The Ministry of Social Justice and Empowerment, by notification F.No. 16-38/2006-DD.III dated 30th April 2010, constituted a Committee chaired by Dr Sudha Kaul with members representing persons with disabilities, NGO’s and experts from the disability sector, to draft a new legislation to replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“PwD Act”). The Committee was advised that it could invite other experts, and representatives of other Ministries/ State Governments/ Autonomous bodies to participate in its deliberations, as Special Invitees. On the demand from a certain section of the Disability Rights Group, two more persons with disabilities were inducted in the Committee as Member and a Special invitee, to ensure representation across all disability groups (List of Committee members - Annexure 1).
On the Committee’s recommendation, the Centre for Disability Studies, NALSAR University of Law Hyderabad was appointed as Legal Consultants to the Committee on the 2nd of August 2010.
During the course of the Committee’s deliberations three committee members (Ms Syamala, Shri Rajiv Rajan and Ms Bhargavi Davar) sent their resignations to the Ministry in January 2011 due to differences in perception of the Committee’s work and mandate given to it by the MSJE. Their resignations were accepted by the Ministry on 25th January 2011. Their contribution to the discussions is gratefully acknowledged by the Committee.
While drafting the new legislation, the Committee was directed to keep the following in view:-
i. To ensure that the New Law should be in harmonisation with the UNCRPD
ii. To keep in view the provisions of the Constitution and other laws, and avoid duplication of provisions already existing in them
iii. To give the Financial, logistical and administrative feasibility of the proposed provisions
iv. To give the financial implications whether recurring or non-recurring on the Central Government, State Government. or other Local Authorities for implementing the new statute
The Committee was initially asked to submit the draft of the new legislation by 31st August, 2010. Due to administrative delays at the MSJE on the appointment of the Legal Consultant, which came about only on 2nd August, the Committee had to seek extension till the end of December 2010. As work progressed, the Committee felt a further extension was necessary, to fulfil its obligation and the mandate laid down by the UNCRPD, and to have direct consultations with civil society. A further extension was given till 31st March 2011.The Disability sector then demanded that there be more widespread State level consultations across the country. The Committee, in order to imbibe the true spirit of participation of the disability sector, supported this demand and the Ministry gave a further extension till 30th June 2011.
The Committee held 14 meetings that included a National Consultation with Civil Society representatives and consultations with Legal Experts. It also held State Consultations in 28 States and two union territories across the country to seek the views of Stakeholders. Details of these are in given in the following
The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) has undertaken the obligation to ensure and promote the full realization of all human rights and fundamental freedoms for all Persons with Disabilities without discrimination of any kind on the basis of disability. In fulfilment of this international commitment, India is obligated to enact suitable legislation in furtherance of the rights recognized in the UN Convention.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995 has been on the statute book for nearly 15 years. This Act has been the basis of a largely empowering jurisprudence on the Rights of Persons with Disabilities. Whilst the need to retain the empowering jurisprudence is unequivocally acknowledged, it is also recognized that the present Act, either does not incorporate a number of rights recognized in the UNCRPD or the recognized rights are not in total harmony with the principles of the Convention.
In formulation of this Bill the Committee has been guided by the basic principles mentioned in Article 3 of the UNCRPD .These are:
The CRPD has introduced a paradigm shift in the discourse relating to persons with disabilities. The new paradigm is based on the presumption of legal capacity, equality and dignity. These are the basic pillars on which the present Disability Bill has been formulated, recognizing all rights of all persons with disabilities. This statute recognizes that persons with disabilities are an integral part of human diversity, enriching it with their vision, their experience & their creativity. The statute seeks to provide a vehicle that ensures participation in society on an equal basis with others and seeks an equality of outcome by recognizing multiple discrimination faced by women and children.
The statute also recognizes that for persons with disabilities needing high support and for those in aggravated circumstances, pro-active efforts would be required to get them their just due.
While formulating the statute the Committee has taken a pragmatic approach and kept in view the specific requirements of persons with disabilities in India.
The spirit of inclusiveness is clearly seen in the way we have taken these discussions forward in the process of formulating the new legislation. This Bill has been put together by the Committee through a process of dialogue and deliberation with the Disability sector, through group discussions with disability rights activists, members of civil society, and widespread State Level consultations across the country and deliberations with legal consultants.
The Chair at the first meeting, laid down certain guidelines for the Committee to follow in order to ensure that New Law is formulated within the framework of the UN CRPD, taking a Rights Based approach and the spirit of participation from the disability sector. The following process was approved by the Committee:
In order to ensure that stakeholders from different disability groups & members of civil society have equal access to the discussions of the Committee, the minutes of meetings were posted on the MSJE website as well as on the NALSAR website. Copies of working drafts, as they are formulated, were in the public domain (circulation through email & website) and comments from different disability groups were received and processed on an ongoing basis by the Committee.
A sub-group was constituted to draft the Financial Implications of the new Bill. The group studied the list of provisions under the new draft. Detailed Financial Implications of the Bill are given in a separate Memorandum.
Whilst every effort was made to study the various representations made to the Committee, evidently all the recommendations do not find a place in the Bill The two most common reasons for this omission are that: the recommendations are constitutionally impermissible; or are better incorporated as rule, regulation, scheme or programme.
A Legislation is not born in a legal vacuum and it requires a range of executive measures for its effective implementation. The Committee wishes to make the following recommendations to the Government of India through the Ministry of Social Justice and Empowerment.
Persons with disabilities were in the contemplation of the makers of the Constitution only as recipients of charity. This outlook continued to occupy the field till as late as 1992 when the 73rd amendment to the Constitution was made. It is important therefore that the Constitution of the country refers to persons with disabilities as full citizens who cannot be discriminated against on grounds of disability. It is suggested that the following amendments may be effected in the Constitution in order to achieve this purpose.
In order to ensure that the vision of this legislation is not fractured, it is important that the National Trust Act, the Rehabilitation Council of India Act and the Mental Health Act are in harmony with this statute and the CRPD. It is important that the amendment of those legislations be undertaken along with the enactment of this legislation.
The prejudicial disability related references in all other laws should be weeded out and the Disability Rights approach should inform all legislations addressing the issue of disability.
All stakeholders involved in this debate: Disability activists/ Parent Groups/ NGO’s in the disability sector /Ministry of Social Justice / RCI /National Trust/ National Institutes/Disability Commissioners across the country and other Government Departments and Members of civil society , need to be commended and acknowledged for their contribution to this exercise in formulating the law .
We would like to thank Hon’ble Minister Shri Mukul Wasnik for his support to the Committee and his keen interest in the Disability Sector. We would also like to thank Shri K M Acharya, Secretary MSJE for his guidance to the Committee and all the Ministry officials who helped the Committee in administrative arrangements; in particular we thank Shri Sunil Patttanayak Director (DD) MSJE for his cooperation and constant support to the Committee and other staff in his department. Our thanks to Dr.Dharmender Kumar Director IPH and his staff for administrative support. Our appreciation to Maj. H P S Ahluwlaia and the staff at the SCIC for providing the venue and making excellent arrangements for holding Committee meetings. We would especially like to record our appreciation to Dr. Amita Dhanda and her legal team for their legal expertise in guiding the Committee in formulating this statute.
Conclusion
The journey in making this new Legislation has been a humbling as well as an exhilarating experience. This is the first time that such a widespread exercise in awareness raising in formulating a statute, has been done in India. The Committee is deeply indebted to all the Activists and concerned civil society, who with their perseverance, ensured that this statute be formulated truly based on the principle of “nothing about us without us”. There have been passionate debates and many disagreements along this long journey .The Committee in all sincerity has endeavoured to encapsulate that vision, passion as well as pragmatism in the statute. In the making of this Law we have constantly drawn upon what worked and what did not work in the old law. What did not work has been changed, but what worked and has helped persons with disabilities has been retained.
In the World Report on Disability just released by W.H.O the famous British theoretical physicist Stephen Hawking, who has amyotrophic lateral sclerosis (ALS) has stated in its Foreword-
“We have a moral duty to remove the barriers to participation for people with disabilities, and to invest sufficient funding and expertise to unlock their vast potential. It is my hope this century will mark a turning point for inclusion of people with disabilities in the lives of their societies”
This Law we hope, will usher a new era of social economic and political participation of persons with disabilities. This is a path breaking step for us and we hope that India can show a way forward to many countries around the world.
For and on behalf of the Committee
Dr Sudha Kaul Chairperson New Delhi, 30 June 2011Date: 30/04/2010
Office Memorandum
Sub: Constitution of a Committee to draft a new legislation to replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“PwD Act”).
