Â People with disabilities have been historically subjected to discrimination, stigmatised and condemned to the margins. The disabled were abandoned at temple gates, driven out of homes and in some cases left to die or even killed. Disability was considered a punishment for sins committed in the past life.
Even today, there exists an erroneous perception that disability is some sort of a disease that can be cured. Disabled persons continue to be taken to places of worship in the hope of finding a cure. Able bodied is the norm, while being disabled is still considered abnormal.
It is only in the later decades of the last century that affirmative action and anti-discriminatory legislations were put in place. Disability was not even considered for inclusion as a ground on which discrimination is prohibited in our Constitution.
Even when after a wait of 48 years after the country attained independence the Persons with Disabilities Act was passed, its overarching approach was one of charity.
A paradigm shift
India was one of the first countries to sign and ratify the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Having ratified it in 2007, it became obligatory for it to harmonize its laws in accordance with the Convention. An international human rights treaty, the UNCRPD aims to protect the rights and dignity of persons with disabilities. Signatories to the convention are required to promote, protect, and ensure the full enjoyment of human rights by persons with disabilities and ensure that they enjoy full equality under law. The Convention has brought about a paradigm shift in the way people with disabilities are viewed. From being viewed as objects of charity, medical treatment and social protection the shift is towards viewing them as equal members of society, with human rights. The Convention adopts a social model of disability, and defines disability as including those who have long-term physical, mental, intellectual or sensoryÂ impairmentsÂ which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
The Bill will make cards issued in one state valid throughout the country. It will also give legal backing to the UID
The process of synchronizing Indian laws began with the Ministry of Social Justice and Empowerment proposing to move a set of 105 amendments to the Persons with Disabilities Act, 1995. This was unanimously rejected by the disability sector which felt that amending a law written in the charity/medical model will not bring in the rights based perspective.
Under pressure from disability rights groups, the government agreed to frame a new law. Several Committees and drafts later, the Rights of Persons with Disabilities Bill was finally introduced in February 2014, when the UPA government was on its way out.
However, the overwhelming majority in the disability sector felt that it was a watered down version of the draft that the Ministry of Social Justice & Empowerment had put up in October 2012. Therefore they demanded it to be sent to the Standing Committee. The Standing Committee which submitted its
report to the new government in May 2015 addressed various concerns that the disability sector had flagged in its recommendations.
The passage of the Rights of Persons with Disabilities Bill, 2016 brings to an end a long and arduous wait which at times bordered on agony. For nearly two years we have been conducting a sustained and phased campaign for amending and passing the Bill.
Though the entire winter session was washed out, the passage of the Bill in both houses after a debate is welcome. Though the overwhelming mood in the disability sector is one of celebration, some feel that their concerns have not been addressed at all or are addressed inadequately.
Despite some inadequacies, the Bill, is a big advance upon the 1995 Act. The officially recognized number of disabilities is up from seven in the 1995 Act to 21. Conditions like deafblindness, hemophilia, multiple sclerosis, autism, thalassemia, Parkinsonâs disease, sickle cell disease, dwarfism, specific learning disabilities (like dyslexia, dysgraphia etc) and acid attack victims are some of the other conditions that are now recognised. The Bill also empowers the government to notify any other condition as a disability in future. This Bill provides for social security for persons with disability. It lays down that âappropriate Governments shall within the limit of its economic capacity and development formulate necessary schemes and programmes to safeguard and promote the right of persons with disabilities for adequate standard of living to enable them to live independently or in the communityâ. It also says that âthe quantum of assistance to the persons with disabilities under such schemes and programmes shall be at least twenty-five per cent higher than the similar schemes applicable to othersâ. It also makes provisions for support for women with disability for livelihood and for upbringing of their children, provision of aids and appliances, unemployment allowance, care-giver allowance, insurance scheme, free health care etc.
Poverty and deprivation is a reality for the vast mass of the disabled and their families. A big section of those born with disability or those who acquire some form of disability during their lives need a full time caregiver. In many cases an earning member of the family has to give up his/her job, in a majority of the cases the female member, thus reducing the familyâs income while at the same time increasing its burdens towards health care etc, thus pushing them further into deprivation.
Till now a certificate issued in one state was not valid in another. Different agencies of the same government demanded different certificates for different entitlements. A disabled person had therefore to carry a multiple number of certificates. Sometime back the government accepted our demand for a universally valid identity card. The Bill while making cards issued in one state valid throughout the country, gives legal backing to the UID that is going to be rolled out soon.
Inaccessibility of public and private buildings, spaces, transport, educational institutions, study material, communication, TV etc has been one of the biggest hindrances as far as the disabled are concerned. The Bill while specifying the measures to be taken by appropriate governments for accessibility has set a time limit of five years for making existing infrastructure and premises
accessible. As for service providers, the time limit is two years.
