Parliament has passed the Rights of Persons with Disabilities Bill 2014, with significant amendments. Now the onus lies on the states to ensure its implementation
By Sujit Bhar
At long last, India has a law with claws. The country has shown the will to update its law relating to citizens with disabilities. Having been a signatory to the UN Convention on the Rights of Persons with Disabilities and Optional Protocol (December 2006) in 2007, Indian lawmakers found that the existing law—the Persons with Disabilities Act 1995—fell short on many parameters laid down in the UN Convention.
As a result, the Rights of Persons with Disabilities Bill was introduced in the Rajya Sabha in 2014. After two years of deliberations, the bill, moved by union minister for social justice and empowerment Thawar Chand Gehlot, was cleared on December 15 with 119 amendments. The bill, when it becomes an act, will replace the existing Act of 1995.
It is a major relief that at least one important bill was cleared in the winter session of parliament, which was paralyzed by the Opposition and even by the treasury benches.
The highly laudable aspect of the bill is that the number of disabilities recognised rises from the seven listed in the existing act to 21 (see box). Even the 2014 bill had listed 19. The enhanced list includes acid attack and Parkinson’s disease.
The other interesting aspect of the bill is that it recognises that the disabled deserve reservation vis-a-vis promotion, and there is a special mention of the rights of disabled women and children. The bill also clears the air on certain vague terms that existed in previous versions, including what constitutes discrimination.
There are two basic points of contention in this bill:
- The first is the job reservation quota. It was once proposed to enhance this from existing three percent to five percent (for the 2014 bill). This has been restricted to four percent.
- The second is regarding Section 3(3), which could allow possible rejection of a claim by a disabled person if it is “a proportionate means of achieving a legitimate aim”. This, say experts, creates confusion, because the term, “legitimate claim”, leaves it open to the subjective interpretation by the bureaucracy.
POINTS TO PONDER
The Census of India 2011 notes that 2.21% of India’s population account for disabled persons. Of these, 20.3% have a movement-related disability, 18.9% are those with hearing disabilities and 18.8% with vision related disabilities.
The following 21 conditions are categorised under disability in the bill (2014): autism; spectrum disorder; low vision; blindness; cerebral palsy; deaf blindness; haemophilia; hearing impairment; leprosy cured person; intellectual disability; mental illness; locomotor disability; muscular dystrophy; multiple sclerosis; specific learning disabilities; speech and language disability; sickle cell disease; thalassaemia; chronic neurological conditions; multiple disability; acid attack victim and Parkinson’s Disease.
NOTE: All the above disabilities will be considered if they cross the “benchmark”, which is at least 40 per cent of the disability.
The bill (2014) brings in penal provisions that add teeth as far as the implementation goes:
- Any person who violates provisions of the Act, or any rule or regulation made under it, shall be punishable with imprisonment up to six months and/or a fine of Rs 10,000, or both. For any subsequent violation, imprisonment of up to two years and/or a fine of Rs 50,000 to Rs five lakh can be awarded.
- Whoever intentionally insults or intimidates a person with disability, or sexually exploits a woman or child with disability, shall be punishable with imprisonment between six months to five years and fine.
What state municipalities have to do
The bill has been passed by Parliament, but the issue of its implementation faces a hurdle. Although disability is one of the subjects on the state list and it might become difficult for the state municipality machinery to oblige.
Some obligations for the states are as follows:
- Providing free education to a person with benchmark disability till 18 years of age
- Barrier free access to all parts of a hospital/health care centre run or aided by government
- Ensuring that all existing public buildings are made accessible within five years
- All public documents are in accessible format
- Retrofitting of vehicles and accessibility of bus stops, railway stations and airports for disabled persons.
Dr Uma Tuli, founder of Amar Jyoti Charitable Trust and the first non-bureaucrat to be appointed as the chief commissioner for persons with disability (2001 to 2005), told India Legal: “This victory was long awaited and has come after a long struggle. I am very happy about it.”
Recalling her time at the helm of affairs, she says: “I had the privilege of being in the working group for the 1995 Act and have been involved in the formation of this amendment bill (2014). The good news is that the number of disabilities has risen to 21 and disabilities such as speech and learning disabilities have been included, along with acid attacks and for Parkinson’s disease.”
The happiest news for Dr Tuli, however, has been the legal (read penal) teeth provided to the bill. She says: “When I was chief commissioner, we had a lot of proposals and the act was good for the time. But we could not implement the provisions of the act itself, because of a lack of any penalty clause.
“As chief commissioner, I had two commissioners and I formed a team of state commissioners,” she added. “Another positive step is that this time there will be an 11-member advisory committee to help the commissioner. There will be experts from different disciplines in that committee. That is a welcome step, because an expert in one disability might not be able to understand the problems of another disability.
“Compounded with the penal action feature, I am happy that it is good that the right to free education for disabled children (6-18 years) can now be enforced,” she said.
The government has now been given two years to ensure barrier-free access for persons with disability in all kinds of physical infrastructure and transport systems. The enforceability feature of the new act will come in handy in this.
And that is where the numbers matter. This, too, has increased. Adds Dr Tuli: “Interestingly, the vote bank has increased. Firstly, when I was the commissioner, there were 21 states. There are two more now. Secondly, at that point of time, the disabilities covered were seven, it is 21 now. This increased vote bank will strengthen our hands in our voice being heard loud and clear.”
Critical issues in UN Convention preamble
Four critical issues mentioned in the preamble to the UN Convention on the Rights of Persons with Disabilities and Optional Protocol relate to situations that are universally true. They are:
- Recognising the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support
- Concerned that, despite these various instruments and undertakings, persons with disabilities continue to face barriers in their participation as equal members of society and violations of their human rights in all parts of the world
- Recognising the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices
- Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them
People with disabilities have faced social discrimination around the world, be it in developing nations such as India, or in developed nations such as the US. Hence the UN Protocol, which also states that:
“The purpose of the present convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”
How would this work? “Let me explain,” she said. “I was at the Mumbai airport once when I noticed that there were very poor arrangements for the disabled. The aerobridge that Air India had was not attached to the aircraft. I asked an airlines officer about this. The answer I got surprised me. He said the aerobridge was in place earlier, but as there were so few disabled people using it (which means so few disabled were travelling on those flights) it did not seem economically viable to have it. I was appalled. This was not the right attitude.
“This is the state of our official airline,” she said. “Things have to change in the railways too, as well as for road travel. There is a lot of work to do.”
Tamana, a Delhi-based NGO working with the disabled people, welcomes the development. According to its Founder-President Dr (Mrs) Shayama Chona, the bill is “good news not only because the number of disabilities recognised has gone up, but also because it has included autism, a specialty for us.”
“The legal teeth it has been give also goes a long way in implementing it. That the reserved jobs have gone up to four percent means our children would have an opportunity to be integrated into society, and we also can instigate action against people who do not obey the law,” she added.
Another positive development is that the definition of ‘establishment’ in the Bill now extends to private organisations as well. This will broaden the base of employment opportunities.
There is a general sense of happiness around the bill. Now comes the big task of taking it forward, across the country.
Lead picture: Differently-abled people celebrate World Disability Day at India Gate in New Delhi on December 3. Photo: UNI