A Bill of Rights at Last
OVER the ages, people with disabilities have been subjected to discrimination, stigmatised, segregated and condemned to the margins. The disabled were abandoned at temple gates, driven out of homes and in some cases left to die or even killed. Disability, in popular perception, continues to be considered a punishment for sins committed in the past life. This is internalised by both the disabled and their families, who view it as a curse not only on themselves but also on those whom they are dependent on. The cultural antipathy to persons with disabilities is deep rooted. Considered a burden, both on the family and society, the disabled have been scorned upon and held in contempt.
A PARADIGM SHIFT
A paradigm shift in the way disability is perceived was brought about by the adoption of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The convention has sought to change the manner in which people with disabilities are viewed. From being viewed as objects of charity, medical treatment and social protection the shift is towards viewing them as equal members of society, with human rights.
The process of synchronising Indian laws was initiated with the ministry of social justice and empowerment in 2009 coming up with a set of 105 amendments to the existing Persons with Disabilities Act, 1995. The overarching approach of this law, enacted 48 years after the country achieved independence, was one of charity, though it does provide for some entitlements like reservations in institutions of higher learning and employment etc.
Under pressure from disability rights groups the government agreed to frame a new law which was finally introduced in February 2014. However, due to several inadequacies we demanded that it be sent it to the standing committee. The standing committee submitted its report to the new government in May 2015, which addressed many of the concerns raised by the disability sector.
The passage of the Rights of Persons with Disabilities Bill, 2016 brings to an end a long and arduous wait. Many disability rights groups and activists had given up hope of getting this bill passed under the current dispensation, which seemed more interested in protecting “gau rakshaks” and the prime minister even associating the disabled with divinity by calling them “divyang”.
SOME FEATURES OF THE BILL
Despite some inadequacies, the bill, is an advance upon the 1995 Act. Framed in a rights based perspective, it lays down that persons with disabilities enjoy various rights like others such as right to equality, life with dignity, respect for integrity etc.
The bill defines persons with disabilities as those with long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
The 1995 Act on the other hand just listed out seven conditions viz (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) loco motor disability; (vi) mental retardation; and (vii) mental illness, to define disability.
The officially recognised number of disabilities is up from the seven in the 1995 Act, to 21. Conditions like deaf-blindness, hemophilia, multiple sclerosis, autism, thalassemia, Parkinson’s disease, sickle cell disease, dwarfism, muscular dystrophy, speech and language disability, specific learning disabilities (like dyslexia, dysgraphia etc), multiple disabilities and acid attack victims are the other conditions that are now recognised.
Inaccessibility of public and private buildings, spaces, roads, transport, educational institutions, study material, communication, TV etc has been one of the biggest hindrances as far as the disabled are concerned. The bill while specifying the measures to be taken by appropriate governments for accessibility has set a time limit of five years for making existing infrastructure and premises accessible. As for service providers the time limit is two years.
This bill provides for social security for persons with disability. It also says that “the quantum of assistance to persons with disabilities under such schemes and programmes shall be at least twenty-five percent higher than the similar schemes applicable to others”. It also makes provisions for support for women with disabilities for livelihood and for upbringing of their children, free health care specially in rural areas, provision of aids and appliances, unemployment allowance, care-giver allowance, insurance scheme, free health care etc.
The bill addresses the issue of sensitising elected representatives and the bureaucracy. It stipulates that training on disability rights in all courses for the panchayat raj members, legislators, administrators, police officials, judges and lawyers is mandatory. It also prescribes disability be made a component for all education courses for schools, colleges, university teachers, doctors etc.
One of the major problems that the disabled face is with regard to certification. A certificate is a basic document for any entitlement. Apart from a variety of issues associated with it, till now a certificate issued in one state was not valid in another. Different agencies of the same government demanded different certificates for different entitlements. A disabled person had therefore to carry a multiple number of certificates. Sometime back the government accepted our demand for a universally valid identity card. The bill while making cards issued in one state valid throughout the country, gives legal backing to the UID that is going to be rolled out soon.
The bill also has specific provisions for women and children with disabilities. Reservation in promotions for employees with disabilities has also been provided for in the bill.
SOME DRAWBACKS OF 1995 ACT ADDRESSED
One of the major drawbacks of the 1995 Act was the total absence of penal provisions. Lack of penal provisions for non-compliance, gave violators a free reign.
For people like Ira Singhal, for whom discrimination was not something new, what happened when she cleared the Civil Services examination in 2010 must have been shocking. She was denied posting until she came a topper in 2014. Earlier, a batch of nine civil services aspirants who even after clearing the exams and getting favourable orders from courts, were denied induction. It took two years after a representation made by us to the then PM Manmohan Singh, and several follow-ups at various levels, for seven of them to get inducted. Had penal provisions existed in the 1995 Act they would have impacted positively.
Though this is being sought to be addressed in the current bill, the provision for jail term has, through an amendment, been done away with. Instead there will be a fine upto ten thousand rupees for the first contravention and for any subsequent contravention with a fine of not “less than fifty thousand rupees but which may extend to five lakh”.
Another dilution has been with regard to the provision for reservation in employment. Whereas the original bill provided for 5 percent it has now been reduced to 4 percent. Let us bear in mind that avenues of employment in the government and public sector are shrinking. PSUs are being privatised, government is outsourcing; and contracts and casualisation have become the norm. Though a handful of private enterprises have started recruiting people with disabilities, it is like a drop in the ocean. According to a report published by the Niti Ayog in January 2016, 66 percent of the disabled population is unemployed.
The structure of the office of the chief and state commissioners as it exists today is being maintained as opposed to the national and state commissions provided for in the 2014 bill. Although the functions of the commissioners have been broadened, they remain recommendatory in nature. This is a setback.
A major concern with regard to the bill was Clause 3(3) which states that “No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving (was earlier “appropriate to achieve” – before amendment) a legitimate aim.” This clause we opined gives unfettered power to the implementing agencies to discriminate against persons with disabilities, on the pretext of serving a “legitimate aim”. In response to amendments moved by the CPI(M)’s Sitaram Yechury and others in the Rajya Sabha the minister for social justice and empowerment, assured that provisions will be made in the rules to ensure that this clause is not misused.
The minister also assured that the provision with regard to reservation in employment will be ensured in the Act against the total number of vacancies in the cadre strength and not against identified posts.
Though the overwhelming mood in the disability sector is one of celebration, some feel that their concerns have not been addressed at all or are addressed insufficiently.
Despite its inadequacies, the bill passed by both houses of parliament is an advance over the 1995 Act and brings in the rights based perspective. However, there lies a big battle ahead for its implementation.