, many people belonging to the so-called majority community have significantly contributed to the well-being of the minority communities; yet why is it that a man is never ever made the chairman of a woman's Commission, a high cast fellow is never ever made the chairman of SC/ST Commission, and a person belonging to the majority community is never ever appointed chairman of the minorities Commission? Why has the Committee failed to appreciate that it is about uniformity of norms amongst all the Commissions? Why is the Committee endorsing this open, if not brazen departure from the established and recognised norms? One was also expecting that the Committee would appropriately empower and strengthen the National and State Commissions. A reading of section 83 of the Bill leaves me convinced that the Commission will only have the power to recommend and the authority to whom the recommendation is made will be free not to comply with the recommendations; all it has to do is just to tell the Commission as to why it is unable to comply with the recommendations of the Commissions. To my mind, the proposed National Commission and the State Commissions will be weaker than even the present institutions of Chief Commissioner and the State Commissioners for persons with disabilities as there exists some grey areas in the present Persons with Disabilities Act. Of course, the functions of the proposed Commissions are apparently elaborate. The Committee's silence on the funding of the National and State Commissions is disturbing. My perception is that the proposed National Commission should come under the administrative control either of the PMO or of the home ministry as many complaints/grievances are against the Department of Empowerment of Persons with Disabilities, and placing the National Commission under the administrative control of the said department may rob the National Commission of its functional autonomy and may come in the way of discharging its functions and duties in an objective, impartial and independent manner. The Committee should also have recommended credible safeguards to prevent appointment of incompetent persons to such Commissions. Such safeguards are necessitated more particularly because of the brazen mockery some states are seem making in the appointment to the post of State Commissioner for Persons with Disabilities. 6 recommendation on low vision: the Committee's silence on the definition of "Low Vision" which forms part of specified disabilities is highly disturbing. How can you not define all sections of beneficiaries but one? 7 recommendation concerning persons with high support needs: it is a pity that the Committee failed to understand the purpose behind incorporating some specific provisions for persons with high support needs. This is evident from its observation contained in its report at segment 3.121. The Committee must understand that all persons with high support needs are also persons with benchmark disabilities; but the converse is not true. Therefore, the Committee's recommendation of replacing this expression with "Persons with Benchmark Disabilities" will defeat the purpose of providing high support who need high support. 8 regarding political participation: the Committee's recommendation in respect of political participation by persons with disabilities figures at no. Four almost at the fag end of the report in the miscellaneous segment. Why is it that the Committee, vide its recommendation wants to restrict political participation of persons with disabilities at the Panchayat and District levels only? Why not at the State level? Why not at the National level? One must remember that one does not get full citizenship rights without getting the civil and political rights also. Besides, there have been, from time to time, members of parliament with disabilities; or for that matter, even ministers with disabilities who have served the nation. Part four Concluding remarks I have made the above analysis and assessment with utmost objectivity and impartiality, and also to the best of my ability and understanding. I also confess that this is by any manner of means, an exhaustive analysis and assessment. With all the fondness at my command do I wish to express the hope that the Government will accept and the Parliament will accordingly adopt the positive aspects of those recommendations while corrective action will be taken in respect of the negative aspects including in respect of the ominous silences and glaring contradictions. It is high time that we lobby with our elected representatives and also through the media in a bid to get for ourselves as persons with disabilities a high quality rights-based legislation which is in harmony with the United Nations Convention on the Rights of Persons with Disabilities. 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