posted 4 Jul 2011 02:28 by Nilesh Singit
[
updated 19 Dec 2011 12:22
]
Persons with disabilities
can now use the service animals on roads, buildings, all transport
systems, public facility or service AARTI DHAR
The
proposed legislation for recognising the rights of the disabled people
has suggested setting up of a National Disability Rights Authority to
formulate regulations for service animal training facilities so as to
ensure that persons with disabilities are provided suitable service
animals. The appropriate governments and establishments shall
permit and facilitate the use of service animals by persons with
disabilities on roads, buildings, all transport systems, public
facility or service, according to the Rights of Persons with
Disabilities Bill, 2011. A person with disability, needing
assistance, shall have a right to be accompanied by a service animal
without being required to pay an extra charge for the animal. This
provision is being implemented in the United States.
Replacing
the existing practice of plenary guardianship with limited
guardianship, once the Bill is passed by the Parliament, all plenary
guardians shall operate as limited guardians and will have to act in
close consultation with the person with disability to arrive at legally
binding decisions. A limited guardianship is a system of
joint decision-making, which operates on mutual understanding and trust
between the guardian and the person with disability, as against the
plenary guardianship where the guardian took all the decisions on the
presumption that a disabled person was incapable to taking decision.
The plenary guardian is under no legal obligation to consult with the
person with disabilities or determine his will or preference whilst
taking decisions for him or her. The proposed law for
recognising the rights of the disabled people has recommended six per
cent seats to be reserved for the disabled people in all courses of
higher education and setting up an Education Reform Commission for
advancement of disability rights.
This
reservation will be in addition to those who manage to get admission
through competitive examinations. The Commission shall, to
the maximum extent possible, involve an effective participation of all
stakeholders in the process of formulation, implementation and
monitoring of the curriculum and related programmes and policies,
including the disabled and non-disabled children, teachers and parents,
according the Rights of the Persons with Disabilities Bill, 2011.
The Commission will review the existing curriculum being
adopted in schools from the standpoint of persons with disabilities and
their lived experiences, to develop an inclusive curriculum based on
the principles of non discrimination and appreciation of diversity and
tolerance, and make recommendations on the pedagogical methodology to
be adopted for the teaching and learning by persons with disabilities
in the creation of such inclusive curriculum.
In
addition to establishing a National Disability Rights Authority and
similar authorities at the State level to making regulations and
policies for the disabled persons, the proposed law also suggests
creating a National Fund for Person with Disabilities for the welfare
of such people. To resolve any disputes, the National Disability Rights
Tribunal would be set up.
The Hindu
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posted 3 Jul 2011 09:23 by Nilesh Singit
Breaking free of the
traditional practice of sterilising people with mental illnesses,
particularly women, a proposed law for disabled persons gives them the
right to retain their fertility. Recognising the legal
capacity of all persons with disabilities and making provision for
support where required to exercise such legal capacity as under the
United Nations Convention on the Rights of Persons with Disabilities,
the proposed new law — Rights of Persons with Disabilities
Bill, 2011 — also prohibits forcible abortions or any medical
intervention that could result in a woman losing her fertility.
The Rights of Persons with
Disabilities Bill, 2011 — the final draft of which has been
submitted to the Ministry of Social Justice and Empowerment —
wants governments to ensure that persons with disabilities have access
to information regarding family and reproductive planning on an equal
basis with others, while prohibiting subjecting any person with
disability to any medical procedure, which leads to or could lead to
infertility without their free and informed consent.
Traditionally, mentally unsound women are subject to
sterilisation to avoid unwanted pregnancy as the chances of sexual
exploitation of such women are higher and people with physical
disabilities are perceived to be incapable of taking care of their
children. Physically and mentally disabled women are often made to
undergo abortions against their wishes.
But now any contravention
of this provision that protects the reproductive rights of the people
with disabilities is liable to be penalised under Section 153 of the
proposed law with imprisonment and fine. Whoever performs,
conducts or directs any medical procedure to be performed on a person
with disability which leads to or is likely to lead to infertility in
contravention of proposed law will be punishable with imprisonment for
a period not exceeding seven years and with fine.
Any person acting as a
care-giver of the person with disability, whether as parent or guardian
or in any other capacity, lawful or unlawful, who does any act to
facilitate or negligently fails to prevent such medical procedure from
being performed, shall be punishable with imprisonment, which may
extend to five years and with fine. On forceful termination
of pregnancy, the proposed law suggests thatwhoever performs or directs
any medical procedure on a woman with disability, which leads to or is
likely to lead to termination of pregnancy without her express consent,
shall be punishable with imprisonment for 10 years and with fine; any
person acting as a care-giver of the woman with disability, whether as
parent or guardian or in any other capacity, lawful or unlawful, who
does any act to facilitate, or negligently fails to prevent such
medical procedure from being performed, shall be punishable with
imprisonment, which may extend to seven years and with fine.
The Rights of Persons with
Disabilities Bill, 2011, covers a whole spectrum of disabilities
ranging from physical disabilities to mental illness and multiple
disabilities. It will replace the existing Persons with Disabilities
(Equal Opportunity Protection of Rights and Full Participation) Act of
1995.
Political
participation
On political
participation, the proposed law says that every person with disability
who fulfils the eligibility requirements shall be entitled to be
registered as a voter and not be disqualified to exercise his or her
right to vote on the ground of disability, irrespective of any
stipulation to the contrary in any law for the time being in force.
Any person with disability who is unable to cast vote in
person due to his or her disability or because of admission in any
establishment for treatment of persons at the time of the poll shall be
entitled to vote by postal ballot, it says while directing the Election
Commission to ensure that all polling stations are accessible to
persons with disabilities.
The Hindu
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posted 13 May 2010 08:03 by Nilesh Singit
Constitution of a Committee to draft a new legislation to replace
the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995. ("PwD Act").
F.No. 16-38/2006-DD.III
GOVERNMENT OF INDIA
Ministry of Social Justice & Empowerment
Shastri Bhavan, New Delhi
Date: 30/04/2010
Office Memorandum
Sub:Constitution of a Committee to draft a new legislation to
replace the Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995. ("PwD Act").
The PwD Act, 1995, has now been in force for over 14 years. Keeping
in view the experience of its working over this period, and the need to
harmonize its provisions with those of the United Nations Convention on
the Rights for Persons with Disabilities (UNCRPD), 2008, and of other
legislations on the subject, extensive consultations with various
stakeholders including State Governments, NGOs and experts have been
carried out. The Central Coordination Committee considered the matter
in its meeting dated 21.07.2009, after which a comprehensive draft of
amendments necessary in the Act was formulated and circulated to State
Governments/Union Territories and concerned Union Ministries in
September, 2009, for comments. The draft was also posted on the
Ministry�s website seeking comments from the public.
In response to the above, comments have been received from several
State Governments, Central Ministries, Non- Government Organizations
and others.
2. A Committee is hereby constituted to examine the above responses
and draft a new legislation to replace the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act,
1995.
3. Composition of the above Committee shall be as follows:-
Chairperson
Dr. (Mrs.) Sudha Kaul
Members
I. Experts/ NGO representatives
- Shri Bhushan Punani, Executive Director, Blind People's Association, Ahmedabad
- Dr. Vikas Amte, Secretary & Chief Functionary, Maharogi Sewa Samiti, Chandrapur, Maharashtra
- Smt. Jayashree Ravindran, Managing Trustee, Ability Foundation, Chennai
- Dr. G.N.Karna, President, Society for Disability and Rehabilitation Studies, Jawaharlal Nehru University, New Delhi
- Dr. L. Govinda Rao, Former Director, NIMH, Secunderabad, Andhra Pradesh
- A nominee of Director, NIMHANS, not below the rank of a Professor
- Ms. Merry Barua, Director, Action for Autism, New Delhi
- Ms. G. Syamala, Executive Director, Action for Ability Development and Inclusion (AADI), New Delhi
- ix. Shri. Rajive Raturi, Director, Human Rights Law Network (DRI), New Delhi
- Shri. Rajive Raturi, Director, Human Rights Law Network (DRI), New Delhi
II. Principal Secretaries In-charge of Disability in the State Governments-
- Assam
- Tamil Nadu
- Rajasthan
- Maharashtra
- West Bengal
III. Representatives of the following Central Ministries/ Departments not below the rank of a Joint Secretary-
- M/o Health and Family Welfare
- M/o Urban Development
- Dept. of School Education and Literacy (M/o HRD)
- Dept. of Personnel and Training
- Planning Commission
IV. A senior representative nominated by the Head of the National Institute of Public Finance and Policy (NIPFP)
V. Members, ex officio
- Chief Commissioner of Persons with Disabilities
- Chairperson, National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
- Chairman, Rehabilitation Council of India
- Financial Advisor, M/o SJ & E, or his nominee
VI. Member Secretary
Joint Secretary (Disability Bureau), M/o SJ & E
4. The Committee may invite other experts, and representatives of
other Ministries/ State Governments/ Autonomous Bodies to participate
in its deliberations, as Special Invitees.
5. While drafting the new legislation, the Committee shall keep the following in view:-
- Provisions of the Constitution and other laws, and the need to avoid duplication of provisions already existing in them,
- Chairperson, National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
- Financial, logistical and administrative feasibility of the proposed provisions.
6. The Committee will also make an assessment of the financial
implications � recurring and non-recurring � of the draft legislation
prepared by it for the (i) Central Government, (ii) State Governments,
(iii) Local Authorities, and (iv) others on whom obligations may be
cast.
7. The Committee will submit draft of the new legislation, as
mentioned in para 2 above, by 31st August, 2010, together with the
following-
- A report on the process adopted by it in drafting the legislation,
as also explaining the rationale for its salient provisions, and
- A note on the financial implications of the recommended draft, as mentioned in para 6 above.
