Disability Activists Slam Regressive Clause in New Act That Allows Discrimination

The contentious clause allows establishments to discriminate against persons with disabilities if there is a “legitimate aim”.

Gaurav Vivek Bhatnagar | The Wire | 24 March 2017

Even before it has been implemented, the Rights of Persons with Disabilities Bill, 2016, which was notified by the parliament in the winter session, has run into a major controversy with the primary stakeholders – persons with disabilities – questioning the clause that allows establishments to discriminate against them provided there is a “legitimate aim” and for taking the private sector out of the purview of the Act. Moreover, while the Centre had promised to address the issue while framing the rules under the Act, the same has not been reflected in the draft rules circulated earlier this month.

Asserting that this clause had no business to remain in the Act, the disability rights activists allege it was only introduced by the bureaucracy to keep a window for denying any rightful claim. With disability activists protesting against the subjective nature of this clause and two MPs of the CPI(M) in Rajya Sabha, K.K. Ragesh and C.P. Narayanan, moving amendments to notify the Rights of Persons with Disabilities (RPwD) Act, 2016, the minister for social justice and empowerment welfare, Thawar Chand Gehlot, had assured that necessary changes to the clause would be made through the rules to ensure that it was not misused against the persons with disabilities.

Why have a regressive clause in an Act?

As disability rights activist and practicing doctor at the University College of Medical Sciences and Guru Tegh Bahadur Hospital, Delhi, Satendra Singh, said, “a major concern with regard to the RPwD Act is Clause 3 (3) which states that ‘No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim'”.

This clause, he said, gives unfettered power to the implementing agencies to discriminate against persons with disabilities as it leaves open the interpretation to the bureaucracy.

Singh recalled how in his own case he had to fight a four-year-long battle to unlock his own and 1,700 other posts after he was discriminated against, due to a similar regressive rule, on the ground of disability, even though he had cleared a central health services examination conducted by the Union Public Service Commission. “These things will continue to happen if this rule is not changed. It is ironical that some leading disability activists never highlighted this and were so adamant on passing this Bill,” he lamented.

Draft rules ignored the contentious clause 

Noting that a committee was constituted to frame the rules and it had uploaded the draft rules on March 10 for seeking objections and suggestions after the same were approved by the legislative department of the Ministry of Law & Justice, Singh said what is bothersome is that the draft rules made no mention of the controversial clause. He also claimed that the government was in a hurry to make a big show of the rules by publishing them in the gazette on Ambedkar Jayanti on April 14 in order to show how much it cares. “But the question of discrimination remains as the ministry rules do not include anything circumventing 3.3 despite the assurance of the minister in parliament,” he said.

‘Legitimate aim’ is not defined

Agreeing that the time to act was now, former chief commissioner for persons with disabilities (CCPD) P.K. Pincha, said the rules need to do away with the provision of Clause 3 (3). “In the first place, what constitutes “legitimate aim” has neither been defined in the Act nor has it been explained anywhere in the Act. This, therefore, means by necessary implication that what constitutes legitimate aims has been left to the collective interpretation of the bureaucracy. And this is where our apprehensions as persons with disabilities lie.”

He said there are judgments of the Supreme Court in various other cases where it has stated that reasonable classification is permissible. “If reasonable classification is permissible vide the rulings of the apex court then where was the need to put this rider; it was not necessary.”

However, Pincha, who was part of certain consultations held on the issue and organised by the All India Disability Alliance, insisted that “in the draft rules there is some provision to deal with Clause 3 (3); they are proposing something, but whether it is adequate or not is another thing.”

Though not absolutely clear how the issue would be addressed, he said, “They have probably said that if there is an act or omission which any authority intends to resort to then they would have to first refer it to the chief commissioner or something to that effect.”

Representation of persons with disabilities a must as per UN charter

Pincha demanded that “there should be representation of persons with disabilities also in deciding if a particular act or omission was permissible or not because the UN convention on the rights of persons with disabilities, with which this law is sought to be made compatible, explicitly mandates that you cannot take a decision which affects the lives of persons with disabilities without consulting their representative organisations. So consultation with the primary stakeholders is indispensable.”

Noted disability rights advocate Subhash Chandra Vashishth is concerned that while the Act has become a “fait accompli”, since it was notified on December 28, even the draft rules do not address the concerns about the discriminatory clause explicitly.

All cases should be heard by CCPD and 11-member panel

“I suggest that some kind of mechanism should be devised which states that whenever such an issue of discretion arises then both the person seeking employment and the employer should be heard by a nodal authority comprising the chief commissioner of persons with disabilities, of the Centre or the state as the case may be, along with the 11 member advisory committee which the Act provides. Otherwise, if you would leave it only to the commissioners, who are usually bureaucrats and picked by the government, they may speak the language of the government,” he pointed out.

