India needs new legislation on Disability Rights

The Ministry of Social Justice and Empowerment of the Government of India has been holding national consultative meetings on proposed amendments to the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act (PWD Act). Meetings have been held in Delhi, Guwahati and most recently in Kolkata on March 13, 2010. The debate centres on whether there should be amendments to the existing law, or whether there should be a new law.

The Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, (PWD Act) of 1995 had heralded a new dawn in the lives of disabled people in India. For the first time in the history of independent India, a separate law had been formulated which talked about the multiple needs of disabled people. Very soon, though, activists as well as disabled people felt that the law had too many loopholes. However, this Act did help disabled people to come together, forming groups as they started making demands to implement this law.

To the delight of disability groups, India ratified the UN Convention on the Rights of Persons with Disabilities (Disability Convention) in October 2007. This Convention marks a formal shift from the archaic medical model to the social model, and promotes the rights of people living with disabilities. Article 1 encapsulates the overall objective of the Convention which is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”

The Convention recognises that persons with disability are right-holders instead of passive recipients of government schemes. In contrast, the PWD Act has a different foundation. The PWD Act was enacted in order to implement the Proclamation on the Full Participation and Equality of People with Disabilities, an instrument that did not expressly recognise rights, but laid emphasis on the need to eliminate physical and social barriers so as to promote the participation of people living with disabilities. The PWD Act, thus, does not internalise any of the core principles that form the bedrock of the Disability Convention.

Retain or recast?

There is a definite need to review the existing legislative framework in India to examine whether it adequately promotes the rights contained in the Convention. The Disability Convention imposes two key legislative obligations: (1) to ensure that the rights contained in the Convention are realised and (2) to ensure that existing laws and practices that are discriminatory towards people living with disabilities are repealed or amended to bring them in line with the Convention.

Since its ratification by India, there has been much discussion of the manner in which Indian laws must be modified or harmonised to give effect to the obligations under the Convention. While the Ministry of Social Justice and Empowerment (MOSJE) has proposed 108 amendments to the PWD Act including 50 new provisions, the Disabled Rights Group (DRG) led by Javed Abidi has unequivocally stated that the PWD Act has served its time and that there is a need for a new law.

Consultations on this issue at national and zonal levels are going on throughout India right now. Advocate Kanchan Pamnani, who is blind herself, says that the old law will need more than 300 amendments to make it suitable to our times, and obviously it is better to frame a new one than make 300 changes in the old one. Shukla Bhadury, mother of two disabled children agrees. She says it is ridiculous that government is even considering so many amendments. “Even in the amendments, punitive actions are not mentioned,” comments Sritama, a law student and member of Campaigners for Inclusion. “Any law without punitive action will not work in this country,” she says.

Let’s examine the differences between the Disability Convention and the present PWD Act to see why such passionate pleas to repeal this law are coming from all quarters.

Purpose

It is clear from the objectives of the Convention that civil and political rights and economic, social, and cultural rights stand on the same footing and that the state must make efforts to realise both. The PWD Act barely provides for civil and political rights and the amendments proposed by the MOSJE, too, neglect these rights.

Construction of disability

The PWD Act adopts a narrow definition of disability and confines it to “blindness; low vision; leprosy-cured; hearing impairment; locomotor disability; mental retardation; and mental illness”. As opposed to this, the Disability Convention recognises that “disability is an evolving concept” and avoids listing specific conditions and severities and broadly casts “persons with disabilities” to “include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

Foundational principles (Article 3)

The core human rights principles stated in Article 3 of the Disability Convention are respect for inherent dignity and individual autonomy; non-discrimination, full and effective participation and inclusion; respect for difference; equality of opportunity; accessibility, gender equality; respect for the evolving capacity of children with disabilities and their right to preserve their identities.” These general principles have been well etched in several provisions of the Convention.

The amendments proposed by the MOSJE merely replicate Article 3 without incorporating the provisions which further the principles such as those relating to civil and political rights, rights of women and girls with disabilities, and several other rights stated below.

Extent of application (Article 4(1)(e))

The Disability Convention requires the state to address discrimination on the basis of disability even in the private sector. The amendments proposed to the chapter on discrimination fail to expressly prohibit discrimination on the basis of disability or spell out the consequences for the same.