8. TA/DA, as admissible under Central Government rules, will be paid
to the non official members of the Committee for attending its meetings.
9.Secretarial assistance to the Committee will be provided by Pandit
Deendayal Upadhyay Institute for the Physically Handicapped, New Delhi,
and expenses on the Committee�s work will also be borne by the said
Institute.
Yours Faithfully
(Sunil Kumar Pattanayak)
Director-Disability
Copy to:
- Dr. (Mrs.) Sudha Kaul, Executive Director, Indian Institute of Cerebral Palsy, Kolkata
- Shri Bhushan Punani, Executive Director, Blind People's
Association, Jagdish Patel Chowk, Surdas Marg, Vastrapur,
Ahmedabad-380015
- Dr. Vikas Amte, Maharogi Sewa Samiti At and PO Anandwan, via Waroa, District Chandrapur, Maharashtra 442914
- Smt. Jayashree Ravindran, Managing Trustee, Ability Foundation, 28,
Second Cross Street, Gandhi Nagar, Adyar, Chennai - 600 020, Tamil
Nadu. India
- Dr. G.N.Karna, President, Society for Disability and Rehabilitation
Studies, JNU, New Delhi. Head Office: B-285, Vasant Kunj Enclave, New
Delhi-110070, India
- Dr. L. Govinda Rao, Kameswari Kuteer, H.No.8-7-193/13/2, Wesley
Teachers Colony, Road No.3, Old Bowenpally, Secunderabad - 500 011
- Director, NIMHANS, Bangalore-560029
- Ms. Merry Barua, Director, Action for Autism, Pocket 7&8, Jasola Vihar, New Delhi-110025
-
Ms. G. Syamala, Executive Director AADI - Action for Ability
Development and Inclusion, 2, Balbir Saxena Marg, Hauz Khas, New
Delhi-110016
- Shri. Rajive Raturi, Director, Human Rights Law Network (DRI), 576, Masjid Road, Jungpura, Delhi-110 014
- Dr. Uma Tuli, Founder Managing Secretary, Amar Jyoti Rehabilitation
& Research Centre, Karkardooma, Vikas Marg, Delhi -110092
- Principal Secretary In-charge of Disability, Governments of Assam
- Principal Secretary In-charge of Disability, Governments of Tamil Nadu
- Principal Secretary In-charge of Disability, Governments of Rajasthan
- Principal Secretary In-charge of Disability, Governments of Maharashtra
- Principal Secretary In-charge of Disability, Governments of West Bengal
- Secretary, M/o Health and Family Welfare
- Secretary, M/o Urban Development
- Secretary, Dept. of School Education and Literacy (M/o HRD)
- Secretary, Dept. of Personnel and Training
- Secretary, Planning Commission
- Director, National Institute of Public Finance and Policy (NIPFP)
- Chief Commissioner of Persons with Disabilities
- Chairperson, National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
- Chairman, Rehabilitation Council of India
- Financial Advisor, M/o SJ & E
- Joint Secretary (Disability), M/o SJ & E
- Director, Pt. DDU Institute for the Physically Handicapped, New Delhi
Copy for information to-
- PPS to Secretary, M/o Social Justice & Empowerment
- PS to Additional Secretary, M/o Social Justice & Empowerment
|
posted 13 May 2010 07:46 by Nilesh Singit
From: DNIS News Network, India: The Indian disability sector
seems to be in the midst of revolutionary reforms. Close on the heels of
the growing demand for a brand new Disability Act, the National Trust
for the Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999 is all set to be amended
to include all disabilities and to become an Act on Legal Capacity.
Draft of the proposed amendments will be discussed in a meeting of the
Amendments Sub Committee, the National Trust Board and a few invitees on
April 7.
The proposed Amendments have changed the earlier definition of
disability as mentioned in the Act which only included four disabilities
to a more universal and inclusive definition in line with U.N.C.R.P.D.
Thus, all disabilities will now come under the purview of the National
Trust.
The proposed amendments have moved away from legal guardianship to
the concept of legal capacity. If the amendments are adopted, all
disabilities and not just persons with developmental disabilities will
have the right to exercise their legal capacity. Persons with all forms
of disabilities will be able to avail the supported decision making
provisions.
According to Poonam Natarajan, Chairperson of National Trust, post
amendments the National Trust will have access to the National Fund for
disabilities which amounts to nearly 10,000 crores of rupees. This will
be a huge boost compared to the mere 100 crore corpus that the Trust has
been surviving on for the last over 10 years since its inception.
However, these amendments are facing stiff opposition from certain
quarters. The bone of contention being the definition of disability and
the scraping of legal guardianship. Disabled rights activists feel that
the definition of disability will have to be universal. However, they
also feel that the provisions for legal guardianship should be retained.
|
posted 13 May 2010 05:43 by Nilesh Singit
From DNIS: D.R.G. Core
Group making steady progress in drafting a new
disability law
D.N.I.S. News Network, India: In the
past few months since
Disabled Rights Group (D.R.G.) started the campaign for a new law based
on U.N.C.R.P.D., as opposed to the proposed amendments, D.R.G.’s Core
Group has been putting in days of hardwork towards drafting a new law.
The good news is that till now 16 chapters have been drafted and are
being circulated among stakeholders.
The enthusiasm of the Group can be gauged
from the fact that they
have even given a tentative name to the new law – ‘The Rights of Persons
with Disabilities (Respect for Dignity, Effective Participation and
Inclusive Opportunities) Act, 2010’!
Some chapters were debated and discussed at
the National Consultation
on the new law in October last year and some more were taken up at the
North and East Zone Consultations thereafter. The idea is to take the
discussion to all stakeholders across disabilities, across the nation
and to reach a consensus.
D.R.G. Core Group is planning to finish the
rest of the chapters in
the coming months and then these will be submitted to the Ministry of
Social Justice and Empowerment for consideration.
For more information or to send in your
feedback on the draft new
law, please write to secretariat@ncpedp.org. |
posted 13 May 2010 05:34 by Nilesh Singit
The
process of finalization of the PD Act is again at hand, this is the
third round of consultations. Are we third time lucky???
Let
us, briefly recapitulate the history relating to amendments to the said
Act. The need for bringing about amendments was soon felt after its
enactment in December 1995. Amendments
Recommended by High Level Committee 1999 was constituted by the
Government under the chairmanship of Prof. Amita Dhanda to suggest
appropriate amendments in the Act. The Committee, accordingly,
submitted its report to the Government and thereafter the report
gathered dust in the government offices. The Government revived the
amendment process around 2006 , when UNCRPD was being negotiated, but
yet not adopted by the UN General-assembly.
The
government organised series of a few consultative meetings which were
conducted by the Government before the ratification of the UNCRPD, and
only one (in Goa) post ratification were merely symbolic, ritualistic,
and of no use at all. They lacked informed and systematic participation
of persons with disabilities. While requests calling for suggestions
were posted on its website by the Ministry of Social Justice and
Empowerment, Government of India, this is far from being enough, more
particularly, in the face of the fact that not too many persons with
disabilities have access to websites.
It
goes without saying that the UNCRPD, particularly, vide its Article 4.3
enjoins it upon the states parties to consult and actively involve
persons with disabilities in respect of making any laws and policies,
and also in respect of any matter which affects their lives, or which
concerns them. Hence, active participation by persons with disabilities
is amongst the core and non-negotiable principles which the UNCRPD
envisages. It is therefore of paramount importance that the Government
honours and respects the compulsions which was undertaken for
fulfilment.
The
PDA and NTA as it stands today cannot be amended. These Acts were made
by the GOI without consultation and seeking any views of person with
disabilities and organisations working for disability. These Acts are
archaic and they have served their time.
There
is a definite and distinct need of a fair and comprehensive
harmonisation of the progressive perspectives and paradigms that have
informed and influenced the UNCRPD; such as, the perspective of
non-discrimination and equality; of respect for inherent dignity and
worth of persons with disabilities; of full membership of society; of
social model of disability; of rights-based approach; of meaningful
participation and inclusion of persons with disabilities, etc.
Moreover, a fair and comprehensive process will also ensure ownership
of the proposed amendments in the PDA.
The
PDA has been constructed by adopting a medical perspective wherein
disability is perceived as an individual deficit which has to be
socially compensated. UNCRPD looks not individual impairments but
social discrimination that results from disability. This therefore
mandates the State to formulate policies and law by adopting the social
model of disability.
The
definition of disability as it is under the PDA is an exhaustive
listing of disabilities . The UNCRPD does not define disability in the
definition article, it is included in the purpose segment. UNCRPD
includes definitions of communication; language; discrimination on the
basis of disability; reasonable accommodation and universal design
acknowledging these as conditions to be addressed to eliminate any
forms of discrimination.
UNCRPD
approach is worth emulating since the enactment of the RTE which uses
definition of disability as in the PDA as a means to deny education to
disabled persons rather than upholding the fundamental right to
education. Furthermore, there is no parity whatsoever with the
exhaustive listing of disabilities and the ensuing three percent
reservations arising from the PDA be it in education, employment etc.
The medical model of disability is perpetuated if the definition of
disability and only covers a certain group of disabilities and those
persons with disabilities not fortunate enough to have disabilities
listed in the act face discrimination.
Even
though the PDA is titled The Persons with disabilities (Equal
Opportunities, Protection of Right and full Participation) Act 1995, it
cannot be amended in its present avatar.
The
present act and the proposed amendment have not addressed the social
exclusion and discrimination faced by disabled persons adequately. The
Disability Act must promote equability in participation in the civil,
political, economic, social and cultural spheres with equal
opportunities.