Seeking repealing of the contentious clause, he said while an amendment would require going through the whole parliamentary process, the rules can be changed accordingly till the time that happens.

Private sector left out of purview of Act

“At least in the rules they should make the necessary changes. They want to issue the rules on Ambedkar Jayanti on April 14. But in the week after the last day for inviting the suggestions on April 6, it is unlikely that much change would happen. Also, this draft has come after the law ministry had screened the earlier draft and had removed the areas where private establishments were concerned and many other areas,” said Vashishth.

Similarly, he said, while the equal opportunity policy was there for all the establishments under the law, the rules only call upon the government establishments to implement it. They are silent on the role to be played by the private establishments.

Within the Act, the establishments have been defined as government establishments and just establishments. But the rule has not legislated anything on private employers. But now the rules are silent on that. So now when the law would be implemented on April 14, it would not be applicable to private employers.

The lawyer-activist also pointed out that the private sector has been left out of the purview of the draft rules even though the Act had provided for their inclusion. “So in effect, it could well mean that the Act would not apply to the private sector at all,” he said.

An amendment to the Act is needed urgently

Vashishth demanded that ideally, the Act needs to be amended. “The employers are generally governed by the law and the rules made thereunder. The issue is that right now the rules are being made for the central government and the state governments would be doing it separately. The worry is they may do it differently or not do it at all. So if there is an amendment to the Act it is better because then it applies to all the states too. This would also ensure that the provision does not become subjective in the states.”

Source: The Wire

Vigyan Bhawan, AIIMS, Feroz Shah Kotla… can’t go anywhere

Bindu Shajan Perappadan,  February 27, 2017 21:42 IST

Two key buildings in Delhi — Vigyan Bhawan and Social Welfare Department (GNCTD) — are inaccessible to people with disabilities.Ironically, the President presents national awards to differently-abled  persons at Vigyan Bhawan and the Social Welfare Department is a two-storey building meant for their welfare, says  physician and disability rights activist Satendra Singh, summing up the state of inclusion of accessibility for the differently-abled in the Capital.Speaking about his own “struggle”, Dr. Singh, who has 70% orthopaedic disability, says: “I have to travel 4 km from GTB Hospital (his office) to Suryanagar to use the post office as the one on the hospital campus is on the first floor and there is no lift. I have to file a case in Disability Court against my Medical Director to make the post office and bank accessible.”The lack of access to essential services remains a source of discrimination and lost opportunities for the disabled, says the doctor.The list of inaccessible buildings in the Capital includes premier hospitals as well.“

Despite my petition, AIIMS Delhi remains inaccessible to people with disabilities. The New Delhi railway station doesn’t have a lift connecting to the platforms and escalators are not disabled-friendly. Though there are low-floor buses, have you ever seen a wheelchair-user travelling in them,’’ he asks. Most irritating, he says, is the fact that entertainment is beyond the reach of the disabled. “Neither cinema halls nor Firoz Shah Kotla is accessible,’’ he says. 

Inaccessibility is not restricted to wheelchair-users only, says disability rights lawyer and access consultant Subhash Chandra Vashishth. According to him, to realise the mandate of inclusive and accessible public infrastructure, all public spaces need to be conceived, designed and developed keeping diversity of users in mind.

Dr. G.N. Karna, a research officer and honorary president of the Society for Disability and Rehabilitation Studies, says there is a need to improve the monitoring of implementation of various policies, including the yet-to-be notified Rights of Persons with Disabilities Bill, 2016.

Source: The Hindu 

Activists term disability bill a 'skeptical Act'

Manash Pratim Gohain | TNN | Updated: Dec 16, 2016, 22:23 IST

NEW DELHI: Even as the Rights of Persons with Disabilities Bill 2016 got the approval of Lok Sabha on Friday and Rajya Sabha on Wednesday, disability rights' groups and activists punched holes into the new Act on Friday. While welcoming the passing of the bill, the process which started in 2007, they say that many provisions of the bill will "inculcate exclusion," and that "this Act will be more of obstacles rather than implementation." Activists are also concerned with the bill not specifying any provisions for women and children with disabilities, who are among the most vulnerable groups of the society.

Concerned over the passing of the bill without any discussion in the Upper House of the Indian Parliament, Sambhavana Organization, a disability rights' NGO said that due to this "the Bill has been passed with many inadequacies and unresolved issues," many of which they claim were part of the previous draft bills "which have been omitted or diluted in the present one."

