Like domestic violence, a large proportion of the exploitation faced by persons with disabilities takes place in the private sphere. Apart from happening within the family, schools, colleges, workplaces and other, physically enclosed, institutional spaces become the theatres of both subtle and brutal injustice, which is nevertheless ‘social’ in nature. So from a human rights perpective, defining disability, and then legislating for the disabled, are as difficult as the law’s relationship with domestic violence. So, the social justice ministry’s draft rights of persons with disabilities bill, 2012, will have to tread the razor’s edge of the issue of guardianship with caution, if it has to replace the existing “plenary” guardianship (which deprives them of legal capacity) with a “limited” guardianship. The latter invests a disabled person with considerably more legal capacity, but empowers the guardian to intervene in the actual exercising of legal capacity to such an extent that, in effect, the disabled person’s will to decide remains dependent on the guardian’s will. This is both the result of a confusing use of language and a more fundamental confusion in the ‘able’ world’s attitude to, and perception of, persons with disabilities and the extent to which the latter can decide what is, or is not, good for them.
This ambiguity will prevent the new law from making a real difference even if the punitive measures drafted in the bill are stricter against the violation of the rights of the disabled. Here, too, there is a hierarchy of offences, judging from the punishments stipulated for them. Sexual exploitation will be punished with imprisonment for six years and a fine, while the denial of food and fluids with six months to three years in jail and a fine. Laws are drafted in a realm of the ideal that is far removed from the real worlds in which they are — or are not — implemented. Persons with disabilities will become legally more “capable” only when the essential infrastructures of everyday life are just and enabling in actuality.