This article was written by Turab Chimthanawala from Dr. Ambedkar College, Nagpur while he was interning with iPleaders. Turab himself is visually challenged.
Disability primarily means an inability or a shortcoming in some respect. This may be visual disability, hearing disability, physical disability, mental disability etc. Sadly, until recently in India disabled persons were considered as ‘inferior’ to other so-called normal people. Forget helping and caring for such people, some insensitive and unscrupulous people even enjoyed making mockery and even taking advantage of such persons. Handicapped persons were considered as a distinct class and could not easily mix with others. For instance a blind child could not find place in a normal school and had to be admitted to a blind school. Such an atmosphere worsened the plight of handicapped persons and resulted in further lack of confidence and mental agony.
The attitude towards handicapped persons is undergoing change in the recent years. This has happened to an extent due to broad minded thinking of people due to spread of education and deviation from age old customs and practices. The Government has also played its part by making reservations for handicapped persons in public sector jobs, state run educational institutions, reducing the passing cut off in competitive exams like UPSC, MPSC. Some educational institutions have even introduced fee waivers for handicapped people. Now, at airports wheel chairs and escorts are readily available for handicapped people.
In spite of all this a lot needs to still be done for the welfare and greater acceptability of the handicapped persons. Thus the UN has incorporated a convention on Rights of persons with physical disability in 2007 to which India is a signatory. The Rights of Persons with disabilities Bill, is part of India’s obligation towards the UN Convention on Rights of Disabled Persons.
History of the Bill
The government replace the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act of 1995 with the new Bill. . To set forth this task a committee was set up by the Ministry of Social Justice and Empowerment under Sadhna Kaur. This committee as required by the UN convention comprised of persons of different disabilities.
The committee prepared a draft bill in 2011 which was submitted to the ministry. The ministry in response to that or otherwise released a draft bill in 2012. However this draft was less comprehensive and inclusive than the 2011 draft. It faced serious reactions when the ministry notified it.
Thereafter, the bill mostly in its 2012 format was sent for circulation among the cabinet ministries and states. Some version of the bill was cleared by the Cabinet in December 2013.
I am collating merits and demerits of the bill from some newspaper articles below.
Merits of the bill (detailed reference in the Times of India)
- Firstly the bill clearly defines the term ‘disability’. For a person to be considered as ‘disabled’, he shall suffer more than 40& disability. This bill seeks to increase the reservation from 3% to 5% in public sector and also to reserve seats in higher educational institutions. At present, the reservation for the disabled is only 3% in the ratio of 1% each for the physically, visually and hearing-impaired persons. As per the new bill, the reserved quota will be extended by 2%, covering two new additional categories – mentally disabled and people with multiple disabilities.
- The bill also seeks to increase the number of disabled categories covered from 7 to 19 sub-categories, however this will take time as the Rajya Sabha seeks to set up a standing committee to look into this. If the chairman Hamid Ansari agrees to send the Bill to the parliamentary panel, then it won’t be passed during the current session. The decision to refer the matter to the standing committee was taken die to the demands of the CPM members in the Upper House.
- The new bill divides the broad categories into various sub-categories, thus including a large number of disabilities within its ambit. It includes even disabilities like sickle cell disease, thalassemia and muscular dystrophy besides autism, spectrum disorder, blindness, cerebral palsy, chronic neurological conditions, mental illness and multiple disabilities.
- The bill prescribes provisions to prevent disabled persons from being harassed while obtaining disability certificates and also lays down stringent punishment of six months to five years of imprisonment and a fine from Rs 10,000 to five lakhs for any violation of its provisions.
- Other positives of the bill include setting up National Commission for Persons with Disabilities, which will have statutory powers besides establishing a dedicated National Fund for Persons with Disabilities.
Demerits of the Bill
Some Disability Rights Organizations have however criticised the bill and suggest modifications in the bill.
- Some groups have opined that it is not in conformity with the UN Convention on Rights of Persons with Disabilities.(as per an article in The Hindu)
“The Chennai-based Disability Rights Alliance (DRA), a conglomerate of disability rights activists, says the Bill is “regressive and retrograde,” and does not adopt the United Nations Convention on the Rights of Persons with Disability (UNCRPD) in its true spirit. The DRA and several other organisations said Section 110 of the Bill provided that its provisions shall be in addition to, and not in derogation of, the provisions of any other law in force, which effectively meant that all laws which actively discriminated against persons with disabilities remained untouched. This violated the State’s obligation under the U.N. convention to take all appropriate measures, including legislation, to modify or abolish laws, regulations, customs and practices that constituted such discrimination .‘According to the UNCRPD, state parties are to grant an unconditional right to equality and non-discrimination to all persons with disabilities, on a par with others. In this Bill, the Right of Equality is curtailed under Section 3(3), which says the right against discrimination exists ‘unless it can be shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.’” The terms “proportionate means” and “legitimate aim,” it said, are highly subjective and can perpetuate discrimination .Further, the statement said, and the UNCRPD lays down specific obligations of the State while discussing multiple discrimination faced by women with disabilities. States are obliged to take measures to ensure that they enjoy fully and equally all human rights and fundamental freedoms .However, the Bill fails to acknowledge these beyond a cursory “hat tip” in Section 3(2), which says the appropriate government shall take special measures to protect the rights of women and children with disability and also take steps to utilise the capacity of persons with disabilities by providing an appropriate environment. This is limited to “protection” of rights and not empowerment.”
- The bill also has been criticised as compared to its previous versions (extensive reference in an article in The Hindu) While the earlier version of the Bill lays almost equal emphasis on special schools (catering only to children with disabilities) and inclusive schools (catering to all children in a common environment), the new version appears to strongly support the integration of children with disabilities into an inclusive education framework. As per the new version all educational institutions funded or recognized by the government have a duty to provide inclusive education. While in theory this is the correct move and is mandated by the UNCRPD, this approach is risky since there is no transition plan to move a set up with adequate numbers of trained teachers and proper infrastructure. Without such a plan, it is likely that an entire generation of persons with some types of disabilities such as children who are deaf-blind (requiring specialized training) and children in wheelchairs (requiring accessible infrastructure) who join the ill-equipped mainstream school system immediately after enactment will be lost in the cracks and get no education whatsoever.
- Another serious criticism is that this new bill provides that reservation for persons with disabilities shall be only for the specific posts that are expressly identified by the concerned authority. Thus, even if a person is able to do the work required for a particular post, he will be ineligible unless it is specifically reserved. This is highly controversial and violates UNCRPD principles since it presumes, wrongly, that persons with disabilities can only perform some jobs or tasks.(extensive reference in an article in The Hindu]
The Disabilities Bill 2014 is a landmark in moving towards creating a better environment for the handicapped persons and will go a long way in enhancing the quality of life of such persons and ensuring that they enjoy all rights and liberties as citizens of a democracy. However, there is still much to be asked for. It is imperative that this Bill becomes codified as soon as possible after looking into some of the loopholes and then its provisions should be strictly followed and implemented.