Recognised rights

The Disability Convention expressly recognises the following rights:

1. Right to equality and non-discrimination. It also recognises the need to provide for reasonable accommodation in order to further the right to equality.
2. Right of women and girls with disabilities to full and equal enjoyment of all human rights and fundamental freedoms.
3. Right of children with disabilities to full and equal enjoyment of all human rights and fundamental freedoms. A child’s right to express views on matters affecting him/her is also recognised.
4. Right to access to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, in urban and rural areas.
5. Right to life.
6. Right to protection and safety in situations of risk, armed conflict, humanitarian emergencies, and natural disasters.
7. Right to recognition before law. The right to legal capacity is also included.
8. Right to access justice with procedural and age-appropriate accommodations.
9. Right to liberty and security of person.
10. Right not to be subjected to cruel, inhuman or degrading treatment or punishment.
11. Protection from exploitation, violation and abuse, gender-based and otherwise.
12. Right to respect for physical and mental integrity.
13. Right to freedom of movement and the right to acquire and change a nationality.
14. Right to live in the community and choose place of residence.
15. Right to freedom of expression.
16. Right to privacy.
17. Right to marry and found a family.
18. Right to retain fertility and other reproductive rights.
19. Right to education.
20. Right to the enjoyment of the highest attainable standard of health.
21. Prohibition on discrimination on the basis of disability in employment.
22. Right to an adequate standard of living including adequate food, clothing, and housing.
23. Right to participate in political and public life including the right to vote and to be elected.
24. Right to participate in cultural life

While most of the above rights can be gleaned from the Indian Constitution, a glance at the existing PWD Act shows that it can hardly be termed a rights-based legislation. It recognises only the right to education, provides for reservations in employment and for half-hearted measures to reduce physical barriers. It also prohibits establishments from discriminating against an employee because of his/her disability.

These abovementioned rights must be codified in the form of a statute that is more likely to be invoked by people living with disabilities and can also be used to ensure that the state fulfils its obligations towards each of the rights. The amendments proposed by the MOSJE fail to provide for a majority of civil and political rights such as the right to recognition before law, right to privacy, right to marry, right against torture etc. Discrimination has been addressed only in transport and in-built environment. Clause 46A (2) of the proposed amendments leaves it to the government to frame ‘policies’ to ensure equal access to education, health, employment and other public services. It fails to expressly prohibit discrimination on the basis of disability.

Further, the rights that appear in the PWD Act do not measure up to the standards set out in the Convention. For instance, Sections 44-46 of the PWD Act require establishments and the government to take “special measures” to enable people with disabilities to gain better access to public transport, buildings, and roads. However, such measures could be undertaken only if it were “within the limits of their economic capacity”. A mere deletion of these words without fleshing out how rights may be realised will be unfruitful.

Without a strong implementation mechanism, the few rights that have been added on will be deprived of meaning. For instance, the Act empowers the Disability Commissioner to “recommend” necessary action to appropriate authorities in order to address “deprivation of rights”. This recommendation is of no binding value and the authority can reject it thus rendering the office of the Commissioner toothless as before.

Conclusion

The PWD Act will require a complete overhaul. The Act must be recast to comprehensively provide for all the rights recognised under the Convention. In a letter to the minister of social justice and empowerment, (http://uncrpdandlaw.nileshsingit.org/blog/letter-to-hon-ble-minister-for-social-justice-and-empowerment) the Disability Rights Group has said that the amendments proposed by the ministry do not mirror the rights-based framework of the Convention. In the past, the Juvenile Justice Act, 1986, was re-enacted in the form of the Juvenile Justice (Care and Protection of Children) Act, 2000 to give effect to India’s obligation under the UN Convention on the Rights of the Child.

Involvement of stakeholders is inherent in a rights-based approach and their exclusion will be discordant with the soul and spirit of the Disability Convention. The form that the harmonisation should take must be thoroughly discussed and debated in consultation with various stakeholders and the government cannot afford to take the decision unilaterally.

With strong voices rising from within the disability sector, can the state remain inattentive to this demand? “It’s the decision of our lives, and we will not allow a few officers in the ministry to force down their opinion on us anymore, whatever comes,” says Rajarshi Chakrobarti, secretary of Swabalamban, a West Bengal-based organisation with more than 1,500 disabled members.

Source: http://infochangeindia.org/201003228194/Disabilities/Analysis/India-needs-new-legislation-on-Disability-Rights.html


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