India needs new legislation on Disability Rights

March 22, 2010 - PRLog -- The Ministry of Social Justice and Empowerment of the Government of India has been holding national consultative meetings on proposed amendments to the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act (PWD Act). Meetings have been held in Delhi, Guwahati and most recently in Kolkata on March 13, 2010. The debate centres on whether there should be amendments to the existing law, or whether there should be a new law.    

The Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, (PWD Act) of 1995 had heralded a new dawn in the lives of disabled people in India. For the first time in the history of independent India, a separate law had been formulated which talked about the multiple needs of disabled people. Very soon, though, activists as well as disabled people felt that the law had too many loopholes. However, this Act did help disabled people to come together, forming groups as they started making demands to implement this law.  

To the delight of disability groups, India ratified the UN Convention on the Rights of Persons with Disabilities (Disability Convention) in October 2007. This Convention marks a formal shift from the archaic medical model to the social model, and promotes the rights of people living with disabilities. Article 1 encapsulates the overall objective of the Convention which is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”

The Convention recognises that persons with disability are right-holders instead of passive recipients of government schemes. In contrast, the PWD Act has a different foundation. The PWD Act was enacted in order to implement the Proclamation on the Full Participation and Equality of People with Disabilities, an instrument that did not expressly recognise rights, but laid emphasis on the need to eliminate physical and social barriers so as to promote the participation of people living with disabilities. The PWD Act, thus, does not internalise any of the core principles that form the bedrock of the Disability Convention.  

Retain or recast?

There is a definite need to review the existing legislative framework in India to examine whether it adequately promotes the rights contained in the Convention. The Disability Convention imposes two key legislative obligations: (1) to ensure that the rights contained in the Convention are realised and (2) to ensure that existing laws and practices that are discriminatory towards people living with disabilities are repealed or amended to bring them in line with the Convention.  

Since its ratification by India, there has been much discussion of the manner in which Indian laws must be modified or harmonised to give effect to the obligations under the Convention. While the Ministry of Social Justice and Empowerment (MOSJE) has proposed 108 amendments to the PWD Act including 50 new provisions, the Disabled Rights Group (DRG) led by Javed Abidi has unequivocally stated that the PWD Act has served its time and that there is a need for a new law.  

Consultations on this issue at national and zonal levels are going on throughout India right now. Advocate Kanchan Pamnani, who is blind herself, says that the old law will need more than 300 amendments to make it suitable to our times, and obviously it is better to frame a new one than make 300 changes in the old one. Shukla Bhadury, mother of two disabled children agrees. She says it is ridiculous that government is even considering so many amendments. “Even in the amendments, punitive actions are not mentioned,” comments Sritama, a law student and member of Campaigners for Inclusion. “Any law without punitive action will not work in this country,” she says.  

Let’s examine the differences between the Disability Convention and the present PWD Act to see why such passionate pleas to repeal this law are coming from all quarters.  

Purpose  

It is clear from the objectives of the Convention that civil and political rights and economic, social, and cultural rights stand on the same footing and that the state must make efforts to realise both. The PWD Act barely provides for civil and political rights and the amendments proposed by the MOSJE, too, neglect these rights.  

Construction of disability

The PWD Act adopts a narrow definition of disability and confines it to “blindness; low vision; leprosy-cured; hearing impairment; locomotor disability; mental retardation; and mental illness”. As opposed to this, the Disability Convention recognises that “disability is an evolving concept” and avoids listing specific conditions and severities and broadly casts “persons with disabilities” to “include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”  

Foundational principles (Article 3)

The core human rights principles stated in Article 3 of the Disability Convention are respect for inherent dignity and individual autonomy; non-discrimination, full and effective participation and inclusion; respect for difference; equality of opportunity; accessibility, gender equality; respect for the evolving capacity of children with disabilities and their right to preserve their identities.” These general principles have been well etched in several provisions of the Convention.  

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