Advocate Sneha suman (LLM) (NLUO)
“Being disabled should not mean being disqualified from having access to every aspect of life”
Disability in general parlance means lack or deficiency whether physical or mental in respect of some people. But sometimes, disabled persons prove themselves to be “differently abled” by their intellectuality and positive outlook towards the life. Undoubtedly, the legislations plays an active role in the enforcing the rights of the disabled person.
This article briefly deals with the major legislations that were enacted for safeguarding the rights of the disabled persons. In this article the author has made an attempt to highlight some major problems faced by the disabled persons like sexual harassment of the disabled women. This article will also focus on the initiatives taken by the government in protecting the right of the interest of the disabled persons.
The term “Person with disability” means any person suffering from not less than forty percent of nay disability which is certified by medical authority. The PWD act, 1995 has specifically mentioned seven kinds of disability. They are enumerated as below:
Loco motor disability.
Although, the definition provided in the PWD Act, 1995 is not sufficient as disability is a very broader term and it could not be confined to only seven types of medical conditions.
Constitutional provisions for the protection of rights of persons with disability
The constitution of India envisages the principles of International human rights, the principles of equality, autonomy, dignity, liberty and security. . The preamble of the constitution clearly states the primary objective of the constitution is to secure to all its citizens; Justice, social, economic and political; liberty of thought, expression, belief, faith and worship; ; Equality of status and of opportunity and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation….”. Article 14 which is considered to be an imperative provision incorporates the principle of equality, it clearly states that everyone should possess equal right and should be given equal treatment. It clearly indicates that there should be absence of privileges and it forbids discrimination. Whereas Article 15 and 16 forbids practice of any forms of discrimination with regards to access to public places like restaurants, shops and public employment. It brings out clearly that no discrimination should be based on caste, sex, religion, place of birth etc. These principles shows that the spirit of equality is imbibed strongly in the Indian constitution. The constitution of India has also imbibed the spirit of these values.
But, after looking into the constitution in the strict sense, it would not be wrong to say the constitution has not made any strict mention of the term “disability”. The most surprising part is the laws enacted 20 years before did not include disability in the list of prohibited heads of discrimination. Before 1995 when the major law for the protection of person with disabilities was enacted the disabled section of the Indian society had to face discrimination on a wider scale. They were not only harassed socially but were also exploited economically. People who got inflicted with disabilities while serving their employment were forced to quit their job without proper compensation. It is saddening to learn that few years’ back the Indian judiciary did not took much initiative in improving the condition of disabled section of our society. It did not raise its voice against the discriminatory rules and did not put efforts for setting aside those rules.
But with the passage of time the government realized that the situation was alarming and it was utmost necessary to enact a legislation for the protection of the right of disabled persons. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted in keeping the view of welfare of disabled persons and to prevent them from any kind of physical and mental abuses. After the enactment of the act the judiciary also became active and started recognizing the rights of disabled persons through judicial decisions.
In Indra Sawhney v. Union of India (1992), the apex court considered the matter of reservation in favour of disabled persons who were covered within the mandate of Article 16 of the constitution. The Court pointed out that “… mere formal declaration of the right would not make unequal’s equal”. It stated that in order to bring equal competition it is necessary to put the disadvantaged or handicapped on equal footing with all other. Undoubtedly, Article 14 & 16 plays a positive role and confers the status of equality upon all the citizens of the country.
