Rights of The Disabled: Little Spirit, Mostly Word

The winter session of the Parliament has been a complete washout with little business being carried out. However, it is worth appreciating the unanimous coming together of Members of the Lower and the Upper House, for the passage of the Rights of Persons with Disability (RPD) Bill, 2014.

The Bill was first introduced in February 2014 in the Rajya Sabha by then Minister of Social Justice and Empowerment – Mallikarjun Kharge. It repeals the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Consisting of 119 amendments the Bill was introduced to be aligned with and fulfil the objectives of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) - an international treaty ratified by India in October 2007. Thawar Chand Gehlot - the present Minister of Social Justice and Empowerment has incorporated 59 recommendations made by the Parliamentary Standing Committee in its report, in the final Bill which was passed in the Lok Sabha on December 16.

While the passage of the Bill has been hailed as ‘historic’ by some disability groups and several MPs’, the opinion among disability rights activists and organisations is split; with one group celebrating its passage, while the others are of the opinion that it is not in line with the International Convention.

One of the several concerns for activist and organisations is Section 3(3) of the Bill, as per which ‘No person with disability shall be discriminated on the grounds of disability, unless it is shown that the impugned act or omission is appropriate to achieve a legitimate aim.’ Muralidharan, of the National Platform for the Rights of the Disabled (NPRD) told the Telegraph that the provision gives "unfettered power" to the implementing authorities to "discriminate against persons with disabilities on the pretext of serving a legitimate aim".

It is essential to provide here, the context of the Bill vis – a – vis the UNCRPD in order to understand why the opinion is split. One of the several objectives of the UNCRPD is to bring about a shift in the paradigm within the discourse on disability. It is aimed at moving away from the previous models of charity and medicine; towards a rights based approach to empower persons with disabilities (PWDs) to live with dignity and be included in mainstream society. While the Bill does make provisions for the empowerment of PWDs, the problem lies in the very basics of how the Bill has been discussed, drafted and the perspective from which it has been approached. A policy or law cannot be successfully implemented and progressively improved, until all stakeholders involved are consulted and decision makers themselves are well informed.

The approach and understanding of the decision makers towards the problem/ situation becomes of utmost importance, since it is what will decide the nature of the policy, the scope and quality of inclusivity in the process – something that would be ideal for all policies pertaining to social justice, empowerment and welfare.

Having said that, one of the fundamental reasons why an empowering and rights based approach towards disability is far from becoming ground reality is because our policy and decision makers themselves belong to the charity school of thought, like most in India. The recent change of terminology by the Government from ‘viklaang’ (disabled) to ‘divyaan’ (divine) is in fact the best example of how poor the discourse on disability in the country is and how little our understanding of disabilities has evolved since the middle ages. For those who followed the debate in both houses or read the verbatim of the proceedings, it can be observed that the words associated with or used for PWD are ‘unfortunate’, ‘less fortunate’, ‘handicapped’, ‘disadvantaged’, or ‘condemned.’

The very usage of these terms is a reflection of how even policy makers with all their good will, look upon PWDs as subjects of charity, rather than as individuals who are equal. Apart from member of Lok Sabha Tathagat Sathpathy (BJD) no MP from either of the Houses spoke about the need to actively work towards ‘mainstreaming’ and ‘including’ PWDs in society– one of the primary objectives of the UNCRPD.

With regard to specific disabilities, references in both Houses during the debates were made mostly to ‘physical handicap’, ‘locomotor disability’, ‘schizophrenia’, ‘psychosis’, ‘hyper child’ – there was no mention of intellectual disabilities and neurological disorders which are more than often simply put into the same box as ‘mental illness.’ The Bill makes no specific provisions to ensure the empowerment and protection of the rights of persons with intellectual disabilities, cognitive and neurological disorders; and other psycho – social disabilities. The right to self determination – which is widely violated in the case of individuals with intellectual disabilities, cognitive and neurological disorders; and other psycho – social disabilities remains unaddressed. Instead more focus lies on the issue of ‘guardianship’ rather than the means and mechanisms to ensure the right to self – determination.

Several MP’s spoke in favour of the provisions for making public spaces accessible, however, no one - including the concerned minister spoke about the need to provide ‘reasonable accommodation’, an important principle of UNCRPD to ensure inclusivity. Largely all the points made during both the debates were around the need to build infrastructure and increase the reservation by one percent.

The Bill makes provisions for the creation of various committees and commissions at various level, setting up monitoring mechanisms and making buildings more accessible, but fails to address socio – cultural ground realities. In doing so it overlooks serious problems of stigma, stereotyping and discrimination.

The failure to acknowledge that the problems faced by PWDs are not only about physical infrastructure, but also about overcoming social barriers – illustrate the failure to understand the everyday lived reality of a person with disability as someone thinking and feeling. With regard to reservation – while almost all leaders asked for an increase in the percentage of reservation and even an amendment about the same was moved by K.C Venugopal (INC) and Kavitha Kalvakunthala (TRS) in Lok Sabha at the time of voting the House divided at 43 Ayes and 121 Noes.

Such provisions are welcome with regard to the right to livelihood and provide scope for equal rights and participation, but until opportunities free of physical and social barriers, stigma and discrimination are created for PWDs mainstreaming them into employment spaces is only going to remain a provision on paper.

It is evident from these instances that the issues of disability are poorly understood and charity based. In order to have a more effective policy which is rooted in the framework of the UNCRPD what is first and foremost required is for the policy makers to approach disability from a rights based perspective rather than seeing persons with disabilities as ‘objects’ of charity or ‘divyang’ (divine).

The UNCRPD slogan of ‘nothing about us without us’ is another important part of the convention, which emphases on the need for participatory processes in which the voices of all concerned stakeholders are heard. However, the consultative process for policy making in India has often overlooked PWDs; while there may be few representatives, a large number of disabilities remain unrepresented. Members of Lok Sabha – Dr. Sugata Roy (AITMC) and Tathagat Sathpaty (BJD) – among others raised the important issue of representation and including MPs and MLAs in state and district level committees, no one spoke of the need to have a PWD on the committee too- one of the many other examples of why the new Bill seems to be in line with the UNCRPD only in word and not really spirit.

The Bill no doubt is welcome and far more progressive than the law it repeals, however, there is huge ground to cover before we move towards a society that is more inclusive, empathetic and respects the rights of PWDs. Policy consultations must begin from the bottom and moved to the top, but in order to create larger and more successful change, the change in perspective and understanding has to start at the top and trickle down to the bottom.