"We feel happy with the passing of the Bill, but are concerned over the fact that there has been no discussion on it in the Rajya Sabha. This means the issue of disability is not a priority for the policy makers," said Nikhil Jain, president, Sambhavana.

While the categories of disabilities have increased threefold, from seven to 21, the amended bill provides only 4% reservation for Persons with Disabilities (PwDs) which has been 3% so far. The rights' groups and activists were demanding retention of at least 5%. "Reservation in jobs, once proposed to be enhanced from 3% (1995 Act) to 5% (2014), has now been restricted to 4%," said disability right's activist, Dr Satendra Singh.

Stating that the United Nations Convention on the Rights of Persons with Disabilities, which India is a signatory envisage "no policies without the PwDs in its ambit," Pankaj Sinha, a disability rights activist said that the rights of the disabled have been curtailed by the new Bill.

"The amendments have been in waiting since 2007 and drafts of many committees rejected. The previous government also tried to pass an ordinance after the Sudha Kaul committee report was not accepted. The present government without putting the draft in public domain passed it," said Sinha.

Stating that the Bill leaves a lot of lacunas for violators to get scot free, activists said that need of the hour has been more teeth for punitive action. "Another amendment drops imprisonment (two months to six months) for violation. There is only a fine of Rs 10,000 to Rs 5 lakh," added Singh.

Another major concern has been regarding the rights of women and children with disabilities. "There is a special mention about rights of women and children with disabilities, but nothing specific has been stated. There is no legal provision for women with disabilities in marriage or divorce laws, where we need more clarity because they suffer the most. As far as children with disabilities are concerned there is also a special mention, but we need to clarity on how they are treated in institutions and inclusive education for them. In adoption laws too children with disabilities are left out. We need more specific provisions regarding adoption of children with disabilities," said Abha Khetarpal, president, Cross for Hurdles.

Subhash Chandra Vashishth, advocate, disability rights, Centre for Accessibility in Built Environment, also highlighted the dilution in the amendments such as how Section 3 (3) allows "discrimination against disabled person if it is 'a proportionate means of achieving a legitimate aim.' This clause leaves 'legitimate aim' open to the subjective interpretation of bureaucracy.

According to Singh, "Only remarkable part of a skeptical Act is inclusion of autism, dyslexia, deaf-blindness and other impairments."

The Blind Workers Union too claimed that the main problems faced by the disabled community have not been addressed. The union in a statement said, "The Bill continues to lack any serious engagement on the question of protecting the labour and economic rights of disabled persons employed in the private sector."

Source: Times of India

What constitutes "appropriate education" for students with Autism in public schools- US Supreme Court to consider

Dear Colleagues,

The origins of this potentially lank mark case stretch back to 2010 when the parents of a child with autism in Douglas County of USA had to withdraw their child from "Summit View Elementary" -  a public school  after the child (now 17) began to exhibit severe behavioral issues, including banging his head, dropping to the floor, disrobing and running away from school. The parents having been convinced the school wasn’t doing enough to help their son with autism progress academically, pulled the child out of Summit View and enrolled him in Firefly Autism, a Denver school that specializes in working with autistic children.

The parents have argued in the petition they submitted to the U.S. Supreme Court late last year that the intent of the IDEA (Individuals with Disabilities Education Act) was to provide a meaningful education to disabled students, not simply a “just-above-trivial” benefit. They noted that federal judges from several circuits across the country have issued conflicting rulings over the years on what is the "appropriate standard" to be used to assess the proper level of educational benefit a disabled student should get. The petition of the parents argues that this case presents an ideal vehicle for this Court to resolve the circuit split and provide lower courts with guidance in applying the IDEA.

It is pertinent to note that the U.S. Supreme Court hasn’t spoken on the issue since the 1982 Board of Education Versus Rowley ruling, when it affirmed that IDEA guaranteed disabled students access to the public school classroom but didn’t address the quality of that education.

Even in India, we have been facing this issue of what is 'appropriate education' for children with disabilities, particularly those with intellectual and developmental disabilities. While the government schools in India are woefully ill-equipped in absence of trained educators, lack of teaching learning material in the schools given the large number of students. The situation is equally grim in the private schools as well who charge a considerable amount in the name of tuition fee and other counts, however, have made the education of disabled children an affair to be managed by Shadow Teachers (paid by parents). In the name of inclusion, children do remain in the school but there is hardly an effort to include them in the classroom or the learning outcomes. Children with disabilities are also not included in play or extra-curricular activities. This is surely not inclusion. This is a clear violation of the spirit of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 and in particular Section 30 of the Act.

