Background

The Department of Empowerment of Persons with Disabilities (DEPwD), Ministry of Social Justice and Empowerment, Government of India published a Draft National Policy for Persons with Disabilities (hereinafter referred to as “National Disability Policy” or “Disability Policy”) for comments from the general public. The proposed policy is expected to replace the prior policy of 2006, and bring India’s policy for persons with disabilities in line with the UNCRPD, the RPwD Act, and other developments in the country. One of our colleagues from BananaIP, Dr. Kalyan C. Kankanala, has submitted comments, suggestions, and recommendations with respect to the proposed Disability Policy in his personal capacity and we are sharing the same through this blog post.

Structure

The suggestions, comments, and recommendations provided hereunder are divided into five parts. Each part includes a background, suggestions/recommendations, and proposed language for inclusion in the disability policy. The parts are:

  1. Housing, Community Life, and Independence of Persons with Disabilities
  2. Professional work and Persons with Disabilities
  3. Higher Education of Persons with Disabilities
  4. Start-ups and Persons with Disabilities
  5. Private Services/Products and Persons with Disabilities

Each of the aforementioned aspects are discussed in detail hereunder.

Comprehensive Comments

1. Housing, Community Life and Independence of Persons with Disabilities

a. Background

Section 5 of the Rights of Persons with Disabilities Act, 2016 (“RPwD Act”) provides to persons with disabilities the right to live in the community. Every person spends lot of time at home and in the housing/residential community, and life in the community of a person with a disability plays an important role in her/his development, empowerment, and progress. Unfortunately, most persons with disabilities are not treated as equals in residential and housing communities, and are therefore unable to participate fully and equally in community life. More often than not, they are discriminated within residential, apartment, and housing communities, and do not live as equals. To address this problem and facilitate full/equal participation in social and community life, it will be very helpful if a section in the Draft National Disability Policy can be dedicated to community life and housing.

In 2017, General Comment No. 5 with respect to the rights of persons with disabilities to live independently, and be included in community life (Article 19 of UNCRPD) was published. It stressed the need for countries to have policies and laws pertaining to independence, autonomy, and full/equal participation of persons with disabilities in community life. Recognizing the fact that persons with disabilities suffer from discrimination and unequal treatment in housing and residential communities, and acknowledging the fact that every person with disability has the right to live independently and participate fully/equally in social/community life, the report stated as follows:

“3.        Persons with disabilities are often presumed to be unable to live independently. That presumption is based on misconceptions, including that they lack the ability to make sound decisions for themselves and that, therefore, society needs to protect them. This approach, practised in many countries for a long time, has deprived persons with disabilities of the opportunity to choose where and with whom to live and to determine their own future.

  1. In article 19 of the Convention on the Rights of Persons with Disabilities, the States parties to the Convention recognized the equal right of all persons with disabilities to live independently and be included in the community, with choices equal to others. The foundation of that right is the core human rights principle that all humans are born equal in dignity and rights, and that all life is of equal worth. On those grounds, persons with disabilities have claimed the right to participate in all areas of mainstream community living, arguing that the capacity of all individuals to make choices in that regard must be acknowledged and enabled. Knowing their own needs best, persons with disabilities have sought control over options to choose, requesting that community services be made available to them on an equal basis with others. That approach has gradually been introduced in the laws and policies of some countries.

  1. The foundation of an independent and inclusive life in the community for persons with disabilities is provided for by the general principles of the Convention (art. 3), in particular the principles concerning full and effective participation and inclusion in society, and respect for the individual’s inherent dignity, autonomy and independence. Full enjoyment of the right to live independently in the community is both the result of, and a precondition for, the combating of stereotypes and prejudices relating to persons with disabilities and the promotion of awareness of their capabilities and contributions to society (art. 8). Non-discrimination (art. 5) and accessibility (art. 9) are essential to ensure that community services and facilities for the general population are available on an equal basis to persons with disabilities and respond to their needs. Measures to prevent multiple discrimination are required to guarantee women with disabilities the full and equal enjoyment of the right to live independently in the community (art. 6). The specific barriers that children with disabilities face in enjoying this right, including to have their views taken into account on an equal basis with other children, should be duly considered and addressed when determining the best interest of the child on issues related to article 19 (art. 7).
  2. The Convention recognizes that persons with disabilities have the right to equal recognition before the law (art. 12). The enjoyment of this right is essential for the effective realization of the right to live independently in the community, to make choices and to have control over their everyday lives, on an equal basis with others. Similarly, respecting the right to liberty and security of the person (art. 14) includes ending all forms of deprivation of liberty that are based on the existence of an impairment.”

