Rights of Persons with Disabilities Bill futile and dangerous

Activists working for the rights of the disabled urge the President to use discretionary powers to reject the promulgation of this Bill into an Ordinance

By Team FI
Organisations working for the rights of the disabled have requested the President of India to reject the Union Cabinet proposal to promulgate of the Rights of Persons with Disabilities Bill (the RPD Bill) as an Ordinance. The request was made in a letter signed by organisations across the country which termed the Bill as a “disservice to the ideals of persons with disabilities who expressed their views in the consultative process”. The letter called the Bill a regressive move and urged the President to let it be reconsidered and debated in Parliament.

“The Bill fails in its obligations to enforce the United Nations Convention on the Rights of Persons with Disabilities with its failure to adequately ensure the rights of women with disabilities, the rights of persons legally barred from exercising legal capacity, the rights of persons with disabilities who have been forced to live in institutions against their consent, the rights of persons with disabilities to the acknowledgment of their language, and the rights of all persons with disabilities to access, without any restrictions, to all places open to the public, among many, many other rights,” informed the letter.

The letter stated that the Bill, which supposedly extends the benefits for the disabled as under the current law (Persons with Disabilities – The Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995.) does so only for persons with “persons with the ‘scheduled’ disabilities who are certified to have more than 40% of the disability – termed as persons with “benchmark disabilities” as certified by the certifying authority under the Bill.” This, the letter says, does not remove the uncertainty whether the persons certified under the earlier law would need further certification. Further such a clause puts the responsibility on the disabled person to provide such certification, because there is no other option.

The letter termed some of the provisions under the law “dangerous”. The termination of pregnancy of women with disabilities without her consent is penalised but it adds that it can be done “in severe cases of disabilities”. Such disabilities have not been defined in the Bill. Such an action can be based just on the opinion of any medical practitioner and the consent of the disabled person’s guardian. The letter argues that such a provision threatens “the reproductive rights of women with disabilities across the board.”

Another provision that is cause for concern is again the lack of rules and regulations when it comes to transferring children with disabilities to a special school. The words used are “if necessary” and the problem is that there is no rules or regulations given that would define what “a necessity” is and when would be termed as one. It also does not say clearly that who will have this responsibility to determine the necessity. This would mean any child across the board could be taken out of the school in their neighbourhood and be transferred to a special school. “The same applies to the provisions relating to the failure to recognize the right of legal capacity for persons with disabilities in the Bill approved by Cabinet,” says the letter.

Besides for this new certification (and the extended list of impairments) would need Rules that would lay down the process of applying for and the issuing of the certificate of disability. The problem is that to make these Rules, there is a long and drawn procedure. First the draft rules must be submitted by the department to the Ministry of Law and Justice and then it should be published to invited comments for a certain period. Once the comment period has closed, the Department then has six months to finalise the Rules. And only after this is done, the government can set up bodies that will monitor the rights of the disabled et al. Therefore till then, the new Bill would stand ineffective.

Here is the full text of the letter:
Dear Sir,

Subject: Please reject the proposed promulgation of the Rights of Persons with Disabilities Bill by way of Ordinance

We, the persons and organizations listed at the end of this petition, request the exercise of your inherent discretionary powers in rejecting the proposal of the Union Cabinet towards the promulgation of the Rights of Persons with Disabilities Bill (the RPD Bill) as an Ordinance. We state that a vast number of organizations representing persons with disabilities, across disabilities from all parts of the Country, from both urban and rural areas, representing men and women with disabilities alike, are unanimous in the view that far from being enacted with such urgency, the Bill must be in fact reconsidered in its entirety by being placed before the appropriate Parliamentary Committee, which was in fact pointed out by several Members of Parliament when the Bill was introduced in the Rajya Sabha.
An ideal rights statute should pay tribute to the rights laid down by judicial precedent, if not enhance them. The proposed Bill does nothing of the sort.
This Bill was meant to be the ultimate Document of Rights and means of enforcement of rights for persons with disabilities. Till now, Courts realized rights through provisions of the Constitution of India, and this resulted in landmark rulings – on the reproductive rights of women with intellectual disabilities (Suchita Srivastava vs. Chandigarh Administration, 2009), interpretation of the 3% reservation rule in Government Sector Jobs (Union of India vs. National Federation for the Blind, 2013), and political participation (Disabled Rights Group vs. Chief Election Commissioner, 2007) being examples at the Supreme Court level. An ideal rights statute should pay tribute to the rights laid down by judicial precedent, if not enhance them. The proposed Bill does nothing of the sort.
The Bill fails in its obligations to enforce the United Nations Convention on the Rights of Persons with Disabilities with its failure to adequately ensure the rights of women with disabilities, the rights of persons legally barred from exercising legal capacity, the rights of persons with disabilities who have been forced to live in institutions against their consent, the rights of persons with disabilities to the acknowledgment of their language, and the rights of all persons with disabilities to access, without any restrictions, to all places open to the public, among many, many other rights. Over the last one month, it has been pointed out by Disability Rights Activists, Academicians, and even Members of Parliament, that the Bill does disservice to the ideals of persons with disabilities who expressed their views in the consultative process, and can only be termed as regressive. The least it deserves is the opportunity to be debated by Parliamentarians, and not passage through the “ordinance route”.

