We, the PwD of India...

A CALL FOR ACTION - We need to clean up our act!

2010-11-26T16:24:00.000+05:30

Open Letter to Dr. Sudha Kaul and Ms. Amita Dhanda,

I write to express to you the anguish of a large section of persons living with mental illness and their families whose aspirations have been betrayed by the working draft of the proposed Persons with Disabilities Act. We have waited with abated breath for this law and now we find that the proposed law does not even recognize the basic needs of survival of persons living with mental illness.

In various formal and informal meetings that my colleagues from the disability sector/ mental health sector and I have had with you over the last year we have expressed our worry about the incompleteness of the process and partisan inclination of the process. We have been asked to trust and work in good faith. We now see a pursuit of ideology has taken over interpretation of UNCRPD in this proposed draft. Most intellectual debates have been dismissed patronisingly as our ‘existential anxieties’ or ‘thinking in old paradigm’. And when the pitch has increased to express the impatience, we have been the called the unruly civil society. We had hoped that the draft of the new law would assuage all the fears and prove us wrong. The proposed draft has proven our worst fears right. The legal consultant has failed to fulfil the expectations that the country had. The committee unfortunately has not even had the time to reflect on the evocatively worded but euphemistically circumstantial draft. We hope that it is as worried as we are about the draft.

Our key worries on the first reading of the draft are the following and they can only be corrected by rewriting significant parts of the draft.

• It is written as an elite urban centric document. The word rural appears twelve times in the draft but mostly as an afterthought. The conceptual framework of the law does not take in to account the needs and realities of a person living with disability in the rural India.

• It is a document that does not determine the specific state responsibilities. While it acknowledges the rights, it gives no clear directions in form of legislated programming for the realization of these rights.

• While it names many fancy structures as authorities it forgets that no government structure can function in isolation. The proposed law duplicates authorities by creating a District Level Commissions while not abolishing the Local level committees under the National Trust Act. The new law creates a new set of registered organizations and another Electoral College for Disability Rights Authority while keeping the Electoral College for the National Trust alive. The new law leaves the responsibility of human resource development to individual ministries without changing the role of RCI. There no link between the governance structures in the new law and the PRIs. There is no link between the DRA and the Commissioner’s office.

• The new law in the detailing of the National Institute of Universal Design confuses the concept of Universal Design with the concept of Physical Accessibility. It goes against the definition of Universal Design in the convention, which call for the universal design not only of structures but processes.

• It leaves the onus on the disabled person to seek support and to seek their entitlements. It does not specify how the state would fulfil its responsibilities beyond increasing awareness, setting the authorities in place and taking ‘suitable measures’.

• While the Act sees legal capacity as a principle of the law yet while writing the chapters on Education, Health, Independent Living, Employment, Social Security it seems to go back to the assumption of incapacity by remaining silent on the specific measures that need to be taken to ensure the realization of these rights for person living with mental illness or persons with intellectual impairments. There is also a disproportionately lower number of jobs being reserved for persons living with mental illness, persons with intellectual impairments and autism. This too seems to be an assumption of incapacity.

• The National Trust has been intentionally left out of this draft. We wonder if it should not be considered a conflict of interest. There seems to be an obvious need to sustain a parallel draft for the National Trust.

• The way the legal capacity chapter has been written in the present draft is most definitely going to exclude many persons living with mental illness from all health care systems when they need them the most. It denies the existence of mental impairments in mental illness in pursuit of the belief that all of mental illness is social constructed.

• It denies the possibility that a person living with mental illness or person living with Intellectual Impairments or a Person living with Autism may not be able to seek support or may not be take a decision even when all support is available.

• Under the new Act Persons with Disability will have to seek support. Pray, how would persons with high support needs do so? The new law makes a grandiose declaration that the plenary guardianship is abolished with the passing of this law. Imagine, the day after this law becomes an Act, how would lives run while the academic exercises of deciding electoral colleges for the DRA, the Chairpersons, the District Commissions, the Action Plans, the suitable measures and all the rest of euphemisms and ‘do nothingisms’ gradually sort themselves out? And of course anyone who steps in and tries to do something for the disabled person can be reported against by any person walking on the street as violating this law and can be arrested. Is this the vision of the new paradigm? We wonder why the details of transition from plenary guardianship and details of ‘what if’ crisis situations have not been worked out.

• While it will be easy for you to brush aside these arguments by calling us as supporters of the old paradigm (or calling me a psychiatrist), it is will be difficult to cite another country which has followed this ruthless approach to implementing legal capacity. The Convention itself has not ruled the possibility of substitution in certain situations, while it prefers supported decision-making. Why is the nuance not brought in to the Indian Law?

• The new law proposes to criminalize institutional care without creating alternatives. Nearly 20,000 persons living with mental illness and another 20,000 persons living with intellectual impairments currently live in Institutions. There are no government run mental health services in nearly five hundred districts. There are no mental health services in nearly three hundred districts. Lakhs of people with mental illness have no support available to them except the acceptance of the family. There is no plan increase the quality of care in the Institutions. There is no specific plan to increase the community based mental health interventions and there is no plan to care for the persons living with mental illness who are homeless. The community support programs that do not exist today will not erupt spontaneously with the passing of the law. Lack of treatment also leads to denial of dignity. Lack of treatment also leads to lack of employment, furtherance of stigma, furtherance of the assumption of incapacity and dangerousness. Access to care is a key right of persons living with mental illness. Lack of care and treatment leads to loss of life and increased disability. There is enough and more evidence for all this. Yes, it is important to protect people from the rights violations that are also a reality. But one cannot be seen as oppositional to the other. The rights are indivisible. The key reasons why people living with mental illness and intellectual impairments get abandoned will continue to hound us for years. Just saying that Institutionalization is a form of violence does not unfortunately change anything for persons living with mental illness unless there is a legislated time bound process to create alternatives.

• The new law proposes to criminalize the service provider and the family for providing treatment of persons living with mental illness even when (due to mental impairment) the person may be a risk to themselves or a clear and present danger to others.

• The proposed draft does not address the issue of diminished criminal responsibility when the person with mental or intellectual impairment may not have understood the fact they may be committing a crime.

• The proposed new law potentially criminalizes all the service providers including family by criminalizing neglect.

We have heard and used the word ‘nightmares’ after the first reading of the draft. It is unfortunate that what could have moment of celebration is turning out to be a moment of mistrust and fear. We would still request the committee to constitute (or shall we say reconstitute) the legal panel, to review the work of the legal consultant. We would also request the committee to compare the proposed draft not with its opinions but with a set of parameters of UNCRPD and the use the Handbook of Parliamentarians as guidance. We would urge the committee to have a meeting with the members of the Mental Health sector to listen to our real worries. Please do not brush aside what is a matter of life and death as just patriarchal concern. We beseech to you not to send a stock ‘hum dekh rahe hain, aur age bhi dekhenge’ reply.

With warm regards,

Achal Bhagat

SG 6 Employment & Occupation

2010-09-06T12:39:00.002+05:30

SG 6

EMPLOYMENT & OCCUPATION

MEMBERS:  Mr. Rajive Raturi, Ms Jayshree Raveendran (Team Leader), Mr. Ramakrishna, Mr. Punani, Ms Srikala, Mr. J P Gadkari, Mr. K.G. Verma (Rep. of DoPT).
DRAFT SUB GROUP REPORT AS ON 12 AUGUST 2010
Download this draft as pdf

Sub-Group on EMPLOYMENT & OCCUPATION

Second Draft of Report of Sub Committee on Employment based on the meeting of the Committee held on 22nd July, 2010 and the comments of the members received subsequently

Name of the Chapter: Work, Employment and Occupation

Principles: The provision on work, employment and occupation must be based upon the following non-negotiable principles:

The right to “work” and “occupation” and gaining “employment” should be duly recognized in the new Act.

No Employer, Government, Corporate, Public or Private shall refuse employment merely on grounds of disability and shall not make any differentiation in the terms on which employment is offered to persons with disabilities.

There shall be no discrimination in nature of job, working conditions, pay scales and compensation offered to such persons.

Section 2 (k) of the amending Act which defines "establishment" is very restrictive in nature. It takes the private sector completely out of ambit of the provisions of PWD Act. This Section should be suitably modified specially in respect of employment of people with disabilities in the private sector.

Section 2 (j) of the amending Act which defines "Employer" is also very restrictive in nature. It should be modified to include each and every employer as per the provisions of Industrial Dispute Act, Minimum Wages Act and ESIS Act.

Section 1: Non Discrimination in Employment

(i) No person with disability shall be discriminated against only on the ground of disability by the establishments managed or controlled either by appropriate Government, public sector or private sector.

(ii)Any person with disability who is otherwise eligible for any vacancy sought to be filled up by any establishment whether Government, public sector or private sector, shall have substantive right to appear for selection and hold the post in question if selected.

Section 2: Identification of posts for facilitating scheme of Reservation

(i)Every appropriate government shall identify posts which can be held by respective categories only for the purpose of using such identification of post for implementing scheme of reservation for Person with Disabilities as contained in Sec.33 of the act.

(ii)For the purpose, every appropriate government shall constitute and expert committee consisting of at least one representative of organizations working in the field of each of the categories of disabilities which is entitled to get the benefit of scheme of reservation.

(iii)It shall be obligatory upon every appropriate government to undertake periodic review of the identification of posts at an interval of at least every three 3 years to update the list of identified posts.

(iv)Every appropriate government shall notify in the official gazette the list of identified posts which may be used for appointment respective category of Person with Disabilities after his selection either against the unreserved posts or against the post reserved for Person with Disability.

(v)The notified list of identified posts shall be treated as an illustrative list of posts which can be held by Person with Disabilities and not as an exhaustive list. The list should be used merely as a guidelines and employment should not be confined to the identified post only.

(vi)No person with Disability shall be denied consideration for appointment or appointment against any post which is not included in the notified list of the identified post, if he is otherwise eligible for such post as per the notified eligibility criteria for the same.

Section 3 Reservation of Posts

3. (1) Every appropriate Government shall reserve in every establishment such percentage of posts including in the organized services not less than 5% of the total cadre strength in each group of posts, all forms of jobs, including contractual labour, in the establishment for the following class of persons with disabilities in the following manner:

(i)Person with blindness- 1% of all categories of posts.

(ii)Person with hearing impairment – 1% of all categories of posts.

(iii)Person with locomotors disability, cerebral palsy and leprosy cured- 1% of all categories of posts.

(iv)Person with low vision - 1% of all categories of posts.

(v)Person with mental retardation - 1% of all group C and D posts.

Provided that the Appropriate Authority as the case may be, may, having regard to the duties of the particular post in any establishment, office or department exempt the recruitment to such posts by notification from the purview of this section.

However the Appropriate Authority shall review such decision every two years.

