AMENDMENTS TO DISABILITY ACT-1995 OR A NEW BRAND LAW ?

AMENDMENTS TO THE DISABILITY ACT 1995 OR A BRAND NEW LAW?

DRG ENVISIONS THE RIGHTS OF PERSONS WITH DISABILITIES (RESPECT FOR DIGNITY, EFFECTIVE PARTICIPATION AND INCLUSIVE OPPORTUNITIES) ACT, 2009”
WE SEE THIS POINT OF TIME AS A WATERSHED IN THE DISABILITY RIGHTS MOVEMENT AND ARE OF THE VIEW THAT YOU HAVE A SIGNIFICANT CONTRIBUTION TO MAKE TO THE EVOLUTION OF THIS CONSULTATIVE PROCESS
PLEASE READ THE LETTER BELOW FOR MORE DETAILS…
Dear friends,
Indian society is undergoing a significant and valuable shift in its understanding of disabilities. This has resulted in a fundamental change from welfare and charity model to psycho-social and rights based approach to all the issues concerning the lives of persons with disabilities (physical, sensory, psychosocial and cognitive/intellectual). There is further recognition that people with disability continue to face multiple discrimination.
Every person with disability, irrespective of the severity, is an equal citizen with fundamental rights for justice, liberty, equality. The promotion and protection of the rights and dignity of persons with disabilities will make a significant contribution in addressing the profound social disadvantage faced by persons with disabilities. It will promote their participation in the civil, political, economic, social and cultural spheres with equal opportunities. It is in this spirit that India has signed and ra tified UNCRPD on 1st October 2007 and that places an obligation on the Government of India to ensure the adherence to its provisions and amend the National Acts accordingly. Overarching framework for the amendments is to be governed by the following principles:
• Disability results from interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.
• Discrimination against any person on the basis of disability is in violation of the inherent dignity and worth of the human person.
• Disability is a form of human diversity.
• Promotion and protection of the human rights of all persons with disabilities, including those who require more intensive support.
• Promotion of the human rights of all persons with disabilities to full participation in the advancement of human, social and economic development of the society, enhancing a sense of belonging.
• Persons with disabilities to enjoy their individual autonomy and independence, including the freedom to make their own choices.
• Persons with disabilities to have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them.
• Protection and empowerment of women and girls with disabilities who are often at a greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation.
• Assumption of legal capacity as opposed to assumption of incapacity.
• Children with disabilities to have full enjoyment of all human rights including education and learning on an equal basis with other children.
• Accessibility to the physical, social, economic and cultural environment, to health and education, employment and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms.
• Family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities.

The government has now put in public domain a set of proposed amendments to the Persons with Disabilities Act 1995 in pursuance of the goal of alignment of the Act to UNCRPD. The same are enclosed as Annexure 1.

Disabled Rights Group, a network of disability rights organizations in India, had recently taken note of this proposed amendments document and started a process to review the proposed amendments through the formation of a Core Group of disability rights activists based in Delhi. The Core Group has been meeting regularly over the past month and has the following observations.

The proposed amendments document is not aligned to UNCRPD as is evident from a comparative overview of the chapters in the proposed document and the chapters in UNCRPD. (See Table I)
TABLE I: Comparative Overview of the Proposed Amendments Document and UNCRPD Chapters
Chapter No Disability Act, 1995 UNCRPD
1 Preliminary
2 The Central Co-ordination Committee
3 The State Co-ordination Committee
4 Prevention and Early Detection
5 Education Article 24: Education
6 Employment Article 27: Work & Employment
7 Affirmative Action
8 Non- Discrimination Article 5: Equality & Non Discrimination
Article 6: Women with Disabilities
Article 7: Children with Disabilities
Article 18: Liberty of Movement
Article 29: Participation in Political & Public Life
Article 30: Participation in Cultural life, Recreation, Leisure and Sport
9 Research and Manpower Development
10 Institution for Persons with Severe Disabilities

11 Recognition of Institutions for Persons with Disabilities
12 The Chief Commissioner and Commissioners for Persons with Disabilities Article 33: National Implementation and Monitoring
13 Social Security Article 28: Adequate Standard of Living and Social Protection
13 (A) National Fund

14 Miscellaneous

15
Article 8: Awareness Raising
16 Article 9: Accessibility
Article 20: Personal Mobility
17
Article 10: Right to Life
18

