New Disability Rights Bill Demanded
THE abrupt end of the winter session of parliament, two days ahead of the schedule, came as a big disappointment to the millions of disabled persons in the country. For the umpteenth time, the UPA’s government’s promise of tabling the Disability Rights Bill remained unfulfilled. This, despite the fact that the cabinet had cleared it, on December 12, 2013, after an inordinate and inexplicable delay. Opinion was divided over not just the intent and will of the government but also on whether in the given circumstances the bill could be tabled and passed. UNPARDONABLE DELAY, LET-DOWN Nevertheless, the delay in tabling the bill is unpardonable. It took nearly four years for the bill to be drafted. With Lok Sabha elections looming ahead and the uncertainty over how much legislative business will be conducted in the next session, there is a legitimate fear that all the efforts that went into putting this draft through would go down the drain. It is against this background that many organisations and disability rights activists who felt dismayed and let down launched a campaign for the introduction and passage of the bill. It may be recalled that the first conference of the National Platform for the Rights of the Disabled (NPRD) held at Kochi from December 6 to 8, 2013 had adopted a resolution calling for the “Speedy Enactment of Rights of Persons with Disabilities Bill” and also for a review of the existing policy on disability. The conference had, through another resolution, called for amending the Indian constitution to include “disability” as a prohibited ground of discrimination. Article 15(1) of the Indian constitution says: “The State shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them.” Article 16(2) of the constitution says: “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.” Though discrimination on various grounds is prohibited and equality of treatment mandated in both these articles of the Indian constitution, it is not so in the case of its citizens with disability. Discrimination on the basis of “disability” is not prohibited. The constitution also, it needs to be underlined, does not mandate affirmative action for persons with disabilities. The Indian constitution has failed the disabled both with respect to non-discrimination and affirmative action. A sense of disquiet and angst arose, consequent to the increasing awareness among the disabled community in India, in the late eighties and early nineties. Against a background where laws were being framed in various countries specifically addressing people with disabilities, trying to correct historical mistakes of maltreatment, segregation and discrimination, in India the demand for a law to address the concerns of the disabled started gaining momentum. The result was the enactment of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. WELFARE SQUEEZED IN NEO-LIBERAL FRAMEWORK Though this act was a landmark legislation at that particular point of time, the entire framework of the act is of the kind of a charity/medical model and interpretation of disability. The emphasis is more on the vulnerabilities of the people with disabilities. Rights, capacity building, harnessing their potential etc – all are completely missing. Doling out welfare measures alone seemed to be solution. And this in the current neo-liberal framework has seen a squeeze. Despite its erroneous approach and all its inadequacies, it has to be admitted that the 1995 act did provide some opportunities for both addressing and advancing the concerns of the disabled in the country. At the same time, it has also to be underlined that while it did help in bringing issues of disability to the public domain, an insensitive administration and lack of awareness among the public saw to it that it was implemented more in violation. Not without reason. The PwD Act 1995 lacked teeth. There were no penal clauses for non-implementation of its provisions. Many of its provisions continue to be flouted till date. There are any number of cases that are being heard or on which judgements are delivered for the violation of the provisions of the act. Even when lower courts have delivered favourable judgements, appeals are preferred and they drag on for years together. The lackadaisical attitude of the government is all the more exposed by the fact that a department for disability affairs at the centre was created in 2012 only, a full 65 years after the country achieved independence! The total disregard and neglect of this sector becomes glaringly clear when we look at the conditions in which the disabled live placed today: 51 percent of the disabled persons are illiterate; 63 per cent are unemployed. According to People with Disabilities in India: From Commitments to Outcomes, a World Bank report, people with disabilities are among the most excluded in Indian society. The report says they are subject to multiple deprivations. Households with disabled members are significantly poorer than average, with lower consumption and fewer assets. Children living with disability are around four to five times less likely to be in school than SC/ST children. Illiteracy is high across all categories of disability, particularly for children with visual, mental and multiple disabilities. Even when enrolled in school, they are not able to go beyond the primary