India
has signed and ratified UNCRPD on 1st October 2007 and the Government
of India is obligated to the 70 million disabled persons that the
spirit of the UNCRPD would be upheld and accordingly there would be
amendments to the National Acts. PDA is silent on the following issues
and these need to be addressed:
- Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
- Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
- Non-discrimination on the grounds of disability;
- Full and effective participation and inclusion in society;
- Equality of opportunity;
- Accessibility: In physical environment, Information in Accessible format; Access to Justice
- Protection and empowerment of women and girls with disabilities who
are often at a greater risk, both within and outside the home, of
violence, injury or abuse, neglect or negligent treatment, maltreatment
or exploitation.
- Assumption of legal capacity as opposed to assumption of incapacity.
- Children with disabilities to have full enjoyment of all human
rights including education and learning on an equal basis with other
children.
If the shortcomings of the
PDA are to bridged to meet the requirements of a more rights based
legislation then the task does not lie in amendments or modification
which are best notional and cosmetic even after an elaborate and
painstaking effort. The task of harmonisation of the PDA lies in a
fresh Act that would change the current way of perceiving the rights of
disabled persons.
Disabled
persons in India will not settle for anything less than a new
comprehensive act for disabled persons that is in tune with UNCRPD.
|
posted 13 May 2010 05:33 by Nilesh Singit
Ashish Sinha On a day Taare
Zameen Par
won the national award for being the 'best family welfare entertainment
film', Prime Minister Manmohan Singh authenticated the need for an
attitudinal shift towards persons with disabilities. At
a conference of state welfare ministers, Singh said India lagged in
adopting the correct - human rights - approach on the subject. He said
the Persons with Disabilities (PWD) Act, 1995 would be
"comprehensively" amended to conform to the UN Convention on the Rights
of Persons with Disabilities (UNCRPD), enforced in May 2008. India is a
UNCRPD signatory. "I found in each one of them
(persons with disabilities) a determination to live productive lives
and make their individual contributions to society. We should give them
every possible opportunity to do so. They need equal opportunities as
equal citizens with special needs," he said. The UN
convention redefines the old approach of viewing persons with
disabilities as "objects" of charity, medical treatment and social
protection. The PWD Act, to a large extent, suffers from the same
shortcoming with the state becoming the 'provider' - sometimes the
'facilitator' - for persons with disabilities. Experts said other
legislations on the subject also suffer from the old mindset and rather
than "comprehensive amendments", a new set of laws was necessary. The
UN
convention sees people with disabilities as "subjects" with rights,
capable of claiming those rights and making decisions for their lives
based on their free and informed consent as well as being active
members of society. "The PWD Act lists seven disabilities - blindness,
low vision, leprosy- cured, hearing impairment, locomotor disability,
mental retardation and mental illness. The UN convention doesn't
restrict the definition. It talks of higher support need as a matter of
right," said Poonam Natarajan, chairperson of the National Trust for
the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation
and Multiple Disabilities. "A person is not disabled; it is the
environment that makes him so. Their legal capacity must be redefined. They
should
have full control over decision-making and choices," she said.
The Prime Minister described persons with disabilities as those having
"evolving capacities". After enforcement of the UN convention, the
focus shifted to providing equal opportunities to persons with
disabilities so that their potential could be harnessed. "The
medico-charity model needs to be dumped. Disability, simply, is
diversity. It means the right to live with dignity and equal
opportunities. The mindset of the administrative machinery, however, is
no different from most of society where stigma is associated with
disability," said a senior IAS officer working in the sector. Last
year, the government had announced an incentive scheme to promote
employment of persons with disabilities in the private sector. The
Prime Minister pointed out the scheme hadn't made much headway. " This
may partly have been because of the economic slowdown. But as our
economy is now emerging from its slowdown phase, I urge the corporate
sector to respond handsomely in the implementation of the scheme," he
said.
|
posted 13 May 2010 05:32 by Nilesh Singit
Amita Dhanda●●
Gabor Gombos♦♦
Acknowledgement and Disclaimer
Consultation
Paper drafted under the auspices of the National Trust. The opinions
expressed in the paper are the views of the paper writers and not of
the National Trust.
I Introduction
The
National Trust Act was enacted in 1999 after a long gestation period.
The Act was proposed to address the apprehension of parents (primarily
of persons with intellectual disability) on the future of their wards
after them. However by the time the NTA was enacted, the protective
motivations of the original proposal were diluted with the inclusion of
autonomy and self advocacy claims.
The
1999 Act acknowledged that a guardian to manage the affairs of a person
with disability could not be appointed merely by looking at the nature
of the disability; instead the statute required that the needs of the
individual person with disability should be examined and a guardian
appointed only if desired. This recognition of limited guardianship in
the National Trust Act 1999 was one of the forward looking examples
that the Ad Hoc Committee for the Drafting of the Convention on the
Rights of Persons with Disabilities was apprised of whilst it
deliberated on the legal capacity of persons with disabilities.
Even
as the National Trust Act 1999 adopted a forward looking approach, its
provisions have been overtaken by events. The United Nations Convention
on the Rights of Persons with Disabilities, which has been negotiated
and drafted with the active involvement of persons with disabilities
from all over the world, alters what States Parties need to do for
persons with disabilities . India has signed and ratified the
Convention on the Rights of Persons with Disabilities (hereinafter
UNCRPD) and the UNCRPD having obtained the requisite number of
ratifications came into force on 3rd
of May 2008. In line with our international obligation we are now
required to bring our laws in conformity with the international
Convention. It is important that in bringing the NTA in conformity with
UNCRPD we are guided by both the text and the spirit of UNCRPD. It is
also necessary that the suggestions for change are made by reading the
UNCRPD as a whole and by placing the NTA within the context of Indian
statutory law.
We have been guided by these considerations in formulating the following proposal for consultation
II Reconsideration of Underlying Principles of NTA
The
NTA regime is based on the presumption that some persons with
disabilities, due to the nature of their disability, are incapable of
making their own decisions; hence they do not possess legal capacity;
and thus special protective arrangements need to be put in place for
them. Consequently, the statute makes caretaking arrangements for the
named disabilities, proceeding on the presumption that such
arrangements are only required for those disabilities.
The
UNCRPD questions these presumptions of the NTA insofar as it recognizes
that all persons with disabilities possess legal capacity and are
persons before the law. The UNCRPD also acknowledges that some persons
with disabilities may require support for the exercise of their legal
capacity; it therefore places an obligation on States Parties to
provide such support to persons with disabilities. However the fact
that some persons with disabilities need support for the exercise of
their legal capacity is no reason to deny the existence of their
capacity. Thus the UNCRPD sets up a universal model of legal capacity
whereby all persons with disability are recognized to possess legal
capacity. And support arrangements need to be so put in place, that
they can be accessed or made available, as required, by persons with
disabilities. UNCRPD recognizes that protection based on legal
incapacitation often results in a further barrier to equal
participation in society; it therefore introduces an enabling legal
framework which supports equal status and safeguards against abuses.
This recognition of universal legal capacity in the UNCRPD mandates
that: the NTA should explicitly recognize the legal capacity of persons
with disabilities; and national laws which deny legal capacity of
persons with disabilities are repealed. The UNCRPD would also require
recognition to and facilitation of support networks. The support
networks would be needed so that persons with disabilities are in no
way disadvantaged in the exercise of legal capacity.
It
is important to note that whilst the UNCRPD sets up a regime of
universal legal capacity by recognizing the legal capacity of all
persons with disabilities; the NTA is a law with restricted application
because it addresses the capacity deficits of certain named
disabilities only.
In the light of the above the Consultation would need to address the following questions:
-
How should the NTA be amended to incorporate the UNCRPD model of universal legal capacity?
-
Should the model be only extended to the named disabilities?
-
Or should the NTA be amended to make this model available to all disabilities?
-
What other amendments should be introduced in the NTA to bring the statute in conformity with the UNCRPD?
In what follows we provide reasoned answers to these questions
Suggested Amendments with Reasons
The NTA should introduce an Express Provision Recognizing Universal Legal Capacity and the provision should state that
Reasons
: Section 12 (3) of the NTA challenges the inextricable association of
incapacity with some disabilities; it therefore requires that before
appointing a guardian for a person with the named disability, an
enquiry on the need of such guardian should be made; and a guardian
should be appointed only if upon enquiry such guardian is considered
necessary. The NTA accepts that in a particular case a persons with
disability could be found to possess capacity; but it does not presume
that persons with disability possess capacity like non disabled
persons.
The
general position of the law, as exemplified especially by the Contract
Act 1872, is that all adult persons who have crossed the age of
minority are presumed to possess legal capacity. Thus any person who
alleges lack of capacity is required to prove it. This presumption does
not extend to persons generally found in a state of unsound mind. In
their case the law presumes lack of capacity and the person contending
presence of capacity is required to prove it. Whilst legislation has
restricted the presumption of lack of capacity on persons who are
generally of unsound mind; the courts have not insisted on the
requirement of generality. Once a person has been found to be with
intellectual disability or living with mental illness, they have
presumed that such person living with mental illness or intellectual
disability lacked legal capacity.
The
UNCRPD requires that this overarching presumption of lack of capacity
associated with persons with disabilities should be displaced and they
should be treated on an equal basis with others. To fulfill this
mandate of the UNCRPD it is necessary that the NTA states all persons
with disabilities have full legal capacity.
