I. The Constitutional Perspective :
The
concept of equality enshrined in
Article 14
of the Constitution of India itself
enjoins duty on the
State to
bring about a situation where
the fundamental
rights
can be exercised on
the footing of
equality. Necessarily therefore, a disabled person is entitled to a
right to be placed at the level at which he can enjoy the rights. The
duty of the
State to enact
special provisions to enable the
disabled persons to
exercise their fundamental rights is thus provided in Article 14
itself. In the background of this
fundamental right to equality, the directive principle
of State policy contained in Article 39A of the Constitution assumes significance.
Under that provision,
the State shall secure that the
operation of the legal system
promotes justice, on the basis of equal opportunity, and shall, in
particular, provide free
legal aid, by suitable
legislation or schemes or in any
other way, to
ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or
other disabilities. Therefore, no disability shall deny to
any citizen an opportunity to secure justice
on the basis of equal opportunity.
There is also
an important directive principle contained in Article 41
enjoining a duty on the State (within the
limits of its
economic policy and development) to make effective provision for
securing the right to work, to education and to public assistance
in cases of unemployment, old age, sickness and disablement and in other
cases of undeserved want. Thus, much
before
the progress
was made in the international arena, the
founding
fathers of the Constitution found
it necessary
to emphasize the duty of the State in Article
41 to make
effective
provision for securing the right
to work, to
education and
to public assistance
in cases of
disablement. The concepts of
justice social, economic
and
political, equality of status and of opportunity and
of assuring dignity of the individual
incorporated in the
Preamble, clearly recognize the right
of one and all
amongst
the citizens to these basic
essentials designed
to flower
the citizens’ personality
to its fullest.
Afterall,
an able-bodied person
can have many hidden
disabilities and an apparently disabled
person may have
many
hidden abilities, and the concept of equality helps
both in reaching their highest potential.
II. The
Disability Dimension :
More
than half a billion persons are disabled
as
a
result of mental, physical or sensory impairment and
unable
to enjoy life due to physical or social
barriers.
Nearly
80% of the world’s disabled
persons live in
developing countries. They
constitute a significant
reservoir of
human potential which can be tapped with
some efficient management and by
recognition of their
potential worth. Millions of disabled persons worldwide
are
reported to be living in misery and exclusion. The
Rapporteur on Disability of
the Commission for Social
Development - Bengt Lindqvist
reported to the Commission
(Press
Release dated 9th February 2000) that, the
fundamental rights of disabled
persons - including the
right
to education, parenthood, participation in
elections, access to courts of law,
and property rights
were consistently violated around the
world. Groups with
psychiatric and development
disabilities were extremely
vulnerable and often exposed to exclusion
and neglect.
The
Special Rapporteur told
the Commission for Social
Development that “People with disabilities were left
behind
in emergency situations
in armed conflict, and
disabled children were often hidden by
their families or
shut up
in inhuman institutions”. There obviously has
been
noticed a strong
link between disability
and
poverty;
and, persons with
disability tend to be less
educated and poorer than their more fortunate
brethren.
The
disability dimension is to be
regarded in the human
rights perspective; and concern for
disabled persons was
a
social and human rights issue.
III. The International
Efforts :
(i) The United
Nations General Assembly established the foundation for promotion
and protection of
human rights in 1948,
when it proclaimed
the Universal Declaration of Human
Rights. Article 25
of the Declaration states
that each person has, “the right
to security in the
event of unemployment, sickness, disability,
widowhood, old age
or other lack
of livelihood in the circumstances beyond his control.” The United
Nations was founded on the
principle of equality for all. The
Preamble of the Charter affirms the dignity and worth of every
human-being and gives
primary importance to the promotion of social justice. Persons with disabilities are, de facto,
entitled to all
the fundamental rights upheld by
the Charter and other human
rights instruments such
as International Covenant
on
Civil
and Political Rights and International Covenant on
Economic, Social and Cultural
Rights. Disability is
perhaps
the area in which the importance
of recognizing
the individuality and interdependence of
human rights and
fundamental freedoms as both
covenants do, is
most
evident and sharp.
