Pepper spray and all that

That which I had been dreading and writing about in the last few posts - the possible passage of the regressive RPWD Bill 2014 - was not allowed to take place because of the utter chaos that exists in our parliament. All but four days of the past week (the last one for this possibly last session in the tenure of the current ruling party) were devoted to the contentious Telengana bill. Typically, the house would be convened, and immediately a motley crew of parliamentarians would run into `the well', flash slogans and generally create such a din that you could not hear anything the speaker was trying to say, until, after about 3 minutes of this theatre of the absurd, the speaker would adjourn the house for anything between a half an hour and half a day. In the last few minutes of the sitting on Thursday, the Telengana Bill was passed: this is a contentious separationist bill, which faces strong views for and against; and a state gets split into pieces in a far from unanimous fashion by our great democracy. And what had been aired was that five more bills - each important in its own right - were going to be passsed on the final day of the session. To my unadulterated glee and those in my camp (that of the Pandavas according to the analogy drawn in my last post), the RPWD Bill was referred to a parliamentary standing committee for further study while two of those five bills were passed on friday. So we still have a chance to have our legal minds draft a really inclusive version of the bill in the spirit of the UNCRPD - not because of any good sense, but because of the completely atrocious behaviour of our parliamentarians: one enthusuast even used a `pepper spray in the house' resulting in several people rushing out of the house with bleeding noses and sundry ill-effects'.

I saw the TV news channels closely on friday evening, when NDTV again ran one of its shows with several invited panelists, including the pepper spray merchant, and people were bemoaning the utter depths to which decorum in the house had descended. To me it seems the solution is simple: have some five or ten bouncers (of the kind used in bars and rock concerts, and when somebody repeats an offense after having been once warned, the speaker should just direct the bouncers to evict the offending perfson for the rest of the day, with anyone who ha been so evicted more than once should lose his/her seat in the house. Surely this kind of behaviour would not be permitted in a court of law! (When that happens, it is time retire to a hermit's life in the mountains/forests.)

The loaded dice

The analogy between efforts of the factions against and for passage of the RPWD Bill 2014 on the one hand, and Yudhishtira and Sakuni playing dice on the other, is not entirely out of place.

One side is trying to preserve at least what they have, and the other is trying to deprive the others of what they already have.

One side has almost been denied any access to publicising their cause; while the press constantly strives to convey the impression that only the second faction exists.

In a show of fair and equal debate, NDTV has a show with six people on show, more or less equally divided numerically between the two groups, but the loaded die has been cast: the compere opens the discussion by inviting the opinion of the leader of the pro-bill faction  and he is given free rein to air his views, while you can see some representatives of the other group straining at the leash, wanting to contest statements being made by the `leader'. When he is through, the compere solicits the opinion of a speaker of the other camp, and just as this lady lawyer is going through her list of reasons for opposing the bill, the leader who has already been allowed to say his piece uninterrupted butts in with his objections contrary to accepted protocol in a debate. One of the anti-bill panelists is never invited to say anything, and is heard only when he has to shout out his opinion in one of the free-for-all shouting matches that later ensues; and the last panelist to be invited to speak is a mother of a child suffering one form of disability that the latest draft of the Bill has included in its definition of a `Person with Disablity' - the implication being that not passing this bill will break this mother's heart. While one wouldn't want to break one heart (by denying her son the virtual and exaggerated benefits of this inclusion), what about the large number of people diagnosed with some form of mental illness being disallowed the right to make legally binding decisions on their own behalf?

The newspapers have been equally biased in their coverage of this bill: they only cite `the leader' as he states his side via a series of half-truths and disinformation.

One only hears what `the leader' has to say, ad nauseum. He says this bill will be a game-changer and that `only the blind groups are opposed to the bill'. Will a hearing impaired person not oppose the fact that `sign language' is never explicitly recognised in the bill as a language? 

Little or no press coverage is given to the fact that the law university NALSAR has come out openly to denounce this bill as a seriously flawed bill. Lawrence Liang of the Law School in Bangalore and Amba Salelkar are two other lawyers who have been lucky enough to find some paper to publish their similar denunciations. I am yet to see a single legal opinion favouring this bill. Is there a lawyer in the other camp? I wonder!

I am sorry to have kept harping on this bill for many consecutive posts; the reason for today's post is that there is a real likelihood of this bill being part of a bundle of 5 bills that the ruling partry has been threatening to pass today, and I am hurriedly posting this in the hope that some legislator might amuse himself by looking at fb during the frequent adjournments of the Rajya Sabha, and see this! Clutching at straws? No choice really.