The NTA provision should expressly state that Support Does Not Diminish Capacity
Reasons:
Once a person with disabilities is found to lack legal capacity the law
handles this situation of incapacity by appointing a guardian to manage
the person and property of the person with disabilities. The guardian
then assumes the persona of the incapacitated person and takes all
decision on his or her behalf. If the guardian is viewed as support, it
is necessary to note that this support is not extended by the existing
Indian law, without a finding, that a person with disability lacks
legal capacity. Art 12 of the UNCRPD allows for support to be provided
without a finding of incapacity. For NTA to provide support without
diminishing capacity it is necessary that the new section should
expressly state that accessing of support by a person with disability
in no way diminishes their legal capacity.
Role of National Trust in Providing Support
This new provision should state the nature of the responsibility assumed by the National Trust and to that end state:
Reasons:
The UNCRPD places a duty on State Parties to provide support to persons
with disability to assist in the exercise of their legal capacity.
Insofar as the National Trust is an autonomous statutory body which is
supported by the government; and the NTA is aimed at promoting both the
autonomy and independent living of persons with disabilities; it may be
appropriate to fulfil this mandate of the UNCRPD by requiring the
National Trust to offer assistance to persons with disabilities to set
up support networks. This assistance could be provided in two kinds of
ways: one, the National Trust could through its Local Level Committees
accord recognition to the support networks that are created by persons
with disabilities; and two, where it could assist persons with
disabilities to set up the support networks.
The
National Trust would need to provide this assistance to enable the
paradigm of supported decision-making to displace the long subsisting
familiar paradigm of guardianship or substituted decision-making.
Recognition in the law alone will not without more dispel the long
subsisting prejudice against persons with disabilities. For that
prejudice to be dispelled, it is important that persons with disability
should be seen to in fact function in society. For such functioning to
actually happen, it is important to put in place procedures, which
would lower the barriers against persons with disabilities. The
recognition of the support network of persons with disabilities by the
National Trust could be one such procedure.
Whilst
some persons with disability would be able to put in place a support
network on their own and may only need the National Trust to assist
them by recognizing the Network, others may require the National Trust
to help them in setting up the Network. The inclusion of this provision
in the NTA is being suggested to enable the Trust to devise mechanisms
by which the shift from a paradigm of Substituted Decision-Making to a
Paradigm of Supported Decision-Making can be made. Furthermore the
active involvement of the Trust would also help put in place, the
safeguards that required by the UNCRPD, against abuse by support
networks.
Expand the Definition of Disability
The
National Trust Act defines “persons with disability” to mean a person
with autism, cerebral palsy, mental retardation or multiple
disabilities. This restrictive definition needs to be altered.
Reasons:
As already mentioned the definition of disability in NTA was prompted
by the criterion of enhanced vulnerability. Whilst a medicalized
standard of enhanced impairment prompted the inclusion of cerebral
palsy and multiple disabilities; psycho-social considerations dictated
the induction of autism and mental retardation. The creation of a
specialized legal regime of the National Trust was also induced by the
questionable legal status of the persons with the aforementioned
disabilities. The need for substitute legal arrangements was especially
felt by parents of persons with mental retardation because both law and
practice attributed incapacity to their wards. A similar attribution of
incapacity was practiced in reality towards the other disabilities.
Whilst some of these were included in the NTA others were not.
The
UNCRPD requires a stoppage of the legal attribution of incapacity
against persons with disabilities thus removing a legal barrier that
contributes to disability itself. Just the dismantling of the
disqualifying regime in law would not alter the situation on the ground
but the alteration of the law is a precondition to social change.
Social attribution of incapacity is not restricted to persons excluded
by the law, hence what the UNCRPD prompted change in the law would do
is that it would bring persons with mental retardation and persons
living with mental illness at par with other persons with disabilities.
To make this statement is no way a denial of the aggravated exclusion
and stigma faced by persons with intellectual and psychosocial
disabilities. However it is aimed to emphasize that the new regime of
legal capacity affords an opportunity for cross disability solidarity
based on the enabling paradigm of supported decision making and this
opportunity would be seized if the NTA abandons the present restricted
definition and adopts a more universal definition of disability. The
continuation of the present definition may cause the named disabilities
to be ghettoized in exclusionary regimes.
Further
the new model of legal capacity can take off the ground only if
imaginative support networks are created. In order to generate the
political impetus to release resources for the creation of these
networks, it is important for persons with disabilities to speak in one
voice. The National Trust would also be able to further the enterprise
of garnering support for persons with disabilities when the human
interdependence of all persons with disabilities and all humans is
emphasized.
With
this amendment the NTA could be recast as the legal capacity and
support networks legislation for all persons with disabilities; whilst
the other rights could be addressed in the Persons with Disabilities
Act 1995, again, for all persons with disabilities.
Right to Participation
An express provision should be included in the NTA which states that :
Reasons
The UNCRPD requires all programs and policies for persons with
disabilities to be formulated with their active participation. The
National Trust has resources for initiating approved programs. The
UNCRPD would require the National Trust to consult with persons with
disabilities to identify specific areas of action to enable persons
with disabilities to exercise their legal capacity and starting
programs accordingly with the active participation of and in
consultation with persons with disabilities..
●● Professor
of Law National Academy of Legal Studies and Research, Hyderabad, NGO
Delegate to the United Nations Ad Hoc Committee on the Convention on
the Rights of Persons with Disabilities .
♦♦ Ashoka Fellow Centre for Advocacy and Mental Health, Bapu Trust Pune, Senior Advocacy Officer, Mental Disability Advocacy Center Budapest, NGO Delegate to the United Nations Ad Hoc Committee on the Convention on the Rights of Persons with Disabilities . |
posted 13 May 2010 05:30 by Nilesh Singit
The
following working paper has been written with the objective of
facilitating the process of harmonizing Indian Disabilities laws with
the United Nation convention on the to rights of persons with
disabilities. The suggestions in this paper are confined to the Persons
with Disabilities Act, 1995; even as the paper provides indications on
issues that needs to be addressed in other laws, be they disabilities
specific or not, to bring them in conformity with the mandate of the
Convention.
The
premise of the paper is that harmonizing is not a textual exercise;
instead it is an effort at bringing the Indian law in consonance with
the spirit of the Convention. Consequently in the first part the paper
draws attention to some of the general principles of the Convention
which would need to be kept in view whilst undertaking the harmonizing
exercise. In order to underscore the importance of values the second
part looks at those rights which are common to both the Persons With
Disabilities Act and the UNCRPD and demonstrates by referring to
specific sections of PWDA and articles of UNCRPD the difference of
orientation in the two texts and how this orientation will need to be
rectified in order to bring PWDA in conformity with the UNCRPD.
To
put in place the UNCRPD paradigm, it will not be sufficient to only
bring the existing laws in harmony with the UNCRPD in letter and
spirit. It is also necessary to include provisions which reaffirm the
new rights that have been incorporated in the UNCRPD, which are
recognized by the Constitution of India, but which have not been
included in any of the existing disability legislation. This is
required so that the civil political rights recognized by the Indian
Constitution are appropriately customized for persons with
disabilities. Part III of the paper addresses the issue of these new
rights and in this part suggestions have also been made on how other
general legislations would need to be altered to fulfill the mandate of
the convention.
India
has both signed and ratified the UNCRPD. This has made it imperative
for the country to consider how to bring the national laws in harmony
with the convention. For the process of harmonization to be carried out
in its true spirit, it is important to understand that this exercise
should not be approached as a linguistic or textual one. Rather the
principles and values of the convention should find due recognition in
the national law. The following paper therefore has been divided into
three parts. The first part states how the overall orientation of the
Indian law would need to be altered; the second part looks at the
existing PWDA and describes how specific provisions will need to be
changed; and the third part dwells on the new provisions that would
need to be introduced in the PWDA to implement the mandate of the
UNCRPD. This part also highlights how for these new rights to strike
root it is necessary that disability provisions in general legislations
are also brought in conformity with UNCRPD.
Change in overall orientation:
-
The
PWDA has constructed the entitlements of persons with disabilities by
adopting a medicalised perspective towards disability. Consequently
disability is perceived as an individual deficit which has to be
socially compensated. This outlook influences both the identification
of persons with disabilities as also the entitlements promised to them.
The convention on the other hand underscores the fact that it is not
individual impairments but social discrimination which results in
disability. Hence it requires States to formulate their policies and
law by adopting the social model of disability.
-
Even
as the PWDA has been titled Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995
it does not adopt the rights approach towards disability. The various
provisions of this statute primarily emerge from a welfare perspective;
hence the state is required to make policy concessions to persons with
disabilities. The notion of non-negotiable or absolute rights is absent
from the Indian legislation. This is because the statute does not
include the rights emanating from the respect and dignity of human
beings. It is this perspective which explains why the PWDA makes no
provision for civil political rights and only engages with social
economic rights. In saying one is not forgetting how the Indian courts
have converted the policy commitments of PWDA into rights or at least
have required mandatory fulfillment of policy obligations by the State.
-
The
convention is an effort at recognizing the right of persons with
disabilities to operate and function as full members of civil society.
Hence equality and non-discrimination are among the key pillars of the
function. All rights available to the non-disabled world have to be
extended to persons with disabilities in order that persons with
disabilities can live on an equal basis with others. The PWDA on the
other hand perceive persons with disabilities as a special vulnerable
group for whom special measures need to be formulated. There is general
disconnect between this effort of constructing special measures for
persons with disabilities and the rights available to the non-disabled.
The discussions around reservations and affirmative action can be named
as the one area which is an exception to the above rule of silence as
in these discussions reference to disability is also made.
-
Accompanying
the principle of equality and non discrimination is the principle of
autonomy and interdependence. The PWDA allows a measure of independence
to persons with disabilities; however it does not challenge the
dependant status which has been ascribed to persons with disabilities.
