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February 9, 2014

Comments on the Amendments to the Rights of Persons with Disabilities Bill as presented at “RPD Bill 2013 – Question of Protection of Equal Rights of Persons with Disabilities” at Jeevan Jyoti Hyderabad, on 8th February, 2014

 

Compiled by Prof. Amita Dhanda (NALSAR University), Amba Salelkar (Inclusive Planet Centre for Disability Law and Policy), Pavan Muntha (Swadhikaar)

 

Last night, the Ministry of Social Justice and Empowerment notified a list of amendments which were to be carried out on the Bill as introduced in Parliament yesterday at noon.  The Hon'ble Minister did not make any mention of the Amendments while introducing the law as seen from the Rajya Sabha transcripts, but it is reported that there was a Cabinet Meeting on 6th February 2014 for the purpose of discussing proposed Amendments to the Bill.

 

The Amendments are as follows, as seen from http://pib.nic.in/newsite/erelease.aspx?relid=103259

 

Definition of person with disability in terms of interaction with barriers also;

This is in line with the UNCRPD definition. Disability is recognized to be a social construct, which occurs not because of a person's impairment, but because of barriers which exist which prevent their full and equal participation in society.

Merely changing this definition changes absolutely nothing without a legislation that removes these barriers. This law in fact reinforces barriers like guardianship, identification of jobs etc. which are legislative barriers.

 

High support needs person enabled to take independent and inform decision also (sic)

Note: We assume this means “person with high support needs” to include persons who require high support to take independent and informed decision also.

Persons with high support needs are subjected to the procedure under Section 37 of the Bill where any person with benchmark disability, who considers himself to be in need of high support, or any person or organisation on his or her behalf, may apply to an authority requesting to provide high support, which in turn is to forward the request to the Assessment Board. There is no legal requirement for a hearing or even considering the request of the person with benchmark disability. In a sense, because of the inaccessibility of everything – all persons with benchmark disabilities come under the category of persons with high support needs, and even the sensory impaired persons  require “high support” to take independent and informed decisions e.g. materials in accessible formats etc. Therefore, the Assessment Board can impose conditions on the exercise of legal capacity by these persons also.

 

Definition of low vision will be notified by the Government;

No comment as no clarity.

 

The appropriate Government to take necessary steps to ensure reasonable accommodation for persons with disabilities;

The problem in the Bill is the recurrence of the use of the term “appropriate environment” instead of “reasonable accommodation”. This may be one section, but it is subverted throughout the rest of the Bill.

 

No person with disability will be discriminated on grounds of disability;

We would require to see the exact wording of this Section to ensure that there is no clause similar to the one which existed in the Bill which allowed for discrimination on the grounds of a legitimate aim. The definition of “discrimination on the ground of disability” is a specific term defined under the UNCRPD, which is not included under the Bill.

 

Appropriate Governments to ensure that the persons with disabilities enjoy legal capacity on an equal basis with others, in all aspects of life to have equal rights as any other person before law;

What is required is a definitive statement that all persons with disabilities have legal capacity. In fact, this is the true position under Law, and so why this position is being modified is impossible to comprehend.

 

Recognizing legal capacity of person with disability, limited guardianship would be the norm, to enable the person with disability to take joint decision with legal guardian;

Limited guardianship is defined as a system of “joint decision making”. However, the use of the term guardianship is contradictory to the principle of legal capacity, especially if it is to be “the norm”. In case of a conflict of interest, the Bill says that a support structure may be discarded – but in case of a conflict of opinion, there is no redressal. More importantly, the UNCRPD talks about recognizing legal capacity and the need to provide safeguards, which is still in question under this Bill.

 

Person with disability would also have the right to appeal against the decision of appointment of legal guardian;

A person with disability has no ability to appeal decisions taken on their behalf by a guardian. Clearly, if person with disability can express displeasure regarding the appointment of a guardian for them, the person is able to exercise legal capacity.

 

- Disability Certificate to be valid across the country;

Existing disability law from 1995, and the amended rules from 2002 already recognize the "applicability for all purposes" of the disability certificate. The real issue faced with regard to certification is at the level of implementation, and the constant need to renew it every 3–5 years, even in cases of permanent disabilities. The process is arbitrary and excruciating, and inter-state recognition is not sufficient, by any means, and means very little for PWDs who remain with their families in their hometowns/villages, or even those staying away who have to keep returning for renewals to their domicile District.

 

Educational institutions funded and recognized will have to provide inclusive education for children with disability;

This is a proposed amendment of Section 15. This doesn't help children with more than 40% disability, who enter into the realm of “special provisions for children with benchmark disability” in Section 30. A non obstante clause excludes the provision of the Right to Education Act, 2009, and children can be denied inclusive education and be sent to a special school “if necessary” - to be apparently deemed by the State, and not the parent, or child herself, which violates the UNCRPD and the Universal Declaration of Human Rights.

 

The appropriate Governments to constitute to expert committee with representation of persons with disabilities for identification of posts for Government employment for persons with disabilities;

The Hon'ble Supreme Court set aside the interpretation of the 1995 Act which allowed for reservations only within identified posts. It also overturns the same Judgement which says that legislative intent is clearly to include even private establishments by a conjoined reading of Section 33 and 41 of the 1995 Act with the definition of “Establishments”. The very concept of reservation of posts for persons with disabilities is against the spirit of the UNCPRD which empowers persons with disabilities to employment commensurate to their qualifications, and removes barriers by the provision of reasonable accommodation. The fact that there are token members of the Committee with disabilities is not making it better.

 

- Review period shortened from 5 years to 3 years in case of identified posts;

This still doesn't solve the problem, also, there is no provision for appealing the decisions of this committee which identifies posts.

 

- 5 per cent vacancies reserved for persons with disabilities will be computed against the total number of vacancies in the cadre strength;

The Explanation to Section 33 already provides for this: “For the purpose of this section, the computation of reservation of vacancies for the persons with benchmark disabilities shall be computed on five per cent, of the total cadre strength.”

 

- National Commission and State Commission will have power to exempt any post in an establishment from the purview of reservation for persons with disabilities;

Though this improves upon exemption of entire establishments it still perpetuates the discriminatory practice of blanket exemptions of posts for all persons with disabilities.

 

- For greater coverage and employability in Government sector, the appropriate Governments to prescribe relaxation for upper age limit for employment of PwDs;

Section 33 (3) already provides that the appropriate Government shall by notification, provide relaxation of upper age limit upto five years for employment of persons with bench mark disability. Does this Section further amend that? It is not clear.

 

- National Commission shall formulate and enforce regulations.

This is not clear. If this is regard to accessibility, it still limits the scope only to Establishments. The Section 39 now reads: National Commission shall, formulate regulations for the persons with disabilities laying down the standards of accessibility for the physical environment, transportation, information and communications, including appropriate technologies and systems, and other facilities and services provided to the public in urban and rural areas. Those provided by private entities are not included under this provision.  In any case, with regard to transport, the provisions are geared towards preventing accessibility (see below). There is no deadline for framing these regulations, so the question of enforcing these is a huge question mark. Even imposing a fine of Rs. 50,000 as provided for under the Bill is pointless if there are no regulations to adhere to.