3. (2) The reservation as contained in sub section 1, shall also apply to all such establishment which were earlier owned, managed and controlled or substantially financed by the appropriate government before its privatization.

3. (3) All private entities which are primarily having substantial trade/business with the appropriate government will also be covered by the scheme of reservation as contained in Sub Section 3 (1).

3 (4): Such reservation shall also made in respect of promotion of persons with disabilities with a provision of creating supernumerary posts in case when such vacancies are not there. Similarly, no employer shall refuse a transfer, any relevant training or provision of any other benefits merely on grounds of disability.

Section 4: Carry Forward of Reserved Posts

(i)Wherein any recruitment year, any vacancy reserved for the aforesaid classes of persons with disabilities and advertise as such could not be filled up due to non availability of a suitable person with a disability in spite of the selection process having been under taken, to fill up the said reserved vacancy, such vacancy shall be carried forward to next two succeeding recruitment years.

(ii)In case in the third succeeding recruitment year also suitable person belonging to the said class of disability is not available, it may first be filled by interchange among the classes of person with disabilities entitled for reservation.

(iii)If the vacancy is not filled even after carrying forward the vacancy and trying to interchange the same with other class of disabilities, the Employer may apply to the Appropriate Authority for the de- reservation of the given post, whose decision shall be final.

(iv)In the event of filling up vacancy reserved for a different category of disability by interchanging the same in terms of sub section (ii), equal number of vacancies so filled by interchange will be diverted to the category of disabilities whose vacancies were filled by interchange from the reserved vacancies for the categories of disability which benefited from such interchange. Explanation: For the removal of doubts, it is hereby clarified that the post sought to be de reserved shall be kept vacant until the decision has been communicated by the C Appropriate Authority on the application of the de reservation.

(v)The reservation policy shall be implemented subject to and under the purview of following terms and conditions:

a.Adopt and apply the concept of reasonable accommodations as a mandatory provision at all stages

b.Ensure reservation in promotions on the pattern of such reservations for special categories life SC/ ST and no denial of promotion on basis of safety, security and efficiency (in context of Supreme Court Judgment)

c.Appointment of nodal officers in all establishments who will be accountable for meeting employment provisions and penal action on default.

d.Create mechanism for strict monitoring and implementation of provisions on work, employment and occupations.

e.Recruitment of disabled who qualify on merit not to be adjusted against reserved category

f.Recognition of legal capacity of all persons with disabled to enable them to avail employment opportunities

g.Organizing special recruitment drives at the state as well as national level on periodic intervals.

h.Formulation of schemes and programs to include launching to special recruitment drives, job retention and return to work, flexi work timings, assistive aids and equipment to be made mandatory in employment, schemes to provide live assistants free of cost, on the job trainings, loans for starting business, pre recruitment training unemployment allowance, where essential.

i.Annual reports and such other publications of all organizations should clearly reflect the percentage of employees with disabilities employed so far and during the preceding year

4. Continuity of Employment

No establishment including a legal entity in private sector shall dispense with, or reduce in rank an employee who acquires a disability during his service with special mention for protection of employment in case of acquiring mental illness and multiple disabilities:

(i)Provided that, if an employee, after acquiring disability is not suitable for the post he was holding could be shifted to some other post with the same pay scale and service benefits:

(ii)Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable is available or he attains the age of superannuation, whichever is earlier.

(iii)No promotion shall be denied to a person merely on the ground of his disability.

(iv)No establishment of the appropriate government as well as a legal entity in private sector shall deny appointment or withdraw the offer of appointment made to a person who acquires disability after selection.

Explanation: Provisions of Sub-section 1 and 2 of this section shall also apply to all employees with disabilities whether appointed before or after this enactment.

Section 5: Restrictions on retrenchment

(i) Every establishment belonging to appropriate government or the private sector or corporate sector shall be obliged not to include the disabled employee in any exercise of retrenchment or of declaring the staff surplus unless the establishment is wound up in accordance with law.

(ii) In the event of closure of any establishment of appropriate government, the disabled employee of such establishment shall be entitled to re employment in any other similar establishment of the respective appropriate government with the same employment benefits and as a continuum of his /her earlier employment.

(iii) In case any appropriate government finds it impossible to provide the alternative employment to the disabled employee in accordance with the provisions of sub section (ii), it may apply to the Appropriate Authority for exemptions from the provisions of sub section (ii), provided that it shall be obligatory upon the respective appropriate government to pay double benefits to the disabled employee in respect of closure of such establishment.

Section 6: Special Employment Exchange

(i)Notwithstanding anything contained in a statute rules or administrative instructions to the contrary every special employment exchange, run by Appropriate Government or NGOs or Corporate bodies or Universities or other Educational Institutes or Placement Agencies shall register not less than 10 % persons with specified disabilities.

(ii) Every establishment of the appropriate government shall notify the vacancies sought to be filled up by it to the special employment exchange located in that area with clear mention of the vacancy reserved for specified disabilities with a copy of such requisition of vacancies to recognized NGOs working with the specified disabilities.

(iii)Every special employment exchange, on receipt of requisition from establishment, shall sponsor the names of eligible persons with specified disability for which the vacancy / vacancies has been shown as reserved in the requisition.

(iv)The appropriate government may by notification, require that from such date as may be specified, by notification, the employer in every establishment shall furnish such information or return as may be prescribed in relation to vacancies appointed for person with disability that have occurred or are about to occur in that establishment to such special employment exchange as may be prescribed and the establishment shall thereupon comply with such requisition.

(v)The form in which and the intervals of time for which information or returns shall be furnished and the particulars they shall contain, shall be such as may be prescribed.

(vi)A sound mechanism shall be enforced to monitor performance of special employment. This should also extend to creating awareness among employers and the general public, about provisions on employment and the need for their compliance.

Section 7: Employers to Maintain Records

(i)Every employer shall maintain such record in relation to the person with disability employed in his establishment in such form and in such manner as may be prescribed by the appropriate government.

(ii)The records maintained under sub section (i) shall be opened to inspection at all reasonable hours by such persons as may be authorized in this behalf by general or special order by the appropriate government.

(iii)Power to inspect records or documents in possession of any establishment: Any person authorize in writing by the Appropriate Authority, shall have access to any relevant record or document in the possession of any establishment and may enter at any reasonable time on the premises where he believes such record or document to be, and inspect or take copies of relevant records or documents or ask question necessary for obtaining such information.

(iv)All establishments shall appointment of Nodal Officers in, who will be accountable for meeting employment provisions and there shall be provision for penal action in case of such default.

Section 8: Selection Tests

(i)Every authority/agency responsible for the selection of incumbents to various posts in any appropriate government or in the private sector shall be obliged to either to include the person with disabilities in their regular selection process or conduct special selection tests depending on the nature of the disabilities

(ii)The recruiting agencies shall allow the scribe or make available scribe in terms of the rules made in this behalf to persons suffering from blindness for appearing / participating in the selection process.

Section 9: Work Opportunities

Recognizing the rights of people with disabilities, the Appropriate Governments, Local Authorities and such other constituted bodies shall promoting employment as a matter of right through the provision of ensuring self employment, entrepreneurship, gainful occupation, micro-credit, self help groups, cooperatives, community based rehabilitation, home based and domiciliary occupations, income generation, unemployment allowances, launching grants, loan facility, bank account operation etc. as measures of promoting income generation among people with disabilities.

Section 10: Reservation under Developmental Schemes

(i)The Appropriate Governments and local authorities shall reserve not less than five percent, in all poverty alleviation, rural development, social development, community development, women empowerment, health, housing, shelter, special schemes for other marginalized groups, cooperatives, micro-credit, loan schemes and disaster and other relief etc. for the benefit of persons with disabilities an their families in the same proportions specified in section… of this chapter.

(ii)All employment promotion programmes and schemes in urban and rural areas shall provide for similar scheme of reservation as contained in sub-section (i) of this section and every appropriate government including local government shall include jobs and vocations which can be performed by different specified disabilities.

Section 11: Incentives to employers to ensure Employment

The appropriate Governments and the local authorities shall, provide incentives including but not limited to tax benefits to the employers both in public and private sectors, to ensure that at least ten per cent of their work force is composed of persons with disabilities.

(i)The Appropriate government shall provide adequate and appropriate incentives like tax exemption, duty drawback or awards to employers and establishments that make workspace in the private as well as private accessible and barrier free for persons with all categories of disabilities.

(ii)The Appropriate Government shall also frame a scheme for making grant to public and private sector for providing assistive devices to the employee with disabilities.

Section 12: Rights Based Approaches

The Appropriate Government and Local Authorities shall recognize and protect rights of persons with disabilities by ensuring effective implementation of the following provisions:

Equal pay for equal work, irrespective of Gender

Creating roaster point in employment

Dealing with abuses on account of disability and to people with disabilities

Prohibiting discrimination against persons with disabilities especially those with mental illness

Making environment Barrier Free for all persons with all categories of disabilities as a mandatory provision.

Creation of supplementary posts in case of promotion of persons with disabilities

Special focus on women with disabilities

Adoption and implementation of child protection policies

Reserve not less than 5% of shops , kiosks, tehbazaries and dealerships of all kinds to be allotted by such agencies to persons with specified disabilities

Job retention and return to work in case of persons with mental illness

Provision for on the job training, vocational training, income generation, gainful occupation and self employment.

Encouraging prospective employers to organize training programs to build capacity of persons with disabilities.

The NHFDC shall review its norms and follow norms to banking system as regard to advances to persons with disabilities.

Every State shall have a State Disability Development and Finance Corporation to advance loans to people with disabilities at concessional rates of interest.

There should provision to support enabling technology, assistive devices and employment oriented gadgets.

To promote sensitization of employers and other employees and other stakeholders.

Soft loans and market support facilities to support self employment initiatives by persons with disabilities;

The relaxation in upper age limit;

Setting up of sheltered workshops;

Health and safety measures and creation of a non handicapping environment at workplaces

Provisions for additional medical leave for specified disabilities;

Allocation of raw material for self employment initiatives

Preference in government purchases to persons with disabilities, their associations, self help groups, vocational and on-the-job training centers, disability development organizations, parents groups and such other organizations

Section 13: Non-discrimination in other matters of employment

13(1) Counting of Work Experience: The service by disabled employee in private sector shall be counted for determining his/her eligibility with reference to upper age limit.

Every appropriate government and its establishment shall take into consideration the service rendered by a candidate with disability in the private sector while deciding his/her eligibility for recruitment to a given post with reference to eligibility criteria of upper age limit for entry into service.

13(2): Relaxation in medical standards: Notwithstanding anything containing the recruitment rules to the contrary, the medical standards shall stand relaxed in case of a candidate with disability who is otherwise eligible for such post.

