friends
This is the summery of proposed amendments in disabilities act put up by MSJE.
Let us think and formulate our opinion.
I will post my views on wednesday.
expnote[1].pdf
An Explanatory Note
on
the proposed amendments in
the Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full
Participation Act), 1995
1. Background
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(i) A Meeting to Launch the Asian and Pacific Decade of Disabled Persons
1993-2002, convened by the Economic and Social Commission for Asia and Pacific
(ESCAP), was held at Beijing in December, 1992. The Proclamation on the Full
Participation and Equality of People with Disabilities in the Asian and Pacific
Region was adopted in this meeting, to which India is a signatory.
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(ii) The subject of "Relief to the disabled" is covered under Item 9 of the
State List in the
Constitution of India. However, the Central Government enacted The Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation
Act), 1995 to
implement this proclamation. The Act was enacted under
Article 253-("Legislation for
giving effect to international agreements") of the Constitution of India, read
with item No.
13 -("Participation in international conferences, associations and other bodies
and
implementing of decisions made thereat") of the Union List.
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(iii) The National Policy for Persons with Disabilities, which was adopted on
10.2.2006, envisages amendments to the Act in consultation with the
stakeholders.
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(iv) An extensive consultation with the stakeholders was held with the State
Government
representatives, NGOs, disabled persons' organizations and experts in the field
as
follows:
(a) At Patna - on 11.7.06 - for the Eastern Region
(b) At Chennai - on 18.7.06- for the Southern Region.
(c) At New Delhi - on 14.8.07- for the Northern Region
(d) At Goa - on 19.11.07 - for the Western Region.
The last two meetings were held after the United Nations Convention on the
Rights of
Persons with Disabilities (UNCRPD) was signed by India on 30.03.2007, so that
its
provisions could be taken into consideration.
(v) During the course of consultation, various stakeholders were requested to
submit their suggestions in writing. The suggestions received were compiled
in a report submitted on 27.03.2008 by the then Advisor, Rehabilitation Council
of India.
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(vi) The UNCRPD was ratified by India on 01.10.2007 and has come into effect on
03.5.2008.
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(vii) Draft amendments were formulated considering the suggestions received and
the need for harmonization of the Act with the provisions of the National
Trust Act, 1999.
(viii) The proposal for amendment in the Act was placed before Central
Coordination Committee (CCC), constituted under Section 3 of the Act, on
21.7.09.
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(ix) The proposal has been revised, taking into consideration the suggestions
received in the CCC meeting, and the latest version of the proposed amendments
is enclosed.
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2. Summary of proposed amendments
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(i) Changes in Definitions (in Chapter I)
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(a) "Autism" is a disability in the National Trust Act, but not in the PwD Act.
Likewise, "multiple disabilities" is defined in the National Trust Act.
It is proposed to add definitions of "autism" and "multiple disabilities" in
the PwD Act, in line with the definitions given in the National Trust Act.
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(b) Definition of "rehabilitation" is proposed to be modified and definitions
of , "communication", "discrimination on the basis of disability", "inclusive
environment", "language", "public building", "reasonable accommodation" and
"universal design" are proposed to be added, in line with the provisions of
UNCRPD.
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(c) Definitions of "blindness", "hearing impairment" and "persons with low
vision" are proposed to be revised to make them more accurate, based on the
recommendation
of the Expert Committee set up by this Ministry under the chairmanship of DGHS.
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(d) Definition of "appropriate Government" is proposed to be improved.
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(e) Other important definitions proposed to be added are- "local authority" and
"poverty alleviation schemes".
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(ii) Guiding Principles
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A new "Chapter III-A-Guiding Principles for Appropriate Governments and Local
Bodies", is proposed to be included - based on Art.3 ("General Principles") of
the UNCRPD.
This Chapter lists the steps to be taken by appropriate Governments and local
authorities, within
their economic capacity, to secure various rights of persons with disabilities,
as follows:
(i) Respect for inherent dignity, individual autonomy including the freedom to
make
one's own choices, and independence of persons;
(ii) Non-discrimination;
(iii) Full and effective participation and inclusion in society;
(iv) Respect for difference and acceptance of persons with disabilities as part
of
human diversity and humanity;
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(v) Equality of opportunity;
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(vi) Accessibility;
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(vii) Equality between men and women;
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(viii) Respect for the evolving capacities of children with disabilities and
respect for the right of children with disabilities to preserve their
identities.
