Shivangi Misra & Priyam Cherian on The Rights of Persons with Disabilities Bill, 2014
The Rights of Persons with Disabilities Bill, 2014 (the Bill) passed on December 16, 2016, replaces the two-decade old Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act, 1995). The passing of this legislation will hopefully pave the path for a more inclusive environment for more than 21 million people who are directly affected by it.
A medical model has dominated the formulation of disability policy for years.This model views disability as a functional limitation that concerns only the disabled and not the society. For example, the medical model would encourage special schools rather than calling upon the existing schools to introduce inclusive curriculum and adaptive infrastructure. This model was visible in the PWD Act, 1995which targeted on detecting and preventing disability instead of encouraging equal participation. The international legal and policy framework has gradually shifted from the medical model to a social model wherein the responsibility lies with the society to make the environment more inclusive of the people living with disability. This model takes a rights-based approach and emphasizes that disability stems from the physical and attitudinal barriers and not because of functional differences of the disabled persons.The Bill has attempted to remove barriers through reasonable accommodation and universal design provisions thereby, harmonizing the domestic law with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the UN Sustainable Development Goals Agenda 2030.
The new legislation has increased the recognized number of disabilities from 7 to 21(including acid attack victims).Furthermore,it penalizes discrimination, focuses on inclusive educational institutions and makes compliance with standards of accessibility as a precondition for permission to build a structure, among other things. This shift in the perspective clearly comes from a stronger civil society and increased awareness amongst decision makers.
While the Bill has been applauded by the community as an acceptance of a progressive understanding of disability, it leaves one with concerns over the provisions related to guardianship. The Bill introduces the concept of ‘plenary guardianship’ and ‘limited guardianship’ for the mentally ill persons. In circumstances where a mentally ill person is incapable of taking care of himself/herself and of taking any legally binding decisions on his/her own, the Bill provides that the District Court shall appoint a limited guardian to take care of such mentally ill person. In “extraordinary situations”, the District Court may appoint a ‘plenary guardian’. There is no further explanation as to what qualifies as an extraordinary situation and leaves the provision open to judicial interpretation. While the Bill empowers the limited guardian to take all legal binding decisions on behalf of the mentally ill person in consultation with such person, a plenary guardian is not under any legal obligation to consult the person with mental illness. In either case, it appears that the will or preference of the mentally ill person is likely be shadowed by that of the guardian. These provisions related to guardianship appear to ignore the rights-based approach to disabilities enshrined in the UNCRPD.
Mental illness or incapacity can prevail in a person temporarily or for short periods of time. The Bill fails to accommodate a situation where the mentally ill person may want to challenge the appointment or seek removal of the guardian if s/he regains mental capacity. Does this mean that the appointment of a guardian for a mentally ill person cannot be challenged? Perhaps a mentally ill person could seek remedy under the provision of the Mental Health Act, 1987. The Mental Health Act allows the District Court to remove any guardian of a mentally ill person and appoint in his place a new guardian, if it finds sufficient cause to do so. However, it is not clear whether a guardian appointed under the Rights of Persons with Disabilities Bill, 2014 can be removed in the same manner, as the Bill does not even refer to the Mental Health Act, 1987 in this regard.
The disappointing aspect of the Bill is that it takes freedom of choice for granted. The spirit of individual autonomy and freedom of choice echoed in other provisions of the Bill appears to be watered down in the provisions related to guardianship. On a positive note, the apex court on previous occasions, has favored exercise of individual autonomy. In Suchita Srivasatava v Chandigarh Administration (2009) 9 SCC 1,the Hon’ble Supreme Court upheld the personal choice of a mentally retarded woman to continue her rape related pregnancy. This judgment envisages the essence of Article 12 of the UNCRPD when the Court stated that, “…the State must respect the personal autonomy of a mentally retarded woman with regard to decisions about terminating a pregnancy…”
Historically, mental disability has been accepted to be a valid reason to restrict the active legal capacity of a mentally ill person. In its observations in relation to Article 12 of UNCRPD, the Committee on the Rights of Persons with Disabilities has iterated that State parties must “review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will and preferences”. The new legislation was an opportunity to include provisions related to individual autonomy specifically with respect to guardianship. There is a scope for allowing a mentally ill person to take “assisted decisions” rather than his/her guardian simply taking decisions “in consultation” with such a person.
We need to be aware that the Bill gives a binding effect to UNCRPD by way of a domestic legislation. However, it falls short because it relies on a restrictive approach of substituted decision making instead of seeking to develop individual liberty through assistive decision making. The Bill, set to become an Act after the President’s assent, clearly needs amendments to cater to the needs of psychosocial disabilities if it aims to adopt an inclusive model unlike the old charity model visible in the 1995 Act.
Featured image by Atul Raj