New disabilities bill draws on the language of justice, improves on the current act.
The wait for the passage of the Rights of Persons with Disabilities (RPD) bill has been long and excruciating. Though India ratified the United Nations Convention on the Rights of Persons with Disabilities in 2007, it has fulfilled its obligation only now. Though the mood in the disability sector is one of celebration, some feel that their concerns have not been adequately addressed.
It has been over two months since Mahesh Gera applied for a disability certificate for his five-year old son Parth at the LNJP Hospital in Delhi. Parth has impaired speech and some mobility issues. The process for school admissions has begun and he is not able to apply in any school under the disadvantaged category for lack of such a certificate. Certification is a major issue for the vast majority of the disabled people. A disability certificate is a basic document for any entitlement. Even for registering a complaint under the Persons with Disabilities Act, a person requires a disability certificate. The 2015-16 annual report of the Department of Empowerment of Persons with Disabilities reveals that only 49.5 per cent of the disabled population identified by the 2011 census, have been issued certificates as of August 31, 2015. The earlier act recognised only seven conditions for a disability certificate. What will happen when 21 conditions will have to be certified, is anybody’s guess.
What, however, makes people like Waris happy is that a certificate issued at one place will be valid throughout the country. Some time back when he landed in Delhi, Waris was shocked to find that the certificate issued in Bihar was not valid here.
For people like Ira Singhal, for whom discrimination was not something new, what happened when she cleared the civil services examination in 2010 must have been shocking. She was denied a posting until she topped the exams in 2014. Singhal was not alone. Nine civil services aspirants who had cleared the exams — and were armed with favourable orders from the courts — were denied induction. It took two years after a representation to the then PM, Manmohan Singh, and several follow-ups, for seven of them to get inducted.
Lack of penal provisions for non-compliance of the 1995 act gave violators a free rein. The current legislation seeks to address this. Though the provision for a jail term has been, through an amendment, reduced to a fine of up to Rs 10,000 for the first violation and not “less than fifty thousand rupees but which may extend to five lakh” for subsequent contraventions, the fines should be deterrents.
Another dilution pertains to the provision for reservation in employment. The original bill provided for five per cent reservation, that has now been reduced to four per cent. The provision for national and state commissions for persons with disabilities has also been discarded. A major concern with regard to the bill was clause 3(3) which states, “No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is appropriate to achieve a legitimate aim.” It was feared that this clause will give unfettered power to the implementing agencies to discriminate against persons with disabilities, on the pretext of serving a “legitimate aim”. In response to amendments moved by the CPM’s Sitaram Yechury and others in the Rajya Sabha the minister for social justice and empowerment, Thawar Chand Gehlot, has assured that provisions will be made to ensure that this clause is not misused. The minister also assured that the provision with regard to reservation in employment will be ensured in the Act against the total number of vacancies in the cadre strength and not against identified posts. CPM MPs had moved amendments to delete the words “posts meant to be filled by persons with benchmark disabilities”. A similar provision in the 1995 Act was misinterpreted by governments to restrict the quota to identified posts only, forcing the Supreme Court to intervene.
Various other amendments have, however, strengthened the bill. Private entities have now been brought within the purview of the definition of “establishment”. There are specific provisions for women and children with disabilities. Despite its inadequacies, the current legislation is a big advance over the 1995 Act and brings in the rights based perspective. However, the battle for its implementation has to begin in earnest.
The writer is secretary, National Platform for the Rights of the Disabled, in Delhi.
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| What will happen when 21 conditions will have to be certified, is anybody’s guess. |
It has been over two months since Mahesh Gera applied for a disability certificate for his five-year old son Parth at the LNJP Hospital in Delhi. Parth has impaired speech and some mobility issues. The process for school admissions has begun and he is not able to apply in any school under the disadvantaged category for lack of such a certificate. Certification is a major issue for the vast majority of the disabled people. A disability certificate is a basic document for any entitlement. Even for registering a complaint under the Persons with Disabilities Act, a person requires a disability certificate. The 2015-16 annual report of the Department of Empowerment of Persons with Disabilities reveals that only 49.5 per cent of the disabled population identified by the 2011 census, have been issued certificates as of August 31, 2015. The earlier act recognised only seven conditions for a disability certificate. What will happen when 21 conditions will have to be certified, is anybody’s guess.
What, however, makes people like Waris happy is that a certificate issued at one place will be valid throughout the country. Some time back when he landed in Delhi, Waris was shocked to find that the certificate issued in Bihar was not valid here.
For people like Ira Singhal, for whom discrimination was not something new, what happened when she cleared the civil services examination in 2010 must have been shocking. She was denied a posting until she topped the exams in 2014. Singhal was not alone. Nine civil services aspirants who had cleared the exams — and were armed with favourable orders from the courts — were denied induction. It took two years after a representation to the then PM, Manmohan Singh, and several follow-ups, for seven of them to get inducted.
Lack of penal provisions for non-compliance of the 1995 act gave violators a free rein. The current legislation seeks to address this. Though the provision for a jail term has been, through an amendment, reduced to a fine of up to Rs 10,000 for the first violation and not “less than fifty thousand rupees but which may extend to five lakh” for subsequent contraventions, the fines should be deterrents.
Another dilution pertains to the provision for reservation in employment. The original bill provided for five per cent reservation, that has now been reduced to four per cent. The provision for national and state commissions for persons with disabilities has also been discarded. A major concern with regard to the bill was clause 3(3) which states, “No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is appropriate to achieve a legitimate aim.” It was feared that this clause will give unfettered power to the implementing agencies to discriminate against persons with disabilities, on the pretext of serving a “legitimate aim”. In response to amendments moved by the CPM’s Sitaram Yechury and others in the Rajya Sabha the minister for social justice and empowerment, Thawar Chand Gehlot, has assured that provisions will be made to ensure that this clause is not misused. The minister also assured that the provision with regard to reservation in employment will be ensured in the Act against the total number of vacancies in the cadre strength and not against identified posts. CPM MPs had moved amendments to delete the words “posts meant to be filled by persons with benchmark disabilities”. A similar provision in the 1995 Act was misinterpreted by governments to restrict the quota to identified posts only, forcing the Supreme Court to intervene.
Various other amendments have, however, strengthened the bill. Private entities have now been brought within the purview of the definition of “establishment”. There are specific provisions for women and children with disabilities. Despite its inadequacies, the current legislation is a big advance over the 1995 Act and brings in the rights based perspective. However, the battle for its implementation has to begin in earnest.
The writer is secretary, National Platform for the Rights of the Disabled, in Delhi.
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