WUNRN
India - CEDAW &
Elimination of Discrimination against Women & Girls with Disabilities
Despite
the significant progress made in different fields of life, gender inequality
and discrimination in accessing rights by women in general and especially women
of the most vulnerable sections of the society, is still a major issue in
India. Most of the women in the suburb or rural areas, women of the backward
class, or women belonging to vulnerable group experience denial of even
fundamental rights till date. Issues of discriminations & denial of
rights that faced by Women with Disabilities (WWDs) are still mostly ignored by
everyone – Government as well as civil society. WWDs are not only a socially
invisible category but their plights are worse than both men with disabilities
and other non-disabled women. There is a lack of serious discourse around advancement
and ensuring rights of WWDs among the GOs, NGOs and civil society, nationally
and at International forums as well.
Globally
CEDAW is considered to be the foundation of most policies and actions taken for
elimination of discrimination towards women, as the Convention laid down
specific guidelines to the states-parties for gender equality, justice and
empowerment of women. Though the Convention speaks for rights of “all women”,
only with the Beijing Declaration in 1995 WWDs were mentioned as a vulnerable
group. However, except that, no significant effort has been made for them
afterwards. In India, among the laws enacted to fulfil the CEDAW
obligations, none includes any specific clauses for elimination of
discriminations against WWDs.
This year the CEDAW Committee considered the combined 4th
& 5th periodic reports of the Indian State and the Alternative
report and the oral submission by the Indian Women’s Organisations. For that
occasion I had been working a lot for mainstreaming the issue of gender &
disability and thereby ensuring Equal Rights & Opportunities for WWDs and I
raised my voice in different women forums especially with NAWO (National
Alliance of Women’s Organisations), which works closely to monitor the CEDAW
process. Over the time the members of the alliance became aware and sensitized,
so that the WWD issue was included and was raised as an “important emerging
issue” in the Alternative report. The CEDAW Committee took note of it and asked
State-party delegation about the steps taken to improve the situation of
W&GWDs.
In response, the State-party delegation was very generic, it informed
about the pending RPD Bill in Indian Parliament, reservation in few government
jobs (which are mostly of D Category) and formation of Disability Commission
both at National & State level but nothing specific to prioritizing gender
issue within disability. So the Committee in the concluding remarks
expressed its concern, especially about the denial of legal capacities of
women with intellectual or psychosocial disabilities. It specifies that “women
with disabilities experience a high rate of poverty, lack of access to
education, employment and health services, especially in rural areas; face
multiple challenges, including the lack of adequate access to public spaces and
utilities, often experience harassment in public; and are excluded from
decision-making processes.” It further expressed concern over lack of
disaggregated disability data which fails to take account the responses to
violence against women with disabilities and their type of impairment.
It
was a remarkable achievement. The Committee
recommendations were comprehensive, significant and encompassed the key areas
for elimination of discrimination against Women & Girls with Disabilities.
For disabled women activists it was a recognition
which the WWDs deserved for very long time. Now the course of action is having
a guideline to be followed, even if there is a long way to go for the disabled
women activists to make it happen. And that is the challenge now in front of
us: a
genuine strategic plan of action & implementation of that by the State to
fulfill its commitments according to the CEDAW recommendations.
The
final version of the pending RPD bill reduced down the clause on rights of WWD
in few lines, and has chopped up all the specific clauses, which is nothing but
clear reflection of apathy towards issues of WWDs. If it is passed as it is
then, for obvious reason, the RPD Bill – Rights of Persons with Disabilities
Bill - will fail to address the issues that the Committee
acknowledged as extremely urgent and asked State for definite actions.
In such situation to go forward strong and
strategic advocacy is needed at national, provincial and international level.
Partnership and collaboration is essential with Women’s Rights organizations
and platforms at all level to make Government act to fulfill its commitment
towards elimination of discriminations against WWDs.
AWWD as an organization by and for WWDs will
continue to scale up its advocacy activities in achieving the goal. Pangea
Foundation (a Women’s Rights Organization based in Italy) has been a strong
partner of AWWD for last seven years, who helped and supported AWWD not only to
advocate with NAWO, India at national level and other women’s forum at state
level, but also to work in international sessions. There has been strong hand
holding between Pangea & AWWD to advocate for the issue in all possible
form. Participating together in the CSW57, for example, helped AWWD to raise
the issue very strongly & effectively at the International forum. As we
have to still go a long way, there is an urgent need of making joint,
collaborative strategic advocacy plan to further scale up the activities and
develop networking with more numbers of likeminded forums at International
level, creating pressure on the State for implementation and monitoring of the
actions. That will be one of the most important part in the plan for future
actions of AWWD and Pangea, to uphold and ensure “Equal Rights & No
Discriminations” Against Women & Girls with Disabilities.
INDIA – THE RIGHTS OF PERSONS WITH DISABILITIES
BILL 2014 – NEW FRONTIERS FOR DISABILITY RIGHTS OR REPACKAGING THE OLD?
By
Jayna Kothari – August 15, 2014
The new Rights of Persons with Disabilities Bill 2014 has
been tabled in the Parliament and, instead of excitement and optimism about
this new bill, there is serious concern within the disability rights movement.
The draft RPD Bill has been on the cards for the last four years and there has
been much debate and controversy surrounding the manner in which the final
draft of the Bill was made, the inputs made by the government, and the final
version presented to the Parliament.[1] How does this Bill serve for the recognition
of rights of persons with disabilities? Does it encompass all the requirements
of the UNCRPD that it was aimed to have? Does it advance the rights of persons
with disabilities significantly from the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act 1995 (“PWD
Act”) that is currently in force? I will attempt to answer these questions from
the starting point of the definition of persons with disabilities.