Oh! a final point in common: good versus bad!

In memoriam - RC and RPD

February 7th is a day with a history of dealing death blows to aspirations of people with disabilities (PWD):

It started a year ago when a cruel freak infection caused the death due to septicaemia of Rahul Cherian, a universally respected and loved lawyer and staunch supporter of the rights of PWD. His achievements and what he gave to the world and lives of PWD are immeasurable. One of his many legacies to us is the institution Inclusive Planet Centre for Disability and Policy that he co-founded; his wonderful institution's work is being carried on by Amba Salelkar who admits with pride that RC was her friend, philosopher and guide. She says her mentor taught her that  we need to be transparent ourselves if we expect transparency from others; a measure of how well RC taught her this dictum is the manner in which she she has been unraveling for the legally less astute among us of the inherent flaws that are everywhere dense in the current RPD Bill 2014. (This draconian Bill which has had versions labeled 2011, 2012, 2013 and 2014, the last two of which were never made available for inspection by the stakeholders before they became fait accompli.) There has been a continuous stream of tributes to and gratitude for her elucidation of the legal nuances of the omissions and the commissions of errors in this new Bill, the resistance to whose passage has been wonderfully spearheaded by her with the assistance of numerous other friends of RC.

One of my favourite Rahul quotes is: we are not disability activists; we are from the land of Gandhi; we are freedom fighters. This current fight will be dealt a TKO (technical knockout, for people unfamiliar with boxing parlance) if this Bill which was, by a cruel blow of Fate, introduced in the Rajya Sabha on this February 7th, is allowed to be passed by the houses. (In fact, it was her remark on this terrible coincidence in an email earlier today that got me thinking of writing this tribute to her ever-cheerful attitude to this campaign she is directing.)

But Rahul trains his wards well. I have no doubt that if this wretched Bill does get passed, Amba will not rest till she leads her army of warriors until this Bill is annulled and a new version is drafted on a clean slate in conformity with the canons of the UNCRPD.

Bag of hot air from west to east

The USA and India have been referred to, usualy by themselves, as the two greatest dedmocracies in the world. They are both parties to the UNCRPD (the UN Convention on the Rights of Persons with Disabilities), whose Article 27.1 says about `Work and Employment' says:

States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, ...

And here is what they have done towards this end:

USA: According to a report in Facebook on President Obama's State of the Union address, he said that he will issue an executive order mandating that federal contractors pay their workers no less than $10.10 per hour, while the plan apparently excludes people with disabilities who currently earn less than the federal minimum of $7.25 per hour. Employers — including many with federal government contracts — can obtain special permission from the U.S. Department of Labor to pay those with disabilities less than minimum wage under a provision that’s been in place since the 1930s.

India: A draft (circa 2011) in circulation of the so-caled Rights of Persons with Disabilities, 3% of Government jobs would be reserved for PWD, while apparently only 0.21% of the jobs have actually been given to PWD. And there is a new draft of RPD (version that saw light of day in late December 2013) which now promises 5% reservation of posts to PWD - but you should understand the way this formula is to be applied: some `higher wisdom' has identified which manner of jobs can be given to people with what kind of disability) and for each of those disabilities (exactly 5 of which have been identified), 1% of the identified jobs can be given to PWD - so will this `new improved' draft result in an improvement of the old 0.21% figure.

The Jekyll and Hyde bill

What follows is a portrayal of the facts regarding the chasm that has opened within the `disability sector' in India so the reader can form an independent opinion. (I am sorry for going on an on talking about this matter, but it is of prime importance to me and several friends of mine and this is a crucial stage.)

In December 2006, the General Assembly of the United Nations adopted the UNCRPD (or the UN Convention for the Rights of Persons with Disabilities), which sought (a) to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities; it gave an inclusive definition of `persons with disabilities; (b)  an unconditional Right to Equality and Non Discrimination to all persons with disabilities, on par with others; (c) recognition of legal capacity for all persons with disabilities, and recognition that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life; (d) to categorically state that non-consensual institutionalization of persons with disabilities is violative of Article 14; etc.,etc., (with the general attitude being extremely inclusive and sensitive). 