SEXUAL VIOLENCE : heinous crime committed on disabled women
Sexual violence against disabled group has never been a heated topic of discussion. It would not be wrong to say that this section of society has been neglected while talking about the sexual offences. But, this a major area of concern as several incidents of sexual abuses on disabled women and children has taken place in the past few years. Sexual offences against disabled women has become inevitable be it inside home or outside. A disabled women safety has become a matter of concern. Several sexual buses, rape cases, harassment takes place against the disabled women. But in more than 90% cases complaints are not filed. Very small number of complaints get lodged and legal actions are initiated. In most of the cases in which legal actions are initiated results in acquittal of the accused. Several reasons like faulty police investigations, attitude of distrust towards the victim, biased medical examination, not recording of testimony of victim
After the gang rape that took place in Delhi in the year 2012, The Justice Verma Committee, constituted by the central government took these matters into consideration and kept its opinion before the central government. Several recommendation made by the committees was accepted. The committee made a commendable effort to address the difficulties faced by the disabled women. One of the major recommendation of the committee was to take the assistance of interpreters or special educators for recording the complaint by the police and also during trial. The identification process are required to be videographed. The disabled women are also exempted from recording their testimony once again in the cross-examination of cases of sexual assault. The recommendations made by the Justice Verma Committee were well received by the disabled group.
In the year 2001, an incident took place where a speech and hearing impaired girl was raped by two policemen inside a prison van in Kolkata. One of the activist revealed that they were warned not to follow up the case. The policemen bluntly said when asked that the disabled girls are “sex starved” and it was she who in fact attacked the policemen. These incidents reveals the position of the disabled women in our society especially in the cases of sexual abuses where she is only made the culprit. A shocking Judgement was made by Orissa High court in a rape case committed on the disabled woman. A deaf and mute woman was raped and the matter of her rape came into notice only when she was pregnant. The court while granting bail to the accused stated that in the present case consent on the part of the woman cannot be ruled out as the woman was 30 years old and still unmarried and should have communicated the incident to her mother. These kind of judgements raised question mark on the sexual discipline of the disabled woman as they were brought in the vicious circle of suspicion. Just because she was not married that does gives a right to raise questions on her character and to doubt her motive?
It is upsetting to see the inhuman treatment given to the disabled women. They too possess the right to live with dignity and live in a safe environment. These incidents reveal that there has been rapid increase in the sexual offences committed against the disabled women.
CHALLENGES FACED BY PHYSICALLY AND MENTALLY DISABLED CHILDREN
Disabled children are the major victims of the limitations that are created socially for the disabled groups. Several limitations on economic and psychological spheres are also imposed which hinders the growth and progress of the disabled child. These limitations can only be alleviated with the assistance of parents, community and government. A disabled child can never leave a normal life without the support of people around him. It is necessary to develop the ability of tolerance and accept this kid as the part of community. People should never look at their disabilities moreover they should focus on their abilities and provide the disabled child to grow and develop in the normal environment. There are several issues and challenges faced by the physically and mentally disabled children. Some of the issues are mentioned below:
SOCIAL ISSUES- We are living in a traditional society. In our country accepting nay indifferent thing is not easy. Disabled children’s are also the victim of these traditional society norms. Disabled children are not accepted as the part of community by many and fails to get the required support and affection from the other members of community. Often, disabled children are left alone and become the subject of ridicule and mockery. It is high time people should change their outlook towards disabled children and provide support and care to the disabled children.it is only with the cooperation of community they can live freely and happily and learn about team work, cooperation and fair play.
PSYCHOLOGICAL ISSUES- The psychological effects of physical and mental disability causes detrimental effect on the disabled children. At times these disabilities becomes the reason of their frustration, anxiety and anger. Disables children at times become pessimistic and start holding them incompetent in comparison to other children. In this situation, it becomes really important for family and friends to communicate reinforcing messages to the disabled children that they are important and loved and very much wanted. It is not possible to save the child from derogatory marks but the best which can be done in these cases is to build the confidence of disabled children.
ECONOMIC ISSUES- Economic issues are not the major concern for the families with adequate incomes. But the disabled children born in the families that are not financially stable have to face the consequences of poverty too. Nutritional deficiencies and non-existing medical facilities are the direct consequence of economic instability to which disabled children are exposed to.
