International conference on Education for all, warsaw 29JUNE-1july 2011

1. VaishaliKolhe, Center for Disability Studies and Action, Tata Institute of Social Sciences, Mumbai, India Restructuring the New Legislation for Person with Disabilities by Implementing the UNCRPD framework: in Indian context.

2. International conference on Education for all, warsaw 29JUNE-1july 2011

3. population • Disability means differences • Its matter of degree of out casting, exclusion based on the mindset/ ideology of a particular society • Disability is a result of interaction of a person’s impairment with the environment, leading to barriers ………….structural, social ,psychological, mental, physical • 10 % ,650 million of world population live with one or other category of disabiliy (UN 2006) • Majority 80% live in developing country with conditions of poverty(world bank 2005, UN 2006) • National sample survey Organisation (NSSO,1991) 1.9% of indian population are disabled • Status of PWD is invisible in india till today

4. Current legislation • PWD Act 1995 • National trust Act • Mental health act • All the above legislative machinery has failed to provide a foundational ground of social justice and empowerment as citizens of the country • Non punishable /without any teeth

5. New legislation with UNCRPD PWD ACT 1995 NEW LEGISLATION -UNCRPD • Fragmentation of services, ad hoc, patch work, : disability commissioner • Definition of disability-degree of disability is problematic -medical zed • Categorization of disability into 7 categories • PWD treated as Objects of charity • Central and state work in isolation- • Fragmentation of services at ministry level- • Vertical-top down approach • Construction of disability-medical • Non punishable • Statutory judisiary system-tribunall system for social justice and reaching to all-Disability Rights Authority • Definition of disability –person hood approach • Include all disability in one umbrella • PWD treated as subjects of rights and citizenship • Central and state are interdependent on each other-inclusion • Statutory machinery tribunal system aiming to streamline services till grassroots/district level • All ministry involvement central, state courts on • Vertical to horizontal bottom up • Construction of disability-social • Punishable-tribunals, court • Affirmative action in place-edu,health

6. Restructuring processess • Government of India –ministry of social justice an d empowerment signatory to uncrpd made amemdments • Disability Ngos were very unhappy as they were not part of this amendment making process • Disability ngos voluntarily started consultation on making new legislation • state Consultation and legal consultation stated happening in all over india to include voices of pwd • Center for disability studies NELSAR hydrabad with law consulation was appointed by GOI to draft new law • April 30 2010 meeting with core consultative committee to draft the law and submit it to the GOI by 30 june 2011.

7. CHRONOLOGY OF RESTRUCTURING THE NEW LAW OF PWD • 2007-First convention of UNCRPD-Nov 2007 • 2008 -Implemented in may 2008-india signed MOU • 2009- Modifying the existing law to comply with the convention-government amended the existing act – • 2009-First voluntary consulative meeting happened -Oct 2009 of legal experts having disability and disability NGOs • 30 April 2010,under SudhaKaul chairing deliberated with committee for preparing a draft using UNCRPD headed by Dr Amitadhanda to draft the law and present to GOI in 14 months • Feb and march 2011 consulation occurred in 4 zones-north,west,south east • Consulationinvoved regional ngos,govrnmentorganisations,centre for disability studies TISS, • Consultation –followed by submission to government by june 30 2011 • This new draft of the law will go to all minisries (law,educ,health,finance and all) to work out implementationary mechanisms2

8. Law Drafting committee • Prof AmitaDhanda the head of the Legal Consultant’s team in her presentation spoke of how the principles of the CRPD and the aspirations of persons with disabilities have been the guiding principles for the Committee. In the performance of this task the Committee had followed precedents where available but also acted on first principles where required

9. PWD-New legislature 2011 • Core uncrpdframwork • Seven major chapters • Chapter1:definitions and guiding principles for implementation • Chapter 2 are on lifting the barriers and awareness building and on equality and non discrimination • Others are on legal capacity and civil and political rights • Capacity development-edu,sports,health,security • Authorities –disability rights authority which involve chief, state, and district commissioner-issuing legal ly binding statutory code of practice ensuring justice • this draft with all the consultative minutes will be submitted to GOI on 30thjune 2011 for implementation process

10. New paradigm shift-lens of improving QOL & Affirmation • Education • Employment • Health • DRA • Social political rights • Lifting barriers • Equality and non discrimination • Statutory machinery(tribunal)for justice to all • Aiming towards nothing about us without us

11. education • All authorities engaged in higher education should be brought under the scope of the law. • provision for lab assistance and readers. • Reasonable accommodation and neighborhood school •  Time frame for physical accessibility • Reservation should be provided for wards of parents with disabilities. • The School management committee should include parents with disabilities. • School should be located within a radius of 1 km for primary education, 3 km for secondary education.

12. employment • The reservation of vacancies needs to be reexamined. • The power to grant exemption should not be totally removed. This power could be conferred on the DRA but the advantages of retaining this power in the context of reservation needs to be appreciated. • Carry Forward should be done for a period of three years. When interchange done there needs to be provision for compensating the category of disability. • Transfer and posting should be in vicinity of residence or in place of choice • NREGA like scheme should be created for urban areas for persons with disabilities. • It should be presumed that the removal of a person with disability during probation is by reason of disability and the burden of dispelling that presumption should be on the employer

13. Disability cirtification • the process of certification and desired that the statute should protect persons with disabilities from the requirements of having to obtain multiple certificates. It was suggested that the full faith and credit clause in • Art 261 of the constitution should be extended to medical certificates

14. Socioeconomic and civil rights • Accessibility • There should be a provision for E-workplace accessibility. • When dealing with government and private websites providing consumer services, the term consumer services needs to be defined. • It should be mandated that all Indian language websites use Unicode characters, otherwise screen reader problems arise. • The Delivery of Books Act should be amended : accessible version of books should be deposited in the repository as per the Act. • As per 24(3), all establishments shall facilitate reasonable accommodation: Explanation must refer to adequate measures and not facilities.

15. New legislation –uncrpdframwork strength weaknesses • Enforcing statutory machinary for disability rights authorities - based frame work • Interrelartedness and independednce • Affirmative action • National tribunal • District courts also proposed • Cirtificationunder cont-261-applicable to all india • All disability are clubbed together • Diversity is not looked upon • Divide and rule • Sexakl disability is missing • Parents bodies are rigidto give away gardianship • Multiple dibility cannot be taken care of • Will be implemented in march 2012

16. methodology • Primary data; semi structured interview schdule with the members of the consultative committee • Secondary data-new draft committee report • Uncrpd document • Articals on new legislation written by lawers and legal group of consultative comitee • Qualitative analysis of the primary and secondary data • Adding inputs from being part of the consultative meetings of new legislation.

17. Outcomes • Including all disability under one umbrella is problematic due to their diversified needs and concerns • Under 323 B there is a need to make constitutional changes to design remedy of such vast population with such large diversity • State and district judicial bodies with power to operate and fast driven justice facilitation has to be operationalise • This draft should be read by all ministry to make necessary changes in their existing law • Constitutional amendments has to be made to include PWD as citizens • Guardianship in national trust act has to be relooked • Sound mind –in constitution has to be relooked • Constitution 261 on public record–applicable for disability certificate-to all over India • Constitutional amendments are must

18. Thank you