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Published : June 22, 2011 | Author : sankalpkapoor
Category : Yet Another Category | Total Views : 4688 | Rating :

  
sankalpkapoor
Sankalp Kapoor, 2nd year, Dr.Ram Manohar Lohiya National Law University,Lucknow.
 

Are the Indian Disability Laws just a sham?

What a blind person needs is not a teacher but another self”, these words by Helen Keller shows the real craving of a disabled individual. In recent times there has been a paradigm shift in the views about the disabled individuals that it is not just the physical impairment that results in a disability rather it is caused due to a result of interaction between the societal barriers and the impairment. Till recently people suffering with a weak noesis or any other physical abnormality were called ‘handicapped’ or ‘physically handicapped’ but nowadays these expressions being redundant are rejected as they over emphasise the medical aspects of the disability ignoring the wider social needs.

Historically society has tended to isolate and segregate individuals with disabilities and regarded them as those endowed naturally skimp, despite some improvements such discrimination continues to be a serious and pervasive social problem. Even the constitution of India which has an extensive and strong set of fundamental rights does not cover ‘disability’ as a prohibited ground of discrimination. Nor are the persons with disability, a category for which affirmative action is mandated by the Constitution. The only place in the Constitution, where disability is refereed to and the responsibility of the State laid out is Art.41, which is a Directive Principle of State Policy. Art 41 directs the State to make effective provisions for securing the right to work, education and public assistance in cases of unemployment, old age, sickness and disablement, within the limits of its economic capacity and development1.

In India the disabled continue to be neglected and marginalized with the onus of care on the family rather than the society. India needs to make a shift from medical model of intervention to community based rehabilitation model for such individuals. According to Project Integrated Education for Disabled (PIED) nearly 2.5% of school age children have disability of some or other kind, whereas Census 2001 projects the number of disabled individuals in India as nearly 2.9%. Moreover, the National Sample Survey Organisation (NSSO) puts the figure of handicapped Indians as nearly 100 million. With such a high number of Indians suffering from one or more kind of disabilities there is an uphill task before the Parliament, State legislatures and the Judiciary to decrease the hiatus between the society and disabled individuals with better laws and their implementation respectively.

India currently has four different laws that pertain to people with disabilities. These laws include:
*The Mental Health Act of 1987,
* the Rehabilitation Council of India Act of 1992,

*The Persons with Disabilities Act of 1995, and
* The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act of 1999.

The PWD Act 1995 is regarded as the principle and the most composite legislation concerning the PWD’s. This Legislation tries to treats disability as a civil right and focuses on the integration of PWD’s in societal mainstream. The Act addresses seven categories of impairment, which are defined as ‘disability’ they are, blindness, low vision, leprosy cured, hearing impairment, locomotor disabilities, mental illness and mental retardation2. In addition, the Act defines a ‘person with disability’ as a person who has at least 40% of any of the above impairments3.However; there is an absence of a precise definition so as to reflect the social dimensions of the disability. Though now, on the world platform the apprehension of disability being a medical problem is substituted with social problem. Disability may be usefully defined as:

“…the loss or limitation of opportunities that prevents people who have impairments from taking part in normal life of the community on an equal level with others due to physical or social barriers.”4

Such a broad definition may encompass wide ranging nature of disabilities from illness affecting thought process to a total or partial absence of bodily or mental functions. In these times of judicial activism Indian courts have played a pivotal role and have substantially contributed in inclusion of disabled people in the mainstream of the society. The apex court in few instances has also ventured to take a suo motu action to alleviate the suffering of PWD’s in India. In Chandan kumar bainik Vs State of West Bengal5 the Supreme Court intervened in order to provide respite to mentally challenged inmates of a hospital in hoogli district who were chained by the hospital administration to control their unruly and violent behaviour. The apex court noted such behaviour of the hospital administration as the main cause of augmenting mental problems of the asylum inmates. In the case of Javed Abidi Vs Union of India6 Supreme Court refused the argument of the State that it did not have sufficient economic means to implement the provisions of the Act, relating to accessibility. The Court observed that while economic capacity was a germane consideration, it could not be used to thwart the spirit and object of the Act. This is an important decision because despite its plea of poor economic conditions, the Indian Airlines was directed to provide concessions for passengers suffering from locomotor disability7.

