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To begin with, it has been opined that the Bill is a
newer version of the Persons with Disabilities (Equal Opportunities, Protection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.
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