The Bill also stipulates that training on disability rights in all course for the Panchayat Raj members, legislators, administrators, police officials, judges and lawyers is mandatory. Another significant clause that would go far in sensitizing people in general is the provision for making disability a component for all education courses for schools, colleges, university teachers, doctors etc.
A host of official amendments were introduced to strengthen the Bill introduced in 2014. Private entities have now been brought within the purview of the definition of âestablishmentâ. A definition of
what would constitute âdiscriminationâ based on disability, another glaring inadequacy in the Bill, has been rectified through another official amendment. Another significant amendment made is the inclusion of specific provisions for women and children with disabilities. Reservation in promotions, for employees with disabilities, has also been provided for in the Bill.
One of the major drawbacks of the 1995 Act was the total absence of penal provisions. Lack of penal provisions for non-compliance, gave violators a free reign. For example the provision of accessibility â ramps in public buildings; adaptation of toilets for wheel chair users; braille symbols and auditory signals in elevators or lifts etc have all been mandated by the 1995 Act, but implementation was faulty. Twenty years down the line, the government has to come up with programmes like âAccessible Indiaâ.
Even the provision of 3 per cent reservation has been flouted. Even while courts have delivered favourable judgments the culprits have managed to go scot free. For people like Ira Singhal, for whom discrimination was not something new, what happened when she cleared the Civil Services examination in 2010 must have been shocking.
She was denied posting until she became a topper in 2014. Earlier, a batch of nine civil services aspirants who even after clearing the exams and getting favourable orders from courts, were denied induction. It took two years after a representation made by us to the then PM Manmohan Singh, and several follow-ups, for seven of them to get inducted. Had penal provisions existed in the 1995 Act they would have impacted positively.
Dilution of Some Provisions
Though this is being sought to be addressed in the current Bill, the provision for a jail term has, through an amendment, been done away with. Instead there will be a fine upto ten thousand rupees for the first contravention and for any subsequent contravention with a fine of not âless than fifty thousand rupees but which may extend to five lakhâ.
Another dilution has been with regard to the provision for reservation in employment. Whereas the original Bill provided for 5 per cent it has now been reduced to 4 per cent. Let us bear in mind that avenues of employment in the government and public sector are shrinking. PSUs are being privatized, government is outsourcing; and contracts have become the norm. Though a handful of private enterprises have started recruiting people with disabilities, they are just a trickle.
According to a Report published by the Niti Ayog in January 2016 66 percent of the disabled population is unemployed. While reservation in the private sector is not provided for, the Bill talks about offering incentives to the private sector for employing persons with disabilities.
The existing incentives in the form of payment by Government of the employerâs contribution to the
Employees Provident Fund and Employees State Insurance for the first three years have not achieved the desired results. Disincentives or penalties, as exist in some countries in the West, could have delivered better results.
The Billâs approval is a great step forward but effective implementation will be key and it still remains a big challenge
The structure of the office of the Chief and State Commissioners as it exists today is being maintained as opposed to the National and State Commissions provided for in the 2014 Bill. Although the functions of the Commissioners have been broadened, they remain recommendatory in nature. As far as legal capacity for persons with disabilities is concerned, there are clauses which contradict each other.
While on the one hand it says that governments will ensure that persons with disabilities enjoy legal capacity on an equal basis with others, the provision for guardianship runs contrary to this spirit.
A major concern with regard to the Bill was Clause 3(3) which states that âNo person with disability 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.â
This clause we opined gives unfettered power to the implementing agencies to discriminate against persons with disabilities, on the pretext of serving a âlegitimate aimâ. In response to amendments moved by the CPI(M)s Sitaram Yechury and others in the Rajya Sabha the Minister for Social Justice & Empowerment, Shri Thawar Chand Gehlot assured that provisions will be made in the rules to ensure that this clause is not misused to the disadvantage of persons with disabilities.
The Minister also assured that the provision with regard to reservation in employment will be ensured in the Act against the total number of vacancies in the cadre strength and not against identified posts. CPI(M) MPs had moved amendments to delete the words âposts meant to be filled by persons with Benchmark disabilitiesâ.
A similar provision in the 1995 Act was misinterpreted by governments to restrict the quota to identified posts only, with the Supreme Court having to intervene to give a correct interpretation.
The battle ahead
Because of its inadequacies,some activists are clamouring for a more UNCPRD compliant law
The Bill passed by both houses of Parliament is a big advance over the 1995 Act and brings in the rights based perspective.
However, there lies a big battle ahead for its implementation. And it is not going to be smooth.
Muralidharan is Secretary of the National Platform for the Rights of the Disabled