13(3) Reasonable Accommodation: All employers shall extend “benefits” to include, but not limited to, reasonable accommodation, enabling technology, aids & equipment, access at workplace, adjustments to premises like rest rooms, canteens, etc. Modification of instructions & reference manuals, providing a reader or sign language interpreter and other facilities and services to ease disabled persons’ fitment to perform reasonable work.

13(4): Accessibility: All provisions affecting the accessibility criteria on employment shall be mandatory available at workspace, and not denied as a matter of choice or economic capacity.

Section 14: Allotment of Land

The Appropriate Government and Local Authorities shall by notification frame, implement and monitor provision of land to persons with disabilities, their association, parents groups, organizations working for them on preferential basis at concessional rates for the purposes of promoting their housing, shelter, setting of occupations, businesses, enterprises, self help groups, gainful occupations, small industries, trading & business houses, recreation centers, establishment of special, inclusive & residential schools, teacher training centers, research & development centers, various units including factories, production centers owned and managed by persons with disabilities etc. with the following provisions of reservation of not less than 10 percent in allotment of land to all categories of disabilities for these and such other purposes.

Section 15: Assistive Devices

The Appropriate Government shall by notification formulate, support and implement provision of assistive devices, aid and appliances, educational, mobility and rehabilitation devices including such devices required for promotion of work, employment and occupations, completely free of cost for persons with disabilities coming from families below certain income and at affordable cost for other such persons.

(i)It shall be Employers obligation to provide for necessary assistive device and make necessary adjustment in work process.

(ii) It shall be the duty of the employer to provide necessary enabling technologies, equipment, gazette, aids and appliances and devices for utilizing the services of an employee with disability at his own cost.

(iii) The appropriate government shall implement a scheme for defraying the part of the cost of the enabling technologies, equipment, gazette, aids and appliances and devices to the employer to promote employment of the Person with Disabilities.

(iv) It shall also be the duty of the employer to adapt/modify machinery/work process which becomes necessary for increasing the productivity of an employee with disability.

2 comments:

captainjohann said...: In the Old act of 1995, reservation was given only to three out of seven types of disabilities, thereby discriminating other disabilites . In the present schem of things there seems to be discrimination continuing especially with regard to autism and disabled due to Mental illness.; September 3, 2010 1:23 PM
captainjohann said...: An NGO working for a particular disability must employ atleast 50% of their staff especially in the administraive side from that disability.; September 15, 2010 4:28 PM

SG 4 : Education

2010-09-06T12:37:00.001+05:30

SG 4

EDUCATION

MEMBERS: Mr. Bhushan Punani, Ms Poonam Natarajan, Dr. Uma Tuli, Mr. Narayanan, Ms Merry Barua.

DRAFT SUB GROUP REPORT AS ON 12 AUGUST 2010
Download this draft as pdf

Sub- Group on EDUCATION & EDUCATORS

1st August, 2010

Second Draft of Report of Sub Committee on Education revised on the basis of basis of feedback received during Second Meeting of the Committee held on 22nd July in New Delhi and responses of the members received subsequently

Title of Chapter: “Education and Educator Training”

1.Access to Education: The Appropriate Government and Local Authorities including Panchayati Raj Institutions should ensure that every child with a disability ensure access to free education up to secondary level and affordable education at higher levels of education with focus upon the areas including:

(N.B. Age level of 18 years has been taken away)

a.The term Education designates spaces anywhere where life long learning happens and shall also include Anganwadi, preparatory, pre-primary, primary, upper primary, secondary, higher secondary, higher education skill development, technical, pre-vocational vocational, professional training including post graduate and doctoral level education,

b.All sectors of education including Government, local bodies, public, grant-in-aid, public private partnership, private, corporate, self finance and any combination thereof

c.The Education to be promoted at all level of early intervention, bridge course, adult, integrated, inclusive, alternative, home based, distant, literacy, part time classes, non formal, alternative, open schooling, special, residential, vocational, pre-vocational, lifelong learning.

d.The concept of “reasonable accommodation” and use of technology to be adopted in all forms, all level and all types of education

e.All the concepts of special, inclusive as well as alternative education at all levels, all types and all forms of education should be promoted.

f.The vocationalization of education, development of skills and entrepreneurship development at all levels and in all forms of education with focus on inclusive practices shall be practiced and promoted.

g.National events like Abilympics, Paralympics, Special Olympics, Cricket & sports for the people with disabilities etc should be used as vehicle for promoting skills, techniques of mind and body building, and sportsman spirit. These initiatives are not just about building attitudes or skills but provided opportunities to be educated in and trained in as well as practice various sports.

2.Reservation in Admission: All Government educational institutions and other educational institutions receiving any form of grant, technical support, concessions or benefits from the Government should reserve not less than 5 percent seats for persons with all categories of disabilities with additional reservation of 1 percent for the children of parents with disabilities The educational institutes should include engineering, industrial training, computer, information technology, creative art, medical, commerce, management, literature, nursing, physiotherapy etc at all levels of education including higher education and post graduate education..

3.Rights Based Programs: The Appropriate Government and Local Authorities shall evolve, support and promote various rights based programs on promoting education including:

Inclusive education at all level of education wherever possible

Special education for children needing special attention based upon pre-decided guidelines

Distribution of Braille books, large print, low vision devices, education devices, language development devices (such as activity based learning material), early learning kit, assistive devices, rehabilitation devices, computer aided devices, hearing aid, cochlear implant, augmentative and alternative communication devices, adapted furniture and computer software, science laboratories, books, stationery and other adaptations and accommodations required for academic support completely free of cost and at all levels

Promoting total communication with the use of individualized way of speaking and listening, using non verbal or metaphorical forms for communication, especially in case of people with autism, cerebral-palsy, mental illness etc.

Early intervention including parent training, assessment, therapeutic interventions, medical support

Transport facility for children as per requirement including those having restricted mobility and those and staying away from schools

Residential facility when required as a part of education for the children needing care and support during education

Residential homes run for disabled, destitute, orphans and abandoned children to impart appropriate education, vocational training and entrepreneurship development as per individual need

Scholarship for all levels of education with adequate amount commensurate with the expenses on education.

Medical support to persons with disabilities under special Medicare scheme or at affordable cost

Training and Services of care-givers (Sahyogi) in case of children needing such support including support of sign language interpreters. Imparting orientation to concerned officials in understanding and use of sign language and in giving support and care, understanding needs of themselves as well as needs of PWD, training in communication, independence training and life skills etc.

Services of the writers, readers, amanuensis and counselors and the use of devices including computers in the classroom as well examination as and when required depending upon nature of activities and of children.

Developing suitable pattern guidelines of amanuenses so that persons with disability are not only disadvantage or excluded from examination on account of non-availability of suitable amanuenses.

4.Educator Training: The Appropriate Government, Local Authorities, Universities, Teacher Training institutes and other relevant Councils and Authorities should establish and support teacher training institutes as special or inclusive institutes for imparting training to special teachers as well as mainstream teachers, including teachers with disabilities, who are qualified in sign language and /or Braille, and to train professionals and staff who work at all levels of education. These levels include pre service and in-service at all levels of education including those for early intervention, assessment, child preparatory services, itinerant teachers, resource teachers and teacher counselors. These to pay special attention to:

Such institutions shall be provided grants including grant for maintenance to make teacher education affordable

The special, resource and itinerant teachers shall be provided salaries equivalent to the other teachers working at that level of education with a provision for special allowance (as is being done in IEDSS scheme). The system of paying honorarium as a substitute to salary to teachers and other staff should be discontinued as it is discriminatory. Grant-in-aid and Government institutions should be paid salaries as being paid to other schools. For non grant in aid institutions should ensure quality of education with the qualified scales.

It shall be mandatory to appoint special teachers in a suitable ratio in all the schools where children with disabilities have been enrolled; and provide grant for such teacher from the same source from where grant for other teachers is provided.

Provision of imparting appropriate training to mainstream teachers including a component on understanding and respecting diversity at the pre-primary, primary, secondary and higher secondary level and other relevant professional training courses.

Special courses for the special as well as regular teachers and other stakeholders in sign language, Braille, child assessment, total communication, child psychology, child preparatory services, low vision assessment, managing resource rooms, life skills, use of assistive devices and application of information and communication technology (ICT) etc.

All Teacher Training Colleges, Teacher Training Institutes, Universities shall include a compulsory paper on “Teaching Children with Disabilities” in all the teacher training courses including Primary Teacher Course (PTC), Bachelor of Education (B Ed.), Master of Education (M.Ed.) etc. The National Council for Teacher Education to frame appropriate rules and ensure implementation thereof in expeditious manner.

Recognizing sign language as another optional language rather than as special education issue and promote linguistic identity of deaf community.

5.Assistive Devices: The Appropriate Government and Local Authorities shall promoting research, development, production, distribution and training in use of assistive devices, rehabilitation devices, mobility aids, and computer aided devices and technology products facilitating functioning and education of children with all type of disabilities. Allocating adequate resources (say, Corpus of 100 crores) at the Central and State level this purpose and for ensuring easy access to persons with disabilities and other stakeholders.

6.Barrier Free Environment: The Appropriate Government and Local Authorities shall ensure development of Barrier Free Environment in all educational institutes, training centres and human resource development centres, especially toilets, approach roads shall be barrier free, accessible and user friendly within a period of 5 years from the commencement of the Act. The concept of Barrier free should consider all types of special needs. These measures should include physical environment, signage, Braille markings, Braille display unit for the deafblind, audio signals, visual warning alarms, colour combination, avoiding use of florescent lights, tactile floors, ramps, and lifts, enabling devices removal of obstructions and promoting use of technology. The new locations of school sites must be chosen with care using an inclusive lens to create a barrier free environment and accessible buildings incorporating not only ramps but accessible class rooms, toilets, play grounds, laboratories and other utilities etc.

7.Curriculum Adaptation: The Appropriate Government and Local Authorities shall make mandatory provisions for developing of curricula and adaptation of existing curricula to meet individual needs where required (such as provision to learn only one language, bilingual for the hearing impaired) making curricula accessible (Braille, audio, large print) with focus on experiential learning and imparting training to teachers in handling these formats.

8.Examination: The Appropriate Government and Local Authorities shall develop and implement system of examination to enable the students to suitably overcome the disadvantage due to nature and extent of disability subject to following provisions:

a.A uniform system of providing support of writers, permitting use of technology and adaptations, providing separate and accessible seating arrangement where required and compensating for loss of time should be provided.

b.No examination body/educational institution to exclude persons with disabilities from any stream or subject on the grounds of his/her disability. Provision shall be made by the respective institutions /examinations bodies to enable the students with disabilities to have access to such subjects and take examination.

c.To introduce flexible system of qualifying marks and pass percentage to facilitate passing of exams in case of children with severe, multiple disabilities and mental illness. (e.g. 20% marks as pass percentage)

9. Educational Activity: The Appropriate Government and Local Authorities shall consider, initiate, promote, support and guide education of children with disabilities as an educational activity and not a welfare activity. The education and allied activities shall be carried out under the auspices of the Ministry of Human Resources Development. The Ministry of Social Justice should provide support for assistive devices, use of technology and residential accommodation etc.

