DRAFT OF THE RIGHTS OF THE PERSONS WITH DISABILITIES 2012dnis.org › DRG PROPOSED DRAFT RPD'12.pdf · DRAFT OF THE RIGHTS OF THE PERSONS WITH DISABILITIES By DRG 3 PREAMBLE The Constitution

DRAFT OF THE RIGHTS OF THE PERSONS WITH DISABILITIES By DRG 1

DRG - September 2012

DRAFT OF THE RIGHTS OF THE PERSONS WITH DISABILITIES‟ 2012

PREAMBLE 3 SHORT TITLE AND APPLICABILITY 3

1. DEFINITIONS 3

CHAPTER II: ACCESS TO LIVING WITH DIGNITY 6 2. ACCESSIBILITY STRATEGY 6 3. ACCESS TO LIVING INDEPENDENTLY 6 4. ACCESS TO REASONABLE ACCOMODATIONS AND MEASURES TO

REMOVE BARRIERS 6 5. ACCESS TO EARLY CHILDHOOD AND DEVELOPMENT SERVICES 7 6. ACCESS TO EDUCATION 7 7. ACCESS TO HEALTH 7 8. ACCESS TO HABILITATION AND REHABILITATION SERVICES 8 9. ACCESS TO LEGAL AID 8 10. ACCESS TO FINANCIAL INSTITUTIONS AND FINANCIAL TRANSACTIONS8 11. EQUAL ACCESS TO INHERITANCE 8 12. ACCESS TO FRANCHISE 8 13. ACCESS TO SHELTER 9 14. ACCESS TO SUPPORTED DECISION MAKIING 9

CHAPTER III: DUTIES OF SERVICE PROVIDERS 10 15. RESPONSIBILITIES OF ESTABLISHMENTS 10 16. RESPONSIBILITIES OF MUNICIPAL BODIES/GRAM PANCHAYAT 10 17. RESPONSIBILITIES OF EDUCATIONAL INSTITUTIONS 11 18. RESPONSIBILITIES OF SERVICE PROVIDERS 11 19. COMPLAINT TO THE DISABILITY REDRESSAL COMMITTEE 11 20. APPEALS 12

CHAPTER IV: LEGAL CAPACITY 13 21. PRESUMPTION 13 22. DECISION MAKING 13 23. TOTAL SUPPORT 13 24. APPLICATION FOR PROVIDING TOTAL SUPPORT 14 25. EMERGENCY MEDICAL SUPPORT 15 26. STATUTORY APPEALS 15

CHAPTER V: PROTECTION OF VULNERABLE PERSONS WITH DISABILITY 16 27. IDENTIFICATION OF VULNERABLE PERSONS 16 28. APPLICATION TO THE COMMITTEE 16 29. MANDATORY RESERVATIONS FOR PERSONS WITH DISABILITIES WITH

A HIGH DEGREE OF DISABILITY 17

30. REVIEW 17


CHAPTER VI: DISABILITY EQUALITY COMMISSION 18 31. ESTABLISHMENT OF THE COMMISSION 18 32. APPOINTMENT OF CHAIRPERSON AND MEMBERS 18 33. TERM OF OFFICE AND CONDITIONS OF SERVICE OF CHAIRPERSON

AND MEMBERS 18 34. QUALIFICATION, SALARY AND ALLOWANCES OF CHAIRPERSON AND

MEMBERS 18 35. REMOVAL FROM OFFICE 18 36. VACATION OF OFFICE BY CHAIRPERSON OR MEMBER 19 37. MEMBER-SECRETARY, OFFICERS AND OTHER STAFF OF THE

COMMISSION 19 38. FUNCTIONS OF THE COMMISSION 19

CHAPTER VII: DISABILITY REDRESSAL COMMITTEE 21

39. ESTABLISHMENT OF THE COMMITTEE 21 40. POWERS OF THE COMMITTEE 21 41. PROCEDURE BEFORE THE COMMITTEE 21 42. ORDERS THAT MAY BE PASSED BY THE COMMITTEE 21 43. INTERIM EX-PARTE ORDERS 22 44. REALISATION OF CASH COMPENSATION 22

CHAPTER VIII: SUPPORT SERVICES 23 45. DISABILITY SUPPORT OFFICER 23 46. DUTIES OF THE DISABILITY SUPPORT OFFICER 23 47. DISABILITY PROTECTION OFFICER 23 48. DUTIES AND FUNCTIONS OF THE DISABILITY PROTECTION OFFICER 23 49. DISABILITY DETERMINING SERVICES 24 50. DUTIES OF DISABILITY DETERMINING SERVICES 24

CHAPTER IX: SAFE LIVING OPTIONS 26 51. LIVING WITH FAMILIES 26 52. SUPPORTED HOMES 26 53. COMMUNNITY SUPPORTED LIVING 26 54. APPLICATION TO RESIDE IN SUPPORTED HOMES 27 55. APPEALS 28

CHAPTER X: MISCELLANEOUS 29 56. FUND 29 57. DELEGATION OF POWERS 29 58. PROTECTION OF ACTION TAKEN IN GOOD FAITH 29 59. POWER TO MAKE RULES 29 60. REPEAL AND SAVINGS 30 61. POWER TO REMOVE DIFFICULTIES 30


PREAMBLE

The Constitution of India guarantees to all its citizens Equality, Dignity, Liberty and Fraternity.

India has ratified the United Nations Convention On the Rights of Persons with Disabilities

(UNCRPD) and has committed to align all its domestic laws to UNCRPD.

The Rights of Persons with Disabilities, 2012, is –

An act

To ensure the inherent dignity, autonomy of every person with disability;

To promote full and effective participation and inclusion of people with disability

in society;

To provide for equality of opportunity;

To accept persons with disability as part of human diversity and humanity and

respect the inherent differences;

To respect for the evolving capacities of children with disabilities and respect for

the right of children with disabilities to preserve their identities;

To promote equality of opportunity in political, social, cultural, economic or in

any other field;

To respect and promote equality between men and women, boys and girls;

To take appropriate measures that ensure to persons with disabilities access

on an equal basis with others, to the physical environment, to transportation, to

information and communications, including information and communication

technologies and systems, and to other facilities and services open or provided

to the public, both in urban and rural areas.