The PwD Act, 1995, has now been in force for over 14 years. Keeping in view the experience of its working over this period, and the need to harmonize its provisions with those of the United Nations Convention on the Rights for Persons with Disabilities (UNCRPD), 2008, and of other legislations on the subject, extensive consultations with various stakeholders including State Governments, NGOs and experts have been carried out. The Central Coordination Committee considered the matter in its meeting dated 21.07.2009, after which a comprehensive draft of amendments necessary in the Act was formulated and circulated to State Governments/Union Territories and concerned Union Ministries in September, 2009, for comments. The draft was also posted on the Ministry’s website seeking comments from the public.
In response to the above, comments have been received from several State Governments, Central Ministries, Non-Government Organizations and others.
A Committee is hereby constituted to examine the above responses and draft a new legislation to replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Composition of the above Committee shall be as follows:-
Members
Experts/NGO representatives-
Principal Secretaries In-charge of Disability in the State Governments-
Representatives of the following Central Ministries/Departments not below the rank of a Joint Secretary-
4. The Committee may invite other experts,
and representatives of other
Ministries/ State Governments/ Autonomous Bodies to participate in its
deliberations, as Special Invitees.
5. While drafting the new legislation, the Committee shall
keep the
following in view:-
6. The Committee will also make an assessment of the financial implications – recurring and non-recurring – of the draft legislation prepared by it for the (i) Central Government, (ii) State Governments, (iii) Local Authorities, and (iv) others on whom obligations may be cast.
7. The Committee will submit draft of the new legislation, as mentioned in para 2 above, by 31stAugust, 2010, together with the following-
8. TA/DA, as admissible under Central Government rules, will be paid to the non official members of the Committee for attending its meetings.
9.
Secretarial assistance to the Committee will be provided by Pandit
Deendayal Upadhyay Institute for the Physically Handicapped, New Delhi,
and expenses on the Committee’s work will also be borne by
the
said Institute.
Copy to:
Copy for information to-
Office Memorandum
Sub:
Constitution of a Committee to draft a new legislation to replace the
Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995 (“PwD Act”).
The Committee constituted to draft a new legislation to replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, vide OM of even no dated 30/04/2010, is reconstituted with the inclusion of the following members against para 3 (i) of the said OM in the category of experts/NGO representatives:
Copy to:
(Along with a copy of OM No 16-38/2006-DD.III dated 30/04/2010)
Copy for information to-
First Meeting-held on 10th June, 2010
List of Participants
Members
I Expert/NGO
representatives
II Representives of the State Governments
III Representatives of Central Ministries/Departments
IV Representative of the National Institute of Public Finance and Policy
Prof. Chandan Mukherjee, National Institute of Public Finance and Policy.
V Members, ex-officio
VI Member Secretary
Dr Arbind Prasad, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitees
Ministry of Social Justice & Empowerment
Second Meeting-held on 22nd July, 2010
List of Participants
Members
I Expert/NGO representatives
II Representives of the
State Governments
Dr. (Smt) Sudha Kaul
IV Members, ex-officio
V Member Secretary
Dr. Arbind Prasad, Joint Secretary (Disability Division), Ministry of
Social Justice & Empowerment.
Special Invitees
Ministry of Social
Justice & Empowerment
Third Meeting-held on
12th August, 2010
List of Participants
Dr. (Smt) Sudha Kaul, Chairperson
Members
I Expert/NGO representatives
II Representives of the State Governments
III Representatives of Central Ministries/Departments
IV Representative of the National Institute of Public Finance and Policy
Prof. Chandan Mukherjee, National Institute of Public Finance and Policy.
V Members, ex-officio
VI Member Secretary
Dr Arbind Prasad, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitees
Centre for Disability Studies, NALSAR University of Law ( Legal Consultant)
Ministry of Social Justice and Empowerment
Observers from Disability
Rights Group
Fourth Meeting-held from
29th Sep to 1st Oct 2010
List of Participants
Dr. (Smt) Sudha Kaul, Chairperson
Members
I Expert/NGO representatives
II Representives of the State Governments
Ms Mita Banerjee, Commissioner for PwDs, Govt. of West Bengal
III Representatives of Central Ministries/Departments
V Members, ex-officio
i) Smt Poonam Natarajan, Chairperson, National Trust
ii) Maj. Gen. Ian Cardozo, Rehabilitation Council of India (RCI)
iii) Shri T.D. Dhariyal- Representative of Chief Commissioner for Persons with Disabilities
VI Member Secretary
Dr Arbind Prasad, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitees
Ministry of Social Justice & Empowerment
NALSAR Team
List of participants from civil society
Fifth Meeting-held on 19th - 20th October, 2010
List of Participants
Dr. (Smt) Sudha Kaul, Chairperson
Members
I Expert/NGO representatives
II Members, ex-officio
III Member Secretary
Dr. Arbind Prasad, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitee
Shri A.S.Narayanan
Centre for Disability
Studies, NALSAR University of Law (Legal Consultant)
Sixth Meeting-held on 26th – 27th November, 2010
List of Participants
Dr. (Smt) Sudha Kaul, Chairperson
Members
I Expert/NGO representatives
II Representatives of State Governments
Smt Aditi Mehta, Principle Sec., Govt. of Rajasthan
III Representatives of Central Ministries/Departments
Dr. S.Y. Kothari, Addl. DGHS, M/o Health and Family Welfare
IV Representative of the National Institute of Public Finance and Policy
Prof. Rita Pandey, National Institute of Public Finance and Policy
V Members, ex-officio
VI Member Secretary
Dr Arbind Prasad, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitee
Shri A.S.Narayanan
Ministry of Social Justice & Empowerment
Legal Consultant
Seventh Meeting-held on 2ndJanuary, 2011
List of Participants
Dr. (Smt) Sudha Kau, Chairperson
Members
I Expert/NGO representatives
II Representatives of State Governments
Shri S.S Jawahar, Secretary, Government of Tamil Nadu, Department for Welfare of Differently Abled Persons.
IIIMembers, ex-officio
i) Smt Poonam Natarajan, Chairperson, National Trust
ii) Maj. Gen. Ian Cardozo, Rehabilitation Council of India (RCI)
IVMember Secretary
Ms Poornima Singh, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Ministry of Social Justice & Empowerment
Shri Sunil Kumar Pattanayak, Director, Disability Division, M/o SJ&E
Legal Consultant:
Dr. Amita Dhanda
8th Meeting-held on 13th
-14th January 2011
List of Participants
Dr. (Smt) Sudha Kaul, Chairperson
Members
I Expert/NGO representatives
II Representative of the National Institute of Public Finance and Policy
Prof. Rita Pandey, National Institute of Public Finance and Policy
III Members, ex-officio
IV Member Secretary
Ms Poornima Singh, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitee
Ms Rajeshwari, Programme Coordinator, ACMI
Ministry of Social Justice & Empowerment
Shri Sunil Kumar Pattanayak, Director, Disability Division, M/o SJ&E
Legal Consultant
9th Meeting-held from 31st January-2nd February 2011
List of Participants for 31st January
Dr. (Smt) Sudha Kaul, Chairperson
Members
I Expert/NGO representatives
II Representatives of State Governments
III Representative of the National Institute of Public Finance and Policy
Prof. Rita Pandey, National Institute of Public Finance and Policy
IV Members, ex-officio
V Member Secretary
Ms Poornima Singh, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitees
Ministry of Social Justice & Empowerment
Legal Consultant
List of Participants for
1st February, 2011
Dr. (Smt) Sudha Kaul, Chairperson
Members
I Expert/NGO representatives
II Representatives of State Governments
III Representative of the National Institute of Public Finance and Policy
Prof. Rita Pandey, National Institute of Public Finance and Policy
IV Members, ex-officio
V Member Secretary
Ms Poornima Singh, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitees
Ministry of Social Justice & Empowerment
Legal Consultant
List of Participants for 2nd February, 2011
Dr. (Smt) Sudha Kaul Chairperson
Members
I Expert/NGO representatives
II Representatives of State Governments
Shri B.R. Jadhav, Commissioner Persons with Disabilities, PuneIII Members, ex-officio
IV Member Secretary
Ms Poornima Singh, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitees
Legal Consultant :
10th Meeting- held on
23rd - 24th March, 2011
List of Participants
Dr. (Smt) Sudha Kaul, Chairperson
Members
I Expert/NGO representativesII Representatives of State Governments
Ms Mita Banerjee, Commissioner for PwDs, West Bengal
III Representatives of the Union Ministries
