By Misbah Ul:
The twenty-first century witnessed its first human rights treaty that was chiefly concerned with disability in the form of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in the General Assembly in 2007. India was among the primary members which signed and ratified it which makes it mandatory for the Indian state to bring its domestic laws in consonance with the Disability Convention.
The BJP led National Democratic Alliance (NDA), which has formed the government at the Centre with a thumping majority, had also promised during its election campaign to protect the rights and interests of the weaker sections of society. This is the appropriate moment for this government to facilitate the enactment of the Rights of Persons with Disabilities (RPD) Bill with necessary amendments. This bill was introduced in the upper house of the parliament two years ago. It was subsequently referred to a standing committee for review due to the demands of activists throughout the country because of its retrograde undertone. It was considered to be against the spirit of UN convention.
The bill proposes to replace the existing office of Chief Commissioner for Persons with Disabilities (CCPD) by a National Commission for Persons with Disabilities (NCPD) at the national level and State Commissions at the state level by replacing the State Commissioners. It provides for a multi-member body with a Chairperson as its head which is somewhat similar to National Commission for Scheduled Castes, National Commission for Scheduled Tribes and National Commission for Women. This is indeed a welcome step in terms of ensuring an effective institutional framework for the most deprived and neglected citizens of the country.
But there are obvious and serious lacunae in this bill which the government needs to address before it gets a green signal on the floor of the parliament. The major contention is that like the existing CCPD, the proposed NCPD may also be headed by an able-bodied person. This means that it is not necessary that a person with disability will the head this institution, which will ironically be dedicated to the empowerment of persons with disabilities.
The UN convention explicitly directs the ratifying members to ensure not only the representation of the interests and voices of disabled persons in the institutions but also to promote the inclusion and representation of disabled persons themselves, especially in those institutions which work to promote their rights and interests. Therefore, given the commitment of India’s Constitution to empower weaker sections in our society and ensuring their adequate representation in public institutions, the National Commission solely dedicated for protecting and promoting the rights and interests of the disabled, must be headed by a competent, capable, independent and impartial person with disability.
In the NCPD, which is proposed to be a multi-member body, the majority of its members must necessarily be disabled persons. To ensure the efficacy of NCPD it should be provided constitutional status. Its decision and findings must be binding on concerned parties and not merely recommendatory. To ensure independence and autonomy it must be detached, in the form of a separate wing, from the Department of Empowerment of Persons with Disabilities (DEP) and the Ministry of Social Justice and Empowerment (MSJE).
The other key limitation to the proposed NCPD is that it has only recommendatory power. Besides, it also lacks punitive power. It cannot direct anyone to strictly comply with its decisions. This may often result in non-compliance with its decisions and with authorities only complying with the same if and when they wish to respect its moral authority. This may render this watchdog institution toothless which is also the case with the existing office of the Chief Commissioner for Persons with Disabilities.
According to the latest census, 2.21% of Indians are persons with disabilities which is a highly underestimated figure given the fact that almost half of Indian children are chronically malnourished which is one of the dominant reasons for acquiring any disability. India’s social and cultural atmosphere also prevents most families from disclosing any sort of deformity of their members because of the obvious stigma attached to disability. It has also been admitted recently by the Minister for Social Justice & Empowerment that this government will undertake another head count of the disabled soon because of the faulty counting techniques and other factors. Even by conservative estimates, India may have around 10 to 15% of its population which is disabled.
It is also well known that we are still far behind in terms of physical infrastructure as compared to the advanced economies. In this context, the physical accessibility to India’s judiciary is not adequate for disabled citizens. To address this serious accessibility concern for the disabled and providing them their basic right of access to justice, instead of scrapping the existing office of Chief Commissioner, as proposed in the draft bill, it will be in the interest of both the Indian state and its disabled citizens to continue with this institution. It could be dedicated solely for the purpose of grievance redressal by sorting out the issues of inadequate infrastructure and limited staff which have hitherto plagued the normal functioning of this watchdog body.
If India really wants to ensure justice and empower its citizens with disabilities, then it must have a strong and effective institutional framework which can truly provide unhindered democratic and civil rights to its millions of disabled persons.