10.Reservation in Admission: The Appropriate Government and Local Authorities shall ensure that all educational institutes to admit at least 5 percent children with disabilities at level of education in private, grant-in-aid as well as State run schools with in such a manner that each category of disability gets due representation in respect admission of educational programs with an additional 1 percent reservation for the children of parents with disabilities.

11. No Denial of Admission: No school or college or educational institutes shall deny admission or be asked to be withdrawn to a child on the grounds of disability or such other ground. Be it a mandatory provision for that in context of Right to Education Act and should make mandatory provision for appeal in case of non-compliance in terms of admission, barrier free environment, transport, provision of teaching learning material, adaption of curriculum etc. and claim reimbursement as per provisions of the RTE Act. The School Management Committee shall have representatives of the parents and students with disabilities as per provisions of RTE Act. The penal action shall be taken to the extent of withdrawal of recognition. There shall be additional provisions in respect of:

a.Relaxation in upper age limit at the time of admission to enable all those persons with disabilities who could not get into educational system due to limitations posed due to nature of disability.

b.The inclusive as well as special schools to allow and promote the use of alternative and augmentative communication for students with disabilities who need such support.

12. Audio Descriptions’: The Appropriate Government, Local Authorities, Authorities concerned with production, distribution, screening, broadcasting, promoting, controlling, monitoring the production and dissemination of audio visual material shall make special provision to provide audio description of all the audio-visual material for the benefit of persons with blindness and low vision. The audio description should be combined with sign language interpreter to ensure access to persons with hearing impairment to such material. All the TV channels, film makers and producers of audio visual material should be directed to adopt the system of audio discretion, sign language and subtitling to make such material accessible. (This is being done successfully in U K).

13. Appropriate Language: The Appropriate Government and Local Authorities shall make Special Provision to ensure that education of children with blindness, deafness, deafblindness, autism, multiple disabilities and intellectual disabilities should be delivered in the most appropriate language and modes and means of communication for the individual, and in the environment where they attain social and academic development. Similarly the concept of home teaching, on-line teaching, open schooling and staggered teaching should be recognized as appropriate means of education.

14. Access to Sports: No person will be denied access to and participation in sports, cultural, recreation and other co-curricular and extra-curricular activities on grounds of disabilities. A provision of adequate funds should be made for ensuring promotion of these activities.

15. Copyright Act: Notwithstanding anything contrary to Copyright Act, all the Braille, audio and large print material specially required by persons with disabilities should be exempt from the Copyright laws and such other provisions.

16. Concurrent Responsibility: The Central and the State Governments should have concurrent responsibility for providing funds for promotion of all forms of education of persons with disabilities. The rights and facilities recognized by the provisions of this chapter are in addition to the rights and facilities recognized for education of children in any enactment including Right to Education.

1 comments:

captainjohann said...: Participation in Olympics should be without discrimination amongst the disabilities where some parent groups are favoured.; September 15, 2010 4:23 PM

SG 1 Preamble & Definition

2010-09-06T12:34:00.002+05:30

SG 1

PREAMBLE & DEFINITION

MEMBERS: Mr. Akhil, Dr. Karna (Team Leader), Ms. Poonam Natarajan (Ms. Merry Barua will provide her suggestions on Autism to this group)

DRAFT SUB GROUP REPORT AS ON 12 AUGUST 2010
Download this draft as pdf

Sub- Group on PREAMBLE AND DEFINITIONS

(Members- Dr G. N. Karna , Ms. Poonam Natrajan , Ms. Merry Barua and Mr. Akhil Paul)

This Act may be called “The Rights of Dignity, Effective Participation and Inclusion of Persons with Disabilities Act, 2010”.

An Act to replace “ The Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995” by way of harmonizing and strengthening the existing legislative and policy provisions for persons with disabilities in the implementation of UN Convention on the Rights of Persons with Disabilities;

AND WHEREAS the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the necessity for persons with disabilities to be guaranteed their full enjoyment without discrimination gathered momentum globally;

WHEREAS The Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 was enacted to give effect to the proclamation on full participation and equality of the persons with disabilities by UN Economic & Social Commission for Asia and Pacific region;

AND WHEREAS the importance of the principles and policy guidelines enshrined in the World Programme of Action concerning Disabled Persons as also the Standard Rules on the Equalization of Opportunities for Persons with Disabilities was recognized in influencing the promotion, formulation and evaluation of the policies, plans, programmes and actions at the national, regional and international levels to further equalization of opportunities for persons with disabilities;

AND WHEREAS the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child served as starting points;

AND WHEREAS the imperativeness of promoting and protecting the human rights of all persons with disabilities, including those who require more intensive support, motivated;

AND WHEREAS subsequent thereto the United Nations General Assembly at its 76th plenary meeting adopted the Convention on the Rights of Persons with Disabilities as also its Optional Protocol on 13th December, 2006 and the same came into force in May 2008 and December 2009 respectively;

AND WHEREAS India has signed the convention on the first day of its opening for signature on the 30th March 2007 and ratified the said Convention (excluding its Optional Protocol) without any reservations on 1st Oct. 2007, which came into force on 3rd May 2008;

AND WHEREAS it has, therefore, become obligatory to harmonize and strengthen the existing provisions of the said Act in discharge of international obligations arising out of such ratification of the Convention.

BE IT ENACTED BY THE PARLIAMENT IN THE SIXTIETH YEAR OF REPUBLIC OF INDIA AS FOLLOWS:-

Chapter 1- Preliminary (Short Title, Extent and Commencement)

Article 1. (i) This Act may be called “The Rights of Dignity, Effective Participation and Inclusion of Persons with Disabilities Act, 2010”.

(ii) It extends to the whole of India, except the State of Jammu and Kashmir.

(iii) It shall come into force on such date as the Central Government may by notification decide.

Purposes

Article 1 (a) The purpose of this Act is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and also to promote respect for their inherent dignity and self- respect.

Definitions

Article 2. In this Act, unless the context otherwise requires,-

(i) "Appropriate Government" means-

(a)In relation to an establishment of the Central Government, or an establishment, wholly or substantially owned or financed by that Government, or a Cantonment Board constituted under the Cantonment Act, 1924, or a union territory without legislature, or the provider of a service which pertains to, List I in Schedule VII of the Constitution, the Central Government;

(b)(b) In all other cases, the State Governments or, Government of a UT with legislature, or any local body, other than a Cantonment Board, as the case may be.

(c)( c) In respect of the Central Board, the Central Committee, and the Chief Commissioner/ National Commission for Persons with Disabilities, the Central Government;

(d)(d) In respect of the State Board, the State Committee, and the State Commissioner/ State Commission, the State Government;

(ii) “Autism” means a pervasive developmental disorder defined by extreme unevenness of skill development that is manifest before the age of 3 years, qualitative impairment in reciprocal social interaction and in patters of communication, and by a restricted stereotyped, repetitive, repertoire of interest and activities as well as accompanying perceptually based learning difficulties condition of uneven skill development primarily affecting the communication and social abilities of a person, marked by repetitive and ritualistic behavior;

(iii)“Awareness Raising” means awareness and understating of diversity in disability among the wider community. Making the community sensitive to creating inclusive environments, thereby removing stigma attached to disability, will lead to effective implementation of the Act. Eg, if architects were to understand inclusion, they will automatically incorporate that into their work. Cover awareness raising about the concepts and spirit of the act.

-Making the society, including the family aware regarding the needs, capabilities and contributions of persons with disabilities to foster respect for their rights and dignity; disseminate information to combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life.

(iv) “Barrier” indicates environmental factors that make up the physical, social and attitudinal environment in which the persons with disabilities lead their lives and which, in interaction with the impairments, may hinder full and effective participation in the society on an equal basis with others. It encompasses lack of access to products, technology, support and relationships, natural environment and human made changes, social norms and policies. Barriers needs to be defined and recognised as a community and development issue; barriers to opportunities of varying kinds including for developing relationships; barriers that derive from the view of disability as a burden.

(iv) "Blindness" refers to a condition where a person suffers from any of the following conditions, namely:-

(a) Total absence of sight. or

(b) Visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with best corrective lenses; or

(c) Limitation of the field of vision subtending an angle of 20 degree or worse;

(v) "Central Board" means the Central Advisory Board constituted under sub-section (1) of section …;

(vi) "Central Committee" means the Central Coordination and Monitoring Committee constituted under sub- section (1) of section …;

“Cerebral palsy” means a group of non-progressive but not unchanging disorders of movement and / or posture, due to an insult to or anomaly of, the developing nervous system

"Communication” includes languages, display of text, Braille, tactile communication, large print, accessible multi media as well as written, audio, plain- language, human- reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology;

(viii) "Competent authority" means the authority appointed under section …;

(ix) “Deafblindness” means a condition in which people may suffer from combination of hearing and visual impairments causing such severe communication, developmental, and educational problems that the person cannot be accommodated in or be benefitted from either a programme specifically designed for the deaf or a programme specifically designed for the blind.

Deafblindness may include:

-    Moderate to profound hearing and significant visual impairments;

-    Moderate to profound hearing and significant visual impairments and other significant disabilities;

-    Central processing problems of vision and hearing;

-    Progressive sensory impairments;

-    A significant visual impairment; and a possible loss of auditory processing mechanisms (associated with severe physical disability or severe cognitive disability) and severe communication delay.”

(x) “Disability” broadly incorporates within its ambit all such individuals who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers, may prevent their full and effective participation in society on an equal basis with others. For the purpose of this Act, "disability” refers to, but not restricted to-

(a) autism ;

     (b) blindness,

cerebral palsy

     (c) deafblindness,

       (d) low- vision;

learning disability

haemophilia

thalassemia

       (e) leprosy affected

      (f) hearing impairment;

speech impairment

      (g) locomotor impairment;

muscular dystrophy

multiple Sclerosis

     (h) mental retardation;

       (i) mental illness; (Psychiatric disorders-dementia, schizophrenia)

     (j) multiple disabilities;

Disorders of Sexual Development (Hizras/hermaphrodite/ Intersexual/ Transexual)

Provided that the Central Government may, by notification, include any other impairment in the definition of disability on the recommendation of an Expert Committee constituted for the purpose with equal representation of NGOs from the specific disability area.

“Disability NGO” means a non-government organisation or self-help group working with and/ or for persons with disabilities, which has been registered under the relevant law and has at least 3 years of working in their area of expertise.