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(iii) Access for persons with disabilities
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(a) The existing provisions relating to access for persons with disabilities
are contained in
Sections 44, 45 and 46 relating to non-discrimination in transport, on the road
and in
the built environment, respectively. It is proposed that the proviso "within
the limits of
economic capacity and development' be removed. Further, it is proposed to
provide for
specification of time-limits for making the transport sector, roads and the
built
environment barrier-free. The notification in this regard would have to be
issued within
one year of enactment of the Amendment Act and the time limit shall not be
later than
31.12.2017.
(b) A new "Section 46B-Accessibility of Information in the public domain to
persons
with disabilities" is proposed to be added. This Section is based on Art.
21("Freedom of
expression and opinion and access to information") of the UNCRPD. This Section
will make it mandatory for appropriate Government and local bodies to ensure
availability
of all information in the public domain in accessible format suitable to the
needs of
persons with disabilities and notification of standards for accessibility of
websites.
(c) A new sub Section 48(2) is proposed to be added, relating to research and
development
in the area of universal design, which is also ultimately expected to improve
access for
persons with disabilities.
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(iv) Rehabilitation
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A new Chapter IVA ("Rehabilitation"), is proposed to be included, replacing the
existing
provisions of Section 42 ("Aids and appliances to persons with disabilities")
and 66 (""Appropriate
Governments and local authorities to undertake rehabilitation"). A new
provision is proposed
regarding involving family care givers and guardians of persons with
disabilities in their
rehabilitation, for which adequate training shall be provided.
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(v) Education
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(a) Section 26 ("Education of children with disabilities at the school level")-
The concept of inclusive education at the school level is proposed to be
introduced, to bring it in line with the present policy under the Sarva Shiksha
Abhiyan and Art. 24 ("Education") of the UNCRPD.
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(b) A new Section 26-A ("Distance Education of Persons with Disabilities above
18 years of age to be free upto the senior secondary stage") is proposed
to be introduced, to provide free education through distance education for
persons with disabilities upto senior secondary stage irrespective of age.
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(c) A new Section 26 B ("Higher and Professional Education"), is proposed to be
introduced to promote higher education for students with disabilities.
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(d) A new Section 27 ("Education of children with learning disabilities"), is
proposed to be introduced (replacing the existing Section 27) to improve the
coverage of the subject of education in the Act to give attention to children
with learning disabilities. The present Act has no provisions whatsoever
about children with learning disabilities.
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(e) A new Section 27A ("Education of children with cerebral palsy and children
with multiple disabilities, especially deafblind children"), is proposed
to be introduced to improve the coverage of the subject of education in the Act
to give attention to children with cerebral palsy and children with multiple
disabilities, especially deafblind children.
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(f) In Section 30 ("Appropriate Governments to prepare a comprehensive
education scheme providing for transport facilities, supply of books, etc."),
suitable
amendments are being proposed to accommodate the special requirements of
visually impaired and hearing impaired children with regard to evaluation system
and curriculum.
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(g) The scope of Section 31 ("Educational institutions to provide amanuensis to
students with visual handicap") regarding provision of amanuensis to students
with disabilities, is proposed to be expanded to include persons with
disabilities in the writing upper limb, including students with cerebral palsy.
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(h) The scope of the section Section 39 ("All educational institutions to
reserve seats for persons with disabilities"), which covers Government and
Government-aided
institutions, is proposed to be extended by including all recognized
institutions, which would be required to provide 3% reservation (Section 31A
replaces
Section 39).
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(vi) Reservation in Government Employment
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Amendments are proposed in Section 33 ("Reservation of posts"), for reservation
by
appropriate Government, to:
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(a) bring about clarity regarding coverage of organized services for the
purposes of reservation
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(b) split the 1% quota for reservation for persons with blindness and low
vision, to provide for 0.5% reservation in each sub-category
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(c) enable the appropriate Government to provide quota for reservation for
other types of disabilities also, and
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(d) carry forward unfilled vacancies for the next three years (instead of the
present period of one year) so that the benefit of reservation is not denied
to persons with disabilities- this is in line with the recommendations of the
GOM in July, 2008
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(vii) Incentives to employers
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With regard to Section 41 ("Incentives to employers to ensure five percent of
the work force
is composed of persons with disabilities"), the incentives are now proposed to
be provided
only to employers in the private sector, since the public sector is already
mandated as per law to
provide reservation in employment and there is no justification for giving
incentives.