Such a challenge would have required the PWDA to encompass
civil-political rights whereas there is an ominous silence on this
count in the PWDA. The UNCRPD has the not viewed legal capacity in a
dichotomous manner whereby you are either capable or incapable. Instead
the UNCRPD has put in place an interdependent model of legal capacity
which recognizes the capacity of all persons with disabilities. This
model simultaneously acknowledges that support may be required to
exercise such legal capacity and yet unlike current legal procedures
for accessing support such support shall be available for persons with
disabilities, including persons with high support needs, without
attributing incapacity to persons with disabilities.
-
“Nothing
about us without us” has not just been slogan of the disability
community during the negotiations for the convention; it has been
recognized as an important value of the UNCRPD. Consequently States
have been placed under an obligation to seek active participation of
persons with the disabilities in the formulation of disability law and
policy. The PWDA on the other hand suffers from an ableist bias and
hence makes persons with disabilities beneficiaries of policies and
scheme with little or no role in the making of such laws and schemes.
If there is any provision which allows for consultation it does so with
organizations working with persons with disabilities and not with
persons with disabilities themselves.
In
this segment the existing PWDA is read in the light of the UNCRPD to
analytically describe how the statute would need to be modified to
bring it in consonance with the UNCRPD. In order to ease understanding,
each chapter of the PWDA has been serially examined.
The
PWDA contains an exhaustive definition of disability. The UNCRPD does
not have a definition in the definition article but includes the
definition in the purpose segment. It may be worth considering whether
an inclusive definition which expressly names the those conditions
which are more unanimously acknowledged as disabling could be included
in the statute but need not be limited to them.
Due
to the integral relevance they have to the core principles attempted to
be established through the UNCRPD there would be to include definitions
of communication; language; discrimination on the basis of disability;
reasonable accommodation and universal design.
PARTICIPATION OF PERSONS WITH DISABILITIES
The
only provision that can be seen to acknowledge the right of
participation are Sections 2 (k) (l) and 13 (2)(f) of PWDA which
provide that five persons, as far as practicable persons with
disabilities, shall be nominated by the Central and State government to
the Central and State Coordination Committee respectively to represent
non -governmental organizations.
The
section allow for 5 members to be nominated one from each area of
disability. The definition of disability in PWDA has named seven
conditions as covered by the definition of disability. The section thus
does not accord representation to all disabilities included in the PWDA
Art
4(3) of UNCRPD obligates States to closely consult with and actively
involve persons with disabilities, including children with
disabilities, through their representative organizations in the
development and implementation of legislation and policies to implement
the present Convention and in other decision-making processes
concerning issues relating to persons with disabilities.
-
The PWDA
proceeds on the presumption that PWDS cannot speak for themselves but
wherever they are able to, they should be heard. To bring the PWDA in
harmony with the UNCRPD it is this presumption that shall have to be
displaced. The UNCRPD has unequivocally spoken on the capacity of PWDs
to speak for themselves and the inclusion of children with disabilities
demonstrates the strength of this belief.
-
Nomination by government will need to be replaced by election by
representative organizations
-
The
Coordination Committees are primarily Government dominant bodies with
notional representation to NGO. This composition would require
reexamination.
-
The UNCRPD
has expressly recognized participation rights of PWDs. Hence the
present merger of the representational rights of PWDs and NGOs would
need to be changed
-
Express initiative to involve children with disabilities will need
to be put in place.
PREVENTION AND EARLY DETECTION OF DISABILITIES
The
PWDA devotes an entire chapter on prevention and early detection of
disability. This chapter is in accord with the medicalized perspective
of the statute. The subtext of this chapter and the PWDA as a whole is
that persons with disability suffer from disability not live with it.
As disability is suffering hence initiatives to eradicate it are in
order.
The
UNCRPD has adopted the social model of disability and this model
stresses that it is social exclusion and not individual impairment
which makes living with disability an arduous task. Furthermore a
chapter on prevention in a Convention devoted to the rights of persons
with disabilities reinforces the social stigma against persons with
disabilities. Prevention needs to be mentioned only to the extent it
has relevance to the lives of PWDs. Hence the UNCRPD refers to
prevention in the right to health and article 25 (b) requires states
parties to provide those health services needed by PWDs 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.
-
-
Retain it but only refer to secondary prevention
-
Replace it with to Right to Health provision which accords to PWDs
health entitlements similar to the non disabled.
PWDA
addresses the question of the education to persons with disabilities by
allowing for the establishment of a mixed educational system. The tone
and tenor of the chapter is not rights based rather the governments are
being ordained to do the best they can for persons with disabilities.
It is this orientation which explains the continuous use of the word
“endeavour”. Thus the government shall endeavour to promote the
integration of students with disabilities in the normal school and
endeavour to equip the special schools for children with disabilities
with vocational facilities.
Capability
development of persons with disabilities on an equal basis with
non-disabled persons is not conceived by PWDA. Rather the statute is
concerned with allowing concessions to persons with disabilities so
that they can somehow cope with the mainstream educational system. For
example suitable modification in the examination system to purely
eliminate mathematical question for the blind students and students
with low vision or restructuring the curriculum for the benefit of
students with hearing impairments to facilitate their taking only one
language as part of their curriculum. Such like provisions in the PWDA
deny persons with disabilities the opportunity to develop their
capabilities. Bernard Moran, Lawrence Baggett, Leonard Euler, Nicholas
Sanderson are amongst the scores of world famous blind mathematicians.
The PWDA by laying down that mathematics need not be taught to blind
persons has eliminated even the development of such like potential for
blind persons in India. What is ideally required is that we develop
training methodologies to appropriate educate persons with disabilities
instead of devising concessional short cuts.
In
contrast to the PWDA, the UNCRPD formulates education as a right and
the entire article on education is concerned with capability
development and the realization of full potential of persons with
disabilities. Hence article 24 of UNCRPD speaks of the kind of
opportunities, facilities and resources that persons with disabilities
would require to realize their full potential. Thus the approach of the
UNCRPD is that persons with disabilities have a right to education like
non-disabled people and just as education for the non-disabled is
planned, designed and executed to realize their full potential. Similar
approach required to be adopted for planning, designing and executing
the education of persons with disabilities. It is this motivation which
explains why UNCRPD requires that persons with disabilities receive the
support required, within the general education systems, to facilitate
their effective education. The Convention is also aware of the fact
that the right to education for persons with disabilities can only be
realized if exclusionary rules are dismantled and positive measures are
undertaken to effectively include persons with disabilities in the
general education system.
The
UNCRPD unlike the PWDA does not equate education with schooling and
provides for secondary and tertiary education along with life long
learning for persons with disabilities. Entry into mainstream
educational system for persons with disabilities without equipping them
with life and social development skill could result in greater
isolation. It is this experience of a number of persons with
disabilities which has resulted in the rejection of inclusion programs.
Consequently the UNCRPD explicitly obligates States to enable persons
with disabilities to learn life and social development skills which
will facilitate their full and effective participation in education and
as members of the community and the State parties are required to take
appropriate measures to achieve this objective including facilitating
of learning Braille; alternate scripts and augmentative and alternative
modes, means and formats of communication and orientation and mobility
skills and also to facilitate peer support and monitoring; facilitate
learning of sign language and promotion of linguistic identity of the
deaf community; ensure that the education of persons and in particular
children who are blind, deaf or deafblind is delivered in the most
appropriate languages and modes and means of communication for the
individual and in an environment which maximizes academic and social
development.
The
PWDA also requires appropriate governments to setup adequate number of
teachers’ institutions to develop trained manpower for schools of
children with disabilities. The UNCRPD makes wider and more detailed
commitment on the requirements of trained personnel. It therefore
requires state parties to take appropriate measures to employ teachers
including teachers with disabilities who are qualified in sign language
and/or Braille and trained professionals and staff who work at all
levels of education. Such training shall incorporate disability
awareness and the use of appropriate augmentation and alternate modes,
means and formats of communication, educational techniques and
materials to support persons with disability.
For
PWDA to be in harmony with UNCRPD it is important for the PWDA to
recognize that education is a right of persons with disabilities and
not a concession to persons with disability.
PWDA
is primarily concerned with job reservations hence the entire chapter
is about job identification; reservation and the processes by which the
reservation shall be brought into force. It is the same concern for
creating jobs which explains why section requires the government to put
in place a scheme which provides incentives to private employers to
hire PWDs. One other provision which has importance in the context of
employment but which has not been included in this chapter is section
47 which prohibits an establishment from discharging or reducing in
rank any person who acquires a disability on the job. The section also
provides that a person should not be denied promotion by reason of
disability.
The
UNCRPD on the other hand does not limit its attention to employment
alone and speaks of work and employment. Whilst a number of
requirements of the UNCRPD have been met in the PWDA, the following
changes would need to be introduced to bring the PWDA in harmony with
UNCRPD:
1)
The PWDA needs to incorporate and explicit provisions which prohibit
discrimination on the basis of disability with regard to all matters
concerning all forms of employment.
2) To protect the rights of persons with disabilities on equal basis,
to just and favourable conditions of work.
3)
To incorporate the principle of reasonable accommodation and ensure
that it is provided to persons with disabilities in the work place.
The
statute should also show that work opportunities to persons with
disabilities are not limited to jobs whether in the public or private
sector. The PWDA therefore should mandate governments to include
persons with disabilities in their schemes for self employment,
entrepreneurship, development of co-operatives and starting ones own
business The UNCRPD also moves in the programmatic mode on this issue
and hence an omnibus mandate to the governments to include persons with
disabilities in their work and employment policies and programmes
should fulfill the commitment of UNCRPD.
In this chapter the PWDA does two things –
-
it requires government to make schemes to provides aids and
appliances to persons with disabilities; and
-
It allows for the preferential allotment of land to persons with
disabilities for specified purposes.