“Disabled people’s organizations (DPOs)” are organisations that are established, governed, and managed by people with disabilities; representing the voice and interests of people with disabilities with a commitment to the overall development of all. There includes two types of DPOs: those organizations formed to represent all types of disabilities; and those that focus on one type of disability. DPOs function to facilitate people with disability in discovering, formulating and defining the problem of powerlessness, provide the setting in which alternative explanations regarding the causes and dynamics of powerlessness are generated, facilitate the decision-making process with respect to the identification and removal of obstacles to learning, growth and participation, facilitate the implementation of individual as well as group action decisions, and enable individuals to monitor or get feedback on the results of their own actions and the reactions from other parts of the social system.

(xi) "Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the social, cultural, economic, civil, political or any other field. It includes all forms of discrimination, including denial of reasonable accommodation and the term “non- discrimination” shall be interpreted accordingly;

(xii) “District Committee” means a District- level Committee on Disability constituted under sub- section (1) of Section ……..

“Disorders of Sexual Development” means Abnormalities in the development of the gonads, the genital tracts, the external genitalia and gender-specific behavior.

“Hizras/hermaphrodite” means a person having sexual development disorder

“Intersexual” – people born with the physical sexual organs of both genders, although they may not be fully formed.

“Transexual” - means that fundamentally viewing oneself as being of the opposite sex to own physical body. The person could have a male body with a female mind, this is called Male to Female Transexual and vice-versa- Female to Male or FtoM. Although it's exact causes are yet to be conclusively understood, current medical knowledge classes Transexualism as a birth defect. A part of the individuals brain which deals with gender is formed as that of the opposite sex to the physical body. Transexualism is a natural phenomena and isn't invented or "chosen".

(xiii) "Establishment" means a corporation, public sector and private sector undertaking, autonomous body established by or under a Central, or State Act, or an authority or a body owned or controlled or aided by the Central or State Government or a local authority or a Government company as defined in section 617 of 'the Companies Act, 1956 and includes Departments and Ministries of a Government;

(xiv) “Full and Effective Participation”, in the context of persons with disabilities, means the involvement of such individuals in various life activities—such as family, community, self care, relationships, culture, independent living, civil and political life.

(xv) “Fund” means the National Fund for Persons with Disabilities established under Section …

“Fialiarisis” means a manifestation of locomotor disability which affects the lymphatic system drastically and inflicts symptoms of high fever, pain, swelling and numbness.

(xvi) “Hearing impairment” means sensory-neural hearing loss of forty five decibels or more in the better ear in conventional range of frequencies and the binaural loss of forty percent, or Word Recognition Score of forty percent or less—

45 decibels to 75 db for Partially Deaf or Hearing Impaired

75 decibels to 100 db for Deaf or Speech & Hearing Impaired

“Hemophilia” means a group of disorders which result in increased bleeding tendencies due to deficiency of factor VIII/ IX.

(xvii) “Inclusive environment” in relation to education of students with disabilities to study in educational institutions with their per groups without disabilities, on an equitable basis;

(xviii) “Language” includes spoken and all other forms of non-spoken languages including signed languages

(xix) “Leprosy affected” means any person who has been affected by or cured of leprosy but is having following conditions-

(a) Loss of sensation in hands or feet as well as loss of sensation and paresis in the eye and eye-lid but with no manifest deformity;

(b) Manifest deformity and paresis; but having sufficient mobility in their hands and feet to enable them to engage in normal economic activity;

(c) Extreme physical deformity as well as advanced age which prevents him from undertaking any gainful occupation, and the expression "leprosy cured" shall be construed accordingly;

“Learning Disability “ means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in an imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations. The term includes such conditions such as perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include people who have learning problems which are primarily due to visual, hearing, speech or motor handicaps or mental retardation, emotional disturbance or of environmental, cultural or economic disadvantages.

“Legal capacity” means the capacity in which the person determines whether he/she may make binding amendments to their rights, duties and obligations, such as getting married or entering into contracts , holding property, making of and/ or benefitting from a will.

(xx) “Local authority” means three tier panchayati raj institutions, municipalities and any other local authority established by or under an Act and includes a “Local authority” as defined in clause (31) of Section 3 of the General Clauses Act, 1987;

(xxi) “Locomotor impairment” means defect in the bones, joints muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy; and includes filariasis in its manifestation as a condition

(xxii) "Medical authority" means any hospital or institution or team of doctors on mobile duty specified for the purpose of issuing disability certificates under this Act by notification by the appropriate Government;

(xxiii) "Mental illness" are disorders of the mind that result in partial or complete disturbance in the person’s thinking, feeling and behavior which very often results in recurrent or persistent inability or reduced ability to carry out activities of daily living, self care, education, employment and participation in social life. These disorders would include schizophrenia, obsessive compulsive disorder, bipolar disorder and moderate or severe depression of at least three years duration , with evidence of continuous treatment. It means any mental disorder other than mental retardation;

(xxiv) "Mental retardation" means a condition of arrested or incomplete development of mind of a person which is specially characterized by impairment of adaptive behavior manifested during the developmental period, which contributes to all levels of intelligence i.e. cognitive, language, motor and social abilities. sub normality of intelligence;

(xxv) “Multiple disabilities” means a combination of two or more disabilities as listed at S. No. (i)- (vii) in clause (i) of section-2;

“Multiple Sclerosis” means a condition of the central nervous system which affects the ability of nerve cells in the brain and spinal cord to communicate with each other.

“Muscular dystrophy” means a group of genetic conditions characterized by progressive weakness and degeneration of the skeletal or voluntary muscles which control movement.

(xxvi) “Person with severe disability” means a person with 80% or more of one or more disabilities, as certified by a medical authority, and the phrase “Child with severe disability” shall be construed accordingly;

(xxvii) “Person with low vision” means a person with impairment of vision between 6/18 to 6/60 with best correction in the better eye or impairment of field of vision in any one of the following categories:-

(a) Reduction of field less than 10 degrees

(b) Hemianopia with muscular involvement

(c) Altitudinal defect involving lower fields

(xxviii) “Poverty alleviation schemes” means schemes and programmes of the Central Government, State Government or a local authority aimed at alleviation of poverty;

(xxix) “Public building” means a building, irrespective of ownership, which is used and accessed by the members of public at large;

(xxx) “Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;

(xxxi) “Rehabilitation” implies a process aimed at enabling persons with disabilities to attain and maintain maximum independence, full physical, sensory, intellectual, psychological, social and vocational ability, and full inclusion and participation in all aspects of life;

(xxxii) "Special Employment Exchange" means any office or place established and maintained by the Government for the collection and furnishing of information, either by keeping of registers or otherwise, respecting-

(a) Persons who seek to engage employees from amongst the persons suffering from disabilities;

(b) Persons with disability who seek employment;

(c) Vacancies to which person with disability seeking employment may be appointed;

“Speech Impairment” means a communicative disorder where a person is unable to express him/herself comprehensibly, occurring due to causes like aphasia, laryngectomy and neurologically determined congenitally acquired impairment.

“Thalassemia” is an inherited blood disorder which necessitates repeated blood transfusion due to hemoglobin deficiency and breaking down of red blood cells.

(xxxiii) “State Board” means the State Advisory Board” constituted under sub- section (1) of Section 13;

(xxxiv) “State Committee” means the State Coordination and Monitoring Committee constituted under sub- section (1) of Section 19;

(xxxv) “Universal design” means the design of products, environments, programmes, and services to be usable by all people, including persons with disabilities to the greatest extent possible, without the need for adaptation or specialized design; it shall not exclude assistive devices for particular groups of persons with disabilities where its needed.

General Principles

Article 3. The major principles enshrined in and guiding the proposed Act are respect for individual autonomy, non- discrimination, accessibility, equality of opportunity, full and effective participation and inclusion in society, and acceptance of disability as a part of human diversity and humanity.

General Obligations

Article 4. This Act shall undertake to ensure and promote the full realization of all human rights and fundamental freedoms, as enshrined in the UNCRPD and the Constitution of India, for all persons with disabilities without discrimination of any kind on the basis of disability. Nothing in this Act shall, however, affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State.

3 comments:

captainjohann said...: What is the purpose behind having two categories like "Low vision" and "Blind"? Any person who comes under the category of severely disabled in low vision will also be blind.; September 3, 2010 1:08 PM
captainjohann said...: The disability "mental illnes' gives an impression to general public and parliamentarians that this particular disability is an illness which can be cured by proper treatment. The truth is this condition of disability comes aftr variuous treatment options tried by the families.Why not "Psychiatric disability" or "Psycho social disability" which will also differenetiate it very clearly from Mental retardation which is a born condition.; September 3, 2010 1:13 PM
captainjohann said...: The nomenclature of "mental illness" doesnot show that it is a disability but an illness which can be Cured by proper treatment.Disability is a condition when the medical fraternity fail in their treatment or cannot give further improvement thus leaving with permanent disability.My defenition will be as follows.Naming only certain illness can increase corruption in certification.“Mental illness” means a substantial disorder of mood, thought, perception, orientation or memory which grossly impairs a person‟s behavior, judgment and ability to recognize reality or ability to meet the demands of normal life like work,cleanliness,communication but excludes mental retardation. "; September 15, 2010 4:37 PM

Committee Minutes: 1st Meeting

2010-09-03T05:43:00.000+05:30

First Meeting of the Committee to Draft A New Legislation To Replace The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 , held on 10 June, 2010 at Conference Room, Indian Spinal Injuries Center, Vasant Kunj.
List of Participants Annexed
The Chairperson welcomed the members. She acknowledged the hard work of many groups in preparing the basic material and for carrying out extensive research and preparation of papers which would of great assistance in drafting of the Act. Special mentions were made to two papers submitted by HRLN (Human Rights Law Network) and DRG (Disability Rights Group). She also emphasized that the new law should be in consonance with the UNCRPD, and should be rights based.
The Chairperson further said that the Committee had the onerous responsibility of drafting the new legislation for PwDs which would have an impact on millions of lives. The procedure adopted would have to be transparent and all inclusive. She further emphasized that the process of formulation of this new legislation would have to be through an open process. Some of the meetings of the Committee could be held in an open forum to give opportunities to stakeholders from civil society to participate in the discussions. The minutes of each meeting would be posted on the MSJE website and comments invited from stakeholders.
After introduction of the members agenda Points were taken up for discussion.

Agenda 1: Discussion on Terms of Reference of the Committee
Dr. Arbind Prasad, JS (DD) also welcomed the members and outlined the composition of the committee which was constituted with representatives from various stakeholders including civil society organizations and then briefly enumerated the terms of reference of the committee. He emphasized that while drafting the new legislation for persons with disabilities the committee should keep in mind the following points:
Provisions laid down in the Constitution of India and other laws of the land.
Financial, Logistic and Administrative feasibility of the various provisions in the draft law should be taken care off.
Financial implications whether recurring or non-recurring on the Central Govt., State Govt. or other Local Authorities should be considered.
He further stated that the committee was given a time frame of 31st August for submission of the draft legislation.

