In view of the fact that the legislation is too large to have a section by section commentary in this explanatory note a prose description of the legislation with some analysis is being provided in order to give a birds eye view of the working draft.
The Committee members were asked if we should retain the title of the existing Act i.e. Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act for the New Law as an additional strategy to retain the jurisprudence of the existing law. Majority of the responses received from committee members opted for a new title for the New Law because the title of a law is the most evident signifier of a change in its substance and spirit. In accord with the inputs received from the committee and the sector, this without frills functional title has been chosen.
The general practice is to routinely exclude Jammu & Kashmir from the provision specifying the coverage of the statute. However, for this legislation keeping in view the real need of this law in for persons with disabilities in that State this provision has been so drafted that it specifies the condition on the fulfillment of which the law would apply to Jammu & Kashmir.
This method of bringing the Act into force has been chosen to give the Central Government a time bound period within which to make the necessary ground level preparation to bring the Act into force.
This segment is the dictionary of the Act it says what is the meaning ascribed to each term used in the Act. Thus for example communication, language, discrimination are explained here so that they do not have to explained again and again in the statute.
Persons with disability and establishment are amongst the two important definitions on which a lot of deliberation happened. The working draft has adopted a dual definition of person with disability thus whilst a generic social definition has been adopted in this section, a more enumerative definition has been provided in part IV for the entitlements provided in the statute. The specific elaboration of each of the impairments included shall be provided in the rules after a socio-medical board develops appropriate protocols for the same.
The definition of ‘establishment’ is important in the context of realization of the rights of persons with disabilities as it shall ascertain as to which institutions and bodies shall be subject to the obligations laid down in the Act. In accordance with the mandate of the CRPD, the definition shall has been formulated in a manner to include the private sector within the scope of the legislation and still maintain a balance between the rights of the persons with disabilities and the autonomy granted to private institutions under the Indian legal context. For this purpose, the definition uses a combination of the jurisprudence developed under Article 12 of the Constitution and labour laws for subjecting private employers and entities to rights based obligations.
On the basis of Article 12, the definition includes the government
bodies, institutions which have a connection to the State in terms of
control, finance, administration etc. and also those which fulfill the
‘public function test’. Based on labour law jurisprudence, it includes
private statutory and non-statutory bodies which provide employment.
However, this universal inclusion has been restricted by providing an
exclusion route for those bodies for which such obligations shall cause
undue hardship. In this manner, the definition combines the need to
include the private sector and by providing exclusion clause ensures
the progressive development of the rights within the inclusive
The working draft does not carry a definition of barrier because we feared that any process may not adequately capture the obstacles faced by persons with disabilities.
If the need for providing a definition is felt we suggest the following definition and explanation for the consideration of the Committee.
Barrier means any factor that impedes or obstructs the full and effective participation, of a person with disability in society. This will include attitudinal, economic, environmental, institutional, political or structural obstructions.
A barrier is construed differently in different situations and by different people. A barrier is an inaccessible or inhospitable physical or social environment which prevents full and effective participation of a person with disability in society. It could also be stated as those factors in the complete social and physical context or environment in which that person lives his everyday life, which restrict such person from full participation. These barriers may be in the spheres of architecture, economics, politics, culture, social norms, aesthetic values, and assumptions about ability. These could be cultural attitudes and social behaviour, institutionalized rules, practices, procedures of public organizations and private entities. It could be considered the political, economic and material forces structured to serve an able-ist society that exclude persons with disabilities in every sphere. The barriers could be related to accessibility, attitude, transportation, support, or infrastructure.
Hence it is clear that any attempt to exhaustively define barrier will limit the scope of the definition of person with disability and therefore of the Act itself. The term ‘include’ is intentionally used so that interpretation is not limited by the use of the phrase ‘attitudinal, economic, environmental, institutional, political or structural obstructions.’ The definition is intentionally drafted in broad terms, so that all barriers may fall under the definition.
For a statute to have the full effect it is crucial that legislature, judiciary and the executive are on the same page. This legal technique is used to ensure that the object of the law and spirit behind the text influences the text as much as the words used in the law.
While there are rules of interpretation that courts have been applying while constructing a provision of law, it was considered prudent to provide for the principles of interpretation in this Act.
CRPD has introduced a paradigm change in the discourse relating to the rights of persons with disability. The new paradigm is based on the presumption of legal capacity, equality and dignity. India has ratified the UNCRPD which requires it to make the requisite legislative and administrative change to implement it in letter and spirit. The earlier paradigm was one of incapacity and inequality had a charity or welfare oriented approach, rather than the rights oriented one. Considering this change in jurisprudence, it is important to incorporate the guiding principles for the adjudicative bodies.
The section is divided into two parts. The first part enunciates the principles that any person or body interpreting this Act must be mindful of. The second basically gives the sources that the court or any adjudicating body must keep in mind while adjudicating the disputes arising under this Act.
First part: Equality, Dignity and Legal capacity are the fundamental principles that anyone interpreting any provision under this Act must be cognizant of. The statue being a rights-based one, it is crucial that rights must be given the widest amplitude and the restriction be construed in strict terms. The benefit of the doubt must therefore operate in the favour of the person with disability. While we are in the process of effecting a diametric change, it is prudent that the benefits of the past must be salvaged and not abandoned. The fact of new legislation must not be understood to have eliminated or extinguished any existing rights, benefits or privilege enjoyed by the persons with disability.
Second Part: This idea of this part is to elucidate the legal materials that the adjudicative body should use while deciding upon any dispute under this Act. Since, the statement of purpose and the preamble of this Act express the philosophy, motivations and objects behind this Statute, it was thus considered important that these should be borne in mind while adjudicating to so that the statute is given effect in both letter and spirit.
The Supreme Court of India, particularly post emergency changed its approach for the constitutional interpretation defining life in the widest terms so that life no longer is merely an animal existence but one which is lived with dignity thus bringing in all those elements that would make for a more wholesome life to be also read under Article 21 as the part and parcel of the right to life and personal liberty. With this, the gap between the civil political rights and the socio-economic rights was tacitly bridged by the apex court. It made a strong case for conjunctive reading of fundamental rights wherein Articles 14, 19 and 21 were considered as golden triangle and harmoniously read. It was thus important to state that this empowering jurisprudence must also be applied in the cases decided under this Act.
Since this act comes as a consequence of ratification of the UNCRPD by the Government of India, it is important that the courts must also be cognizant of the Convention while deciding disputes.
Besides this there have been significant developments in human rights discourse in the international arena from where the courts may take inspiration while adjudicating disputes involving violation or infringement of any right of person with disability. The Supreme Court had itself stated that the courts may invoke the principles of international law and the conventions signed by India while interpreting fundamental rights or laying down guidelines in the absence of sufficient domestic lawmaking for the same.