SAFETY AND SECURITY- One of the most important challenges faced by the disabled children are whether they are safe with the people around them. In the past few years it has been recorded that disabled children are an easy prey of sexual abuses. Several sexual offences are committed against them. At times it becomes difficult for the disabled children who are not able to communicate verbally to narrate the incidents. It is necessary to promote education and training facilities to disabled children to protect themselves and report the inappropriate contact to the trusted adults.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
This act is considered to be a landmark and a vital legislation for the protection of the right of the disabled persons. This Act when enacted gained immense popularity as it was a first major legislation enacted for preventing the disabled persons against social and economic exploitations. This act was enacted with the objective promoting and protecting the social and economic rights of the disabled. The act has mainly laid its focus on rights. The major area of concern of the act is to provide for early detection, education, employment, affirmative action, non-discrimination, barrier free access, manpower development for person with disabilities.
The task of enforcement has been entrusted to several committees like Central Coordination Committee at the national level and a state coordination committee at the state level. These committees are primarily engaged in formulating comprehensive policies on disability within their jurisdiction. The chief commissioner and the commissioner (Person with Disabilities) are the key officers who are primarily bestowed with the task of monitoring the disbursement and utilization of funds on disability that has been allocated to different government departments. They are also entrusted with the responsibility of taking action in case of violation of rights of persons with disability.
OTHER ACTS ENACTED FOR THE PROTECTION OF RIGHTS OF PWD.
PWD Act, 1995 has been widely criticized and has been alleged to contain numerous flaws. Several critics has pointed out that the act has been passed without full-fledged discussion in the parliament. Several provision contained in the act are very weak and serves as an escape route for the government. However, despite several loopholes in the provisions, the judiciary through its judicial pronouncements has played an active role in recognizing and establishing the rights of persons with disability. Undoubtedly, the judiciary has played an extensively important role in turning the relatively weaker legislation into a strong one.
With the passage of time there was need felt for the enactment of several other laws for safeguarding the interest of person with disabilities. The several acts are mentioned below:
1. THE NATIONAL TRUST FOR WELFARE OF PERSONS WITH AUTISM, CEREBRAL PALSY, MENTAL RETARDATION AND MULTIPLE DISABILITIES ACT, 1999- It was enacted for fulfilling the common demand of families seeking a reliable arrangement for their severely disabled wards. The several objectives of the act are enlisted below:
To empower persons with disabilities to live their life freely and independently and to bring them close to the community they belong.
To provide assistance to the organizations so that they can extend support to the family of disabled during the period of crisis.
To take necessary steps for the protection of persons with disabilities in cases of emergency or unavoidable circumstances like death of parents or guardian of the disabled wards.
To constitute local level committee comprising of a District Magistrate along with a member of registered organization and one person with disability.
The main task with which the committee is entrusted is to decide upon the applications of legal guardianship. The committee also decides the manner of appointment of the guardians. The committee is also required to maintain the details of the annual accounts and assets of the disabled wards submitted by their legal guardians. National trust Board is entrusted with the responsibility of supervision under the act. However, this act needs to bring its provisions in conformity with the UN convention on the rights of persons with disabilities in order to emerge as a better legislation.
2. MENTAL HEALTH ACT, 1987- It is considered to be a civil rights legislation which is mainly concerned with regulating the standards in mental health institutions. It was saddening to see that despite the existence of this act several mentally ill persons were confined to jails. It was surprising to learn that those living in mental institutions were not in a better position as the conditions both in prisons and institutions were far below the required standards.
3. REHABILITATION COUNCIL OF INDIA ACT, 1986- This act was enacted by the government of India with an objective to regulate and maintain the standard of training policies and programs for the rehabilitation of person with disabilities. The several objectives of the act are enumerated below:
To provide better training facilities to the professionals dealing with people with disabilities.
To bring uniformity in the regulating standards of all the institutions established in the country.
To make efforts to promote research in rehabilitation and special education.
To provide for the maintenance of Central Rehabilitation Register to record the particulars relating to registration of professionals.