Agenda 2
Appointment of Centre for Disability Studies, NALSAR University of Law as Legal Consultant to provide technical support to the Committee.
It was noted that the drafting of a new legislation requires Legal expertise. The committee also required support in the preparation of papers for discussions and Secretarial assistance for drafting of minutes and follow-up. After detailed deliberation and looking at various alternatives it was finally decided that the rich experience of Dr Amita Dhanda in Disability legislations and NALSAR being the only Law University with a Center for Disability Studies should be availed off. The Committee resolved to appoint Centre for Disability Studies of NALSAR University of law as legal consultant to the committee. The tentative budget for the consultancy charges was 10 lakhs and Rs.40000/- per meeting of the committee.
Ms G Syamala and Mr. J P Gadkari emphasized that not one institution, but a panel of experts should also look at various legal provisions. It was felt that wide ranging consultations with legal experts should be done.
Many members stressed on the fact that the new law must reflect the spirit of the UNCRPD. Mr. Rajiv Rajan with the permission of Chair distributed a paper on the non-negotiable rights of PwDs to be included in the new Act.
Responding to the discussions on the nature of the new law, the Chairperson observed that at this stage the committee will look into various provisions of present PwD Act, align them with UNCRPD, look into the addition of some more chapters if necessary, so that all the articles of UNCRPD based on rights of PwDs are covered including a focus on women with disabilities, non negotiable rights etc.

Agenda 3: Report on Existing Proposals and Discussions on the PwD Act
Dr. Arbind Prasad, JS (DD), made a power point presentation giving background of constitution of the committee, the need for amendment, process followed in formulation of amendments, response received from various sources on the proposed amendments etc.
Dr Uma Tuli highlighted the drawback in the implementation of the existing PwD Act, 1995 due to lack of finance. She suggested for creation of a “National Fund” and utilizing the same for implementation of various programmes for PwDs. Mr. Rajive Raturi reiterated this demand and said that after the Supreme Court ruling the un-utilized fund lying with the Banks could be used for the benefit of PwDs as far as possible in the new legislation. The modalities for its proper utilization and decision on various budgetary allocations in the new Act would require expertise. The same could be provided by the representative Planning Commission and M/o Finance as they are part of the Committee. The committee decided that first Draft when prepared would be handed over to the Finance expert Group for working out the financial implications.

Agendas 4: Procedural and Operational Plans for the Committee.
While debating on the methodology to be followed for preparation of the draft, Ms Rukmani stated that there was a need for strong and effective laws which could be implemented at the grass root level. Most of the Acts failed in this respect. Mr. Bhushan Punani emphasized on consideration of country specific issues like certification which is a feature typical to the Indian scene, while UNCRPD is an international convention. Therefore, each country should also be keeping in mind its specific requirements while formulating their laws. Dr. Karna, stressed that the Preamble to the new Act should be carefully drafted and the Hindi translation of the new legislation should be simultaneously prepared.
Mrs. Poonam Natarajan and Ms G Syamala felt that constitution of working groups on different areas may not be the best idea. They wanted each article of UNCRPD to be discussed, so that it was fully understood. The members felt that all these points could be well taken care off if the committee constituted in small sub groups to study each and every area/chapter. On the request of Chairperson, Mr. Bhushan Punani laid out broad areas to be looked into for the participants and enlisted 10 groups. The areas were then debated and a consensus was reached on having sub groups who would prepare the first Draft of different chapters on their areas in consonance with UNCRPD. Ms. Jayshree Ravindran, Ms Rukimini, Mr. Rajiv Rajan once again showed concern that the new Act must be rights based and did not reflect any discrimination to PwDs. The subgroups, formed based on the consent and interest of each member, are as under:

Group Name
Members
Preamble and Definition
Mr. Akhil, Dr. Karna (Team Leader), Ms. Poonam Natarajan (Ms. Merry Barua will provide her suggestions on Autism to this group)
Rights and Legal Capacity
Dr. Govinda Rao, Ms G Syamala (Team Leader), Mr. J P Gadkari, Mr. Rajiv Rajan, Ms Jayshree Raveendran.
Civil and Political Rights
Ms Bhargavi (Team Leader), Mr. Rajiv Rajan, Ms G Syamala, Ms Jayshree Raveendran.
Education
Mr. Punani, Ms Poonam Natarajan, Dr. Uma Tuli, Mr. Narayanan, Ms Merry Barua.
Health and Rehabilitation
Dr. Srikala Bharath, Dr. Dharmendra Kumar, Ms Rukimini (Team Leader), Mr Vikas Amte, Rep. from M/o Health.
Employment and Occupation
Mr. Rajive Raturi, Ms Jayshree Raveendran (Team Leader), Mr. Ramakrishna, Mr. Punani, Ms Srikala, Mr. J P Gadkari, Mr. K.G. Verma (Rep. of DoPT).
Accessibility
Ms Rukmini, Mr. Narayanan, Mr. Rajive Raturi, Mr. Rajiv Rajan (Team Leader) .
Human Resource Development
Mr. Cordozo, Ms G Syamala (Team Leader), Mr. Akhil Paul, Rep. of M/o HRD, Dr. Govinda Rao
Authoritiies
Dr. Uma Tuli, Mr. Pitam, Ms Poonam Natarajan (Team Leader), Mr. Cordozo, Comm (D) Assam, Comm (D), WB.
Financial Authority
Mr. Ramakrishnan, Mr. Mukherjee, Dr. Govinda Rao.

Each Group was requested to select a Team Leader by the Chairperson and report back to the Committee. The Team Leader would keep the Chairperson apprised of the progress of the group discussions. The Chairperson also said that each Group could invite different stakeholders to participate in the group discussions. The Ministry was requested to provide a budget for the Group meetings.

Agenda 5: Time Frame for Submission of Report:
The Chairperson stated that the committee was aware of the onerous task given to it and was committed to complete Draft -1 by the end of year 2010 with the following time line:
The sub groups would present their work in third week of July 2010 when the committee would meet again. The sub groups would exchange their views/suggestions/comments via email and if they feel the need to meet they could do so just once with prior approval of the Chairperson.
After discussions on the work of sub groups a basic draft would be prepared by the Legal Consultant which will be open for consultation with Legal experts and sent to the Finance members for their inputs.
The meeting ended with vote of thanks to Chair.

Annex
List of participants:
Chairperson
Dr. (Mrs) Sudha Kaul
Members
I Expert/NGO representatives
1) Shri. Bhushan Punani
2) Dr. Vikas Amte
3) Smt. Jayshree Raveendran
4) Dr. G.N.Karna
5) Dr. L. Govinda Rao
6) Shri Akhil Paul
7) Ms Merry Barua
8) Ms G. Syamala
9) Shri Rajive Raturi
10) Dr. Uma Tuli
11) Ms. Rukmani Pillai,
12) Ms. Bhargavi Davar,
13) Shri Rajiv Rajan
14) Shri K. Ramakrishnan
15) Shri J.P. Gadkari
16) Prof. Srikala Bharat

II Representives of the State Governments
i.Ms. Malabika Barua, Commissioner for PwDs, Govt. of Assam
ii.Shri. Mahavir Gupta, Dir. SJED, Jaipur, Govt. of Rajasthan
iii.Shri. M.S. Savant, Commissioner for PwDs, Govt. of Maharashtra
iv.Ms. Mita Benerjee, Commissioner for PwDs, Govt. of West Bengal
III Representatives of Central Ministries/Departments
i.Dr. S.Y. Kothari, Addl. DGHS, M/o Health and Family Welfare
ii.Shri. S.C. Khuntia, Joint Secretary, M/o HRD
iii.shri K.G. Verma, Director, Representing DOPT
IV Representative of the National Institute of Public Finance and Policy
Prof. Chandan Mukherjee, National Institute of Public Finance and Policy.
V Members, ex officio
i.Poonam Natarajan, Chairperson, National Trust
ii.Chairman, Rehabilitation Council of India (RCI)
iii.Dr. Pitam Singh- Representative of Chief Commissioner for Persons with Disabilities
VI Member Secretary
Dr Arbind Prasad, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitees:
1) Mr. S N Menon
2) Mr. A.S.Narayanan
3) Major H.P.S. Ahluwalia
Ministry of Social Justice & Empowerment
1)Shri Dharmender Kumar, Director IPH
2) Shri. Sunil Kumar Pattanayak, Director, Disability Division, M/o SJ&E

Minutes of 3rd Meeting

2010-08-13T07:57:00.000+05:30

Third Meeting of the Committee to Draft A New Legislation To Replace The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 , held on 12th August , 2010 at Conference Room, Indian Spinal Injuries Center, Vasant Kunj.

Item 1 Confirmation of Minutes:
Minutes of the meeting on 22nd July 2010 as amended (Copy enclosed) were confirmed. The members were informed that earlier minutes of the meeting were already on the Ministry’s website and all subsequent minutes shall be similarly uploaded. To facilitate members being able to access the website the link to the specific page shall be provided.

Item 2 Discussion of sub group reports:
The committee deliberated upon concerns arising from the work of the sub groups on preamble and definitions; civil political rights; legal capacity; education; employment; health and rehabilitation; and authorities.
The groups on civil political rights and legal capacity informed that they needed to deliberate further on their themes in order to work out how the general propositions of the CRPD needs to be inducted into national law. The interplay between the right to legal capacity and the safeguards to prevent abuse of support evoked detailed discussion. The procedures by which persons requiring support would be identified; the relationship between earlier laws and the new law were other issues listed as requiring deliberation by the sub-group. Subsequent to the deliberations it was decided that due to the natural convergence of the issues it would be appropriate that the sub groups on civil political rights and legal capacity merged and deliberated on the two themes concurrently.
The Preamble and definition group generated a fair amount of discussions on the definition of disability and how the transition from a medical to a social model be worked out. Questions were also raised on extent of detail required in the definition and whether the detailed definition should find place in the new Act or in the attendant rules. It was also decided that the chapter on definitions would be examined in greater detail after the substantive chapters of the new Act had been settled.

The sub group on authorities generated discussion on continuing with the existing structure of Commissioners and Chief Commissioners with enhanced powers or to go for a more elaborate structure of Commissioners / Disability Commission/ Tribunal. The need to examine the pros and cons of both options was accepted and to that end, it was also suggested that the utility of the Central and State Co-ordination Committees needed to be examined.

Whilst discussing the theme of health and rehabilitation, it was acknowledged that rehabilitation was larger than just medical rehabilitation. Consequently, it was decided that the rights of health and rehabilitation would be addressed in separate chapters of the new law.

The theme of education was discussed in great detail and members put forth their opinions on the importance of inclusive education, special education needs and institutions as also the necessity of aligning the education of persons with disabilities with the Right to Education Act and the ongoing initiatives under it. The Convener informed the Committee of the various ways in which the suggestions were incorporated in the report of the sub-group.

