Hi Wonder what is the reference of the latest disability figure. To my understanding the Census figure on disability is still not out. Harish Kotian.
-----Original Message----- From: AccessIndia [mailto:accessindia-boun...@accessindia.org.in] On Behalf Of Asudani, Rajesh Sent: 18 October 2012 10:13 To: accessindia@accessindia.org.in Subject: [AI] FW: (WorldOpinion) Book Review: The Future of Disability Law in India, ByJayna Kothari -----Original Message----- From: worldopin...@googlegroups.com [mailto:worldopin...@googlegroups.com] On Behalf Of avinash shahi Sent: Wednesday, October 17, 2012 7:33 PM To: jnuvision; accessindia Cc: worldopinion Subject: (WorldOpinion) Book Review: The Future of Disability Law in India,ByJayna Kothari The Future of Disability Law in India A Critical Analysis of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 Jayna Kothari OUP India 240 pages | 215x140mm 978-0-19-807762-6 | Hardback | 15 March 2012 Price: £25. Reviewed By V. VENKATESAN In her book, Jayna Kothari takes us through the debates on equality in the context of disability. The Indian Constitution does not have any substantive equality provisions under the Fundamental Rights chapter in favour of disabled persons. There is no guarantee from the state to prevent discrimination due to disability. It is unfortunate that our founding fathers did not realise the need for such a provision. As the author explains, disability results in consequences that include marginalisation in every sphere of life, be it denial of education, employment, recreation, income, identity or social recognition. This has, in turn, led to the invisibility of disabled people as subjects of human rights law. India began late in disability legislation. The first was the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act). The author begins her book observing that despite being on the statute book for more than 16 years, the Act is not understood well by lawyers, judges, academics, students and civil society groups. According to the recent Census data cited in the book, there are 21.9 million people with disabilities in India, that is, about 2.13 per cent of the total population. The author suggests that this figure may be an underestimate if one accepts the World Health Organisation (WHO) argument that at least 10-12 per cent of the population in any country is likely to be disabled. In the first chapter, the author rightly asks why disability has not been included in the Constitution as a ground for prohibition of discrimination. Taking her cue from the Delhi High Court's judgment in the Naz Foundation case, she suggests that grounds analogous to those stated in Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) should also be protected grounds for discrimination. Her plea is that disability should be included as a ground for non-discrimination under Article 15(1) as it is analogous to the protected grounds. Similarly, she suggests that the non-discrimination provision under Article 16(2) should be read to include disability as an analogous ground for non-discrimination in public employment. Article 16(2) says that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the state. She argues that persons with disability can also be considered by the state as socially and educationally backward classes under Article 15(4), and the principle of substantive equality would require the state to make special provisions or legislation for their advancement. She makes a convincing case for the inclusion of persons with disability within "backward class of citizens" which, in the opinion of the state, is not adequately represented in the services under the state and therefore would qualify for special provisions in its favour under Article 16(4). The author finds the definition of disability under the PWD Act both faulty and inadequate and because of this she regrets that we have been able to capture only a fraction of the complex reality of disablement. The PWD Act mentions only seven specific disabilities: blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation and mental illness. Calling this a medical model (rather than a social model) of disability, Jayna Kothari argues that the Act ought to have focussed on the effect of impairment, which may prevent persons from carrying on their day-to-day activities or having access to facilities. She is in favour of a broader definition of disability, one which defines a disabled person as someone who has a disability. Such a broad definition, she claims, will empower the disabled as they will no longer have to prove that they are abnormal or focus on their deficits when they assert their rights. Among the disabilities left out in the current definition under the PWD Act are muscular dystrophy, cystic fibriosis, and some forms of hearing and vision loss. Others such as seizure conditions, multiple sclerosis, loss of a limb, cancer, paralysis, HIV/AIDS, persons suffering from internal organ failure and epilepsy also do not find a mention in the current definition under the Act. Kothari feels that disability law should also apply to people with perceived disabilities such as stuttering, which are not disabling but create prejudice and discrimination. In an interesting