General Comment 5 of the UN Committee for Persons with Disabilities on Independent Living, and the Right to Live in the Community, available at: https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no5-article-19-right-live, visited on 18th June, 2022.

As of now, a well-defined policy or legal framework with respect to community life and independence of persons with disabilities does not exist in India. Including the same in the National Disability Policy will go a long way in enabling full and equal participation of persons with disabilities in community life. It will ensure that they can live in the community as equal citizens, and participate fully/equally in all aspects of community life. Unless this is duly addressed, persons with disabilities will continue to suffer discrimination and unequal treatment.

b. Suggestion/Recommendation

Towards facilitating persons with disabilities to live as equals in residential and housing communities, it is suggested and recommended that a specific section addressing this aspect be included in the disability policy. Inclusion of the same in the disability policy can go a long way in enabling independent living, accessibility, and full/equal participation of persons with disabilities in community life. Simple steps such as issuance of rules, by laws, and guidelines for full and equal participation of PwDs in community life, accessibility and reasonable accommodations in community services, and emphasis on non-discrimination will help persons with disabilities live happy and fulfilling lives in whichever housing, residential, or apartment communities they may live in.

c. Proposed Language in the Policy

The following chapter may be considered for inclusion in the National Disability Policy, and the other chapters may be re-numbered accordingly:

“Chapter 9 Fair Housing and Community Life of Persons with Disabilities

9.1. Section 5 of the RPwD Act and Article 19 of the UNCRPD recognize the right of persons with disabilities to live independently, and participate fully/equally in community life. This right of a person with a disability encompasses a wide array of rights ranging from the right against discrimination to the right to accessibility and inclusion in community life.

9.2. Though most persons with disabilities live in housing, residential, and apartment communities, they are unable to participate fully and equally in community life because of discrimination, accessibility hurdles, and attitudinal issues. Unless persons with disabilities are treated as equals at home and in living communities, their progress, empowerment, and independence cannot be fully achieved as per the RPwD Act, UNCRPD and sustainability goals.

9.3. To facilitate full and equal participation of persons with disabilities in community life, changes have to be brought about at various levels. From rules and guidelines, to change in attitudes and approaches, efforts have to be made by the Central and State Governments and stakeholders at different levels. Government of India is committed to facilitating independent and equal living of persons with disabilities, and will take appropriate steps towards their integration in community life.

9.4. The Policy outlines the following steps towards facilitating full and equal participation of PwDs in community life:

 

  • Accessibility standards and guidelines pertaining to barrier free environment and ICT accessibility issued by the Central Government and State Governments shall be made applicable to public places, buildings, and facilities in housing, residential, and other living communities.
  • Appropriate guidelines, rules, and by laws shall be issued by State Governments, Local Bodies, and Residential/Housing Welfare Associations to facilitate full and equal participation of persons with disabilities in community life.
  • Residential Welfare Associations and Apartment Owners Associations shall be bound to enable and facilitate full and equal access to community services and facilities to persons with disabilities. A model set of guidelines to be followed by residential welfare associations shall be issued by Central Government, and adopted by State Governments.
  • Appropriate grievance redressal mechanism shall be mandated at community and local body levels.
  • Appropriate steps shall be taken by Central and State Governments, local bodies, and residential associations to educate stakeholders regarding independence, autonomy, and full/equal participation of persons with disabilities in community life.
  • Persons with disabilities will be permitted to modify their houses and residences to suit their accessibility needs, and local authorities shall facilitate the same with due consideration to structural issues and norms laid down by Government of India.
  • Efforts shall be made by all stakeholders at Union, State, District, and local body levels to facilitate full and equal participation of persons with disabilities in community life, and to facilitate/enable their inclusion in community living.

2. Professional Work and Persons with Disabilities

a. Background

Many persons with disabilities are today considering professional work in different fields ranging from legal and accounting work to technology certification and auditing/compliance. An example of this is the increase in number of law students with disabilities joining law schools, and the number of persons with disabilities opting for the legal and accounting professions. Many of these professions are quite suitable for persons with disabilities, and many are excelling in professional work by competing with others on equal terms. However, several hurdles exist for them from the perspectives of accessibility, accommodations, and assistance, which require them to expend significant cost, effort, and time to succeed.