The theme of employment was also deliberated upon by the Committee where the issue of mode and percentage of reservation evoked a fair amount of discussion. Suggestions on examining economic empowerment from developmental programmes and exploration of the link between corporate social responsibility and employment rights were also made. The sub group was also asked to reflect on the language in which question of employment was addressed.

The Chairperson and the Convener’s of all groups urged members to send their recommendations to the Convener of the sub-group at the earliest to enable the sub group to discuss with the legal consultant.

Item 3: Submissions before the Committee
Mr Javed Abidi Convenor DRG was invited by the Chairperson to present the views of his network to the Committee. Mr Abidi in his submission urged the Committee to see their mandate as a mandate to formulate a comprehensive which addressed all rights of all groups. He also impressed upon the committee the need to complete this task in a time bound manner and transparently so that the sector at all points would be cognizant of the deliberations of the committee.
Subsequently Dr Amita Dhanda in her presentation outlined the legal issues before the Committee and the tasks of the Legal Consultant in assisting the Committee to fulfill its mandate.

Item 4: Allocation of unallocated issues

In order to ensure that all the rights guaranteed by the CRPD were accorded due recognition in the new law, the Committee allocated the remaining rights as follows:

Women with disabilities would be dealt with by the legal capacity and civil political rights group (Convenors : Shyamala and Bhargavi).
Children with disabilities and leisure, culture and sport by the Education sub group (Rukmini and Shyamala would also join this group)
Social Security by the Employment group ( Convenor: Jayshree)
Right to Live Independent and in the Community [ Poonam Natrajan (Convenor) Merry Barua Rajive rajan Ramakrishnan Akhil Paul ]
The Chairperson urged the sub-group members to actively involve stakeholders and other experts consultations with whom would enrich the work of the sub-groups.

Item 5: Discussion of work plan
The Committee discussed the work plan circulated by the Chair at great length. Consequent to the discussion it was decided that the sub-groups would conclude their intra and inter group discussion and finalize their reports necessarily by the end of August in order to enable deliberation to begin with the Legal Consultant.
All the Sub-Groups were to interact with the Sub-Group through August and September. The Committee would meet again on 29th 30th September and 1st October to reach consensus on contentious questions.

On the strength of the mandate provided by the Committee the Legal Consultant would provide a working draft to the Committee by the end of October. This working draft would be widely disseminated to disabled people and their organizations through all means and modes of communication.

The working draft would also be evaluated by the financial consultant for its financial implications and this report would be presented to the Committee at the National Assembly.

The Committee would deliberate on this working draft in a National Assembly in Delhi in the latter half of November. Attendance to this Assembly would be open to Disabled People and their Organizations. Suggestion was also made for holding regional consultations.

The Committee strongly and unanimously recommended for provision of funds which would provide financial support to disabled people and organizations of and for disabled people from all parts of the country to attend the Assembly. This was especially required because the Committee due to constraints of time could not hold regional consultations. The guidelines of participation would be formulated to ensure equitable geographical, gender and disability specific representation.

On the strength of the decisions reached at the Assembly the legal text of the New Law would be drafted by the Legal Consultant in December and presented to the Committee and other legal experts by the third week of December. On the strength of the recommendations made at this meeting the final draft would be submitted to the Ministry by the end of December. Consequent to this Work Plan being approved it was decided that the Chairperson would write to the Ministry to seek an extension of the term of the Committee till the 31st of December 2010.

The meeting adjourned after recording its thanks to the Chair.

Annex
List of participants:
Chairperson
Dr. (Mrs) Sudha Kaul
Members
I Expert/NGO representatives
1) Shri. Bhushan Punani
2) Smt. Jayshree Raveendran
4) 5) Dr. L. Govinda Rao
5) Shri Akhil Paul
6) Ms Merry Barua
7) Shri Rajive Raturi
8) Dr. Uma Tuli
9) Ms. Rukmani Pillai,
10) Ms. Bhargavi Davar,
11) Shri Rajiv Rajan
12) Shri K. Ramakrishna
13) Shri J.P. Gadkari
14) Dr. Anupam Gupte

II Representives of the State Governments
i) Shri. Mahavir Gupta, Dir. SJED, Jaipur, Govt. of Rajasthan
ii) Ms. Mita Benerjee, Commissioner for PwDs, Govt. of West Bengal
iii) Shri S.S. Jawahar, Secretary to Govt., Differently Abled Welfare Dept. Chennai.

III Representatives of Central Ministries/Departments
i)shri Sharad Kumar Srivastava, Under Secreatry, Representing DOPT
ii)Shri A. Kachhap, Dy. Advisor (AH), Planning Commission

IV Representative of the National Institute of Public Finance and Policy
Prof. Chandan Mukherjee, National Institute of Public Finance and Policy.

V Members, ex officio
i)Poonam Natarajan, Chairperson, National Trust
ii)Shri. T.D. Dhariyal- Representative of Chief Commissioner for Persons with Disabilities
VI Member Secretary
Dr Arbind Prasad, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.

Special Invitees:
1) Mr. A.S.Narayanan
2) Major H.P.S. Ahluwalia
3) V.B Arora, Dy. Director (Media & Communication), Press Information Bureau

Centre for Disability Studies, NALSAR University of Law ( Legal Consultant)
i.Dr. Amita Dhanda (Professor and Head)
ii.Mr Nilesh Singit (Research and Advocacy Officer)
iii.Ms Subhadra Banda [Research Associate]
iv.Mr Arun Mohan [Research Associate]
v.Mr Manav Kapoor [Research Associate]

Ministry of Social Justice and Empowerment
1) Shri Dharmender Kumar, Director IPH
2) Shri. Sunil Kumar Pattanayak, Director, Disability Division, M/o SJ&E

Observers from Disability Rights Group
i.Shri. Javed Abidi
ii.Shri. G. Ramanathan
iii.Shri. M. Srinivasulu
iv.Ms. Subhadra Banda
v.Shri Arun Mohan
vi.Shri Manav Kapur
vii.Shri. M.A.Khokhar
viii.Shri. A. Dhanasekar
ix. Shri. Arman Ali
x.Shri. Amitabh Malhotra
xi.Shri. Suhas karni
xii.Shri. Aatam Kothari
xiii.Ms. Meenakshi
xiv.Ms. Marry
xv.Ms. Bertha G. Adhkar
xvi.Ms. Shivani Gupta
xvii.Shri. Nilesh Singit
xviii.Shri. R.C. Sharma
xix.Shri. Javed Ahmad

WORK PLAN AS SUGGESTED BY THE COMMITTEE

2010-08-05T07:47:00.000+05:30

WORK PLAN AS SUGGESTED BY THE COMMITTEE

AUGUST:
Submission of SubGroup Reports
All the sub-groups submit their reports to the Chair and other committee members before the 12th August. Meeting. As many members have desired they would like a full Committee discussion on matters of concern arising from the submitted reports we will take these up at the 12th meeting.
As the reports are received they will be sent to NALSAR who will start studying the proposals and evaluate them in the light of the CRPD, the Indian Constitution and other relevant domestic laws.

SEPTEMBER:
Consultation of SubGroups with NALSAR
The sub-groups shall hold their meetings with the Legal Consultant to firm up the recommendations of the sub-group for the Working Draft. The dates for these meetings shall be mutually settled between the sub group members and the consultant. Where committee members are members of more than one sub-group the Consultant will be requested to hold the sub-group meetings on a back to back basis. The Centre should complete the process of consulting with the sub-groups by the end of September.

OCTOBER:
Consultation with full Committee
On the basis of the consultations, the Centre will prepare a concept paper which would outline the points of agreement and disagreements in the Committee and suggest the various CRPD consonant options available to the Committee and the strengths and weakness of each option. The full Committee will discuss this concept paper in a 2 or 3 day meeting in Hyderabad early in October.
Preparation of working draft of the New Act
On the basis of the consensus reached by the Committee, the Centre will prepare the working draft of the new Act, which shall be sent to the members of the Committee for their consideration by the end of October. The working draft shall also be uploaded on the website of the Ministry and the Centre and shall be widely circulated amongst all stakeholders.
The financial consultant shall study the working draft in order to prepare a report on the financial implications of the draft. This report shall be presented and deliberated at the national assembly to the committee

NOVEMBER
The Committee shall convene a week long NATIONAL ASSEMBLY in the 3rd week of November to deliberate on the working draft and reach consensus on the substantive content of the New Act
The Committee’s schedule in the assembly shall be made in such manner that dedicated time shall be given for stakeholders (people with disabilities and their organizations; NGO’s, members of civil society) to present their views to the Committee.

DECEMBER
Based on the deliberations the legal text of the new law shall be prepared. This legal text shall be studied by the committee along with legal experts both from within and outside the law ministry. Based on the response received at this deliberation the final draft shall of the new law shall be submitted to MSJE along with financial implications by end of December

Minutes of the 2nd Meeting of the Committee

2010-07-23T07:37:00.000+05:30

Minutes of the 2nd Meeting of the Committee to Draft New Legislation for Persons with Disabilities, held on 22nd July, 2010.

In continuation of the first meeting, the 2nd meeting was held on July 22, 2010 at Conference Room, Indian Spinal Injuries Center, Vasant Kunj.

Dr Arbind Prasad, Joint Secretary (Disability Division) and Member Secretary welcomed all
participants.

Dr Sudha Kaul, Chairperson reminded the Committee that it was entrusted to draft a new legislation to replace the Persons with Disabilities Act 1995, and harmonize its provisions with UNCRPD. The Committee was therefore not going to debate on formulating one comprehensive law that would repeal all other current disability legislations such as the National Trust Act, Mental Health Act, and Rehabilitation Council of India Act etc. She also emphasized that while harmonizing the new legislation with UNCRPD the country specific issues must be given due
weight age.

Confirmation of the Minutes of the meeting held on 10.06.2010
Chairperson stated that the sub groups have the mandate to consult with other experts and stakeholders to their Sub-Group discussions and take their opinion while preparing their reports.
NALSAR was appointed as the Legal Consultant to support the committee and assist it in putting together a working legal draft based on the reports of the Sub-Groups and on the strength of existing law reform proposals. NALSAR would attend the Committee meetings to keep record of the deliberations and to provide any law related information to the Committee. Legal opinion and suggestions on the basic draft would be sought by the Legal consultant with other Legal experts. With these changes the minutes of the meeting held on 10.06.2010 were confirmed.
In order to ensure that the discussion process is transparent the Chairperson again requested that all minutes be posted on the MSJE website and invite comments from viewers.
Presentation of reports of Sub-Groups

Chairperson invited the groups to present their reports, those sub groups who were not ready with their presentation were requested to do so within 10 days. The time frame for each group to present their work was ½ an hour due to shortage of time. The following presentations were made:
Presentation
Presented by
Preamble and Definition
Dr Karna
Rights and Legal Capacity
Ms G Shyamala
Health and Rehabilitation
Ms Rukmini Pillai
Education
Mr Bhushan Punani
Employment and Occupation
Ms Jayshree Raveendran
Human Resource Development
Ms G. Shyamala
Authorities
Mr T D Dhariyal
Civil and Political Rights
Ms Bhargavi Davar

The Sub Group on Accessibility requested more time to get their report ready.
The presentations were seen by all members of the above groups. Since there was no time for discussions Chairperson requested the all presentations be emailed to Committee members for their comments. These would be incorporated in the Sub Group Reports by the team Leaders. This should reach the respective group within 7 days with intimation to the Chair. Many members however were of the view that discussions on the reports were valuable.
An important point highlighted by one of the members was that reports presented at the meetings should be in an accessible format for all the members. Henceforth they should also be a Braille copy along with the soft copies in addition to the soft copy.

