What changed for persons with psychosocial disabilities in the making of the RPD Bill?
By Bhargavi Davar
The various ‘Avatars’ of the Rights of persons with Disabilities Bill (RPD Bill) has been archived by the Tamil Nadu based Disability Rights Alliance [i]. While the Persons with Disabilities Act (PWDA) of 1995[ii] sailed through the Parliament barely raising an eyebrow, the RPD Bill (especially its final Avatar [iii]) elicited heated debate and great polarisation of views in the disability sector [iv]. The year-long silence on the ‘Missing Bill’ [v], when the ‘Committee Draft’ incubated in the higher echelons of the Ministry of Social Justice and Empowerment and allied Ministries, continues to be unexplained. But the fact that several versions unfolded in the years (2011-2014)[vi], renders the event of ‘Making the RPD’ itself a subject of disability policy studies from a historical point of view.
What are the reasons and the consequences of the changes made in different versions, to persons with disabilities? Who was the most affected by those changes, particularly how did those changes affect the most marginalized groups among them, viz. persons with mental, intellectual, developmental, and psychosocial disabilities? The changes from Version 1 in 2011 with nearly full participation of people with disabilities to Version 4 in 2014 with nil participation, needs our studious awareness. Added to this is the fact that a scattering of the policy environment for people with disabilities has happened, with uncoordinated changes in the other disability legislations such as the National Trust Act[vii] and the Rehabilitation Council of India Act. Interestingly, the National Trust Act also went through several avatars with the Version 1 of 2009[viii] changing substantially to the last version of NTA 2011, which was found in the legal consultant’s website for a while. Since then it is ‘missing’, too. And, finally, we must engage with the question whether the Mental Health Act of 1987 (MHA 1987) is a disability legislation at all. The list of relevant disability related legislations found in the Ministry of Social Justice and Empowerment does not include the MHA 1987[ix]; and interestingly enough, neither does the list of legislations found on the Ministry of Health and Family Welfare website. [x] However, this orphaned piece of legislation has gone through 3 draft versions, with the final one being designated as the ‘Mental Health Care Bill of 2013’ found on the website of the MOHFW [xi].
We, (Bapu Trust, along with Anjali, Kolkatta and Basic Needs, Bangalore) initiated and facilitated NAAJMI, the National Alliance on Access to Justice for persons living with a Mental Illness, from 2005-2013, holding several human rights consultations in the light of the UNCRPD. This disability platform served to analyze and influence the legislative changes in the mental health sector. [xii] [xiii] The proposed MHC Bill was hotly debated through several regional consultations including the ones in Pune, Bangalore, and New Delhi. In this time, we received unstinting support from National Disability Network, in New Delhi, and a variety of other associated state level and national level disability networks. The staunchest support from the national cross disability movement came in the form of a public protest organized by DRG and NAAJMI held before the Ministry of Health and Family Welfare early in 2013, when the proposed Bill was scheduled to go before the Cabinet. Particularly, together we advocated that, ‘special laws’ such as the proposed MHC Bill and National Trust Act Amendment, will continue to segregate and exclude people, and must not be allowed to pass; and that our rights should also be included in the mother disability law.
The National Disability Network (NDN) supported a study of over 2000 national laws, and through this process, we learnt that, ‘full legal capacity’ was a single most important right that will procure and ensure all other rights, not only for persons with psychosocial disabilities, but for all persons with disabilities. [xiv] However, ‘Full legal capacity’ is also the single most affected human right as it was changed in the process of re-drafting and dressing up the RPD Bill and the MHC Bill for the Parliament.
The Right to full legal capacity is provided for in the UNCRPD through Article 12, and for many worldwide organisations of users and survivors of psychiatry, is the breath and life of the Convention: it is only when a person is recognized in the eyes of the law as a person that all other rights accrue to the person. Legal capacity refers to the legal status of a person before the law. Since colonial times, around 200 legal provisions exist within Indian laws based on judicial determination of ‘unsound mind’, thereby cancelling all civil and citizenship rights for persons who are determined to be recognized by the law.[xv] Such cancelled rights include the right to marry, right to vote, right to contract, right to self represent in a court of law, etc., in fact, a gamut of provisions which cancel the right to be included and to participate in all walks of life. The study of NDN on legal capacity suggested that there are still provisions of incapacity that may regulate the human rights of the blind, the deaf, the ‘leprosy cured’, and more general categories of people found to be ‘infirm’ or ‘unfit’. So the legal capacity regime is overarching in its implications for rights to full inclusion and participation, and enjoyment of all fundamental rights.
