Dear friends, I just ended up taking a quick and cursory look at the write-up purported to have been written by seemingly big people. I was infact wondering if it was at all worth responding. This explains why i would only restrict myself to making a few observations rather than wasting time in putting together a comprehensive response. In the first place, it would be in the fitness of things on my part to express the view that the provision regarding permitting discrimination as a proportionate means of achieving a legitimate aim is so fatal that it has the effect of taking away from persons with disabilities the benefits which may accrue to them as a result of some other provisions of the RPD Bill. The said provision, to my mind, is liable to be struck down by courts as unconstitutional. Besides, this provision blatantly and manifestly runs counter to the UNCRPD. Not only that! This provision also contravenes the Gandhian principle that the end does not justify the means. Both the means and the end should be good. Therefore, how can any aim, howsoever legitimate can permit discrimination as a proportionate means. This singlemost provision alone is enough justification for the rejection of the bill unless this provision is appropriately amended. Secondly, some provisions of the RPD Bill, particularly those relating to reservation of vacancies are so formulated that they even will have the effect of benefits that accrued in favour of persons with disabilities as a result of judicial pronouncements and even the existing law. In simple words, the UNCRPD explicitly states that existing advantages can not be taken away. Moreover, one of the specified disabilities has not even been defined in the bill. The monitoring and enforcement mechanisms have been made so weak as will reduce them to the status of a white elephant with only recommendatory/advisory functions. Besides, no modalities for enforcement where some power of enforcement is sought to be given have been envisaged. Strangely, neither the chairperson nor the majority of national and state commissions will mandatorily comprise persons with disabilities according to the current RPD Bill. This is violative of the principle followed in respect of commissions of similar nature. The learned authors of the write-up will also do well to note that neither the incumbent Chief Commissioner nor any incumbent [present or past] State Commissioners with disabilities got appointed because of anybody’s advocacy. It is common knowledge that the present incumbent Chief Commissioner went through a competitive process, competed with candidates without disabilities including a very senior IAS officers and thus got appointed purely on merit after going through a due selection process. It is indeed shocking that instead of explicitly recognizing legal capacity of all persons with disabilities on an equal basis with others, the said bill simply cafts only an obligationon the government to ensure legal capacity leaving us at the mercy of the government. This deleterious provision will have a disastrous impact on our rights. Be that as it may, now that the bill has been rightly referred to the appropriate parliamentary committee, i would express the belief that the said committee will take a call after hearing out all concerned so that we will have a better law enacted—a law which will be in conflict neither with the Indian constitution nor with the UNCRPD.
On 2/20/14, Rama Chari <rama7ch...@yahoo.com> wrote: > Dear All, > > Please find below a joint document prepared by us where we have analysed the > RPD Bill and stated our reasons for supporting the passage of the Bill. > > Warm regards, > Rama Chari, Sakshi Broota, Dr. Meenu Bhambhani, Vijay Krishnamani and Ankit > Rajiv Jindal > > > > One of our jobs is to analyse and critique policy documents. Our first > reaction to The Rights of Persons with Disabilities (RPD) Bill was negative. > We saw many lacunae. But then we decided to take an objective view by > looking at both the positives and the negatives. We also tried to understand > the socio-political scenario and how difficult it has been to influence > disability issues in the country, based on our experience of almost two > decades in disability advocacy. This effort has helped us to form a view on > whether we should support the Bill or not. Here, we share our thoughts. > > 1. What are the major gains for people with disabilities from the RPD Bill? > > Let‟s look at some of the major gains for persons with disabilities when > this Bill becomes an Act. > Definition of disability is exactly the same as given in the CRPD, which > is a huge gain. The Bill lists about 19 impairments as mentioned in the > schedule (annexure) but these categories are not sealed. There is a > provision for adding impairments to the schedule. It is mentioned „Any other > category as may be notified by the Central Government‟. > A comprehensive definition of „Communication‟. It provides for measures to > be taken to make all contents accessible and it states persons with > disabilities have access to electronic media by providing audio > descriptions, sign language and close captioning. There was no mention of > sign language, access to media or audio description/ close captioning, etc. > in the Act of 1995. > There is a section for Equality and Non discrimination to ensure that > persons with disabilities enjoy the right to equality, life with dignity and > respect for her/his integrity equally with others and should not be deprived > of her/his personal liberty on the ground of disability. It also mandates > governments to take special measures to protect the rights of women and > children with disabilities by providing appropriate environment. > There is a Section on Community Life, where it clearly states that a > person with disability has the right to live in the community. > There are Sections on Protection from Cruelty and Inhuman Treatment; > Protection from Abuse, Violence and Exploitation; Protection and Safety; > Home and Family. These were not even considered or recognised in earlier > policies with respect to people with disability. > > Access to Justice has been explicitly mentioned. > It provides the right equally with others to own or inherit property, > control financial affairs, have access to bank loans and other forms of > financial credit. It provides for support in decision making and respecting > autonomy, dignity and privacy. > Social Security has many