Empowering Persons with Disabilities

Gargi Parsai

Parliamentarians passed the historic Rights of Persons with Disabilities Bill, 2016, in the just-concluded winter Session of Parliament. The passage of the Bill-which is in line with the United Nations Convention on the Rights of Persons with Disabilities, (UNCRPD) - has been hailed by disability rights groups as a huge improvement on the earlier Act.  It replaces the previous Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with several amendments.

Among the significant highlights of the 2016 Bill is that it recognises 21 specified conditions for disability as against seven in the Act, but on the downside it reduces job reservation for persons with disabilities from five to four per cent in establishments including government and private sector. At the same time the Bill says that private sector employers shall be incentivised to ensure that at least five per cent of their work force is composed of persons with disabilities.

Every child with disability will have the right to free education till 18 years of age and all higher government institutions and government-aided higher education institutions shall reserve five per cent seats for persons with disabilities, as well as relax the upper age limit by five years.

There is no doubt that the landmark Bill will give visibility to persons with disabilities many of whom are excluded from existing services and programmes. Persons with disabilities shall not be discriminated against, have equal opportunity, live independently and participate fully in all aspects of life in an inclusive society.

The Bill was introduced in the Rajya Sabha on February 7, 2014 and referred to the department-related Standing Committee for its recommendations. It could not be taken up then as general elections were held soon after. On December 14 this year, the Bill was tabled with official amendments and passed in the Rajya Sabha. The Lok Sabha cleared it on December 16. It now awaits the Presidential assent for it to become law.

Several official amendments were adopted in both the houses to usher in a law that will bestow rights and entitlements to an estimated 2.68 crore people with disabilities in the country. For disabled rights groups it has been a long-drawn struggle for the Bill to see the light of the day in this form and shape.

A person with disability is defined as a person with long-term physical, mental, intellectual or sensory impairment which hinder full and effective participation in society equally with others. The 1995 Act defined Persons with Disabilities as those having not less than forty per cent disability and identified seven categories of disabilities.

According to 2011 census, there are 2.68 crore Persons with Disabilities (PwDs) in India who roughly constitute 2.21 per cent of the total population. Of these 1.50 crore are male and 1.18 crore are female. According to the World Bank, 15 per cent of the world’s population is affected by some disability or the other.

The 21 disability conditions that have been recognised in the Bill include Blindness; Low vision; Hearing impairment (deaf and hard of hearing); Speech and Language disability; Intellectual Disability (specific learning disabilities and autism spectrum disorder); Mental Behaviour; Disability caused due to Chronic Neurological Condition  such as Multiple Sclerosis and Parkinson’s disease;  Blood Disorders including Haemophilia, Thalassemia, Sickle Cell Disease; Multiple Disabilities including deaf blindness;   Locomotor Disability (Leprosy-cured, Cerebral Palsy, Dwarfism, Muscular Dystrophy and Acid Attack victims). Any other category of disability can also be notified by the central government.

The UNCRPD clearly laid down the principles for empowerment of persons with disabilities as ensuring “respect for inherent dignity, individual autonomy, non-discriminatory, with full participation and inclusion in society,  with equality of opportunity, accessibility, and equality of men and women’’. Respect for differences and acceptance of persons with disabilities should be a part of human diversity and humanity, it said.

But while the 2014 Bill was silent on defining the principle of non-discrimination against persons with disabilities, the 2016 Bill, says that ``discrimination in relation to disability, means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation.’’ 

However, this comes with a rider. The Clause 3 (3) under Rights and Entitlements (Chapter II) says that no person shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of ‘’achieving a legitimate aim’’. Concerns were raised in Parliament on this clause with members expressing the apprehension that this provision could give unfettered powers to implementing agencies. Assuaging the fears, the Minister for Social Justice and Empowerment Mr. Thawarchand Gehlot gave an assurance that the government will ensure this does not happen.

The Bill, for the first time recognises women and children with disabilities as independent entities and says that ``the appropriate government and local authorities shall take measures to ensure that the women and children with disabilities enjoy their rights equally with others”.

Children with disabilities shall now have the right on an equal basis to freely express their views on all matters affecting them and provide them with appropriate support keeping in view their age and disability. The gender-specific clauses are integrated in many important chapters like health and social security although some of the provisions relating to termination of pregnancy and minimum penalty for outraging the modesty of a woman are inconsistent with other penal laws.

On the provision for guardianship of a person with disability, there is a shift. While the previous Bill held that if a district court finds that a ``mentally ill’’ person is not capable of taking care of himself or herself or of taking legally binding decisions, it may order guardianship to a person. The new Bill says that if a district court finds that a ‘person with disability’ is not capable of taking care of himself/herself or of taking legally-binding decisions, it may order guardianship to a person. This appears in conflict with the provision that ``the government shall ensure that the disabled enjoy ‘legal capacity’ on equal basis and equal recognition on all aspects of life, in addition to property and financial affairs’’. Guardianship is a touchy issue unless it comes with safeguards with regard to the person’s property and assets. However, the right to legal aid is a positive step.