IV Representative of the National Institute of Public Finance and Policy
Prof. Rita Pandey, National Institute of Public Finance and Policy
V Members, ex-officio
Special Invitee
Shri S.N.Menon
Ministry of Social Justice & Empowerment
Legal Consultant
11th Meeting-held on 11th April, 2011
List of Participants
Dr. (Smt) Sudha Kaul, Chairperson
Members
I Expert/NGO representatives
II Representatives of State Governments
III Representatives of the Union Ministries
Shri Sharad Kumar Srivastava, US, DoPT
IV Members, ex-officio
V Member Secretary :
Shri Abhilaksh Likhi, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Ministry of Social Justice & Empowerment
Shri Sunil Kumar Pattanayak, Director, Disability Division, M/o SJ&E
Legal Consultant
12th Meeting-held on 21st& 22nd June
Dr. (Mrs) Sudha Kaul, Chairperson
Members
I Expert/NGO Representatives
II Representatives of State Governments
III Representatives of the Union Ministries
IV Members, ex officio
V Member Secretary
Shri Pankaj Joshi, Joint Secretary (Disability Division)
VI Special Invitees:
VII Ministry of Social Justice & Empowerment
Sunil Kumar Pattanayak, Director, Disability Division
VIII Legal Consultant
NATIONAL LEVEL CONSULTATION WITH Civil Society representatives FROM THE DISABILITY SECTOR held from 29th Sep to 1st Oct 2010
List of Participants
Dr. (Smt) Sudha Kaul Chairperson
Members
I Expert/NGO representatives
II Representives of the State Governments
Ms Mita Banerjee, Commissioner for PwDs, Govt. of West Bengal
III Representatives of Central Ministries/Departments
V Members, ex-officio
VI Member Secretary
Dr. Arbind Prasad, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitees:
Ministry of Social Justice & Empowerment
NALSAR Team
List of participants from civil society
State Level Consultations Held in the Following States
Sr. No | State | Date and Venue | Organised By | Participants | Translation |
1-2 | Assam & Arunachal Pradesh | 4th & 5th March, 2011NEDFI House, Guwahati | Mr. Arman Ali, CEO, Shishu Sarothi, Assam | 90 | Assamese Bengali |
3 | Meghalaya | 14th and 15th Mar 2011 Bethany Society, Shillong | Mr. Carmo Noronha, Executive Director Bethany Society |
85 | Garo Khasi |
4 | Nagaland | 9th March, 2011, Red Cross Building, Raj Bhawan Road, Kohima | Ms. K. Ela, Director Prodigals’ Home |
35 | |
5 | Manipur | 9th and 12th Mar 2011 State Guest House, Sanjenthong, Imphal |
Laishram Tokendra Ricky Re-Creation,Spastic Society of Manipur |
More than 70 | Manipuri |
6 | Mizoram | 12th Mar 2011 Hotel Clover, Chanmari Road, Aizawl | Ms Chhingpuii Secretary Spastic Society of Mizoram | More than 40 | |
7 | Tripura | 6th Mar 2011 Conference Hall of DDRC, ShymaliBazar, Agartala |
Dr. Sreelekha Ray, Executive Director Voluntary Health Association of Tripura |
117 | Hindi Bengali |
8 - 9 | NCR-Delhi-/ Haryana | 28 Feb, 1st and 2nd Mar 2011 Indian Spinal Injuries Centre, VasantKunj, New Delhi |
Dr. Uma Tuli Amar Jyoti Charitable Trust |
161 | Hindi |
10 | Karnataka | 15th Mar 2911 Mobility India, JP Nagar, Bengaluru |
Mrs. Ruma Banerjee Seva-in-action Association Bangalore Association for Persons with Disabilities – K.N. Gopinath, CBR Forum - Julien Peter, C. Mahesh, Nicholas Guia Rebelo, KARO, Karnataka State Federation of Persons with Disabilities - Paul Ramanathan |
District Level State level 700-1000 Through district facilitators 50 District facilitators were trained Small teams from 5 organizations met to consolidate the report |
Kannada |
11 | Orrisa | 10th & 11th March, 2011 Hotel Suryansh, Bhubaneshwar |
Ms. Sneha Mishra Board Member National Trust AAINA, Orissa State Commissioner Disability |
PWDs, Parents of CWDs, duty bearers, Govt.
officials, disability advocates and members of the community from all
the districts of Odisha 4 Zonal Consultations 50-80 in each (250) Advocates Consultation – 25 participants 1 students with disabilities consultation – 100 participants National Consultation – 130 participants |
Oriya |
12 | West Begal | 9th and 10th Mar 2011 MONOBITAN, Kolkata |
Ms. Sonali Nandi Indian Institute of Cerebral Palsy Kolkata Jointly organized by Office of the Commissioner (Disabilities), Government of West Bengal State Level Nodal Agency of National Trust (SNAC – West Bengal), Disability Activists Forum (DAF), West Bengal |
203 Disability Commission and SNAC organized meetings in Purba Midnapur (total participants 105), Burdwan (participants: 50), North Bengal(104) and DAF organized pre consultation meetings in Hooghly (participants: 40). In those meetings representatives from DPOs, parents’ associations, regular school teachers, doctors, cross disability NGOs & representatives from govt. sectors |
Bengali |
13-14 | Tamil Nadu & A&N Islands | 9th & 10th March, 2011 | Ms. Madhumati Achutan Spastics Society of Tamil Nadu Chennai |
Around 200 participants The State Commissioner, Director of NIEPMD, NIVH and many people with disabilities who had come from the rural places from Tamilnadu with visual impairment, orthopaedic handicaps, cerebral palsy and parents and professionals, associations of Persons with Disabilities |
Tamil |
15 | Kerala | 9th & 10th March, 2011 Hotel Geeth, Thiruvanantha-puram |
Ms. Sandhya, HRLN, Trivandrum Local organizing committee comprising members of National Association of Blind, Kerala Association for the Deaf, Vikalanga Sanghatana Ekopana Samithi and Human Rights Law Network Ms.Lida Jacob IAS, Dr.Pavithran (Director,NISH), Mr. Rana Prathap(CBR Forum, Kerala Network) ,Smt. Brahada ,Ms. Annie Syam and Dr.Syam. |
15 people from all the 14 districts of Kerala participated in the deliberations. Participants comprised of disabled people, Advocates, activists / experts working in the area of disability, DPO’s etc | Malayalam |
16 | Bihar | 13th & 14th March, 2011 J.M. Institute of Speech & Hearing Patna |
Ms. Manisha Kumari/Ms. Shikha J.M. Institute of Speech & Hearing Patna |
160 | Hindi |
17 | Jharkhand | 7th & 8th March, 2011 HPDC, Ranchi |
Ms. Alka Nizame Deepshikha Institute for Child Development & Mental Health Ranchi, Jharkhand |
75 participants of different levels ranging from Disabled activists of JVM representing 20 districts of Jharkhand, PWDs & WWD advocates from various parts of Jharkhand, representatives from NGOs working in the field of disability and Rehabilitation professionals from various Civil Society Organisations, representatives from media houses writing on disability and social issues. | Hindi |
18 | Uttar Pradesh | 1st March, 2011 | Mr. R.K. Dubey Chetna Lucknow |
109 | Hindi |
19 | Rajasthan | 4th & 5th March, 2011 OTS, JLN Marg, Jaipur |
Ms. Deepak Kalra Umang, Jaipur |
Total 206 1st day – 190 participants 2nd day – 30 participants- 86 N.G.O Members 64 D.P.o.S / Experts /concerned citizens ---- 23 Parents -- 33 Sp. educators --- |
Hindi |
20 - 23 |
Uttrakhand, Punjab, Himachal Pradesh and Chandigarh | 2nd and 3rd Mar 2011 NIVH, Rajpur Road, Dehradun |
Ms. Anuradha Mohit Director, NIVH Dehradun |
51 participants + 3 experts |
Hindi |
24 | Gujarat | 19th Feb 2011 & 5th March 2011 Blind People’s Association, Ahmedabad |
Mr. Bhushan Punani Blind People’s Association Ahmedabad |
1st day – around 150 participants 2nd day – 45 participants Stage 1: State Level Consultation on 19th February, 2011 with 146 participants Stage 2: District level consultation between 19th February to 5th March, 2011 Stage 3: State Level Consultation of District Level Coordinator on 5th March, 2011 |
Gujarati |
25 | Madhya Pradesh | 15th Feb 2011 State Nodal Agency Centre of the National Trust, Digdarshika, Bhopal |
Mr. Sumit Roy Digdarshika Punarvas Evam Anushandhan Sansthan Bhopal, Madhya Pradesh State Nodal Agency centre of the National Trust, AAKANKSHA, LSMH, Avanti Vihar, Raipur (C.G.) Supported by :- Disability Commissioner, Mr. Dipankar Banerjee, |
111 | Hindi |
26 | Chattisgarh | 5th Mar 2011 Babylon International, VIP Road, Raipur |
Dr. Meeta Mukherjee Aakanksha, Lion School for the Mentally Handicapped |
About 141 28 Govt. participants Social welfare department Health department/ DDRC/ Employment department 21 Persons with disabilities 43 NGOs Special Educators Rehabilitation Psychologist Parents Law students Media Local level committee Member of National Trust. |
Hindi |
27 | Maharashtra | 28th February & 1st March, 2011 | Mr. Ramakrishnan National Association for the Blind Mumbai |
114 Particiapnats Jidd Special School, Sindhudurg Special School, Jai Vakeel School, Yashwant Rao Pratishtan Organization, Maharashtra State Handicapped Finance &. Dev. Corporation (MSHFDC), Maharashtra Helpers of the Handicapped AYJNIHH, Spastic Society of India- Adapt Trinayani. |
Marathi |
28 | Andhra Pradesh | 24th February – 21 march, 2011 | Dr. Shiv Kumar, Director NIMH, Secunderabad |
TOTAL- 2108 17 ditricts- total-1338 802 PwD Others (NGO’s/Professionals) 770 Faciliators Dr Govinda Rao + Mr Gadkari |
Telegu |
29 | Goa | Ms. Percy Cardozo Sangath, Goa |
27 | ||
30 | Jammu & Kashmir | 8th and 9th Mar 2011 Hotel Meridien |
Narjees Nawab State Director HRLN Humanity Welfare Organization Helpline Supported by JKHWA, JKHA and JK Land Mine Survivors |
80 participants + 10 resource persons & staff | Urdu |
To
As per list.
