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Published : July 25, 2013 | Author : lakshmivempalli
Category : Miscellaneous | Total Views : 8051 | Rating :

  
lakshmivempalli
Name       :     Dr. L. Lakshmi      PhD, MA, LLM, PGDBM, PGDCA      Area of Specialization: Labour Law, Family Law, Environmental Law, and Legal Environment for Business (MBA), Social capital, Human Resources Management Current Employer : Faculty of Law ICFAI Federation for Higher Education (IFHE) -Hyderabad Designation/Post : Assistant Professor in Law Director Legal Aid Cell Member- Board of Studies Address for Communication: Residential Official Dr.L.Lakshmi Dr.L.Lakshmi H.No 108 C Assistant Professor in Law Eshwarpuri Faculty of Law-ICFAI Federation of Higher Education Sainikpuri (P.O) Dontannapalli (PO) Ranga Reddy (Dist) Shankarpally AP-500 094 Hyderabad Res: 040-65172758 Mobile: 9949005215
 

 The unanswered Social and Legal Issues Relating To Differently abled Persons in India

Abstract
Over the time as the disability rights movement has emerged, the concept of disability shifted from individual impairment to more of social phenomenon. In this social view, persons with disabilities are seen as being restricted in performing daily activities due to a complex set of interrelating factors, some pertaining to the person and some pertaining to the person's immediate environment and social / political arrangements. The social concept of disability introduces the notion that society has erected barriers, physical or attitudinal, that affect persons with disabilities. Consequently, a number of government programs and policies have evolved to include making the environment and buildings barrier-free and providing income assistance or work-related supports to help them participate more fully in the community and at the workplace. Despite these attempts 100 million disabled persons in India are debarred from full participation in their families, communities and societies. The lack of physical access to facilities, transportation, and information further circumscribes them from enjoying equal opportunities. With the shift in emphasis from providing welfare assistance to ensure the rights of persons with disabilities, The Persons with Disabilities (Equal Opportunities, Full Participation and Protection of Rights) Act 1995 is no doubt a landmark legislation and an appreciable attempt to alter the disabled scenario in India yet it falls short in giving clarity on their legal capacity and their rights, making them the most vulnerable, discriminated, subjects of humiliation and exploitation in society. In this backdrop the author intends to make a study of various social and legal issues faced by the differently abled individuals and compare the applicability of existing provisions under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with that of provisions of UN Convention on Persons with Disability (2006) and make suggestions for improvements at appropriate places in the PD Act 1995.

Introduction
Since antiquity, society has detected disabilities arising out of obvious deficits in anatomical structures, sensory functions and intellectual developments amongst its members. These disabilities debarred the affected persons from participating in the mainstream of social life. With the decline of feudalism and the rise of democracy, the concept of equal opportunity for care, employment, relief and empowerment for the disabled people took prominence, yet the general view about what constitutes disability remained static for a very long time. Despite all the odds the parents, guardians, and the social workers working in the field of disability till to date are the driving force for the recognition of their rights as a separate special group in India. The Persons with Disabilities (Equal Opportunities, Full Participation and Protection of Rights) Act 1995 (PD Act 1995) is landmark legislation and an appreciable attempt to alter the disabled scenario in our country. The PD Act 1995 for the first time recognized the rights of the persons with disability and took measures in preventing disability, early detection of impairment, integration of disabled students in mainstream state education; provide 3% reservation in government and public sector vacancies.

However, after 18 years of enactment of the PD Act 1995 and with all the efforts put forth by the Central and the respective State Governments, the parents, professionals working in the field of rehabilitation still opine that the legislation falls short of the gamut of socio-legal. In effect, the various advocacy groups had been requesting for bringing in amendment in areas that require them to interact with others in society improving their access to statutory entitlements, Community Based Rehabilitation and effective implementation of the provisions of the PD Act 1995.

Conceptual evolution
The perception of the word disability has been found to vary across different cultures, however the condition that was conceived once to be disabling in a particular cultural set up or during a specific historical time never remained the same. This is for the reason that disability is marked by several divergent factors in terms of causation, and hence cannot be identified with any particular race, class, sex or social class . It has been proved that disability lies in the social system and not within persons with disabilities themselves. They need their rights and equal opportunities instead of pity and charity. Disability movement worldwide and within India has played a greater role in this transformation . In general the word disability is interpreted in two different dimensions one that leads towards their inclusion and the other that excludes them.

Indian Constitution on Disability
The Indian constitution assures and guarantees equally for all persons men, women, children, old, and disabled, minorities etc., without any bias or favour the fundamental rights as embodied in Part III . The concept of equality enshrined in Article 14 itself enjoins duty on the State to bring about a situation where the fundamental right can be exercised on the footing of equality. Therefore, a disabled person is entitled to a right to be placed at the level at which he can enjoy the rights . In the background of this fundamental right to equality, the directive principle of State policy contained in Article 39A of the Constitution assumes significance, where the State secures and promotes justice, on the basis of equal opportunity, and in particular, provide free legal aid, ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities . Similarly, the principle contained in Article 41 enjoins a duty on the State to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want. The concepts of justice social, economic, political, equality of status, opportunity and of assuring dignity of the individual incorporated in the Preamble, recognizes and is designed to flower the citizens’ personality to its fullest. Thus, much before the progress was made in the international arena, the founding fathers of the Indian Constitution found it necessary to emphasize these duties on the State.