India has an already existing law which relates to Persons with Disabilities – The Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995. The RPD Bill is touted for expanding the definition of disability and the scheduling of 19 impairments, including the 6 impairments which were recognized under the 1995 Act as well, as “specified disabilities”. However, most of the benefits under the Bill which exist – including the increased percentage of reservations in employment and higher education – extend only to persons with the “scheduled” disabilities who are certified to have more than 40% of the disability – termed as persons with “benchmark disabilities” as certified by the certifying authority
under the Bill. Certifying authorities are to be notified by the appropriate Government under Section 56.

For persons who were earlier certified under the 1995 Act, Section 117 of the RPD Bill states that while the 1995 Act is repealed, anything done or any action taken under the said Act, shall be deemed to have been done or taken under the corresponding provisions of this Act. However, unlike other Statutes like the Motor Vehicles Act 1989 (Section 217 (2) (b)), the Trademarks Act, 1999 (Section 159), this “repeals and savings clause” does not reflects legislative effort to remove uncertainty, if any, as regards certificates under the repealed Act which will create huge problems at the lower levels of governance, as now all benefits, including social security and poverty alleviation schemes depends on the certification as a “benchmark disability”. The onus cannot be on persons with disabilities to seek clarifications from Courts as to the validity of existing certification, but that is the only option under this Bill.

With regard to new certification, particularly of the newly recognized impairments, the Bill provides that the Central Government shall make Rules for manner of application for the issuance of the certificate of disability and form of certificate of disability. Without the Rules on the Certification, the 13 additional disabilities for whom this Bill was to be a “game changer” get very little besides a (highly unsatisfactory) policy document. Even with regard to the overlapping 6 impairments, the method of certification will differ as the previous Rules will also stand repealed. In the case of persons earlier certified to have “mental retardation”, new certification would have to be used to place them under the specific category of specified disability under the new Law, as the category itself has been removed. In light of the inclusion of newer disabilities and the excessive problems laid down in the assessment methods which exist in respect of the ones already covered under law – including the four disabilities covered under the National Trust Act – this process will be long and will have to be comprehensive.

The procedure for Rule Making under the Bill requires previous publication. For Rules which have the mandate of “previous publication”, Chapter 11.2 of the Manual of the Ministry of Parliamentary Affairs explains that the Department must first put out draft rules, place them before the Ministry of Law and Justice, and then publish them for comments. There is an elaborate process for these rules and the concerned Department will have up to 6 months from the date of closing of comments to finalize the Rules. Even bodies appointed for monitoring of the rights of persons with disabilities under the Bill, setting up standards with regard to accessibility etc. are all to be constituted subsequent to the framing of Rules, which means that in case of any grievances, there is effectively very little option for redressal under the Ordinance.

Other substantive law of the Bill which does not require Rules for its existence, however, is downright dangerous. The penal offence of terminating the pregnancy of a woman with a disability without her express consent except in cases where medical procedure for termination of pregnancy is done in severe cases of disability (undefined under the Bill) and with the opinion of a registered medical practitioner and also with the consent of the guardian of the woman with disability will come into force, threatening the reproductive rights of women with disabilities across the board. The provisions which allow for children with benchmark disabilities to be denied education in neighbourhood schools and forcing them to be sent to special schools if necessary threatens to be applied across the board indiscriminately with no rules or regulations to clarify when this necessity arises and who is to determine the necessity. The same applies to the provisions relating to the failure to recognize the right of legal capacity for persons with disabilities in the Bill approved by Cabinet.

There is also the question of the reservations in employment and higher education which were promised under the Bill. Since the 1995 Act will stand repealed, along with the Office Memoranda, Rules and Notifications issued under it as delegated legislation, and as there will be no regulations in place under the proposed 2014 Ordinance, the manner in which these reservations are to take place is in question. The provisions on reservation are controversial as it is, being violative of Supreme Court precedent, and without the necessary time on account of the General Elections to frame Rules for its effective implementation, (which are required, per procedure, to be laid before the Ministry of Law) the danger is that an entire year’s opportunity of reservations in higher educational institutions as well as Government Employment may be lost even for those who had the right to seek reservations under the 1995 Act.

We do hope that you will understand the futility and danger in the promulgation of this Ordinance and that you will use the discretionary powers vested in you as the Head of the Executive to reject this Ordinance.

Thanking you,

Best regards,

Prepared by:

Amba Salelkar
Inclusive Planet Centre for Disability Law and Policy
amba.salelkar@inclusiveplanet.org.in

Supported by:

Anand Krishnamoorthi, Chennai

Anita Ghai, Department Of Psychology, Jesus and Mary College, New Delhi

Meenakshi B., Equals, Chennai

Nakul Shenoy, Bangalore

Pavan Muntha, Swadhikaar, Hyderabad

Prateeksha Sharma, Executive Director, Hansadhwani Foundation

Shrinath Sundaram, Chennai

Sumant Srivathsan, Bangalore

Tina Minkowitz, Center for the Human Rights of Users and Survivors of Psychiatry