Inviting suggestions for amendment in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

1. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [PWD Act, 1995] came into force w.e.f. 7th February, 1996 . The Act is available on the website of the Ministry at https://socialjustice.nic.in/disabled/suggact.htm.

2. With the passage of time and developments in the disability sector, certain amendments to the Act have become necessary and these amendments will be carried out in consultation with the stakeholders.

3. All the interested individuals and organizations are, therefore, requested to send us their suggestions for amendment to the existing provisions of the Act or inclusion of new provisions by the 31st July, 2006 .

The Committee received a memorandum questioning the exclusion of J & K from the purview of the Act. The respondent stressed that disability knew no barriers. Without entering into the argument as to whether or not Article 370 bars such inclusion, the Committee recommends that the Central Government should take all necessary steps to make such inclusion possible.

The crucial issue before the committee vis-a-vis this chapter was the definition of disability. The parent enactment had opted for an enumerative definition. Consequently all those disabilities which were not included in the definition got left out. A situation which was far from desirable for a vulnerable group. The Committee therefore took an ideological decision to err on the side of inclusion. Consequently alongwith suggesting the inclusion of several new disabilities, the committee has proposed a residuary clause which authorises the central government to notify other disabilities on the recommendation of an expert committee

The Committee also actively debated the desirability of substituting an enumerative definition with a generic one, insofar as it would be more inclusive. The option was primarily exercised because it was felt that such a definition might render accessing of benefits difficult for persons with disability.

Whilst deliberating on the policy of liberality it was apprehended that an over inclusive policy may lead to the marginalisation of the more severely disabled. Further the argument of economic constraints could not be totally dismissed. It was therefore decided that whilst non-discrimination clause shall be extended to all persons with disability the positive rights would be disability specific in recognition of the principle that some need it more than others.

On the basis of certain expert input modifications in the definitions of blindness, low vision and mental retardation are being proposed.

The Committee received representations of two kinds with regard to mental illness: one, sought the exclusion of the condition on the reasoning that mental illness was a disease and not a disability. The other, contended that the definition as at present was over inclusive and would bring within its coverage even transient mental distress. Along with these representations questioning the inclusion of mental illness, were several others which contended that the statute should not stop at only including mental illness but also address their needs in the substantive sections. In the light of the representations change in the definition is being suggested..

In relation to this group again the Committee received several kinds of representations one which just asked for the inclusion of the group and especially sought certain education related relaxations for them. Two who were opposed to the inclusion because of the disability linked stigma. They felt the problems of the group were better addressed in education statutes. A third kind of opinion warned against the difficulty of evaluating / diagnosing the condition in a multi-cultural, multi-lingual country but asked for further research on the matter. The Committee at present has not recommended the inclusion of this disability. Whether the consultation would cause reconsideration remains to be seen..

The committee has received a representation from eunuchs for inclusion in the definition of disability and benefits under the Act. The committee felt that their case did not fall within the parameters of the disability definition adopted for the purposes of this Act. However, the committee strongly recommends that this being a social disability, the Ministry should take appropriate steps for the socio-economic rehabilitation of this group by undertaking necessary programs and activities in the area of education, training and employment..

The Committee received an overwhelming number of suggestions to enhance the non-Governmental component of the Central Coordination and Central Executive Committees. Even as the Committee was in empathy with this suggestion, it also felt the need to guard against the Central Coordination Committee becoming such an overly large body that it is unable to transact any business. To this end, the Committee has devised the strategy of making the attendance of some members linked with the agenda of particular meeting. Alongwith increasing the non-governmental membership, the vice chairperson of the Central Coordination Committee is required to be chosen from amongst Disability NGO's..

The provisions relating to Central Coordination and State Executive Committees have been brought in pari-materia with the changes proposed for the Central Coordination and Central Executive Committees..

The Committee received a number of suggestions for enhancing the local level participation in policy making and execution. And to that end it was proposed that the statute may be amended to establish District Coordination and District Executive Committee. Since the Committee members felt that a certain amount of centralisation was required for policy making, the Committee has only recommended the establishment of a District Executive Committee. On the question of NGO participation in the District level Committee there was difference of opinion in the Committee whilst some members felt that it would make for more responsive governmental functioning, others feared that it may skew the power equations between non-governmental organisations. The question of NGO participation in District Level Committees is therefore being referred to the consultations..

A number of changes have been introduced to stress on the autonomy of the Central and State Coordination Committee. Thus the power of co-opting members has been taken away from the central and state government and given to the Central and State Coordination Committees respectively. The provision which allowed the central or state governments to issue directions to the CCC or SCC respectively, has been deleted..