The very first version of Committee Draft of the RPD Bill and the first version of the NT Amendment were true to the spirit of the UNCRPD: they provided for the enjoyment of full legal capacity by all persons with disabilities, the abolition of plenary guardianship, the setting up of support networks for enabling supported decision making (SDM), prohibitions on institutionalisation on the basis of disability, and finally, repeal of all laws that deprive the legal capacity of persons with disabilities. This outcome was commendable despite the conditions developed by the legal consultant at the time, that the parent disability law, i.e. RPD Bill, can only be a ‘hybrid’ law since it applies to all people with disabilities and ‘protections’ were still needed through special laws such as the National Trust Act. Mechanisms for the abolition of guardianship and the installation of SDM mechanisms were prescribed in the Bill.
In the RPD Bill draft submitted to the government, a key transformation had occurred, in that, abolition of plenary guardianship was deleted; in its place, a provision on ‘limited guardianship’ (LG) was provided for. Among a dozen or so provisions enabling full legal capacity, this provision struck a loud and discordant note, particularly since the provision did not further provide for conditions for the application of LG. The National Trust Amendment Bill has gone ‘missing’, and, at present, only the old NTA is found on the NT website.
However, in the final draft leaked out before the February Parliament session, legal capacity provisions have gone through further translations and transformations. In this draft, it is provided that LG will apply for all persons with disabilities and that ‘plenary guardianship’ will apply for persons with psychosocial disabilities. There is further reference in the RPD Bill to the MHC Bill, and the liberal sanction for the creation of mental institutions under that Bill.
Considering that ‘mental illness’ is so broadly defined in the MHC Bill, the RPD Bill has done serious disservice to people with disabilities, as there is a high likelihood that those ‘appearing to be mentally ill’ (as in the case of the Jeeja Ghosh incident with airlines) may very well be apprehended within the scope of the MHC Bill, and have plenary guardianship applied to them.
It is a historical curiosity also, that (1) PWDA 1995 did not have deprivation of legal capacity provisions for persons with disabilities and (2) the MHA 1987 did not influence the making of the disability legislation in the past. In this instance, the MHC Bill has affected the RPD Bill adversely, and, in doing so, has risked the rights of all persons with disabilities.
Bhargavi Davar, Ph.D., (Director, Bapu Trust, Pune) is a social science researcher in the field of mental health, writing on gender, culture, history, and political economy of psychiatry and allied disciplines. She is a survivor of psychiatric institutions of the 1960s, a trainer on the UNCRPD and arts based therapist.
[i] http://www.scribd.com/collections/4424842/2013-RPWD-BILL-avatars-etc accessed on 1-08-2014
[ii] Archived at http://www.scribd.com/doc/202452682/1995-Persons-With-Disabilities-Act-1995 accessed on 1-08-2014
[iii] The Rights of persons with Disabilities Bill, found at http://www.prsindia.org/billtrack/the-right-of-persons-with-disabilities-bill-2014-3122/ accessed on 3-08-2014
[iv]Amba Salelkar, 3rd February, 2014, A critique of the Draft rights of Persons with disabilities bill of 2014. http://kafila.org/2014/02/03/a-critqiue-of-the-draft-rights-of-persons-with-disabilities-bill-2014-amba-salelkar/ accessed on 5-08-2014
[v] DRA, ‘Missing the RPWD Bill, http://www.scribd.com/doc/202468272/Missing-The-RPWD-Bill accessed on 3-08-2014
[vi] Version 1, submitted by the Committee to draft a new disability legislation, 2011; Version 2, final submission by the committee, 2012; A 2013 version found on the Ministry of Social Justice and Empowerment website; and the version ‘leaked out’ in 2014 by Adv Santosh Rungta just before the Parliament went in session in February.
[vii] http://www.disabilitystudiesnalsar.org/ntamendment.pdf accessed on 03-08-2014
[viii] DNIS, Draft Amendment to the National Trust Act Released, volume 6 Issue 8 – October 01, 2009. http://www.dnis.org/news.php?issue_id=8&volume_id=6&news_id=920&i=6 accessed on 03-08-2014
[xiii] ‘Naajmi journey and terrain: Dilemmas in mental health and human rights’. http://www.naajmi.org/wp-content/uploads/NAAJMI-JourneyTerrain.pdf Accessed 13-08-2014
[xiv] Consultation on U.N.C.R.P.D., draft Mental Health Care Act and the draft new Disability Act held
[xv] Reviewed in Davar, B.V. (2012a). ‘Legal Frameworks for and against persons with psychosocial disabilities’. Economic and Political Weekly, XLVI(52)52, 123-131.
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