There was a great deal of deliberation on the subject of a Comprehensive Act and it was decided that the new legislation would be comprehensive in nature with inclusion of all known disabilities. One of the members stressed that we must be careful while formulating the comprehensive act that it should not contradict other existing acts in the country.

The Chairperson suggested that all the sub groups could meet again at NALSAR for 3 continuous days consultations i.e. 10th, 11th and 12th August 2010. The first two days will be devoted for consultations of the sub groups with NALSAR for preparing the legal framework of Draft Legislation and the third day for a full committee will meet. The Chairperson said she would confirm the dates after discussing it with the Legal Consultant.
The meeting ended with vote of thanks to chair.

Annex

List of participants:
Chairperson
Dr. (Mrs) Sudha Kaul
Members
I Expert/NGO representatives
1) Shri. Bhushan Punani
3) Smt. Jayshree Raveendran
4) Dr. G.N.Karna
5) Dr. L. Govinda Rao
6) Shri Akhil Paul
7) Ms Merry Barua
8) Ms G. Syamala
9) Shri Rajive Raturi
10) Dr. Uma Tuli
11) Ms. Rukmani Pillai,
12) Ms. Bhargavi Davar,
13) Shri Rajiv Rajan
14) Shri K. Ramakrishnan
15) Shri J.P. Gadkari
16) Prof. Srikala Bharat
II Representives of the State Governments
Ms. Malabika Barua, Commissioner for PwDs, Govt. of Assam
Shri. M.H. Savant, Commissioner for PwDs, Govt. of Maharashtra
Ms. Mita Benerjee, Commissioner for PwDs, Govt. of West Bengal
Shri. S.S Jawahar, Secretary, G/o Tamil Nadu.
Shri. C. Vijayaraj, State Commissioner for Disability, G/o Tamil Nadu.
III Representatives of Central Ministries/Departments
Dr. S.Y. Kothari, Addl. DGHS, M/o Health and Family Welfare
Shri. S.C. Khuntia, Joint Secretary, M/o HRD
Shri Sharad K. Shrivastava, Under Secreatry, Representing DOPT
Shri. A.K. Rathore, Associate Architect, M/o Urban Development
IV Members, ex officio
Mrs. Poonam Natarajan, Chairperson, National Trust
Shri T D Dhariyal, Dy. Chief Commissioner for Persons with Disability.
Dr. Pitam Singh- Representative of Chief Commissioner for Persons with Disabilities
V Member Secretary
Dr. Arbind Prasad, Joint Secretary (Disability Division), Ministry of Social Justice & Empowerment.
Special Invitees:
1) Mr. S N Menon
2) Mr. A.S.Narayanan
3) Major H.P.S. Ahluwalia
4) Shri. Keshav Desirajn, Adl. Secretary, M/o Health and Family Welfare
Ministry of Social Justice & Empowerment
1) Shri Dharmender Kumar, Director IPH
2) Shri. Sunil Kumar Pattanayak, Director, Disability Division, M/o SJ&E

The Beginning....

2010-05-01T07:49:00.000+05:30

Constitution of a Committee to draft a new legislation to replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. ("PwD Act").

F.No. 16-38/2006-DD.III
GOVERNMENT OF INDIA
Ministry of Social Justice & Empowerment

Shastri Bhavan, New Delhi
Date: 30/04/2010

Office Memorandum

Sub:Constitution of a Committee to draft a new legislation to replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. ("PwD Act").

The PwD Act, 1995, has now been in force for over 14 years. Keeping in view the experience of its working over this period, and the need to harmonize its provisions with those of the United Nations Convention on the Rights for Persons with Disabilities (UNCRPD), 2008, and of other legislations on the subject, extensive consultations with various stakeholders including State Governments, NGOs and experts have been carried out. The Central Coordination Committee considered the matter in its meeting dated 21.07.2009, after which a comprehensive draft of amendments necessary in the Act was formulated and circulated to State Governments/Union Territories and concerned Union Ministries in September, 2009, for comments. The draft was also posted on the Ministry's website seeking comments from the public.
In response to the above, comments have been received from several State Governments, Central Ministries, Non- Government Organizations and others.

2. A Committee is hereby constituted to examine the above responses and draft a new legislation to replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

3. Composition of the above Committee shall be as follows:-

Chairperson

Dr. (Mrs.) Sudha Kaul

Members

I. Experts/ NGO representatives

Shri Bhushan Punani, Executive Director, Blind People's Association, Ahmedabad
Dr. Vikas Amte, Secretary & Chief Functionary, Maharogi Sewa Samiti, Chandrapur, Maharashtra
Smt. Jayashree Ravindran, Managing Trustee, Ability Foundation, Chennai
Dr. G.N.Karna, President, Society for Disability and Rehabilitation Studies, Jawaharlal Nehru University, New Delhi
Dr. L. Govinda Rao, Former Director, NIMH, Secunderabad, Andhra Pradesh
A nominee of Director, NIMHANS, not below the rank of a Professor
Ms. Merry Barua, Director, Action for Autism, New Delhi
Ms. G. Syamala, Executive Director, Action for Ability Development and Inclusion (AADI), New Delhi
Shri. Rajive Raturi, Director, Human Rights Law Network (DRI), New Delhi
Dr. Uma Tuli, Founder Managing Secretary, Amar Jyoti Rehabilitation & Research Centre, Delhi
II. Principal Secretaries In-charge of Disability in the State Governments-

Assam
Tamil Nadu
Rajasthan
Maharashtra
West Bengal
III. Representatives of the following Central Ministries/ Departments not below the rank of a Joint Secretary-

M/o Health and Family Welfare
M/o Urban Development
Dept. of School Education and Literacy (M/o HRD)
Dept. of Personnel and Training
Planning Commission
IV. A senior representative nominated by the Head of the National Institute of Public Finance and Policy (NIPFP)

V. Members, ex officio

Chief Commissioner of Persons with Disabilities
Chairperson, National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
Chairman, Rehabilitation Council of India
Financial Advisor, M/o SJ & E, or his nominee
VI. Member Secretary

Joint Secretary (Disability Bureau), M/o SJ & E

4. The Committee may invite other experts, and representatives of other Ministries/ State Governments/ Autonomous Bodies to participate in its deliberations, as Special Invitees.

5. While drafting the new legislation, the Committee shall keep the following in view:-

Provisions of the Constitution and other laws, and the need to avoid duplication of provisions already existing in them,
Financial, logistical and administrative feasibility of the proposed provisions.
6. The Committee will also make an assessment of the financial implications � recurring and non-recurring � of the draft legislation prepared by it for the (i) Central Government, (ii) State Governments, (iii) Local Authorities, and (iv) others on whom obligations may be cast.

7. The Committee will submit draft of the new legislation, as mentioned in para 2 above, by 31st August, 2010, together with the following-

A report on the process adopted by it in drafting the legislation, as also explaining the rationale for its salient provisions, and
A note on the financial implications of the recommended draft, as mentioned in para 6 above.
8. TA/DA, as admissible under Central Government rules, will be paid to the non official members of the Committee for attending its meetings.

9.Secretarial assistance to the Committee will be provided by Pandit Deendayal Upadhyay Institute for the Physically Handicapped, New Delhi, and expenses on the Committee�s work will also be borne by the said Institute.

Yours Faithfully
(Sunil Kumar Pattanayak)
Director-Disability

Copy to:

Dr. (Mrs.) Sudha Kaul, Executive Director, Indian Institute of Cerebral Palsy, Kolkata
Shri Bhushan Punani, Executive Director, Blind People's Association, Jagdish Patel Chowk, Surdas Marg, Vastrapur, Ahmedabad-380015
Dr. Vikas Amte, Maharogi Sewa Samiti At and PO Anandwan, via Waroa, District Chandrapur, Maharashtra 442914
Smt. Jayashree Ravindran, Managing Trustee, Ability Foundation, 28, Second Cross Street, Gandhi Nagar, Adyar, Chennai - 600 020, Tamil Nadu. India
Dr. G.N.Karna, President, Society for Disability and Rehabilitation Studies, JNU, New Delhi. Head Office: B-285, Vasant Kunj Enclave, New Delhi-110070, India
Dr. L. Govinda Rao, Kameswari Kuteer, H.No.8-7-193/13/2, Wesley Teachers Colony, Road No.3, Old Bowenpally, Secunderabad - 500 011
Director, NIMHANS, Bangalore-560029
Ms. Merry Barua, Director, Action for Autism, Pocket 7&8, Jasola Vihar, New Delhi-110025
Ms. G. Syamala, Executive Director AADI - Action for Ability Development and Inclusion, 2, Balbir Saxena Marg, Hauz Khas, New Delhi-110016
Shri. Rajive Raturi, Director, Human Rights Law Network (DRI), 576, Masjid Road, Jungpura, Delhi-110 014
Dr. Uma Tuli, Founder Managing Secretary, Amar Jyoti Rehabilitation & Research Centre, Karkardooma, Vikas Marg, Delhi -110092
Principal Secretary In-charge of Disability, Governments of Assam
Principal Secretary In-charge of Disability, Governments of Tamil Nadu
Principal Secretary In-charge of Disability, Governments of Rajasthan
Principal Secretary In-charge of Disability, Governments of Maharashtra
Principal Secretary In-charge of Disability, Governments of West Bengal
Secretary, M/o Health and Family Welfare
Secretary, M/o Urban Development
Secretary, Dept. of School Education and Literacy (M/o HRD)
Secretary, Dept. of Personnel and Training
Secretary, Planning Commission
Director, National Institute of Public Finance and Policy (NIPFP)
Chief Commissioner of Persons with Disabilities
Chairperson, National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
Chairman, Rehabilitation Council of India
Financial Advisor, M/o SJ & E
Joint Secretary (Disability), M/o SJ & E
Director, Pt. DDU Institute for the Physically Handicapped, New Delhi
Copy for information to-

PPS to Secretary, M/o Social Justice & Empowerment
PS to Additional Secretary, M/o Social Justice & Empowerment