1 SHORT TITLE AND APPLICABILITY a) This act shall be called the Rights of Persons with Disabilities Act, 2012. b) It shall apply to the whole of India except to the State of Jammu and Kashmir

2 DEFINITIONS : In this act, unless the context otherwise specifies, a. „Act” means the present act; b. “Access” includes mechanisms devised to ensure, that persons with disabilities

are able to participate fully in all aspects of life on an equal basis with others without any barriers; Explanation: “Mechanism devised” will include strategies, processes, systems, structures, aids and appliances and services

c. Access to living with Dignity means provision that would enable persons with disability to maintain inherent dignity, autonomy and the freedom to make choices;

d. “Accessibility strategies” means the strategies as laid out in schedule 1 of the

Act; e. “Appropriate Government” means the Central Government and the State

Government ;

f. “Barriers” means factors that make up the physical, social and/or attitudinal environment in which persons live and conduct their lives and which in interaction with the impairments may hinder full and effective participation in the society of


persons with disabilities on an equal basis with others and shall also include lack of access to services, products and technology and lack of compliance to the accessibility strategy ;

Explanation: Barriers may include lack of access to products and technology, natural environment and human made changes to the environment, lack of support and relationships, societal attitudes; Social norms, practices and ideologies, services, systems and policies;

g. “Care giver” includes any person or institution who supports, supervises and/or provides for the daily cares/needs/rights of a person with disabilities with or without consideration;

h. “Daily care support” includes the assistance provided to a person with

disabilities in the performance of routine biological functions, maintenance of hygiene and any other assistance which the person may seek within his/her home;

i. “Degree of impairment” means the extent of physical, mental, intellectual or

sensory impairment determined for the purposes of understanding the nature and extent of support and protection required by the persons with disabilities and/or of their families;

j. “Disability equality Commission” means the commission set up under section

32 of the Act; k. “Disability Protection Officer” is an officer appointed under section 48 of the

Act; l. “Disabilities Redressal Committee” means the Committee set up under

section 40 of the act; m. “Disabilities Support Officer” means a person appointed under section 46 of

the Act; n. “Expert” is a person who has knowledge and/or skill in a particular field through

professional training, work experience or personal experience of disabilities; o. “Fund” means the amounts lying in the corpus of the Disabilities Equality

Commission under section 57 of the Act; p. “Impairment” means any complete or partial limitation of physical, mental,

intellectual or sensory structure/function that may be acquired on birth or caused thereafter and shall also include limitation that can be mitigated through external aids or treatment;

q. “Legal Capacity” means the ability of a person to engage in, enter into or

close/terminate a transaction or a relationship; r. “Persons with Disabilities” include those who have long-term physical, mental,

intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. (Explanation: For the purposes of this sub-section long term means a term which is or likely to last a period of twelve months or more)

s. "Reasonable accommodation" means necessary and appropriate modification and adjustments, not imposing a disproportionate requirement, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise, on an equal basis with others of all human rights and fundamental freedoms;


t. “Special court” means the Court of sessions specially appointed to hear cases arising out of this Act;


CHAPTER II: ACCESS TO LIVING WITH DIGNITY

3 ACCESSIBILITY STRATEGY:

a. The accessibility strategy shall contain directives to maintain minimum standards that would ensure to persons with disabilities the enjoyment or exercise on an equal basis with others, all facilities, services, processes, systems and opportunities and shall include assistance for supported decision making;

b. The strategy shall be as laid out in schedule 1; c. The Disability Equality Commission shall prescribe mechanisms for certifying

the compliance with accessibility strategy;

4 ACCESS TO LIVING INDEPENDENTLY

a. Notwithstanding the provisions of chapter IV, all persons with disabilities shall have the right to live independently;

b. The appropriate government shall provide services to the person with

disabilities living independently; c. The services provided under sub-section (b) shall include all the services that

would enable a person with disabilities to participate fully in all aspects of life on an equal basis with others without any barriers;

5 ACCESS TO REASONABLE ACCOMMODATION AND MEASURES TO REMOVE

BARRIERS

a. The appropriate government shall take steps to reduce and remove barriers caused to persons with disabilities;

b. In order to ensure that a person with disability is able to live life without

encountering any barriers, the appropriate government shall ensure that there is access to services including but not limited to access to support services in decision making, access to health services, access to education, access to legal aid and access to information;

c. Reasonable accommodation shall be ensured to all persons with disabilities

in order to mitigate the impact of impairment so that persons with disabilities can live their life to the full potential;

d. For the purposes of this act, support services shall include:

i. mechanisms and processes that would mitigate the impairment so as to enable the person to participate fully in all aspects of life on an equal basis with others without any barriers;

ii. mechanisms and processes to make and exercise informed choice; iii. mechanisms and processes to take complete benefit of the

accessibility strategy; 6 ACCESS TO EARLY CHILDHOOD AND DEVELOPMENT SERVICES

a. The appropriate government shall take steps to ensure that the early childhood and development services for all children with disabilities are made available.

b. The services under sub-section (a) above shall include maternal and child

health services, kindergarten, child care, early childhood intervention services, supported playgroups and parent groups and community based


services to all children with disabilities and any other service that supports/promotes the well being of the child.

c. The appropriate governments shall modify, create, and develop such early

childhood and development services that will protect the rights of children with disability and will enable them to live, grow and develop their full potential.

d. Reasonable accommodation shall be provided for across all services for

children with disabilities.

7 ACCESS TO EDUCATION

a. The appropriate government shall ensure that all children with disabilities have access to inclusive education;

b. Within two years from the date of notification of this Act, the appropriate

government shall create a functional inclusive education system at all levels and lifelong learning directed to:

(i) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;

(ii)The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;

(iii) Enabling persons with disabilities to participate effectively in a free society.

c. In order to ensure that accessible educational services are available to

people with disabilities and are provided nearer to the communities that they live in, the appropriate governments will take all necessary steps to ensure that processes, systems and policies promote inclusive education and reasonable accommodation of the individual’s requirement is provided.

