Law · Public Policy

An Analysis of Rights of Persons with Disabilities Bill, 2014

The United Nations General Assembly in December 2006, adopted the Convention on the Rights of Persons with Disabilities.[1] As the first human rights treaty of the twenty-first century, the United Nations Convention on the Rights of Persons with Disabilities protects around 650 million persons with disabilities.[2] The purpose of the Convention 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.[3] The World Bank estimates that 20% of the world’s poorest people are disabled, and tend to be regarded in their own communities as the most disadvantaged[4]. The United Nations in fact has characterized the people with disabilities as the “world’s largest minority.”[5] The Convention spans a wide range of real-life issues in considerable detail, including accessibility, personal mobility, health, education, employment, habilitation and rehabilitation, and participation in political life, equality, and non-discrimination.[6] It marks a “paradigm shift” from thinking about disability as a social welfare matter to dealing with it as a human rights issue, which acknowledges that societal barriers and prejudices are themselves disabling. The Convention also highlights the necessity for, “effective legislation and policies, including women and child focused legislation and policies, to ensure that instances of exploitation, violence, and abuse against persons with disabilities are identified, investigated and where appropriate, prosecuted.”[7]

Consequently in India, the Ministry of Social Justice and Empowerment, constituted a Committee[8] chaired by Dr Sudha Kaul[9] with members representing persons with disabilities, NGOs and experts from the disability sector, to draft a new legislation to replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in accordance with the UN Convention on the Rights of Persons with Disabilities (CRPD). In order to ensure that the vision of this legislation is not affected by other related laws, it is suggested that the National Trust Act 1999, the Rehabilitation Council of India Act 1992 and the Mental Health Act 1987 are in harmony with this statute and the CRPD. It highlighted the necessity for the amendment of these legislations and suggested that, “the prejudicial disability related references in all other laws should be weeded out and the Disability Rights approach should inform all legislations addressing the issue of disability”. The establishment of a Ministry on Empowerment of Persons with Disabilities was also suggested for the proactive persuasion of the rights of people with disabilities. Other important suggestions included that all major schemes and programmes of the government should include a component of disability and that there should be convergence with other Ministries in respect of comprehensive coverage of children with disabilities. Also, Government authorities and organizations were recommended to have a Disability Experiential Expert and a Disability cell.

The Rights of Persons with Disabilities Bill, 2014 was introduced in the Rajya Sabha on February 7, 2013 by the Minister of Social Justice and Empowerment, Mr. Mallikarjun Kharge. The Bill repeals the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. In the Bill, disability is defined to include 19 conditions including autism, low vision and blindness, cerebral palsy, deaf blindness, haemophilia, hearing impairment, leprosy, intellectual disability, mental illness, muscular dystrophy, multiple sclerosis, learning disability, speech and language disability, sickle cell disease, thalassemia, chronic neurological conditions and multiple disability.  The Bill states that persons with disabilities shall have the right to equality and shall not be discriminated against on grounds of their disability.[10]  Rights of disabled persons include protection from inhuman treatment and equal protection and safety in situations of risk, armed conflict, humanitarian emergencies and natural disasters. All existing public buildings shall be made accessible for disabled persons within five years of the regulations being formulated by the National Commission for Persons with Disabilities.  No establishment will be granted permission to build any structure, issued a completion certification or allowed to occupy a building, if the building does not adhere to the regulations formulated by the Commission.[11]

The Bill also provides for the access to inclusive education, vocational training and self-employment of disabled persons. All government institutions of higher education and those getting aid from the government are required to reserve at least five percent of seats for persons with benchmark disabilities. The central and state governments have to identify posts in establishments under them to be reserved for persons with benchmark disabilities.  At least five percent of the vacancies are to be filled by persons or class of persons with at least 40 percent of any of the disabilities.  Of this, one per cent shall be reserved for persons with (i) blindness and low vision; (ii) hearing and speech impairment; (iii) locomotor disability; (iv) autism, intellectual disability and mental illness; and (v) multiple disabilities.  The Bill provides that the reservation has to be computed on the basis of total number of vacancies in the strength of a cadre.  The government may exempt any establishment from this provision.[12]

