A law that enables

The National Advisory Council’s suggestions for strengthening the draft law on the Rights of Persons With Disabilities (PWD) is a potentially far-reaching intervention. The step is in sync with the recent notification of a separate Department for Disabilities in the Union Ministry of Social Justice and Empowerment, which was announced in the President’s 2012 address to Parliament. Ever since India ratified the United Nations Convention on the rights of PWDs in 2007, the formulation of a comprehensive law became imperative and these two developments suggest things are finally moving ahead. Currently, there are four separate pieces of legislation pertaining to India’s disabled population.

The earliest, the 1987 Mental Health Act, predates the discourse on affirmative action for the disabled in India and, to that extent, the status of mental illness as a disability remains ambiguous. Then, there is a separate law that deals with the creation of qualified and trained personnel for the provision of rehabilitation and education services for this segment of the population. The third, the PWD Act of 1995, is underpinned by an emphasis on anti-discrimination and guarantees of equal opportunities. Although the latter was envisaged as a comprehensive law, it did not address fully the conditions of persons with other equally severe disabling conditions. Hence the 1999 Act for people with autism, cerebral palsy, mental retardation and multiple disabilities.

It is hardly surprising that these four laws in themselves have not mitigated the sense of apathy and bureaucratic red tape that hamper the creation of an enabling environment. The mechanisms and procedures involved are riddled with duplication and inconsistencies, as evidenced by the evolving case law over questions of jurisdiction and interpretation of different laws. More than a billion people around the world experience one or another form of disability, according to the World Health Organisation and World Bank 2011 report. On other estimates, about 10 per cent of the population in developing countries is disabled. By any reckoning, India’s numbers would be much larger than what governments are prepared to acknowledge, given the detrimental influences of poverty, illiteracy and poor health on disability. It follows that stepping up investments in health and education is one of the important ways of preventing disabilities and mitigating their impact over the long term.

Requiring service providers to furnish a declaration of conformity with the relevant laws is the other means to ensure accountability and effective enforcement. An umbrella legislation will go a long way in altering the present state of affairs.

The Hindu

New disability bill draws mixed response from experts, activists

As the final draft of the Rights of Persons with Disabilities Bill, 2011 was submitted to the ministry of social justice and empowerment on June 30, activists working for people with disabilities, have mixed responses about the proposed Act.

According to Bhargavi Davar, managing trustee of the city-based Bapu trust for research on mind and discourse, the bill includes a liberal definition of ‘disability’ and disability rights unlike the existing Act. However, in some ways, it is inferior to the existing one.

"The Bill lists at least 20 disabilities as illustrative of the disability experience. A significant contribution is the inclusion of a range of civil political rights, such as right to liberty, life, political participation, among others. In terms of socio economic rights, the Bill offers manifold duties of the government and new entitlements. However, the new Bill is inferior to the existing Act in the context that the existing Act do not impose a limit on legal capacity, nor does it talk about guardianship," said Davar.

The new Bill, which promises to usher in landmark clauses to promote human rights and fundamental freedoms for all Persons with Disabilities (PwDs) without discrimination, has been drafted in harmony with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). 

Among other things, the proposed law suggests setting up of a National Disability Rights Authority to formulate regulations for ‘service animal’ training facilities so as to ensure that persons with disabilities are provided suitable animals to help them.
The bill also proposes to replace the existing practice of plenary guardianship with limited guardianship, a system of joint decision-making which operates on mutual understanding and trust between the guardian and the person with disability.

The ministry of social justice and empowerment had earlier constituted a committee with members representing persons with disabilities, NGOs and experts from the disability sector, to draft a new legislation to replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

According to Davar, though the draft bill gives the right to full legal capacity, the concept of limited guardianship takes that benefit away.

"With any kind of guardianship, limited or plenary, the exercise of right for a person with disability becomes all the more difficult. The clause on ‘limited guardianship’ will again push the people with disabilities back to colonial times, as vested interests will take advantage of the clause and take away rights otherwise granted in the new Bill," said Davar.

At the same time, Davar is not sure about the implementation of the bill in the state, where the basic PwDs are, in many cases, non-existent. "The state coordination committee does not meet regularly and the budgets of 3% provided for, under the Action Plan for disability spending under all government heads, has been unutilised. State budgets for social welfare in general has been unutilised, whereas there is a crying need for huge reform of social / disability sector," she said.