Over and above, it is important to revert back to the principles of interpretation that nothing under this Act, which also includes the sources in part 2 of this section, should be construed to the disadvantage of any person with disability.
In this part all the cross cutting issues of the law have been included. Thus whichever right you may address you have to deal with questions of attitudes or inaccessible infrastructure or the need for training or trained personnel and the question of simple and multiple discrimination faced by persons with disabilities. Hence all these issues have been addressed in this part of the Working Draft.
The Awareness Raising Chapter is primarily speaking about why it is required; who should be doing it; who needs it and how should it be done.
Accessibility is amongst the longest chapters of the draft it has adopted a comprehensive approach. It begins with stating how accessibility is an essential pre-condition to enable persons with disabilities to live independently and participate fully in all aspects of life. Consequently persons with disabilities shall be provided such accessibility on an equal basis with others to the physical environment; transportation; information and communications, including information and communications technologies and systems, and other facilities and services open or provided to the public, both in urban and in rural areas. The chapter then mandates the Disability Rights Authority to sets up standards and accessibility guidelines for a range of premises. These premises included: all buildings and facilities used by the public; temporary or emergency conditions as well as permanent conditions; all new community residential places and private residences; road based transport; aviation; railways; pedestrian infrastructure and rural public transport system.
Subsequent the promulgation of guidelines the article spells out what are the obligations of appropriate governments in terms of programmatic and other activities to achieve accessibility in relation to premises; information technology; services; consumer products etc The chapter also specifies the time period within which the existing infrastructure has to be rendered accessible and how monitoring is to be undertaken as also the penalties on non compliance.
This chapter primarily acknowledges the necessity of having trained personnel; provides the method by which the personnel can be created and stresses on the necessity of training in all kind of scenarios.
First, the provision recognizes equality under the law and equal benefit of the law formally declared under the ICCPR, UNCRPD and the Constitution of India. This is not only in line with India’s international obligations but also a re-iteration (for our purposes – twin-tracking) of equality clause.
Secondly, the State and all persons have been prohibited from discriminating a person on the basis of their disability. This covers not only a prohibition on discrimination perpetrated by the State but also by individuals in private interactions. Discrimination has been defined to include (a) direct discrimination (b) indirect discrimination and (c) failure to provide reasonable accommodation. It is necessary for the non-discrimination portion of this right to include both types of discrimination since in several cases; indirect discrimination is more damaging to human dignity. Also, the provision includes multiple discrimination since it is sometimes forgotten that persons with disabilities face discrimination not just on disability, but other criteria as well.
Thirdly, the provision guarantees effective protection against discrimination as per obligations under the ICCPR and the UNCRPD. Fourthly, there is a formal declaration of equality in relation to access to legal recourse against discrimination, accessibility to external aid and assistance to make civil and political rights meaningful, legal capacity and freedom to make choices, and have the rights to integrity, privacy and protection from abuse and violence on an equal basis with all persons. These inter-linkages demonstrate the underlying importance of the right to equality and non-discrimination with reference to other civil and political rights. Finally, there is a clause relating to affirmative action programs and how resort to them did not constitute discrimination.
Like the CRPD, the legislation has adopted the twin track approach to address the concerns of women with disabilities. This dedicated provision has been provided to address the concerns of disabled women generally and to reaffirm the guarantee of equality and non-discrimination.
Sub-section (1) is a general provision, giving a guarantee of equality and non-discrimination. It gives recognition to the fact that women with disabilities are entitled to all the rights provided for in the legislation. Sub-section
(2) imposes an obligation on the government and authorities to ensure the full and equal enjoyment of all rights by women with disabilities. This provision also requires them to take gender-sensitive measures for the same.
(3) prohibits discrimination against women with disabilities on the ground of sex. The significance of the words “on the ground of sex” lies in the fact that the Act restricts the provision of entitlements by providing for an enumerative definition with respect to entitlements. Thus, while a disabled woman may be excluded from an entitlement for persons with disabilities if she does not fit within the criteria provided in the definition, this exclusion cannot be on the ground of sex. Thus, while the law in general ensures the equality of persons with disabilities with non-disabled persons, this provision would ensure that women with disabilities are not discriminated against vis-à-vis disabled men.
(4) is an explanatory provision allowing for positive discrimination in favour of women with disabilities. This provision is required even though sub-section (2) already mentions gender-specific programmes. While a gender-specific programme under sub-section (2) might provide equal benefits but may be gender-sensitive in terms of reasonable accommodation requirements, this sub-section clarifies that even additional entitlements may be provided to women with disabilities.
Apart from this provision, other parts of the legislation which specifically address the concerns of women with disabilities, in pursuance of the twin track approach, include the Preamble; definition of reasonable accommodation; provisions on legal capacity, accessibility, awareness-raising, human resource development, right to integrity, right to privacy, right to be protected against violence, abuse and exploitation, right to live independently and in the community, right to home and family, situations of risk and humanitarian emergencies, education, right to health, employment and work, social security, and rehabilitation and habilitation.
Twin tracking has been done on the premise that certain lived experiences of disabled women do not get addressed in general provisions on persons with disabilities and the dedicated provision is not enough to address the same. In the dedicated provision, no specific rights or entitlements have been mentioned, and no illustrative enumeration has been done to avoid freezing and/or prioritizing. One of the reasons behind the inclusion of a dedicated provision is to ensure that enforcement does not remain confined to those particular sections in which twin tracking has been done. If an enumeration is done here, it might defeat that purpose by prioritizing particular areas, and might result in freezing enforcement in those areas. Hence, a general provision mentioning all rights, entitlements and programmes has been drafted. Recognition of specific rights and provision of specific programmatic interventions has been done under the relevant chapters.
Keeping in view the vulnerability, and the multiple forms of discrimination faced by the children with disabilities, it is required that a double-twin track approach be adopted in the Act. This entails that children with disabilities be included in general provisions throughout the Act, there be a specific chapter dedicated to children with disabilities and simultaneous amendments be made in legislations which affect them. This approach not only mandates provision of specific rights and programmes for CDs but also ensures their inclusion in general implementation of rights.
The Convention of Rights of the Child (Article 5 and Article 12) recognises the principle of the evolving capacity according to which any decision affecting the child takes into account the capacity of the child to exercise rights on his or her own behalf and express his or her views with respect to the same. The CRPD (Article 7) not only applies this principle to CDs but also mandates that the States provide for age and disability appropriate support for exercise of this right. The first provision provided herewith is based on this principle and all the other rights must be interpreted in the light of this.