To give another instance of the creative role played by the judiciary, one of the factors ailing the Indian legal system is that it takes several years to reach the final resolution of the cases. Thus in several cases, while the case came up for hearing after the coming into effect of the PWD Act, the incident giving rise to the case itself had occurred before the Act came into being. In such cases, the State usually argued that the provisions of the PWD Act could not be relied upon, since that would amount to giving retrospective effect to the law. In a number of judgments, the courts have rejected this argument and have justified the retrospective application of the law on the grounds that: (a) beneficiary legislations such as the PWD Act, addressing a vulnerable group should be interpreted liberally8 and (b) that the principles that inform the Act have always been there as part of the Constitutional scheme, particularly Art. 21 (Right to life) 9. In a couple of recent judgments, the courts have favored an expansive interpretation of the definition of ‘disability’ in the Act. While the Delhi10 and BombayHigh11 Courts have held that those with dyslexia should be included within the scope of the PWD Act, the Andhra Pradesh High Court has interpreted ‘locomotor disability’ to include those with short stature2. In All Kerala Parents Association Vs. state of Kerala13 case it was held that,“ Sec.39 of PWD Act, deals with the reservation of seats for persons with disabilities in Government educational institutions as well as educational institutions receiving aid from the Government, and necessarily therefore the provisions thereof must be complied with.”

No longer are the Indian courts constrained to give compensation out of compassion. As in the case of Rajanna Vs Union of India14 (where a SPG guard suffered permanent partial disablement in a road accident); or, to protect the appointments of blind officers through factual analysis, as done in Jai Shankar Prasad, advocate Vs. State of Bihar15 (where a blind member of the state service commission who had been recommended for ‘Padmshree’ was sought to be removed on the grounds that he was blind from childhood). Courts can now enforce the rights of PWD’s by judicial activism through statutory force. However, such judgments however, are problematic primarily because they are not supported by the text of the statute. Secondly, since the decisions are based on the discretion of the judges, neither there is any certainty in the outcome of legal actions, nor is there a well established legal entitlement that could be drawn upon.

The present international scenario on Rights of the disabled has taken a great leap over the last few years with the international communities and NGO’s coming forward for protection of the rights of such individuals and also to resolve the hiatus between the society and them. In recent years, the approach has indeed been of a broader understanding of disability, which recognizes that the circumstances of people with disabilities and the discrimination they face are socially created phenomenon and have little to do with the impairments of people with disabilities16. Contemporary social thinkers believe that disability is located in the prevailing social context17. In December 2006 UN general assembly adopted the Convention on the Rights of Persons with Disabilities (CRPD) which is today the cause of several sagacious legislations around the world on the rights of the disabled. India has also both signed and ratified the Convention on 30 March 2007 and 1 October 2007 respectively. It came into force on 3 May 2008, and makes it obligatory on the part of the government to synchronize laws or legal provisions with the terms of the Convention. However, by not signing the optional protocol India has managed to safeguard itself in case of not fulfilling the commitments made under CRPD.

The general principles of the Convention are: recognition of inherent worth and dignity; individual autonomy and independence; non discrimination; full and equal participation; respect and acceptance of human diversity; equality of opportunity; accessibility; equality for men and women, and respect for evolving the capacity of children with disabilities and their right to preserve their identities. The Convention believes that, ‘disability,’ results from the interaction of impairments with various barriers which hinder full and active participation in society on an equal basis with others. ‘Accessibility,’ in the convention is not simply confined to constructing buildings that have ramps, or building roads – it means ensuring that people with disabilities have access to transportation systems, signs that are both audio and Braille, sports auditoriums, public facilities, hospitals, malls, clinics, and other facilities18. But current legislation (PWD Act) in India is not in tune human rights obligations, or with the advances in technology and medicine. With the technical advances that are available today it should be possible for people with visual impairments to access banks through ATM's for example, yet there is no legislation in India aimed at the adoption of such technologies.

The signing and ratification of the UN convention by India poses few obligations before the government which include:

· Reviewing of all the laws and policies to bring them in line with the convention and taking measures against any practice or action in contravention of substantive portion of the convention,

· To fulfill the mandates of the convention the Indian government will have to patch up the loopholes in legal and administrative system, to effectively apply standards of convention and not breach them in omission,

· However, another implication may also arise that India will have to regularly report to the committee on rights of persons with disability under article 34 of the convention.

Here are some of the areas of the PWD Act, 1995 which are not in consonance with the UN Convention. What follows is however, not an exhaustive account of the conflicting areas.

· Besides the existing rights mentioned in the Acts, there are certain rights under the major themes of life and liberty rights, equality of respect and opportunity, right to association and social participation, right to political participation, right to health and double discrimination in relation to children and women in disability referred to in the CRPD but not appropriately incorporated within Indian disability laws and provisions in other statutes.

· The PWD Act extends the entitlements and protections to just a few named categories of impairment, which in turn are medically determined. The CRPD on the other hand, adopts a universal approach to disability, without quantifying the impairment or its effects. Additionally, the CRPD focuses on addressing the social barriers that hinder the equal participation of the disabled. The general principles of the Convention include: recognition of inherent worth and dignity; individual autonomy and independence; non discrimination; full and equal participation; respect and acceptance of human diversity; equality of opportunity; accessibility; equality for men and women, and respect for evolving the capacity of children with disabilities and their right to preserve their identities. Many of these principles appear in existing laws of disability, but the welfare based approach of the government presents major obstacles to all such concepts of empowerment.