new and much needed aspects like - access to safe > drinking water, sanitation facilities, medicines, diagnostic services and > corrective surgery free of cost, caregiver allowance, insurance scheme, > support to women with disability in livelihood and bringing up children. > Quantum of assistance to persons with disabilities under social security > schemes and programmes shall be at least twenty-five per cent higher than > similar schemes applicable to others. Recognising „disability cost‟ and > making a provision for it is a major gain. > Separate Sections on Culture and Recreation and Sporting Activities with > quite a few relevant and much needed provisions. > In education, it provides for recognised schools to admit students with > disabilities without discrimination; provide accommodations, individualised > support, transportation, make modification in curriculum and exam systems, > and many other important provisions. > Reservation in higher educational institutions has been increased from 3% > to 5% for persons with disabilities. With an improved definition of > disability, a lot more people would be covered. > Reservation in Government employment has been increased from 3% to 5% for > persons with disabilities and covers more categories of people with > disabilities like intellectual impairment, mental illness, autism, multiple > disabilities, including deaf blindness etc. > Increase from 3% to 5% reservation in all poverty alleviation programmes. > Priority to women with benchmark disabilities has been added. > Introduction of 5% reservation in developmental schemes. Priority to women > with benchmark disabilities has been added. > Introduction of 5% reservation in allotment of agricultural land and land > for purpose of housing, business, recreation, etc. > There is a provision for Special Courts for each district to try offences > under the Act. > > There is a provision for District Level Committee of Disability for > implementing the Act. > > 2. What are the concerns on RPD Bill and what do they imply/indicate? > > Let‟s look at some of the major concerns. We have tried to reason some of > them out. We have tried to see them as areas for improvement by amendments; > to see if they can be interpreted to our advantage and identify issues to > build consensus within the disability sector. However, we are in no way > endorsing them. > The clause that says, “no one can be discriminated on the basis of > disability.. unless.... it is a proportionate means of achieving a > legitimate aim”. We would not like a sub clause “unless....” to be there. > Government seems adamant about it. However, it is for the other party to > prove „proportionate means to achieve legitimate aim‟. Drawing a parallel to > them term „reasonable accommodation‟ which is to do with non-discrimination. > Doesn‟t it allow discrimination if accommodation causes „undue burden‟? > However, the onus to prove „undue burden‟ is on the other party. Many people > benefit from reasonable accommodation and a few are denied based on „undue > burden‟ which can be challenged. > The clause “no one can be discriminated on the basis of disability... > “does not mention who cannot discriminate (for example, it does not say > „establishments cannot discriminate”. It simply says „No one‟). This clause > could probably be used to make private sector accountable. There are many > instances of people with disabilities being denied entry in restaurants, > travelling, employment etc. This clause could be used to protect them. > The clauses related to Legal Capacity are not adequate. However, there > have been amendments to that. It is still not being seen as adequate by some > people with disabilities. We agree. What is available in the current Bill, > is full legal capacity in financial matters, “the person with disabilities > have right, equally with others, to own or inherit property, movable or > immovable, control their financial affairs and have access to bank loans, > mortgages and other forms of financial credit.” This is a definite gain. > There are mentions in the Bill about “independent and informed decision > making”, “free and informed consent”, etc. which again are positive and > these terms are being used for the first time in any disability policy. The > issue of guardianship has been contentious within the disability sector. We > really hoped that this law could take a stand and seal the debate based on > the CRPD. That is unfortunately not happening now. We certainly > have more work to do in this area. > Regarding the issues related to reproductive rights. In the Section on > Reproductive Rights, it states, “No person with disability shall be subject > to any medical procedure which leads to infertility without his or her free > and informed consent”. This is a major gain. However, in the section on > Penalties and offences, there is a sub clause stating punishment would be > given to anyone who performs any medical procedure to terminate pregnancy > without her express consent except in cases where medical procedure for > termination of pregnancy is done in severe cases of disability”. This > exception should not have been there. Certainly an issue that needs to be > addressed through an amendment. > > The Bill says that posts would be identified in establishments to be > reserved for people with benchmark disabilities. Ideally, “identification of > jobs” should not be there. However, this is under the section on > Reservations. There is a separate chapter on Skill Development and > Employment which clearly states that no establishment shall discriminate > against any person with disability in any matter relating to employment. > Therefore, this clause could be used to protect the rights of persons with > disabilities in employment in all other posts. How the identification is > done could also be influenced. > Coming to the clause where „unsound mind‟ is mentioned as one of reasons > for removing the Chairpersons / Members / Members of Advisory Board. One > would like this clause to be deleted. The term „unsound‟ is quite vague. > However, the Government seems to be adamant about it. The clause regarding > removal of members if she/he has become “physically or mentally incapable” > has been deleted. This is a gain. The worry that some people have is that > the clause ‟unsound mind‟ can be misused against people with mental illness. > However, there is a non discrimination clause protecting people with mental > illness in the Bill. If a person with mental illness is not given this job > or any job or is removed due to mental illness, it would be seen as > discrimination under the law. We would have liked disability bill to have > made the beginning by not having the word “unsound”. We see this as a failed > effort and work should continue to bring about a > change. This Bill has many positives for people with mental illness and > intellectual impairment, which were never recognised before like, non > discrimination in employment, reservation in jobs, right to protection from > inhuman treatment, right to live in community, etc. These were never > considered before. Infact, mental illness was given as a valid reason for > denying many opportunities. These are certainly a few steps forward from > where we are currently. > We would have liked in one stroke that all the discriminating Acts could > be repealed by introducing a relevant provision in the Bill. This has not > happened. This again shows we have a long way to go and all of us together > have to actively work towards it. > Some people have criticised that sign language has not been recognised as > a language in the Bill. If it had done that, it would have been great. We > all want this. However, the Bill mentions sign language in access to > communication, which is gain. It also talks about close captioning which is > another gain for deaf people. Do we reject these just because sign language > is not recognised as a language? We need to work towards getting sign > language recognised as one of the official languages of the country. > We all want the Bill to state that Chairpersons should be persons with > disability. This is not there in the Bill. However, with several years of > advocacy, we have got a Chief Commissioner and a few State Commissioners > with disability even without the law, based on their merit. We should > continue with our advocacy to ensure that meritorious people with > disabilities become Chairpersons and Members. > > We also wish private sector was covered under the definition of > establishment. We would have liked Political participationin terms of right > to contest elections/hold officewas mentioned. All these areas need to be > further worked on. > > 3. Why are we supporting the RPD Bill? > The RPD Bill falls short of the CRPD standards on some issues. There has > been dilution of the Bill in comparison with the earlier draft. It is not > the perfect Bill that we all would like to see. However, the amendments that > have been made are in the right direction. There are quite a few remarkable > provisions in the Bill which will be a definite gain for people with > disabilities if this Bill becomes an Act. We have also looked at the > concerns. These are certainly genuine. > Strategies for advocacy evolve keeping the various aspects and circumstances > in mind. Advocacy is also a continuous process which requires continuous > effort. Given the fact that this is the last session of the Parliament for > this Government, and that the Bill has come to this stage of tabling and > passing, the opportunity and the time are of essence. We feel taking a stand > „Everything or Nothing‟ will not take us anywhere. We could lose several > years in the process and in the end we may still not get what we are looking > for - a perfect Bill. > The gains that would be available from this Bill for persons with > disabilities outweigh the negatives. We would like to see it become an Act. > We see RPD Bill as the beginning with respect to rights of persons with > disabilities. > > > > > > About the authors: > Rama Chari is Director, DEOC (www.deoc.in). She has over twenty years of > experience in the field of disability, ranging from grassroots work to > policy advocacy. > Sakshi Broota is Director, DEOC. She has done Masters in Disability Studies > from University of Leeds. She has been working since the last two decades in > rural and urban slums and her interest is in policy research. > Dr. Meenu Bhambhani is a Scholar and Researcher of Disability Studies and > has extensively studied, written and published on disability advocacy and > movement in India and the US. She currently leads CSR and Persons with > Disabilities initiative at an IT company in Bangalore, India. Meenu has > personal experience of disability. > Vijay Krishnamani is an information, knowledge and social collaboration > expert with ten years of international experience. He is deeply passionate > about social issues. He is a person with hearing impairment. > Ankit Rajiv Jindal is a business professional with over 6 years of > diversified experience. He works closely with two social enterprises in the > area of disability - DEOC and KickStart Cabs. He has an MBA from FMS-Delhi. > He is a person with vision impairment. > > > Register at the dedicated AccessIndia list for discussing accessibility of > mobile phones / Tabs on: > http://mail.accessindia.org.in/mailman/listinfo/mobile.accessindia_accessindia.org.in > > > Search for old postings at: > http://www.mail-archive.com/accessindia@accessindia.org.in/ > > To unsubscribe send a message to > accessindia-requ...@accessindia.org.in > with the subject unsubscribe. > > To change your subscription to digest mode or make any other changes, please > visit the list home page at > http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in > > > Disclaimer: > 1. Contents of the mails, factual, or otherwise, reflect the thinking of the > person sending the mail and AI in no way relates itself to its veracity; > > 2. AI cannot be held liable for any commission/omission based on the mails > sent through this mailing list.. > Register at the dedicated AccessIndia list for discussing accessibility of mobile phones / Tabs on: http://mail.accessindia.org.in/mailman/listinfo/mobile.accessindia_accessindia.org.in Search for old postings at: http://www.mail-archive.com/accessindia@accessindia.org.in/ To unsubscribe send a message to accessindia-requ...@accessindia.org.in with the subject unsubscribe. To change your subscription to digest mode or make any other changes, please visit the list home page at http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in Disclaimer: 1. Contents of the mails, factual, or otherwise, reflect the thinking of the person sending the mail and AI in no way relates itself to its veracity; 2. AI cannot be held liable for any commission/omission based on the mails sent through this mailing list..
