Background

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.

Present

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 Act

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.

Definitions

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:

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.

Nilesh Singit

15th October 2009