Today, problems with accessibility, accommodations, and assistance exist at different levels ranging from taking qualifying exams to practising before authorities, and using online/digital platforms to carry out their work. This issue can be resolved if Government of India issues a notification or guidelines to enable persons with disabilities take qualifying exams and carry out professional work with appropriate accessibility and accommodations. Simple steps such as mandating compliance with accessibility standards for exams, making documents accessible, mandating accessibility of digital platforms of Tribunals, Authorities, and bodies can go a long way. By issuing accessibility guidelines from this perspective, Government of India can encourage persons with disabilities to take up professional work and be self-reliant.

b. Suggestion/Recommendation

Dedicating one or two paragraphs under skill development and employment in Chapter 7 to professional work and related accessibility and accommodations can go a long way in encouraging and facilitating persons with disabilities take up professional work. By issuing appropriate guidelines or rules, the Government can facilitate and enable persons with disabilities to be self-reliant by taking up professional legal, accounting, technology, or other work.

c. Proposed Language in the Policy

The following language can be considered in 7.8 and/or 7.9 of the policy:

“Several Persons with Disabilities are taking up professional courses, and working in different professions related to law, accounting, auditing, technology certification, and so on. Professional activities and work are quite suitable to persons with disabilities as they can work independently, and earn a comfortable livelihood. However, several accessibility issues exist as of today to enable persons with disabilities practise a given profession fully and equally with others. Issues with respect to accessibility of Government portals, lack of understanding of officer about needs of persons with disabilities, resistance in facilitating persons with disabilities, problems pertaining to document accessibility, and so on subsist. Government of India is keen to resolve these issues through directed action, guidelines, and rules.

The policy outlines the following actions to facilitate persons with disabilities carry out their profession in an accessible manner without barriers:

  • Guidelines and rules will be issued by Central and State Governments requiring different government departments, authorities and bodies to facilitate and enable persons with disabilities practise their profession. They shall be required to provide documents in accessible formats, provide reasonable accommodations, and enable independent access to online portals and facilities. They shall be required to publish their orders, notices, and other documents in accessible formats.
  • Different departments, authorities, and bodies will be required to appoint a person as a disability officer to address accessibility and accommodations issues of persons with disabilities practising before them.
  • Steps will be taken to educate officers and all stakeholders about facilitating persons with disabilities to practise their profession with appropriate accessibility, and fully/equally with others.
  • Appropriate training and support will be provided to persons with disabilities seeking to practise any profession such as law, accounting, and so on.”

3. Higher Education of Persons with Disabilities

a. Background

Though the Draft National Disability Policy covers different aspects of education very well, it may be helpful if additional emphasis can be placed on higher education. Most persons with disabilities find it difficult to comfortably pursue higher education and compete with others at the highest level because of accessibility issues, denial of accommodations, and lack of alternative systems of assessment. Most personnel at universities and higher educational institutions are not fully aware of  the requirements of persons with disabilities, and deny reasonable accommodations on grounds of conflict with rules or regulations. This can be easily rectified through Government action and steps mandating educational institutions to provide appropriate facilities for persons with disabilities.

b. Suggestion/Recommendation

Issuance of comprehensive standards and guidelines relating to accessibility, reasonable accommodations, alternative systems, and other facilities for higher educational institutions to comply with will go a long way in enabling persons with disabilities complete their courses with less difficulties.

c. Proposed Language in the Policy

This language may be considered for inclusion at appropriate places in Chapter 5.

“- Persons with Disabilities will need accessibility to information, documents and facilities, reasonable accommodations, and course modifications to facilitate and enable them to pursue different courses and degree programs at higher educational institutions. Towards this end, Central Government, State Governments, and autonomous bodies shall issue guidelines and rules for accessibility and accommodations of persons with disabilities.

  • Universities and educational institutions shall be mandated to provide necessary accommodations and assistance to persons with disabilities pursuing different courses.
  • Appropriate course modifications to different degree and other programs shall be made to facilitate persons with disabilities to complete their education, and these shall be recognized as valid for issuance of degrees and certificates. Authorities, organisations, and bodies responsible for this shall make necessary changes to their rules and regulations recognizing course changes for persons with disabilities to enable and facilitate this.
  • University and institutional staff and other stakeholders shall be educated about needs of persons with disabilities and their treatment.
  • Every educational institution shall incorporate a grievance redressal mechanism to resolve issues being faced by persons with disabilities.”