Issue
of aids and appliances has been addressed by the UNCRPD by including an
express article on personal mobility. Hence provisions of aids and
appliances is not seen as an end in itself rather the provisions of
aids and appliances has to be so organized that it ensures personal
mobility with the greatest possible independence for persons with
disabilities. In line with it s outcome oriented approach the UNCRPD
expands its understanding of aid to include both artificial and live
assistance. In so far as just the provision of aids and appliances will
not result in personal mobility the UNCRPD requires training to be
provided in mobility skills two persons with disabilities and two
specialist staff working with persons with disabilities.
Changes required in PWDA:
-
Link the provisions of aid and appliances to the desired outcome;
-
to expand the definition of assistance
-
and to provide training in mobility to persons with disability and
to specialist staff.
The provision in relation to land has been dealt with in a later
section.
This
chapter of PWDA is primarily concerned with providing for accessibility
of road transport and public buildings. The PWDA thus demonstrates a
very limited understanding of the right to accessibility and again as
in the case of aids and appliances the statute speaks of undertaking
specific activities such as adapting rail compartment or installation
of auditory signals at traffic signals or ramps in public buildings.
The PWDA fails to specify what objective is aimed to be achieved by
making these provisions in the law.
In
order to bring the provisions of this chapter in conformity with the
UNCRPD, it is firstly important that PWDA clearly states like the
UNCRPD that accessibility rights are required in order to enable
persons with disabilities to live independently and participate fully
in all aspects of life. In order to achieve this objective the
government will be obliged to take appropriate measures to ensure to
persons with disabilities access to physical environment,
transportation, information and communication including information and
communication technology and system, and other facilities &
services open or provided to the public both in urban and rural areas.
It is after stating the purpose for providing accessibility and the
broad arenas in which it should be guaranteed has been specified in the
PWDA that more explicit naming of sites and facilities which need to be
made accessible can be undertaken. The PWDA at present names the
specific sites without stating the purpose for which accessibility is
required. The consequence of this exhaustive naming is that except for
the named sites, there is no obligation to make any other site facility
or service accessible to persons with disability.
This
chapter of PWDA requires appropriate governments to promote and sponsor
research amongst others in the areas of prevention of disability;
rehabilitation including community based rehabilitation; development of
assistive devices; job identification; on site modification in offices
and factories. The other provision in the chapter specifies which body
of institutions shall be supported by the government to undertake
research in special education, rehabilitation and manpower development.
This
chapter, like non discrimination chapter addressing the question of
access, outlines activities for the governments without specifying the
objectives for which the activities should be undertaken. Fortunately
in this chapter in contrast to the one on access the areas of research
are only illustratively mentioned; the research areas for which funds
may be provided to various knowledge institutions have been
exhaustively enumerated. In order to allow for an evolutionary and
flexible approach towards research and its sponsorship it is
appropriate that the PWDA adopts the more global formulation of UNCRPD
and provides that appropriate governments shall encourage research to
promote the rights guaranteed by the UNCRPD.
RECOGNITION OF INSTITUTIONS AND INSTITUTIONS FOR PERSONS WITH
SEVERE DISABILITIES
Chapters
X and XI of PWDA are concerned with questions surrounding
institutionalization of persons with disabilities. Whilst chapter X
specifies the procedures that have to be followed to obtain recognition
of institutions established or maintained for persons with
disabilities; chapter XI places an explicit obligation on appropriate
governments to establish institutions for persons with severe
disabilities.
To
address the question of harmonization in relation to this chapter, it
is necessary to ask how the question of institutionalization has been
addressed by the UNCRPD.
By
Article 19 of the UNCRPD the states who are party to the Convention
have recognized that all persons with disabilities have right to live
in the community with choices equal to others. The article accords to
persons with disabilities the right to choose their place of residence
and their living mates and shall not be forced to live in a particular
living arrangement. The article also speaks of persons with
disabilities having a range of in-home, residential and other community
support services including personal assistance which would facilitate
persons with disabilities to live in the community. Further persons
with disabilities are not to be discriminated against in accessing
existing community based services.
Article
19 bars compulsory and coerced institution living when it states that
persons with disabilities shall not be obliged to live in a particular
living arrangement. Chapter XI whereby governments establish or
recognize institutions for persons with severe disabilities is at odds
with this commitment of UNCRPD, insofar as institutions are the only
residential support provided to persons with severe disabilities.
It
could be contended that the incorporation of a procedure to recognize
institutions in no way controverts the commitment made in article 19.
Here what needs to be noted is that there is not a single provision in
PWDA which speaks of facilitating the community living of persons with
disabilities and a full chapter on recognizing institutions. Without
more, just this utilization of legislative space shows where the
government is putting its money in relation to the living arrangements
of persons with disabilities. Further if the government has limited
resources then it only seems appropriate that it should be expended to
develop a range of services which fulfill the Convention‘s objective of
community and independent living for persons with disabilities.
Moreover, if persons with disabilities are to live independently and in
the community, then it is only appropriate that institutions do not
become the bulwark of the State policy on residence for persons with
disabilities.
In
order to bring the chapter in harmony with the UNCRPD it is imperative
that provisions are introduced which require the appropriate
governments to float schemes which promote community living options and
facilitate living in the community for persons with disabilities.
This
chapter of the PWDA addresses questions of rehabilitation, insurance
and unemployment allowance. These three issues have also been addressed
by the UNCRPD but not under a common heading as is the case in PWDA.
The
appropriate governments have been obliged within the limits of their
economic capacity to undertake the rehabilitation of all persons with
disabilities. The section further permits the appropriate governments
to grant financial assistance to non-governmental organization for this
purpose. It also requires the governments to consult with NGOs working
for the cause of persons with disabilities. The above narration once
again shows that whilst the PWDA places obligations on governmental
authorities it does not provide any guidance on the reason to fulfill
the above outlined duties. Such like guidance is required if
governmental authorities are to fulfill their obligations in both
letter and spirit. This guidance can be obtained for appropriate
governments by bringing the right to rehabilitation in PWDA in harmony
with the UNCRPD.
Article
26 of the UNCRPD specifies that states should take effective and
appropriate measures to enable persons with disabilities to attain and
maintain maximum independence, full physical, mental, social and
vocational ability and full inclusion of participation in all aspects
of life. The article also requires comprehensive habilitation and
rehabilitation services in programmes but especially seeks initiatives
in areas of health, employment, education and social services. These
services and programme need to be launched through appropriate schemes.
And the UNCRPD criteria should be relied upon to inform the schemes.
These criteria would require that the programmes begin at the earliest
possible stage and be based on the multi-disciplinary assessment of
individual needs and strengths. They would need to be available to all
persons with disabilities as close as possible to their own
communities.
The
PWDA provides the entitlement of insurance only to employees with
disabilities. And even in the case of employees it allows appropriate
governments to frame, if they so think fit any other alternative scheme
for their employees. The UNCRPD on the other hand addresses the
question of insurance in a more global manner under the right to
health. Thus the UNCRPD does not seek to institute special insurance
schemes for persons with disabilities but requires that there should be
no discrimination against persons with disabilities in the provision of
health and life insurance. Harmonizing of the two provisions would
require that an express provision which recognizes the right to non
discrimination in the provision of insurance be inducted in the PWDA.
The
PWDA has addressed the question of destitution by providing payment of
unemployment allowance to persons with disabilities who have been
registered with the special employment exchange for more than two years
and could not be placed in any gainful occupation. Article 28 of the
UNCRPD on the other hand addresses the issue of destitution in a more
comprehensive manner by recognizing the right of persons with
disabilities to an adequate standard of living for themselves and their
families. The social support package of PWDA could be devised in a
unified manner by obtaining guidance from this article. As it stands
access to poverty alleviation programs find mention in section 40 PWDA,
allotment of land at concessional rates in section 43, and unemployment
allowance in section 68; whereas the question of adequate food,
clothing and housing are not addressed at all. In order to bring the
PWDA in harmony with UNCRPD, the social security entitlements should be
recast in the light of article 28 of the UNCRPD. It is also important
that the right to food campaign which is being conducted by activating
the Supreme Court also keeps the needs of persons with disabilities in
account.
CHIEF COMMISSIONER OF PERSONS WITH DISABILITIES
Section
59 (b) of PWDA makes the Chief Commissioner responsible for the
implementation of laws, rules, byelaws, regulations executive orders
issued by appropriate governments under the PWDA.
Article
33 of the UNCRPD requires the States to designate one or more focal
point within government for matters relating to the implementation of
the Convention। It may be worth considering whether the Chief
Commissioner could be one of the focal points.
JUDICIAL INTERPRETATION OF PWDA
The
above comparison between PWDA and UNCRPD may not have been very
complimentary to the PWDA. This is so because the above analysis has
not taken the judicial interpretation of PWDA into account. Once such
interpretation is taken on board, it can be contended that the PWDA is
both promising and realizing disability rights. The judiciary through a
process of interpretation has made many an intention of the appropriate
governments in the PWDA into a non negotiable obligation. And this
judicial interpretation reduces more substantially the distance between
UNCRPD and PWDA. The benefit of judicial decisions rarely extends wider
than the parties to the case. The government is obliged to act
according to the judicial interpretation if it does not amend the law
to offset the force of judicial interpretation. As a number of judicial
pronouncements asserting the dignity and full human rights of persons
with disabilities is in line with the UNCRPD the government would now
have no reason to alter the judicial interpretation but would have an
additional reason to enhance the rights rigour of PWDA.