Subject: Legal Consultation with Panel of Experts.
Sir/Madam,
The Committee, set up by this Ministry under the Chairpersonship of Dr. Sudha Kaul, to prepare a draft legislation in place of the existing, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995, is holding legal Consultation with a panel of legal experts on 10th and 11th April, 2011 in Delhi. The Chairperson of the Committee desires that you should join the panel of experts for the Consultation.
You are, therefore, requested to kindly make it convenient to attend the Consultation meeting on the above mentioned date. The venue and other details of the meeting will be intimated to you in due course.
Yours faithfully,
(Sunil Kumar Pattanayak)
Director (DD)
List of Legal Experts Invited
Report of the Legal
Consultation on the New Disability Rights Law held
on 9th – 10th April 2011.
Introduction
The Legal Consultation on the Working Draft on the Rights of Persons with Disabilities Bill was scheduled on 9th and 10th April 2011. The Consultation was organized with law persons who were concerned with questions of social justice and human rights generally and disability human rights more particularly. The Consultation was structured to obtain peer feedback on issues and questions which had proven to be either controversial or problematic in the drafting of the legislation. In addition, provision was made for an open house to obtain general feedback on the proposed legislation.
Even as a large number of the persons invited did attend the Consultation, some of the key invitees could not make due to last minute emergencies or personal ill health. A number of those invitees have however shared their views individually with the Committee and the Legal Consultant. A number of the participants have also sent written memorandums to the Committee either before or after the Legal Consultation. This report however only documents the discussions and suggestions made at the Consultation.
Inaugural Proceedings
The Consultation was inaugurated by the Chairperson of the Committee Dr Sudha Kaul apprising the invitees of the process the Committee has been following in obtaining the opinion of the disability sector, the duty bearers and the larger civil society in the length and breadth of the country. Prof Amita Dhanda, the Head of the Legal Consultant’s team, in her presentation spoke of how the principles of the CRPD and the aspirations of persons with disabilities have been the guiding principles for the Committee. In the performance of this task the Committee had followed precedents where available but also acted on first principles where required. Dr Dhanda then referred to the problematic dimensions of each of the issues under discussion. The Consultation she stressed was an effort at promoting deliberative and reasoned law making. The Committee and the Legal Consultant were there to listen and learn. The Legal Consultant hoped that in dialogue with peers they would be able to both weed out errors in the draft and devise alternative solutions to the questions concerning the Committee.
Session I: The Definition of Person with Disability
Tejaswi Shetty in her presentation explained that the dual definition of person with disability was introduced in the Working Draft so that whilst the right of non discrimination was universally available to all persons with disabilities the constituency of programmatic entitlements could be restricted to the enumerated disabilities.
In the ensuing discussion the dual definition, though for varied reasons, was predominantly viewed to be problematic. Such a definition, it was pointed out, could inject confusion in the implementation of the legislation. Further the entire issue of the socio-medical scale could leave persons with disabilities at the mercy of administrative or judicial discretion. Moreover since both civil-political and socio-economic rights had positive and negative duties even the motivation which had given birth to the dual definition may not be realized.
It was therefore suggested that the Draft law should have only one definition of disability which could be a combine of a generic and an enumerative one. However the beneficiaries of the law should be clearly identified in the legislation and not be left to be incorporated in subordinate legislation. The evolving nature of disability could be addressed by using the technique followed in the UK Disability Discrimination Act of using a generic definition and then provide the more detailed requirements in the Schedule to the statute.
Participants also asked that the use of the phrase “not of a temporary nature” may be re-examined as it could give rise to interpretational disputes. Could “not temporary” be read as permanent and in that case was “long term” a better choice?
Some of the participants wondered whether the country was ready for the adoption of the social model of disability. Others desired to know how situations of impairments without barriers would be addressed and still others desired that the statute itself should elaborate upon what was viewed as a barrier. As far be, it was desired that administrative and judicial discretion should be minimal in the matter of determining who is a person with disability.
A number of participants also expressed concern on the process of certification and desired that the statute should protect persons with disabilities from the requirements of having to obtain multiple certificates. It was suggested that the full faith and credit clause in Art 261 of the Constitution should be extended to medical certificates.
Session 2: Legal Capacity, Support and Guardianship
The second session on universal Legal Capacity, Support and Guardianship was initiated by a presentation by Ajey Sangai on the CRPD paradigm on legal capacity and how it has been incorporated in the new law. The challenge before the Committee was to induct this new paradigm into a legal system which perceived the lack of capacity of persons with disabilities as a truth not an ascription. The strategy being employed was primarily to lay down the principles of the new paradigm and to have it prevail over laws which state to the contrary.
The ensuing discussion followed distinct pathways.
One group of interventions desired a distinction to be forged into the law between those persons with disabilities who were being expressly denied legal capacity in the existing law and the others whose legal capacity was recognized by the law. The first group may not be able to function without support whilst the latter group the question of support was a matter of their choice. There was some difference of opinion on whether such a categorization could be advanced in the wake of the CRPD. However there was an insistence by some of the invitees that such a distinction must be incorporated in the law to ensure that those whose legal capacity stands recognized even prior to the CRPD were not disadvantaged by the new regime.
The fact that the protection of the law was only required by persons with certain impairments was questioned by other members who pointed out that such a contention could only be raised in relation to persons with disabilities residing in the urbanized parts of the country. This distinction did not operate on the ground for persons with disabilities who came from the remote and under resourced regions of the country. In their case the social economic and educational barriers provided a disenfranchisement which was no different from that experienced by persons with impairments disenfranchised by the law.
Questions were also raised on the best way of inducting the new paradigm of legal capacity in the new legislation and the committee was cautioned on the utilization of overriding clauses to alter existing legal presumptions on decision-making capacity.
The other set of questions revolved around the issue of abolition of plenary guardianship and whether such abolition was mandated by the CRPD. Would such abolition also extend to natural guardianship and how should the setting up of regimes of support take place?
Whilst opinions on the need to consult with concerned stakeholders before deciding on questions surrounding guardianship in law were expressed, views were also voiced on the need to continually examine the altering relationship between an individual and the community whilst formulating a law. Further the whole issue of support should not be perceived as a task which needs to be performed by specialized bodies. It could be easily inducted, at least in urban areas, within the responsibilities of resident welfare associations.
Queries were also raised around questions of conflict of interest and what should or would happen if a person who was required by the law to desist failed to do so.
Another connection was made in relation to the recognition of legal capacity and criminal responsibility and how equal rights could be provided without equal responsibility.
In response whilst some interveners opined that questions of legal capacity were best regulated by the Courts as they were most often required to intervene in such matters. This statement was however challenged by other lawyers who pointed out how the legal system was primarily operating on a set of beliefs in relation who were also associated with the case wondered whether such a presumption could be made considering that judges and courts were primarily interpreting and implementing the prejudice based old paradigm.
