Suggestions given by Rajesh Asudani for disability law four years ago
Please note these are based on then proposed amendments to existing PWD.
Since then, even though the new act has been drafted and is in the pipeline,
most of the suggestions have not been incorporated...
1.
Definition
the definition of disability should Be
aligned to UNCRPD, criteria should be laid down in addition to enumerating
categories. Criteria may include: impairments,-reversible-irreversible or
imputed in interaction with attitudinal/environmental barriers.
enumeration of categories should be inclusive and
confined to section 2, and not scattered all over the
act, learning disabled and deaf-blind be also defined
in section 2 itself. Mental illness should be removed from
categories of disability as learning disabled have been
defined and disease is not equated with disability and
also because act contains little to affect mentally ill.
Rational quantification-into mild and severe
disability be done and percentage wise quantification
be done away with.
Category of Low vision be deemed as mildly blind,
and care should be taken to avoid cases where a
person would medically fall into neither blind nor
Sighted.
2
Mainstreaming
disability
Implementing bodies be made more representative of
disabled. All constitutional bodies from Parliament to
Panchayat to have at least one disabled
representative. Articles 15 & 16 of Constitution be
amended to Prohibit discrimination on basis of
disability per se. Disability budgeting on lines of
gender budgeting be implemented.
Art. 17 of constitution be amended to wipe practice
of disability exclusion.
3
Strong Statutes:
Prevention of atrocities act for disabled On the lines
of SC atrocity prevention act, be enacted
Abuse, verbal or non-verbal, in the name of disability be declared an
offence.
4
Right to Life:
Cost of all corrective steps for disability
Like Keratoplasty cochlear implants
Be born by government Cornea after death
Be declared "National resource"
Free from any private encumbrance.
5
Inclusive Education
legitimate assistance to special schools Fostering
inclusive educational ambience at the same time should be the goal.
Training all teachers to teach disabled children as
well should be give in regular training programmes. Giving disability
scholarships in addition to, and not in lieu of, other benefits should be
prescribed. Making study material available in suitable alternative format
should be made mandatory.
Reasonable accommodation be provided in
education.
Section about professional and higher education
should include reimbursement of cost of course to
disabled. Modification proposed in evaluation
scheme are to be clear and should not give negative signals.
Modification in curriculum or providing substitute
questions is enough. Section on education should be comprehensive and should be
properly placed in chapter on education. extending reservation to all
recognized institutes should be given top priority however, provisions about
reasonable accommodation in education should also
be extended to all recognized institutions.
6
Exercising legal
capacity-scribe
A uniform scribe policy is the need of the hour.
Discretion of candidate to bring the scribe or accept
that provided is to be given due recognition and the arbitrary rules framed by
authorities or even examination incharges are not warranted.
Preconditions like juniority if from same streem be
imposed. Competence to be ensured when scribe
requested. No arbitrary conditions/changes/denials of
scribes justified. Perhaps the only condition on the scribe should be that
she/he should not be eligible to appear for exactly the same exam at the time
she/he is writing as scribe.
Interpreters to hearing disabled to be provided
wherever required.
7
Govt. schemes
Disability be factored in while making any scheme.
All existing government schemes be evaluated from
disability perspective continuously.
Disability audit of schemes must be made mandatory.
Special schemes for disabled US43 of PWD act be
framed and implemented.
8
Quantum of
reservation
In addition to organized services, reservation in aided
and semi-governmental sector be specifically
mentioned. Splitting percentage for blind/low vision
as was proposed in amendments is welcome, it be done for all other disabilities
in
terms of mild and severe. Low vision be deemed to be mild visual disability.
Calculation of total
vacancies on basis of all entry point posts in all four
classes of services be explicitly mentioned. Providing
reservation for disabilities not mentioned in section 33, as is proposed in
amendments, by government
should be made over and above 3% for disabilities
mentioned in section 33. However, such a provision be used very sparingly when
a disability comes into existence by interpretation of criteria by judiciary
etc.
Quantum of reservation should Be enhanced to 5%
/6% To reflect the actual proportion of disabled in
population.
9
Categorization
Different categories of severely and mildly disabled
for at least reservation be carved out.
And reservation be apportioned in them accordingly.
10
Detrimental actions of
state governments
Rationale of Disability legislation falling under
concurrent list, so Central law prevailing unless state
law assented to, or PWD Act enacted Under article
253, be employed to negate varied state
interpretations harmful to disabled and uniformity be
brought in implementation of disability legislation.