The chapter then identifies those rights where in CDs have been neglected and are necessary for their growth and development. First is the right to be protected from violence, abuse and exploitation and provision of safe and accessible complaint mechanisms considering that children with intellectual or physical impairments are at a greater risk of being abused. This further ties up with the right of the CD’s to access to justice which includes the right to have access to courts, legal representation and right to participate in legal proceedings which affect them and have their views be taken into account. Another vital right which has to be explicitly recognised for CDs is their right to home and family. The family provides the most ideal environment for the growth of the child and there is a need for the government to provide families with adequate information and support to raise the children. Further, there is a need slowly phase out institutions and provide the children with family and community environments. Lastly, the right of the CDs to play and participate in sports and cultural activities along with other non-disabled children has always been disregarded. Such participation indispensable for physical, mental and emotional growth and is a great aid to inclusion and socialization.
This section in the equality chapter primarily recognizes the inequality even between disabled and for how some to reach at par with the rest they would need the same as others and more. This section acknowledges that more intense interventions are required for persons with certain kind of impairments; home bound people and people with disabilities in institutions. The section speaks of pro-active measures for this invisibilized population which could be provided by the National Trust as the Designated Authority. The section clarifies that such support will not be imposed and the effort would be towards inclusion.
This part begins with the recognition of legal capacity of persons with disabilities and then proceeds to legislate on the various civil political rights guaranteed both by the Indian Constitution and the CRPD. What is important to note in the manner in which these rights have been addressed that the State is not being asked to leave the person with disability alone rather various kind of positive interventions are being sought to render the rights real. Also a constant connection between the right to a meaningful life and right to education, rehabilitation, social security has been made.
Legal capacity is perhaps the most important aspect of once personhood because this forms the basis for every other assertion and exercise of every other civil and political right. Not having legal capacity has been equated to civil death. Persons with disability have for a long time been denied legal capacity sometimes explicitly law based either on their status or bases on their perceived inability to perform certain functions and take certain decisions and as that happens, in reality, legal capacity is denied on the basis of the status of the person as someone with disability and consequently is incapacitated. This ableist lexicon has not been adequately criticised as the sexist or racist lexicons have been and still continues to discriminate persons with disability. Legal capacity, is thus, recognized as the most revolutionary concept of the UN Convention on the Rights of Persons with Disability.
The Indian Constitution is based on the tenets of equality, dignity, liberty and democratic values cannot have a different scale for certain section of people if the basis for such distinction is prejudice and not reason. If it is adopted, enacted and given to ourselves by ‘we the people’ it has to mean all the people. Legal capacity is inextricably connected with equality (equality before law and equal protection of laws can only be spoken of after equal recognition before the law as the persons) and dignity (liberty, integrity and human dignity in the absence of personhood would be no more than the words in vacuum). While legal capacity for most persons, including people from the marginalised sections, was presumed the same was not the case with persons with disability where incapacity has remained the dominant paradigm. The UNCRPD makes an express provision for the right of legal capacity for the persons with disability and lends functionality to it by also recognising the derivative right to demand support where necessary. The exercise of legal capacity is the fundamental or the primary right which determines the derivative rights and not vice-versa.
Having ratified the UNCRPD, it becomes incumbent on the government
to take necessary legislative measures to recognise, promote and
protect the legal capacity for the persons with disability, inter alia,
Right from Aristotle the rule of equality has been that those similarly situated should be treated similarly while those who are situated dissimilarly, differently. Thus having a law dedicated to persons with disability and also explicitly guarantees the right of equal recognition before law and legal personality is not only obligatory but also just and equal.
Mere declaration of legal capacity might help some, but given the
diversity within people with disability, that would not do much for
those who have for long denied legal capacity or those who require
relatively higher level of assistance. Therefore, we need a blend of
both proactive and reactive models wherein we recognise the right to
legal capacity of all persons with disability in all aspects of life
and at the same time guarantee their right to demand support to enable
them to exercise their legal capacity and the Disability Rights
Authority is obligated to take necessary steps for persons with
disability to access such support. The hierarchy between fundamental
right and the derivative right translates itself in saying that the
legal capacity of any person with disability cannot be questioned on
the basis of support whatever be its extent.
While this being the general scheme for all persons with disability, there are as said before certain person who need relatively a little more support and slightly higher degree of proactive measures from the authorities. It is important to recognise that distinction in the statute as well to ensure that the generalised understanding of disability and legal capacity does not devalue their difference and the right to be treated differently. For them, different programmatic interventions are required with trifle more urgency. Thus, special provision are put creating obligations of providing support to persons with high support needs and measures including mediation and rehabilitation wherever necessary to enable persons living under plenary guardianship to in fact exit that system.
Right is a rationale basis for a justified demand that the actual enjoyment of its substance be socially guaranteed against the standard threats. If any condition remains unfulfilled the rights is an inchoate one. Therefore, the Act recognises legal capacity along with the right to demand support to help exercise it while at the same time clearly keeping the former fundamental. It realises that legal capacity if denied may effectively suspend the enjoyment of other rights and thus repeated mention of it at different places in the statute. The enjoyment of the right is socially (awareness, information dissemination and education) guaranteed (making the police and the courts and other dispute settlement bodies accessible as well as keeping its sustenance as the guiding principle for the adjudication of disputes) against the any thing that threatens it.
The right to life conceptualization for persons with disabilities must reflect upon the value of a disabled life and its quality. It must cut across prejudicial notions about disabled life when viewed through a medicalised lens. At the same time, any formulation must be in consonance with the UNCRPD mandate which obligates state parties to ensure the actual use of this right. Thus the guarantee of right to life must operationalize the right in fact by helping create an environment which supports, protects and provides for a thriving disabled life. For this aim, it is useful to turn to Article 21 of the Constitution and its jurisprudence developed by the Supreme Court of India. An effective enunciation of right to life can be by drafting or using the evocative language that has been used by the Supreme Court of India and extending it to persons with disabilities. It is plausible to use the Francis Coralie Mullin language since it has been invoked in other disability judgements of the Apex Court.
Keeping in mind the above, Clause 1 has been drafted to contain a general enumeration of the right to life, whereas clause 2 draws the connection between life and dignity and thereby expanding the meaning of life.
This section again asserts that a disabled life has to be valued on an equal basis with others. To that end it seeks to address the needs of persons with disabilities in situations of risk such as natural disasters, humanitarian emergencies and armed conflicts. It is drafted in pursuance of Article 11 of the CRPD which requires State Parties to “take all necessary measures to ensure the protection and safety of persons with disabilities” in such situations, in accordance existing obligations under international law “including international humanitarian and international human rights law.” This provision entitles all persons with disabilities to have suitable protection and safety and requires the appropriate governments and local authorities to take effective and appropriate measures to enable the protection and safety of people with disabilities in these situations on an equal basis with others. This would include, among others, the need to develop disaster preparedness plans that are inclusive of persons with disabilities. Additionally, it requires specific bodies in-charge of relief and rescue activities in situations of disasters, communal violence and armed conflict to take appropriate measures. To ensure effective inclusion, persons and authorities in-charge of reconstruction and rehabilitation will consult with the Disability Rights Authority. Finally, the Disability Rights Authority would engage in the capacity building exercises including research & development and training for persons with disabilities and personnel dealing with people with disabilities in situations of risk. The section also provides that disability accessibility should be kept in view when reconstruction activities are undertaken subsequent to any kind of disaster.