8 ACCESS TO HEALTH

a. The appropriate Governments shall ensure persons with disabilities have complete access to health services;

b. To facilitate the enjoyment of highest attainable standard of physical &

mental health, the appropriate government shall ensure that all heath care facilities, services and programmes are available and accessible to people with disability , nearer to the communities that they reside in, and are available without any discrimination on the basis of gender, age, extent or kind of impairment, or any other factor.

c. Reasonable accommodation shall be ensured in all the health care facilities;

9 ACCESS TO HABILITATION AND REHABILITATION SERVICES

a. The appropriate government will develop strategies and schemes to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life;

b. The comprehensive habilitation and rehabilitation services and programmes,

particularly in the areas of health, employment, education and social services will be available to persons with disabilities in the community’s they live and will extend to the rural areas as well. It will be ensured that the products and


technology that will ensure participation will comply with the standards and norms as outlined in the accessibility strategy.

10 ACCESS TO LEGAL AID

a. The appropriate government shall ensure that legal aid is available to all persons with Disabilities;

11 ACCESS TO FINANCIAL INSTITUTIONS AND FINANCIAL TRANSACTIONS

a. The appropriate Government shall take effective measures to ensure that the persons with disability have access to all financial institutions on an equal basis with others and will further be entitled to control financial transactions and have equal access to banks and banking services;

b. The banks and financial institutions shall adhere to the accessibility strategy

and shall ensure that reasonable accommodations as per the need of the individual person with disability will be provided for.

12 EQUAL ACCESS TO INHERITANCE

a. The appropriate government shall facilitate the persons with disabilities to access their properties including securing their rights of inheritance;

b. In cases where required, legal aid may be provided to the persons with

disabilities to protect their rights on the property;

13 ACCESS TO FRANCHISE

a. The appropriate Government will ensure that the persons with disability can and will effectively participate in political and public affairs on an equal basis with others, including the right and opportunity for persons with disability to vote and be elected, form and join organisations of persons with disability to represent people with disability at international, national, regional and local levels.

b. Reasonable accommodation shall be ensured in all cases where the persons with disabilities exercises his/her right to franchise;

14 ACCESS TO SHELTER

a. The appropriate government shall develop schemes to provide subsidized housing for persons with disabilities;

b. Persons with disabilities shall be entitled to get reservation of 5% in all

housing schemes of the government and shall be divided on the basis of a lottery system amongst the persons with disabilities;

c. In cases where a person with disabilities expresses a desire to live

independently, support shall be provided to such person: i. In accessing housing; ii. In accessing services enabling a person to live his life within the

community on an equal basis with others without any barriers; iii. In accessing financial assistance from banking and other financial

institutions on a preferential basis.


15 ACCESS TO SUPPORTED DECISION MAKING

a. The appropriate government shall ensure that every person with disability shall be entitled to support in decision making which would enable the person to exercise legal capacity with safeguards to implement his/her will;

b. The mechanisms for ensuring support in decision making shall be developed

by the Disability Equality Commission;


CHAPTER III: DUTIES OF SERVICE PROVIDERS

16 RESPONSIBILITIES OF ESTABLISHMENTS:

a. Every establishment, shall, within 18 months from the date of notification of the act in the official gazette make necessary and appropriate changes, modification and adjustments in their structure and functioning to bring their establishment in conformity with the accessibility strategy;

b. The establishment shall ensure that a person with disability is not

discriminated against or put in a position of disadvantage because of the nature/extent of their impairment in the process of employment and shall take appropriate steps to provide equal opportunities for persons with disabilities;

c. The establishment shall ensure that a person with disability is not

discriminated against or put in a position of disadvantage because of the nature/extent of their impairment in the process of recruitment and shall take appropriate steps to provide equal opportunities for persons with disabilities;

d. The establishment shall take appropriate steps to remove barriers that may

be faced by persons with disabilities during the process of recruitment and continuance in employment;

e. The establishments are at liberty to increase the minimum standards laid out in the accessibility strategy subject to the approval of the Disability Equality Commission;

17 RESPONSIBILITIES OF MUNICIPAL BODIES/ GRAM PANCHAYATS

a. Every municipality, corporation, public works department or any other authority that is engaged in approving, licensing, monitoring, sanctioning any building plans, construction of public places, development of roads and other civic amenities, shall, within 6 months from the date of notification of the act in the official gazette make it mandatory in the scheme of licensing, approvals and sanctions the incorporation of the standards laid out in the accessibility strategy;

b. The municipality, corporation, public works department or any other authority

that is engaged in approving, licensing, monitoring, sanctioning any building plans, construction of public places, development of roads and other civic amenities shall not later than eighteen months from the date of notification of this act ensure that a person with disability is not discriminated against or put in a position of disadvantage because of the lack of adherence to the “accessibility strategy”;

c. The municipality, corporation, public works department or any other authority

that is engaged in approving, licensing, monitoring, sanctioning any building plans, construction of public places, development of roads and other civic amenities are at liberty to increase the minimum standards laid out in the accessibility strategy subject to the approval of the Disability Equality Committee;

d. Within a period of two years from the date of coming to force of this act, all

existing buildings, multi-storeyed residential buildings, establishments which have access to public and all other civic amenities shall also be in conformity with the standards laid down in the accessibility strategy;


18 RESPONSIBILITIES OF THE EDUCATIONAL INSTITUTIONS:

a. Every educational institution irrespective of being fully owned and/or controlled by the government, aided or un-aided, which has admitted 100 students and above shall, within 18 months from the date of notification of the act in the official gazette shall comply with the directives in the “accessibility strategy”.

b. The educational institution shall ensure that a person with disability is not

discriminated against or put in a position of disadvantage because of the lack of adherence to the “accessibility strategy”;

19 RESPONSIBILITIES OF SERVICE PROVIDERS:

a. Every service provider irrespective of being fully owned and controlled by the government, aided or un-aided shall, within 18 months from the date of notification of the act in the official gazette comply with the directives in the “accessibility strategy”.

b. The institutions mentioned in clause (a) shall ensure that a person with

disability is not discriminated against or put in a position of disadvantage because of the lack of adherence to the “accessibility strategy”;

20 COMPLAINT TO THE DISABILITY REDRESSAL COMMITTEE

a. A person with disability who is denied the services, or faces discrimination in accessing any services and the facilities shall be at liberty to make a complaint before the Disability Redressal Committee set up under section 40 within one year from the date of denial of the services or facilities or facing discrimination

b. A complaint shall be filed by any person, organizations working with persons

with disability, parents/family member of the person with disability or shall be taken cognizance by the Committee itself;

c. The Disability Redressal Committee shall dispose the complaint forthwith and

not later than 60 days from the receipt of the complaint; d. The Committee shall hear the Respondent before passing a final order in the

matter. e. The proceedings before the Committee shall be summary proceedings; f. For the purposes of disposal of the complaints, the Committee shall have the

same powers of a First Class Magistrate under the Code of Criminal Procedure.