In October 2007, India became a signatory to this convention. Already, India had enacted a Persons with Disabilities Act in 1995 which reads great on paper, but has been toothless to implement till today because of ambiguous language and convenient escape clauses. In an attempt to make the UNCRPD dream a reality, an effort was initiated in 2009 to draft a Right to Disabilities Bill at which time several people and organisations were involved in the drafting, who stressed that certain matters should be absolutely non-negotiable; and when there was some resistance to including this `non-negotiable list', at least three people resigned from the drafting committee. This attempt to create and push a suitable RPD Bill continued for some years and made periodic signs – in 2012 (when an actual draft was made, which already had some critical responses), and  in 2013 (when some noises were made but no draft was sighted) - of coming into being but suddenly in December 2013, there were campaigns in the social media to have the RPD Bill tabled and passed before the elections and possible emergence of a new government. There was an unseemly haste to have this Bill passed before a draft was even made available for inspection.

And now we hear the UPA stating that it is committed to tabling and passing the RPD Bill in the budget session, and this `Bill' has not been made available for public scrutiny. When one finally got to see this Bill after much ferreting around, one finds that there are so many divergences – in word and spirit – between this RPD Bill of 2014 and the UNCRPD, that several organisations of the Disability sector have been asking that `this Bill be immediately scrapped' while some die-hards in Delhi are still trying to push the bill through for unfathomable reasons. Here are some of those divergences that have caused all the anger, bitterness and sense of betrayal among the former brand of disability activists:

This Bill has compromised on just about everything imaginable: the definition of a PWD: stressing on `prevention of disabilities'; lack of effective means of implementation of rights under the convention; waiving the right to not be discriminated against on the grounds of disability if it is shown that the impugned act or omission is appropriate to achieving a legitimate aim; the rights of PWD to facilities in bus stops, trains and airports is trivialised to a bare minimum; it limits mandatory observance of accessibility norms only to “establishments”, defined in a very limited and restricted way, thereby excluding a large number of buildings from its purview; appoints `Limited guardians' for persons who are declared to be mentally ill and incapable of taking care of themselves and making legally binding decisions for themselves., adding that  the limited guardian shall take all legally binding decisions on his or her behalf, in consultation with that person; creates a category of persons with “high support needs”   on behalf of whom an Assessment Board can make decisions; all mention of women with disabilities has been removed from the 2011 Draft of the Bill which was modelled on the UNCRPD'; lest you think this was a small oversight, articles numbered 6,7,8,10, 12 and 13 have been removed in their entirety. I hope I have conveyed the desired impression, viz. that it is more a bill of denied rights. I could go on and on; the list of commissions and omissions goes on and on, ad nauseum.

In response to every set of objections raised by some disability activists, the Delhi gang responds with yet another cosmetically altered version which will still deprive large sections of disabled people, leading one to think that the only possible raison d'etre for persisting with this non-starter could be increasing the political clout of a few among the Delhi group and bolstering the sagging reputation of assorted political parties who might be party to this exercise.

Dubious tactics and unseemly haste

As a kid, you might have heard the song starting `Ten green bottles hanging on the wall' which goes on to descraibe how they were broken/destroyed one by one, till you finally get down to `One green bottle hanging on the wall' and you sort of despairingly hope that some divine providence will save at least this one. The lot of people with disabilities in India is beginning to look like a macabre deja vu of this song. First there was the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995 which spoke of the Promised Land where rights were protected and full participation in all aspects of life were promised. Years passed with no steps being taken to facilitate this `Full Participation'. Elsewhere, the whole world was waking to the crying need to remedy such affairs. Thus, in December 2006, the General Assembly of the United Nations adopted the UNCRPD (or the UN Convention for the Rights of Persons with Disabilities), and in October 2007, India became a signatory to this convention. Five years go by, and a new `Rights for People with Disabilities' (RPD) Bill is drafted, which already makes strikingly divergent strides from the perceptions of the UNCRPD : while the latter strove to be a policy instrument which was `cross-disability' and `cross-sectoral', the former brought in new terms such as `guardianship and legal capacity'  as well as drawing up an arbitrary list of conditions recognised as `being disabled', and this draft never became more than just a draft. (Already a few bottles down: even the number of letters in the acronym have come down from 6 to 3!) There were attempts to revive this in 2013, and no more; and with every new `step forward' at least one more green bottle fell off the wall.

And now there is a sudden resurgence of this RPD which started with the signature campaign in the social media (which I spoke about in my last post) asking people to sign a petition demanding that the Government table and pass this Bill at the earliest viable time - and with no indication of where a draft of this proposed Bill may be seen. This seems to be a closely guarded secret. To top it all, an individual, who has been identified by the Press (for reasons best known to themselves) as the go-to man for all issues concerning PwD, is flying down from Delhi to a special meeting at the end of this month to be held in Chennai (the one place where some PwD seem to be showing some sign of dissent), to solicit further support for the tabling and passing of this unseen bill (which may have -7 green bottles on the wall by the time it is passed).

