Following is the text of the letter dated May 16 addressed by CPI(M) General Secretary and Member of Parliament, Shri to the Minister for Social Justice & Empowerment Shri Thawar Chand Gehlot expressing concern over the manner in which rules are being framed for the Rights of Persons with Disabilities Act.
Dear Shri Gehlot ji,
You will recall that in the 2016 winter session of parliament whereas no other legislative business could be considered, it was only the Rights of Persons with Disabilities Bill that was taken up and passed in both houses after a debate. Members cutting across party lines were unanimous in wanting to ensure that the Bill for which persons with disabilities were waiting for nearly a decade since the country signed the United Nations Convention on Rights of Persons with Disabilities, was passed without any further delay.
You will also recall that participating in the debate in the Rajya Sabha I had sought to press for certain specific amendments that I had moved.
One of these pertained to Section 3, sub-section 3 of the Bill which says “No person with disability shall be discriminated on the ground of disability, unless it is shown that the impunged act or omission is a proportionate means of achieving a legitimate aim”. I had contended that a legislation that is supposed to be anti-discriminatory cannot contain a provision that legitimizes discrimination and had hence sought it to replace it with: “No person with disability shall be discriminated on the grounds of disability”.
In response you had given an assurance on the floor of the house that these will be taken care of while the rules are being framed. Given this solemn assurance and the mood of the house I did not press for a division.
However, having read the Gazette Notification of April 21, 2016 of the Department of Empowerment of Persons with Disabilities publishing the draft rules being framed under the Act, I was surprised that these do not effectively ensure compliance of the assurance that had been given by you. While the provision in the rules that sub-section (3) of Section 3 of the Act will not be “misused” is welcome, this by itself does not provide adequate protection. While what would constitute “legitimate aim” has nowhere been defined in the Act, even the onus of proving that the act was not “legitimate” rests solely on the aggrieved person. The remedy of approaching the Chief Commissioner or State Commissioner of persons with disabilities, you will appreciate will put unnecessary burden on the aggrieved person. It goes without saying that it should be the responsibility of the concerned establishment to demonstrate beyond reasonable doubt that the said act or omission is indeed for achieving a “legitimate aim” and not the duty of the aggrieved person to prove otherwise.
May I prevail upon you to ensure that the assurance given by you on the floor of the house is abided in letter and spirit.
Besides, I am informed that the representation from the disability sector in the committee constituted to frame the rules was inadequate. Given the fact that now several new disabilities have been accorded recognition, it would have been in the fitness of things if more representation had been there. There have also been complaints that the suggestions made by various people from the sector have not been seriously considered.
Since this pertains to framing of rules under a law assuring certain rights to one of the most marginalized sections of our society, I would urge upon you to hold consultations involving all stakeholders at both the state and national level before the rules are finalized. This would be in the true spirit of the assurances you had given in the House.
Shri Thawar Chand Gehlot
Minister for Social Justice & Empowerment
Government of India