Comments to the Rights of Persons with Disabilities Bill, 2014

I. Definitions

Section 2(c) “Barrier”: - definition to include attitudinal barriers: Should read as follows: “Barrier means any factor which hampers the full and effective participation of persons with disabilities in society, including attitudinal, communicational, cultural, economic, environmental, institutional, political, social or structural factors which hampers the full and effective participation of persons with disabilities in society.”

Section 2(f) “Communication”: - definition to include sign language: Should read as follows: “Communication includes means and formats of communication, languages, display of text, Braille, tactile communication, signs, large print, accessible multimedia, written, audio, plain-language, sign language, human reader, augmentative and alternative modes and accessible information and communication technology.”

Section 2 (h) “establishment” to include private establishments as well. The UNCRPD places an obligation on State Parties to take ‘appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise’ [Article 4(1)(e)]. It also requires that State Parties promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures [Article 27(1)(h)]. Thus it is important that ‘establishments’ as covered under the RPD Bill, which would refer to rights relating to employment of persons with disabilities, reservation of jobs and provision of reasonable accommodation should include state as well as private establishments. The intention to ensure the representation of persons with disabilities in the private sector was also recognised by the Supreme Court in Union of India v. National Federation of the Blind. Therefore the definition should read as follows:

‘Establishment’ means and includes:

• Department and Ministries of Government;

• Local authorities and authorities or bodies owned, controlled or aided by the Central or State Government;

• Any statutory or non-statutory body created, owned, financially or administratively controlled or aided by the Central or State Government or any such body performing public functions which are primarily welfare activities and includes Government Companies as defined in Section 617 of the Companies Act, 1956;

• Any company, firm, cooperative or other society, association, trust, agency, institution, organization, union, landlord, industry, supplier of goods or services, factory or other non-statutory body which is not covered under clause (i) to (iv)

• Insertion of the term “discrimination on the basis of disability” Since the term is widely used across the document, it is important to define it. A suggested definition of the term based on the definition available in the e-Accessibility Tool Kit for Policy Makers is as follows: “Accessibility is a measure of the extent to which any infrastructure, product or service can be used by a person with a disability as effectively as it can be used by a person without that disability.”

• Section 2(x): definition of specified disability to be deleted.

• Section 2(t): Definition of “Reasonable Accommodation” to be altered: 'disproportionate or undue burden’ to be deleted. Because there is no definition given as to what would constitute an undue burden or what would be disproportionate, along with the fact that this can be used as an exit route for public authorities and private employers to evade their responsibility to provide reasonable accommodation. Most other disability rights legislations including the Americans with Disabilities Act of 1990 do not have this qualification in the definition of reasonable accommodation. The definition should instead read as follows: "Reasonable accommodation" means necessary and appropriate modification and adjustments to ensure to persons with disabilities the enjoyment or exercise of rights equally with others. It can include but is not limited to:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities;

(B) and job restructuring,  part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”

II. Voting and other Rights

i.    Expansion of Section 10:

It is not sufficient to only make polling stations accessible. Section 10 needs to be expanded to include the following:

• To make all voter registration stations and facilities accessible to persons with disabilities
• All materials and communication must be made available in multiple formats.

• Election Commissions to take special measures to promote participation of persons with disabilities in the electoral process- both in terms of casting votes, as well as standing for elections.

ii. Section 11 (4) to be expanded to include Section 11 (4) (c):- to include the following: “The enjoyment of equal right to conduct their own financial affairs and avail of forms of financial credit such as bank loans, mortgages, insurance etc., should be on the same terms and conditions as other customers without discrimination or on special terms which may be advantageous to persons with disabilities.”

III. Education

• Section 17 - addition of a sub section requiring the appropriate government to promote alternate teaching methods using new forms of information and communications technologies and pedagogic techniques.
• All children with disabilities should have access to and training in the use of computers and educational and knowledge materials in accessible formats.
• Appropriate government should promote harmonization of syllabus to enable sharing of accessible resources across the state and recognize and support the efforts of disability and other organizations in imparting training to disabled children.
• The present draft limits the provisions of this Act to educational institutions funded by the appropriate government- this needs to be expanded to include all educational institutions, private and public.
• The government should also accordingly revise existing schemes for providing financial aid to such families having children with disabilities to keep abreast of present financial needs along with launching new ones.
• Section 16(g) - aids and ATs should be provided free of cost till the completion of school education and not just until 18 years since very often children with disabilities start their education late.
• Section 15 on education - private schools should also be required to employ special educators for students with disabilities and all private educational institutions- both for school as well as higher education should admit students with disabilities without discrimination if they meet the requisite criteria.

