Disability Bill An Analysis

Current Affairs

The Rights of Persons with Disabilities Act-2016 (RPwD henceforth) is essentially an improvement over PWD Act 1995 which it shall repeal. The Act will usher the Indian disability movement into a new age, where disability itself will be defined based on an evolving and dynamic subject. Many activists have termed the new Act as the “Game Changer” and have hailed it as a sign of maturing of the disability movement in India. These activists also envisage that the current Act would replace discrimination by empowerment.

Background

According to census 2011, the number of persons with disabilities in India is about 26.8 million i.e. 2.21% of the total population. However, it seems that this figure has been grossly under-estimated. India has already ratified United Nations Convention on Rights of Persons with Disabilities [UNCRPD] in 2007. Thus, she is duty bound to provide an enabling and disable-sensitive milieu in order to mitigate marginalization and vulnerability of the persons with disabilities. In this context, till date the Parliament of India has enacted the following four Legislations:

  1. The Mental Health Act – 1987 [To be repealed by passing of Mental Health Care Bill – 2016]
  2. Rehabilitation Council of India Act – 1992
  3. National Trust Act – 1999
  4. Person with Disability [Equal opportunities, Protection of Rights and full participation] Act 1995- to be repealed by “The Rights of Persons with Disability Act – 2016”.

The aim of all these legislations is to synchronize the policy regime with the letters and spirit of UNCRPD.

Do You Know
Prior to this Legislative action, in 2010, government appointed a committee chaired by Dr. Sudha Kaul, which submitted a draft bill in 2011, with regard to nights of disabled persons. The present Act is in line with the recommendations of this committee.

With the passing of RPwD, the Parliament has not only tried to address the concerns of arguably the most marginalized section of society but at the same time,  the full consensus on the floor of the House shows the concern of the policy makers for the upliftment and development of the persons with disabilities.

 

Features of New Act:

The following are the salient features of the Act:
  1. The Act, which complies with the direction of UNCRPD increases the number of recognized disabilities from existing 7 to 21. This increased number includes disabilities due to acid attacks, Parkinson’s disease, Thalassemia, Hemophilia, Muscular dystrophy cerebral palsy, Dwarfism, sickle cell disease, multiple sclerosis etc.
  2. Act also lays down provisions to allow the central government to notify any other condition as a disability.
  3. In the Act, in order to strengthen the Prime Minister’s Accessible India campaign the emphasis has been given to ensure accessibility through barrier-free way, in public buildings (both government and private) and transport system. The implementation deadline for this as per the Act is two years.
  4. Penal provisions are also provided in the Act for offences committed against persons with disabilities. Moreover, the violation of the provisions of the new law shall invite only fines but no jail terms. Special courts will be designated in each district to handle cases concerning violation of rights of PWDs.
  5. The Act has raised the reservation quota from existing 3% (1995 Act) to 4% in the government employment and educational opportunities. Additional benefits such as reservation in allocation of lands, poverty alleviation schemes etc. have also been provided in the Act.
  6. As per the Act, every child (within the age group of 6 to 18 years) with benchmark disability shall have the right to free education.
  7. The Act provides for the grant of guardianship by district court under which there will be joint decision making between the guardian and PWD. The Act also provides two types of guardianship. One, a limited guardianship to take all legally binding decisions along with the mentally ill person. Two, plenary guardianship to take all legally binding decisions for the mentally ill person and is under no obligation to consult him or consider his will or preferences, but only in extra ordinary circumstances.
  8. Broad based central and state Advisory Boards on Disability are to be set up to serve as apex policy making bodies at the Central under state level.
  9. Office of chief commissioner of PWD has been strengthened who shall now be assisted by two commissioners and an advisory committee of not more than eleven members drawn from experts in various disabilities.Similarly the office of State Commissioners of Disabilities has been strengthened who shall be assisted by an Advisory committee of not more than five expert members.
  10. Chief Commissioner and State Commissioners will act as regular bodies and grievance redressal Agencies. These shall also monitor the implementation of the Act.
  11. District Level Committee will be constituted by the state government to address local concerns of PWDs.
  12. The Act has the provision for the creation of the National and State Funds to provide financial support to PWDs. Existing National funds for PWD and Trust fund for Empowerment of PWD will be subsumed with new National Fund.