The Committee is proposing the inclusion of certain new sections in this chapter primarily to stress on the society linked causes of disability. It therefore makes it the duty of the appropriate governments to take all necessary steps to ensure a safe living and working environment. It requires that if a certain kind of living and working environment causes disability then the person causing it should assume responsibility. The appropriate governments are required to conduct safety audits and issue necessary directions to manufacturers, planners and builders in furtherance of a safe working and living environment.

In order to promote prevention, a duty has been cast on the appropriate governments to launch universal immunisation programmes. The programmes have to be conducted according to prescribed standards of hygiene and safety. Any agency or official infringing this condition has been made absolutely responsible for the consequences of dereliction.

Furthermore an amendment has been introduced in Section 25 (h) to stress that prevention programmes and campaigns should be conducted in harmony with the dignity of persons with disability.

In this chapter the process of linking up positive rights with disability has been initiated. Thus the disabilities to which the positive rights have been extended are expressly specified. At the same time the non-discrimination provisions have been extended to all disabilities.

A constant complaint against the parent statute has been that it failed to address the problem of denial of admission by schools. An express provision addressing this question has been introduced.

The other grievances related to grant of the amanuensis facilities only to the visually impaired when others also needed it; need to consider aids other than amanuensis and suitable modifications in the examination system for all persons with disabilities and not only the blind. The amendments introduced address each of these questions.

Some repetition has been remedied by combining Sections 27 and 30. And section 28 has been shifted to a more appropriate chapter, i.e., research and human resource development.

Along with introducing a non-discrimination provision, the proposed amendments aim to promote the employment opportunities of persons with disabilities. To that end is the suggestion to make identification of jobs for persons with disabilities to be an ongoing activity. Of similar purport is the obligation to hold exams on Staff Selection Commission. Section 36A has been incorporated to protect persons with disability in this era of liberalization.

Reservations for persons with mental retardation in Group D posts has been a long standing demand. The National Institute of Mentally Handicapped has through a series of evaluations identified jobs, which can be performed by persons with mental retardation. Consequently the Committee has recommended 1% reservation of Group D jobs for persons with mental retardation and autism. Whilst for persons with blindness, hearing impairment locomotor disability and cerebral palsy reservation to group A & B posts has also been expressly provided.

The proposed amendments have suggested inclusion of filariasis, haemophilia thalessimia, in the definition of disability. These medical disabilities are specially in need of medical care and treatment. These have been guaranteed as rights for these disabilities and mental illness. This chapter is being proposed to this purpose.

The Committee specially strengthened in making this recommendation because a number of state governments have schemes to reimburse medical expenses and treatment.

There is reimbursement of medical expenses by the Government of Andhra Pradesh upto Rs. 5000/- including cost of treatment, prosthetic aids, journey expenses for patient and one escort.

The State of Punjab provides financial assistance up to Rs.100/- per month to patients of chronic diseases, discharged from hospitals to continue special diets at home, especially those for leprosy cured and mentally ill.

Though the statute is primarily concerned with equality of opportunity, the care and protection needs of persons with disability especially persons with severe disability, children with disability, and special vulnerable groups within disability needed to be addressed. It is to that end that this new chapter for the care and protection of persons with disability is being proposed.

A new section has been added which provides a procedure by which the office of the Chief Commissioner and Commissioners are informed of the research being undertaken in this field.

Deletion of Chapter An overwhelming body of opinion received by the committee asked for this chapter to be deleted as it served no other purpose except to impede service. Respondents felt that whilst the chapter in no way allowed for accountability it would increase paper work and possibly corruption. Since the Committee was of the same view it is proposed that this chapter may be deleted.

Court Protection A new chapter is facilitate persons with disability to protect their property rights is being added. The chapter does not guarantee property rights but provides for court intervention to guard against the deprivation of the property rights of persons with disability. At the same time it guards against over-protectionism and allows a person with disability capable of speaking for himself to do so.

Rationale for Deletion of Chapter The Committee felt that the needs of persons with Disabilities required greater recognition than just designating institutions for their residence. Consequently this chapter is being deleted. And the wide-ranging needs of this constituency are being provided for in the care and protection chapter. The care and protection chapter also incorporates the institutionalisation needs of this group.

Lack of teeth of enforcement mechanisms has been a constant criticism against the parent Act. A major task before the Committee therefore was to strengthen the enforcement mechanisms of the Act. The Committee discussed a number of options. A major one being to suggest establishment of National and State Commissions on Disability Rights. The Committee decided against this option primarily because such a body would also be of investigative / conciliatory character. This function has been conferred by the parent statute on the Chief Commissioner and Commissioners.

