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Supporting the Participation of ALL : The New Law on Rights of Persons with disabilities

December 22, 2010
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Filed under: Legal Capacity,New Law

by Ajey Sangai

India ratified the United Nations Convention on the Rights of Persons with Disability on October 1, 2007 without any reservation. This was a commitment not only to the UN, but to 22-million strong community of people with disabilities in India.Social prejudices with legal reinforcements have institutionalised incapacity for persons with disability; consequently CRPD, like CEDAW explicitly guarantees legal capacity. Persons have legal capacity when the law recognises them as possessing rights and obligations and grants the freedom to exercise those rights with autonomy and dignity within the four corners of the law.

The denial of legal capacity robs a person of the right to equal recognition before the law, and the ability to defend and enjoy other human rights. There is denial of legal capacity when blind persons are not allowed full banking freedoms;; persons with psycho-social disability are forcibly hospitalised or sent to institutions where electrical and chemical intrusions are made to their body without any consent. If legal capacity is not recognized then a person with disability can neither move court against the deprivation of rights nor participate in law-making processes. This absence results in their interests not being adequately represented. However, the Committee established by the Social Justice Ministry to draft a UNCRPD compliant law, aims to set right this wrong.

The working draft of this new legislation is out and provides for legal capacity as follows : it recognizes all persons with disabilities as persons before the law and guarantees to all the right to exercise legal capacity in all aspects of life.

In making choices or decisions, people often require the support of others. This support may be in the form of a person or an instrument or simply an arrangement. It can be general or for a specific task. For example, most people require a hairdresser to cut hair. The hairdresser may inform the client about hair-styles and hair-treatment with their respective prices to help /him or her to make a choice. After the customer makes a decision and conveys it, the hairdresser has to execute it. Whilst the hairdresser is in charge of the execution; the choice of style, treatment and even hairdresser remains with the client.

The working draft guarantees to persons with disabilities the right to take support. This support has to be provided whilst respecting the autonomy of the user. Accessing support, therefore, does not render the existence of legal capacity questionable. Thus for example in ‘Kaun Banega Crorepati’ participants have the option of using various ‘lifelines’ or simply rely on their own knowledge, intuition, or sometimes guess-work

If with no good reason, the hairdresser refuses to guide or misguides or acts contrary to a client’s directions or the KBC host denies a ‘lifeline’ or refuses to ‘lock’ participant’s answer, the client and the participant can take action. A person is entitled to legal remedy for arbitrary denial and abuse of support in exercising one’s legal capacity. The working draft extends the same right to persons with disabilities along with safeguards to prevent abuse of support.

If the hairdresser alone decides the style, cosmetics and treatment of the customer’s hair or the KBC host plays for the participant, ‘locks’ the options or uses the lifelines as he likes and quits the game in the way and manner he thinks fine! This would not be that client’s hair-style or the participant’s game as they had no choice or control over it. Similarly, it would no longer remain one’s own life, if someone else makes the decisions; controls the assets, relationships, transactions. Attribution of incapacity destroys personhood and rights would then hold no meaning. This is what plenary guardianship does to a person with disability which is why the draft abolishes it. The draft also seeks to help those who have been living under guardianship to exit it and set up their own support systems through mediation and conciliation. These systems of support could vary in depth and intensity depending upon the needs of the person with disabilities. The working draft seeks to end the exclusion of persons with disabilities and aims to bring inclusion with engagement.

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