21 APPEALS:

a. Any person aggrieved by the order passed by the Committee may prefer an appeal before the Sessions Courts within 90 days from the passing of the order of the Committee; Provided the Sessions court may condone the delay in filing the appeal if adequate reasons are furnished explaining the cause of delay in filing the appeal;


b. The session court shall dispose the appeal as per the procedure laid down under the Code of Criminal Procedure;


CHAPTER IV: LEGAL CAPACITY

22 PRESUMPTION: Subject to the provisions of the Indian Penal Code, every person

with disability is presumed to have the legal capacity to make and exercise all decisions according to his/her will.

23 DECISION MAKING:

a. In cases where a person with disabilities is of the opinion that he/she is unable to comprehend and/or retain the information that is required to make a decision, support may be sought by that person in arriving at that decision;

b. The person may contact the Disability Support Officer to seek such support

who shall ensure that the person gets support to enable him/her to arrive at a decision according to his/her will;

c. In cases where a person with disability is unable to secure the support he/she seeks, an application for seeking support shall be filed before the Disability Redressal Committee indicating the reasons for seeking support, the purpose and/or the duration of the same

d. The Committee shall dispose the application within seven days of receipt of it

and provide the applicant the support he/she requires either by directing an expert on the subject matter of the nature of the support or direct the Disability Determining Services to provide such support;

e. An appeal shall lie against the order passed under sub-section(d) above to

the Court of Sessions which can be filed within 60 days of passing of the order of the Committee

24 TOTAL SUPPORT

a. In extreme situations where it is felt that a person with disabilities is unable to comprehend and/or retain information to make a specific decision despite all support options being provided, total support for the said decision for a fixed period of time may be provided by the Committee;

b. Total support can be provided to person with disabilities when a person with

disabilities because of his/her impairment is determined to be making/exercising a decision that is likely to lead to permanent harm to self or others including loss of life of self or others.

c. Total support shall be provided for specific financial decisions where it is

seen that the persons with disability is exercising a decision which is likely to render him/her destitute;

d. In cases where total support is deemed fit to be provided to a person, the

assets of the person shall be made known to the Committee who shall determine usage of the same for the benefit of the person with disabilities;

e. No transaction relating to any of the assets of the person with disabilities to

whom total support is provided would be entered into unless the same is approved by the Committee;


f. In all cases where total support is provided, the Committee shall appoint a person to oversee the estate of the persons with disabilities as well as protection of rights of the persons with disabilities;

g. The person so appointed shall furnish quarterly reports on the status of the

estate as well as the status of the rights of the person with disabilities;

25 APPLICATION FOR PROVIDING TOTAL SUPPORT:

a. Any person, other than the person with disabilities, desiring to provide/seek support shall make an application before the Disability Protection officer explaining the circumstances under which support is sought/to be given and the duration of the same; (Explanation: For the purposes of this section “person” shall include an organization, a group of persons)

b. On receipt of such an application, the Disability protection officer shall review the same and forward it to the Committee and shall also seek the opinion of the Disability Determining Services who shall interview the person with disability for whom support is being sought to be provided and ensure that all mechanisms available under universal support has infact been provided to the persons with disabilities and give a certificate to the Committee with its recommendations;

c. The Committee shall pass an order after receiving the report of the Disability

Determining Services and after satisfying itself the merits of the nature and extent of the support asked for;

d. The Committee may provide support after examining the suitability of a

person to provide the support and after satisfying itself that there is no conflict of interests and that the person is qualified by way of experience to provide that support.

e. In cases where a medical emergency is demonstrated and any delay in

passing an order would be detrimental to the life of the person with disabilities, the Committee may pass an interim direction for treatment and also call a report from the Disability Determining Services;

f. If, after passing of the interim direction, the Committee receives a report from

the Disability Determining Services which indicates that there was infact no emergency and a false claim was made by the applicant, the Committee shall pass an order declaring the person seeking to provide as “incompetent to provide support” and direct the Disability Protection Officer to take appropriate steps to support the persons with disabilities;

g. The Committee shall also impose a fine of Rs.1 lakh for any application

falsely made seeking emergency medical support; h. Any support provided under this section shall be reviewed by the Committee

after the period of the support is concluded or once in three months whichever is earlier;

26 EMERGENCY MEDICAL SUPPORT

a. In cases where any person with disabilities is taken to a medical service provider with a complaint that the person with disabilities needs immediate medical attention and any delay would cause undue harm to the person himself or to others, emergency medical support may be provided without the formal order of the Disabilities Redressal Committee


Provided that a report of the same is made to the Disability Protection Officer within 24 hours of providing the necessary treatment who shall make an appropriate application to the Disabilities Redressal Committee;

b. Upon receipt of an application under sub-section (a), the Committee shall examine the report and pass such orders as may be required;

c. No order of admission in a hospital and in-patient care shall be passed for a

duration exceeding ………

27 STATUTORY APPEALS

a. In cases where a person with disabilities has been provided with total support under section 33 and emergency medical support under section 34, the Committee shall not later than seven days from the date of passing such an order refer the same to the Court of Sessions;

b. The sessions court shall treat the same as an appeal made to it on behalf of the person with disability and hear the same after appointing an expert and a lawyer to represent the interests of the persons with disability;

c. The sessions Court may alter or confirm the order passed by the Committee; d. The sessions court shall be at liberty to hear other persons claiming to have

interest in the subject matter before coming to a final conclusion in the appeal;

e. The Court shall ensure that the best interests of the persons with disability is

guaranteed and as far as possible the will of the person with disability would prevail;