Article 11: Situations of Risk and Humanitarian Emergencies
19 Article 12: Equal Recognition before the Law
Article 13: Access to Justice
20 Liberty and Security of the Person

Article 14: Liberty & Security
Article 15: Freedom from Torture or Cruel/Degrading/Inhuman Treatment
Article 16: Freedom from Exploitation
Article 17: Protecting the Integrity of the Person
Article 21: Freedom of Expression
Article 22: Respect for Privacy
21
Article 19: Independent Living
22 Article 23: Respect for Home and the Family
23
Article 25: Health
24 Article 26: Habilitation and Rehabilitation
25 Article 31: Statistics and Data Collection

The proposed amendments document does not reflect the paradigm shift envisaged in UNCRPD as it does not view disability as a form of human diversity. It fails to endorse the social model of disability and is not written in the rights based framework. The emphasis still remains to be that of ‘the medical model’ and of conceptualizing disability as a disorder. It does not acknowledge the barriers that persons with disability face everyday and shies away from commitments to challenge these barriers.

The key principles and tenets of UNCRPD, for example, effective participation, inclusion, legal capacity, individual autonomy, liberty of movement, political participation, and participation in decision making are inconsistently reflected in writing of the amendments. Legal Capacity surprisingly does even not find a mention in the proposed amendments. All this is worrying to say the least.

The Core Group is of the view that given the substantive omissions from the amendments document, there needs to be a parallel process of review, consultation and drafting the amendments by the civil society. The concepts and tenets that need to be included in the amended Persons with Disabilities Act will have to be brainstormed carefully to reflect both the spirit of UNCRPD and aspirations of persons with disabilities. Such a process of drafting will need to include case law over more than ten years of the implementation of the Persons with Disabilities Act 1995 which we may need to challenge or incorporate.

It is a strong view of the Core Group that given the paradigm shift in the thinking about the rights of persons with disability as outlined in UNCRPD, the changes are so substantive that it may be useful to write a new law rather than just amend the present one.

The Core Group has begun the process to put forward suggestions for the proposed redrafting of the act. These suggestions are not being written by constitutional experts but hopefully will reflect the spirit of UNCRPD and voices of persons with disabilities.

With this letter, we are begining a consultative process with the key voices in the disability sector so as to be able to finalize a futuristic document for alignment of the Indian disability laws to UNCRPD. It is the intention of DRG for this process of consultation to be as inclusive as possible so as to evolve discussions, positions and debates before the Persons with Disabilities Act 1995 is replaced by a new law entitled, “The Rights of Persons with Disabilities (Respect for Dignity, Effective Participation and Inclusive Opportunities) Act, 2009”. We see this point of time as a watershed in the disability rights movement and are of the view that you have a signifi cant contribution to make to the evolution of this consultative process.

It will be useful for us to receive your comments/ views/ suggestions in the next two weeks. We will mail you the chapters as they are written. It will be helpful if you could hold further meetings and consultations within your sphere of influence to make the process more and more inclusive.

We do hope to hear from you soon.

With best regards,

Yours sincerely,

Javed Abidi
Convenor, Disabled Rights Group (DRG)
16th September, 2009

National Centre for Promotion of Employment for Disabled People (NCPEDP)
A -77, South Extension Part II
New Delhi - 110 049, India
Tel.: 91-11-26265647 / 26265648
Telefax:011-26265649
Websites: www.ncpedp.org and www.dnis.org
For accurate and up to date information on disability news and happenings,
register free at www.dnis.org

Some other points made by Mr.Kodakkal Shivprasad for further attention:

IS RIGHTS OF DISABLED PERSON AN EYE WASH ?

When ever society sharing their ill attitude towards any downtrodden community like disability then it reflects that society having a disability itself. One the same way one who having defects in his human body then how he be called as disabled ? There have a important clues that SOMES SOCIETY MAKES A CRIMINALS ITSELF. Hence it is better to call them as DISABILITY IS ABILITY.

In ancient culture disabled people called as merciless people of GODDESS, hence these community have been banned in several religious and harmonious functions, further it states that these communities were not considered for developmental aspects. What a sad news/plans were well prepared in uncivil ion culture like ancient era ! But in several occasions some disabled people come across the globe by taking administration like ruling a nation etc, taking partner with rulers like kings/god’s etc. For example in the holy book like Mahabharata we can refer/point a clues that famous KAURAVA’s father DRUTHARASTRA was an born blind person, but he have great epics in his behaviors that further reflects in many books also. This envisages that goddess Sri Krishna having disabled friends at his childhood, therefore clues on banning disabled people in day to day affairs is not genuine as per the several hidden evidences for that time being. Hence several occasions disabled people show their powers shined towards the leading waves.