Disabled persons may inherit both movable and immovable property. In case of persons with disability, a legal guardian maybe appointed by the Court. The District Court may grant plenary guardianship to the mentally ill person under extraordinary situations where limited guardianship could not be awarded.[13] The Bill defines plenary guardianship as “a guardianship whereby subsequent to a finding of incapacity, a guardian substitutes for the person with disability as the person before the law and takes all legally binding decisions for him and the decisions of the person with disability have no binding force in law during the subsistence of the guardianship and the guardian is under no legal obligation to consult with the person with disability or determine his or her will or preference whilst taking decisions for him” and limited guardianship as “a system of joint decision which operates on mutual understanding and trust between the guardian and the person with disability”. Commissions for Persons with Disabilities will be established on a National and State level. The Commission, constituting of experts will have to perform various functions including identify laws, policies, etc. inconsistent with the Act, inquire into matters relating to deprivation of rights and safeguards available to disabled persons, monitor implementation of the Act and manage the utilization of funds disbursed by governments for the benefit of disabled persons. “Advisory Boards on Disability” shall be constituted by Central and State Governments at both the Central and State level.  The boards shall advise governments on policies and programmes on disability and review the activities of organisations dealing with disabled persons.[14]

Chapter III deals with Education and states that the appropriate Government and the local authorities shall endeavour that all educational institutions funded by them provide inclusive education to the children with disabilities and make necessary provisions and facilities.[15] All educational institutions funded or recognized by the government have a duty to provide inclusive education. This is required by the Convention on the Rights of Persons with Disabilities, however, there is no transition plan to move a set up with adequate number 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. The government must address this and elaborate the long-term strategy for inclusive education. The new clause, which 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 Convention on the Rights of Persons with Disabilities principles since it presumes, wrongly, that persons with disabilities can only perform some jobs or tasks.[16] Hence though the Bill is an attempt to modify flaws of the Act of 1995, it requires certain modifications and cannot be passed hurriedly.

[1] Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. GAOR, 61st Sess., U.N. Doc. A/Res/61/106 (Dec. 13, 2006)

[2] Michael Ashley Stein and Janet E. Lord, “Monitoring the Convention on the Rights of Persons with Disabilities: innovations, lost opportunities, and future potential”, Human Rights Quarterly 32.3 (2010): 689-728

[3] Rodrigo Jimnez Sandoval, Gender in the Convention on the Rights of Persons with Disabilities, 60 Ala. L. Rev. 1197 2008-2009

[4]UN Web Serv. Sec., Dep’t of Pub. Info., Some Facts about Persons with Disabilities, http://www.un.org/disabilities/convention/facts.shtml (last visited Apr. 9, 2007)

[5] Don MacKay, The United Nations Convention On The Rights Of Persons With Disabilities, 34 Syracuse J. Int’l L. & Com. 323 2006-2007

[6] Ibid.

[7] Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. GAOR, 61st Sess., U.N. Doc. A/Res/61/106 (Dec. 13, 2006)

[8] Notification F.No. 16-38/2006-DD.III dated 30th April 2010

[9] Dr. Sudha Kaul serves as Vice-Chairperson and Trustee of Indian Institute of Cerebral Palsy (Formerly Spastics Society of Eastern India). Dr. Kaul has been Independent Non Executive Director of Goodricke Group Ltd. since September 1, 2000. Dr. Kaul is an eminent Administrator and Social worker.

[10] Clause 3, The Rights of Persons with Disabilities Bill, 2014, Bill No. I of 2014

[11]Bill Summary, “The Rights of Persons with Disabilities Bill, 2014”, http://www.prsindia.org/uploads/media/Person%20with%20Disabilities/Bill%20Summary-%20Right%20of%20Persons%20with%20disabilities%20bill.pdf

[12] Ibid.

[13] Clause 13, The Rights of Persons with Disabilities Bill, 2014, Bill No. I of 2014

[14]Bill Summary, “The Rights of Persons with Disabilities Bill, 2014”, http://www.prsindia.org/uploads/media/Person%20with%20Disabilities/Bill%20Summary-%20Right%20of%20Persons%20with%20disabilities%20bill.pdf

[15] Clause 15, The Rights of Persons with Disabilities Bill, 2014, Bill No. I of 2014

[16] The Hindu, The Disabilities Bill is a mixed bag, http://www.thehindu.com/news/national/the-disabilities-bill-is-a-mixedbag/article3927212.ece

About the Author

2015-01-07 23.52.14-5

Kundhavi is currently pursuing her final year of Law at Gujarat National Law University. Her core areas of interest include Corporate Law and Economic Analysis of Law. She is also an artist and loves travelling. She is currently interning with the Model Governance Foundation.

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