In nut shell, the new law will not only enhance the Rights and Entitlements of PWDs but shall also provide effective mechanism for ensuring their empowerment and true inclusion into the society in a satisfactory manner. Despite the various progressive provisions, the Act has a few limitations as well. Thus it cannot be assumed as a panacea for the PWDs. Following are some of the limitations of the Act:

  1. Article -253 of the Indian Constitution empowers Parliament to enact legislation to give effect to international agreements. In the present context it is ratification to UNCRPD in 2007. Nonetheless, the subject “Disability” per se comes under entry No-9 of the State List.  But, the question still lingers that whether it is as per federal ethos of the constitution, for parliament to impose legal and financial obligations on states and municipalities. The financial memorandum doesn’t provide any estimate of the financial resources required to meet the obligations specified under the Act.
  2. The provisions regarding penalty of the Act, are very general in nature i.e. they do not identify specific Acts that would attract a fine but rather has a general provision that states that violation of any provision of the Act would attract fine.
  3. The Act has missed an opportunity to constitute a strong National and State Commissioners for PWD, with powers on par with civil court. The Act instead continued with the status quo of having only a chief commissioner with advisory role. Unlike any other commission – minorities, women, SC’s or ST’s which have chairperson from the same target group; the Act does not ensure that the chief commissioner should be PWD.
The road ahead:

It’s high time that the bureaucracy, public media and civil society should get sensitize about the rights of the PWDs. The following needs to be incorporated along with this progressive piece of legislation:

  1. This progressive legislation should be amalgamated with enabling administrative orders so that real efficiency of the policy is achieved.
  2. The country should leverage on the vast potential of PWDs by making them skilled at war footing level.
  3. In 2013, in Union of India Vs. National Federation of the Blind, the Apex court has explicitly noted the “alarming reality” that the PWDs were out of jobs not because their disability come in way, rather due to “social and practical barriers”.  Thus, the real fight is to change the mindset and attitude of general public towards specially challenged and to bring the much needed sensitivity.
  4. The behavioral change and the feeling of the self-confidence needs to be inculcated among the PWDs so that they can contribute to society in general and their own development in particular
  5. India’s performance in Paralympics is an indicator that by proper training and guidance special skills can be groomed in PWDs to compete at world level.
  6. Specialized schools and training centers just like Navodaya Vidhyalaya must be opened in every district to cater the needs of education and skills of PWDs.

Indian society is marred with deep rooted socio culture prejudices against PWDs. Let’s hope that new robust rights based legislation with inherent strong implementation mechanism will ensure social upliftment and empowerment of PWDs. Finally, the focus should be on eradicating the barriers and mindset that play against the advancement of PWDs and these should not be relegated to a footnote.

 

COMPARATIVE ANALYSIS

 

1995 Act

 

2016 Act

No. of Disabilities Covered

7

21

Extent of disabilities to be covered under Law

At least 40% of any disability specified in Act

Rights apply to all PWD irrespective of extent of disability

Benchmark disability: Person with 40% of a specified disability can avail benefit such as reservation in education, employment, other schemes etc.

Reservation in Education and employment in govt. institutions

Employment – 3% in govt. organizational within that 1% for specific disabilities

 

Education -3 %

Employment – 4% in govt. organizations (within that 1% for specific disabilities)

 

Education – 4% in higher educational institution [Upper age relaxation of 5 yrs\ and free elementary education for those between 6-18 yrs of age 6-14 and RTE]

Guardianship

No provision in PWD Act Guardianship covered under the National Trust Act – 1999 and Mental Health Act 1987

Addresses guardianship of mentally ill persons in terms of limited and plenary guardianships.

 

   

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