On legal capacity: Letter submitted to Ministry of Social Justice and Empowerment, New Delhi

To,

Shri Awanish Kumar Awasthi JT. Secretary (DePwD) Ministry of Social Justice and Empowerment New Delhi Dated 1st July, 2015

Subject: Proposed forrmuations on issue of guardianship of adult persons with disabilities. Ref: Parliamentary Standing Committee Report on the Rights of Persons with Disabilities Bill

Sir,

We, the persons with disabilities and the persons working for the cause of persons with disabilities listed at the end of this submission have gone through the recommendations of the Standing Committee on the Rights of Persons with Disabilities Bill, 2014. For many persons with disabilities, particularly those with psychosocial and developmental disabilities, a large factor that plays in their marginalization is the lack of recognition of legal capacity. In not reaffirming this right, the Rights of Persons with Disabilities Bill, 2013, has done a great disservice to the principles of the UNCPRD which it seeks to enforce in India. The issue of legal capacity is one which goes to the root of exercise of rights of persons with disabilities, particularly persons with psychosocial and developmental disabilities, and it must be recognized in sans conditions in this legislation which purports to uphold the rights of persons with disabilities. The lack of recognition of legal capacity has led to myriad restrictions upon persons with disabilities in India in personal, contractual, and political spheres. Recently, the Human Rights Watch Report entitled “Treated Worse than Animals: Abuses against Women and Girls with Psychosocial or Intellectual Disabilities in Institutions in India” highlights the lack of legal capacity and enforced guardianship to be a strong factor in the eventual abuse that is meted out to women and girls with disabilities.

Persons with developmental and psychosocial disabilities themselves appeared before the Committee in Chennai expressing their reservations with the laws on guardianship. We are extremely delighted by the observation of the Committee, which we are hereby reproducing as follows:

“The Committee note that though the Government have already decided to substitute/recast clause 13(1) and (2) suitably by extending provisions of the clause to all disabled persons yet they feel that there is a possibility of the same going against the right to equality and non-discrimination provisions in the Bill and the Constitution of India as well. The Committee desire the Ministry to have a revisit on the aspect of guardianship and if necessary invite views of some prominent NGOs and stakeholders in the matter.”

We submit that from the time of the drafting of the Bill in 2010, the issues surrounding guardianship and the discourse around Article 12 of the United Nations Convention on the Rights of Persons with Disabilities has evolved immensely. In 2014, a General Comment was released by the Committee on the Rights of Persons with Disabilities to the following effect:

“28. States parties’ obligation to replace substitute decision-making regimes by supported decisionmaking requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with article 12 of the Convention… …While supported decision-making regimes can take many forms, they should all incorporate certain key provisions to ensure compliance with article 12 of the Convention, including the following: (a) Supported decision-making must be available to all. A person’s level of support needs, especially where these are high, should not be a barrier to obtaining support in decision-making; (b) All forms of support in the exercise of legal capacity, including more intensive forms of support, must be based on the will and preference of the person, not on what is perceived as being in his or her objective best interests; (c) A person’s mode of communication must not be a barrier to obtaining support in decision-making, even where this communication is non-conventional, or understood by very few people; (d) Legal recognition of the support person(s) formally chosen by a person must be available and accessible, and States have an obligation to facilitate the creation of support, particularly for people who are isolated and may not have access to naturally occurring support in the community. This must include a mechanism for third parties to verify the identity of a support person as well as a mechanism for third parties to challenge the action of a support person if they believe that the support person is not acting in accordance with the will and preferences of the person concerned; (e) In order to comply with the requirement, set out in article 12, paragraph 3, of the Convention, for States parties to take measures to “provide access” to the support required, States parties must ensure that support is available at nominal or no cost to persons with disabilities and that lack of financial resources is not a barrier to accessing support in the exercise of legal capacity; (f) Support in decision-making must not be used as justification for limiting other fundamental rights of persons with disabilities, especially the right to vote, the right to marry, or establish a civil partnership, and found a family, reproductive rights, parental rights, the right to give consent for intimate relationships and medical treatment, and the right to liberty; (g) The person must have the right to refuse support and terminate or change the support relationship at any time; (h) Safeguards must be set up for all processes relating to legal capacity and support in exercising legal capacity. The goal of safeguards is to ensure that the person’s will and preferences are respected. (i) The provision of support to exercise legal capacity should not hinge on mental capacity assessments; new, non-discriminatory indicators of support needs are required in the provision of support to exercise legal capacity.”

It is clear that any law which permits exceptions to independent exercise of legal capacity cannot limited to persons with disabilities alone. This would make it prima facie violative of the CRPD. There are various situations in which persons may require varying levels of support in decision making. In the circumstances, it is prayed that the Rights of Persons with Disabilities Bill may omit all references to guardianship and instead provisions relating to legal capacity may be recast as suggested in the annexure to this submission.