judgment delivered in 2005, the Delhi High Court held that the definition of disability under the PWD Act should be broadened to include heart diseases as well. The draft Bill to replace the PWD Act (now on the website of the Ministry of Social Justice and Empowerment) defines a disabled person as follows: "Persons with disabilities are persons with any developmental, intellectual, mental, physical or sensory impairments including those mentioned in Schedule 1 of the Act, which are not of a temporary nature, and which in interaction with various barriers may hinder full and effective participation in society on an equal basis with others." Schedule 1 identifies 20 disabilities. To Jayna Kothari (as told to this reviewer over phone), however, this listing of disabilities makes no sense as it can never be exhaustive. Besides, impairments, according to her, must be long-term rather than "not of a temporary nature" to attract the Act's application. Law and its limitations While the Right to Education Act, 2009, guarantees the right to education for all children between six and 14, the PWD Act goes far beyond and mandates that all children with disability shall have the right to access free education until the age of 18 years. Jayna Kothari laments that this justiciable right is hardly being implemented as the large majority of disabled children continues to be excluded from public schools and others are placed in inappropriate programmes. Worse, the Act does not require private schools to admit children with disabilities or to provide appropriate and accessible education for them. Reservation requirements in institutions of higher education in favour of the disabled are enforced with reluctance, she points out. The PWD Act aims to offer equal opportunities in public employment by reserving 3 per cent of vacancies for persons with disabilities. In practice, however, the quota system is not enforced effectively. Jayna Kothari points out that disabled persons end up getting jobs as sweepers, cleaners, telephone attendants and music teachers (for the visually impaired). She finds that reservation and identification in the higher posts is very often not made, and people are forced to approach the courts for proper identification and reservation. Sheer exasperation over society's ignorance of disabled persons' abilities provokes the author to suggest that a complete removal of reservation and a movement towards non-discrimination in employment with the provision of reasonable accommodation might ensure greater access to employment for persons with disabilities. The book makes a persuasive plea to apply the disability law's affirmative action requirements to the private sector and its punitive provisions against private bodies and individuals guilty of abuse of disabled persons. The draft Bill on the Ministry's website applies to the private sector, though it is not clear whether all stakeholders will endorse it. The chapter on the U.N. Convention on Rights of Persons with Disabilities (CRPD) and its impact on the Disability Law in India in Jayna Kothari's book is especially useful to understand the future of the disabled population in the country. The CRPD came into force on May 3, 2008. India was one of the first 20 countries to sign and ratify it. As the PWD Act falls short of the gamut of rights granted in the CRPD, the Ministry of Social Justice and Empowerment agreed to draft a new law in tune with the CRPD. It, therefore, set up a committee under the chairmanship of Dr Sudha Kaul for the purpose. This committee submitted its report and a draft Bill, titled the Rights of Persons with Disabilities Bill, 2011, to the Ministry on June 30 last year. Both the report and the Bill have now been placed on the Ministry's website inviting comments from the public. As the book makes no reference to the report and the draft Bill, one wonders whether the author could have delayed the publication of the book so as to include her comments on the proposed new law. The author's justification (as told to this reviewer over phone) for omitting any analysis of the draft Bill is that there have been several successive drafts and there have been serious objections to the draft Bill from the Law Ministry, while the Ministry of Social Justice and Empowerment has not accepted it. She has since e-mailed her detailed critique of the draft Bill to this reviewer for following up this issue further. Source: http://www.frontlineonnet.com/stories/20121102292107700.htm -- Avinash Shahi MPhil Research Learner Centre for the Study of Law and Governance Jawaharlal Nehru University New Delhi India Caution: The Reserve Bank of India never sends mails, smses or makes calls asking for personal information like your bank account details, passwords, etc. It never keeps or offers funds to anyone. Please do not respond in any manner to such offers, however official or attractive they may look. Notice: This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you are not the intended recipient, any dissemination, use, review, distribution, printing or copying of the information contained in this e-mail message and/or attachments to it are strictly prohibited. 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