IV.    Employment

• Section 19 (1) proviso - permitting for exemption of any establishment to be deleted.
• Section 33 (3) - The age relaxation in upper age limit has been reduced to five years from the current norm of 10 years. This should be revised to 10 years.

V.    Access

Section 40 - provides that the government shall provide for access to transport by retrofitting old modes of transport where “technically feasible and economically viable”. This can potentially lead to a situation where transport is not made accessible on the ground that it is too expensive or technically not feasible. In such instances, persons with disabilities cannot be deprived of access to transport. We thus recommend the insertion of the following clause to section 40 (1)(b): “Where a facility cannot be retrofitted because it is too technically challenging or expensive, there must be made available an alternate means of accessing that transport or facility.” Coupled with insertion of a time frame of 3 years for making all modes of transport accessible – like in the US model.

Section 41 – The following should be inserted

• Accessibility of websites: All websites must conform to the current Web Content Accessibility Guidelines formulated by the World Wide Web Consortium and all government communication must be accessible electronically as well as in print.

• There should be a periodic audit for accessibility of all Government websites and training must be imparted to technology developers to create and maintain accessible products, interfaces and content. Research must be ongoing to develop new and open source assistive technologies for all disabilities and in all languages and for this purpose tenders must be invited from the public as well as private sector.

• To insert a new section on Procurement-  “Appropriate Governments must ensure that there is a procurement policy in place which mandates that all products (hardware and software), goods and services procured by them must conform to accessibility requirements and this should be introduced in the license terms of service contracts itself.”
• Section 44 (1) to refer to all “buildings accessible to the public” instead of “public buildings” - This is to ensure that it is not only government buildings that are made accessible but also all buildings available to the public such as hospitals, hotels, libraries, shops, banks etc., whether public or private, are made accessible. The UNCRPD places an obligation on State Parties to take ‘appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise’ [Article 4(1)(e)]. It also specifically requires that State Parties ensure that ‘private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities’ [Article 9(2)(b)].
• To insert a new sub-section in Section 44 for periodic audit of buildings: “The Central Government must establish a system for periodic audit of all building and physical spaces and use these reports for measuring pace and extent of rectification and adherence to the standards.”
• Section 45- the blanket time frame of 2 years is too ambiguous for service providers and has to be revised. The National Commission or relevant authority (for example TRAI in the case of telecom operators) may determine a reasonable time frame for provision of accessible services and such time frame may be a little more in case of rectification/ retrofitting as the case may be. The Rationale for this is that the time to provide accessible billing facilities for mobile phones or making a website accessible would be barely a matter of months, while for something else may be a year, hence such a blanket provision of time of 2 years should be avoided.

VI. General Comments

• Restore section on women and girls with disabilities, which was present in the 2011 draft. The present Act does not contain specific section for them, just mentions them in a diluted manner across the legislation.
• Same for children with disabilities- addition of a dedicated section for them- as present in previous draft.
• Section 23(1) - the words 'within the limit of its economic capacity and development' must be removed because it is an exit route for states from formulating anything more than the minimum necessary schemes in this area. Our experience with the previous Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) 1995 Act has demonstrated that almost all the sections with 'within the economic limits' were not complied with by all states and proved ineffectual. Furthermore, the enjoyment and exercise of the fundamental rights of persons with disabilities cannot hinge on the economic capacity of states. All states will have the minimum capacity required - it is a question of priority.
• Section 28 needs a sub section, which incorporates the copyright fair dealing exception to make all copyrighted cultural works accessible to persons with disabilities.
• Appropriate governments should ensure that one member from the Disability Advisory Committee should be able to participate on all key policy making committees to ensure that the disability perspective is adequately represented across all government initiatives.
• Section 61(b) and 67(b) should be deleted since they state unsoundness of mind as a reason for disqualification, which goes against the spirit of the UNCRPD.
• Similarly Sections 76(1)(c) and 89(1)(c) should be deleted since they cite physical/ mental incapacity as a disqualification from holding office.
• Sections 103 and 104 should include offences committed by the Government, public officials and government companies respectively in the discharge of their duties.
• Section 73(2) - The chairperson of the National Commission has to necessarily be a person with disability.
• Section 86 (2) on the Chairperson of the state commission- should be made mandatory that the Chairperson should be a person with disability
• Duties and Responsibilities of Appropriate Governments: The clause “every appropriate government should set up a help line and other resources to assist persons with disabilities” should be included.
• Access to emergency services: The appropriate governments should ensure that:

i. Persons with disabilities have instantaneous access to all emergency services such as ambulance, fire engine, hospital and police and to this end ensure that measures are taken to make these accessible to them;

ii. Steps are taken to ensure that during times of disasters such as floods and earthquakes, mitigation, rescue, relief and reconstruction measures take into account the needs of persons with disabilities and especially women and children with disabilities.