Drafting India’s New Law on the Rights of Persons With Disabilities

Rights of persons with disabilities have not been at the forefront of human rights advocacy and scholarship. However, there has been a flurry of activity in the last few months with India’s ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD, the first human rights treaty of this millennium, was opened for signature on 30^th March 2007 and came into force in May 2008. India signed this Convention on the very first day and ratified it without any reservations in October 2007.

Prior to the CRPD, rights of persons with disabilities were seen as a welfare or social policy issue. The CRPD, however, introduces a paradigm shift in the realm of disability rights from the welfare approach to a rights based approach. This means that persons with disabilities are seen as subjects rather than as mere objects of social welfare.

As a result, India is obliged 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, the country is obligated to enact suitable legislation in furtherance of the rights recognized in the CRPD. Presently, India’s chief disability legislation, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 does not incorporate a number of rights recognized in the CRPD and even the rights that are recognized are not in total harmony with the principles of the CRPD.

In this background, the Union Ministry of Social Justice & Empowerment appointed a Committee to draft a new disability law to replace the current Persons with Disabilities Act of 1995 with a Disability Rights Law. The committee has amongst its members disability rights activists; parents of persons with disabilities and leading organizers of services for persons with disabilities along with representatives of various state governments and ministries and the Chairpersons of the National Trust and the Rehabilitation Council of India. In view of the legal expertise required to draft the new law, the Committee appointed the Centre for Disability Studies (CDS), NALSAR University of Law to support and assist the Committee in putting together a working legal draft. The National Institute of Public Finance and Policy (NIPFP) provides the financial expertise.

Recently, the Committee released a working draft of the law. The working draft attempts to bring within the folds of one law the diverse concerns of persons with disabilities. It proceeds on the basis that be it: life and liberty; or education and employment; the goals of full empowerment have to be reached for all persons with disabilities. Yet in acceptance of the diversity which subsists within disability, it proposes distinct and appropriate pathways be created for all persons with disabilities. Consequently even as the draft recognizes the right of  all persons with disabilities to equality before the law and prohibits any discrimination on the basis of disability; it also acknowledges that for a large number of persons with disabilities in vulnerable circumstances, legal recognition needs to be accompanied with proactive programming initiatives, to achieve full inclusion.  The working draft has been put together so that the Committee, the Disability sector, the larger civil society and the duty bearers can through a process of dialogue and deliberation arrive at a legislative text which can be accepted by all. The Committee is scheduled to meet in Delhi on January 2, 2011 to discuss the response to the working draft.

The law-making process has proved to be challenging thus far, primarily because of the competing demands of a large and diverse sector. However, in a society that has systematically discriminated against persons with disabilities and has rarely their rights; the new law will be the first step in a long-drawn movement. To borrow Gerard Quinn’s words, there is no guarantee that the new values – basically old values but novel in their application to disability – that are embedded in the law will be internalised and then operationalised. For this to happen, attitudinal change and notional change amongst the non-disabled world is essential. The new law offers an outstanding opportunity to bring about a change in societal perception as persons with disabilities ask the world around them to be rebuilt in acknowledgement of their existence and not in ignorance of it.