Article 14 of the UNCRPD mandates that: first, state parties shall ensure that persons with disabilities enjoy the right to liberty and security of person; secondly, they are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and; lastly, that the existence of a disability shall in no case justify a deprivation of liberty. Article 21 jurisprudence on right to personal liberty is expansive and allows for a broad enunciation for persons with disabilities. In this light, any right to liberty formulation must grapple with two main issues in relation to persons with disabilities, first, criminal justice system (preventive or punitive); secondly, forced institutionalisation (for providing shelter). Whilst it involves a close scrutiny of domestic legislations including inter alia, Code of Criminal Procedure and the Mental Health Act, it is clear that the prevailing UNCRPD standards as well as Article 21 jurisprudence demands: first, outlawing forced institutionalisation since there cannot be any exceptions to right to liberty and no deprivation of liberty is permissible on the basis of disability; secondly, state’s obligation to create a non-restrictive, non-coercive accessible environment to guarantee the de facto realisation of right to liberty and security for persons with disabilities. The new law has thus been framed to unequivocally make these guarantees identifiable in the text of right to liberty and security.
Although right to integrity has been understood as one which is subsumed within freedom against torture, exploitation and right to dignity, it may not fairly encompass the entire wherewithal of ‘integrity’. This is clear from the distinctive space and formulation accorded to Article 17 in the UNCRPD. Right to integrity allows persons with disabilities to live and affirm comfortably their personal identity, something which does not necessarily find resonance in other rights and freedoms. Right to integrity means to be able to assert or express oneself as a whole person. The guarantee of integrity undercuts notions of disabled as incomplete, abnormal, or deficient; it commands individuality and respect for bodies dissimilar to your own. Integrity would thus require breaking through the prismatic vision of normal. To put simply, right to integrity would mean the right to be you as you are.
Recognising the broadness and somewhat abstractness of the term integrity, it has been drafted in a way so that the general provision is complemented with illustrations to give an idea of the terms in which integrity has to be understood. The illustrations are necessary and purposeful to create an environment which respects the bodily and physic integrity of persons with disabilities. However, their specific enunciation should be carefully worded and cautiously legislated so as not to repeat the objectification problem as faced in the implementation of the SCST Atrocities Act.
It is an essential component of guaranteeing the enjoyment of any right, that when that right is infringed or it is foreseeable that it might be infringed the aggrieved has the recourse to legal remedies. That would mean little if the justice delivery system itself is not accessible.
The Chapter provides that all buildings which are related to the justice system, including courts and police stations, should be accessible to PWDs. This issue has been covered keeping in mind that most existing buildings do not provide for ramps or elevators and hence are not accessible to a complainant or even a witness or accuses PWD. As a result, the first level of justice, i.e., filing a complaint, becomes inaccessible to PWDs.
The Chapter further provides that all communications which take place between the justice system and a citizen should be conducted in such a manner that every PWD is able to understand these communications. This provision also provides that the means of making such communication understandable (assistive devices, human assistance etc.) be procured by and at the cost of the justice system. These set of provisions have been included in the Act primarily to safeguard the right of a complainant to conduct his case and also safeguard the rights of an accused to understand the charges against him or her and conduct his or her own defence.
It further equality that the competence of the person with disability in performing any of the aforesaid role is not questioned merely on account of the disability and also that the testimony, opinion or argument, depending upon the capacity in which the person with disability stands in any dispute are evaluated on an equal basis with other and are not disregarded or dismissed merely because of his or her disability.
The National Legal Services Authority and the respective state legal service authority are entrusted with the task of formulating schemes and programmes to facilitate access to justice including the schemes of free legal aid. It is important that such schemes are extended to persons with disability on an equal basis. At the same time considering that the courts, tribunals and other adjudicative forums are ill-equipped for persons with disability to exercise the rights as mentioned above, a duty has been placed on the Legal Services Authorities to enact suitable schemes and programmes and take appropriate measure to this end as also the bar councils, bar associations and any other body responsible for the infrastructure of courts are mandated to take steps in facilitating the access to justice by persons with disability by carrying put necessary changes in the existing structures, filing systems and documentation and record systems so as to make them in accessible forms and formats for the persons with disability.
The right to access to justice would not be complete if all the facets of the case even those extending beyond the courtrooms are not covered. With this intent, a provision has been put in place for making available such equipments, support systems and arrangements to enable the persons with disability to file a First Information Report, enter appearance or make statements before the police.
The other provisions of the Chapter deals with a PWD as a witness and essentially provides that as long as a PWD can, with or without support, communicate his or her testimony to the judge, he or she is qualified to be a witness. These provisions, in effect, extend the scope of the provision in the Indian Evidence Act, 1882 which grants special rights to deaf persons.
Violence: The initial part of the definition was influenced by Iris Marion Young’s explanation of violence as one of the five faces of oppression. In the definition initially the conceptual core is given and then certain incidents which will amount to violence have been listed thereafter to lend more clarity to the concept and at the same time making it clear that ‘violence’ may also include incidents which meet the concept but have not been enlisted. Apart from the convention understanding of physical violence involving harming, injuring, mutilating or otherwise damaging the person of the person or threatening to do so or when it is done to the aggrieved or any person related to him/her with a view to meet an unlawful demand, there is a clause inserted to clarify that forcible institutionalization and treatments involving electronic shock and chemicals or radiation that have the potential to seriously impact once body, mind or otherwise vanishes the autonomy of the person with disability as regards the medical treatment has also been understood to be a violence. This has been done after going through several accounts of patients with psycho-social disability as to how their autonomy is systematically eliminated and the nature and impact of such treatments on their person as chronicled in the literature by several scholars on disability rights.
Abuse: Similar format has been adopted in defining abuse. First a conceptual core and then different forms of abuse have also been sought to be explained. It may however be noted that the forms of abuse has been kept inclusive because there may be cases wherein it would not be possible to provide for a suitable nomenclature to an act of abuse, if it may not be in strict compliance with the explanation to these forms of abuse provided in the second part of this definition. Since persons with disability may require support to exercise their legal capacity, the same if not provided deliberately and the act of undue influence which may beguile a person with disability into doing or not doing something contrary to the normal course of action.