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(viii) Care and Protection, Health-care, and Social Security
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(a) A new Chapter VA ("Healthcare") is proposed to be added based on Art. 25
("Health") of the UNCRPD, to provide for appropriate Governments and local
authorities to provide healthcare to persons with disabilities within a
reasonable distance from their location, especially in rural areas. The
healthcare
is to be provided free of cost for persons with disabilities whose family
income is below limits as notified by the appropriate Governments. Barrier-free
access is to be provided in Government run or aided
hospitals/institutions/centres and priority in attendance is to be given. The
Act, at present, has
no provisions regarding healthcare.
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(b) Section 56 ("Persons with Disabilities in need of Care and Protection") -
The appropriate Governments would be required to promote care and protection
of persons with disabilities in the family and the community and establish and
maintain homes where there is no family/community support. Special attention
is to be given to persons with severe disabilities and women and children with
disabilities.
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(c) A new Section 66 ("Maintenance Allowance and Disability Pension") is
proposed to be added, replacing the existing section, to provide social security
for persons with disabilities, especially to those with severe and multiple
disabilities, especially women, by appropriate Governments, within the limits
of their economic capacity and development.
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(d) Section 67 ("Insurance")- The existing Section, which only covers insurance
of employed persons with disabilities, is proposed to be replaced with a
Section on a comprehensive insurance scheme for persons with disabilities in
general.
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(ix) Delivery of public services
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A new Section 46A ("Delivery of public services") is proposed to be added to
provide equal
access to persons with disabilities in all Government programmes and services,
in the light of Art.
9 ("Accessibility") of the UNCRPD.
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(x) Removal of the phrase "within the limits of economic capacity and
development" from certain existing sections
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The phrase "within the limits of economic capacity and development" is proposed
to be omitted
from the following existing Sections:
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i. Section 25: Prevention of disabilities
ii. Section 41: Incentives for employing persons with disabilities
iii. Sections 44-46: Non-discrimination/access
iv. Section 66: (being replaced by new Section 25A): Rehabilitation
v. Section 68: Unemployment allowance
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(xi) Creation of Awareness
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A new Section 70A ("Creation of Awareness on Disability Issues") is proposed to
be added,
as per Art. 8 ("Awareness-raising") of the UNCRPD, mandating that appropriate
Governments
and local authorities shall take measures for awareness-raising, combating
prejudice and
promoting positive perceptions about persons with disabilities.
(xii) Recreation
A new Section 70B ("Recreation") is proposed to be added, based on Art. 30
("Participation in
cultural life, recreation, leisure and sport") of the UNCRPD, relating to
development and utilization
of creative, artistic and intellectual abilities of persons with disabilities
and measures for their
participation in mainstream sports, recreation and tourism, by the appropriate
Governments and
local authorities, within the limits of their economic capacity and development.
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(xii) Central and State-level Coordinating and Monitoring Mechanism
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(a) The Central Coordination Committee (CCC), as provided in Section 3, is
proposed to be re-named as the "Central Advisory Board" and the Central
Executive
Committee(CEC), as provided for in Section 9, as the "Central Coordination and
Monitoring Committee", since the existing nomenclature does not adequately
convey the functions of these bodies. Similar changes are proposed to be made
in the nomenclature of the State Coordination Committees (Section 13) and
the State Executive Committees (Section 19).
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(b) New Sections- 9A and 19A- are proposed to be added to incorporate
provisions relating to tenures of nominated members of the Central and State
Coordination
and Monitoring Committees respectively.
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(c) Certain changes are proposed in the composition of the Central Advisory
Board under Section 3 and the Central Coordination and Monitoring Committee
under Section 9 vis-à-vis those for the existing CCC and CEC, respectively, so
as to account for changes in nomenclature in some of the Ministries and
inclusion of some more ex-officio members whose presence in these bodies seems
necessary.