Entire world will be watching this case with great curiosity as to what Supreme Court of USA decides. But one thing is sure, Supreme Court had made up its mind to speak its mind on the issue and likely to grant Certiorari to the parents. This case is truly about equal opportunity for the special needs children that the law requires. And this is likely to help realize inclusive education as enshrined in the IDEA.

Brief about IDEA 

The Individuals with Disabilities Education Act (IDEA) is a four-part (A-D) piece of American legislation that ensures students with a disability are provided with Free Appropriate Public Education (FAPE) that is tailored to their individual needs. IDEA was previously known as the Education for All Handicapped Children Act (EHA) from 1975 to 1990. In 1990, the United States Congress reauthorized EHA and changed the title to IDEA (Public Law No. 94-142). Overall, the goal of IDEA is to provide children with disabilities the same opportunity for education as those students who do not have a disability.

IDEA is composed of four parts, the main two being part A and part B.[1] Part A covers the general provisions of the law, Part B covers assistance for education of all children with disabilities, Part C covers infants and toddlers with disabilities which includes children from birth to age three, and Part D is the national support programs administered at the federal level. Each part of the law has remained largely the same since the original enactment in 1975.

In practice, IDEA is composed of six main elements that illuminate its main points. These six elements are: Individualized Education Program (IEP), Free and Appropriate Public Education (FAPE), Least Restrictive Environment (LRE), Appropriate Evaluation, Parent and Teacher Participation, and Procedural Safeguards. To go along with those six main elements there are also a few other important components that tie into IDEA: Confidentiality of Information, Transition Services, and Discipline. Throughout the years of IDEA being reauthorized these components have become key concepts when learning about IDEA.

Here is the coverage in Denver on the issue

U.S. Supreme Court will hear Douglas County student with disabilities case

Origins of potentially landmark case stretch back to 2010

The U.S. Supreme Court announced Thursday that it will hear a potentially groundbreaking case brought by a Douglas County couple who claim that their autistic son was not provided an adequate education in the public school system as required by federal law.

The high court’s ruling on the case, which likely wouldn’t come down until next year, could have substantial implications for students with disabilities across the country in terms of the standard school districts will be required to meet when providing instruction and services. At issue is whether schools must provide an education equal to other students.

The family, whose last name is not used in court documents, told The Denver Post on Thursday that they were “shell-shocked and giddy” about the decision by the Supreme Court to grant certiorari to their case, which has dragged on for half a dozen years.

“It’s about equal opportunity for special-needs kids that the law requires,” said Joe F., father of Endrew F., whose name anchors the Endrew F. v. Douglas County School District case file. “If we can change any families’ lives, that’s our goal.”

The district released a statement on the high court’s decision late Thursday.

“It would be inappropriate to discuss the specifics of the case while it is still being litigated, but the Court’s decision today is not a decision on the merits, and we look forward to addressing the issues before the Court,” district spokeswoman Paula Hans said.

The roots of the case go back to 2010, when the Highlands Ranch couple pulled Endrew, now 17, out of Summit View Elementary after he began to exhibit severe behavioral issues, including banging his head, dropping to the floor, disrobing and running away from school. Convinced the school wasn’t doing enough to help their son progress academically, the couple pulled him out of Summit View and enrolled him in Firefly Autism, a Denver school that specializes in working with autistic children.

“If he was able to show up to school and say ‘good morning,’ that was good enough for them,” Joe F. said of the Douglas County School District. “They weren’t moving his education forward.”

The family has asked that their last name not be used.

The parents, who said their son has made progress in his learning since attending Firefly, asked the district to reimburse them for the tuition they paid for Endrew’s private schooling. They claimed that the Douglas County School District did not do enough to provide their son with a “free appropriate public education” as required by the 1975 Individuals with Disabilities Education Act (IDEA).

But an administrative law judge, a federal judge and the 10th U.S. Circuit Court of Appeals backed the district, claiming in separate rulings that the federal statute only requires that schools provide students with “some educational benefit,” a standard they determined Douglas County had met with Endrew.

The family argued in the petition they submitted to the U.S. Supreme Court late last year that the intent of the IDEA was to provide a meaningful education to disabled students, not simply a “just-above-trivial” benefit. They noted that federal judges from several circuits across the country have issued conflicting rulings over the years on what is the appropriate standard to be used to assess the proper level of educational benefit a disabled student should get.

“This case presents an ideal vehicle for this Court to resolve the circuit split and provide lower courts with guidance in applying the IDEA,” their petition argued.

The U.S. Supreme Court hasn’t spoken on the issue since the 1982 Board of Education v. Rowley ruling, when it affirmed that IDEA guaranteed disabled students access to the public school classroom but didn’t address the quality of that education.