With regard to guardianship, we refer to the proposed National Trust for Providing High Support for Persons with Disabilities Amendment Act of 2011. We call upon the Ministry to hold a consultation as advised by the Hon’ble Committee immediately and consider reviving the drafting of the same, in consultation with persons with disabilities themselves, and recast the existing mechanisms and bodies under the National Trust Act, 1999 to work towards supporting all persons who require assistance in enabling decision making by them in accordance with the observations in the General Comment. To reiterate, this law must make an unequivocal statement guaranteeing the right to legal capacity to all persons, and the regulations regarding the realization of this right must be prioritized by the Ministry.

Thanking you,

Best regards,

Prepared by Amba Salelkar and Bhargavi Davar For the Bapu Trust for Research on Mind and Discourse, Pune http://www.baputrust.org/ bapucrpdadvocacy@gmail.com

With inputs from:

Meenakshi B., Equals Centre for Promotion of Social Justice, Chennai Rajiv Rajan, Ektha, Chennai

Supported by:

1. Abdul Mabood, Snehi, New Delhi

2. Deepa, Unnati Organisation for Development Education

3. Disability Legislation Unit (South), Vidya Sagar, Chennai

4. Dr. Srilatha Juvva, Tata Institute of Social Sciences, Mumbai

5. Equals Centre for Promotion of Social Justice, Chennai

6. Gautam Chaudhary, Kolkata

7. Jashodhara Dasgupta, New Delhi

8. Mahesh Chandrasekhar, Bangalore

9. Nidhi Goyal, gender and disability rights activist, Mumbai

10. Nilesh Singhit, Disability Rights Activist, Mumbai

11. Prof. V.S. Sunder, Institute of Mathematical Sciences, Chennai

12. R. Srivatsan, Centre for the Study of Culture and Society

13. Sarbani Dasroy, Iswar Sankalpa, Kolkata

14. Shivani Gupta, Accessability, New Delhi

15. Sudha Raghunathan, Chennai

16. Sudha Ramamoorthy, Chennai

17. Swadhikaar, Hyderabad

18. T.M.N. Deepak, December 3 Movement, Chennai

Formulations

Section 2 – Definitions clause – to be added

‘discrimination on the basis of disability’ means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination, including denial of reasonable accommodation;

Section 3 – to be redrafted

(1) It is recognized that disability is a part of human diversity, much like race, gender and religion, and that all persons with disabilities have an inherent right to equality before and under the law are entitled to the equal protection of the laws without any discrimination.

(2) No person shall be discriminated against on the ground of disability, and all persons with disabilities shall be provided with reasonable accommodation to provide for the effective realization of this right.

(3) Any legislation or policy or programme enacted by the State designed to accelerate or achieve de facto equality of persons with disabilities shall not be considered to be discrimination under this Section.

Section 12 – to be redrafted Notwithstanding anything contained in any other law at the time being in force:

(1) Persons with disabilities have the right to recognition everywhere as persons before the law, and enjoy legal capacity on an equal basis with others in all aspects of life. Any express or implied disqualification on the grounds of disability prescribed in any legislation, rule, notification, order, bye-law, regulation, custom or practice which has the effect of depriving any person with disability of legal capacity shall not be legally enforceable from the date of enforcement of this Act.

(2) Where deemed necessary by a person with disability, the person shall have a right to be given unconflicted support and reasonable accommodation in accessing information, understanding conseqences and liabilities, communication of decision, affirming decisions, and other aspects of decision making. The legal capacity of a person with disability shall not be questioned or denied, irrespective of the degree and extent of support, by reason of accessing support to exercise legal capacity. No person shall be deemed to require any form of supported or substituted decision making on the ground of having any impairment.

(3) The appropriate Government shall ensure that the persons with disabilities have right, equally with others, to own or inherit property, movable or immovable, control their financial affairs and have access to bank loans, mortgages and other forms of financial credit.

(4) The appropriate Government shall enact specific legislation including appropriate rules, notifications and bye laws, enabling the exercise of legal capacity before concerned authorities and service providers.

(5) All persons with disabilities presently under any form of guardianship under the National Trust Act, 1999, or the Mental Health Act, 1987, shall have the right to have their guardianship reconsidered before the authority constituted by the Appropriate Government that had approved of their guardianship, and in the event that the person with disability is aggrieved by the order passed on the application for reconsideration, the said order can be appealed in accordance with the Code of Civil Procedure, 1908.

Section 13. To be removed

Section 14.

(1) The appropriate Government shall designate one or more authorities to mobilise the community and create social awareness to support persons with disabilities in exercise of their legal capacity.

(2) The authority designated under sub-section (1) shall take measures for setting up suitable support arrangements to exercise legal capacity by persons with disabilities living in institutions and those with high support needs and any other measures as may be required.

Section 109 – to be redrafted

(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force and to the extent of such inconsistency that other law shall be deemed to have no effect.

(2)The provisions of this Act or the rules made there under shall be in addition and not in derogation of any other legislation, rules, orders or instructions which provides any entitlement or benefit to persons with disabilities.

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s