Consensus Paper

Equality and Non-discrimination

This right would be amongst the overarching pillars of the new Act. There was consensus in the sub-groups on the necessity of this provision. The legal consultant has been asked to find appropriate legal language to induct the following principles into the law. It was also decided that the Committee should recommend a constitutional amendment to include disability amongst the prohibited grounds of discrimination.

The following principles shall find inclusion in the legal provisions relating to Equality and Non Discrimination

  • Explicit prohibition of discrimination on the basis of disability
  • Right to a Equal and Effective Protection against discrimination on all grounds
  • Right to reasonable Accommodation
  • All measures necessary to accelerate or achieve de facto equality would not be considered discrimination
  • Recognition of multiple discrimination especially discrimination on grounds of gender would be in furtherance of the right to equality.

The matter is also under research and the till date progress of research will be presented in the 19th-20th Oct meeting to the Committee.

Part III: Authorities

The Persons with Disabilities Act, 1995 establishes a Central and State Co-ordination Committees along with Executive Committees both at the Central and State level. The 1995 Act also provides for a Central and State Commissioner for Disabilities. The sub group on Authorities in its early meetings evaluated the existing authorities in order to assess the extent to which these authorities could be utilized to fulfill the functions under the New Act. Whilst the body of the opinion in the sub group felt that the CCPD and SCPD could with some up gradation perform the jobs envisaged in the New Law, there were several others who expressed strong reservations against this opinion.

The matter was examined afresh in the meeting between the sub-group and the Legal Consultant wherein it was underscored that the purpose of the New Law and the various outcomes expected from the legislation the purpose to be fulfilled by the statute would be critical to determine the kind of authority or authorities which could best perform this function.

In line with the purpose clause of the UNCRPD it was agreed that the overarching purpose of the Act was to promote, protect and ensure the full rights of persons with disabilities on an equal basis with others. This promotion, protection and guaranteeing would need to be done in relation to all rights guaranteed in the Act such as the rights of education, employment, social security, or accessibility. The Act would need to both provide for non-discrimination and economic empowerment of persons with disabilities. It was also recognized that there was need to establish suitable professional services and support systems for the realization of the rights recognized in the UNCRPD and the new Act.

After extensive discussion on the strengths and weaknesses of the existing authorities, it was decided that whilst the existing authorities had the strength of being accessible to persons with disabilities, they could not perform the multifarious tasks required to be performed in the new Act. Consequently the new law should establish a National Authority to raise awareness and undertake sensitization; evolve policy, assist co-ordination and monitor implementation; and undertake regulatory responsibilities. The first level adjudication of grievances could continue to remain with the CCPD and SCPD with adequate infrastructure and financial support. However if redress could not be obtained with the intervention of the SCPD/CCPD then other procedures of redress would need to be built into the Act. The composition of the Authority and its functioning must give representation to the voice of persons with disabilities.

The Authority was thus visualized as a hybrid between a commission; a council and a regulatory body. It was suggested that the design of the United Kingdom Equal Opportunity Commission and the Canadian Disability Rights Commission could be examined in order to assess its suitability for the establishment of the Disability Rights Authority under the Act. Since the discussion on Appropriate Authority had necessarily to happen after the substantive content of the rights guaranteed under the statute was settled, the Legal Consultant was asked to explore various options and present the same to the Full Committee. On the strength of the mandate given by the sub group, we are presenting the following Disability Rights Authority as work in progress.

  • Central and State Commissioners of Disability as full fledged quasi-judicial authorities whose orders are binding.
  • Certifying boards all over the country
  • National Institute of Universal Design- research and development entity whose work will feed into the regulatory authority [ Detailed in the Accessibility Chapter]
  • Education Commission- Transitory Body which imagines curricular reform from the standpoint of persons with disabilities. [Elaborated upon in the Education Chapter]

After the civil society consultations on 29th Sep to 1st Oct the following further questions have arisen:

  1. Should the Committee include a Disability Rights Tribunal in this law?
  2. Will the Authority have a State and/or District tier? If not will it not be too distant from the lives of persons with disabilities?
  3. How does the proposed Disability Rights Authority interact with other Authorities existing in other statutes relating to disability rights such as the National Trust as well as the Rehabilitation Council of India. The National Trust also has its network of local level committees on the ground. So the question before the Committee would be:
    • Should these existing authorities be merged into the proposed Disability Rights Authority?
    • Should they be inducted into the new law as additional Authorities along with the proposed Disability Rights Authority?
    • Or should a mechanism of cooperation and co-ordination be built into the new law?

The strengths and weaknesses of each of these approaches is being presently researched and the till then reached findings shall be presented in 19th -20th Oct meeting to the Committee.