Dr.P.Sailaja•
More than 650 million men, women and children in the world suffer from either mental or physical disability. Most of them live in the developing world. They suffer from discrimination and lower standard of living. They are often denied basic educational opportunities and often given menial or poorly paid jobs. Social attitudes exclude them from cultural life and normal social relationship. Persons with disabilities include 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 .
The International Day of the Persons with disabilities is fast approaching on 3rd of December. Theme for 2011 is “Together for a better world for all: Including persons with disabilities in development”. Based on the main theme this year suggested sub-themes, they are
Mainstreaming disability: including a disability perspective in all development process.
Gender: including women and girls with disabilities in development.
Including children and youth with disabilities in development.
Accessibility: removing barriers and promoting disability-inclusive development.
Promoting data collection and statistics on disability.
Mentally ill persons and persons with mental handicap are treated as disabled persons under The Persons With Disabilities (Equal Opportunities, protection Of Rights and Full Participation) Act, 1995. Disabled persons are entitled to free legal services under Section 12 of the Legal Services Authorities Act, 1987. The law governing mentally ill persons is the Mental Health Act, 1985. There are circumstances under the Mental Health Act which require legal aid to the mentally ill persons, especially when the proceedings relating to Reception Order and Inquisition proceedings are to take place.
The NALSA convened a meeting of psychiatrists, social activists and Government secretaries dealing with mental health for formulating guidelines for legal services to mentally ill persons. Draft guidelines have been prepared and subject to the approval of the Central Authority, the guidelines will be circulated to all legal services institutions for putting into practice. In this context we have to know what type rights are available to the disabled persons under different legislations.
Legislations to Persons with Disabilities:
In order to promote and protect the rights and dignity of persons with disabilities the following enactments are enacted in India. They are as follows:
- Persons With Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Which provides for education, employment, creation of barrier free environment, social security etc.
- National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act, 1999. This provides legal guardianship of the four categories and creation of enabling environment for as much independent living as possible.
- Rehabilitation Council of India Act, 1992. It deals with the development of manpower for providing rehabilitation services.
- Recently National Institute for Mentally Handicapped under the Ministry of Social Justice and Empowerment had constituted a Committee under the Chairmanship of Dr. Sudha Kaul. The Committee submitted the Report including a Draft Bill called “The Rights of Persons With Disabilities Bill, 2011” to the Ministry of Social Justice Empowerment on 30.06.2011. The new “Rights of Persons With Disabilities Act” may be enacted soon and this Act may be called the “Rights of Persons with Disabilities Act, 2011”.
Hence this paper focuses the Rights of Persons with Disabilities under the Act, 2011.
India has signed and ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and thereby made an international commitment to promote and ensure the rights recognized in that convention. The Constitution of India is also resolves to secure to all its citizen justice, liberty, equality and fraternity and citizen with disability are an essential part of the Indian Human Diversity.
The Rights of Persons With Disabilities are-
- To integrity, dignity and respect with full participation and inclusion;
- To assert human interdependence and celebrate human diversity;
- To live a life free of shame, ridicule, or any form of disempowerment and stereotyping;
- To be bearers of all civil-political and socio-economic rights guaranteed by international and national law on an equal basis with others .
The Rights of Persons with Disabilities Act, 2011(here in after called the Act) totally contained 32 Sections which are inserted in seven Parts. Part-I deals the introduction (Sec’s 1&2), Part-II deals lifting barriers (Sec’s 3 to 8E), Part-III deals the legal capacity and civil political rights (Sec’s 9A to 21), Part-IV deals capacity development (Sec’s 22 to 28), Part-V deals regulatory and adjective authorities (Sec29), Part-VI deals offences and penalties (Sec 30), last Part i.e. Part-VII deals miscellaneous (Sec’s 31&32).
While interpreting the Act any Court, person or authority shall bear in mind that the provision of the Act shall be so construed as to promote equality before law, equal protection of laws and equal recognition before law to all persons with disability and the right to live with human dignity and personal liberty but shall not be construed effect of denying, suspending, reducing, or eliminating the legal capacity of any person with disability . So the construction of this Act is to be beneficiary construction on behalf of the persons with disabilities.
