February 12, 2014 2:33:44 am
By: Jayna Kothari
Rights of Persons with Disabilities Bill is not a meaningful improvement on its precursor.
There has been serious opposition from the disability rights movement to the current draft of the Rights of Persons with Disabilities Bill (RPD bill) and the government’s resolve to pass it during the ongoing session of Parliament. I will focus on two main problems with the bill, though this does not mean that it is acceptable in other respects.
The two concerns that I highlight, however, go to the root of the issue of equal protection and full participation of persons with disabilities.
The main drawback of the Persons with the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act (PWD act), 1995, which is currently in force, is that it defines a person with disability as someone who has 40 per cent or more of any of the seven enumerated disabilities — blindness, low vision, hearing impairment, locomotor disability, mental illness, mental retardation and leprosy. This definition stems from a medical model of disability and is highly problematic.
First, it does not recognise that disability is not just about impairment but about the manner in which the social environment disables individuals. Second, you cannot always diagnose whether an individual has “40 per cent” of a disability — this is especially true for intellectual and psycho-social disabilities. Third, it leaves people with disabilities at the mercy of the state because they have to obtain a disability certificate verifying that they are more than 40 per cent disabled. The new RPD bill unfortunately reproduces this medical model of disability in its definition.
The world over, most progressive laws have adopted definitions of disability that stem from social models that define it as any long-term physical, mental, intellectual or sensory impairment, which in interaction with various other barriers may hinder participation in society on an equal footing with others. The RPD bill adopts this definition selectively — for clauses related to non-discrimination — but where positive benefits are involved, such as reservation in education and employment, a medical definition of “benchmark disabilities” is used. The RPD bill has expanded the number of benchmark disabilities from seven to 18 and has retained the 40 per cent requirement.
These benchmark disabilities include learning disabilities, multiple sclerosis and thalassemia, among others. The benefits under the RPD bill, such as the right to free education up to 18 years of age, provision of reasonable accommodation, 5 per cent reservation of seats in higher education institutions and government jobs, schemes for the allotment of land at concessional rates, and other affirmative action programmes are only provided to persons with benchmark disabilities.
In 1995, when the PWD act was drafted, only seven specific disabilities were listed under it. Now, after 18 years of it being in force, we have realised that there are several others, such as learning disabilities, HIV/AIDS, even dwarfism, which have been recognised as disabilities by Indian courts. If we limit the legal definition to 18 benchmark disabilities, we will eventually be confronted with the same situation as new disabilities are recognised thanks to medical developments.
Even under the RPD bill, HIV/AIDS has not been included as a benchmark disability. Benefits under the bill should not be restricted only to persons with benchmark disabilities. If the bill is passed in this form, the law would have failed to internalise the key message of the disability rights movement — that disability has to be understood from the perspective of a social model and that there cannot be discrimination amongst persons with disabilities.
The other loophole in the RPD bill is that it does not provide for reservation of jobs in the private sector. The bill, which was submitted by the committee set up to draft it had specifically included job reservation in both public and private establishments. Even in the National Federation for the Blind vs Union of India and Others judgment, the Supreme Court, relying on an earlier version of the draft RPD bill, observed that the legislature should ensure 5 per cent representation of persons with disabilities in both the public and private sectors.
The RPD bill, however, does not contain any such provision and merely increases the percentage of reservation in government establishments from 3 per cent, which is mandated in the PWD act, to 5 per cent. Presently, even the 3 per cent reservation in public sector jobs is not being implemented. Increasing it to 5 per cent is merely lip service.
Job reservation in the private sector is non-negotiable if we are to guarantee true equality for persons with disabilities. Employment is one of the main ways in which persons with disabilities can fully participate in society. This will only happen if we also mandate reservation in the private sector. This will, in turn, create demand for accessible transport, roads and reasonable accommodation. Unless these two provisions are seriously reconsidered, the RPD bill will just be old wine in a new bottle.
The writer is with the Centre for Law and Policy Research, Bangalore
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