Review of The Rights of Persons with Disabilities Bill, 2014

The Right to Persons with Disabilities Bill was tabled in the Rajya Sabha in 2014 for the first time. The bill is sought to be introduced in the Parliament in the monsoon session of 2016 with certain amendments to the 2014 bill. The Bill of 2014 repeals the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and also overrides the Mental Health Act, 1987. This bill has been introduced in order to effectively implement the principles enshrined in the United Nations Convention on the Rights of Persons with Disabilities, 2006 which was ratified by India.

To begin with, it has been opined that the Bill is a newer version of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Although, this Bill has been brought about for the greater good of persons who constitute about 2% of the population of India, it fails to address the issue appropriately in various matters. The Bill broadly covers issues ranging from issuance of disability certificate to such persons, and granting rights and entitlements to such persons depending on the percentage of disability.

First and foremost, the usage of the term “persons with disabilities” is far from being politically and socially correct as the usage of this term gives a negative connotation implying that characteristics which differ from the majority of the population are considered abnormal and unwelcome. Therefore, in order to accept the differing characteristics, the term persons with disabilities should be replaced with the term “persons with special abilities” or “physically or mentally challenged persons”.

Secondly, the Bill provides for the appointment of guardians to persons who are mentally challenged. The Bill entrusts such guardians with absolute and exclusive power to take decisions relating to the affairs of the mentally challenged person without consulting them. This provision runs antithesis to the objective of the United Nations Convention on the Rights of Persons with Disabilities, 2006 which strives 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. The assignment of such exclusive and absolute powers in the hands of the guardians breaches the right to life with dignity of such persons.

Further, the Bill enlists a few conditions by which persons with special abilities are eligible to derive the benefits of the legislation. In this respect, it is essential that such persons have benchmark disability up to 40% in order to avail the benefits of the Bill. These benefits are only available in certain specified institutions which are aided or funded by the government. This significantly reduces the number of institutions in which such persons can avail the benefit and may also lead to a compromise in the quality of benefits obtained. For instance, persons with benchmark disability can avail primary education free of any cost in government aided schools. The quality of education which may be desired for such student may be compromised as the obligation to provide compulsory free education has only been given to government aided institutions.

Similarly, the provision of reservation of 5% of jobs in certain specific institutions limits the opportunities of the persons with special abilities in availing better career options. This reservation has also been limited to government aided or funded institutions by which private employers have no obligation to contribute towards the development of such persons. However, the Bill provides that where a private establishment makes provisions for employment of such persons, the appropriate government would incentivise the private employer according to its economic capacity and development. In this regard, the incentives that would be given to such establishments have not been specifically spelled out which may hamper private establishments from taking such steps. Therefore, in order to encourage private employers the legislation needs to particularly specify the incentives which the private establishments may avail.

Additionally, the provisions regarding the infrastructural development in the general environment relating to Braille, ramps, specific parking lots, among other facilities are dependent on the economic capacity and development of the appropriate government. This provision was also present in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which has been reproduced in the current Bill. The reliance placed on the economic capacity and development of the appropriate government removes the obligatory nature of the law. Therefore, despite the presence of this law from the past three decades, such facilities have been absent from the general environment. In this respect, the legislators may consider providing a ceiling on the budget that may be spent by every government on the development in order to give effect to this provision. Moreover, in order to implement this effectively, the legislators should also introduce penalties where the local government is not taking active step to improve the lives of persons with special abilities or where their provisions are being impeded by anyone.

Additionally, the setting up of the Advisory Boards may be lauded however, its powers needs to be widened so as to not be a mere bureaucratic setup but an active functioning body. The powers of the Board may be widened to the extent of overlooking the working of the appropriate governments with respect to their obligations towards maintaining the welfare of persons with special abilities. Further, the functions of the Central Advisory Board and the National Commission seem to be overlapping with one another thereby making the two bodies look identical.

Moreover, the bodies set up by the Bill are dominated by persons in position of power who may not be able to fully comprehend the problems faced by persons with special abilities and make suitable policies. Therefore, it is necessary that the Bill mandates representation of persons from persons with special abilities, persons managing shelter homes, persons managing schools for children with special needs, non-governmental organisations working in the area. This stakeholder participation would better serve the needs of persons with special abilities. 

The Bill also lacks in certain areas such as granting additional rights to women with disabilities due to the additional difficulties faced by them, spelling out rights of mentally and physically challenged persons in times of humanitarian crisis, penalties for lack of proper maintenance of shelter homes most of which have been mandated by the UN Convention. It is essential that in order to fully promote and protect the right to life with dignity of mentally or physically challenged persons, their diversities must be recognized and appropriate actions need to be taken to make potential contributions towards their healthy sustenance and all-round development.