4. NATIONAL POLICY ON DISABILITY, 2006- A comprehensive national policy was enacted by the government of India on disability covering major areas like education, employment, access, support services, social services etc. however, this policy also needs to be modified in the light of the convention. It is upsetting to learn that most of the states in India do not have a state level disability policy in place yet. To a relief, the state of Chhattisgarh now has a state level policy on disability.
UNITED NATIONS CONVENTIONS ON THE RIGHT OF PERSONS WITH DISABILITIES.
United Nations Conventions on the right of persons with disabilities was unanimously adopted by General assembly on 13th of December, 2006. This International treaty was ratified by India in the year 2007. However, the convention came into effect from 3rd May 2008. This convention basically deals with the rights of disabled persons. According to the conventions the disabled persons are the subjects having human rights and fundamental freedoms and not as mere objects needing medical care and social protection. It states that disability is an emerging concept and is an integral part of human diversity and humanity. Disability, according to this international treaty results from interaction of impairments with barriers which prevents one’s participation in society on an equal basis with others. This convention is a legally binding convention.
The main purpose of this convention is to promote and protect and to ensure human rights and fundamental freedoms to the disabled persons so that they can live on equal footing with the other members of society and succeed in establishing connections with the community they are part of. The general principles of the conventions are contained in Article 3. The principles are enumerated below:
To develop respect for dignity, independence op persons and freedom to make one’s own choices.
Active and full-fledged participation in society.
Respect and tolerance of person with disabilities and to accept the indifferences.
Equality of opportunity.
Equality between men and women.
Article 4 of the convention deals with the significant obligations that has been imposed upon the state parties. Some of the obligations are mentioned below:
Under the convention, the states are imposed with an obligation to adopt all legislative and other measures to protect, promote and ensure human rights and fundamental freedoms to persons with disabilities.
Besides the adoption of legislative measures, they are also required to repeal all laws, policies and customs that are not in conformity with the said convention.
Private entities rendering services are required to design their program and services in such a way so that it can be beneficial for the person with disabilities.
Some of the expressly recognized rights by the conventions are listed below:
RIGHT TO EQUALITY – All the disabled persons should be given equal treatment without any discriminations and with reasonable accommodation.
RIGHT OF CHILDREN WITH DISABILITIES- To provide them opportunities to full enjoyment of all the human rights and fundamental freedoms. These rights and freedoms are necessary for ensuring progress and development of children with disabilities
RIGHT OF WOMEN AND GIRLS WITH DISABILITIES- The right to live freely and safely is ensured to the women with disabilities. All endeavors should be made to protect them against sexual abuses and exploitation in any other forms.
RIGHT TO LIFE- It has considered to be the most important right for the existence of any person. People with disabilities are also conferred with right to life which grants them the freedom to live freely, move freely and breathe freely.
RIGHT TO PROTECTION- A disabled person is also confer with the right of protection against any physical and mental abuse, violence or they should not be subjected to cruel, inhuman and degrading treatment.
RIGHT TO EDUCATION– There should no discrimination be made against the disabled person in the educational institutions like other competent members of society they too are eligible and competent to receive education from the institutions of their choice.
Major steps taken by the government to improve the condition of disabled persons
The general discussion on disability clearly reveals that disability is a painful experience and trauma faced by physically and mentally impaired section of the society. Disability is not only confined to being physically and mentally handicapped, it all covers all the inhuman treatment and pain inflected upon the disabled section of the society. There was a time when the disabled were not given equal treatment be it employment or educational institutions. The present situation not commendable though but it is undeniable that efforts have been made to improve the condition of the disabled.