The Bill provides for barrier-free access to persons with disabilities to government  and private hospitals and other healthcare institutions and centres wherein ``barrier’’ means any factor including communicational, cultural economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disabilities in society. According to sources keeping with Prime Minister Narendra Modi’s Accessible India Campaign, the Bill prescribes a time-frame for access to buildings, both public and private.

The Election Commission has to ensure that polling stations and election material are accessible to persons with disabilities while the government has to ensure that all public documents are in accessible forms.

Moving closer to the spirit of UNCRPD and widening the scope of sensitivity to persons with disabilities, the Bill says that “appropriate Governments shall, within the limit of their economic capacity and development, formulate necessary schemes and programmes to safeguard and promote the rights of persons with disabilities for adequate standard of living, to enable them to live independently or in the community.” Yet again, capping economic capacity is something that will unfold in days to come.

The Bill lays emphasis on vocational training and self-employment of persons with disabilities to include them in mainstream formal and non-formal skill training, provision of adequate support to avail specific training and - but most importantly and in a departure from the previous Bill-- help marketing products made by persons with disabilities.

Prior permission of a Committee for Research on Disability shall be sought for protection of persons with disabilities against cruelty and inhuman treatment. This will replace the earlier proposed Ethics Committee. Instead of National and State Commissions, Chief Commissioner and State Commissioner shall be appointed for identifying and suggesting corrective steps for actions inconsistent with the provisions of the Bill, review the safeguards provided and monitor utilisation of funds for the benefit of persons with disabilities. There will be a national fund and state-level fund for persons with disabilities. Central and State Advisory Boards shall be formed to advise governments on disability. States shall notify sessions court to be a special court in each district. Unlike before, its jurisdiction covers the state of Jammu and Kashmir.

It has been a common complaint of persons with disabilities that Certification is a long-drawn and harassing procedure and certificate given in one state is not recognised in another. The Bill provides for time-bound (90 days) issuance of Disability Certificate or reasons for not granting one. The government has already taken steps for providing all-India Unique Disability Identity Cards (UDIC).

Implementation of any law is of utmost important. But while retaining the monetary fines provided for in the 2014 Bill, the new Bill does away with the provision for imprisonment, somewhat diluting the punitive measure for non-implementation. On the other hand, the punishment for fraudulently availing any benefit meant for persons with disability may extend to two years with fine up to Rs one lakh or both.

Be that as it may, the Bill has had a chequered history. The previous Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995 gave effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. However, after India signed on October 1, 2007 the United Nations Convention on the Rights of Persons with Disabilities laying down the principles to be followed by the States Parties for empowerment of persons with disabilities, it had an international obligation to comply with the provisions of the said Convention. The Convention came into effect on May 3, 2008.This required a new legislation in consonance with the convention.

Besides, over a period of time, the conceptual understanding of the rights of persons with disabilities become clearer and there was worldwide change in the approach to handle the issues concerning persons with disabilities. Indian rights groups also brought pressure to bear on the government to ring in a new law on disability rights.

In 2010, the government set up an Expert Committee with Dr Sudha Kaul, Vice-chairperson of the Indian Institute of Cerebral Palsy, Kolkata, as the chair. The panel submitted its report in 2011 and came up with a Draft Bill. The Draft Bill was extensively debated upon at various levels involving State Governments and Union Territories and various stakeholders. Subsequently, in February 2014, the then government introduced the Bill in Rajya Sabha which has now been passed.

There are several provisions in the Bill that require outgo of funds to implement various provisions of the Bill, there is no estimate of fund requirement with the expectation that state governments will lift the bill for putting into practice the provisions of the Bill including creating barrier-free access. The Financial Memorandum states that ``since disability is a state subject under the Constitution, it is also expected that overtime the states will contribute for the implementation of programmes for the benefit of persons with disabilities, thereby contributing to the implementations of the provisions of the Bill.’’

Some of the activities that the Memorandum has listed are free education, identification of children with disability, provision of loans at concessional rates, provision of community centres, access to water, sanitation, aids, recreational centres, support infrastructure, various allowances, barrier-free access, rehabilitation in health, education and employment for all persons with disabilities, facilities at bus stops, railway stations, airports toilets, ticketing counters etc. conforming to accessibility standards, training of various functionaries and so on.

The Bill fills a much-felt need for a rights-enabled legislation for persons with disabilities. This was apparent from the unanimous support it got in both Houses of Parliament. It not only empowers persons with disabilities but also provides mechanism for redress of their grievances. However, the challenge is to implement it, both, at the central and state government level.

[Gargi Parsai is a senior journalist based in New Delhi. e-mail: gargiparsai@yahoo.com, Views expressed are personal]