In response to the various questions it was clarified by the Legal Consultant’s team that the new legislation was extending to all persons with disabilities in all areas of life the same presumptions which existed for non disabled persons. The new law was severing the connection that existed between incompetence and support for persons with disabilities. Persons with disabilities could, like non disabled persons, obtain support without being labeled incompetent.
The session in the main operated as a dialogue between the old and new paradigm on legal capacity of persons with disabilities with some members holding that issue of legal capacity and support were not equally or similarly relevant for all persons with disabilities.
Session 3:
Interplay between new law and other laws
This session began with a presentation from Rohan Saha on the inter play between the new law and other laws. The discussion focused on the discrimination encountered by persons with disabilities who had no law under which they could marry and obtain divorce. Also provision was made to address the discrimination encountered by persons with disabilities in relation to voting rights.
In the ensuing discussion most speakers questioned provisions whereby a specific procedure for the marriage and divorce of persons with disabilities was created in the new law. Such a procedure, it was pointed out, would only result in confusion especially as it could not address all the various issues arising around the matrimonial rights of persons with disabilities such as the marriage between a person with disability and a non disabled person; or the succession rights under their personal law of those persons with disabilities who married under this law.
The question how the matrimonial rights of those persons with disabilities, who due to their disability were denied the opportunity to get married in both personal and secular law should be addressed, yielded several responses. One response was that this matter could only be resolved by amending the statutes which were imposing the exclusion and this law should not be employed to resolve all discriminations faced by persons with disabilities. The other response was that this statute should only incorporate the principle of non discrimination and this principle could be used by individual persons with disabilities to challenge discriminatory matrimonial statutes. In a varied formulation it was suggested that the law should recognize that persons with disabilities marrying with consent and with full disclosure of their impairment, should not be prevented from getting married by reason of their disability.
A third response was that this law could be employed to override the discriminatory provision in the Special Marriage Act but the same could not be done in relation to the personal laws. It was accepted that there may be a case to have a carefully crafted Right to Marry under this law for those persons with disabilities who have no religious or secular option available. Yet there was little support for the proposition that this option should in fact be provided in the new law.
Even as the induction of a distinct marriage and divorce procedure for persons with disabilities was not viewed with favour by the participants, the use of the law to introduce supplemental provisions to strengthen the matrimonial entitlements of persons particularly women with disabilities was strongly suggested. Thus, the legislation, it was opined, should make provide additional protection on maintenance and custody of children to persons with disabilities.
On the political rights front, the Committee was urged to seek an amendment of the Constitution in order to weed out the disability discriminatory provisions. Without such constitutional amendment, only a legislative provision protecting the right to vote was seen as insufficient. It was also suggested that the amendment of the Constitution to grant legislative reservations to persons with disabilities.
Session 4:
Liberty Force and Consent
The session began with Shreya Atrey making a presentation on the CRPD paradigm on Liberty and how the new law provisions on Liberty were formulated by drawing upon the CRPD and Article 21 of the Indian Constitution.
In the ensuing deliberation it was pointed out that it was important to ensure that the provision is not a reenactment of article 21 for persons with disabilities. Instead the legislation should look at those laws and procedures, most majorly the legal regulation of institutionalization of persons with disabilities which depart from the CRPD standard and to ensure that such like discrimination did not happen. The need to coordinate with the MHA amendment process was also stressed in order to ensure that the Disability Rights and Mental Health Legislation were not at cross-purposes.
Insofar as the provision of reasonable accommodation was stated to be an integral part of the Right to Liberty as formulated in the law, a lot of discussion time was spent on the relative merit of the concepts of protective discrimination and reasonable accommodation. A body of opinion in the room put forth the contention that in the wake of the disadvantaging jurisprudence surrounding reasonable accommodation, India should not import this concept and should instead rely upon the more empowering concept of protective discrimination. The other school of thought however pointed to situations which could not be addressed through reasonable accommodation, and thus induction of the concept in the new law in no way disadvantaged persons with disabilities.
Session 5: Inclusion of
the Private Player in the Definition of
Establishment
Malak Bhat presented the definition of Establishment as inducted in the new legislation and explained how the Art 12 and labour law jurisprudence were married to create this crucial definition.
In the ensuing discussion whilst the definition was broadly endorsed an anxiety was voiced that the definition may encounter resistance at the enactment stage. To address that resistance various suggestions were proffered. One was to split the definition of establishment into two parts: in one include the Article 12 authorities and in the other include private establishments; and then depending upon the nature of responsibility use one or both parts of the definition. The other was to make provision for a practice code which could be accepted by the private players on a voluntary basis. The third was to limit the role of the private player only to issues of avoiding discrimination and not impose any affirmative action obligations upon them.
Session 6:
Disability Rights Authority
The latest version of the Disability Rights Authority was presented by Neha Pathakjee and Shreya Parikh where they sought the opinion of the participants on:
The ensuing deliberation can be thematically reported as follows:
Use of Elections to constitute DRA
Two kinds of questions were raised by some of the participants on the use of elections to constitute the DRA. One kind pointed out that the use of elections would mire the DRA in dispute and controversy and stranglehold its functioning as a monitoring body. Further, elections were an expensive and cumbersome process which would make just the establishment of the authority a very resource-intensive exercise. The other kind of question was raised on the use of indirect election to constitute the body. Herein the participant pointed to the inequity of weighing small and big organizations on the same scale. The recommendation then was either abandon the use of elections to constitute the DRA or go for direct elections whereby each person with disability has one vote. The impracticality of direct elections was then commented upon by several participants.
The Allocation of powers and duties between national and state DRA
The participants next required a sharper delineation of responsibilities between the National and State DRA. The use of the constitutional lists as in the Protection of Human Rights Act was endorsed. At the same time there was a need to forge a connection between the national and State DRAs so that there was cohesion in the functioning of the monitoring bodies.
Separation of Powers
The Legislative and Adjudicative Functions could not be combined in same Authority. These overlaps in the functioning of the DRA needed to be reexamined. The Committee and Consultant were asked to look at some of the written suggestions provided to meet this objection.
Disability Rights Fund
and Resources for the DRA
Whilst some participants opposed the situating of the Disability Rights Fund in the DRA as the fund was meant for schemes and programs for persons with disabilities., others required it to be made explicit that the Fund was not a resource, which was to be employed by the DRA for its own functioning; hence it was important that the resource entitlements of the DRA should be provided for explicitly.
Implementation and Monitoring
There was need to forge a closer connection between the implementation and monitoring responsibilities. Whilst monitoring was provided for in the shape of the DRA, the question of implementation remained amorphous. Consequently keeping in view the cross-cutting nature of obligations in the realm of disability it was suggested that the statute should require the establishment of Disability Rights Desk in every Ministry. This desk would both help address the cross-cutting issues as also help the DRA to effectively fulfill its monitoring duties.
Other Questions
The need to fine tune the relation between the governing board and the executive board
Time frame needs to be built in to ensure that the various activities in fact happen.
Should only persons with disabilities function on the DRA?
Session 7: Grievance
Redress
Aditya Singh in the session on Grievance Redress presented the distinction between the DRA and the Grievance Redress authorities of the law; the desirability or otherwise of setting up tribunals and Commissioner’s court at the state and central level; the methods by which grievance redress was being provided as close as be to persons with disabilities.
In the ensuing deliberation it was pointed out that in order to address questions of grievance redress it would be useful to define court so that there is clarity on where a person who is aggrieved should go. The hierarchy and relation between the ordinary courts and the grievance redress bodies under the statute need to be clearly demarcated.
Consequently the statute needs to clearly disaggregate between issues that need to go to the Grievance Redress Forums established by the statute and those which need to go to the existing courts and forums. On this count it was suggested that whilst the adjudication of offences and penalties needed to stay with the criminal courts, provisions relating to civil liability should go to the specially constituted bodies. The grievance redress body was only concerned with realizing the rights recognized under the Act. Other civil disputes involving persons with disabilities would need to go to the ordinary courts.
It was next suggested by some of the participants that it may be appropriate to term the adjudicatory authority a tribunal so that it does not get trapped in the rigors of the Civil Procedure Code and has the freedom to devise its procedure whilst observing the principles of natural justice. The TRAI Act or FEMA or the Consumer Protection Act could provide suitable models. This tribunal could function at the State level with provision for appeal to the High Court.
It was also suggested that the possibility of establishing a Tribunal under article 323B of the Constitution should be explored.
It was suggested that in addition there could be Disability Rights Facilitation Centres in the service provider model of the Domestic Violence Act.