CHAPTER V: PROTECTION OF VULNERABLE PERSONS WITH DISABILITIES

28 IDENTIFICATION OF THE VULNERABLE PERSONS

a. The Disability Equality Commission set up under section of the Act shall prescribe mechanisms for identification vulnerable persons with disability;

b. The Commission while prescribing mechanisms for identification of vulnerable

persons with disabilities shall take into account

i. The nature of vulnerability;

ii. Circumstances causing a person to become vulnerable;

iii. special situations that render a person with disabilities become

vulnerable;

iv. Degree of impairment;

c. i. A person with disabilities can make an application either himself/herself or

through a Disability Rights Advocate or any person acting on his/her behalf to the

Disability Determining Services to declare a person with disabilities as a

vulnerable person with disabilities;

ii. On an application made under clause (i) above, the Disability Determining

Services declare the applicant as a vulnerable person with disabilities either

permanently or for a specified period of time;

iii. The certificate issued by the Disability Determining services shall state if the

person with disability is a person with high support needs or person with a higher

degree of impairment;

d. Notwithstanding the provisions of the sub-section (a) and (b) above, the following shall automatically qualify to be identified as vulnerable persons with disabilities;

i. Persons living in institutions; ii. Persons with disabilities who are home bound; iii. Homeless persons iv. Persons with disabilities belonging to …… (we can add SC/ST?OBC

etc.) v. People living in extreme poverty; vi. Persons living in disaster affected areas; vii. Women and children in any of the above situations;

e. The appropriate government shall frame social security schemes to ensure that they are able to access the benefit of this legislation by making the process accessible

29 APPLICATION TO THE COMMITTEE

a. Any person aggrieved by the action of the Disability Determining Services shall, within 30 days from the date of the certification by the Disability Determining Services and not later than 90 days from the date of such certification, make an application to the Disability Redressal Committee;

b. Upon receipt of such application, the Committee shall hear the same after

giving notice to the Disability Determining Services; c. As far as possible, the Committee shall decide the application within 60 days

of receipt of the application;


iii. A person aggrieved by the decision of the Committee can apply to the sessions court within 60 days from the passing of the order under clause (iii) above;

iv. The Sessions Court shall dispose the application within four months from the date of filing of the appeal;

v. The Court shall give a hearing to the appellant before disposing the appeal;

30 MANDATORY RESERVATIONS FOR PERSONS WITHDISABILITIES WITH A

HIGH DEGREE OF IMPAIRMENT:

a. Establishments employing 50 or more persons that are fully owned and controlled by the Government, aided, fully or partly, shall set aside 7% of jobs within their establishments for persons with disabilities on the basis of degree of impairment;

b. Educational institutions that are fully owned, aided, fully or partly by the

Government shall set aside 7% of the total number of seats to persons with disabilities on the basis of degree of impairment;

c. The reservation shall be made in the following manner:

i. Blind and low vision 1.5% ii. Deaf and hearing impaired 1.5% iii. Orthopaedic impairment 1% iv. Cerebral palsy, mental retardation and autism 1% v. Mental illness 1% vi. Multiple disabilities and others 1%

Explanation: For the purposes of this section, persons with a high degree of impairment shall mean persons with an impairment determined to be 40% or more.

31 REVIEW

a. The Disability Equality Commission may, once in two years, review the

standards for determining a person with disabilities as a vulnerable person

with disabilities;

b. The Commission shall put up the reviewed standards in its website as soon as the same are decided;


CHAPTER VI: DISABILITY EQUALITY COMMISSION

32 ESTABLISHMENT OF THE COMMISSION:

a. The appropriate government shall within six months from the date of notification of this Act Constitute at the National Level a Commission called “Disability Equality Commission”;

b. The Commission shall comprise of one chairperson and 12 other

members; c. The office of the Commission shall be at Delhi;

33 APPOINTMENT OF CHAIRPERSON AND MEMBERS: The Appropriate government

shall, by notification appoint the Chairperson and other members in consultation with a selection committee constituted from amongst members of persons with disabilities.

34 TERM OF OFFICE AND CONDITIONS OF SERVICE OF CHAIRPERSON AND

MEMBERS:

a. The Chairperson and every Member shall hold office for a term of three years from the date of their appointment or the date on which he/she assumes office, whichever is later and the same may be extended for another term of three years if the selection committee under section 14 of the Act so recommends.

b. The chairperson or a Member shall not hold the office for more than two

terms; c. The chairperson and the Members shall not be eligible to continue in the

office if: i. They have crossed the age of …… years; ii. If they are charge-sheeted in a criminal case in which the sentence

may be seven years or more; iii. If they have been accused of any crime against persons with

disabilities; or, iv. If they are holding any other office and drawing remuneration for the

same;

35 QUALIFICATIONS,SALARY AND ALOWANCES OF CHAIRPERSON AND MEMBERS: The qualifications, salary and allowances payable to the chairperson and the members as well as other terms and conditions of service shall be prescribed in the rules;

36 REMOVAL FROM OFFICE: Subject to the provisions of sub-section ( c) of section

15, the Chairperson and the members may be removed from the office when it is found that :

a. The person has abuse the office which would render his/her continuance in

office detrimental to public interest; b. Remains absent from office for more than one month without obtaining a

formal leave of absence;


c. Takes up gainful employment outside the Commission and continues to hold the office; or

d. Formally joins any political party and acquires primary membership therein;

37 VACATION OF OFFICE BY CHAIRPERSON OR MEMBER:

a. If the Chairperson or any member ceases to hold the office either because of removal or voluntarily, the appropriate government shall make a fresh appointment for the same in consultation and on the recommendation of the selection committee within six months from the date the position becomes vacant;

b. Any act or proceedings before the Commission shall not be invalidated

merely by reason of the vacancy in the Commission;

38 MEMBER-SECRETARY,OFFICERS AND OTHER STAFFMEMBERS OF THE COMMISSION:

a. The appropriate government shall by notification appoint an officer not below

the rank of Additional Secretary to the Government of India as a Member Secretary of the Commission;

b. The Chairperson and Members of the Commission in consultation with the

Member-Secretary shall appoint “experts” to assist the Commission in the functioning of the Commission;

c. The appropriate government shall appoint such other officers and staff

members as may be necessary for efficient functioning of the Commission;