According to this Act Persons with Disabilities means “persons with autism spectrum conditions; blindness, cerebral palsy, deaf blindness, dyslexia, low-vision; hemophilia, thalassemia, leprosy affected, hearing impairment; speech impairment, specific learning disabilities, locomotor impairment; mental illness, chronic neurological conditions, mental retardation; muscular dystrophy, multiple sclerosis, multiple disabilities which in interaction with various barriers prevents full and effective participation in society on an equal basis with others; provided that the Central Government may, by notification, include any other impairment in the above list on the recommendation of an Expert Committee through a review every five years .
Rights of the Persons with disabilities:
In order to removing or lifting the barriers the appropriate governments and the Disability Rights Authority shall devise suitable information campaigns, and sensitization programmes which raise awareness on the direct and indirect discrimination directed against persons with disability and especially women and children with disability as a measure to prevent such discrimination. So the Act is given special protection to women and children with disability which is not available in the persons with disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Accessibility is an essential pre-condition to enable persons with disabilities to live independently and participate fully in all aspects of life hence the Act provided such accessibility on an equal basis with others to the physical environment, transportation, information and communications, including appropriate technologies and systems, and other facilities and services open or provided to the public, both in urban and in rural areas . For example the appropriate government shall set up Service Animal training facilities to provide persons with disabilities with suitable service animals . No individual, organization or establishment shall be granted permission to build any structure if the building plan does not adhere to the regulations formulated by the Disability Rights Authority . All existing public buildings used for government purposes shall be made accessible within a period not exceeding three years from the enactment of this Act . Any contravention of the regulations on accessibility formulated by the Disability Rights Authority shall be penalized with cancellation, revocation or suspension of service license or manufacturing; or with fine, which may extend up to one lakh rupees or with both. If the offender fails to comply with the above provision within a period of six months from the date of conviction, the offender shall be penalized with additional fine which may extend up to five thousand rupees for every day during which such failure continues after the conviction for first such failure .
In order to Right to Education of women and girls with disabilities ensures that all girls with disabilities have access to necessary, adequate and appropriate support for the completion of primary, secondary and higher education, and all school building are accessible to girls with disabilities .
Every child /women with disability whether temporarily or permanently protected against all forms of exploitation, abuse and violence at all place. The appropriate government shall take all appropriate measures to protect all girls and women with disabilities, whether in rural or urban areas, from all forms of exploitation, abuse and violence . Women with disabilities have a right to marry and found a family on the basis of free and full consent, on an equal basis with others. Termination of pregnancy without her express consent and contravention of this section shall be punishable with imprisonment for a period not exceeding ten years and with fine . The appropriate government shall take measures to ensure that all police stations, courts, tribunal etc, are accessible to child/women with disabilities . Procedure is prescribed for every person with disability shall be entitled to solemnize a marriage with a person of his or her choice. That the other spouse was aware of the disabilities of the person with disabilities at the time of marriage . Violation of this condition the marriage shall not be avoidable solely because one or both of the spouses were persons with disabilities at the time of the marriage. The marriage may be dissolved on the grounds of (i)irreconcilable differences have arise or (ii) on mutual consent of the party but the matter may be decided based on the best interest of child. In such matters, the court shall make en effort to consider the opinion of the child if rendered. And but the marriage shall not be nullified based solely on the ground that the other party is a person with disability.
Plenary guardianship is abolished. Any legislation, rule, regulation and practice following or prescribing the system of plenary guardianship shall, hereinafter, be void; The Disability Rights Authority or any other Authority expressly established for such purpose shall take suitable steps including, where appropriate, mediation proceedings, in order to assist person with disabilities to exist from plenary guardianship and to help set up where required by persons with disabilities suitable support arrangements for the exercise of their legal capacity . Any person with disability who is deprived of legal capacity or is denied of the exercise of legal capacity by any person, authority or agency may file a complaint of such deprivation or denial to State Disability Court which shall provide a suitable relief as expeditiously as possible .