III ADDITIONS REQUIRED IN THE UNCRPD
In
previous section modifications or additions were being suggested in the
existing provisions of PWDA in order to bring the statute in line with
the UNCRPD. Without denying the significance of this exercise, it is
important to note that such modifications would only marginally change
the current way of perceiving persons with disabilities and their
rights. For the PWDA perspective to alter in both substance and form it
is necessary to closely examine those rights which have been included
in the UNCRPD but do not find mention in the PWDA. The largest
component of harmonization tasks do not lie in the field of
modification but in the sphere of fresh legislation as the real gap
between the PWDA and UNCRPD comes to the fore when the silences of PWDA
are given voice.
The
UNCRPD is a composite document which addresses both the social economic
and civil political rights of persons with disabilities. The PWDA on
the other hand maintains an absolute and total silence on civil
political rights and makes, at best, selective programmatic commitments
in the field of social economic rights. In this segment therefore
attention is drawn towards those rights which have not at all been
included in the PWDA.
The
following is a thematic list of rights which have been included in the
UNCRPD but which do not find any mention in the PWDA. The process of
inducting a number of these rights in the PWDA shall be further
strengthened by the fact that a number of these rights have been
included in the fundamental rights chapter of the Constitution of
India. The Constitution of India had not excluded persons with
disabilities from the purview of these rights. However nor had it the
made provision for the universal design or reasonable accommodation
which would have in fact made these rights available to persons with
disabilities. Article 15 and 16 of the Indian Constitution expressly
prohibit discrimination on the basis of certain specified criteria such
as sex, caste and ethnic origin. Disability is not included amongst the
list of prohibited criteria. Consequently legislations which
discriminated on the ground of disability were not perceived as
patently discriminatory and hence unconstitutional
Non
discrimination and equality of opportunity are general principles
informing the UNCRPD. These principles require that all those rights
which have been recognized for the rest of a polity should also be
available to persons with disabilities. India has both signed and
ratified UNCRPD hence this international commitment requires that
active steps be taken to make the rights available to persons with
disabilities. India follows the dualist system of international law
which signifies that an international commitment only becomes
domestically operational when it is made part of a national
legislation. However the Indian Supreme Court has ruled on a number of
occasions that when an international commitment increases the rights
protection of the citizenry, then such rights could become available to
the people even directly from the International instrument without an
enacted municipal legislation; such a legislation however would be
necessarily required when the international commitment reduces the
ambit of rights protection.
Insofar
as the UNCRPD has increased the rights cover it can be validly
contended that the rights recognized in the Convention have already
become available to persons with disabilities. However as such like
principled recognition does not result in allocation of resources, and
other ground level initiatives for implementation, it is important that
the UNCRPD rights are appropriately incorporated in the PWDA.
Whilst
the constitutional logic strengthens the induction process; the
existence of laws on the statute book which are in opposition to the
UNCRPD make such induction necessary. To elaborate, as already stated
the Constitution of India does not prohibit discrimination on the
ground of disability. In the absence of such prohibition, a number of
laws which deny equality whether formal or substantive have been
enacted. The UNCRPD makes these laws invalid; however for this
invalidity to in fact become operational on the ground it is necessary
that provisions recognizing all these rights are inducted in the PWDA
and provisions in conflict with the rights are systematically weeded
out. It could be suggested that instead of weeding out the conflicting
provisions from each law, it may be simpler if an overriding provision
is incorporated in PWDA which lays down that in case of conflict the
PWDA shall prevail over all other laws. This quick fix solution is not
satisfactory for several reasons. Firstly the legal provisions which
diminish disability rights are included in the general laws of the
land. Thus the people who administer these laws are not disability
specialists, and in the main would see the person with disability as
inadequate and adopt at worst a diminishing and discriminatory
perspective and at best a paternalistic and philanthropic one. For all
these general administrators to adopt the appropriate perspective on
disability rights it is necessary that not just the PWDA but all
legislations which impact on the newly inducted rights of PWDA are
appropriately amended. It may also be noted that this process of
seeking change would not just bring a change in the text of the law but
will also provide an opportunity to engage with some deeply held
prejudices around disability and disability rights.
The
remaining part of this working paper puts down the obligations of the
State under each of the enumerated rights which would need to be
incorporated in the PWDA and also mentions which other laws may need to
be studied and amended in the light of the UNCRPD mandate.
A
new chapter entitled Life and liberty should be incorporated in the
PWDA and the following rights could be appropriately included in this
new chapter.
Right to life (article 10)
Other
statute: It may be necessary to revisit the Prenatal Diagnostic
Techniques Act and its explicit permission for disability selective
investigations.
Liberty and security of thePerson (article 14)
Other statutes The Mental Health Act 1987 and its sanction of
compulsory commitment
The
special provisions in relation to “insane under trials” and “ insane
acquittes” in the code of Criminal Procedure 1973 as also the
segregating procedures in the Prisoners Act.
The procedures for institutionalization of children with disability
in the Juvenile Justice Act 2000.
The anti vagrancy provisions be it in the CrPC or the Police Acts or
the vagrancy statutes.
Freedom from torture or cruel inhuman or degrading treatment and
punishment (article 15)
Other statute: The Human Rights Chapter of the Mental Health Act
could be strengthened
Freedom from exploitation violence and abuse (article 16)
Other
statute: Domestic Violence Act could be examined especially to see if
the special mandate for women with disabilities in the UNCRPD could be
accorded additional recognition here.
Protecting the integrity of person (article 17)
Other statute: The Mental Health Act
Liberty of movement and nationality (article 18)
Citizenship act and domicile provisions may need to be revisited
Situation of risks and humanitarian emergencies (article 11)
Other statute: The policies relating to Disaster Prevention as also
the proposed law.
Access to Justice (article 13)
Other statute: Legal Services Authority Act for the legal aid related
provision.
The
Code of Criminal Procedure would need to be amended in order to make
provision for reasonable accommodation for persons with disabilities in
the criminal justice process from investigation to trial to judgment.
There
would be need to make appropriate changes in the Evidence Act to accord
due recognition to the testimony of a person with disabilities and to
provide access to appropriate means and modes of communication for
providing testimony whether as witness, complainant or accused.
Equality of Respect and Opportunity
Equal recognition before the law (article 12)
In order to fulfil the mandate of this article the following changes
would need to be introduced in the law.
Firstly
the article should state recognize that all persons with disabilities
have identity and the capability to act. Secondly it should make
provision for a range of support measures which persons with
disabilities including those with high support needs can access.
Thirdly the article should clearly state that the accessing of support
did not in any way negate legal capacity.
Other
than the incorporation of an express legislative provision in the PWDA
to this effect, it would be necessary to repeal all those provisions in
other statutes such as contract, marriage law, property management,
conduct of litigation and political participation which deny the legal
capacity of persons with disabilities.
Right to Association and Social participation
This
segment would amongst other things require that the provisions by which
person with disabilities are denied the right to marry or adopt
children or retain custody of children are revisited. Explicit
prohibitions against compulsory sterilization would need to be
introduced. Also some of the rules which require persons with
disabilities to carry photographs with their site of impairment in full
display would need to be changed.
Living independently and being included in the community
(article 19).
Respect for home and family (article 23).
Respect for Privacy (article 22)
Participation in cultural life, recreation, leisure and sport (article
30)
Right to Political Participation
Participation in political and public life (article 29)
Other
than an express provision in the PWDA the sections in the
Representation of the Peoples Act by which persons with disabilities
are denied the right to vote, stand for election etc will need to be
revisited. Similarly the qualifications for holding public office and
undertaking professional responsibilities would require redrafting
Freedom of expression opinion and access to information (article
21)
This
right would need to be expressly incorporated in the Non Discrimination
Chapter. Also a disability perspective would need to be incorporated in
the Freedom of Information Act.
Other
than an express provision in PWDA possibly in substitution of the
Chapter on prevention, there would be the need to revisit the Mental
Health Act.
The
UNCRPD has also addressed the question of double discrimination in
relation to children and women with disabilities by adopting a twin
track approach. This approach would require that the PWDA contains
specific articles on these two constituencies and induct the gender and
child perspective in other general articles. It would also be necessary
to introduce changes in appropriate child right legislations such as
the Juvenile Justice Act.
Professor
of Law NALSAR,
University of Law
Hyderabad, India
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posted 13 May 2010 05:29 by Nilesh Singit
A few of disabled persons were asked what Independent Living meant to
them and these were the varied responses received :-
- Independence to some meant a wheelchair to move around with ease and
dignity as the respondents were forced to drag themselves on the ground
to get around;
- Some said it meant the ability to communicate easily through sign
language or communication boards;
- Responses also included a gainful employment that would ensure that
the disabled person could gain status within his/her family as those who
are unable to provide for themselves or their family were viewed as a
burden;
- Asha [name changed] has bowel control problem and cannot leave or
move out to work or participate in any social events since 30 years.
Independence to her meant just being able to get out of the house.
There can be numerable such examples cutting across class, religion and
different kinds of disabilities. However, the crux of the issue as each
example highlights that the disabled person is denied choice, control,
freedom, and equality.
Independent Living is succinctly defined by Dr. Adolf Ratzka
"Independent Living does not mean that we want to do everything by
ourselves, do not need anybody or like to live in isolation. Independent
Living means that we demand the same choices and control in our
every-day lives that our non-disabled brothers and sisters, neighbours
and friends take for granted. We want to grow up in our families, go to
the neighbourhood school, use the same bus as our neighbours, and work
in jobs that are in line with our education and interests, and raise
families of our own. We are profoundly ordinary people sharing the same
need to feel included, recognized and loved."
To summarise, “Independent living is what non-disabled people take for
granted: living your own life, deciding what you want to do and making
it happen”i. The philosophy behind Independent Living, is primarily to
recognise disabled people as citizens first and only then as passive
receivers of healthcare, rehabilitation or social services. The removal
of infrastructural, institutional and attitudinal barriers and the
adoption of the Universal Design principle are the pillars on which this
philosophy rests.
