[AI] Guardianship system for persons with disabilities to change

avinash shahi shahi88avinash at gmail.com
Mon Oct 1 00:23:39 EDT 2012

Ministry of Social Justice and Empowerment has come up with fresh
draft legislation

In the wake of sharp criticism from disability groups for failing to
draft a comprehensive Bill that will give full rights to a disabled
person, the Ministry of Social Justice and Empowerment has come up
with a fresh draft legislation that seeks to do away with the plenary
guardianship system — whereby a guardian substitutes for the person
with disability before the law and takes all legally binding decisions
for him or her, and replace it with a limited guardianship system.

Under the limited guardianship system, decisions will be made jointly
on mutual understanding and trust between the guardian and the person
with disability.

The draft of the Rights of the Persons with Disabilities Bill, 2012
that has been put up on the Ministry website also seeks to ensure that
all necessary steps are taken by the government to secure for persons
with disabilities individual autonomy, including the freedom to make
one’s own choices, and independence of persons; non-discrimination;
full and effective participation and inclusion in society; equality of
opportunity and equality between men and women, among other things.

Persons with disabilities would enjoy legal capacity on an equal basis
with others in all aspects of life and have the right to equal
recognition everywhere as persons before the law, the draft law says.
It seeks to ensure that any disqualification on the grounds of
disability prescribed in any legislation, rule, notification, order,
bye-law, regulation, custom or practice that has the effect of
depriving any person with disability of legal capacity shall not be
legally enforceable from the date of enforcement of the proposed Act.

All persons with disabilities have the right, on an equal basis with
others, to own or inherit property; control their financial affairs;
obtain access to bank loans, mortgages and other forms of financial
credit, and not to be arbitrarily deprived of their property.

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. When a conflict of
interest arises between a person providing support and a person with
disability in a particular financial, property or other economic
transaction, then such supporting person shall abstain from providing
support to the person with disability in that transaction, the draft

All persons with disabilities shall have the right to live in the
community with choices equal to others. The appropriate government and
local authorities shall take all appropriate administrative and other
measures to protect persons with disabilities from being subjected to
torture, cruel, inhuman or degrading treatment or punishment.

Importantly, the Bill bars any person with disability to be subject to
any medical procedure that leads to or could lead to infertility
without their free and informed consent. It proposes hefty fine and
imprisonment up to 10 years for violation. All establishments will
also provide medical and life insurance to their employees with
disabilities on an equal basis with others.

Right to free education

The Bill says that every child with benchmark disability, of the age
of 6 to 18, shall have the right to free education; and all government
institutions of higher education and all higher education institutions
receiving aid from the government shall reserve up to 5 per cent of
the total seats in each course for persons with benchmark
disabilities, which include physical, and mental disabilities and
leprosy cured.

The Bill recommends the setting up of a National Commission for
Persons with Disabilities to formulate regulations that lay down the
standards of accessibility for the physical environment,
transportation, information and communications, including appropriate
technologies and systems. Similar bodies will be set up at the State
and district-levels. The Commission will take up issues that violate
the provisions of the Act.

Most of these provisions were in the Bill drafted by a committee
chaired by Sudha Kaul but it was criticised for its inadequacies. The
committee was constituted in April 2010 and it came up with a draft
Bill on June 2011. The Disabled Rights Groups has also come up with
its own draft of a law that seeks to repeal all existing four laws
while the official draft replaces only the Persons with Disabilities
(Equal Opportunity Protection of Rights and Full Participation) Act of

•It seeks to ensure for persons with disabilities individual autonomy

Avinash Shahi
MPhil Research Learner
Centre for the Study of Law and Governance
Jawaharlal Nehru University
New Delhi India

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