Times of India
02 August 2011
By, Neha Madaan
Pune, India

As the final draft of the Rights of Persons with Disabilities Bill, 2011 was submitted to the ministry of social justice and empowerment on June 30, activists working for people with disabilities, have mixed responses about the proposed Act.

According to Bhargavi Davar, managing trustee of the city-based Bapu trust for research on mind and discourse, the bill includes a liberal definition of 'disability' and disability rights unlike the existing Act. However, in some ways, it is inferior to the existing one.

“The Bill lists at least 20 disabilities as illustrative of the disability experience. A significant contribution is the inclusion of a range of civil political rights, such as right to liberty, life, political participation, among others. In terms of socio economic rights, the Bill offers manifold duties of the government and new entitlements. However, the new Bill is inferior to the existing Act in the context that the existing Act do not impose a limit on legal capacity, nor does it talk about guardianship,” said Davar.

The new Bill, which promises to usher in landmark clauses to promote human rights and fundamental freedoms for all Persons with Disabilities (PwDs) without discrimination, has been drafted in harmony with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

Among other things, the proposed law suggests setting up of a National Disability Rights Authority to formulate regulations for ‘service animal’ training facilities so as to ensure that persons with disabilities are provided suitable animals to help them. The bill also proposes to replace the existing practice of plenary guardianship with limited guardianship, a system of joint decision-making which operates on mutual understanding and trust between the guardian and the person with disability.

The ministry of social justice and empowerment had earlier constituted a committee with members representing persons with disabilities, NGOs 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.

According to Davar, though the draft bill gives the right to full legal capacity, the concept of limited guardianship takes that benefit away.

“With any kind of guardianship, limited or plenary, the exercise of right for a person with disability becomes all the more difficult. The clause on ‘limited guardianship’ will again push the people with disabilities back to colonial times, as vested interests will take advantage of the clause and take away rights otherwise granted in the new Bill,” said Davar.

Sadhana Khati, project leader, Bapu

Trust, said, “Granting full legal capacity includes an array of rights — from the right of marriage to the right to vote. Though the draft grants the right to legal capacity, it does not grant ‘absolute’ right to legal capacity.”

A lawyer, part of the Human Rights Law Network (HRLN), a collective of lawyers and social activists dedicated to the use of the legal system to advance human rights in India and the sub-continent, said on condition of anonymity, “The proposed law should have expounded on the concept of limited guardianship, instead of giving it a minimal definition. What the act proposes to do, i.e., replace plenary guardianship with limited guardianship sounds like a gain; but the finer details on the latter have not been specified.

What the new Bill should have done is describe the process by which persons with mental disabilities — in conflict with law or in need of care and protection - are identified as a class apart, ensuring a participatory process, as the one ensured by the provisions of the Juvenile Justice (Care and Protection of Children) Act.”