New Delhi, Sept. 29: Guardians and caregivers of people with disabilities can be sent to jail if they take any decisions regarding their wards without consulting them, according to the draft of a new law the social justice ministry is working on.
Under the existing 1995 law, which the ministry plans to replace, “plenary guardians” can take all decisions on behalf of their wards.
The disabled person has no say in any matter regarding his or her health, money, holidays or even the right to produce children.
The draft Rights of Persons with Disabilities Bill, 2012, which plans to give people with disabilities limited legal capacity, seeks to do away with the system of plenary guardians.
If it becomes a law, all such guardians will have “limited guardianship”, which means they cannot take any decision regarding their wards without consulting them.
“All limited guardians shall act in close consultation with the person with disability to arrive at legally binding decisions,” says the draft bill, now under consultation.
The draft, which has also added the term “caregiver”, says such persons cannot decide on any medical procedure on their wards without their consent.
Anyone who facilitates, or negligently fails to prevent such medical procedure from being performed, can be jailed for up to five years. (See chart)
Activists who work with people with disabilities said the draft bill was a big “step forward” towards harmonising with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). India is a signatory to the convention.
“The reason why this law is a new law and not an amendment is because the 1995 law is redundant. The UNCRPD states that all persons should be given legal capacity regardless of disability,” said Poonam Natarajan, chairperson, National Trust, an organisation set up under the National Trust Act, 1999 (for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities).
Under this act, every district should have a committee headed by the district collector to help disabled people who have crossed the age of 18 to choose a guardian.
The guardian could be a parent, siblings, friends, relatives or even neighbours.
According to the 1999 act, Natarajan said, some people with disabilities cannot exercise legal capacity on a permanent basis. So the act, she added, called for guardians to “facilitate” the exercise of legal capacity in relation to contractual obligations. “But this has been fraught with problems with many guardians, including parents and siblings, exploiting their wards.”
Some activists, however, said the draft bill was “confusing”.
“It appears that unless the limited guardian also agrees with a decision, no decision can be made by the person with disability,” said Amba Salelkar, of the Inclusive Planet Centre for Disability Law and Policy, Chennai, in an article on the draft legislation.