Disability Rights

The government has proposed 108 amendments to the Persons with Disabilities Act, the overarching disability legislation in India. Disabled rights groups are demanding a new law instead that would guarantee civil and political rights to disabled people and expand the definition of disability.The Ministry of Social Justice and Empowerment of the Government of India has been holding national consultative meetings on proposed amendments to the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act (PWD Act). Meetings have been held in Delhi, Guwahati and most recently in Kolkata on March 13, 2010. The debate centres on whether there should be amendments to the existing law, or whether there should be a new law.

Retain or recast?

There is a definite need to review the existing legislative framework in India to examine whether it adequately promotes the rights contained in the Convention. The Disability Convention imposes two key legislative obligations: (1) to ensure that the rights contained in the Convention are realised and (2) to ensure that existing laws and practices that are discriminatory towards people living with disabilities are repealed or amended to bring them in line with the Convention.Since its ratification by India, there has been much discussion of the manner in which Indian laws must be modified or harmonised to give effect to the obligations under the Convention. While the Ministry of Social Justice and Empowerment (MOSJE) has proposed 108 amendments to the PWD Act including 50 new provisions, the Disabled Rights Group (DRG) led by Javed Abidi has unequivocally stated that the PWD Act has served its time and that there is a need for a new law.

Consultations on this issue at national and zonal levels are going on throughout India right now. Advocate Kanchan Pamnani, who is blind herself, says that the old law will need more than 300 amendments to make it suitable to our times, and obviously it is better to frame a new one than make 300 changes in the old one. Shukla Bhadury, mother of two disabled children agrees. She says it is ridiculous that government is even considering so many amendments. “Even in the amendments, punitive actions are not mentioned,” comments Sritama, a law student and member of Campaigners for Inclusion. “Any law without punitive action will not work in this country,” she says. Let’s examine the differences between the Disability Convention and the present PWD Act to see why such passionate pleas to repeal this law are coming from all quarters.

Purpose

It is clear from the objectives of the Convention that civil and political rights and economic, social, and cultural rights stand on the same footing and that the state must make efforts to realise both. The PWD Act barely provides for civil and political rights and the amendments proposed by the MOSJE, too, neglect these rights.

Construction of disability

The PWD Act adopts a narrow definition of disability and confines it to “blindness; low vision; leprosy-cured; hearing impairment; locomotor disability; mental retardation; and mental illness”. As opposed to this, the Disability Convention recognises that “disability is an evolving concept” and avoids listing specific conditions and severities and broadly casts “persons with disabilities” to “include those who have 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.”

Foundational principles (Article 3)

The core human rights principles stated in Article 3 of the Disability Convention are respect for inherent dignity and individual autonomy; non-discrimination, full and effective participation and inclusion; respect for difference; equality of opportunity; accessibility, gender equality; respect for the evolving capacity of children with disabilities and their right to preserve their identities.” These general principles have been well etched in several provisions of the Convention. The amendments proposed by the MOSJE merely replicate Article 3 without incorporating the provisions which further the principles such as those relating to civil and political rights, rights of women and girls with disabilities, and several other rights stated below.

Extent of application (Article 4(1)(e))

The Disability Convention requires the state to address discrimination on the basis of disability even in the private sector. The amendments proposed to the chapter on discrimination fail to expressly prohibit discrimination on the basis of disability or spell out the consequences for the same.

Recognised rights

The Disability Convention expressly recognises the following rights:

Right to equality and non-discrimination. It also recognises the need to provide for reasonable accommodation in order to further the right to equality.

Right of women and girls with disabilities to full and equal enjoyment of all human rights and fundamental freedoms.

Right of children with disabilities to full and equal enjoyment of all human rights and fundamental freedoms. A child’s right to express views on matters affecting him/her is also recognised.

Right to access to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, in urban and rural areas.

Right to life.

Right to protection and safety in situations of risk, armed conflict, humanitarian emergencies, and natural disasters.

Right to recognition before law. The right to legal capacity is also included.

Right to access justice with procedural and age-appropriate accommodations.

Right to liberty and security of person.

Right not to be subjected to cruel, inhuman or degrading treatment or punishment.

Protection from exploitation, violation and abuse, gender-based and otherwise.

Right to respect for physical and mental integrity.

Right to freedom of movement and the right to acquire and change a nationality.

Right to live in the community and choose place of residence.

Right to freedom of expression.

Right to privacy.

Right to marry and found a family.

Right to retain fertility and other reproductive rights.

Right to education.

Right to the enjoyment of the highest attainable standard of health.

Prohibition on discrimination on the basis of disability in employment.

Right to an adequate standard of living including adequate food, clothing, and housing.

Right to participate in political and public life including the right to vote and to be elected

Right to participate in cultural life