Session 8: Socio-Economic
Rights and Open House
In this last session the opinions of the participants were obtained on the socio-economic rights and other provisions of the new law. The opinions proffered are being thematically reported.
Accessibility
Employment
Social Security
Offences and Penalties
Other Miscellaneous Provisions
PROCESS REPORT FOR DRAFTING NEW PERSONS WITH DISABILITIES ACT
The committee set up by the Ministry of Social Justice and Empowerment at the initial meeting decided to form subgroups which would draft chapters on issues of concern for persons with disabilities which needed to be addressed in the new law in an effort to bring the law in harmony with the UNCRPD.
The grouping was done on the consent, interest of each member and has been detailed below. This report is an attempt to briefly document the process followed by individual committee members and on the issues they chose to work on.
Group | Members |
Preamble and Definition | Shri Akhil Paul, Shri Karna, Smt Poonam Natarajan (Ms Merry Barua to provide her suggestions on Autism to this group) |
Rights and Legal Capacity | Dr.Govinda Rao, Ms G Syamala, Shri J P Gadkari, Shri Rajiv Rajan, Ms Jayshree Ravindran |
Civil and Political Rights | Dr. Govinda Rao, Ms Bhargavi, Shri Rajiv Rajan, Ms G Syamala, Ms Jayshree Ravindran. |
Education | Shri Bhushan Punani, Ms Poonam Natarajan, Ms Uma Tuli, Shri Narayanan, Ms Merry Barua. |
Health, Habilitation and Rehabilitation | Ms Srikala Bharath, Dr. Dharmender Kumar, Ms Rukmini, Shri Vikas Amte. |
Employment and Occupation | Shri Rajiv Raturi, Ms Jayshree Ravindran, Shri Ramakrishna, Shri Punani, Ms Srikala, Shri J P Gadkari. |
Accessibility | Ms Rukmini, Shri Narayanan, Shri Rajiv Raturi, Shri Rajiv Rajan. |
Human Resource Development | Dr. Govinda Rao, Gen Cardozo, Ms G Syamala, Shri Akhil Paul, Representative (M/o HRD) |
Authorities | Ms Uma Tuli, Shri Pritam, Smt Poonam Natarajan, Gen Cardozo, Comm (D) Assam, Comm (D), WB. |
Financial Authority | Shri Ramakrishna, Dr. Rita Pandey. Dr. Pritam, Dr. Govinda Rao, Shri Bhushan Punani, Shri S N Menon |
Reports submitted by Subgroup Leaders
RAJIVE RATURI
ACCESSIBILITY
Rajive Raturi was part of the sub group on Accessibility along with Rajiv Rajan, A S Narayanan and Rukmini Pillai.
The sub group studied all the papers provided by the MSJE to prepare a draft chapter on Accessibility. The following reports were studied for preparation of the first draft of the chapter.
NGOs: HRLN, Action for Autism, NAB Delhi, AICB Delhi, CBR Forum Bangalore, All India Deaf Bank Employees Association Chennai, Sense International
Individuals: V Bedi
Statutory bodies: NIMH, RCI, DDRC Tripura, Ali Yavar Jung NIHH, CCPD, SDC Karnataka, CCPD (Rajasthan)
The subgroup first met on 19th July, 2010 at the Indian Spinal Injury Centre to discuss the draft prepared on Accessibility for an initial round of discussions within the sub group. The outline of the chapter was decided.
The full committee met on the 22nd July to discuss draft chapters but the Accessibility chapter was not discussed in this meeting and more time was sought by the sub group to prepare a draft chapter for discussion with full committee.
The subgroup again met at AADI in Delhi on 2nd August. Experts Shivani Gupta, Anjali Agarwal and Sanjeev Sachdeva were invited to this meeting. Sanjeev attended, Shivani sent her version and Anjali sent her suggestions later by email. The draft chapter was subsequently revised with considerable inputs from Shivani Gupta of Access Ability.
This draft was then circulated within the committee members and suggestions given were incorporated.
The sub group met again at NALSAR with the Legal Consultant on the 4th and 5th September to discuss the draft chapter on Accessibility which by now had substantial contributions from experts.
On 8th September Shivani Gupta of Access Ability was again met with at her residence for extensive discussions on the draft chapter and in particular, the provisions on the NIUD. Her suggestions were incorporated in the draft chapter.
On 29th and 30th Sept subgroups made presentation on chapter to civil society members at Vigyan Bhawan and their feedback was incorporated in the draft chapter.
On 19th and 20th October the committee again met at NALSAR where the Legal Consultant presented the consensus paper and inputs received from committee members were then incorporated by the Legal Consultant.
On 26th and 27th Nov, the committee met at ISIC in Delhi to further discuss the consensus paper presented by Legal Consultant. Further meetings of the committee also had the chapter on Accessibility discussed and the state level consultation inputs were also incorporated. The committee met again over the final draft presented by the consultant post the legal consultation.In particular, contributions were made by Nilesh Singit, Adv Subhash Vashisht, and Adv Cherian George who gave substantial inputs on Copyright issues and Nirmita Narasimhan on electronic accessibility.
Amongst the other groups who contributed substantially have been Astha in Delhi, AICB, NFB, CBR forum and DAF in Kolkata. Access India too contributed to the deliberations.
SOCIAL SECURITY
In the initial meeting of the committee there was no sub group for Social Security. However the committee in one of its earlier meetings decided to increase the chapters in the draft law and it was decided to incorporate a chapter on Social Security. It was also decided that the sub group working on Work and Employment would also work on Social Security
An initial draft on Social Security was made after culling out information from reports given to the committee by the MSJE and this was circulated within the sub group as file dated 24th August inviting their comments.
Inputs received from sub group members were incorporated and again circulated as file dated 2nd September to the full committee for their comments. This chapter was again presented at NALSAR by the subgroup on the 4th and 5th of September.
The chapter was revisited and updated and circulated as file dated 9th September to committee members for their comments.
On 29th and 30th Sept subgroups made presentation on chapter on Social Security dated 9th September to Civil society members at Vigyan Bhawan and their feedback was incorporated in the draft chapter.
On 19th and 20th October the committee again met at NALSAR where the Legal Consultant presented the consensus paper and inputs received from committee members were subsequently incorporated by the Legal Consultant.
On 26th and 27th Nov, committee met at ISIC in Delhi to further discuss the consensus paper presented by the Legal Consultant. Further meetings of the committee also had the chapter on Social security discussed and the state level consultation inputs incorporated. The committee met again over the final draft which was presented by the Consultant post the legal consultation.
Amongst the groups who contributed substantially have been DAF and CBR Forum.
As committee member, Rajive Raturi participated in the state level consultation on the draft law in Jaipur for the state of Rajasthan and in Srinagar for the state of Jammu and Kashmir. In addition the state level consultations in the states of Kerala and Jammu and Kashmir were organized through Human Rights Law Network, the organization he represents.
MERRY BARUA
Merry Barua was sub group member for Education and Definition and also participated in the subgroups on Employment and Accessibility. As sub group member, her discussions with civil society groups and individuals had a greater focus on Legal Capacity and CPR, Education, Employment, Accessibility and Definitions; however discussions ranged over all areas of the law since no section could be addressed in isolation.Meetings were held in Delhi as well as in other places between June 2010 and February 2011. Discussions also took place over email. All emailing also was roughly within these dates. Some participants contributed in an individual capacity. However, most participants who contributed to these discussions belonged to organisations listed below, as well as from a few others.
UMA TULI
Uma Tuli participated as sub group member on Education, Authorities and also contributed on the chapters on Girls and Women with Disabilities, Children with Disabilities, Leisure, Culture & Sports. She was informally also associated with discussions with a large number of stake holders, beneficiaries, and parent support groups etc., to gather inputs across all the chapters. Extensive views and suggestions were exchanged and qualitative information was collated and given as inputs to the Drafting committee.
A large number of consultative meetings were held with individuals and organisations as a part of consultations. As a preparation for conducting the State Level consultations with civil society for Delhi, NCR & Haryana, she constituted an organising committee which included State Commissioners of Delhi, Haryana and Chairman ISIC. There were a number of other members also. The organising committee held two meetings where the programme for the state level consultations was finalised.
A Hindi Translation of the working draft along with Braille (in Hindi & English) and Unicode version was also made available for distribution for the state level consultation on the new draft.
She also participated in the pre consultation meetings conducted by AADI & Khushboo at Delhi & Gurgaon. A two day State level consultation with civil society and persons with disabilities was organised at Delhi where a total of over 160 individuals and organisations, parent groups, activists participated. As decided in the State level consultation, a special meeting on Regulatory & Adjudicatory Authority was again organised at Amar Jyoti where participants from the civil society and different organisations and members of the committee were present and submitted a report which was discussed by the working group. This meeting was attended by the national organizations AICB and NFB amongst others.
