Laws for protecting the right of disabled persons: A critical study.

disabled personsAdvocate 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:
 Blindness
 Low vision
 Leprosy-cured
 Hearing impairment
 Loco motor disability.
 Mental retardation.
 Mental illness.
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.
 Non-discrimination.
 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.

RECOMMENDATIONS
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.

CONCLUSION
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.

The Rights of Persons with Disability Act, 2011: A Bird’s Eye View

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.