Sadhana Khati, project leader, Bapu Trust, said, "Granting full legal capacity includes an array of rights – from the right of marriage to the right to vote. Though the draft grants the right to legal capacity, it does not grant ‘absolute’ right to legal capacity."
A lawyer, part of the Human Rights Law Network (HRLN), a collective of lawyers and social activists dedicated to the use of the legal system to advance human rights in India and the sub-continent, said on condition of anonymity, "The proposed law should have expounded on the concept of limited guardianship, instead of giving it a minimal definition. What the act proposes to do, i.e., replace plenary guardianship with limited guardianship sounds like a gain; but the finer details on the latter have not been specified. What the new Bill should have done is describe the process by which persons with mental disabilities – in conflict with law or in need of care and protection – are identified as a class apart, ensuring a participatory process, as the one ensured by the provisions of the Juvenile Justice (Care and Protection of Children) Act."

Pune, Times of India

Memorandum on Disability Code

The Background

In the explanatory note to the Working Draft we had communicated to the Committee that in our opinion in order to do full justice to the Disability Rights Authority in terms of putting down its power and responsibilities in full detail it would be appropriate if the Authority was established under a dedicated statute of its own, instead of being made to tag along with the Rights statute. We had pointed out that we felt cramped for space in working out the norms by which representation to the Authority should be worked out and accountability of members obtained. It was due to this substantive constraint along with the lack of time that prevented us from working out the linkages between the DRA and other Authorities in the disability field such as the National Trust and the Rehabilitation Council of India.

Dedicated Legislations

Since we reached the opinion that the newly established DRA should have its own legislation we also concluded that the National Trust and the RCI should have their own legislations which should spell out the specific tasks each of those authorities should carry out to implement the rights recognized in the New Rights for Persons with Disabilities Act. The National Trust should be the authority which addresses the issue of multiple discrimination and be mandated to proactively formulate policies and programs by which to ensure the equality and non discrimination of persons with disabilities who are so disadvantaged and the RCI could work on HRD. The composition and powers and functions of the three bodies should be so created that it ensures convergence of operation.

Transitory Measures

The proposed new law recognizes the paradigm of legal capacity with support. It also recognizes the right to life, liberty and integrity of all persons with disabilities. The recognition of these rights requires a re-examination of the Mental Health Act. Even if it is accepted that community living and no force are what is required for all; it is necessary to ask what should be done with the existing institutions and the inmates housed in them. The process of dismantling cannot be done without creating alternative services and there is a need to make a transit legislation which addresses this interim situation. The reason for making the transit legislation comes from the main law but to allow coherent operation and efficient implementation of these transitory measures it is better that they are contained in a separate legislation.

Demands for Comprehensive Legislation and Protection of Interests of Most Marginalized

The Committee and consequently the legal consultant has been faced with two demands: one, seeking a comprehensive all inclusive legislation; and the other asking that the interests of the most marginalized persons with disabilities should not be compromised and side-lined. The reason for seeking a comprehensive legislation as we understand is to ensure convergence in the operation of various authorities in the field and to make for more effective implementation. Whilst the group asserting the interest of the marginalized accepts the need for convergence, it fears that if such convergence is obtained in one comprehensive legislation, which absorbs all authorities then the voices of the more organized groups could drown their concerns.

Convergence in Disability Code

It is in the wake of these equally valid concerns that it was suggested that a Disability Code may be formulated which could be a legally accepted and efficient way of bringing convergence along with accommodating difference. The difference between a Code and multiple legislations in a field is that the Code has a common philosophy; common grammar and a concerted effort to ensure that each part fits into a cohesive whole. Thus for example there are number of legislations on children which occupy the field today but they do not make a Children Code because the cohesiveness of philosophy, grammar and the convergence between authorities is absent.

The difference between a Code with multiple legislations and a single comprehensive legislation is that a Code with multiple legislations allows each area to obtain the detailed and dedicated attention it requires. The Companies Act; the Income Tax Act are examples of legislations which are comprehensive but whose very comprehensiveness becomes a barrier to their efficient implementation. A Code with multiple legislations makes it easier to undertake capacity building and awareness raising of the law and it ensures that the interests of the marginalized groups are not submerged in the bulk of a large legislation.

Centre For Disability Studies Nalsar