Friday, September 28, 2012

Rights of Persons with Disability Bill 2012

  1. Concerned Ministry – Ministry of Social Justice & Empower
  2. International Body – UN Convention on the Rights of Persons with Disability (UNCRPD)
  3. Area of contention in this BillLegal Capacity of disabled people
  4. Legal Capacity Defn - It is the fundamentals of law and legal process. All persons above the age of consent are deemed to exercise legal capacity to do many things – vote, get married, enter into contracts, drive, to be tried for crimes etc. Anyone who has crossed this age of consent is automatically deemed to have acquired legal capacity and there is no further proof required to demonstrate his/her ability to do any of these or other acts.
  5. What is the contention all about? – 
    • For - all persons should have legal capacity regardless of disability 
    • Against - persons with disabilities should not be allowed to exercise independent legal capacity as they are incapable of understanding the consequences of their actions. 
  6. Existing Indian Law(s) – 
    • Mental Health Act, 1987 (Mental illness) 
    • National Trust Act, 1999 (other disabilities like cerebral palsy, autism etc). 
    • These laws assume that some persons with disabilities cannot exercise legal capacity on a permanent basis and hence calls for guardians in order to facilitate the exercise of legal capacity in relation to contractual agreements. Once a guardian is appointed, he/she can make all relevant decisions on behalf of the person with disability without having any obligation to consult the disabled person. These laws have been in practice for long and have been misused by unscrupulous  people(guardians) to deprive disabled people of their rights. 
  7. What does UNCRPD say about Indian laws on disability? – 
    • Persons with disability should be given full legal capacity 
    • Concept of guardianship should be abolished. 
    • India should provide access to support that a person with disability may require exercising their legal capacity. 
    • None of the existing two Indian laws provides for above three provisions.  
  8. Rights of Persons with Disability Bill 2012 – New bill introduced by GoI. 
  9. What’s new in this bill?
    • Full legal capacity for disabled people 
    • Limited Guardianship” – guardians to closely co-ordinate with disabled person to arrive at legally binding decisions. 
  10. What are the issues in this bill?
    • At one hand this law gives full legal capacity to a disabled person, but at the same time wants all decisions to be made jointly b/w the disabled person and the limited guardian. So in a way, unless the limited guardian agrees with the decision, no decision can be made by the disabled person on his own. This surely is not recognising full legal capacity
    • No checks and controls in place to ensure that the decisions being made are free and fair and without any undue pressure and mala fide on part of the limited guardian.
  11. What is the solution? 
    • Amending the relevant provision in the Indian Contract Act, 1872. 
    • Under this Act, a contract is void if a party to the contract, at the time of entering the contract, is incapable of understanding it and forming a rational judgment about its effect on him/her. 
    • People with disability does need support, but that should be with proper checks and balances, as laid down by UNCRPD, and there is no need for any guardianship.