Right to life includes not to limited to adequate nutrition, clothing and shelter, wellness and healthcare but also access to facilities for reading writing and expressing one-self in any form or language whether written, spoken, unspoken, or sign language and opportunity to acquire personal, social, educational and vocational skills required to function as a person with disability . Contravention of this shall be punished with imprisonment for a term which shall not be less than six months but which may extend to eight years, or with fine, or with both .
All persons with disabilities shall have the right to suitable protection and safety in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters .
Every person with disability shall have the right to access any scheme, programme, facility or service created by the National Legal Service Authority and the State Legal Service Authority of the respective State. The appropriate governments are made available to enable persons with disability to file a First Information Report. The Legal Services Authority, the Bar Council of India, the Bar Council of all States and bar association of all the courts are the authority responsible for infrastructure shall take steps to make all courts accessible for all persons with disability. All Judicial Academies, Police Academies and Training Organizations for Prison Officials and Legal Service Authorities are required to make training in disability rights a mandatory part of their induction and continuing education programs .
Every person with disability has a right to exercise franchise, stand for election. Every person with disability is entitled to form and be a member of any organization or association of his choice. No person with disabilities shall be disqualified to be chosen as a representative of the House of People (Lok Sabha), Council of States (Rajya Sabha), Legislative Assembly of a State and the Legislative Council of State and all institutions of local self government solely on the basis of their disability. The Election Commission in pursuance of the rights undertaken the followings-
The construction and availability of ramps at all polling booths;
Separate queues for persons with disabilities at all poling booths;
The availability of ballot papers and/or electronic voting machines with candidates information available in Braille;
Training programs to sensitize polling officers about the special requirements of persons with disabilities .
The appropriate government shall designate in every panchayat, municipal and notified area, officials or authorities who would be authorized to issue a disability certificate.
Every person with disabilities has a right to receive necessary, adequate and appropriate support for the completion of primary, secondary and higher education. Every child below the age of six years has a right to free childhood care and pre-school education. All institutions of higher education shall reserve not less than six percent of total seats in each course for persons with disabilities. Every school and higher educational institution shall have a staff of educators who have the requisite qualifications and training to cater to the needs of students with disabilities. No child shall be subject to physical punishment or mental harassment by reason of the disability or by denying reasonable accommodation. All schools shall ensure that children with disabilities shall have the right to participate in sporting, recreational and leisure activities on an equal basis with others.
Persons with disabilities shall not face discrimination in recruitment, promotion, and other related matters arising in the course of, or through the length of, employment in any establishment. They shall not be dismissed or suffer any reduction in rank solely on the grounds of acquiring any disability, or any consequences thereof. Provided that if any employee is placed under stress or disadvantage in the usual course of employment as a result of the disability, such employee will be eligible for a post at the same rank with adequate support. All establishments shall reserve not less than six percent of vacancies arising against all posts and in promotion for all persons with disabilities in accordance with the following banding of disabilities, with each band being entitled to one percent-
1. Persons with blindness and low vision;
2. Persons with hearing impairment and speech impairment;
3. Persons with locomotor disability and leprosy arrested;
4. Persons with cerebral palsy and muscular dystrophy;
5. Persons with autism, intellectual disability and mental illness;
6. Persons with multiple disabilities, deaf-blindness and multiple sclerosis.
If sufficient numbers of qualified persons with disabilities are not available in a particular year then the carry forward rule is applicable to the subsequent years. The percentage stated can be renewed and the classification altered upon review once every 3 years. No person with disability shall be denied promotion by reason of disability. Every Employment Exchange shall register in accordance with prescribed procedure and thereby maintain records of persons with disabilities seeking employment. All establishments and employers as the case may be shall arrange for the rehabilitation of an employee who acquires a disability during the course of service. If the employee cannot function on the same post even with the provision of reasonable accommodation then the establishment shall relocate the employee to a suitable post without any reduction in salary and rank on which the employee can perform whether with or without reasonable accommodation. The appropriate government shall within a period of one year of the enforcement of this Act provide incentives to all establishments to ensure that at least ten percent of their work force is composed with disabilities. Every establishment shall, as part of their Employment policy, set up a grievance redress cell. The officer-in-charge of such grievance redressal cell shall be termed the grievance redressal officer, and shall be registered with the State Disability Court. If the grievance redressal officer fails to address the complaint within two weeks of being registered, then the person with disability may approach the State Disability Court. All establishments shall provide medical insurance and life insurance to persons with disabilities on an equal basis with others.