(ii) The United
Nations has been active in promoting the well-being and rights
of persons with
physical disabilities through a range of social welfare approaches
and has provided assistance to
governments in disability prevention and rehabilitation of disabled persons
through advisory missions, workshops
for the training
of technical personnel and
setting up rehabilitation centres. In the year 1971, the General Assembly adopted
the
“Declaration on the
Rights of Mentally Retarded
Persons”, which
stipulated that mentally retarded persons
are accorded the same rights as other human
beings, as
well
as special rights corresponding to their needs in
the medical, educational and social
fields. In 1975, the
General Assembly adopted, the “Declaration
on the Rights
of
Disabled Persons” which
proclaimed equal civil and
political rights of disabled persons. Then in 1976, the
General
Assembly declared that the year 1981 will be the
International Year of Disabled Persons and
called for a
plan
for action at
the national, regional
and
international levels with an emphasis on
equalization of
opportunities, rehabilitation
and prevention of
disabilities. An important outcome of the
International
Year of Disabled Persons was the
formulation of the World
Programme
of Action concerning Disabled Persons, adopted
by
the General Assembly in December
1982. For
implementing the activities recommended
in the World
Programme of Action, within a time
frame, the General
Assembly proclaimed 1983 - 1992 the United
Nations Decade
of Disabled Persons. This exercise
led to the adoption
by the General Assembly of the
Standard Rules on
the
Equalization of Opportunities for
Persons with
Disabilities in 1993 which served as an
instrument for
policy
making and a
basis for technical and economic
co-operation.
IV. Standard Rules
on the Equalization of Opportunities for
Persons with Disabilities :
(i) In
its 85th Plenary Meeting
on 20th December 1993, the General Assembly adopted the Standard Rules on the Equalization of Opportunities for
Persons with Disabilities,
requesting Member States to apply the Rules in developing national
disability programmes. It was noted that there were persons
with disabilities in
all parts of the world and at all levels in every society and the number
of persons with disabilities in the world is large and is growing. The Standard Rules were developed on the basis of the
experience gained during the United Nations Decade of Disabled Persons (1983
- 1992). The International
Bill of Human
Rights, comprising the Universal Declaration of Human Rights,
the International
Covenant
on Economic, Social and Cultural Rights and the
International Covenant on Civil and
Political Rights, the
Convention on the Rights of the Child and
the Convention
on the Elimination of All Forms of
Discrimination against
Women,
as well as
the World Programme
of Action
concerning Disabled Persons, constitute
the political and
moral foundation for these Rules. Although the Rules are
not compulsory, they can become international customary
rules when applied by a
great number of States. The
purpose of the Rules is to ensure that
girls, boys, women
and men with disabilities, as members of
their societies,
may exercise the same rights and
obligations as others.
The
Rules emphasize the responsibility of States to take
appropriate action to remove the
obstacles that prevent
persons
with disabilities from exercising their rights
and
freedoms and make
it difficult for
them to
participate fully in the activities of
their societies.
(ii) The Standard
Rules are divided
into three sections : (i)
Preconditions for Equal Participation, (ii) Target Areas for
Equal Participation, and
(iii) Implementation Measures.
The first section
presents rules on different forms of support to the individual, medical care,
rehabilitation and various
forms of supportive
services. The purpose underlying
these Rules is to reduce the functional limitations and
increase the independence of the individual.
The section on
Target Areas for equal
participation deals with sectors and aspects of the society,
which are of general importance for the quality of life. The Rule on accessibility deals with all
the various aspects
of access to physical environment and
activities and services
generally available to non-disabled persons. The Rules on education, employment and income
maintenance and social
security, have great significance. The Rule on family
life and personal integrity is meant to
ensure the full
participation of persons with disabilities
in family life
and
to prevent discrimination against persons with
disability with respect to sexual
relationships, marriage
and parenthood. Rule 10 having a bearing
on Culture,
provides
that the States will ensure that persons with
disabilities are integrated into and
can participate in
cultural
activities on an equal basis and that persons
with disabilities have the opportunity
to utilise their
creative,
artistic and intellectual
potential, not only
for their own benefit, but also for
the enrichment of
their community, be they in urban or rural areas. The
third section, providing for Implementation Measures,
expects
States to establish a data bank on disability,
which would include statistics on
available services and
programmes as well as on the different groups of persons
with disabilities while bearing
in mind the
need to
protect individual privacy
and personal integrity. In
the field of policy making and planning,
the States are
expected
to ensure that disability
aspects are included
in all relevant policy making and national
planning. The
needs and
concerns of persons
with disabilities are
required
to be incorporated into general development
plans and are not be to treated
separately. The States
have
a responsibility to
create the legal basis for
measures to achieve the objectives of
full participation
and
equality for persons
with disabilities and it is
provided in Rule 15 that, national
legislation, embodying
the rights and obligations of citizens,
should include
the
rights and obligations of persons with disabilities.