Exploitation: One component of exploitation involves a generic understanding of taking unfair advantage of any limitation of any person with disability. It involves mens rea and the state of mind is indicated in the following sentence of the definition: “knowingly, by deception or intimidation” and gives out a range of events like obtaining or using the funds or property for or owned by any person with disability to not the benefit of the aggrieved and without obtaining valid consent. There are certain conditions for any consent to be valid. The use of term valid has been made to impress upon the adjudicating authority to carefully consider whether the conditions for valid consent have been met or not.
Definitions, can be double edged sword while it may bring clarity it can also lead to unnecessary conservative understanding of a phenomenon. Since the above phenomena have larger social and human dimensions, this segment then again ends on a generic note in an attempt to bring within its fold all those acts which are done with a knowledge or intent to cause disadvantage to any person with disability by exposing such person to injury, risks, or disadvantages not covered in the definitions. These acts are deemed to be exploitation.
It has been made clear that every person with disability has the right to be protected from any form of abuse, violence or exploitation at any place which inhabits a person with disability. As will be clear, it will be the duty of the appropriate governments to take proactive measures to protect persons with disability from such acts or take steps in anticipation if there are reasons to believe that any person with disability may be subject to such acts.
Any person and not only the person aggrieved by such acts is entitled to make complaint or give information to the District Disability Commissioner or any police officer who shall take prompt steps to bring the guilty on the board and if such act has not occurred but is apprehended all suitable measures to prevent its occurrence. There may be instances that the acts have not actually taken place or the conditions have changed which may result in non-occurrence of these acts in the future contrary to the information, the Act in that case gives protection to the informant who has taken actions in good faith.
Additionally, any person with disability may make a complaint for such act or of the apprehension of such acts to District disability Commissioner asking for the relevant measures for protection or prevention as the case may be. Subsequent clause elucidates different orders that the Commissioner can pass. Commissioner is also empowered to counsel the assailant in the company of aggrieved (if deemed fit) and note the observations of this episode in the order and can even suggest to the enforcing authorities to take a lighter view of the sentence in light of the counseling. This can also have a reformative effect on the accused and may result in better understanding of disability issues and rights by such person.
Thereafter, it is made an obligation for the Police, Disability Commissioner, or a magistrate who receives any complaint of the incidents of exploitation, violence and abuse against a person with disability to inform such person with disability of the various legal recourses available to him/her. They have been enlisted in the relevant clause.
Thereafter, general provision are placed which mandate the Disability Rights Authority to take steps for sensitization of general public on the exploitation, violence or abuse that persons with disability are subject to and steps that should be taken to avoid such acts, protect persons with disability from such acts and to record such incidents for future purposes. This includes generating awareness, providing information and generally educating not only persons with disability but also others about the legal remedies available, the punishments and penalties for such acts (deterrence value), the necessary contacts, e.g. national or state level toll-free help-lines, task forces and having special cells dedicated to deal with such incidents and the public advertisement in accessible formats of the necessary contact details of the Authorities which may be consulted and the non-governmental or other organizations working in the area of disability rights, which may be used for complaining or informing the incidents of exploitation, abuse and violence of persons with disability. Lastly, a duty has been placed on the Central and State Governments which in association with the Disability Rights Authority shall take required steps for the recovery, rehabilitation and re-integration of persons with disability who have been victims of such incidents and again bearing in mind that the environment where this recovery, rehabilitation or re-integration takes place must be one that fosters health and promotes dignity and autonomy of person with disability.
The section on privacy tries to incorporate Article 22, UNCRPD which is also the latest enumeration on privacy in the international law arena. Some sub-sections have been added to ensure that right is realised. Privacy is broad based and includes within its ambit informational privacy, bodily privacy, communication privacy, sexual privacy etc.
The disability of the person is usually represented as the sole characteristic of the person, whereas other individual aspects such as personal, emotional, intellectual, gender, sexuality, religion, abilities, potential and other physical features, are often undermined if not ignored completely. Thus it is significant that the PWD must have the right to control the information that is disseminated about them so as to avoid any further discrimination/ branding/ stereotyping that might have occurred and also to provide a certain sense of protection and relief to the PWD.
Concerns for informational privacy can arise in various areas such as media, health (medical records), employment – pre-employment screening as well as post-employment screening, websites, courts etc.
However, since the fields are in no way limited, the best approach in a legislation would be to state the basic principle on privacy and mention the other sectors in illustrations under the main section.
It is essential to understand privacy as a notion of space and physical integrity to an individual. This aspect underplays at various levels in different areas such as home, employment, health sector, airports, security checks etc.
For instance in relation to residential settings, it is pertinent to note that in countries where there are large numbers of people in institutional care and large numbers of individuals in wards, it is necessary to move towards privacy objectives and measure progressive realisation of these rights. A broad legislation on disability might not be able to cover such a topic in detail therefore a plausible solution could be to mention that the government is mandated to include privacy concerns in a national housing strategy which should reflect extensive and genuine consultation with and participation of the PWD. To give it an even stronger footing in the law, a provision for privacy can also be made in the chapter for accessibility. Similarly in medical treatment privacy concerns arise at every step. These concerns have been incorporated into the Act in the illustrations, so that it ensures that the government can in no way ignore those measures to be taken.
Persons with disability have been generally considered asexual brings. Mainstream society has rarely ever taken into account the sexual and reproductive rights of the PWD. Organisations such as WHO, ECHR and many Privacy advocates recognise sexuality as a central aspect of being human. However, it is not a right which can be legislated upon. That being said, there is still a need to guarantee PWD space for expression of this aspect of privacy as a person’s sexual life is an inherent part of a person’s life.
A mention of sexual privacy in the general provision when drafting the section achieves two things – first, give a person a right to relief in case there is any violation and second, a mention of it would in turn make it an element to be taken on board when constructing houses and institutions. An additional provision must be made for awareness raising and sex education for PWDs, care givers and families in the Awareness Raising Chapter of the Act. This would help bring in a more rooted change than any other provision.
This section recognizes that the basis of the right is to promote plurality of opinion and diversity of thought. Hence any censorship or curtailment of the thought, speech, expression and communication of a person with disability by reason of disability has been made impermissible. Persons with disabilities have a right to dissent on an equal basis with others. This provision has been made with the realization that persons with disabilities shall truly enjoy the right to dissent when the entire legislative framework recognizes their legal capacity and makes interventions at multiple levels – be it at the level of awareness raising, or by prohibiting forced institutionalization.
