17-6-15 9:29:39 AM: Mahesh: Disabilities Rights Bill: Activists worried over guardianship
June 17th 2015. What is important and should be focused on, activists say, is the setting up of support networks. Illustrattion: Satwik Gade | The Hindu A person with a psychosocial or developmental disability needs her guardian’s permission do a number of things that most people would consider routine: opening a bank account, getting married, managing property, entering into a contract, obtaining insurance, and even making a will. The reason? The enabling provision in the law for having a guardian makes it appear that most of them require guardians, although it is not mandatory. Members of the disabled community were hoping this situation would change under the Rights of Persons with Disabilities Bill, 2014, currently pending in Parliament, but city-based activists say that even under this Bill, the disabled community will not be recognised as having full legal capacity. This, they say, is a violation of the Constitution. The Bill may now be taken up in the monsoon session of Parliament, it is believed. In its present form, the Bill says that in certain cases a person with a disability may be provided with the support of a ‘limited guardian’ on the instructions of the court, where the guardian can take ‘legally binding decisions’. This guardianship clause is the problem, said activists. As long as the guardianship system exists, disabled people who have a guardian will have no standing before the law – their rights will be taken over by the guardian, they say. “Why should we have guardians?” asked Rajiv Rajan, an activist with cerebral palsy. “Every person, abled or disabled, requires professional help from time to time – legal, financial or otherwise. What should exist is a support system – a network you can lean on when required. This does not mean our rights can be taken away,” he said. The guardianship system, said Amba Salelkar, a lawyer and researcher, is just the most cost-effective method available to the State. “It costs more to create support systems at every level and to sensitise people to rights of the disabled and to make information available. But this is what needs to be done,” she said. The problem with guardianship in any form, said Ms. Salelkar, is that it tends to be of a “blanket” form – the denial of all decision-making capabilities. “Sometimes, what is perceived as being in the best interests of a person may not necessarily be what they want to do. But, the wishes and preferences of the person need to be respected – otherwise, it is taking away their rights,” she said. The Standing Committee Report on the RPD Bill, which was released early in May, has said in its recommendations that there is a need to “revisit on the aspect of guardianship and if necessary, invite views of some prominent NGOs and stakeholders in the matter.” This, activists say, came after several activists in Chennai and elsewhere protested against the guardianship clause in the Bill. But, whether the Report’s recommendation will be taken into consideration is not certain. The law cannot promote discrimination, said B. Meenakshi of Equals, Centre for Promotion of Social Justice. “The United Nations Convention on the Rights of Persons with Disabilities, to which India is a signatory, promotes full legal capacity. Our choice of autonomy should be respected. Guardianship does not allow for this,” she said. If a person does require a guardian – as may be the case for persons without disabilities also, in case of a coma for instance, there should be a mechanism to opt for one, said Smitha Sadasivan of the Disability Rights Alliance. “The option of taking aid from a guardian should be irrespective of disability, and therefore should be outside of a disability law,” she said. What is important and should be focused on, activists say, is the setting up of support networks – by the government and by communities. “Requiring support depends on the environment you are in. I may be in a wheelchair, but in my home and workplace, I do not require support. Does that mean I need a guardian?” asked Mr. Rajan. Some people with autism spectrum disorder who are non-verbal and some persons with developmental or intellectual disability may require higher levels of support. But this, said Ms. Salelkar still does not mean they need a guardian to take over all their decisions. “Some people may not be able to take financial decisions for instance, but may be able to decide on their marriage. Decision-making needs to be seen on a spectrum, as does communication – people may not talk, but may have other means of expressing themselves – this too needs to be recognised. Guardianship tends to assume people cannot make any decisions on their own and this can lead to dangerous repercussions such as forced treatment and institutionalisation,” she said. What the law says At present, people with cerebral palsy, mental retardation, multiple disabilities and autism are governed by the National Trust Act, 1999, which creates a system of guardianship, says Ms. Salelkar. “The Ministry of Social Justice and Empowerment has recommended that all present systems of guardianship for persons with disabilities be converted to limited guardianship. But as long as it is a guardian who finally signs off on a document, the guardian is ultimately the primary authority, limited or otherwise,” she says. Under the new Bill, an Amendment proposed by the Ministry in February 2014 to replace the original Section 13 of the Bill now says: Notwithstanding anything contained in any other law for the time being in force, on and from the date of commencement of this Act, where a district court or any designated authority, as notified by the State Government, finds that a persons with disability, who had been provided adequate and appropriate support but is unable to take legally binding decisions, may be provided further support of a limited guardian to take legally binding decisions on his or her behalf in consultation with such persons, in such manner, as may be prescribed by the State Government. 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