The States are under an obligation to
enable persons with
disabilities to exercise their rights,
including their
human, civil and political rights, on an
equal basis with
other citizens. The States have the financial
responsibility for national
programmes and measures
to
create equal opportunities for persons
with disabilities.Disability involves all spheres of society and therefore, it
is necessary to use a comprehensive approach for which there would be
a constant need for
co-ordination. The States are,
therefore, made responsible for the establishment
and strengthening of national co-ordinating committees or
similar bodies, to
serve as a national focal point on disability matters. For an
effective implementation
of the Standard
Rules, monitoring mechanism is
incorporated in Chapter IV which
provided
that a
Special Rapporteur with relevant and extensive
experience in
disability issues and
international
organizations
shall be appointed.
V. The Persons
with Disabilities (Equal Opportunities, Protection
of Rights and
Full Participation) Act, 1995:-
(i) India was a signatory to the proclamation on the
Full Participation and
Equality of People
with Disabilities in the Asian and Pacific Region, which was
adopted at the Meeting to Launch the Asian
and Pacific
Decade
of Disabled Persons 1993 - 2002 convened by the
Economic and Social Commission for Asia and
Pacific at
Beijing on 1st December 1992
and with a view to implement
the
Proclamation, the Persons with Disabilities (Equal
Opportunities, Protection of Rights
and Full
Participation) Act, 1995 was enacted w.e.f. 1st January
1996.
The word ‘disability’ is defined in
section 2(i)
so
as to mean (i) blindness,
(ii) low vision, (iii)
leprosy - cured, (iv) hearing
impairment, (v) locomotor
disability, (vi) mental retardation, and (vii) mental
illness.
(ii) There are difficulties in defining the
expression
‘disability’ in a manner which
reflected the social
dimensions of disability, avoided considering of persons
with disabilities as abnormal or
inferior and reflected
the
fact that disability
was frequently dependent on
context and was required to be defined
or described for
certain purposes. The word ‘disability’ should connote
(a) the
total or partial absence of a person’s bodily
or
mental
functions, including the absence of a part of a
person’s body, (b) the presence in the
body of organisms
causing,
or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or
disfigurement of a
part
of a person’s body, (d) a
condition or malfunction
which results in a person learning
differently from a
person
without the condition
or malfunction, or (e) a
condition, disease or illness which affects
a person’s
thought
processes, perception of
reality, emotions or
judgement or which results in disturbed
behaviour.
(iii) The
Act intends to provide for the following,
as is apparent from
the statement of
objectives and reasons:-
“(i) to
spell out the responsibility of
the State towards the
prevention of disabilities, protection of rights, provision of medical care,
education,
training,
employment and rehabilitation
of persons with disabilities;
(ii) to
create barrier-free environment
for persons with disabilities.
(iii) to remove any
discrimination against persons
with disabilities in the sharing
of development benefits, vis-a-vis,
non-disabled
persons;
(iv)
to counteract any situation of the
abuse and the exploitation of persons
disabilities;
(v)
to lay down strategies for comprehensive
development of programmes
and services and equalization of
opportunities for persons with
disabilities; and
(vi)
to make special provision for
the integration of persons with
disabilities
into
the social mainstream.”
