disability rights

India's disability law is a step forward for rights of disabled when it could have been a giant leap

The Rights to Persons with Disabilities Bill, passed by both houses of Parliament last week, leaves much to be desired.

In a rare show of unity at the end of a stormy Parliament session, on December 16, the ayes in the Lok Sabha had it – the lower house followed the upper house in passing the Rights of Persons with Disabilities Bill, 2016. Close to a decade after it ratified the United Nations Convention for the Rights of Persons with Disabilities (2007), which requires signatories to guarantee equality and all human rights to the disabled, India is finally just one presidential signature away from implementing a law to replace the toothless Persons with Disabilities Act 1995.

The soon-to-be law is, in many ways, an improvement upon the 1995 Act. The number of disabilities officially recognised have increased from seven to 21 and in a first, the law has provisions to protect those with intellectual and psycho-social disabilities and even acid-attack survivors. Those affected by Parkinsons, haemophilia, thalassemia and sickle-cell disease have also been included.

That the legislation is a step forward in upholding the rights of the disabled is undeniable. However, with its implementation, will we finally be satisfying the UN Convention for the Rights of Persons with Disabilities?

Voices not heard

The convention states that “Persons with Disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them”. It further says, “In the development and implementation of legislation and policies to implement the present convention, and in other decision-making processes concerning issues related to persons with disabilities, state parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organisations”.

Sadly, disability experts and NGOs were completely sidestepped as the government drafted this law. The government took the Persons with Disabilities Bill 2014, (which was readily available but not perfect in any way) introduced by the Congress-led United Progressive Alliance government and made amendments to it on the recommendations of the Parliamentary Standing Committee, which were never shared with those in the disability sector.

It is this exclusion that has resulted in some very apparent weaknesses in the Bill. For example, clause 3(3) in the Bill states “no person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is appropriate to achieve a legitimate aim”. What the second part of this line means is unclear to me. What is clear, however, is that it definitely weakens the discrimination clauses.

The Bill does a good job of highlighting the social security needs of the disabled. It states that the government will help the disabled by providing aids and appliances, disability pensions, allowances for care givers and a comprehensive insurance scheme. This is music to our ears. What is less pleasant, however, is that instead of allocating a specific amount for this, the proposed law says “the appropriate government shall within the limits of it’s economic capacity and development” fund such schemes. This gives future governments a window to escape or reduce these provisions.

Provisions weakened

Significantly, the 2014 bill said those who violate the provisions of the legislation could be imprisoned for up to six months and fined Rs 10,000. Repeat offenders could face imprisonment of up to two years or a fine of Rs 50,000 to Rs 5 lakh, or both. The amended Bill however does away with the prison terms, but retain the fines.

The Bill also lays an emphasis on accessibility of hospitals, schools and other educational institutions for the disabled. However, nothing will come of this if there are no timelines given to these places to develop the necessary infrastructure, in the form of ramps and the like. After all, The Accessible India campaign was launched in December 2015, with the aim of making the infrastructure of at least 50% of government buildings in each state capital accessible disabled-friendly by July 2018, but a year on, nothing has happened.

The 2014 bill talked about the appointment of a National and State Commission to protect the rights of the disabled and listen to their grievances. However, in the amended Bill, the commissions have been done away with. Instead, there will be a commissioner at the central and state levels, whose role too has been limited to an advisory one.

What is even more upsetting is that the government could have gone a step further from the 1995 Act by ensuring that such commissioners are disabled themselves and hence more sensitive to the needs of the community. This would have been a huge step towards embracing UN Convention for Rights of Persons of Disabilities. Instead of arguing why this is so important, I will just pose the following question: how would women rights organisations react if the women’s commissioner was a man?

Further, while the 2014 bill had provided for a 5% reservation for persons with disabilities in government jobs and educational institutes, the amended legislation has decreased this to 4% (an increase of just 1% from the 1995 Act).

Some progress

However, a positive amendment from the 2014 bill is with regard to the provision for guardianship to a “mentally ill person”. Both bills state that if a district court finds that someone who is mentally ill cannot take care of themselves or take legally binding decisions, it may appoint a guardian for the person. The 2016 version however also allows a disabled person who is aggrieved by the appointment of a legal guardian to complain against it to an appellate authority – the original bill had no such provision.

What is also disappointing about the Bill is a lack of ambition. The launch of campaigns by the current government like Make in India, to boost manufacturing in the country, Digital India, to increase web connectivity and Start up India to encourage entrepreneurs an indicator of the increasingly important role the private sector is playing in the Indian economy. Sadly, this Bill (unlike Western laws) does nothing to make private sector enterprises and establishments more accessible to the disabled. So, status quo is likely to be maintained at private work places, markets, theatres and ATMs amongst other spaces, most of which do not have disabled-friendly infrastructure.

Disabled-unfriendly Parliament

However, the one thing that was most apparent during Friday’s proceedings in the Lok Sabha was how the very functioning of the Parliament spares no thought for the disabled.