Any move by state governments which takes away from the provisions of the act
should be explicitly prohibited. The provision is necessary in wake of some
states like maharashtra carving out arbitrary additional categories of
disabilities like Partially sighted, in addition to those mentioned in the
disabilities act, and even not identifying posts for totally blind which are
explicitly identified for them by central government.
11
Reservation for
disabled
3% or more as prescribed of total cadre strength in all classes of
government establishments including aided
establishments and semi-government sector has to be the ultimate
goal. 3% of vacancies occurring at a time is the
practical step to achieve the goal. Non-
implementation of reservation provision for long may
warrant
Special recruitment drives for disabled utilizing
available vacancies in excess of 3%.
Differentiation should be made between Relaxed
standards, like minimum qualifying/cut off marks,
relaxation in age limit, and
Reasonable accommodations, like taking scribe
waiver in fee, extra time etc. only those should be counted against reserved
vacancies who availed relaxed standards, or have not found place in vertical
lists. those finding
place in vertical list/open competition without relaxed
standards should not be counted against reserved vacancies.
12
Transfer and
promotion
It is High time to give statutory backing to non-
transferability provisions of disabled employees except on request. Posting in
or near native place or requested centre exist only in government GRs, they be
sanctioned by law. Reservation in promotion
Reservation in promotion on lines of SC a legitimate demand. Extending zone
of consideration duly warranted. Intervening posts, if
unidentified, should be deemed to be identified for
effecting promotion Statutory backing required.
13
Reasonable
accommodation/non-
handicapping
environment
Should be defined to include appropriate
modifications in structures, procedures and
environments to maximize functionality of disabled,
Warranted by UNCRPD and Natural justice.
Should not be fettered by: Economic capacity
development, or Reasonable time frame.
14
No clubbing together
of disabilities
Clubbing together of disabilities is A harmful but omnipresent practice.
Even UNCRPD commits it. Each disability requires
unique measures, Apart from general principles
which may be common.
So, disabilities ought to be grouped under sensory viz: blindness, deafness,
etc., physical viz: orthopedically disabled, etc. Intellectual viz: learning
disabilities, and neurological and brain damage/impairment like mental
retardation etc. Psychological or mental conditions should not qualify as
disabilities. Such grouping would facilitate targeting certain facilities at
certain groups and would foster a general perception which does not club all
disabilities and does not view them as a homogenous group. Instead of using
the words like persons with disabilities while enunciating certain provisions,
the specific group words like xxx provision is meant for sensory disabled, may
be used.
15
Optional protocol
Optional protocol to the convention be immediately
adopted by India
16
Enforcement
machinery
Disability forum on the lines of consumer dispute
redressal fora a should be set up to resolve cases under
disability act. CCPD and commissioners should only
coordinate administrative efforts and oversee
implementation of act and awards.
CCPD/Commissioners should preferably be person
with disability, must possess rehabilitation
experience.
17
Enforcement
machinery
Such disability fora be invested with full powers of
civil court including initiating contempt proceedings
for non-compliance of its orders. If suit is brought in HC for non compliance
of disability forum order, the HC should be bound to issue enterim enforcement
decree before deciding the petition on merits. Very non-enforcement of
disability forum order should give rise to negative presumption against the
defaulter and the onus to prove that the order is erroneous should be on the
defaulting institution and not upon the disabled litigant should not have to
again prove his right in HC.
18
Stringent penalties
section 53A proposed in amendments is limited in scope and does not lay
down procedure or authorities to impose said
penalties. In addition to this, Strong monetary
penalties be prescribed in cases of violations of
provisions of disability law: ex. Section 33, Not
reserving at least 3% of advertised posts,
discriminating on the basis of disability, harassment
of disabled, etc.
Disability disputes redressal forum should have powers to
impose such penalties and recover them as well, in addition to awarding
specific relief or compensation to disabled litigants.
19
Fake certificates
Issuing fake disability certificates or Making use of
fake disability certificates be declared a criminal
offence warranting exemplary punishment in addition
to forfeiting any benefit like job etc. so obtained.
20
Universal disability audit
Audit of government funds including grants to All
NGOs and all other expenditure should include
details of expenditure for persons with disabilities, as
they are one of the weakest classes in society and
every activity touches them.
21
Disability portrayal
Derogatory portrayal of disability be made ground of
censorship and film certification board should have a
disabled member on it.
22
Accessibility
The time limit for making transport/road/built
environment accessible should be reduced from
31/12/2017 as proposed in amendments, to 31/12/2012. Introduction of sections
46A, 46B and 48(2) in amendments, is welcome, but their non-
observance should be made a ground for action and
monitory penalities on government, apart from
specific relief being awarded. The sections should
also provide for live assistance at public places
frequented by public.