(iv) In Javed
Abidi v. Union of India, AIR 1999 SC
512), the Supreme Court, keeping in
view the objectives
of
the Act, while agreeing that the economic capacity is
a relevant consideration while deciding
the question as
to
whether all persons
suffering from disability as
defined under section 2(i) of the Act
should be granted
concession like the blind persons for travelling by air,
held that the Court cannot ignore the
true spirit and
object
with which the Act was enacted
to create barrier
free environment for persons with
disabilities and to
make
special provisions for the integration of persons
with disabilities into the social
mainstream apart from
the
protection of rights,
provision of medical care,
education, training, employment and
rehabilitation which
are some of the prime objectives of the
Act. The Supreme
Court
bearing in mind
the discomfort and harassment a
person suffering from locomotor
disability would face
while
travelling by train particularly to far of places,
issued a
direction to the
Indian Airlines to
grant
persons suffering from locomotor
disability to the extent
of
80%, the same concession which the Airlines is giving
to those suffering from blindness. This is an
important
decision,
because, despite the
plea that the economic
condition of the Indian Airlines was such
that it was not
feasible to grant any further concession
to any other
category
of disabled persons,
and that the Act itself
postulates for providing facilities
to the disabled
persons within the limits of economic
capacity, the Court
issued
the above directions
keeping in view the broad
objectives of the Act.
VI. Evolution
of Thinking About Disability Issues :-
(i) “The
move from the patronising and
paternalistic approach to
persons with disabilities represented by the medical model to viewing them as
members of the community with
equal rights has
also been reflected
in the evolution of
international standards relating specifically to disability, as
well as in moves to place the rights
of persons with
disabilities within the category of universal human
rights”. (See Report of the United
Nations Consultative Expert
Group Meeting on
International Norms and
Standards Relating to Disability10-2-2001). Some
provisions of the earlier
instruments are based on assumptions and analyses which do not
reflect current thinking and
which persons with disabilities would today
consider inappropriate or offensive. One such example was the reference in Article 7 of
the Declaration on the Rights of
Disabled Persons (1975) to the right of
disabled persons “according
to their capabilities, to secure and retain employment or to engage in
a useful, productive
and remunerative
occupation”. The traditional approaches
to disability have depicted
it as health and welfare issue, to be addressed through
care provided to
persons with disabilities,
from a
charitable point of
view. The disabled persons are
viewed as abnormal, deserving of pity and care, and not as individuals who
are entitled to enjoy the same
opportunities to live
a full and satisfying life as other members of society. This
has resulted in marginalizing
the disabled persons and their
exclusion both from the mainstream of
the society and
enjoyment
of their fundamental
rights and freedoms. Disability tends to be
couched within a
medical and welfare framework,
identifying people with disabilities as ill, different from their
non-disabled peers, and in need of
care. Because the emphasis is on the medical needs of
people with disabilities, there is a corresponding neglect of their wider social needs, which has resulted
in severe isolation
for people with disabilities and their
families. (See “South
African Integrated National
Disability Strategy”, White
Paper
Office of
the Deputy President of South
Africa, 1997).
Disability
is a result both of the biological condition
of the individual and of the social status that
attaches
to
that biological condition. The subject
of the rights
of persons with disabilities should be
approached from a
human
rights perspective, which recognised
that persons
with disabilities were entitled to enjoy the full range
of
internationally guaranteed rights and freedoms without
discrimination
on the ground of disability. This
creates
an
obligation on the part of the State to
take positive
measures to
ensure that in
reality persons with
disabilities get enabled to exercise those
rights. There
should be insistence on the full measure
of general human
rights
guarantees in the
case of persons with
disabilities, as well as developing specific instruments
that refine and give detailed contextual
content to those
general guarantees. There should be a full recognition
of
the fact that persons with disability were integral
part of the community, equal in dignity
and entitled to
enjoy the same human rights and freedoms
as others.