Adjudicative Authorities:
The following authorities are established for the protecting and promoting the rights of the persons with disabilities in order to regulating and adjudication as per this Act .
Disability Rights Authority:
For the purpose of promoting, protecting and ensuring the full and equal enjoyment of all human rights and fundamental freedoms of all persons with disabilities, an Authority shall be established which shall be called the Disability Rights Authority . The Authority shall be a body corporate by the name aforesaid and have its head and seat in New Delhi. The Authority may establish offices at other places in India. It shall consist of a Chairperson and the members of governing body as full time members. For the purpose of this Act, a Fund is to be established by the name National Fund for Persons with Disabilities and shall be credited thereto. The Disability Rights Authority shall not be liable to pay wealth-tax, income-tax, or any other tax in respect of their wealth, income, profits or gains derived. Subject to the provisions of this Act, it shall be the duty of the Disability Rights Authority to promote, protect and monitor the enforcement of the rights of persons with disability by such measures as it deems fit. Authority has a power to suo moto to conduct investigation/inquiry for determining cases regarding any systemic violation of rights of persons with disabilities from various stakeholders. The Authority shall have the same powers as are vested in a civil court and in consultation with the parties shall develop a written undertaking that provides the measures which shall be taken to ensure compliance. Failure to comply with the aforementioned undertaking shall result in the imposition of sanctions and penalties. The parties against whom any sanctions and penalties has been imposed, may appeal to the Court of National Disability Commissioner. The Disability Rights Authority may where it considers feasible, endeavour to eliminate any discriminatory practice by informal methods of mediation and conciliation. The Disability Rights Authority shall submit an annual report to the Central Government or State Government as the case may be, and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the annual report.
Court of National Disability Commissioner:
The Central Government shall establish a Court of the National Disability Commissioners . This Court consist of three full-time members including-
a) One person who will be the presiding judge and has been qualified to be a Judge of Supreme Court;
b) Two persons having knowledge of disability law and having expertise and experience in human rights of persons with disabilities.
This Court shall –
a) Be the appellate authority from all original orders of the Disability Rights Authority;
b) Adjudicate upon matters referred to it by the Disability Rights Authority;
c) Take suo moto cognizance of the infringement of rights of persons with disabilities and pass appropriate orders or directions.
d) Any aggrieved person may directly approach the Court of National Disability Commissioner for matters related to disability discrimination.
This Court shall have the same powers vested in a civil court. The decree or order of this court may be executed either by the same court or by any other court to which it is sent for execution.
State Disability Courts:
The State Government shall establish a Court of the State Disability Commissioners to be known as “State Disability Court” . The State Government may establish a requisite number of Benches of State Disability Courts in different parts of the State having regard to demographic and geographic requirements. A Disability Court shall consist of two full-time members including-
a) One person who will be the presiding judge and shall be qualified to be a Judge of a High Court;
b) A person having knowledge of disability law and having expertise and experience in human rights of persons with disabilities.
The powers and functions of the State Disability Courts are same vested in Court of National Disability Commissioner.
Whoever fails to comply with any order made by the Court of the National Commissioner or the State Disability Courts, as the case may be, shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten lakhs rupees or both .
Conclusion:
Now let’s hope that everybody learns to treat a disabled with love and affection, treat him with equal dignity as shown to a normal person. To effectuate the statement in Universal Declaration of Human Rights, 1948 that all human beings are born equal and they are equal in dignity and rights, our attitude to the disabled should change. This has to come from everybody’s heart. The essence of the Rights of the Persons With Disabilities Act, 2011 should be honoured in letter and spirit. Let every disabled feel that the concept of human rights is not a myth for him, but a reality.