23
Right to life
Eradicating disability through medical measures, technological
measures and
through appropriate modifications
in structures
and procedures should be viewed as integral part
of right to
life and primary responsibility
of
government
and state.
24
Situations of risk and humanitarian emergencies
Statute should provide for all necessary measures to
ensure the protection and safety of persons with
disabilities in situations of risk, including situations
of armed conflict, humanitarian emergencies and the
occurrence of natural disasters.
25
Equal recognition before the law
Explicit enunciation of persons with disabilities as
fully competent legal persons is the need of the hour. provision of support
with effective and appropriate safeguards wherever
called for, for exercising legal capacity be made. Articles 15 and 16 of the
Constitution of India be amended to include "Disability" as a prohibited ground
of discrimination.
26
Financial transactions
Government should ensure the equal right of persons with
disabilities to own or inherit property, to control their
own financial affairs and to have equal access to bank
loans, mortgages and other forms of financial credit,
and shall ensure that persons with disabilities are not
arbitrarily deprived of their property.
27
Free legal aid
Costs to be essentially awarded whenever a disabled
successfully sues for violation of rights, free legal aid
to be mandatorily provided for every litigation under
disability law.
28
Liberty
Government should ensure that persons with
disabilities Are not deprived of their liberty
unlawfully or arbitrarily, and that any deprivation of
liberty is in conformity with the law, and that the
existence of a disability shall in no case justify a
deprivation of liberty.
29
Freedom from degrading treatment and torture
Statute should provide that: No one shall be subjected
to torture or to cruel, inhuman or degrading treatment
or punishment. In particular, no one shall be
subjected without his or her free consent to medical
or scientific experimentation.
30
Exploitation abuse and violence
Articles 23 and 24 of the constitution be suitably
amended to prevent exploitation violence and abuse
on account of disability or resulting in disability.
31
Living independently and being included in
the community
All the infrastructure including houses, whether built
by government or private parties to be fully
accessible, and government to ensure that: (a)
Persons with disabilities have the opportunity
to choose their place of residence and where and with
whom they live on an equal basis with others and are
not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access
to a range of in-home, residential and other
community support services, including personal
assistance necessary to support living and inclusion
in the community, and to prevent isolation or
segregation from the community;
(c) Community services and facilities for
the general population are available on an equal basis
to persons with disabilities and are responsive to their
needs.
32
Technological aids
All technological assistive devices including mobility
aids, reading devices, softwares vision or other
sensory enhancement devices be blanketly exempted
from import duty and other levies. Government
should bear the full cost of such devices or highly
subsidize them as alleviation of disability by
improving the impaired sense, or limb falls under
right to life.
33
Freedom of expression and
information
It includes for disabled use of accessible modes and
so, government should: a) Provide information
intended for the general public to persons with
disabilities in accessible formats and technologies
appropriate to different kinds of disabilities in a
timely manner and without additional cost;
(b) Accept and facilitate the use of sign
languages, Braille, augmentative and alternative
communication, and all other accessible means,
modes and formats of communication of their choice
by persons with disabilities in official interactions;
(c) Urge private entities that provide
services to the general public, including through the
Internet, to provide information and services in
accessible and usable formats for persons with
disabilities;
(d) Encourage the mass media, including
providers of information through the Internet, to
make their services accessible to persons with
disabilities;
34
Health
Government should: Provide those health services
needed by persons with disabilities specifically
because of their disabilities, including early
identification and intervention as appropriate, and
services designed to minimize and prevent further
disabilities, including among children and older
persons; Provide these health services as close as
possible to people's own communities, including in
rural areas; Require health professionals to provide
care of the same quality to persons with disabilities as
to others, including on the basis of free and informed
consent by, inter alia, raising awareness of the human
rights, dignity, autonomy and needs of persons with
disabilities through training and the promulgation of
ethical standards for public and private health care;
Prohibit discrimination against persons with
disabilities in the provision of health insurance, and
life insurance to be provided in a fair and reasonable
manner; declare discriminatory denial of health care
or health services or food and fluids on the basis of
disability a punishable offence. Make issue of
disability certificate a non-cumbursome and efficient
and fool-proof process
35
State activities
All the state activities including elections be made
accessible by adopting appropriate formats and
technology
36
Data collection
All data collection exercises including census,
surveys of general nature, should invariably include
persons with disability in addition to specific
disability surveys undertaken from time to time.
37
No negative presumption
No negative, harmful, exclusionary or discriminatory
presumption be drawn or denial be affected on the
basis of disability in respect of rights, amenities or
facilities offered to public at large or citizens and any
exclusion of the disabled there from not duly
supported by law be deemed an penal offence.