39 FUNCTIONS OF THE COMMISSION:

a. The Commission shall: i. act as an expert authority on all matters of disability and more

particularly those arising out of this Act; ii. develop mechanisms to provide support to persons with disabilities to

live within their own families or independently; iii. develop formal and informal mechanisms to provide support to

persons with disabilities to exercise their legal capacity; iv. promote measures for the care and protection of persons with

Disability in difficult circumstances in the event of the death of their parents/guardians/family member;

v. ensure non-discrimination and participation of women and children with disabilities;

vi. create licensing mechanisms for accessibility strategies; vii. Manage the “fund” and develop mechanisms for utilization of the fund

or the benefit of persons with disability; viii. Monitor the training of professionals, care givers, personnel and

other service providers for disability specific services till such time inclusive services are made fully available;

ix. Create and develop minimum standards in academic programs/courses/vocational training to facilitate inclusive services to persons with disabilities;

x. To promote and facilitate research to enhance the knowledge base to decrease the impact of impairment, challenge barriers and increase access and quality of services for persons with disabilities;


xi. To create ethical standard for research to ensure autonomy, dignity, protect privacy and to prevent exploitation of persons with disabilities;

xii. Monitor the Disability determining services; xiii. Prescribe curricula for the courses that have to be managed for

providing disability specific services that are inclusive in nature to persons with disabilities;

xiv. Prescribe qualification for a person to function as a professional in inclusive services;

xv. Associate with Universities, University Grants Commission and other accrediting agencies to review, evolve and develop courses for providing inclusive services in conformity with the accessibility strategy;

xvi. Create mechanisms to make available curricula and courses to increase access to higher education and professional courses to persons with disabilities;

xvii. Recognise and certify institutions developing products, tools, aids and equipment for persons with disabilities;

xviii. Conduct situational analysis and other development related studies specific to persons with disabilities and place the same before the Parliament every three years;

xix. To ensure inclusion of persons with disabilities in the census and other human development indices (change the terminology)

xx. To review and audit schemes, policies and other programs of the Government and make recommendations to increase access and enhance the benefits for persons with disabilities;

xxi. Promote, enable and support disability persons’ networks; xxii. To advocate and mobilize resources for realizing rights of the

persons with disabilities; xxiii. Any other function that the Commission may deem fit to advance/

promote the cause of the persons with disabilities

b. The Commission shall review its licensing mechanisms every year and circulate the same to all the Disability Redressal Committees;


CHAPTER VII: DISABILITY REDRESSAL COMMITTEE

40 ESTABLISHMENT OF THE COMMITTEE

a. Within six months from the date of notification of the act in the official gazette,

the appropriate government shall set up in every block one or more

Committees known as the Disability Redressal Committee;

b. The Committee shall consist of a Chairperson and four (optional) other members as the government may think fit to appoint of whom at least 50% should be persons with disabilities;

c. The qualifications of the Chairperson and the members shall be as

prescribed in the rules; d. The Committee shall function as a Bench of Magistrates and shall have all

the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate except powers to detain a person in custody;

41 POWERS OF THE COMMITTEE:

a. The Committee shall have the exclusive authority to hear and dispose cases relating to persons with disabilities;

42 PROCEDURE BEFORE THE COMMITTEE:

a. A person with disability or any person duly authorized by him/her may make an application before the Committee seeking one or more releifs under this Act.

b. Upon receipt of such complaint, the Committee shall assign the complaint to

a Disability Protection Officer who shall provide the necessary assistance to the person with disability who has made the application or on whose behalf the complaint is made in the conduct of the proceedings pertaining to the said complaint;

c. The Committee shall hear the application not later than three days from the

date of filing of the application; d. In cases where the applicant is able to show to the Committee that urgent

orders are required, the Committee shall take up the application on the same day it is filed;

e. The Committee shall hear all the sides before the Complaint is finally

disposed; f. The Committee, in addition to the support of the Disability Protection Officer,

either on its own or on the request of the applicant provide additional support to the applicant;

43 ORDERS THAT MAY BE PASSED BY THE COMMITTEE:

a. Upon hearing the applicant and the Respondent, the Committee may: i. allow the application as prayed for; ii. pass interim directions for the protection of the applicant; iii. appoint an expert to assist the persons with disability if the need

arises;


iv. award compensation for the damage caused; v. direct reinstatement in employment; vi. pass a restraint order; vii. pass an order for securing access, removal of barriers, provide

reasonable accommodation and to provide shelter; viii. direct admission in educational institutions; ix. impose fines; x. pass an order enabling a person with disability to secure a second

opinion in cases where he/she is in disagreement with the opinion given;

xi. Any other order that the Committee may deem fit and proper in the facts and circumstances of the case;

44 INTERIM EX-PARTE ORDERS:

The Committee shall have the powers to pass ex-parte interim orders in cases where it is shown to the Committee that grave and irreparable damage would be caused if an interim protection is not immediately granted; Provided that the operation of the ex-parte order shall not be extended beyond a period of fifteen days within which period the Committee shall hear the Respondent and confirm or alter the order.