The provisions dealing with freedom of expression operate to make a wider understanding of the concept of communication, which includes the fostering of emotional communication. With that in mind, there are provisions in place to mandate state provision of communication aids, supplemented by requiring telecommunication companies to provide functionally equivalent services to consumers with disabilities. Provisions are further in place to facilitate access to the Internet as well as to television services. State action is also called for to provide a system of training interpreters. In the realm of social communication, the act mandates environments such as the office and the workplace to provide adequate time for persons with disabilities to acclimatize, as well as provide guides related to the behavioural aspects of the institution. Provision of simplified information and pictorial modes wherever possible is also required for.
This section recognizes the right of persons with disabilities to live in the community on an equal basis with others. Herein again as in the other rights the connect between the right and the meaningfulness It would give to the rights of persons with disabilities has been explicitly acknowledged. The programmatic dimension of the right is acknowledged by requiring state parties to launch programs which would give choice in place and manner of living and such arrangements need to be gender sensitive. The section lastly requires support arrangements to be put in place which assist persons with disabilities to realize this right.
Article 23 provides a wide spectrum of obligations which seeks to cover all aspects of the right to home and family. More specifically, the Paragraph requires that the rights of PWDs to:
The Indian Supreme Court has recognized India’s obligations under a number of the aforementioned international conventions and has also held that the rights enshrined in these conventions, by virtue of India’s ratification, are enforceable in India.
While the Constitutional framework guarantees the right to home and family, in practice these rights are regulated by various religious laws which are only partially codified. These laws are extremely discriminatory in nature and the ground of “unsound mind” has been incorporated in all personal laws as a ground for the invalidation of marriage or divorce.
This Chapter attempts to create a set of secular rights and entitlements related to home and family. Hence, it provides the right to marriage to all PWDs, immaterial of their religion, on the condition that there is consent and knowledge of both spouses to a marriage. In the context of marriage, the Chapter provides a secular right which cannot be restricted on the basis unsoundness of mind. This restriction, which exists currently in the context of marriage, is on two levels, the issue of validity of a marriage and the issue of divorce. The Chapter has tackled both these issues by prohibiting the ground of unsoundness of mind as one for nullifying a marriage or getting a divorce.
The Chapter has been drafted in a manner that the rights under Article 23 (1) (a) and Article 23(2) are articulated so as to negate the effect of the existing laws which are at odds with these rights. Hence these provisions have been drafted with non – obstante clauses and should be supplemented by provisions in the Schedule of Amendments which will repeal the discriminatory laws. In addition it must be noted that the existing laws are mostly personal laws and an amendment to these laws may well be opposed by religious groups as being derogatory of their right to religion which is also enshrined in provisions of Part III of the Constitution.
The rights under Article 23 (1) (b) are unique in this gamut of rights since the right to reproductive choice is the only right which has been expressly upheld by the Supreme Court in the context of PWDs. Hence, the provision in this Chapter merely draws strength from Supreme Court’s judgment in Suchita’s case as well as the Article itself.
The right under Article 23(1)(c) is not regulated by law in India and hence a provision has been added to this Chapter without significant opposition as regards existing laws. In addition, the right was specifically upheld by the Bombay High Court in Anant Phadke’s case and this Chapter has drawn upon the same.
Indian law is partially in conformity with the rights provided under Articles 23(3), 23(4) and 23(5), i.e., the best interest (welfare) approach is the basis of all decisions related to unwilling separation of a child from his family without the parents’ consent. In addition, separation of a child from his / her family is only authorized in the best interests of the child as decided by a competent authority. Hence, these rights are not in conflict with any existing laws and are actually included in the fabric of Indian law regarding the child and family. Therefore, the provisions corresponding to these rights which have been included in this Chapter have sought to guarantee the right to adopt and be adopted to every person with disability irrespective of the type of disability.
Article 29 requires that all PWDs be given the formal and substantive right to vote, stand for public office and otherwise participate in the political process. It further provides that all assistance and accommodation which are required to exercise these rights should be provided by the State.
The rights under Article 29 can be divided into three categories based on existing Indian laws: (a) the right to vote and be elected for public office; (b) the right to assistance and accommodation required to access and exercise these rights and (c) the right to join and form associations and other bodies required for the full exercise of the right to political participation.
Category (a) contains a set of rights which are legislatively denied to persons with mental illnesses but are available to all other PWDs. Categories (b) and (c) contain rights which have some support in the present legal system. The former category is supported by judicial decisions in the specific context of PWDs and accessible voting while the rights in the latter category are generally protected by the Constitution and hence are available to PWDs as well.
As regards the rights under category (a), the Chapter has provided the right to vote to every person with disability provided he fulfills the criteria of age and residence. In doing so, the provisions of the Chapter have explicitly stated that the existing discriminatory laws are overruled by this Act. In addition, the provisions also provide for voting by homebound PWDs by way of proxy voting or postal ballot. This concept already exists in current election laws and these provisions merely extend them to PWDs.
The right to stand for public office is closely connected to the right to vote under Indian law. Hence, the right to vote, in effect, ensures the right to stand for public office. Therefore, the Chapter has merely reiterated this right in strong terms while negating the effect of any existing laws by using a non – obstante clause.
The issue of accessibility under category (b) has been dealt with by way of an illustrative list of accommodations which have to be provided to PWDs. This has been coupled with a general provision requiring that PWDs have access to all voting materials in an understandable format and also that all polling stations be accessible. This dual layer of safeguards ensures that those forms of support that are specifically mentioned in the law are automatically provided, while any other support requirements which are noted can be demanded under the general provisions and implemented through the Rules to this Act.
The rights included in category (c) are explicitly protected under Article 19(1)(c) of the Constitution and is further supported by ample case law. Hence, this Chapter merely draws on this jurisprudence and applies it to the context of PWDs. It should be noted that no discriminations against PWDs exist in the context of these rights.
This part begins with a section which provides an enumerative definition of person with disability with an option to the Central Government after a Board made of subject and experiential experts makes a recommendation to that effect. The section next required a Board to be set up which creates a scale for measuring the extent of the barrier. Lastly the section clarifies that the standards of identification of persons with disabilities shall be provided in the Rules to the Act.
This Chapter is based on the UNCRPD’s core obligation with respect to education under Article 24. The core obligations under the Article are essentially that of non-discrimination and reasonable accommodation in the context of inclusiveness.
The first section of the Chapter defines a child as any PWD below eighteen years of age. This definition of a “child” has been drafted based on the fact that the UNCRPD does not define a child with disability and that Articles 24(2)(a) and 24(2)(b) require non – discrimination and reasonable accommodation in primary as well as secondary education. In India, primary education is considered to be completed in the eighth class and classes nine to twelve comprise secondary education. Hence the mandate of the UNCRP is broader than that of Article 21A and the definition has been drafted while keeping this point in consideration. In addition, the Convention on the Rights of the Child as well as the Indian Majority Act, 1875 define a child as any person below the age of eighteen years.