38
Disability records
Disabilities records and certificates be accepted
throughout nation, even if issued by one state as they
should be declared as records under article 261 of
constitution and full faith and credit clause be
applicable to them.
39
Nomenclature
Uniform nomenclature recognized by disability
legislation be followed while mentioning/referring to
disabled persons in state proceedings/transactions/laws etc.
40
Special measures to compensate disability
Any and all special measures to compensate
disability ex. Making books accessible by converting
them into digital format/specialized format, providing
human assistance, equipments, etc. be deemed as
equalizing measures and form the part of right to
equality under article 14 of the constitution.
41
Guiding principles
This copy and paste exercise from UNCRPD is
welcome, nonetheless, concrete steps to actualize
these principles into enacted law and implemented
action be thought out.
42
Rehabilitation
The chapter is welcome, but it is too vague. Merely
schemes for providing aids and appliances are not
enough. Blanket exemption from import and other
duties to appliances purchased by NGOs and also
individuals is called for.
43
Incentives to employers
Substitution of "May" in place of "shall" makes
section recommendatory and non binding.
Meaningful incentives like tax exemptions etc. have
mandatorily to be provided to private sector to
achieve inclusion of disabled in employment.
44
Health care and social security
A new chapter and not a subsection is required for
healthcare provisions. Location matters as courts are
prone to absurd interpretations. Here, section 31B
may imply linkage with education. For providing free
healthcare to disabled, earning limit has to be higher
than general poverty line. Specific health care
required for correcting disability or arising out of
disability should be provided free/affordably to
disabled.
The words, "within economic capacity and
development" be removed from pension provisions.
45
Awareness raising
Law about Prevention of atttrocities on basis of
disability providing penal offences is the need of the
hour. Arbitrary and unjustified denial of disability
specific rights and general rights to disabled should
be an offence.
46
recreation
The rider "within the limits of their economic
capacity and development" must be deleted.
47
Central and state level monitoring
Apart from changing nomenclature, these monitoring
mechanisms be made accountable for implementation
of the act, collectively. While nominating nine
persons with disabilities on Central and state advisory
board, phrase, as far as practicable, be employed
only in respect of mentally retarded, and all other
disabilities be represented essentially by persons
having that disability. Nine and not five, persons with
disabilities, representing all disabilities in a single
nomination period instead of two, be nominated on
central and state coordination and monitoring
committee, and phrase "as far as practicable" be
restricted to mentally retarded.
48
District monitoring
Nomination of nine persons with disabilities on
district level committee should be compulsory and
not to be diluted with representatives of NGOs who
may be non-disabled. The phrase: as far as
practicable, be restricted to mentally retarded and all
other disabilities be represented by persons having
such disabvilities.
49
CCPD and Commissioners
In qualifications for Chief commissioners/commissioners, she/he should,
preferably be a person with disabilities, should be inserted. Proposed Section
59(2) and 62(2) must
immediately be deleted. Recommendation of
CCPD/commissioners should be made binding, and if
a party is not willing to accept it, they should be
appealed in appropriate fora. Alternatively,
CCPD/Commissioners be made purely administrative
bodies coordinating efforts and overseeing
implementation of the act, and disability dispute
resolution forum on the lines of Consumer dispute
resolution forum and state and national commission
be constituted.
50
Recognition of institutions for persons with disabilities
Only institutions providing residential or educational facilities should be
asked to seek a separate recognition under PWD act. Otherwise registration in
societies' registration act or any other law dealing with NGOs should suffice.
While making the recognition mandatory, conditions and stipulations should be
reasonable as to be practicable enough for compliance.
51
National fund for persons with
disabilities
Five members nominated by central government to
represent different disabilities on the governing body
of the fund under section 68D {1(viii)} must be
persons with disabilities themselves. Uses of the fund
be prescribed in greater detail. All additional
expenses in securing rights to persons with
disabilities under disability law, like reasonable
accommodation, be made legitimate uses of fund.
52
Women and children with disability
Adequate provisions to address double vulnerability
of women and children with disabilities on the lines
of UNCRPD articles 6 and 7 be enacted. Example:
they may be given priorities in all schemes meant for
disabled. Example: Higher sentence be prescribed for
offences against women with disabilities like rape,
domestic violence, extracting child labour from
disabled children etc.
With thanks and regards
(Rajesh Asudani)
Assistant General Manager
Reserve Bank of India
Nagpur
(In youth you want things, and then in middle-age you want to want them.)
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