Definition of Persons with Disabilities
One of the most controversial and limiting aspects of the
PWD Act has been the definition given to “person with disabilities.” Under the
PWD Act presently, all entitlements are limited to persons with disabilities,
who is defined as persons having 40% or more of any of the seven stated
disabilities – blindness, low vision, hearing impairment, locomotor disability,
mental retardation, mental illness, and leprosy. This definition was a huge
stumbling block as it limits the scope of the benefits under the PWD Act only
to persons who fall within this restricted medical definition. By specifying
only the above seven different categories of disability with the additional
burden of showing that such disability is not less that 40% as certified by a
medical authority, the definition of a person with disability becomes extremely
narrow, as compared to most progressive disability discrimination legislations
the world over.
This definition was a serious issue that was taken up
under the RPD Bill drafting where it was mooted that the definition should be
inclusive and from a social model as provided under the UNCRPD, which defines a
person with disability as “including those who have long-term physical, mental,
intellectual or sensory impairments, which in interaction with various barriers
may hinder their full and effective participation in society on an equal basis
with others.”
Under the present RPD Bill, surprisingly, there are three
separate categories of persons with disabilities:
- Section 2
(q) provides for “persons with disabilities” which is defined as per the
UNCRPD as any persons with long term physical, mental, intellectual or
sensory impairment, which may hinder his full and effective participation
in society equally with others.
- Section 2
(p) provides for “persons with benchmark disabilities” which means a
person with not less than 40% of a specified disability, which includes
around 19 separate disabilities including the 7 already mentioned in the
PWD Act, and
- Section 2
(r), which defines a “person with high support needs” as a person with a
benchmark disability who needs high support.
At the very outset, therefore, the law differentiates
persons with disabilities into three separate categories.
While the definition under section 2 (q) is broad and
inclusive, a detailed examination of the entire Bill reveals that this
definition is mere tokenism. While equality, non-discrimination and access are
all guaranteed for all persons with disabilities, most entitlements relating to
education and employment under the Bill are only for persons with benchmark
disabilities and reproduces the medical model of understanding disability that
is prevalent in the PWD Act. Under the chapter of education, the right to free
and compulsory education, the provision of free books, assistive devices, and
scholarships are restricted to children with benchmark disabilities.
Reservation of seats in higher education is also limited to students with
benchmark disabilities. Even in the case of employment, the reservation in
public employment is restricted to persons with benchmark disabilities, the
schemes for concessional allotment of land, and other poverty alleviation
schemes are also only for persons with benchmark disabilities. The provision
for seeking high support from the government in the form of any intensive
physical or psychological support required for a person for his or her daily
activities including education, employment, and therapy can also only be made
by a person with benchmark disability.
While the number of disabilities covered under the
“benchmark disabilities” is increased from 7 to 19, this is certainly not the
way forward for a legislation aimed to address full protection of rights of
persons with disabilities. This restricted list of 19 disabilities would still
not cover hundreds of other disabilities. For example, under the PWD Act, in
the case of Union of India v. Devendra Kumar Pant &Ors.,[2] the Supreme Court had to decide on a matter
where a person having colour blindness was promoted to a post which required
him to clear a medical fitness test, which included a requirement of colour
perception as a minimum standard. The Supreme Court failed to find this as an
issue of discrimination under Section 47 (2) of the PWD Act. In doing so, it
held that lack of colour perception is neither blindness nor low vision and is
therefore apparently not a disability under the Act. The Court held that “it is
doubtful whether a person lacking colour perception can claim to be a person
entitled to any benefit under the Act.”[3] It was to remove such exclusions from rights
guaranteed under the PWD Act, that a broad and all-encompassing definition for
persons with disabilities was recommended by the disability rights movement,
which was not disability specific, but is only defined as any long-term
physical, mental, intellectual or sensory impairment, which hinders a person’s
full and effective participation in society equally with others.
Further, the definition of benchmark disability still
requires the person prove medically that he or she has 40% or more of the said
disability. Such a narrow definition of disability is based on the assumption
that only severely disabled persons, i.e. persons whose disability is more than
40%, are in need for any entitlements under the law. This, in turn, presumes
that disability discrimination is actually and only invoked by a certain degree
of impairment, which again locates the problem of disability discrimination
inside the individual victim.[4] The opposite is in fact true: disability
discrimination is the result of treatment, attitudes and social structures.
Such narrow definitions of disability in discrimination laws indirectly purport
the individual / medical model of disability.[5]
This kind of a two definition structure within the draft
Bill creates a second class status for all persons who do not have a benchmark
disability, as they would not be entitled for any of the tangible benefits
listed above. If the Bill is passed in this form, the law would have failed to
internalize the key message of the disability rights movement – that disability
has to be understood not as an attribute of an individual, but, rather, a
complex collection of conditions and barriers, many of which are created by the
social environment. From this perspective, disability cannot be medically
defined as any specified number of conditions with a percentage of severity. If
such a definition of benchmark disabilities is retained in the RPD Bill, it would
just be a case of repackaging the old PWD Act in a new bottle.
Author:
Jayna Kothari is an
advocate practising in the Karnataka High Court and, also, Director, Centre for
Law and Policy Research, Bangalore. Her book, The Future of Disabiity Law
was published in 2012 by OUP (Delhi).
[1]AmitaDhanda, “A
Retrograde and Incoherent Law” (The Hindu, 6 Feb 2014) Available at http://www.thehindu.com/todays-paper/tp-opinion/a-retrograde-and-incoherent-law/article5658595.ece
Last accessed 6th August 2014
[2](2010)1 SCJ 455
[3] Ibid
[4] T Degener, “The
Definition of Disability in German and Foreign Discrimination Law” Disability
Studies Quarterly, Vol 26, No. 2 (2006)
[5] Ibid