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(d) Similar changes (as in Sections 3 and 9) are proposed in Sections 13 and 19
with regard to composition of the State Advisory Board and State Coordination
and Monitoring Committee. The Chief Secretary is now proposed as the
Chairperson of the State Committee, instead of the Secretary, Department of
Social
Welfare of the State, as per the present provision.
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(xiii) Introduction of a monitoring mechanism at the District-level
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At present, the PwD Act provides for consultative/monitoring at the Central and
State levels only.
It is now proposed, through a new Section 22A to provide for constitution of a
District-Level
Committee on Disability also, as a district-level mechanism for monitoring
implementation of the
decisions taken by the State Advisory Board and the State Coordination and
Monitoring
Committee.
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(xiv) Appointment, functions and powers of the Chief Commissioner and State
Commissioners for Persons with Disabilities
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(a) New provisions relating to details of terms of appointment, conditions of
service, resignation and removal are proposed to be introduced in Section
57 (for Chief Commissioner) and Section 60 (for State Commissioners).
Appointment of the Chief Commissioner and State Commissioners on a full-time
basis
is proposed to be made mandatory. Besides, the proposed provisions specify that
serving Government employees cannot be appointed on the post of Chief
Commissioner
or State Commissioner, except in States with < 5 million population as per last
census.
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(b) Further to the existing powers of summoning and enforcing attendance of
witnesses, the Chief Commissioner and State Commissioners are proposed to be
provided one more power of a Civil Court, under Section 63, viz. the power to
"examine on oath" which is essential to enable it to enquire/investigate
complaints properly, and is enjoyed by other similarly placed bodies/
Commissions.
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(c) In addition, a new provision has been made under Section 59 to ensure that
whenever
the Chief Commissioner, while looking into the complaint regarding deprivation
of rights /
non-implementation of laws, rules, etc. for welfare and protection of rights
for persons
with disabilities, makes a recommendation to an authority, that authority shall
take
necessary action on it and inform the Chief Commissioner of the action taken
within three
months from the date of receipt of the recommendation. In case, that authority
does not
accept a recommendation, he shall convey reasons for non-acceptance to the Chief
Commissioner within three months and shall also similarly inform the aggrieved
person.
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(xv) Recognition of Institutions for Persons with Disabilities
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New provisions are proposed to be added as indicated below:
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(a) New proviso has been added in Section 51("Registration of institution")
that recognition of institutions shall meet the minimum standards and norms
for recognition as may be prescribed.
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(b) New Sub-Section 52(7)- A time-limit is proposed to prescribe for disposal
of applications for registration of new institutions.
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(c) New Sub-Section 52(7)- An institution for care of mentally ill persons,
which is licensed under the Mental Health Act, 1987, shall not be required to
be registered under this Act.
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(xvii) Penal Provisions
A new Section 53A ("Punishment for contravention of Sections 44, 45, 46, 51 and
53") is
proposed to introduce a fine for contravention of Sections relating to
barrier-free access in
transport, on the road and in the built environment, and for violation of the
provisions of the Act by
registered institutions.
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(xviii) National Fund for Persons with Disabilities
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A new Chapter XIII A ("National Fund for Persons with Disabilities") is
proposed to be added
in pursuance of the Supreme Court judgment dated 16.04.2004 in Civil Appeal
Nos. 4655 and
5218 0f 2000 (Indian Banks' Association & Ors. Vs Devkala Consultancy Service &
Ors.). This
judgment, inter alia, contained directions for immediate creation of a Trust
Fund to be managed
by the CAG of India and subsequent creation of a statutory Trust Fund through
amendment of the
PwD Act. In pursuance of the judgment, the Trust Fund for Empowerment with
Persons with
Disabilities (chaired by CAG of India) was registered on 21.11.2006. Another
Fund, the National
Fund for People with Disabilities has been in existence since 1983. Now these
Funds are sought
to be merged and a statutory National Fund for Persons with Disabilities is
proposed to be
created the new proposed Chapter.
__________
Rajesh Asudani
Assistant General Manager (PPS),
Reserve Bank of India
Nagpur
09420397185
O: 0712 2806676
Res: 0712 2591349
Doth God exact day-labour, light denied?"
John Milton
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