Due to modernization in our life style and further increasing for the birth of disabled people, then society turned their ill attitude with disability in at par with other, then raised their voice on powers that hidden behind the disabled people. Then society slowly upgraded their thinking towards developed ideas with disability community so that equal opportunity was come across disabled people was an significant development in recent era. For further strengthening this governments have set up several welfare measure like education, employment and other allied financial structured benefits to disabled community. It also supports for amending an special rights for disabled through a act called : PERSONS WITH DISABILITIES,EQUAL OPPORTUNITY, PROTECTION & FULL PARTICIPATION ACT -1995. Now this act was in force for supporting disabled community to gain their rights in the world as part and parcel of the society to get them equality among each others like able bodies.

However, due to several political mis-handling also for fictitious gain disabled person always attacked in hidden agenda through governments, families of their own or else where. As disabled persons having a wide coverage of protection and rights in several amendments/law aspects etc but it was turned in to PAPER TIGER as some one leads these benefits in to gainful or profit making or for vote bank politics, therefore empowering disability is still needs further developments with awareness among people.

Availing empowerment based benefits is heavy burden to disabled people due to heavy money and bribe circulations around society and it’s culture around the globe. Fighting for their upliftments, rightful benefits etc is common in this world. It shows that all the amendments, acts, rights of persons with disabilities are only in white papers, it also reflects that one who up-roared for the rights of disabled then he always followed with hidden attacks and be called as PAPER TIGERS in and around bureaucratic.

Dishonor and ill attitude towards genuine rights of disabled was an sad with regret matter it further could be an envisage for having a STRESS PASSERS IN LAW and hope to be an contempt behavior in sociability . Therefore it’s time to set right these dislike treatments and let us march ahead to an AMICABLE APPROACH with disability community is our goal.

The following demands should also be considered :
1 - Disable Harassment Committee in each and every organisation. There is no "Disable Harassment Committee" in many Institution/organisation. There is a Government Circular for "Sexual Harassment". But there is no Government Circular for constituting of Disable Harassment Committee. At present, the disable person has to approach to the Chief Commissioner of Disability for each & every small problem and it takes unreasonable time to get settled his grievances.
2 - TA/DA and leave facilities should be given to the disable person for attending the Hon'ble High Court/Disable Court/Human Right Court and any other judicial for any disputes arises on disability. Why poor disable person should spend money or CL or EL from his pnl account to go to the Above Courts for getting settled his grievances?
3 - The disable persons have to wait years together to get his grievances settled from the Hon'ble Chief Commissioner/ High Court/ CAT, etc. Resonable compensation should be paid to the disable person for unreasonable delay which should be fixed as below:
If it is delayed by one year : Compensation should be paid Double the amount ( 1 +1)
If it is delayed by two years: ..............do........................Triple the amount (1 + 2)
If is delayed by three years..............do...........................Four time ( 1+3)
Legal expenses should also be claimed from the Institution/organisation.
4 - Age of retirement should be extended from 60 year to 65 years.
5 - Earlier there was a scheme called " Father & Son Scheme". After retirement of an employee his son get employment in same organisation as per his qualification. Same scheme should be extended to the disable person. If a disable person retires, his son should get a job in same Organisation.
6 - Extent ion of Pension Scheme to the disable person: Government Pension as per the GOI Rules[ 50% of present Basic] should be extended to the disable person.
7- 50% Concession on AIR Fare for all disable person irrespective of the percentage of disability.
8 - There should be Departmental Stores/canteen exclusively for disable person, where he can buy all types of good on concessional prise. He should get Tax free goods.
9- There should be " Promotion Scheme for disable person" Every 5 years he should get promotion. In some of the Institution, there is no Promotion Scheme. If the management wants to give promotion to their own person, the Management advertise the post and consider their own people, whom they like. If you argue or if you go to any court/ any commission , the Management wash off their hand saying that the particular person got selected through open interview against the advertisement and we don't have promotion scheme.
10. 100% income tax exemption to disabled employees in service in all groups and all grades under section 80 GG
I sincerely hope that the above demands are quite reasonable for disable persons