The term “neighbourhood school” has been used in the Chapter to refer to all schools. The term has been defined in a broad manner to include all schools in a three kilometer radius which are equipped to cater to CWD and also includes schools which primarily or exclusively cater to CWD. The definition has been drafted broadly in order to give the parents of the child to the choice to opt either for inclusive education in any neighbourhood school or for a school which caters to CWDs. This element of choice is aimed at eliminating the conflict between special and inclusive education since the child has a right to be educated in either a special or an inclusive school, as chosen by his parents in his best interests. It may be assumed that the parent is adequately informed about the child’s disability to choose a school which is most appropriate for him or her.
The second and third section of the chapter elaborates upon the core obligations of reasonable accommodation and accessible education. The language used has been chosen from existing case law related to education as well as the UNCRPD itself. This portion of the Chapter attempts to fulfill the requirement of “evocative text” which the Committee, by consensus, had decided was necessary to this Chapter.
Parts II, IV and V of the Chapter articulate the specific entitlements of CWDs (in the context of access to education as well as the reasonable accommodation in the form of support) as well as the corresponding duties of the government and the schools. A large portion of these Parts reproduce the rights and entitlements available to children under the Right to Education Act, 2009 (“RTEA”). This approach has been adopted since the Committee decided that it is essential that all CWD receive at least the same entitlements as other children since the RTEA excludes CWDs from its purview. The support which a CWD is entitled to and which the government and schools are bound to provide has been articulated in an inclusive (as opposed to exhaustive) manner in order to allow for the evolution of this concept under this Act.
Part III of the Chapter deals exclusively with the issue of educators. Educators have been defined in Part I to include all teachers who are qualified to cater to the needs of CWDs. This broad definition has been provided in order to increase the available educators without the specific requirement of formal qualifications. In addition, this Part deals with the duties of an educator as regards CWD.
The final part of the Chapter, i.e., Part VI deals with the establishment and terms of reference of the Education Reform Commission. The Education Reform Commission has been established for carrying out curricular reforms from the standpoint of persons with disabilities. The Act provides for the establishment of the Commission and its terms of reference. The need for curricular reforms and for the creation of this Commission is primarily based on the insight that most discussions around the education rights of persons with disability were informed by the deficit perspective towards disability, where persons with disabilities are not seen as being able to contribute to knowledge creation and dissemination. Thus, the Act provides for the creation of a transitory body to review the existing curriculum adopted in schools and to develop an inclusive curriculum, based on the lived experiences of persons with disabilities.
The chapter has been initiated by firstly prohibiting any discrimination on the ground of disability. It prohibits removal or reduction in rank on grounds of disability. There is an obligation to provide reasonable accommodation and an employee stressed or disadvantaged can seek a relocation.
Article 16(1) of the Constitution of India grants its citizens “equality of opportunity for all citizens in matters relating to employment under the State”. Such equality, needless to mention, is derived from Article 14 of the Constitution, which provides for both “formal” and “substantive equality”. While formal equality ensures consistency of treatment, thereby ensuring that no person is subject to any special disadvantage, substantive equality recognizes that “disability results from interaction between persons with impairments and attitudinal and environmental factors. Hence, substantive equality seeks to mitigate “prejudice, discrimination and disadvantage” that have resulted in barriers being placed to full enjoyment of human capabilities.
In such a situation, substantive equality would allow for both affirmative action measures that are consistent with the spirit of the legislation, along with any reasonable distinction, exclusion or preference on grounds of an inherent requirement of the job. Nationally and interntationally, provisions that are made for groups requiring assistance have been held not to come within the ambit of “discrimination’. The first section of this part of the bill thus provides for both substantive and formal equality. It allows for 6% reservation, does away with job identification and does not permit any department etc to seek exemption from the purview of the section.
The only other community in whose favour reservations in promotion have been given so far is the Scheduled Castes and Scheduled Tribes vide a Constitutional Amendment and the insertion of Article 16 (4) (A). However, such incorporation has been controversial, and subject to conflicting views from the judiciary. While in earlier cases, the Court held that the earlier Article 16 (4) could take into account all matters related to employment, including promotion,1 and upheld the ‘seniority-cum-suitability’ rule, the case of Indra Sawhney v. Union of India that over-ruled these was a 9 judge-bench. Hence, subsequently, all judgments have followed this case. It is only a constitutional amendment that brought about the reservation in matters of employment.
In order to surmount the prohibition of this judgment the section goes for an evidence based approach towards the issue. It firstly prohibits discrimination on grounds of disability in promotion However if despite the prohibition it is found by an investigation of the Disability Rights Authority that persons with disabilities are denied promotion then the appropriate government has been given the power to introduce reservations in promotion.
It is widely acknowledged that the situation of persons with
disability in the Private Sector is dismal. In order to remedy this
situation, a number of strategies have been looked into. The big
private player has been brought on board through an amendment of the
definition of establishment. An explicit section on the provision
of incentives has been introduced.
The provision has not been couched in negative terms, but an interpretation that imposes an obligation on the State to facilitate the participation of PWDs in all forms of recruitment and other processes. Recruitment and all related rules should be modified in order to ensure complete support to enable full participation in competitive exams; for eg – provisions of scribes etc.
An issue with the Employment exchanges is “their urban focus and the need to develop cost-effective rural outreach and informational strategies if they are to be relevant to the bulk of the PWD labor force”. In accordance with the suggestions of the Sub-Committee, the institution of Special Employment Exchanges has not been included in the formulation of this chapter.
Government has incorporated a statement under Chapter 4 on Registration & Employment (Section 4.6; Sub-section 4.6.10) in its Operational Guidelines for the implementation of the N.R.E.G.S. It states that, “If a rural disabled person applies for work, work suitable to her ability and qualifications will have to be given. This may also be in the form of services that are identified as integral to the programme. Provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, are presently being kept in mind during implementation. An interesting joint effort between the state Government and disability NGOs is underway in AP to identify additional categories of works which would be better suited to employment of different disability categories. A second significant innovation in AP is that households with a disabled member are entitled to 150 days of public works employment per year, rather than the 100 days for other households under the Act. This can apply to any household member. 2.” These developments have been kept in view whilst drafting the provision providing for the entitlements of persons with disabilities in development programs.
In order to put in place an internal auditing system equal opportunity policies have been introduced. Acquisition of disability during the course of employment has been made applicable to private employers with the amended definition of establishment. An effort to introduce a system of grievance redressal has also been made.
In furtherance of the right to life and living elaborated in section 53 and the right to live independently and in the community in section 64 of this Act, it has been provided that all persons with disabilities shall have a right to social security which includes but is not limited to securing adequate standard of living for persons with disability. The rest of the section mandates appropriate governments to launch a range of programs and schemes to realize this right.