In addition she helped and participated in the conduct of consultations with civil society for Madhya Pradesh. She also coordinated the finalisation of the draft of chapters on Children with Disability, Leisure, Recreation & Sports, Girls and Women with disabilities.
The organisations that participated in the state level consultation for Delhi NCR and Haryana included
State
Commissioners Delhi & Haryana |
|
Government
Officials from Delhi & Haryana |
28 |
Representatives
from NGOs |
72 |
Members of
Parents Support Group |
5 |
Academic
Institutions |
16 |
Individuals working
in Disability field |
15 |
Care givers |
20 |
Families |
05 |
Total |
161 |
L GOVINDA RAO
Govinda Rao was associated with the subgroups on Legal Capacity, Civil and Political Rights, HRD and Financial Estimates. The meetings of the sub groups were mostly held at NIMH, NALSAR, AADI and Ministry of HRD according to the theme. Subgroup meetings usually involved many Parents, persons with disabilities who were engaged in rights advocacy of the PWDs and also NGO representatives. Besides the formal participation of the civil society members in these subgroup meetings, informal consultations with many stakeholders, Parents, NGO representatives, Professionals and civil society members were held and the inputs and information gathered from such interactions were shared in the main Committee meetings. Some names of organizations which were consulted extensively are as under:
Poonam Natarajan was part of three Sub-Groups: (1) Education, (2) Authorities and (3) Definitions.
Education: The Education sub-Group met at Amar Jyoti Charitable Trust and Action for Autism. Dr. Bhushan Punani, Dr. Uma Tuli and Ms. Merry Barua were part of this group and Ms. G. Syamala also joined the group on two occasions.
Extensive discussions on Inclusive Education and the Special School System were held within the sub group. Consultations were also held with –Authorities: The Authorities sub group first met at the CCPD’s office and later at the National Trust Office. It was decided by the sub group working on Authorities that a SWOT analysis would be done at the start. It was also felt that this chapter would need to be constructed in the end, once the rest of the chapters were ready.
The Authorities chapter was discussed by the entire Committee at NALSAR, at the Legal Consultation and at committee meetings at ISIC Centre, Vasant Kunj. The State Consultations helped, to get a clearer idea of what the aspirations and views of the stakeholders were.
A meeting at Amar Jyoti was organized to get the views of national DPOs on the subject of Authorities. This meeting was attended by Mr. Rungta, General Secretary of the National Federation of the Blind and also by Mr Mittal, President of AICB and other members.
Definition: The Definition sub-group had its first meeting on Skype and the discussion centred around the definition of disability. The entire Committee at NALSAR agreed to take the two definition route, one generic and one for entitlements.
Suggestions came from stakeholders and from the State Consultations and were carefully considered by the sub group. Mr Akhil Paul, Ms Merry Barua, Ms Rukmini Pillai and Ms Poonam Natarajan also worked on writing a concept paper for the final report. This will be to give views on how the disability Scale for certification should be developed.
State Consultation: Ms. Poonam Natarajan also represented the New Law Committee at four State Consultations – Jharkhand, Chhattisgarh, Meghalaya and Tamil Nadu
As Chairperson of the National Trust, Ms Poonam Natarajan requested State Nodal Agency Centres (SNAC) of the National Trust to conduct the State Consultations in the following States:
Process Report - WORK, EMPLOYMENT & OCCUPATION
The Sub Group on Employment comprised:
The Sub Group studied all the papers provided by the MSJE to prepare a draft chapter on Employment and first met on July 14, 2010, at NAB Sabita & Saradindu Basu Centre for Blind Women, Hauz Khas, and New Delhi. Apart from the members of the Sub Group present on that day, also present were Mr. Santosh Rungta, [Secretary General, National Federation of the Blind, New Delhi], Mr. A. K. Mittal, President and Dr. Anil Aneja Vice President, All India Confederation of the Blind. Preliminary discussions were floated about the draft to be prepared on Work Employment & Occupation and the outline of the chapter was decided. Following this meeting, the members of the Sub Group interacted actively on telephone and email and also had discussions on their own level with various organizations and individuals
Following this was the full committee meeting on July 22, 2010 wherein the draft chapter was discussed. The Committee once again met on August 12, 2010. The draft chapter was discussed once again and the suggestions made therein were taken up for incorporation.
The Sub Group again met at NALSAR with the Legal Consultant on September 4 & 5, 2010, to discuss the draft chapter together with all suggestions and contributions made by several experts.
Following these meetings and detailed discussions, the Sub Group made a presentation on chapter on Employment Work and Occupation to the Civil Society on Sept 29 & 30, 2010 at Vigyan Bhawan, New Delhi. Subsequently all inputs and responses received, after detailed study, were incorporated in to the draft chapter.
The Committee then met at NALSAR on October 19, 2010, where the Legal Consultant presented the concept paper, and the inputs received from Committee members were incorporated by Legal Consultant.
The meeting of the full fledged Committee was held in New Delhi on November 26 & 27, 2010 where further discussions, additions and deletions were made to the concept paper. Following this were more rounds of meetings of the Committee in December, January and February at Delhi.
The full committee along with the National Coordinators under the Chairmanship of Shri Mukul Wasnik met on Feb 11, 2011, where each chapter was summarized and presented and the decision on State Consultations was made.
To streamline all loose ends, the full committee met on Feb 28, Mar 1 & 2, 2011.
The State Consultations were held subsequently across the country and all recommendations and suggestions were discussed and those found appropriate by the Committee, were incorporated since many of the suggestions made, lent themselves to plans, policies and programmes.
Several activists, leaders and NGOs were involved in the making of this chapter. Amongst these were:
AKHIL PAUL
Akhil Paul was part of four Sub-Groups (Preamble and Definition; Education; Health, Habilitation and Rehabilitation; Human Resource Development). Primarily, as a representative of ‘deafblind’ people, their families and of the organisation working on deafblindness, Akhil Paul ensured the inclusion of this excluded and marginalised group within the draft of the Bill.
Preamble and Definition
As far as the proceedings of the Sub-Group on “Preamble and Definitions” were concerned, the sub group had lengthy, informed and detailed discussions, which mainly focussed on defining the ‘disability’. The Sub-Group comprised - Dr. Karna, Ms Poonam Natarajan, Ms Merry Barua and Akhil Paul. Apart from these members support from other Committee Members like- Ms. Jayashree Ravindran, Dr. Bhushan Punani, Mr. Rajive Raturi and Ms. G. Syamala too was made available. The Sub-group met five times to discuss various issues related to Preamble and Definitions and it was unanimously agreed to include “Objects and Reasons” for drafting a new bill of the Rights of Persons with Disabilities to replace the Persons with Disability Act 1995. The sub group also agreed to add a chapter on “Guiding Principles for Implementation and Interpretation” of the proposed Bill after its due enactment.
There have been detailed discussions about defining ‘disability’ in a generic manner v/s giving enumerative definitions of all disabling conditions and the members unanimously agreed to include both definitions. In the “definition’ section we proposed to include only a generic definition and an enumerative list of disabling conditions under the Section on “Capability Developments”. As the “Definition” section needs to explain/ define all the important terminologies used in the text of the Statute, it was finalised only when other chapters were fully completed.
Subsequently the draft was translated in all major regional languages and sent out for consultations in each state where representatives from remote districts and villages participated to enrich the content and provisions of the Bill. As a committee member Akhil Paul was part of these consultations at four different states - Gujarat, Uttar Pradesh, Mizoram and Meghalaya.
List of Agencies Consulted by the subgroups During the Drafting:
Process Report – Education
A Sub Group was constituted in the first meeting of the Drafting Committee on New Disability Rights Act held on 10th June, 2010 to address issues of Education of persons with disabilities in the new law. The members of the sub group to draft the chapter on ‘Education’ included the following: Dr. Uma Tuli, Ms. Merry Barua, Ms Poonam Natarajan, Mr. S. Narayanan and Dr. Bhushan Punani.
In the first meeting of the sub group held at Action for Autism on the 13th July, 2010 the members decided the Plan of Action as first preparing the first draft of the Chapter, modifying it based upon comments of the members, circulating revised draft among Civil Society, presenting of draft to Legal Consultant, circulating the same among members of Drafting Committee, presenting the same in the meeting of the Civil Society and uploading on the website of the NALSAR University of Law , and revising it further after State Consultations.
The second Meeting of the Committee was held on 22nd July in New Delhi.
