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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