Ministry of Social Justice and Empowerment has come up with fresh draft legislation

In the wake of sharp criticism from disability groups for failing to draft a comprehensive Bill that will give full rights to a disabled person, the Ministry of Social Justice and Empowerment has come up with a fresh draft legislation that seeks to do away with the plenary guardianship system — whereby a guardian substitutes for the person with disability before the law and takes all legally binding decisions for him or her, and replace it with a limited guardianship system.

Under the limited guardianship system, decisions will be made jointly on mutual understanding and trust between the guardian and the person with disability.

The draft of the Rights of the Persons with Disabilities Bill, 2012 that has been put up on the Ministry website also seeks to ensure that all necessary steps are taken by the government to secure for persons with disabilities individual autonomy, including the freedom to make one’s own choices, and independence of persons; non-discrimination; full and effective participation and inclusion in society; equality of opportunity and equality between men and women, among other things.

Persons with disabilities would enjoy legal capacity on an equal basis with others in all aspects of life and have the right to equal recognition everywhere as persons before the law, the draft law says. It seeks to ensure that any disqualification on the grounds of disability prescribed in any legislation, rule, notification, order, bye-law, regulation, custom or practice that has the effect of depriving any person with disability of legal capacity shall not be legally enforceable from the date of enforcement of the proposed Act.

All persons with disabilities have the right, on an equal basis with others, to own or inherit property; control their financial affairs; obtain access to bank loans, mortgages and other forms of financial credit, and not to be arbitrarily deprived of their property.

The legal capacity of a person with disability shall not be questioned or denied, irrespective of the degree and extent of support, by reason of accessing support to exercise legal capacity. When a conflict of interest arises between a person providing support and a person with disability in a particular financial, property or other economic transaction, then such supporting person shall abstain from providing support to the person with disability in that transaction, the draft says.

All persons with disabilities shall have the right to live in the community with choices equal to others. The appropriate government and local authorities shall take all appropriate administrative and other measures to protect persons with disabilities from being subjected to torture, cruel, inhuman or degrading treatment or punishment.

Importantly, the Bill bars any person with disability to be subject to any medical procedure that leads to or could lead to infertility without their free and informed consent. It proposes hefty fine and imprisonment up to 10 years for violation. All establishments will also provide medical and life insurance to their employees with disabilities on an equal basis with others.

Right to free education

The Bill says that every child with benchmark disability, of the age of 6 to 18, shall have the right to free education; and all government institutions of higher education and all higher education institutions receiving aid from the government shall reserve up to 5 per cent of the total seats in each course for persons with benchmark disabilities, which include physical, and mental disabilities and leprosy cured.

The Bill recommends the setting up of a National Commission for Persons with Disabilities to formulate regulations that lay down the standards of accessibility for the physical environment, transportation, information and communications, including appropriate technologies and systems. Similar bodies will be set up at the State and district-levels. The Commission will take up issues that violate the provisions of the Act.

Most of these provisions were in the Bill drafted by a committee chaired by Sudha Kaul but it was criticised for its inadequacies. The committee was constituted in April 2010 and it came up with a draft Bill on June 2011. The Disabled Rights Groups has also come up with its own draft of a law that seeks to repeal all existing four laws while the official draft replaces only the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act of 1995.

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