Disability Legislations in India
Though aspects of mental health had been legislated upon since the colonial times, there was no legislation governing issues related to other disability till 1992. The Indian Lunacy Act, 1912 – a typical colonial legislation infused with the philosophy of least responsibilities of the State – was replaced by the Mental Health Act in 1987. The Act of 1987 differentiated and identified that both mental illness and mental retardation are not one at the same and should not be brought under the purview of Mental Health Act in 1987. The Rehabilitation Council of India Act, 1992 was enacted to provide for minimum standards in training and qualification for rehabilitation professionals working in various disciplines.

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act enacted in the year 1995, has fourteen chapters dealing with issues such as prevention and early detection of disability, employment, education, non-discrimination, social security. The Act addresses issues related to seven categories of impairment defined as ‘disability’ that include blindness, low vision, leprosy cured, hearing impairment, locomotor disabilities, mental illness and mental retardation. The Act defines a ‘person with disability’ as a person who has at least 40% of any of the above impairments and establishes the Central Co-ordination Committee and Central Executive Committee at the Center level, and State Co-ordination Committees and Executive Committees at the state level, to review and monitor compliance with the Act, to assess the impact of government policies on the persons with disabilities and advise the government on important policy decision pertaining to the persons with disabilities. The forums for grievance redressal in the form of the offices of the Chief Commissioner of Persons with Disabilities and the State Commissioners are authorized to take up complaints relating to deprivation of rights of the persons with disabilities or regarding the non-implementation of laws, rules, administrative orders etc. The Act provides for various benefits to the persons with disabilities in the areas of education, employment, accessibility and social security under three broad principles of distributive justice; Anti-discrimination; and Welfare measures. The Act reserves a minimum of 3% of in government educational institutions and employment and further directs the government to frame schemes to provide for training of persons with disabilities; relaxation of upper age limit; health and safety measures and creation of non-handicapping workplaces; incentives to employers in the public and private sectors for employing persons with disabilities.

The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 addresses those persons with disabilities, who are deemed more vulnerable than the others, due to the nature of their impairments. The Act provides for the care and protection of such persons with disabilities and their property in case of death of the parent or guardian. Local Level Committees established under the Act, are authorized to decide the issues related to legal guardianship of the persons with disabilities.

Judicial role
Despite all the efforts of the Government and other agencies the ambiguities in PD Act 1995 have resulted in adverse effect on the minimal entitlements and protections that the Act guarantees. The role played by judiciary in recognizing the education , employment , social security, non discrimination , affirmative action and other rights of the disabled individuals is however tremendous. The Judiciary has been an eye opener to various denial or non availability of admissions in educational institution , non-implementation of reservations in employment , non availability of medical and social security benefits owing to shortage of human resources and economical constraints and other issues.

The Unanswered Social and Legal issues:
Despite all the efforts by various agencies in promoting the right of the persons with disability, there are many unanswered legal and social issues faced by the differently abled individuals for instance barrier free physical environment at home, school or at public places, the attitudinal barriers from family, friends and others in society. Choice of guardian, liability of guardian, the right to inherit property, the right to be adopted. Right against exploitation, physical and mental abuse of women and children with mental retardation and other disabilities . The rights related to access to decent health services, disability identification and certification, right to life, live independently in community, right to dignity, right to privacy, matrimonial and reproductive rights of the mentally disabled women. Similarly questions related to distinct grievance redressal mechanism, and accessibility to legal aid, constitution of special courts. The right of being reasonable accommodated in all the area of education or work and employment environment. The right to social security especially in absence of any comprehensive insurance scheme, the right to equal opportunity and treatment in all spheres of life. The issues with regards the mentally disabled persons are more intricate, as their very identity is ambiguous in eyes of law as the definition of disability is still based on medical model which concentrates more on their physical and anatomical factors and does not speak about the disability created by the society in the form of barriers in their physical, and social (attitudinal barrier) environment.