Background
Historically, disabled people have been depicted as victims of
circumstance, deserving of pity. Disabled people are seen as victims who
need care and as persons not capable of looking after themselves or
managing their own affairs, hence needing charity to survive. From
tragedy and pity stems a culture of ‘care’. Although highly praiseworthy
in many respects, it carries certain dangers as medically classifying,
segregating and often institutionalising many disabled people. “The
problem is that medical people tend to see all difficulties solely from
the perspective of proposed treatments for a 'patient', without
recognising that the individual has to weigh up whether this treatment
fits into the overall economy of life. In the past especially, doctors
have been too willing to suggest medical treatment and hospitalisation,
even when this would not necessarily improve the quality of life for the
person concerned. Indeed, questions about the quality of life have
sometimes been portrayed as something of an intrusion upon the purely
medical equation”ii.
A Brief History of Independent Living
The history of the independent living movement can be linked to the
civil rights movement of the 1960s and the fight for the economic,
social and political rights of black people spearheaded by Martin Luther
King. A major part of these activities involved the formation of
community-based groups of people with different types of disabilities
who worked together to identify barriers and gaps in service delivery.
The independent living movement, also in many ways, reflects Rawls’ idea
of ‘. . . all citizens are to have an equal right to take part in, and
to determine the outcome of, the constitutional process that establishes
the laws with which they are expected to comply.’iii
It was from this understanding rooted in the civil rights agitation,
that the first Centre for Independent Living (CIL) was born with an aim
to address barriers, to develop action plans, to educate the community
and to influence policy makers at all levels to change regulations and
to introduce barrier-removing legislation; founded on three basic
principles:
- the best persons to understand the needs of disabled people and how
to meet those needs are disabled people themselves।
- Comprehensive programmes that provide a variety of services can
effectively meet the needs of disabled people
- that disabled people have the right to participate fully in
societyiv
These principles continue to influence the philosophy and workings of
CILs all over the world.
Challenges
As a philosophy, Independent Living is both inspiring and powerful.
However, the main problem with services is that far from freeing people,
they actually entrap them. Some of the threats and challenges to
Independent Living is that most Independent Living Centres all over the
world are run by non-disabled persons as rehabilitation and corrective
centres rather than providing disabled persons with choice, control,
freedom, and equality. There is a lack of trained care givers as in the
case of Asha who is incarcerated due to lack of infrastructural
facilities and right policies. There is a general political apathy as
disabled persons are not considered a “vote
bank”.
The understanding of Independent Living should be that of enabling a
holistic and meaningful life of equal opportunity and not just an
existence in one’s own home. A service provider’s understanding is often
based on an approach which is about hands on, getting up and going to
bed, and these kinds of tasks which disabled people would some times
refer to as the ‘bed and breakfast syndrome’. In other words, basic
survival not ‘quality of life’.
Convention on the Rights of Persons with Disabilitiesv & Independent
Living
Asha faces barriers that needed to be overcome, particularly the lack of
attendant services and medical professionals who rarely make efforts to
try to come up with workable solutions to enable Asha and many others
like her to live more independently and on their own terms. Now as
things are, she can only imagine what it would be like to live with
privacy and independence, however there is still hope, as people with
similar disabilities are living successfully in the community.
Asha need not despair, India has recently ratified the UN Convention on
the Rights of Disabled Persons [UNCRPD]. Soon the disabilities law in
India would ensure an environment conducive to Independent Living!!
The drafters of the UNCRPD included persons with disabilities. The
participation of disabled persons has added first hand experience and
knowledge and helped to address variegated issues arising out of
disability to which Governments had limited exposure and little or no
experience. The Convention exemplifies the phrase, “Nothing about us,
without us” .
Article 19 of the Convention on living independently and being included
in the community “recognises the equal right of all persons with
disabilities to live in the community, with choices 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. “Persons with disabilities are entitled 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;”
The other Articles of the UNCRD complement and enhance the experience of
living independently and each article is interdependent and closely
connected. Article 09 on Accessibility, Article 10 on the Right to life,
Article 11 on situations of risk and humanitarian emergencies, Article
12 on equal recognition before the law, Article 17 on protecting the
integrity of the person, Article 21 on freedom of expression and
opinion, and access to information, Article 20 on Personal mobility,
Article 22 on the Respect for privacy, Article 23 on Respect for home
and the family, Article 25 on Health, Article 26 on Habilitation and
rehabilitation, so on and so forth. Article 28 speaks of an adequate
standard of living and social protection and Article 30 covers the much
needed participation in cultural life, recreation, leisure and sport.
There can be no Independent Living without Human rights and there can be
no Human Rights without Independent Living; UNCRP recognises that
independent living encompasses economic, social and cultural rights as
well as civil and political rights. Therefore Independent living is ‘a
means to an end’, a way to access human and civil rights for disabled
persons. The failure to understand the interlink between various human
rights has an adverse impact on independent living. For example, the
right to vote has no meaning if the polling booths are inaccessible.
Independent living is a specific right: The Tenerife Declaration, states
‘Independent Living is a fundamental Human Right for all disabled
people regardless of the nature and extent of their impairment’. A
specific right to independent living is required because while disabled
people are entitled to the same human rights as non-disabled people they
cannot benefit from such rights, unless additional requirements
(arising from the impairment or from disabling attitudes and/or the
environment) are met:. The phrase ‘effective enjoyment’ in Article 10,
is similarly reflected to promote and to ensure the full and equal
enjoyment of all human rights and fundamental freedoms by all persons
with disabilities.
Article 32 on International Cooperation of the Convention also states
that ALL development programmes should be inclusive and accessible to
persons with disabilities. “Within economic capacities” would no longer
be used as an excuse to justify not taking into account the needs of
disabled persons.
Another vital component of the Convention is the concept of full legal
capacity of persons {Article 12} endorsed and assimilated with
disability across various issues within the Convention having greatest
influence on Article 19. The recognition of full Legal Capacity of a
disabled person on equal basis as a non-disabled person ensures that
disabled persons enjoy life on par with others.
Policy level requisites for Independent Living In India
In India, Independent Living is covered under Chapter 3 of the National
Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999 (NTA) whose objectives
are to enable and empower persons with disability to live as
independently and as fully as possible within and as close to the
community to which they belong:
- to strengthen facilities to provide support to persons with
disability to live within their own families;
- to extend support to registered organization to provide need based
services during the period of crises in the family of persons with
disability ;
- to deal with problems of persons with disability who do not have
family support;
- to promote measures for the care and protraction of persons with
disability in the event of death of their parent or guardian;
- to evolve procedure for the appointment of guardians and trustees
for persons with disability requiring such protection;
- to facilitate the realization of equal opportunities, protection of
right and full participation of persons with disability;
But this not enough as essentials like accessibility, housing,
reasonable accommodation are not covered in the NTA however in the
Persons with Disabilities Act 1995 (PwD Act) there is reference to
Affirmative Actionviii, Non-Discrimination in transportix, on the roadx
and in the built environmentxi to accessibility and housing.
One of the main prerequisites for Independent disabled people is an
effective housing policy. A policy that entails non-discriminatory
public works programs, non-discriminatory housing subsidies and
non-discriminatory building codes. Section 42 of the PwD Act speaks of
appropriate Governments and local authorities framing schemes in favour
of persons with disabilities, for the preferential allotment of land at
concessional rates for housing, setting up business; setting up of
special recreation centres. However, policies are yet to be framed that
are non-discriminatory to make mandatory in all new construction which
is financed and undertaken by any municipal, regional or state
government agency barrier-free or universal design principles are
enforced. Non-discriminatory housing subsidies mean that programs for
public or social housing in the form of incentives in the form of
subsidy and tax rebate to builders with the sole condition that the
buildings conform to accessibility housing standards. Lastly, strict
building codes. No builder, whether public or private, would get a
building permit without showing that the finished structure complies
with the spirit of visitability. The standard excuse that "We'll build
the house so a ramp could be added later." should be penalised.
Visitability
The spirit of Visitability is that it's not just unwise, but
unacceptable that buildings continue to be built with gross barriers,
given how easy it is to build basic access in the great majority of new
homes, and given the harsh effects major barriers have on so many
people's lives. These barriers cause daily, draining drudgery;
physically unsafe conditions; social isolation; and forced
institutionalization. The inflexible Visitability features are wide
passage doors and at least one zero-step entrance.
Payments for personal assistance
Another requirement for making disabled persons like Asha independent
are services that assist with daily activities. The NTA seeks to
“strengthen facilities to provide support to persons with disability to
live within their own families”; however there is no provision or
mention of payment for the services of personal assistants. As an
example good practice the Swedish Personal Assistance Allowance Act of
1994 allows persons with severe disabilities to cash payments from the
Swedish National Social Insurance Fund. Payments are made for the number
of hours of services required per week for maintaining a “good quality
of life”. Assistance with personal hygiene, eating, communicating (in
the case of non-verbal persons, including sign language), household
chores, at one’s workplace, in getting around town or travelling abroad
are covered. The payments are not taxable.
There is an urgent need - keeping in view of the spirit of the UNRCPD -
to move away from the substituted decision making and legal
guardianship model of NTA where the guardian takes all decisions on
behalf of and without consultation with the ward, which sounds the death
knell to choice, control, freedom, and equality. Full legal capacity
with supported decision making paradigm would keep disabled persons at
the centre of all decisions affecting them.
Nothing About Us Without Us!
This
article was published in Combat law, Volume 7, Issue 1,
Jan-Feb 08
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