stage. Worse, according to the report, employment rates have declined from 42.7 percent in the early 1990s to 37.6 in the early 2000s. NECESSITY TO AMEND THE ACT The non-serious approach was followed by the states as well. Though as per our constitutional scheme of things, disability is a state subject, no state has made any substantial endeavour to make things better for the disabled. There are only a few states that have framed a policy for the disabled. Even the national disability policy was announced in the year 2006 only, 11 years after the promulgation of the PwD Act. It is but a replica of the act, the only difference being that there is an added emphasis on the role of the private sector, increased role of NGOs etc, in consonance with the neo-liberal economic framework. Nevertheless, the policy does acknowledge the necessity to amend the PwD Act. However, a paradigm shift was brought about with India ratifying the United Nations Convention on Rights of Persons with Disabilities (UNCRPD) in 2007 and the convention coming into force from May 2008. The UN treaty emphasises that states are bound to treat persons with disabilities not just as victims or members of a minority, but as subjects of law with clearly defined rights. The treaty views disability as a result of the interaction between an inaccessible environment and a person rather than an inherent attribute of an individual. Having singed the UNCRPD, it was not a question of amending the laws alone. All the four disability specific legislations – the Mental Health Act 1987, Rehabilitation Council of India Act 1992, Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, and the National Trust Act – had to be harmonised with the provisions of the UNCRPD. The government failed on that. Only the Mental Health Care Bill was introduced in parliament. It is against this background that the process of drafting a new law to replace the PwD Act of 1995 started. Initially, in 2009, the Ministry of Social Justice & Welfare proposed to amend the PwD Act of 1995. Around a hundred amendments running into 87 pages were proposed. Disability rights organisations opined that the proposed amendments are not aligned to the UNCRPD. They pointed out that the amendments do not reflect a paradigm shift envisaged in UNCRPD as it does not view disability as a form of human diversity and that it is not written in the rights based framework. The emphasis was still on conceptualising disability as a disorder. It did not acknowledge the barriers that persons with disability face everyday and shies away from making a commitment to challenge these barriers. The key principles and tenets of UNCRPD, for example, effective participation, inclusion, legal capacity, individual autonomy, liberty of movement, political participation, and participation in decision making were not reflected in the amendments. The opinion was unanimous --- that the changes to be made are so substantive that it would be better to write a new law rather than just amend the present one. THE NEW DRAFT A committee was set up by the government with Dr Sudha Kaul at its head, which took on board various stakeholders. Several rounds of consultations at various places were held. The recommendations made by the committee were sent to the NALSAR University of Law, which prepared a draft. Again a round of discussion followed, after which the government uploaded the second draft on the ministry’s website. That was in September 2012. The draft of the bill that is available on the ministry’s website takes into account a number of crucial areas that were missing in the 1995 act. These include but is not restricted to the issues of social security, disabled women, accessibility, preschool and higher education, the rights of the mentally ill, and many such issues and rights that are taken for granted by the non-disabled people. The draft bill has three times more the medical conditions than those identified by the 1995 act. The definition has also been widened. The 1995 act had listed the following medical conditions as disabilities: (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness. The current draft of the new bill lists 18 conditions as disabilities -- autism spectrum disorder, blindness, cerebral palsy, chronic neurological conditions, deaf-blindness, haemophilia, hearing impairment, intellectual disability, leprosy cured, locomotor disability, low vision, mental illness, muscular dystrophy, multiple sclerosis, specific learning disability, speech and language disability, thalassemia and multiple disability. In the earlier draft there was almost equal emphasis on special schools (catering only to children with disabilities) and inclusive schools (catering to all children in a common environment). But in this draft the emphasis is on integration of children with disabilities into an inclusive education framework. All educational institutions funded or recognised by the government, have a duty to provide inclusive education. The draft also provides for five percent of the total seats in each course in all government educational institutions to be reserved for persons with disabilities. Five percent reservation in employment for persons with disabilities (one percent each for blind/low vision; hearing/speech impairment; locomotor disability including cerebral palsy, leprosy cured and muscular