On the Copyright Act the sub group suggested inclusion of the following in the draft of the new law: Notwithstanding anything contrary to Copyright Act, all the Braille, audio and large print material specially required by persons with disabilities and print material that can be understood by Augmentative & Alternative Users shall be exempt from the Copyright laws and such other provisions.
In subsequent deliberations the sub group decided on the shifting of some Paragraphs to Other Chapters. The Members also found that a number of provisions included in the chapter on Education actually could be shifted to other chapter as the same were more relevant to that chapter.
The group also recommended the following;
Educational Activity: The Appropriate Government and Local Authorities shall consider, initiate, promote, support and guide education of children with disabilities as an educational activity and not a welfare activity. The education and allied activities shall be carried out under the auspices of the Ministry of Human Resources Development. The Ministry of Social Justice shall provide and support for assistive devices, use of technology and residential accommodation etc.
The working Draft: Based on revised chapter on Education, the Legal Consultant prepared the Working Draft. The chapter on Education was discussed once again on 2nd January, 2011 and again discussed in the meeting of the committee held on 13th and 14th January, 2011.
The State Consultations: The State Consultations were held across the country during the month of February, 2011. The major suggestions in respect of Education were: Free Education up to Post-Graduation and Research Fellowship; Transfer of parent with a child with disability to a place where facilities are available; if it is sought for by the parent such transfer shall be considered on priority; No parent with a child with disability will be transferred arbitrarily without taking into account the facilities of education, services to his or her child and other convenient factors; Special Teacher to be trained by RCI with relaxed norms; Special teacher to be employed in all schools; 10% reservation instead of 6% in employment.
Efforts were made to include all these suggestions that came in at the state consultation level.
Advocates Meeting: Finally the draft law including chapter on Education was discussed in the meeting with lawyers.
All
the suggestions made by the lawyers are under consideration of the
Legal Consultant and the final version of the draft law will be based
on inputs received during meetings of the Committee, state
consultations, and meeting with Civil Society and consultation with the
lawyers. The most unique observation about the chapter on
“Education” is that in every meeting, this chapter
was
discussed at length; all suggestions received during the period of
consultation were incorporated in the revised draft and this chapter
contributed towards various components of other chapters as well.
DR. SRIKALA BHARATH
Process Report – Health, Habilitation and Rehabilitation
The Ministry of Social Justice and Empowerment in its mandate to formulate a new act for the Persons with Disability decided to establish a committee.
Director/Vice Chancellor of NIMHANS was invited to be a member of the committee to provide inputs as an expert in relation to persons with disabilities due to psychosocial illnesses and neurological illnesses. Dr. Srikala Bharath Professor of Psychiatry & Consultant – Adult and Geriatric Psychiatric Services, NIMHANS was delegated to be a representative committee member.
Dr. Bharath was a member of the Sub group on Health, Habilitation and Rehabilitation Sub committees. Other members included Dr, Dharmender – Director of the IPH (an orthopaedic surgeon), Mrs Rukmini Pillai – Torch Bearers (NGO) also a care giver, Dr. Kothari – Rehabilitation Specialist – AIIMS Trauma Centre and Dr. Vasanth Amte.
The sub group on Health, Habilitation and Rehabilitation met two times and members also had meetings with groups in their individual capacities. During one of the Health Sub group meetings which was attended by the Chairperson Dr. Sudha Kaul and the Legal Consultant Prof Amita Dhanda, a shadow report was presented.
Dr. Bharath also Participated in the Disability Act meeting organized twice by the Richmond Fellowship Society at Bangalore to discuss the working draft with the various stakeholders. Presentations were made to understand the current working draft of the New Disability Act. Many stakeholders especially those with Mental Illness participated in the discussions. Other mental health professionals like Dr. Kalyanasundaram, Dr. Mohan Isaac, Dr. Pratima Murthy and Dr. T Murali and lawyers participated in the meeting. In the second meeting organized by Richmond Fellowship Dr. Nirmala – of ACMI also participated.
Two meetings organized by Dr. Srikala Bharath were held in NIMHANS for discussion of certain specific issues pertaining to Civil and Political Rights of the PWDs and removal of Plenary Guardianship for persons with high support needs. The first meeting was with a small group of mental health professionals working in the area of disability and the second meeting was with a large multidisciplinary group involving all clinical departments of NIMHANS (Department of Psychiatry, Child and Adolescent Psychiatry, Clinical Psychology, Psychiatric Social Work, Health Education, Nursing, Neurological and Psychiatric Rehabilitation). The Director of NIMHANS provided a written feedback to the Chairperson of the Committee regarding NIMHANS position on the aforementioned issues and the current working draft.
Issues pertaining to the New Disability Act were raised in the Annual Conference of the Indian Psychiatric Society at New Delhi by Dr. Bharath and the IPS president was urged to communicate with the chairperson of the Committee to enable both the New Disability Act and the Mental Health Care Act to support mentally ill persons and their care givers in unison and not in contradiction.
Dr. Srikala Bharath also attended the Karnataka State Consultation on the draft law organized by CBR Forum at Bangalore.
Dr. Srikala also attended two meetings of the MHA to discuss harmonizing PwD and MHCA. One was a Southern Regional Level meeting at NIMHANS by the Ministry of Health and Family Welfare and the other one was the NAAJMI meeting held at Bangalore on MHCA.
Dr. Srikala Bharath as a representative of NIMHANS has repeatedly tried to raise awareness to deal with all stakeholders of the psychosocially affected – to have a psychosocial-medical model and not to take an anti-medical or anti-therapeutic model. Need for balanced view with family members as interested partners was stressed. Need for collaboration and liaison between the Ministries of SJE and Health and Family Welfare in harmonizing the acts was also urged. The need to include the mentally ill in the highly vulnerable group in the New Disability Act, need to recognize the differential needs of the persons with severe mental illness and developmental disabilities were other issues stressed by Dr. Bharath. The need for providing certain caveats in the Civil and Political Rights of the mentally ill understanding the nature of the illness was pointed out repeatedly.
IAN CARDOZO
The sub group for drafting the chapter on Human Resource Development comprised the following members:
The first meeting of the sub group was held on 25th June 2010 at the RCI office. Members present: Maj. Gen. Ian Cardozo and Ms G Syamala.
The second Meeting was held at Ministry of Human Resource Development on 19th July 2010. The group had extensive discussions on the subject and Ms Syamala was asked to collate all information for a presentation to be made before the next meeting for the full committee. Members present: Mr Khuntia, Mr Akhil Paul, Dr. Govinda Rao, and Ms G Syamala.
The full committee met at ISIC on 22nd July and a presentation on HRD was made by Ms Syamala before the full committee. Sub group members present, Dr. Govinda Rao, Mr Akhil Paul and Gen Cardozo also participated in the presentation and full committee inputs were gathered.
The sub group again met for the fourth Meeting at AADI in New Delhi on 1st Sep 2010. Experts too were invited for this meeting and their inputs on the draft chapter were taken. Experts included Dr. Sudesh Mukhopadhyay, Dr. Sunanda Reddy, Dr. Anita Ghai, Dr. Mishra, Ms, Radhika Alkazi and Ms. Madhu Grover. Members of sub group present included Dr. Govinda Rao, Dr. Sudha Kaul and Ms G Syamala.
On 17th Sep 2010 Sub group member Ms G Syamala made a presentation on the chapter on HRD to the Legal Consultant and some committee members at NALSAR in Hyderabad.
Presentation on the refined chapter on HRD was made by Maj. Gen. Ian Cardozo and Ms G Syamala at Vigyan Bhawan on Oct 2010 before civil society members and inputs were gathered for consideration.
The committee again met at the ISIC on 12th and 13th January and a presentation on the chapter with inputs from experts and other civil society members was made by Ian Cardozo to the full committee.
Subsequently the chapter was presented in the meeting for national coordinators which was attended by Hon’ble Minister Shri Mukul Wasnik and was then also presented in the state level consultations and the Legal Consultation.
Legal Consultant: Centre for Disability Studies, NALSAR Hyderabad
Led by: Dr Amita Dhanda, Professor and Head, Centre for Disability Studies, NALSAR, Hyderabad
Team members
Administrative and
Secretarial Support
The Consultant wishes to express gratitude to Justice M.N.Rao Chairperson Backward Classes Commission and Chief Justice (Retd.) H.P.High Court for his advise on many a knotty issue surrounding grievance redress and criminal prosecution. We thank Mr.P.Prakasa Rao - Former Deputy Secretary to Government of Andhra Pradesh, Law Department for his advice on legislative substance and form.
The Committee acknowledges with gratitude the following
persons for their support in this endeavour
IPH Staff
Disability
Division
National Trust