The family received a boost last month when the Office of the Solicitor General filed an amicus brief urging the Supreme Court to take up the case. It said that the 10th U.S. Circuit Court of Appeals had set the bar — a standard of “merely … more than de minimis” educational benefit — too low.

“No parent or educator in America would say that a child has received an ‘appropriate’ or a ‘specially suitable’ or ‘proper’ education ‘in the circumstances’ when all the child has received are benefits that are barely more than trivial,” the solicitor general’s office wrote.

But Kathleen Sullivan, chief counsel for the Colorado Association of School Boards, said it would be better for Congress to clarify its statutes than for the court to impose an order. A uniform standard handed down by the Supreme Court would prove “disruptive” to what is today an individually tailored analysis and decision between educators, parents and students, she said.

“The disruption is in shoving aside more than 30 years of case law that we have in helping us understand what the IDEA means for students,” Sullivan said. “I think we would see a wave of litigation to define and apply that new standard.”

The district, in a brief it filed earlier this month urging the Supreme Court not to take up the case, argued that in passing the IDEA, Congress guaranteed access to public education for students with disabilities but did not specify what the level of that education should be.

“Thus, for over 30 years, this Court has held that if a State provides a program ‘reasonably calculated to enable the child to receive educational benefits,’ then it ‘has complied with the obligations imposed by Congress and the courts can require no more,’ ” the brief argued.

But Jack Robinson, an attorney for Endrew F.’s family, said one of the IDEA’s stated goals is readying a student with disabilities for the workforce or independent living, something that can’t be achieved with a minimal education offering.

“There has to be a more heightened and robust standard than a little more than nothing,” Robinson said. “This case has the potential of recognizing that children with disabilities have a right to a substantive education.”

Source : Denverpost 

Note: This post is also reproduced on blog "Disability Rights Through Courts" 

Structural Changes in Govt. Schools with NGOs on Board to ensure disabled children actually learn

Dear colleagues,

Please refer to my earlier post titled 'Delhi Govt. focuses on students with disabilities in Govt. Schools- thanks to Working Groups with NGOs'. Here is an updated report on the project by Shreya Roy Chowdhury of TNN, wherein the 6 working groups have moved ahead on many areas and the Delhi Govt. is hoping that through these interventions, the children with disabilities enrolled in govt. schools will actually learn:

6 new working groups for kids with spl needs (Times of India)

Shreya Roy Chowdhury | TNN | Updated: Sep 22, 2016, 12.04 AM IST

New Delhi: Through a number of interventions, Delhi government is hoping to ensure that disabled children in its schools actually learn. Taking disability-sector NGOs on board, the Directorate of Education has established six working groups to address different aspects of education for such kids—teacher training, aids and resources, even "structural changes" in the administration. "Disability mapping" is on the cards and on September 15, the government issued a list of 14 schools in different school districts where accessible "resource centres" will be built.

There are about 20,000 'children with special needs' or CWSN in Delhi government schools. The Right to Education Act's insistence on inclusivity and accessibility has increased enrollment but activists argue the system is not up to scratch. Now, even the government agrees. The minutes of a June 2016 meeting organised by the government with NGOs says, "The issue of mismatch of expertise of Special Education Teachers (SETs) and needs of CWSN was raised. Disability mapping of CWSN should be the first step." The meeting was attended by directorate officials and representatives of many organisations.

"The special educators are single-disability trained. We have offered to train in cross-disability and inclusive education so that they can help children and teachers," says G Syamala of Action for Ability Development and Inclusion.

The DoE's meeting minutes explain that each working group will include two NGOs (or institutes) and one department official. One will work exclusively on learning disabilities — help identify children who have them, "finalize...tools for assessment of learning disabilities", "provide lucid instructions for...teachers", "prepare training module for assessment of these children."

Another will develop teaching aids. There'll be a central resource library in every zone — 29 libraries distributed over 13 school districts. These will serve as repositories of resources for special educators, teachers, parents and the kids themselves. The All India Confederation of the Blind has offered to work with the Delhi Bureau of Text Books to producing Braille and large-print texts.

Members also agreed on developing "zonal resource centres" — essentially one school in a zone capable of extra support — for children "with severe disability." This, however, doesn't mean more 'special' schools — fundamentally contrary to the idea of inclusion. "Recipient[s] of these services (CWSN) will study in their schools" and the centres will offer "specialized services". Major changes to the administration are also being considered including creation of special posts to implement programmes and monitor.

The AICB president AK Mittal has sent the DoE a list of other suggestions including "orientation and mobility" training for the visually challenged, "expanded core curriculum activities" for disabled children and "school-mapping for the placement of special educators."