disability rights

Why people with disabilities want to kill the new disability rights bill

It is a sloppy legislation that could do more harm than good, they say.

The Rights of Persons with Disabilities Bill was tabled in the Rajya Sabha on Friday shortly before Parliament was adjourned. Rahul Gandhi, vice president of the Congress party, has extended support to the bill and has promised people with disabilities that he will do his best to get it passed.

But they do not want it.

Far from enabling India’s 21 million disabled people to live with dignity by granting them legal and social protections, the bill takes away basic rights while retaining provisions that would be considered a gross violation of privilege if applied to an able-bodied person, say advocates for people with disabilities.

Among other problems, it continues to withhold legal rights – including voting rights – from people with psychosocial disabilities (which laymen frequently refer to as mental disabilities). In addition, the bill is not specific about privileges such as accessibility and employment.

“If this law is passed, there will be a threat to the disabled community for another 20 years,” said Pavan Muntha, CEO of Swaadhikar, an NGO that works with disabled people in rural areas. “That is why we are campaigning for this bill not to be tabled until further public debate.”

TMN Deepak of the Disability Rights Alliance of Tamil Nadu contended that the bill institutionalises discrimination. “This will be a kind of constitution for disabled people, but it is so highly flawed,” he said.

Activists and legal experts claim that the bill will be nothing short of disastrous if passed in its present form. “Everything in the bill is a problem,” said Meenakshi B of the Disability Rights Alliance. “Existing legislation approaches disabilities from the point of view of charity. The new bill does not shift this to a social and human rights approach.”

The main problem with the bill, activists conclude, is its vagueness. It speaks of rights and entitlements but does not outline a framework for their implementation.

According to the 2001 census, 2.1% of India’s population has some form of disability. People with disabilities have to apply for certificates to avail of government entitlements. These are granted after a medical officer examines the person in question and grants percentage points for various enumerated disabilities. If the percentage crosses 40%, the person is granted a certificate of disability.

Voting rights denied

Among the biggest problems with the proposed bill is that it does not acknowledge the legal capacity of people with certain psychosocial disabilities. All the activists interviewed by Scroll.in cited this aspect as unacceptable.

People held to be of unsound mind cannot vote, cannot run for political or civil office, cannot manage their own property, have no control over their medical treatment and can be incarcerated in institutions against their will. There are about 2,000 laws, says Meenakshi, that prevent them from availing of protections or benefits offered to all other citizens.

Anybody who wishes to deal with people who have psychosocial disabilities must interact with their guardians, who are appointed by a local committee and have complete rights over any decisions the person of unsound mind might have to make. They are not legally obliged to consult their wards on any decision.

The National Trusts Act of 1999 states that people with cerebral palsy, autism, mental retardation and multiple disabilities must have guardians to manage all their legal affairs. It limits guardianship only to those with severe mental disabilities. But the Rights of Persons with Disabilities Bill says that any mentally ill person deemed by a district court not able to take care of himself or herself will be appointed a limited guardian.

Under unspecified extraordinary circumstances, the court may also appoint a plenary guardian, who has absolute authority over all legal decision-making of their wards. Limited guardianship, however, operates on “mutual understanding and trust between the guardian and the person with disability.”

“Limited and plenary guardianships are new concepts under this bill,” said Amba Salelkar, a lawyer at Inclusive Planet Centre for Disability Law and Policy, who has been campaigning against guardianship. “Psychosocial disabilities already had a system of guardianship under the Mental Health Care Act of 1987 if they were unable to handle financial affairs.”

The bill is casual about the rights it denies disabled people. It makes no mention of any forum a disabled person can appeal to against a guardian.

In addition, it tramples on women’s reproductive rights by explicitly mentioning that women can undergo forced abortions if their guardian agrees. It directly confirms the Medical Termination of Pregnancy Act of 1971, which states that only the consent of a guardian is required to terminate the pregnancy of any woman who is a “lunatic”, not of the woman herself.

This directly contradicts case law established by the Supreme Court in 2009, where they permitted Suchita Srivastava to deliver her child despite her guardian’s wishes to the contrary. According to a recent Frontline report, both mother and child are perfectly healthy and happy at present.

Reservations not listed

Where the bill is clear about the rights it denies, it is vague about the rights it is supposed to uphold.

“Employment with the context of reservation is not articulated at all,” said Muntha. “Some wonderful legislation evolved in courts from 1995 to 2014 and the case law is quite clear. Most courts agree that persons with disabilities must be provided government employment at all ranks.”

The Supreme Court in October had directed the government to allow 3% reservation for disabled people in government jobs. The bill, however, narrows the definition of the kind of employment to be made available to the disabled, and leaves ample scope for the government to wiggle out of having to provide meaningful employment.

In addition, TMN Deepak believes that the bill will facilitate discrimination. He notes that the bill states that no disabled person shall be discriminated against, “unless it is shown that the impugned act or omission is appropriate to achieve a legitimate aim”. But Deepak pointed out, “Nobody knows what this ‘legitimate aim’ is supposed to mean.” It is not defined in the bill, nor is the term mentioned again anywhere in its 53-page text.

Anjilee Agarwal, an access consultant with Samarthyam, noted that accessibility has become more of a suggestion than an enforceable aim. “If you take the case of spaces, the bill does not cover buildings and infrastructure like railways, public buildings, library, auditoriums, malls, etc,” she said. “It refers only to pedestrian access. This is just like the old bill. It also gives an escape route to defaulters who can say theirs is not a public building and therefore they do not need to make it accessible.”

Lack of transparency

On January 22, Santosh Kumar Rungta, lawyer and president of the National Federation of the Blind, released a copy of the cabinet draft of Rights of Persons with Disabilities Bill with his analysis. This draft of the bill, which was tabled verbatim in the Rajya Sabha on Friday, bears little resemblance to versions that people with disabilities had discussed.

The bill, activists say, is at best a mockery of the original draft.

This bill is intended to update the existing 1995 Persons with Disabilities Act and clarify the rights to which disabled people are entitled. The 1995 Act was the first legislation to officially recognise the disabled community. The Rights of Persons with Disabilities Bill states at its outset that its purpose is to bring India in accordance with the United Nations Convention on the Rights of Persons with Disabilities, which India ratified in 2007 without any reservations.  It is one of seven countries to have done so.

The 1995 act was passed without any debate, but at the time, activists felt that it was better to at least have a legislation that acknowledged their existence. They calculated that amendments could always be made. But it took them 20 years to get to the point where they could campaign for another bill, said Muntha of Swaadhikar.

The first draft of the Rights of Persons with Disabilities Bill was prepared in 2011 by a joint committee of civil society, states and union ministries after soliciting recommendations from all over the country. The Ministry of Social Justice and Empowerment took this draft and released a watered-down version in 2012. The union cabinet later scrutinised and approved it in December 2013—and then kept it under wraps, for no apparent reason. As draft bills do not come under the purview of the Right to Information Act, the ministry told activists the bill was confidential when they asked to examine it.

Muntha fears that the bill will be one of the few to be passed in parliament before the end of this tumultuous session that has already seen both houses adjourned several times over the Telangana issue. “It is the sort of bill that will get passed in under five minutes,” he said. “That is why we are petitioning the government to not introduce it at all.”

 
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