Some of the major steps taken by the government are highlighted below:
EDUCATION- According to the report of National Sample Survey Organization Report, 2002, 55 percent of the population of disabled section of the society remain illiterate. Sarbha Shiksha Abhiyan was a major initiative taken by the government to provide basic education to all the children including the disabled section. Several scholarships programs has also been launched by the government to provide assistance to the disabled section of the society pursuing higher education. The government of India has also played an active role in introducing scientifically modern standard aids and appliances which could facilitate the promotion of physical, social and psychological rehabilitation of the disabled persons by reducing the effects of disabilities.
SPECIAL PROVISION FOR SOCIAL SECURITY OF DISABLED PERSONS- The amount of care and facilities required by the disabled person is quite higher than the other members of society. Financial incapacity is the major reason which exposes the disabled persons to poverty. The central government has also made efforts in this direction by providing tax reliefs to persons with disabilities. To deal with the economic depression by which a disabled person is affected the state governments has made provisions for providing unemployment allowance or disability pension to the disabled section of the society. Hence, the efforts of the state government is designed to ensure comprehensive social security for persons with disabilities.
EMPLOYMENT- The problem of unemployment is one of the main challanges faced by the disabled persons. For the realization of employment rights it is necessary for the institutions and their functionaries who are entrusted with the responsibility of providing employment opportunities to understand the complexities of legal and administrative arrangements. The central government has come up with several training programs, establishing training standards and procedures, and conducting trade test certification. There are 42 special employment exchanges constituted in India for providing job opportunities to the disabled persons.
OTHER FACILITIES- The central government has also taken some necessary steps towards health, pension and housing facilities. There are several hospitals who renders medical facilities free of cost to the disabled persons. Department of welfare in many states facilitates distribution of assistive aids and appliances for persons with disabilities with the assistance from National ministry of social justice and empowerment. There is also provision made for the disabled government employees for Government’s residential accommodation.
Mere enacting of legislations will not serve the purpose. No effort can be fruitful without the active participation of all the components of community. The PWD section of our society is the neglected and deprived society and the efforts should be designed in such a way so that all the discriminations practised against them are prohibited and they can easily realize their rights. It is necessary for people to accept that they are no different from other members of the society, mere disabilities be it physical or mental should not be made a ground to position them in a disadvantaged way. Love, cooperation and equal treatment is all that they need for their growth and development. Hence, the author suggests some several steps that should be taken for improving the condition of disabled persons in our society. They are:
The disabled rights commission should make all the effort to eliminate all forms of discrimination against the disabled section of the society. It should also ensure that the disabled persons are subjected to equal treatment and equal opportunity. Besides this, the commission also plays an active role in advising the government in formulation of policies and enactment of legislatures for the protection of the disabled sections. It should perform its duties carefully and with full responsibility. It should propose formulation of new policies and come up with new ideas for protecting the interest of disabled section of our society.
The government should make stringent provisions for preventing the practices of discriminatory. It should ensure that the provisions of the act are carried strictly. Basically, the government should not only be concerned with enacting legislations but also effectually deal with the enforcement mechanisms.
Safety of the disabled persons is the major area of the concern. The government all other non-governmental organizations should make all efforts to ensure that the disabled persons are provided with proper accommodation, medical facilities and safe environment.
There should be allocation of financial resources for the disabled sectors so that they can be provided with all the basic facilities that are required for their growth.
There should be several educational and awareness programs for the disabled persons.
More organizations and committees should be constituted for monitoring the welfare of the disabled section of the society.
From the above discussion we can draw an inference that the existing framework governing the rights of Persons with disabilities needs amendments. It is high time that the principles of the convention should be incorporated into the legislations enacted for the disabled people. It is clear that the position of the disabled section will not improve unless there is an active participation among government, non-government organization and other members of society.
It would not be justified if the efforts of the government are not appreciated. The government has done a commendable job in driving its attention towards the education and employment of the disabled section. Several schemes and benefits conferred on the disabled persons has come up as relief and has successfully served to provide equal opportunities to the disabled section. The governments needs to launch more social security schemes for disabled sections and generate more employment opportunities for them.