Employment is another key area of concern as the 3 % reservations assured to the disabled persons and the available vacancy position in the market both do not match and are inadequate. In case of self employment or entrepreneurship efforts the legal position relating to law of contracts require both the parties to be competent enough to understand and aware of the implication of the terms of the contract in such situations a person of unsound mind or the mentally retarded individual due to the nature of their disability are not in a position to understand the implications of any transaction. Therefore, all transactions made by such a person are considered invalid, though a via media of appointing a guardian to bail out of such situations is available and the option of court appointing a guardian in case of absence of a natural guardian to represent such person to protect his interest is also available but the interest of such guardian is always questionable. The law relating to inheritance and the personal laws in India do not consider adoption by persons with certain disabilities as valid. Nonetheless, if a child is adopted then, he or she is automatically entitled to all rights of inheritance. However, should the validity of the adoption be questioned, then the issue of the rights to inheritance gets a little complicated

Suggestions and Recommendations:
All the attempts made till to date in India for providing equal rights and opportunities for the persons with disabilities are purely based on medical model and lack the social, economical, and legal perspective making such protection discriminatory. However, the future of the disabled individuals is not all that gloomy there is lot of scope for amendments to the existing legislation PD Act 1995 in conformity with UN Convention on the Rights of Persons with Disabilities (2006) to which India a signatory in the following areas:
• Inclusion of a new definition on ‘persons with disabilities that endorses the social model of disability as it locates the problem of disability outside the individual person.

• Inclusion of Right to Barrier free environment in order to ensure proper accessibility to the persons with disability in all buildings and facilities both in rural and urban areas. In this regard the State must formulate suitable Accessibility Standards from time to time by adapting prevailing international standards on physical environment information and communication technologies and develop systems that are suitable to Indian conditions.

• Promotion of Right to Equality and Non-Discrimination and ‘reasonable accommodation’ by the State would enable them to have access to, participate in, or advance in employment, to enjoy legal capacity on an equal basis with others in all aspects of life right.

• As women and girls with disabilities are more vulnerable to all kinds of exploitation, abuse and violence, they must be taken care off in all settings at all places including, home, care-houses, educational institutions, institutions, workplaces. The measures must include provision related to accessibility, safe and confidential complaint mechanism to report any of their instances of exploitation, abuse and violence, provision of gender, disability and age sensitive protection services, assistance and support for girls and women their families or caregivers for physical, cognitive and psychological recovery and development, rehabilitation and social reintegration, in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person.

• The Right to access court is an essential component of guaranteeing the enjoyment of any right therefore, all buildings which are related to the justice system, including courts and police stations, should be made accessible to persons with disabilities.

• To promote, protect and enforce the rights of the persons with disability on an equal basis with others a Disability Rights Authority (DRA) must be constituted.

Conclusion
In order to ensure effective and speedy implementation of the social, economic and civil political rights that are guaranteed under the Act the State must undertake the development of human resource so that they would put into effect the various responsibilities outlined in the PD Act for the persons with the disability. Taking a cue from the best state practices of Karnataka and Chhattisgarh Governments constitution of special courts/ lok adalats by the respective states and the centre must be considered. A Comprehensive Disability Policy Framework must be framed by acknowledging the self-representation of Persons with disability in disability policy. Constitute an Apex Court at the centre the Court of National Disability Commissioners and Court of State Disability Commissioners in respective States consisting of the full-time Judge having knowledge and expertise on disability law and in human rights or rights of persons with disabilities.
******************
[1] Dr.L.Lakshmi, Asst. Prof. in Law, Faculty of Law, IFHE-IBS Campus, Shankerpally
lakshmivempalli@yahoo.co.in
 
[2] GN Karna. United Nations and Rights of Disabled Persons A Study in Indian Perspective, p.48

[3] Changing Face of Disability Movement: From Charity to Empowerment By Kishor Bhanushali Assistant Professor – Economics, Mahatma Gandhi Labour Institute Ahmedabad National Seminar On “Revisiting Social Work in the field of Health - A Journey from Welfare to Empowerment-(20-21 February 2007)

[4] Naz Foundation v. Government of NCT of Delhi and Others, 160 DLT 277
 
[5] Indira Sawhney v. Union of India and Others, 1992 Supp (3) SCC 217
 
[6] National Federation for the Blind v. Union Public Service Commission, (1993) 2 SCC 411
 
[7] Elangovan v. Government of Tamil Nadu, Secretary, Department of Higher Education and Bharathiyar University, Registrar, 2009 INDLAW MAD 2850.
 
[8] Daniel Latifi v. Union of India, (2001) 7 SCC 710
 
[9] Dhawal S. Chotai v. Union of India and others, AIR 2003 Bombay 316
 
[10] Disabled Rights Group v. Delhi University & Others, W.P. (C ) No. 10055/2004
 
[11] Binita Senapati v. State of Assam, AIR 2000 Gauhati, Vincy D’Silva v. St. Mary’s School & Others, W.P. No. 1744 / 2005
 
[12] Dalco Engineering Pvt. Ltd. V. Shree Satish Prabhakar Padhye & Ors, Civil Appeal No. 1886 of 2007
 
[13] Suchitra Srivastava v. Chandigarh Administration, C.W.P. No.8760 of 2009

[14] Chapter 1 of PD Act 1995 in conformity with Article 1 of the UNCRPD- defines persons with disability as “including those who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

[15] On lines of Art 12 of UNCRPD

[16] In confirmation of Article 6 of the UNCRPD (2006)

[17] In conformity with Article 14 of the UNCRPD (2006)

The  author can be reached at: lakshmivempalli@legalserviceindia.com

Writing award This article has been awarded For Excellence in Original Legal Research work by our penal of Judges




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