The Right to Health seeks to ensure for persons with disabilities access to all available health care measures on the basis of principles of equality, non-discrimination and universality of access, as also to those interventions that are critical and specific to disability, taking into account its inherent diversity; as also factors such as gender, age, socio-economic status and other forms of vulnerability.
The appropriate governments are required to establish health services needed by persons with disabilities specifically because of their disabilities including provision for early identification and intervention.
The chapter also outlines the range of schemes and programs that the appropriate government should launch in partnership with persons with disabilities and their organizations. It requires ethical guidelines to be developed on the basis of equality for the treatment of persons with disabilities. The denial of food and fluids to persons with disabilities has been prohibited and rendered punishable.
This chapter underscores that disability is a part of human diversity and integral to the lived reality of human beings; thus the right to habilitation and rehabilitation was an integral component of the right to life. The section explains the distinction between habilitation and rehabilitation and then outlines the various schemes and programs that would have to be launched by appropriate governments to ensure the realization of this right by persons with disabilities. Distinct provisions have been made for the habilitation rights of children with disabilities as also for the utilization of peer support to realize the right to rehabilitation. The chapter also requires research and development to be an integral component of the right to rehabilitation.
In pursuance of the recognition that persons with disabilities have a right on an equal basis with others to participate in the cultural life, leisure, sports and recreation, this provision has been enacted to mandate programmatic interventions from the government to ensure this right. This is to fulfill the obligation under Article 30 of the CRPD.
In light of this right, the provision demands specific programmes for the creation of accessible environment for the enjoyment of recreational and sporting activities. This would include development of schemes of inclusive sports, disability specific events, making such activities accessible to persons with disabilities and also develop technology which is easily accessible.
The provision also demands that the activities for recreation and sports be enjoyed by everyone on an equal basis. Thus, it demands that the existing facilities be used and developed to enhance the potential of persons with disabilities. It also mandates that inclusion in these activities starts at the level of school events and also development of infrastructure to make it accessible.
Deriving from the mandate to promote, protect and enforce the rights of the persons with disability on an equal basis with others, it is hereby proposed to create a Disability Rights Authority (hereinafter referred to as DRA). It will be a statutory body which will also function as a modern regulator with financial autonomy, moulding the aspirations and entitlements of persons with disability into a reality long cherished.
Charged with the daunting task of creating a sustainable positive change in the society by influencing thought process, challenging stereotypes, encouraging good practices, promoting understanding and awareness and fostering mutual respect; DRA will be a law and policy reform, standard setting and investigative body, all encompassing in its scope and ambit.
Since the very basic principle of UNCRPD mandates “nothing about us, without us” DRA actively involves persons with disabilities. The justification for the mandate of the UNCRPD can be found in the jurisprudential concept of ‘deliberative democracy.’ Deliberative democracy recognizes and underscores the importance and the necessity of citizen participation in decision making. It basically emphasizes that balloting democracy or representative (numerical) democracy is not sufficient to address public issues.
DRA, therefore, will comprise of a Chairperson and Governing Board which is a body with elected members representing the geographical and sectoral diversity within disability sector. DRA will function through an Executive Board, formed of members from the Governing Board and the Chairperson of DRA who will be ex-officio Chairperson of the Executive Board. The Executive Board will also have The Chairperson of National Trust and Chairperson of RCI as ex-officio members.
For the effective and efficienct discharge of its functions of promotion, protection and enforcement of rights of persons with disability, DRA have been given several powers including the power to establish such Committees and Commissions as it deems fit.
To preserve the financial autonomy of DRA, an Empowerment Fund has been established with a Finance Board to utilize and manage the Funds.
DRA follows a two-pronged approach for redress through its Empowerment Commission. First, it seeks to ensure effective first level adjudication of grievances at the district and state level by creating full-time Commissions for Persons with Disabilities. Secondly, to deal with collective grievance redress for structural or systemic denial of rights, the Empowerment Commission to be established to act as a complimentary mechanism. By ensuring that all rights of all persons with disabilities are fully protected, this complementarity will mean that that the complaint function of a Commission will offer something that the legal system cannot. Unlike Courts, the Commission will proactively search for structural violations of any civil and political or socio-economic right of a person with disability. Commission for Persons with Disabilities at the District and the State level are envisioned as ‘decentralized tribunals’. These shall be accessible bodies for primary grievance redress and provide continuous and steady relief. The ultimate aim and fundamental purpose of this is to take justice to the doorsteps and overcome the difficulties of access of a national-level body. While the District Commission for Persons with Disabilities will be the first point of contact for individual grievances, the appellate body shall be the State Commission.
The issue of the induction of the National Trust and the Rehabilitation Council as separate chapters could not be attempted primarily because there was no time left to undertake a coherent and systematic exercise. It may also be noted that as the length of the statute expanded we felt a constraint of space in even incorporating all the provisions of power and accountability in the chapter on the Disability Rights Authority. It may also be noted that all significant authorities in the country have dedicated legislations around them. In this view of the matter the Committee would need to consider whether it would wish to suggest the creation of One Disability Law Code and within which have legislations on : Disability Rights; the Disability Authority; the National Trust; and the Rehabilitation Council. Or whether it would also wish to induct the National Trust and the Rehabilitation Council into this legislation?
A number of prohibitions and penalties are already part of individual chapters for example the provisions in the Accessibility chapter as also the chapter on Violence Exploitation and Abuse.
The remaining part will be fleshed out once the working paper has been discussed and a decision on the substantive content of the new legislation has been reached.
This provision has been drafted in accordance with the obligation under Article 31 of the CRPD. The requirement of implementing the programmes and the provisions of the Act can be fulfilled only when accurate information about the requirements for persons with disability can be gathered. The essence of this provision is the need for collection of data for the effective implementation of the schemes made under this Act. Hence, a proper mechanism shall be developed by allocating specific funds for the purpose of this data collection. At the same time, the data protection and the privacy requirements shall be adhered to. Hence, this information shall not be made public and shall not be used against the person giving the information as evidence.
The other requirement is of complete accessibility and that the information is covered to fulfill the purpose for its collection. Hence, this information shall be made accessible to the persons with disabilities for free. At the same time, the government shall make rules to decide the different methods to collect information and what information shall be required for the purpose of the programme.The Disability Rights Authority shall develop protocols the categories of persons with disabilities and how best to obtain information on each category
Other than this provision on statistics this part of the legislation will have provisions by which overriding effect will be given to this law. The issues which will be provided for in rules and regulations shall be laid out. And the existing laws shall be amended and repealed.
There is a proposal that disability provisions in existing legislation should be also amended in a schedule in this law. An illustrative schedule has been provided to show how the exercise can be undertaken.