Present position of the Center for Advocacy in Mental Health, Pune, on the new proposed disability legislations

 

The Indian Disability Bill was scheduled to go before the Parliament this winter, but did not. This has led to a national advocacy by the disability rights movement in India at the moment, demanding the Government to table the Bill. However, earlier on, in November 2013, the Mental Health Care Bill was not only scheduled, but was in fact tabled in the winter session. The Indian disability movement remained completely silent about this Bill. This is a curious development in Indian disability advocacy that requires to be understood, before a global response can be made on the Indian situation with respect to harmonizing the disability laws vis a viz the UNCRPD.

Persons with psychosocial disabilities (users and survivors of psychiatry) have raised critiques of the extant Mental Health Act of 1987, as well as the new proposed Mental Health Care Bill of 2012, since the ratification of the CRPD in 2007. From 2009-2012, the small group of users and survivors, have worked hard to bring awareness to the cross disability movement about our issues with the legislations, and have contributed to the intellectual milieu within which disabled people’s advocacy was constructed. In this time, we received unstinting support from the Disabled Rights Group, and National Disability network, in New Delhi, and various other associated state level and national level disability networks. The staunchest support from the national cross disability movement came in the form of a public protest held before the Ministry of Health and Family Welfare early in 2013, when the proposed Bill was scheduled to go before the Cabinet. The disability movement advocated strongly that all rights of all persons with disabilities should be covered by a single comprehensive law.

Particularly, together we advocated that, ‘special laws’ such as MHC Bill and National Trust Act Amendment, will continue to segregate and exclude people, and must not be allowed to pass; and that our rights should also be included in the mother disability law. The national disability movement supported a study of over 2000 national laws, and through this process, we learnt that, full legal capacity was a single most important right that will procure and ensure all other rights, not only for persons with psychosocial disabilities, but for all persons with disabilities.

So it is a curious fact that the positive, and collaborative advocacy history is now over taken by single point advocacy for the Rights of Persons with Disabilities Bill, without address of the MHC Bill which is also lying in the Parliament alongside, even a notch ahead of the RPD Bill. By its silence, the Indian disability movement has, this winter, sent out a strong message to groups of users and survivors, that it is about time to race ahead and secure MAXIMUM rights for MAXIMUM people with disabilities; and lay to rest the original inclusive concern about ALL rights for ALL persons with disabilities. Politically speaking, this approach, particularly in the context of an uncertain government which is soon coming to the end of its term, is understandable.

Also, the RPD Bill is a very important step in acquiring the rights of persons with disabilities compared to the extant ‘Persons with Disabilities Act of 1995’. The said bill covers comprehensively all rights, and some say, even more than what are the obligations under the CRPD. CAMH, Pune, would agree with this overall assessment so far as what it offers persons with disabilities, and infact, all people of the large country of India who may be in vulnerable situations. The RPD Bill has got some excellent features for persons with disabilities in general, certain civil political rights granted in law like never before in any legislation, special or common.

However, the bill introduces the notion of ‘limited guardianship’. We may have a detailed and enduring discussion on those provisions, and indeed, we have had many of those in India with not only the law drafters, but also the disability movement. In effect, the introduction of this provision shows the political success of parents’ organizations such as Parivaar, Action for Autism, ACMI along with psychiatric / professional organisations, who, in the very last stages of the Bill brought in guardianship provisions into a comprehensive rights law. In a country where guardianship is at the foundation of family contracts and socio economic relationships, all future such arrangements are more likely to be modelled on existing template of plenary guardianships: That is our major concern.

Further, it is unprecedented, that guardianship provision is found within a comprehensive human rights law: It is usually found in the traditional common law for guardianship, or in the special laws such as mental health law or National Trust law. This inclusion within a rights law for all persons with disabilities will likely result in guardianship arrangements being applied on all persons with disabilities. Indeed, in the contest for inclusion of this provision, certain groups of people with physical disabilities, particularly the blind, advocated that the guardianship provision in the new law should specify that only those people with mental and psychosocial disabilities shall be covered under guardianship arrangements; and that, the provision shall not be applied on the blind. Those are the sentiments of segments of the disability movement in India.

More concerning is the fact that, the last version of the RPD Bill, refers directly to the Mental Health Care Bill in the context of persons with psychosocial disabilities. This reference needed a serious contest collaboratively by the cross disability movement, which did not happen. People in the cross disability movement may have considered that the MHC Bill is of relevance only to us, and therefore ‘our’ fight. However, the legal incapacity regime in India is all inclusive of all persons with disabilities, either by explicit provision or by case law. It is therefore highly significant that those incapacity provisions may apply in tandem with mental health legislation, to impact lives of all persons with disabilities and the deprivation of their liberty on the basis of disability. This important point is being missed by the disability movement in their silence to the MHC Bill.

In the way law is now organized for persons with disabilities, it seems so, that the RPD Bill will cover rights of persons with disabilities in general; and with the deprivatory provision on limiting capacity for persons with disabilities; while, the RPD Bill refers explicitly to Mental health care Bill for covering ‘rights’ of persons with psychosocial disabilities, viz. institutionalisation. Therefore, we do not foresee a regime of CRPD compliance or inclusion for ourselves; nor do we see a regime of self determination or community living for other persons with disabilities.

Considering that MHC Bill is a bill which we consider to be far more deprivatory than the previous version of mental health legislations, and considering that the disability movement has been so far silent in the last critical phase of ‘push’, the more politically grounded users and survivors of psychiatry and persons with psychosocial disabilities in India have largely withdrawn from public advocacy in the country; and are neither supporting the MHC Bill nor are we supporting the RPD Bill. We strongly feel that advocacy for the one cannot go without advocacy against the other. More importantly, we not only feel but ‘know’ from emerging new case law, that incapacity provisions will over time, water down all rights for all persons with disabilities in India. At this point, people with psychosocial disabilities and users and survivors of psychiatry are nowhere in the picture, within the national advocacy movements within disabilities. Parents groups such as Action for Autism or professional groups such as AADI are once again occupying our space within the disability movement as above. It is once again a movement of people with physical disabilities, with a smattering of parents or professional care givers speaking for us.

Not being legally allowed to organize as groups, the national disability movement would be confident of not facing any political pressure from a nearly non-existing community of persons with psycho-social disabilities. We on the other hand, will use this time to recover and strengthen our local practices and community support systems, while continuing to build our faith in the disability movement. After all, the Indian national cross disability movement and its leadership went the farthest and the longest distance, in advocating for full legal capacity, compared to other efforts in the region. And for that, we are grateful.

Bhargavi Davar

Bapu Trust, Pune.

12-01-2014

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