Having ratified the United Nations Convention on the Rights of Persons with Disabilities in 2007, India was legally as well as constitutionally obligated to bring its domestic laws in line with the spirit and purpose of the same.
Although draft legislation was formulated and deliberated upon in 2011 as well as 2012, the latest parliamentary proposition concerning disability rights in the country was introduced earlier this year. It is disappointing however, to see the high degree of insensitivity and political haste which characterizes the new Bill. This has resulted in the absolute lack of engagement with the purpose and spirit of the Convention. From the parochial conceptualization of “disability” and “discrimination”, to the shabby drafting of the legislation, there are multiple issues which have caused widespread dissent amongst the disability sector in the country.
At a very fundamental level, Article 1 of the Convention seeks to ensure the guarantee of the complete enjoyment of human rights to persons with disabilities, paving way for their introduction into the social mainstream. The formulation of this article also signifies a completely different paradigm for the conceptualization of disability, as being the inability to equally participate in society, rather than being a medical issue. The proposed Bill, however, fails to recognize the need to adopt a social conceptualization of disability, to allow for this inability to equally participate in society to be overcome. Rather, it focuses entirely on the impairment of the person, and not existent social barriers. The definition of a “person with disability” contained in Section 2(q) of the Bill also restricts the respect for differences and shifts the model of approach from what the Convention seeks to achieve.
Further, in direct contravention of the purposes of Article 5 of the Convention, which prohibits all discrimination on the basis of disability, Section 3(3) of the proposed Bill allows discrimination against persons with disabilities “if it can be shown that it was appropriate to achieve a legitimate claim”. This inherent right to equality under the Convention is further denied by the statutory provisions relating to accessibility (contained in Article 9 of the Convention) in Section 40(1) of the proposed Bill. According to the proposed regime, accessibility is sought to be increased through public transport designed specifically for persons with disabilities. However, this too, is subject to these designs being “economically viable” and “technically feasible”, automatically allowing for subsequent justification in the event of non fulfillment.
Further, the proposed regime completely ignores the issue of “punishment”. Article 15 of the Convention prohibits “torture” and “cruel, inhuman or degrading treatment or punishment”. Section 5 of the Bill makes references to “torture” or “degrading treatment”, but does not explicitly prohibit “punishment”. This fails to provide the same coverage as the Convention because the purpose of Article 15 of the Convention is to ensure that persons with disabilities are not made the subject of any form of torture, cruelty or punishment, in any manner whatsoever. The police force in India is notoriously known for its third degree methods of punishment (which can be both cruel as well as degrading). Therefore, an explicit prohibition would be necessary to ensure that such acts against persons with disabilities are not condoned. Further, by virtue of the fact that Section 13 empowers legal guardians to take all decisions on behalf of persons with disabilities, the right to be protected against experimentation or testing without consent is also heavily compromised.
Taking into account all these considerations, it becomes evident that the proposed legislation contains lacunae which are inherently dangerous to the rights of persons with disabilities, and may provide institutionalized avenues of discrimination, torture and degrading treatment. Although the Convention proposes a regime that seeks to foster respect for differences, the conceptualization of Indian parliamentarians falls far short of what it is bound to do, under its international legal obligations. The lack of sustained engagement coupled with expediency has defeated the very purpose of bringing in national laws in consonance with the spirit of the U.N.C.R.P.D.