· The PWD Act focuses mainly on socio-economic rights without paying any heed to the civil-political rights which is in direct conflict with the fundamental proposition of the CRPD, which is enjoyment of all the rights on an equal basis with the non-disabled.

· The PWD Act is targeted at early detection of the disability or abnormality and hence there should be eradication of all impairments according to the Act whereas CRPD on the other hand targets to make the social environment barrier free and thus facilitating equal participation. This reduces the exclusive focus on medical intervention to address the effects of impairment.

· The CRPD acknowledges the intersectionality of gender and disability or childhood and disability in the experiences of women or children with disabilities. Accordingly, it provides for specific measures to address the concerns of the women and children with disabilities, and at the same time mandates the inclusion of gender and child specific provisions in the general Articles. The PWD Act however, posits disability as a monolithic category with undifferentiated experience.

As soon as the UN CRPD came into being the activists and NGOs sprung into action to capitalize on this new found enthusiasm. Not willing to be left behind in this pursuit of appreciation and applause from outside, the legislative has woken up from its deep slumber and decided to look at a broader understanding of ‘disabilism' as a concept. This led to the birth of a new draft on disability which is referred as Draft Disability Act, 2011. However, this draft bill is criticized for being just a ‘cut and copy’ of the original Convention by borrowing a section here and there without speculating their applicability to the Indian conditions and society. The clauses of the bill are regarded as abstruse due to absence of such speculation. Like Ostriches, it is better that we delve deeper into our available legal statutes than be blown away by the winds of the International thinking. Our provisions have to be insular suited to our own environment. We should not be unduly awed by legislation which is “tempered in its application” to English environments. Concepts of disability cannot be divorced from the ethos and the socio-economic matrix. It has to be moulded into the sense of justice of the community in order to inspire confidence, enjoy sanctity or even command obedience. If the aforesaid suggestions are not adhered to, this draft is “capable of being an instrument of the most monstrous injustice when administered in an atmosphere different from that in which it had grown up”19.

It is rightly argued that legal predications, judicial pronouncements and constitutional preferences only elucidate the imperative, for laws alone cannot guarantee integration. Moreover, there has also been no financial impact assessment conducted to anticipate the cost of policies- surprising, considering that the government is usually the first to cry foul if directed to execute a scheme on the count that it has constraint of funds. Besides there is a need to note that the problems do not reside in the person with disability but in the societal attributes that prevent the one from exercising his attributes. The time is now ripe for “social innovation”, that is, the normalization, integration and equalization of the PWD’s. This mainly requires the removal of social barriers and obsolete ethos that surround the PWD’s. As remarked by Rabindra Nath Tagore “The problem is not how to wipe out the differences but how to unite with the differences intact.” Briefly I would summarize by stating that there is a desperate need to equip PWD’s with educational opportunities and ensure them employment opportunities. I would like to conclude with the words of Ali baquer and Anjali Sharma, “that the new Disability Bill will create an accessible society through not just the opening of footpaths and railway platforms but the hearts and minds of Indian people will become more and more open, more unbiased”20.
******************************
1. Introduction to the Constitution of India by D.D.Basu
2. Sec. 2(i) of the PWD Act,1995
3. Sec. 2 (t) of the PWD Act,1995
4. V. finkelstein and S. French quoted in Disability : challenges v responses by Ali Baquer and Anjali Sharma
5. JT 2004 (4) SCC 505
6. AIR 1999 Sc 512
7. Disability laws vis-à-vis human rights by J.S.B.Sinha in ‘Nyaya Deep: official journal of NALSA’ V1 issue2,Apr 2005
8. Rajbir Singh vs. Delhi Transport Corporation, 100 (2002) DLT 111; Delhi Transport Corporation vs. Harpal Singh 105 (2005) DLT 113
9. Delhi Development Authority vs. Omvati Kalshan MANU/DE/9290/2006; O.P. Sharma vs. Delhi Transport Corporation, 125 (2005) DLT 742
10. Disabled Rights Group vs. Delhi University and Others, W.P. (C) 10055/ 2004
11. Vincy D’Silva vs. St. Mary’s School and Others W.P. (C) 1744/ 2005
12. http://www.dnis.org/news.php?issue_id=15&volume_id=3&news_id=492
13. 2003 (2) WLN 692
14. (1995) Supp. (2) SCC 597
15. (1993) 2 SCC 597
16. J. R.K.Abichandani, The Rights Handicapped, Human Rights Yearbook-2001.
17. Parmanand Singh, “Human Rights of persons with disabilities : Some reflections”
18. Article 34 of the UN Convention on the Rights of the Disabled (CRPD)
19. ”Justice in India” Gobind Das, Bar-at-law
20. Disability: Challenges v Responses by Ali Baquer and Anjali Sharma, available at http://healthlibrary.com/reading/disability/scrap3.htm

Authors contact info - articles The  author can be reached at: sankalpkapoor@legalserviceindia.com




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