(ii) In
recent years, however, the approach has indeed been of a broader
understanding of disability,
which recognizes that the
circumstances of people
with disabilities and the
discrimination they face
are socially created phenomena and have little to do with the impairments
of people with disabilities. This is a critical
reorientation of perspective, which has important
implications for the way
in which law
and
policy in
relation to disability are developed. It is
recognised that problem does not reside
in the person
with
a disability, but
results from the structures,
practices and attitudes that prevent that
individual from
exercising his or her capabilities. The
South African
White Paper on an Integrated National
Disability Strategy
(supra),
illustrates the significance of the shift in
perspective from the “medical model”
to the “social
Model” by the following examples :
§
“It is the stairs leading into a building that
§
disable the wheelchair user rather
than the wheel
§
chair.
§
§
It is defects in the design of
everyday equipment
§
that cause difficulties, not
the abilities of
§
people
using it.
§
§
It
is society’s lack
of skill in
using and
§
accepting alternative ways to
communicate that
§
excludes
people with communication disabilities.
§
§
It
is the inability of the ordinary schools to
§
deal with diversity in the
classroom that forces
§
children
with disabilities into special schools.”
§
VII. The
Legislation and its Interpretation :
(a) The
following aspects should
guide the
legislation and
its interpretation in
context of the
disabled persons :
[i] Individuals with disabilities are
the most disadvantaged groups
in society and
still
encounter daily discriminations in every
facet of
life;
[ii] Disability is a natural part of life
and does not in any way diminish the right of
individuals to
live
independently, make choices,
contribute to
society,
and pursue meaningful careers;
[iii]
For an
increased employment of individuals with disability, there should be
increased access to
needed
training, supports and
reasonable
accommodation;
[iv]
Individuals with disabilities should be
afforded tools to make informed choices and decisions, and
to achieve
equality of opportunity, full
inclusion
and integration in society;
[v] Individuals with even the
most severe disabilities should
be presumed to be capable of
gainful
employment and be
provided the needed
supports for the purpose.
(b) The
law should recognize that disability
is a natural part
of the human experience and it does not in any way diminish the
right of individuals to independently
enjoy self-determination, make
choices, contribute to society,
pursue meaningful careers,
and enjoy full inclusion
and integration in the economic,
political, social, cultural and
educational systems of Indian society. With the advancement in technology and advent of supports, as
may be provided through supported
employment, the notion
of equating disability
with inability to work is erroneous
and outmoded. There should be a presumption
of ability that a person can
achieve
employment and other
rehabilitation goals
regardless of the severity of his or
her disability, if
appropriate services and
supports are made
available. There should also be a presumption that an individual can
benefit in terms of ‘employment
outcome’ from vocational rehabilitation services - unless it is
demonstrated by clear and
convincing evidence that such individual is incapable of benefitting from the vocational rehabilitation services
in terms of
an employment outcome.
VIII. Individualised
Rehabilitation :
The
State should maintain data in respect of each
disabled
person and his
technology needs should
be
addressed in a personalised
rehabilitation programme by
including a statement of
specific rehabilitation
technology services which could be
provided to assist in
the
implementation of intermediate rehabilitation
objectives and long term rehabilitation goals for the
individual. There should be
a regular and periodic
assessment
to ensure that adequate supports and
specific
technology is aimed at the current and changing needs of
the individual who will be using the
technology. The
rehabilitation programme must be designed to achieve the
employment objectives of the individual
concerned with
his
or her unique strength,
priorities, abilities and
capabilities. There should also be given a choice to the
individual disabled person in selecting
the field of his
engagement.
IX. Conclusion
:
The
existing laws and the constitutional equality provision, if
properly implemented, should
ensure a fuller life with
dignity to the disabled persons. The financial constraints cannot be
putforth by the State for dealing
with the implementation of the programmes reflected in
the provisions of
the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full
Participation) Act, 1995.
There is a Constitutional obligation on the
part of the State to ensure
equal opportunity to
all persons including disabled persons. This
gives them a
right to seek removal of their
handicaps so as to
place them on a
competitive level
with others by
making supportive
provisions which can enable
them to exercise
their
fundamental right to life
to its fullest extent.
Discrimination
on the ground of disabilities should
be
penalised
and the provider of a service should be duty
bound to do all that is reasonable
to accommodate the
needs of a person with a disability by providing
special
treatment
or facilities, if
without such special
treatment or facilities, it would be
impossible or unduly
difficult
for such person to avail himself or herself of
the service.
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