The More, the Murkier: Of Several Draft Laws on Disability in India

by | Oct 11, 2012

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About Shreya Atrey

Shreya Atrey is an Associate Professor in International Human Rights Law at the Department for Continuing Education and the Faculty of Law, based at the Bonavero Institute of Human Rights. She is the Editor of the Human Rights Law Review and an Official Fellow of Kellogg College. Her research is on discrimination law, feminist theory, poverty and disability law. Her monograph, Intersectional Discrimination (OUP 2019), which won the runners-up Peter Birks Book Prize in 2020, presents an account of intersectionality theory in comparative discrimination law. Shreya is currently working on project on 'Equality Law in Times in Crisis' funded by the British Academy. Previously, Shreya was based at the University of Bristol Law School (2017-19). She was a Max Weber Fellow at the European University Institute, Florence in 2016-17 and a Hauser Postdoctoral Global Fellow at the NYU School of Law, New York in 2015-16. She completed BCL with distinction and DPhil in Law on the Rhodes Scholarship from Magdalen College, University of Oxford.

India has finally been taken over by the wave of legislative engagement with the rights of persons with disabilities (PwDs), several years after ratifying the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007.

This has resulted in three concrete proposals. The first, the Rights of Persons with Disabilities Bill 2011 (Committee’s Bill), was produced by a committee appointed by the Ministry of Social Justice and Empowerment to draft new legislation replacing the present Persons with Disabilities Act 1995. The second, the Draft Rights of Persons with Disabilities Bill 2012 (Ministry’s Draft), is a revised version of the Committee’s Bill prepared by the Department of Disability Affairs and was released in September 2012. Lastly, the ‘Draft of the Rights of the Persons with Disabilities’ 2012 (DRG Proposal) was prepared by the Disabled Rights Group, led by the disability-rights activist Mr Javed Abidi, and was also unveiled in September 2012.

A notable difference between these drafts is their differing formulations of the right to life provision. Section 10 of the Ministry’s Draft is a restatement of the right to life in Article 21 of the Indian Constitution, but does not contextualise it to reflect the concerns of PwDs. The DRG Proposal makes no mention of the right. On the other hand, the Committee’s Bill contains an elaborate provision on the right to life.  There are two reasons why the inclusion of such a provision is crucial.

First, the right to life under Article 21 of the Indian Constitution is seen as the source of other rights such as the rights to education, health, and a livelihood, among others. The Supreme Court’s Article 21 jurisprudence has become the bulwark of human rights enforcement and has inspired the drafting of human rights legislations including the Right to Education Act 2010 and the Sexual Harassment Bill 2010. Thus, if other rights are derived from the right to life guarantee, a comprehensive text on right to life lays down the groundwork for justifying separate consolidated rights legislation for PwDs.  By drawing upon Article 21 jurisprudence which guarantees a well-rounded life of flourishing, the right to life provision can provide a rich preface to a bill of rights for PwDs.

Secondly, the purpose of a right to life provision for PwDs is to reaffirm the value of disabled life since the disabled population has so actively been denied a right to life with dignity. Disabled person are routinely dispossessed of their sense of self and personhood. In a society which questions the need and consequence of the disabled life, this disregard for disabled life should itself be seen as a violation of right to life. Viewed as deficient and deviant, the narrative of the disabled life needs a radical overhaul through the text of right to life itself.

The bare right to life in section 10 of the Ministry’s Draft and the absence of a right to life provision in the DRG Proposal fall short of implementing the UNCPRD mandate under Article 10 which requires a more robust formulation to ensure the ‘effective enjoyment’ of right to life by PwDs on an equal basis with others. In contrast, Section 22 of the Committee’s Bill is a comprehensive formulation which weaves in Article 21 jurisprudence to guarantee a life of flourishing for PwDs. Sub-sections (2) and (3) are carefully crafted to afford full value to the lives of PwDs.  They also prohibit any procedure or practice which diminishes the value of their lives. Section 22 demonstrates a clear ethical obligation to preserve and protect disabled life and this sense must guide the final content of the entire text of the consolidated bill. If a consolidated bill of rights for PwDs was the initial fillip for implementing the UNCRPD, then the Committee’s Bill got it right the first time in drafting a right to life provision which justifies a rights-bill and also recognises the value of disabled persons’ lives.

Shreya is a MPhil candidate at Magdalen College, Oxford. 

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