ENABLE AND EMPOWER

The draft Rights of Persons with Disabilities Bill breaks new ground in protecting the civil and political rights of the disabled, says Hemchhaya De

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Syed Sallauddin Pasha feels that India needs an Anna Hazare to fight for disability rights. The art therapist-cum-classical dance trainer would know what an uphill task it is for persons with disabilities to make their mark. He has trained about 150 dancers with disabilities in his Delhi-based organisation, Ability Unlimited Foundation, known for its exquisite “Bharatanatyam on wheels” performed by dancers on wheelchairs.

“I have written several times to leading government organisations like Sangeet Natak Akademy to help differently-abled artistes in India participate in premier art festivals across the country,” says Pasha. “But unfortunately, unlike government-backed initiatives in the West, artistes with disabilities in this country are given short shrift.”

Pasha hopes the government will pass stronger laws to end such social inequalities. And he feels the recently drafted Rights of Persons with Disabilities (RPD) Bill, 2010, might just be the answer to his prayers.

In April last year, the ministry of social justice and empowerment appointed a committee to prepare a draft RPD Bill that seeks to replace the existing Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995. After a year of exhaustive state and national-level discussions with various stakeholders, the committee — comprising disability rights activists, government representatives, legal scholars and medical professionals — has submitted the final draft of the bill to the ministry.

“We have received the final draft from the committee we appointed. We’ll now follow the usual legislative process, such as inviting suggestions from state governments and sending them to a parliamentary standing committee, before it’s tabled in Parliament,” says a senior official at the ministry who does not wish to be named.

“This is a standard practice with all bills,” says Sudha Kaul, head of the Indian Institute of Cerebral Palsy, Calcutta, under whose chairpersonship the committee drafted the bill. “The proposed law seeks to put in place a charter of rights in accordance with the mandate of the United Nations Convention on Rights of Persons with Disabilities (UNCRPD) to which India is a signatory.”

The UNCRPD — which was adopted on December 13, 2006, at the United Nations Headquarters in New York — speaks of a “paradigm shift” in attitudes towards persons with disabilities. It says that the disabled should be seen not as objects of charity but as “subjects” who are free to exercise their rights like any other individual in society. The legislation proposed is inspired by these UNCRPD principles.

In addition to the 1995 Act, India has other disability-specific laws like the National Trust Act, which is concerned with the welfare of people with autism, cerebral palsy and multiple disabilities, and the Rehabilitation Council of India Act that regulates the training of rehabilitation professionals in the disability sector. Nevertheless, experts say these laws are narrow in scope. They stress that the need of the hour is a more comprehensive, rights-based law for persons with disabilities who constitute about two per cent of the Indian population.

Says Amita Dhanda, professor and head, Centre for Disability Studies, Nalsar University of Law, Hyderabad, who was part of the team which drafted the RPD Bill, “Yes, we have laws, but they are welfare-oriented. We do not have a rights-based law in the country and consequently the present legislation is required.” She adds that the existing disability law makes room for some of the socio-economic rights recognised by the UNCRPD such as education and employment. “But the law is totally silent on the issue of equality and non-discrimination. It does not look at the practical implementation of civil-political rights,” she says.

The draft RPD Bill, on the other hand, seems to be breaking substantial new grounds. Take the provision for service animals — the first time that such a provision has been included in a law for disabled people. Section 82 of the draft bill says, “The appropriate governments and establishments shall permit and facilitate the use of service animals by persons with disabilities on roads, buildings, all transport systems, public facility or service.” Furthermore, a person with disability will have the right “to be accompanied by a service animal without being required to pay an extra charge”.

The proposed law is also geared to the protection of the rights of women and children with disabilities. Experts say that women with disabilities are often forced to opt for sterilisation. Section 30 of the draft bill addresses this problem. It states, “Persons with disabilities, particularly women and children with disabilities, shall have the right to retain their fertility” and “no person with disability shall be subject to any medical procedure which leads to or could lead to infertility without their free and informed consent”.

Any violation of this will attract imprisonment and a fine. As Section 153 specifies, “whoever performs, conducts or directs any medical procedure to be performed on a woman with disability which leads to or is likely to lead to termination of pregnancy without her express consent” could face 10 years in jail along with a fine. And any caregiver, a parent or a guardian, who fails to prevent such wrongful medical procedure is also liable to be imprisoned and fined. Moreover, there is a provision for disabled persons to opt for postal ballot if they cannot vote in person, and for electoral booths to be made completely accessible to them. The bill also proposes 7 per cent reservation in higher education for the disabled, raising it from the current one per cent.

Most social activists who work with disabled persons are happy with the draft bill. Says Bhargavi Davar, director, Centre for Advocacy in Mental Health, Pune, “It is a very comprehensive legislation, and has covered vast new areas. We hope the sheer scope of the new legislation will lead to the immediate formation of a ministry for disability affairs, which the sector has been asking for, for a long time.”

However, one particular provision in the draft bill has come in for considerable criticism. This relates to “limited guardianship” or a joint decision-making process between a person with disability and his or her guardian. “The limitations on legal capacity compromises all the rights or freedoms promised in the draft,” insists Davar.

The drafting panel contends that the proposed bill, like the UNCRPD, recognises that all persons with disabilities can exercise legal capacity on an equal basis with others in all areas of life. “However, there is a duty on the part of appropriate governments to provide support. The choice to accept or refuse that support is with persons with disabilities,” says Dhanda. She adds that a number of persons with disabilities are in plenary guardianship today. A plenary guardian is one who takes decisions in the best interest of the person with disabilities but without consulting him or her. “The bill has replaced this system with limited guardianship,” says Dhanda. “Insofar as limited guardianship is required to operate on mutual understanding and trust, it is in consonance with the rights-based orientation of the law.”

On the whole, there is little doubt that the RPD Bill will usher a new era in disability rights in the country. For the differently abled, it may be the beginning of a better life.

The Telegraph

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