As we were glued to our TVs as the Bill was being debated, my speech- and hearing-impaired friends were clueless about the proceedings as there was no sign language interpretation available. I also shudder to think how they would participate in a voice vote. My visually challenged friends had it even worse, as the Bill and the amendments to it were not available in a format legible to them.

That the Bill will soon become a law is a step forward and I am glad the disabled in India finally have something to celebrate. However, let’s not for a moment become complacent and believe that battle has been won. It has just begun.

Nipun Malhotra is the founder of www.wheelsforlife.in a wheelchair-donating platform. He can be followed on Twitter @nipunmalhotra

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As India turns 70, London School of Economics asks some provocative questions

Is India ready to become a global superpower?

Meaningful changes have always been driven by the right, but inconvenient questions. As India completes 70 years of its sovereign journey, we could do two things – celebrate, pay our token tributes and move on, or take the time to reflect and assess if our course needs correction. The ‘India @ 70: LSE India Summit’, the annual flagship summit of the LSE (London School of Economics) South Asia Centre, is posing some fundamental but complex questions that define our future direction as a nation. Through an honest debate – built on new research, applied knowledge and ground realities – with an eclectic mix of thought leaders and industry stalwarts, this summit hopes to create a thought-provoking discourse.

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Is it time to re-look at constitution and citizenship in India?

The Constitution of India is fundamental to the country’s identity as a democratic power. But notwithstanding its historical authority, is it perhaps time to examine its relevance? The Constitution was drafted at a time when independent India was still a young entity. So granting overwhelming powers to the government may have helped during the early years. But in the current times, they may prove to be more discriminatory than egalitarian. Our constitution borrowed laws from other countries and continues to retain them, while the origin countries have updated them since then. So, do we need a complete overhaul of the constitution? An expert panel led by Dr Mukulika Banerjee of LSE, including political and economic commentator S Gurumurthy, Madhav Khosla of Columbia University, Niraja Gopal Jayal of JNU, Chintan Chandrachud the author of the book Balanced Constitutionalism and sociologist, legal researcher and Director of Council for Social Development Kalpana Kannabiran will seek answers to this.

Is CSR simply forced philanthropy?

While India pioneered the mandatory minimum CSR spend, has it succeeded in driving impact? Corporate social responsibility has many dynamics at play. Are CSR initiatives mere tokenism for compliance? Despite government guidelines and directives, are CSR activities well-thought out initiatives, which are monitored and measured for impact? The CSR stipulations have also spawned the proliferation of ambiguous NGOs. The session, ‘Does forced philanthropy work – CSR in India?” will raise these questions of intent, ethics and integrity. It will be moderated by Professor Harry Barkema and have industry veterans such as Mukund Rajan (Chairman, Tata Council for Community Initiatives), Onkar S Kanwar (Chairman and CEO, Apollo Tyres), Anu Aga (former Chairman, Thermax) and Rahul Bajaj (Chairman, Bajaj Group) on the panel.

Can India punch above its weight to be considered on par with other super-powers?

At 70, can India mobilize its strengths and galvanize into the role of a serious power player on the global stage? The question is related to the whole new perception of India as a dominant power in South Asia rather than as a Third World country, enabled by our foreign policies, defense strategies and a buoyant economy. The country’s status abroad is key in its emergence as a heavyweight but the foreign service officers’ cadre no longer draws top talent. Is India equipped right for its aspirations? The ‘India Abroad: From Third World to Regional Power’ panel will explore India’s foreign policy with Ashley Tellis, Meera Shankar (Former Foreign Secretary), Kanwal Sibal (Former Foreign Secretary), Jayant Prasad and Rakesh Sood.

Are we under-estimating how critical water is in India’s race ahead?

At no other time has water as a natural resource assumed such a big significance. Studies estimate that by 2025 the country will become ‘water–stressed’. While water has been the bone of contention between states and controlling access to water, a source for political power, has water security received the due attention in economic policies and development plans? Relevant to the central issue of water security is also the issue of ‘virtual water’. Virtual water corresponds to the water content (used) in goods and services, bulk of which is in food grains. Through food grain exports, India is a large virtual net exporter of water. In 2014-15, just through export of rice, India exported 10 trillion litres of virtual water. With India’s water security looking grim, are we making the right economic choices? Acclaimed author and academic from the Institute of Economic Growth, Delhi, Amita Bavisar will moderate the session ‘Does India need virtual water?’

Delve into this rich confluence of ideas and more at the ‘India @ 70: LSE India Summit’, presented by Apollo Tyres in association with the British Council and organized by Teamworks Arts during March 29-31, 2017 at the India Habitat Centre, New Delhi. To catch ‘India @ 70’ live online, register here.

At the venue, you could also visit the Partition Museum. Dedicated to the memory of one of the most conflict-ridden chapters in our country’s history, the museum will exhibit a unique archive of rare photographs, letters, press reports and audio recordings from The Partition Museum, Amritsar.

This article was produced by the Scroll marketing team on behalf of Teamwork Arts and not by the Scroll editorial team.