45 REALISATION OF CASH COMPENSATION: a. In cases where compensation is ordered by the Committee under section

27(a) (iv), the said order shall be forwarded to the Disabilities Equality Commission by the Committee for the purposes of realization of the same;

b. Upon receipt of such order, the Commission shall, within 15 days of the

receipt of the order, transfer the same to the account of the Committee in order to transfer the same to the person in whose favour the order has been passed;

c. The Committee shall, within ten days after the amount is transferred to its

account, transfer the same to the name of the applicant to whom compensation has been ordered and hand over the same to him/her;

d. In cases where the applicant does not have a bank account, the Committee

shall direct the Disability Protection Officer to assist the person to secure a Bank account;


CHAPTER VIII: SUPPORT SERVICES

46 DISABILITY SUPPORT OFFICER:

a. The appropriate government shall within six months from the date of publication of the Act in the official gazette appoint for every panchayat/ward, a person to function as a Disability Support Officer;

b. The qualifications of the Disability Support Officer shall be as laid out in the

rules;

47 DUTIES OF DISABILITY SUPPORT OFFICER:

The Disability support officer shall:

a. Provide information about the services available under the Act to the persons residing in her/his jurisdiction;

b. Give assistance to secure benefits under the Act and the welfare schemes

that may be framed for the benefit of the persons with disability; c. Draft complaints on behalf of the persons with disability to be made before

the Committee; d. Maintain a list of all the care providers and provide the information to the

person with disabilities; e. Facilitate the formation of self help group of persons with disabilities; f. Create a membership of the persons with disabilities in the self help group to

enable them to access services; g. Conduct audits of barriers in access to services and mobility; h. Any other assistance that may be required by the persons with disabilities;

48 DISABILITY PROTECTION OFFICER:

a. The appropriate government shall by notification appoint for every Disabilities Redressal Committees, five or more persons to function as Disability Protection Officer;

b. As far as possible, the Disability Protection Officer shall be a person with

disabilities; c. The qualifications, remuneration and other terms and conditions of service

will be as prescribed in the rules;

49 DUTIES AND FUNCTIONS OF THE DISABILITY PROTECTION OFFICER:

It shall be the duty of the Disability Protection Officer: a. to assist the Disability Redressal Committee in discharge of its functions

under the Act; b. to provide support to the persons with disabilities in their complaints before

the Committee including making appropriate applications for legal aid, interim relief etc;


c. to provide information to the persons with disabilities about the authorities implementing the act as well as information about services available;

d. to maintain a list of service providers, experts, civil society organizations

working with persons with disabilities under the Act and provide such information to the persons with disabilities;

e. to co-ordinate with the Disability Determining Services and facilitate receipt of

report from them to the Committee; f. to pursue with the compliance of the orders passed by the Committee and

report its non-compliance if any; g. comply with the orders passed by the Committee; h. maintain record of assistance provided;

50 DISABILITY DETERMINING SERVICES:

a. The appropriate government shall, appoint a body of professionals experienced and qualified in working with persons with disabilities, providing treatment to persons with disabilities, providing therapeutic assistance for not less than 10 years for persons with disabilities, experienced in developing specialized equipments for persons with disabilities, persons providing habilitation and re-habilitation services, a person with disability with experience of advocating for persons with disabilities, being a parent of a person with disabilities who is working on the issue of rights of persons with disabilities, a service provider who has been working on the issue of barriers faced by persons with disabilities to function as Disability Determining Services;

b. There shall be one or more Disability Determining Services in every District; c. The composition of the persons in each District shall not be less then ten

persons;

51 DUTIES OF DISABILITY DETERMIINING SERVICES:

a. The Disability Determining Services shall: i. Either on the direction of the Disability Redressal Committee or on an

application made to them by a person with disability or some person acting on behalf of the person with disability, assess the functioning of or get examined the person and determine the degree of impairment of the person with disability and shall provide a certificate accordingly;

ii. Issue a degree of impairment certificate upon expert assessment report provided by an empanelled health/rehabilitation professional;

iii. The Services shall determine if the disability is a medical impairment that can addressed/mitigated with the support of external aids and if external aids are not of any assistance;

iv. Issue licences to establishments/service providers certifying that they are adhering to the accessibility strategy;

v. Certify courses that are created for the purposes of providing support to persons with disabilities as per the Disabilities Equality Commission;

vi. Certify professionals to be working with inclusive disability specific services as laid down by the Disabilities Equality Commission;


vii. Inspect premises which are developing and manufacturing aids and equipment for the utilisation by persons with disabilities to verify compliance with the accessibility strategy;

viii. Provide support and expert assistance to the Disability Redressal Committee as and when so directed;

ix. Recommend the cancellation of licences granted under (iii) above in cases where it is found that the establishment is violating any of the terms of the license;

x. De-recognise certification issued under (i), (iv), (v) above in cases where the same has been obtained through misrepresentation and/or the person who has been certified has misused the same;

xi. Report to the Disability Redressal Committee on compliance of the accessibility strategy;

xii. Create a first response mechanism who shall be available to respond to calls of disabled people in difficult circumstances/emergent situations/ high support needs;


CHAPTER IX: SAFE LIVING OPTIONS

52 LIVING WITH FAMILIES

a. Subject to section 42 of the act, family shall be the primary unit to provide care and support and members of the families of the person with disabilities shall provide the same;

b. In cases where families are not in a position to provide for the daily care

needs of the persons with disabilities, such support may be sought by making an application before the Disability Support Officer;

c. The Disability Support officer, on receipt of such an application shall conduct

a home study in the prescribed format and make her recommendations to the Disability Redressal Committee in the prescribed format as per the schedule

d. The Disability support officer will be at liberty to make the assessment in

consultation with the self help groups or a member of the civil society organisation;

e. The Disability Redressal Committee shall then pass an order directing the

appropriate government to provide support as per the recommendations of the Disability Support Officer;

f. In cases where, the family or the persons with disabilities is not satisfied with

the recommendations of the Disability Support Officer, an application shall be filed directly before the Disability Redressal Committee

53 SUPPORTED HOMES

a. The appropriate government shall, in consultation with the Disability Determining Services identify/create one or more residential spaces which will be sheltered homes for vulnerable persons with disabilities having a capacity to house ten persons for every population of one lakh;

b. The said sheltered home shall have facilities for free access, hygienic

accommodation, facilities for recreation and access to care givers; c. Every resident shall have facilities for educational or vocational training

outside the home, and shall be provided support for accessing the same; d. As far as possible these homes shall be managed by the residents of the

home with support and supervision by the Disability Support Officer; e. Every home shall be visited by the professionals empanelled in the Disability

Determining Services to review the needs of the residents of the home and also to determine their need to continue to reside in the same;