To give the Commissioner system a go by within two years of the Act did not seem advisable. Especially as the office has not even been tested out what with the first Chief Commissioner being only appointed September 1998. It was therefore decided that instead of displacing the Chief Commissioner and Commissioner offices should be strengthened. The conciliatory functions have thus been accorded statutory recognition. The Chief Commissioner and Commissioner have also been given the authority to seek adjudication wherever required.

In recognition of the fact that conciliation will not always succeed the committee has proposed the setting up of a Disability Anti-Discrimination Tribunal with the same powers as a High COurt. The Committee is aware that the proposal is equivalent to asking for a special court for persons with Disability. Hence all the problems associated with Special Courts may occur here. However in view of the special vulnerabilities of the constituency whose rights were being addressed this seemed to be the best available option.

Deliberations for a legislation on the rights of persons with disability have been of long duration. The persons with Disabilities Bill of 1981 had a chapter on Finance, however when the Act was enacted in 1995 such a chapter was not included.

To answer to some extent the question of resources this chapter is being introduced. The chapter sets up Central and State Social Security Funds for Disability and then specifies the various sources from which amounts could be credited to the Funds.

The funds are to be constituted by cess on non-essential goods and commodities which cause disability, such cess shall also be imposed on imported goods and commodities of similar nature; amounts credited by the central or state governments; fines imposed under this Act, contributions and grants received from corporate and natural persons; any utilised allocated amounts against grants a percentage of the amount recovered by way of fine under the industrial safety laws and one per cent of the amount awarded by the Motor Accidents Claims Tribunal over and above the compensation awarded to the claimant in such cases where, the accident has caused either permanent or temporary disability.

In the imposition of the cess a distinction has been made between (1) goods and commodities which are liable to cause or aggravate disability in the course of their manufacture; (2) goods and commodities which are likely to cause or aggravate disability in the course of their ordinary consumption and (3) goods or commodities which are liable to cause or aggravate disability in the course of their human consumption A part of the cess imposed on goods of the first kind is to be reserved for the welfare of workers.

The funds have been made subject to annual audit by the comptroller and Auditor General of India. Workers funds can be audited in accordance with the direction of the comptroller these audited accounts are to be sent to the appropriate governments to be placed before the appropriate legislatures.

In order to strengthen the enforcement component of the Act a chapter on offences and penalties has been included. Infringement of the non discrimination clauses, failure to notify schemes, or implement them, failure to follow the directives of the Chief Commissioner and Commissioner respectively and failure to follow directions which make for a safer living and working environment have been made punishable.

A major point of discussion at the deliberations was the nature of sanctions with some members feeling that unless coercive sanctions such as imprisonment, disciplinary proceedings, etc. were provided, it would not be possible to usher in change and stop discriminatory practices. Others felt that such sanctions may be counter productive and may foster feelings of resentment and animosity. In the discussion on innovative sanctions one member came up with the suggestion that every official guilty of discriminatory conduct should be punished with community service in a disability organisation for a minimum period of three months. This sanction has at present not been proposed but the committee hopes to obtain feedback on it at the consultations.

At present the Committee has used fines as the thrust of the sanctions. This is also because these fines would not go to the Central and State Consolidated Funds but will be credited to the Social Security Funds for Disability to be set up under the Act.

Tacit Hypothecation, Compensation and Limitation In order to facilitate persons with disability in obtaining compensation the principle of tacit hypothecation is being introduced. To delink the payment of compensation with earning capacity a provision enunciating norms of minimum compensation is being introduced. Provision for interim compensation has also been made. In order to assist persons with disability to obtain compensation for subsequently manifested disability changes in the law of limitation are also being proposed.

Right to Information, Legal Aid and Legal Expenses Thus the chapter incorporates a right to information, concession in court fees, reimbursement of legal expenses and legal aid.

In order that information on the extent of disability in the country may be obtained a provision requiring that disability be made a category in the census has been incorporated. The enumeration has to be only used as baseline data for formulation of policy and cannot be the basis of classification of a person with disability to ascertain entitlement for concession.

A number of non-disabled persons desire to extend their support to persons with disability and several persons with disability need it. Such support does not get proffered and utilised because the meeting o the two does not take place. In order to facilitate such meeting up, a National Disability Service is being mooted to enroll persons interested to work and assist in the field of disability. The enrollment registers are being placed in the office of the Chief Commissioner and Commissioner respectively. Professionals, rehabilitation workers, home workers, family workers and counselors and general volunteers can enroll themselves as members of the National Disability Service.

A number of memorandums to the committee questioned the omnibus good-faith clause incorporated in section 71. The clause has been amended to deny such protection in the event of their failure to discharge their statutory duties or upon their discriminating against a person with disability.

Changes have also been introduced in the overriding clause to clarify that enactment of the statute should not lead to deprivation of any existing benefits. Further it has been clarified that the statute is no bar to g