If you had been led to believe that a certain piece of property promised to be a paradise on earth, and if the person trying to sell this `piece of Eden' came half way across the country to ask several people to buy in to this proposal, and would not even give you a chance to read the legal document you were signing, you would need to have your head examined if you signed it. It reminds me of a clip where you see a picture of Richard Nixon (post-Watergate) and hear a voice in the background saying `would you buy a used car from this man'?

A volte-face

Not long ago, being somewhat misinformed, and without making sure of the facts, I was guilty of some poor judgement. I signed a petition saying `Minister of Parliamentary Affairs: Pass the Disability Rights Bill #disabilityrights - Sign the Petition!, and worse, `shared this' on facebook, thereby essentially asking my `fb friends' to do something similar, which many of them have, to my chagrin now. The reason for this volte-face is that I signed that petition without reading the current state of `the bill' (it was not anywhere to be seen; and still seems to be a bit of a mystery). I am now finding various reasons why I had been hasty, without getting my facts straight. My reasons for this reversal of position are best illustrated by the following excerpts from emails I have received from two of the more (well-informed, and) seasoned campaigners of this group of  truly amazing individuals calling themselves the `Disability Rights Alliance' which has done me the undeserved honour of including me in their ranks:

(a)

THE LAW GIVETH SOPS TO SOME AND THE LAW TAKETH AWAY RIGHTS OF OTHERS?
 IT’S CALLED THE RIGHTS OF PERSONS WITH DISABILITIES BILL BUT HAS LEFT SOME DISABLED PEOPLE OUT?


The Disability Rights Alliance welcomed the move to introduce a new Bill in Parliament to address the needs of the disabled citizens of India. The existing Persons with Disabilities Act of 1996 was a landmark piece of legislation at that time. It was the first attempt in independent India to address the needs of disabled citizens. However, the legislation is archaic and is overdue for an update.

The proposed Rights of Persons with Disabilities Bill, 2013 had the potential to meet the lacunae in the PWD Act and revolutionise the lives of the disabled in this country. It had the potential to finally make and treat us equal in the eyes of the law and empower the disabled to take control of their own lives and destinies.

But to ensure this potential is realized, as responsible citizens, we have a right and duty to examine the Bill as it is to be presented before the Parliament. The version of the Bill in circulation (available on Ministry website) is from 2011. This Bill was unacceptable to the disabled people of India in its limitations. The Bill to be introduced is of 2013. What changes have been made are not in the public domain.

This is disturbing as the 2011 version of the rights of Persons with Disabilities Bill was deeply flawed in its fundamentals. We are particularly concerned about the Bill’s position in the following areas:

Compliance with International Law governing the rights of Persons with Disabilities – the UNCRPD of which India is a signatory and has ratified.


Guardianship and legal capacity: These issues have potential to curtail civil liberties and thus have no place in legislation that talks about rights. Additionally, issues of guardianship and legal capacity are not restricted to disabled people alone and should be addressed in different legislation – including them in this legislation is itself discriminatory. 


Economic and political rights of people traditionally denied participation due to legally imposed disabilities of incapacity.


Inclusion of people who experience disability vs restrictive lists of traditional disabilities – how can an anti-discrimination law which touts inclusion, itself exclude so summarily?


The bill of 2012 had barely changed from its original form in terms of limited guardianship, quality education, authorities, vacuum in statistics and data collection, political participation. 


The bill of 2012 had nothing new to bring to the table in terms of fulfillment of our enjoyment of all human rights and fundamental freedoms on an equal basis with others.

A ‘RIGHTS’ BILL WHERE SOME PEOPLE ARE MORE EQUAL THAN OTHERS IS PLAIN WRONG! 
IS THE NEW BILL REALLY IMPROVED?

(b) Agree with you on this Meenakshi. Have been amazed at the recent flip flops on the fundamentals. I find this flippancy disrespectful of the sector - some of us actually meant what we said and said what we meant... (to quote my hero Horton). This cavalier and campaign style of advocacy cannot bring about sustainable change. I can somehow make my peace with politicking, strategising, manipulation, blackmail, corruption or bribery if the outcome is as sweeping as the the 13th Amendment to the U.S. Constitution<http://www.history.com/this-day-in-history/13th-amendment-ratified> . THAT would be worth it, THIS is a puling compromise.