Consensus Paper

Part IV: Equal Recognition before the Law and Civil Social and Political Participation

This part of the new law would elaborate on the legal capacity of persons with disabilities. The question of legal capacity has relevance for all rights included in the new law but especially critical to civil-political rights. This is because whilst provision for social-economic rights has often been made without the participation of stakeholders (both persons with disability and non disabled persons), civil political rights have been the domain of the particular individual and hence denial of legal capacity means a certain denial of civil-political rights.

Equal Recognition before the Law

The legal capacity sub-group diagrammatically presented the overarching significance of the recognition of legal capacity to all other rights recognized in the new law. Keeping this presentation in view the legal consultants offered the choice of three kinds of models to the sub-group, which could be constructed to recognize legal capacity in the new law.

  • Minimalist which recognizes legal capacity
  • Proactive where processes and programs are built into the law by which the deprivation is dismantled and if required support is constructed.
  • Hybrid Model which is all of the above but the proportion of the proactive component is lower than provided in the Pro-active model.

The advice to the sub-group was to go for the third model and if required to adopt a twin-track of the second. In order to enable the Committee to decide whether this twin-track will be within the statute or outside it, a research team in the legal consultant's office is working further on the strengths and weaknesses of each approach. This enquiry is especially required because of some of the questions which were raised in the 29th Sep to 1st Oct meeting.

At the moment, on the basis of the research already undertaken, it can be said that the minimalist model is an absolute necessity in the law; this is because without recognizing the legal capacity of persons with disabilities the legal guaranteeing of other rights holds no meaning. The pro-active model of legal capacity is especially suitable for those persons with disabilities who have been for long denied legal capacity and are still in a state of deprivation whether because they are living in institutions or because they are subsisting under systems of plenary guardianship. For these persons with disabilities just recognition of legal capacity in the law may not be enough to result in their exercising legal capacity in fact; and more pro-active measures of establishing support may be required. For the vast majority of persons with disabilities recognition of legal capacity along with an authority which provides redress when capacity is denied may be sufficient. This authority could be pro-active in dismantling structural barriers but reactive in assisting individual difficulties. This means that for the structural barriers the authority would not await a complaint to initiate redress but for individual complaints the aggrieved individual will need to approach the authority. The third model is very similar to the model under which the non disabled function. For non disabled persons also, the second model is only utilized for those persons with disabilities who are economically, socially or educationally disadvantaged. The rest are presumed to be able to assert their rights. If the second model is made the predominant model then the problem is that all persons with disabilities would be seen to require support to exercise their legal capacity. The new law may thus inadvertently provide space to the very paternalism from which it is seeking to rescue persons with disabilities.

The sub-group decided that it would wish to defer consideration of the matter till the nature of the Authorities established in the Act was settled. The nature of the queries surrounding Authorities have already been outlined above. The Committee would need to take a decision on the manner in which legal capacity should be inducted in the new law in tandem with determining which and what kind of Authorities will be inducted in the new law.

Civil- Political Rights

This part of the law is the absolutely new segment of the proposed legislation. It is also important to note that whilst civil-political rights are recognized in Constitutions, legislations are primarily used to evolve procedures by which these rights can be deprived. Insofar as the new disability law is recognizing the civil-political rights of persons with disabilities in the new law, it is undertaking an unprecedented exercise. The unprecedented nature of the exercise is further enhanced by the fact that the proposed chapter shall not just prohibit appropriate governments from depriving the rights of persons with disabilities; but will also obligate them to launch appropriate programs to promote the realization of these rights.

The nature of these positive programs has been detailed out by the CPR sub-group. Since as a rule the legal recognition of civil-political rights is limited to either prohibiting its deprivation (for example the absolute prohibition of torture) or to prescribe a procedure by which these rights can be denied (for example the elaborate provisions which subsist in legislations on how an arrest has to be undertaken). In order to strengthen the justification for the induction of these positive obligations in the law the sub-group members shall provide empirical data on the necessity of the positive obligations by consulting with civil society or otherwise. The legal consultant's team has also been researching the existing jurisprudence on these rights to see how these can be analogically extended to persons with disabilities. The till date progress of this research will be presented to the Committee on the 19th -20th Oct meeting.

The work undertaken by the sub-group was originally disaggregated under the heads of changes required in policy; new law; other laws; programs mandatory; programs optional; work to done on awareness raising, accessibility and capacity building. This document is available at http://www.disabilitystudiesnalsar.org/Minutes_CPR.php. For this paper we have only reproduced the provisions relating to what is required in the law, in other laws and in mandatory programs. The suggestions relating to awareness raising; capacity building and accessibility will be addressed in that part of the law and have been illustratively referred to in those segments of this paper.

Also the rights of life liberty and access to justice have been further disaggregated in some detail to demonstrate how the aspirations expressed by the sub-group will be converted into law.