4. Start-ups and Persons with Disabilities

a. Background

The Start-up India program and the Digital India program of Government of India have enabled and facilitated formation and success of several start-ups and enterprises. The ecosystem for entrepreneurs and start-ups  is today conducive for business progress and success, and several start-ups have turned into unicorns. Start-ups in India are today not only contributing to economic progress, but are also providing employment to many people. Some persons with disabilities have started their own companies, and some of them have succeeded.

As it stands today, no specific program exists that particularly encourages persons with disabilities to start their own enterprises. Except for the self-employment programs and limited financing facilities, programs that promote entrepreneurship among persons with disabilities do not exist. Also, the Start-up India program does not have any specific benefits or schemes for persons with disabilities.

b. Suggestion/Recommendation

Integrating a program specifically for persons with disabilities as a part of Start-up India scheme can encourage and facilitate persons with disabilities to take the entrepreneurship route. Accessible and funded incubation programs, special funding for persons with disabilities, support systems to encourage entrepreneurship, and appropriate training for entrepreneurs with disabilities can go a long way in enabling and facilitating persons with disabilities start their own enterprises, and contribute to the economy and employment. A comprehensive Government program towards promoting entrepreneurship will go a long way in facilitating the goals set out in the RPwD Act and UNCRPD.

c. Proposed Language in Policy

A specific chapter on start-ups and entrepreneurship may be added to the National Disability Policy. It may include the following proposed language:

“Persons with Disabilities can make valuable contributions as entrepreneurs. Starting a company on their own not only enables persons with disabilities live an independent life, but will also pave the way for their success and financial independence. As entrepreneurs, persons with disabilities can make invaluable contributions to the economy and employment.

The policy outlines the following measures to encourage start-up activity among persons with disabilities:

  • Special program for persons with disabilities will be launched as a part of the Start-up India program. Specific funds will be allotted to persons with disabilities, and incubators will create specific programs for entrepreneurs with disabilities.
  • Government funding will be available for start-ups started by persons with disabilities, which have proved their business model.
  • Training and boot camps will be conducted for persons with disabilities to encourage entrepreneurship and start-up activity.
  • Support and facilities will be provided to enable persons with disabilities run their businesses. Subsidies and tax cuts will be available for successful businesses started by persons with disabilities.
  • Appropriate guidelines will be issued to make services and facilities accessible to entrepreneurs with disabilities.”

5. Private Products/Services and Persons with Disabilities

a. Background

Though the accessibility, universal design, and reasonable accommodations related provisions are applicable to private product and service providers also under Section 46 of the RPwD Act and other provisions, most private establishments do not comply with accessibility and universal design requirements. Even new products and services are launched without bearing in mind the needs of persons with disabilities. In the digital context, very few services relating to food, health, livelihood, education, employment, and so on are accessible to persons with disabilities. This can be changed if Government takes initiatives to mandate accessibility and universal design.

b. Suggestion/Recommendation

Inclusion of a section relating to accessibility to private services and products in the Disability Policy, and issuance of appropriate guidelines, rules, and standards mandating accessibility compliance by private establishments will go a long way in enabling and facilitating persons with disabilities access physical and digital products/services independently, and fully/equally with others.

c. Proposed Language in the Policy

The following language may be considered for incorporation as a separate chapter, or as part of other chapters in the policy:

“The Policy outlines the following measures to improve accessibility of products and services to persons with disabilities:

As per the RPwD Act, accessibility and related provisions are applicable to private establishments as well. Central and State Government shall issue appropriate guidelines or rules for different sectors mandating accessibility of products and services for persons with disabilities.

  • Private establishments and stakeholders will be educated on accessibility requirements and standards to be followed while launching products and services.
  • Private establishments will be required to carry out audits at regular intervals, and submit reports with respect to their compliance with accessibility standards.
  • Complaints against private service providers and product providers having operations in more than one state shall be brought within the scope of CCPD and Sugamya Bharat App related program.
  • Each private establishment providing services or products beyond a given threshold shall be required to appoint a grievance officer to redress accessibility issues. “

 

To know more about BananaIP’s Accessibility and Disability Law Services you may visit here – https://www.bananaip.com/accessibility-and-disability-law-services/

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