Not so disabled-friendly

The proposed Disabilities Bill is an exercise in haste and expediency

by Ajey Sangai and Manav Kapur

The past few weeks have seen intense criticism of the draft Rights of Persons with Disabilities Bill, 2014. It appears to be deliberately mendacious, paying lip-service to the UN Convention on the Rights of Persons with Disabilities (UNCRPD) while ignoring its basic features. Certain aspects of the Bill as well as the opacity of the procedure through which they were formulated are deeply troubling to those concerned with the disability sector.

India’s ratification of the UNCRPD in 2007 obliges it to bring Indian law in line with the same. The convention marks a paradigm shift in the way disability is conceptualised. It approaches disability through a ‘social’ rather than a ‘medical’ model, recognising that “disability… results from the interaction between impairments and… attitudinal and environmental barriers”. Therefore, a respect for differences and “full and effective participation” is guaranteed. This entails securing the legal capacity of disabled persons to make decisions for themselves, through supported decision-making when necessary. It also requires an examination of the de jure and de facto discrimination against persons with disabilities, which occur due to accessibility barriers and unsupportive environments.

The draft Bill runs contrary to all this. The mere peppering of definitions or provisions with little by way of functional roles provides for greater incoherence rather than a sustained engagement with principles laid down in the UNCRPD. Indeed, the law does not even provide a functional definition of ‘discrimination’ while claiming to prevent it. By not explicitly recognising legal capacity as an express right (as earlier drafts had suggested), but instead laying a “duty on the government”, the Bill seems to perpetuate the medical model of disability, placing limits of presumed incompetence. Under the patronising rubric of “best interest”, the rights of persons with disabilities are critically impaired. Various experts have spoken of their deep unease in defining benchmarks like “40 percent of the impairment” in allowing, among other things, reservation in educational institutions and employment under this Bill. When a person with disability is so certified, s/he is also deemed to be a person with high support need, thus making even the basic concept of support contingent on medical certification.

The approval of ‘plenary guardianship’ typifies the manner in which the Bill runs contrary to the UNCRPD regime. Instead of a ‘limited guardianship’ where a person with disability would be supported and his/her decision-making facilitated, the Bill allows substituted decision-making “when limited guardianship cannot be awarded”. In doing so without sufficient guidance to the courts, it takes away autonomy and agency.

The other major worry is the lack of transparency in the way in which the 2014 draft was created, and its lack of accountability to most of the original stakeholders in the drafting process.

The Bill has had a complicated history. In 2009, the Centre constituted a committee to help it formulate the UNCRPD-compliant law. It included members of government, academics and civil society, along with those who represented a cross-section of disabilities. A consultative process with other disabled persons and organisations culminated in the 2011 draft Bill. In 2012, the social justice ministry made some amendments. However, the 2014 version is at stark variance with both the earlier drafts. The Centre owes an explanation for these changes, as well as the fact that it did not follow a similar consultative process before incorporating them into the Bill. There has been talk of amending the Bill through the addition of a set of 20 non-negotiables. While this seems acceptable in theory, it’s doubtful if it is feasible to do so with such a flawed Bill.

The Bible tells us that the letter killeth, whereas the spirit giveth life. The draft Bill, which claims to be in consonance with the UNCRPD, while at the same time flouting its most significant provisions, stellarly demonstrates this dichotomy. India has yet a chance to enact a law that gives its disabled citizens the right to live a full and rich life. Human lives should not be squandered at the anvil of haste and political expediency.

Sangai and Kapur are Assistant Professors, Nalsar University of Law, Hyderabad

letters@tehelka.com.

(Published in Tehelka Magazine, Volume 11 Issue 9, Dated 1 March 2014)

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