54 COMMUNITY SUPPORTED LIVING

a. Within the jurisdiction of every panchayat/ward, every panchayat/councilor in consultation with and on the recommendation of persons with disabilities, shall develop a support system for the persons with disability within their jurisdiction which would provide for a range of in-situ support systems to the persons with disability;

b. It shall be open to parents of persons with disabilities, agencies having

experience in working with persons with disabilities to make appropriate recommendations, propose and/or participate in the development of support systems;


c. Such a support system shall be submitted to the Disability redressal

Committee before its implementation within 30 days of its finalisation; d. The Disability Redressal Committee, upon receipt of such a request for

approval, may seek the opinion of the Disability Determining Services to verify its feasibility and upon being satisfied by the recommendations of the Disability Determining Services, shall pass an order allowing such plan and direct that the same shall be implemented within 6 months; Provided that the applicant may seek extension of time for its implementation after explaining the reasons for seeking the same;

e. The Committee shall also cause inspection of the program as and when it deems fit;

55 APPLICATION TO RESIDE IN SUPPORTED HOMES

a. On an application made by the person with disability or anybody acting on his/her behalf to the Committee, a space in a sheltered home may be assigned to a person with disability ; Provided that before assigning a space, the Committee shall satisfy itself:

i. the need to move a person with disabilities to the sheltered home; ii. the resources that the person with disabilities can access being

inadequate to secure an home for independent living; iii. the family members are not denying the person with disabilities the

right to reside in a home which the person has legal rights to live in; or

iv. the community support system is not adequate to provide appropriate housing to the person;

v. the special medical needs if any of the person; or vi. any other factor that is critical for the well being and safety of the

person;

b. In cases of persons needing total support or in cases of persons found in situations of neglect and/or abuse, the Disability Protection Officer or the Committee shall take appropriate steps to provide the person with a home or a space in a sheltered home;

c. Any order of residence in a home, shall not exceed a period of one year

except in cases where the person is not in a position to get shelter in any other place;

d. In cases where the Committee finds that the family of the person, despite

having resources is deliberately abandoning the person and denying the person of his/her rights, the Committee shall provide temporary residence for the safety of the person and call for a report from the Disability Protection Officer about the status of the home of the person with Disability who shall forward the report to the Committee within one week of the passing of the order indicating the actual status in the home and also indicating if the family can provide accommodation to the person;

e. Upon receipt of the report of the Disability Protection Officer, the Committee

shall either direct the family of the persons with disability to provide safe shelter to the person or assign a home to the person with disability;


56 APPEALS

a. Any person aggrieved by an order passed by the Committee under section 44 may prefer an appeal to the Sessions Court within 60 days of the passing of the order;

b. Upon filing of the appeal, the Court shall, after hearing both the parties, pass

an order either dismissing the appeal or reversing the order of the Committee;

c. The sessions court shall also have the power to enhance the benefits to the

persons with disability in cases where the Court deems fit; d. Before passing the order, the Sessions Court shall have the power to seek

the opinion of the Disability Determining Services or the Disability Protection Officer concerned;


CHAPTER X: MISCELLANEOUS

57 FUND

a. On and from the date of the constitution of the Disabilities Equality Commission, the amounts lying with the “national Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability” under section 11 of the national Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 and the amount lying with the ………. Pursuant to the orders passed by the Supreme Court in the case of Indian Banks Association and M/S Devkala Consultancy service and others shall be transferred to the Disabilities Equality Commission;

b. The said amount transferred shall be kept in a separate account by the

Commission and managed for the purposes of the benefits to be provided under this Act as directed by the Disability Redressal Committee;

c. The appropriate government shall review the amounts lying in the corpus

every three years and increase the same by 5% on the basis of utilization; d. A statement of account indicating the utilization of the Fund shall be placed

before both the houses of the parliament every year; 58 DELEGATION OF POWERS: The appropriate government may, by the general

order, direct that any power exercisable by it under this Act shall, in such circumstances and under such conditions, if any, as may be prescribed in the order, be exercisable also by an officer subordinate to the Government;

59 PROTECTION OF ACTION TAKEN IN GOOD FAITH: No suit or legal proceedings

shall lie against the Appropriate Government or any officer and staff appointed in pursuance of this Act or of any rules or order made there under;

60 POWER TO MAKE RULES:

a. The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

b. In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: -

(i) he term of office of the members of the Committee and the

manner in which such member may resign under section ……..; (ii) the time of the meeting of the Committee and the rules of

procedure in regard to the transaction of business at its meeting under section ……;

(iii) the qualification of the Chairperson and members of the Committee, and the tenure for which they may be appointed under section …….;

(iv) the time of the meetings of the Committee and the rules of procedure in regard to the transaction of business at its meeting under section …….;

(v) the manner of making the report to the Committee and the manner of providing support to the person with disability;

(vi) the management of community centres including the standards and nature of services to be provided by them, and the manner in which certification of a strategy may be granted or withdrawn under section ……..;

(vii) appointment of inspection committees their tenure and purposes for which inspection committees may be appointed and such other matters as are referred to in section ……..;


(viii) facilities to be provided by the shelter homes under ……..; (ix) matter relating to after-care organization under section ………; (x) for ensuring effective linkages between various agencies for

facilitating rehabilitation and social integration; (xi) the purposes and the manner in which the Fund shall be

administered; (xii) any other matter which is required to be, or may be prescribed.

c. Every rule made by the appropriate government under this Act shall be laid, as soon as may be after it is made, before the legislation;

61 REPEAL AND SAVINGS: (a) The Persons with Disabilities Act, 1995, the Rehabilitation Council of India Act,

1992, the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 and the Mental Health Act, 1987 are hereby repealed;

(b) Notwithstanding such repeal, anything done or any action taken under the said Act

shall be deemed to have been done or taken under the corresponding provisions of this Act

62 POWER TO REMOVE DIFFICULTIES: (a) If any difficulty arises in giving effect to the provisions of this Act, the Central

Government may, by order, not inconsistent with the provisions of this Act, remove such difficulty; Provided that no such order shall be made after the expiry of a period of two years from the Commencement of this Act;

(b) However, order made under the section shall be laid, as soon as it may be made, before each House of Parliament;

Documents

DRAFT OF THE RIGHTS OF THE PERSONS WITH DISABILITIES 2012dnis.org › DRG PROPOSED DRAFT RPD'12.pdf · DRAFT OF THE RIGHTS OF THE PERSONS WITH DISABILITIES By DRG 3 PREAMBLE The Constitution