Response to the Parliamentary Standing Committee on the Rights of Persons with Disabilities Bill
Inclusive Planet has consistently been against the present Bill as was passed by Cabinet in December 2013 as has been expressed reservations against the Bill, and we express our disappointment that the present Ministry of Social Justice and Empowerment have not taken cognizance of the protests against the Bill by Civil Society across the Country and across disabilities, and instead it has continued with the Bill proposed by the last Government on the Rights of Persons with Disabilities.
While we have sent the Standing Committee our position statement regards the Bill and the UNCRPD, which is purports to implement, it is pertinent to reiterate that the Bill is called the Rights of Persons with Disabilities Bill while in actuality, it is merely a list of entitlements and not rights. It goes on to violate the UNCRPD in several respects, and even goes as far to violate the Hon'ble Supreme Court precedents on several matters relating to employment, reservation in employment etc. The Bill further causes great disservice to the aspirations expressed by persons with disabilities in the various National Consultations held with persons from civil society across the country in preparation for the drafting of this Bill.
There have many Nation wide consultations in which Inclusive Planet was invited as a contributor. Of these, the consultations with the Centre for Social Development, Hyderabad, had released very concrete submissions. However, it was felt that Inclusive Planet required to give its own submissions in general and especially to highlight five main considerations:
1. Legal capacity: the recent General Comment on Article 12 released by the United Nations Committee on Disabilities lays rest much of the debate on legal capacity. All persons have a right to be recognized as persons before the law, which is the essence of legal capacity. When persons require support in the exercise of mental capacity (which differs from person to person) they have a right to that support without losing their right to legal capacity. While previous drafts of the RPD Bill have included sections on legal capacity, the present draft removes the recognition of the right to legal capacity. It also limits support measures to persons with “mental illness”, thus implying that it is only persons with mental illness who require support in decision making through the appointment of a guardian. The Bill does not touch the applicability of the National Trust Act, which governs guardianship of persons with certain disabilities, and Section 109 of the Bill is very clear that it shall not be in derogation to any existing legislation. This runs completely contrary to the UNCRPD. Even previous formulations of the Bill require reconsideration in light of the General Comment. The right to legal capacity is a prerequisite for the exercise of the rights sought to be guaranteed by this legislation, and without the recognition of the right to legal capacity, this legislation would be absolutely meaningless for the vast populations of persons who find their legal capacity challenged on a daily basis.
2. The right to independent living: Article 19 of the UNCRPD gives persons with disabilities the right to live independently and within the community, and that State parties should provide these persons with the support that they require. However, the Bill continues to emphasize on institutional living and care. The Bill does not even detail the conditions and rights of persons with disabilities within the institutions, and only states that in the event of de-recognition of any institution, persons with disabilities would be either transferred to other institutions or released into the custody of their family members. While it is understood that institutional care must be an option for persons with disabilities who are desirous of the same, it cannot be the norm, neither can it be without recognizing rights of persons within these institutions. At the same time, there is a pressing need for assisted living and support services, and there is ample international precedent for the same in light of the global shift away from institutional care.
3. Women with disabilities: The Bill does great disservice by omitting all of the well thought out provisions relating to women with disabilities from the earlier version of the Bill. Women with disabilities do require special provisions beyond reservations in schemes, on account of the multiple levels of discrimination faced by them, particularly with regard to their rights over their own bodies and reproductive decisions. Women and girls with disabilities are also at much greater risk of violence within institutions and homes, and the Bill does not create any sort of monitoring mechanism to ensure that persons with disabilities have the opportunity to seek redressal for violence that they may face, and that they can seek redressal without fear of being without care or protection in the event that the perpetrator of violence is a care giver. One of the most blatant violations of rights of women with disabilities is forced sterilizations. While we have not redrafted provisions on women with disabilities in our annexed note, we request that the Committee refer to the 2011 Draft Rights of Persons with Disabilities Bill for the appropriate twin track approach that should be adopted.
4. Sign language and deaf culture: The Bill completely sidelines the rights of the deaf community by omitting the definition of language, and by failing to recognize the rights of the community to preserve their culture and promote it. The UNCRPD specifically defines language and communication, and the right of persons with disabilities to communicate in the language they wish to communicate in, and how this should be accommodated.
5. Accessibility: By limiting the definition of the term “establishment”, the Bill creates obligations towards persons with disabilities in terms of accessibility only to the Government and Government buildings. Persons with disabilities have the right to accessibility in general, and in all areas of movement and life. The Bill completely fails to recognize this.
The Bill is so inherently flawed therefore that even making clause by clause suggestions will not lead to any impact because all suggestions are being made on the basis of the 2013 Bill. We do sincerely hope that the Committee will take the step, unprecedented as it were, of referring the Bill back to the Ministry for reconsideration.