dystrophy; autism, intellectual disability and mental illness; and multiple disabilities has been provided for in the draft, as against the existing three percent. The draft also has provision for social security. It says: “Appropriate governments shall promulgate necessary schemes and programmes to safeguard and promote rights of persons with disabilities to adequate standard of living and living conditions to enable them to live independently and in the community. In devising these schemes and programmes the diversity of disability, gender, age, and socio-economic status shall be relevant considerations.” It provides for unemployment allowance to those registered with special employment exchanges, provision of aids and appliances, medicines and diagnostic services etc free of cost to persons with disabilities, support to women with disabilities for livelihood, support to abandoned children etc. There are specific provisions for health care, insurance, rehabilitation etc. POSITIVE PROVISIONS One of the basic flaws of the PwD Act 1995 was the lack of penal clauses for non-implementation of its provisions. This is sought to be set right in the current draft bill. There are penal provisions for not making premises accessible within a set time frame; there are penal provisions for various offences – for hate speech, assault or use of force, for denial of food, sexual exploitation, for causing injury and even for fraudulently availing or conferring benefit meant for persons with disabilities by non-disabled persons. There is provision for central and state advisory boards on disability, which would basically be an advisory body on policy matters. These apart, it also provides for national and state commissions which are empowered to monitor the implementation of this act and whenever they find violations either suo moto or in the form of representations, they can enquire and make recommendations to the concerned governments. Whenever a commission makes a recommendation, the concerned authority has to report back to the commission within three months on the action or not taken. The commission has the powers of a civil court in some matters like summoning witnesses, calling for documents etc. Provisions are there for Special Disability Rights Courts for speedy disposal of suits concerning persons with disabilities, basically regarding violation of their rights in each subdivision. Exclusive Disability Rights Courts have to be set up in each district and in cities with population of more than ten lakh. LACUNAE REMAIN However, this should not in any way convey the impression that the entire disability sector is satisfied with the current draft of the new law. There are several issues on which not all disability rights organisations and groups are agreeable – on the question of legal capacity, on the question of reservation in promotions (an issue that has been agitating disabled government employees), political representation, etc. While the question of reservation in promotions was there in the first version of the draft, it has been omitted in the latest version. Then there is also the demand made by some sections for political reservation, on which there is no unanimity. It is not that the NPRD was oblivious of these issues, some of which had become contentious. Nor does it contend that this draft could not or cannot be improved upon. But the NPRD views the current draft bill as progressive and rights based and a break from the charity/medical approach adopted in 1995. It sees no reason why the introduction of this bill should be delayed further. The NPRD also strongly feels that the bill must be introduced and passed only after a debate, unlike what had happened in 1995 when it was passed without a debate. To this day, most parliamentarians and unfortunately even a majority of the disabled in the country are not aware of this act. It is against this background that the Disabled Rights Group (DRG) and the National Platform for the Rights of the Disabled (NPRD) have come together and have unitedly demanded that the bill be tabled and adopted when parliament is reconvened. In the first phase of the campaign, a call was given for candlelight vigils in different parts of the country. A large number of disabled persons participated in the vigils in Delhi, Kolkata, Chennai, Guwahati, Amritsar, different centres in Haryana and many other places. In the second phase a delegation of the NPRD-DRG leaders met the vice president of India who is the chairman of the Rajya Sabha, CPI(M) general secretary Prakash Karat and BJP Rajya Sabha leader Arun Jaitely. Appointments have been sought with the Congress leadership and the minister for parliamentary affairs. In the third phase of the campaign, NPRD-DRG leaders will tour to various centres addressing meetings and emphasising on the necessity of tabling and passing the bill. A meeting each has been fixed in Chennai and Kolkata on January 30 and February 2. Meetings, seminars etc will be held in small towns and rural areas to take the campaign down to the grassroots. The mass of the disabled have to be mobilised and galvanised. Despite its shortcomings, the Rights of Persons with Disabilities Bill raises new hopes and aspirations. It is incumbent upon the UPA government to ensure that it is tabled, debated and passed. The onus is entirely on it. It brooks no further delay.