Rights of person with Disabilities: A Human right approach

INTRODUCTION

Today disabled persons constitute the largest minority in the world; more than 650
million individuals i.e. 10 percent of the world's total population suffer from some type of
disability. In the majority of countries, at least 1 out of 10 persons has a physical, mental or
sensory impairment. In India more than 50 million of the people are facing problem of
disability in one way or another. Although the Constitution of India guarantees persons with
disabilities the full range of civil, political, economic, cultural and social rights, the
arrangements necessary to translate the constitutional guarantees into reality have been
conspicuously absent till recently. They are often denied basic human rights and
unwelcomed in the society. This is particularly so when the disability is mental or
psychological. Only After in the last quarter of the 20 th century, there has been growing
awareness in the disability sector both at the national and international levels. The period of
1983- 1992 which was proclaimed by the general Assembly as the U.N Decade for disabled
person, a global movement has emerged which recognises the importance of integration of
people with disabilities in the society. Today the issues relating to the disabled are no longer
mere welfare measures but have grown into fundamental human right issue, a demand for full
participation, equal opportunity and protection of rights from all perspectives have been
taking place.

The dominant social attitude towards persons with disability has been one of pity,
from which springs insidious forms of discrimination - the eventual source of their exclusion
and extreme isolation. Effects of disability- based discrimination have been particularly
severe in fields such as education, employment, housing, transport, cultural life and access to
public place and services. Despite some progress in the terms of legislation, such violations of
the human rights of persons with disability have not been systematically addressed in the

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society. The statistics data on their situation in India shows that there need more reforms and
policy changes for them. Situations of person with disability often have been kept till
rehabilitation and social services. A need exist for more comprehensive legislation to ensure
the rights of disabled persons in all aspects – Political, Civil, Cultural, and economic rights-
on an equal basis with persons without disabilities. Appropriate measures are required to
address the existing discrimination and to promote thereby opportunities for persons with
disabilities in social life and development.

CONCEPT AND MEANING OF DISABLEMENT

Disabilities is an umbrella term, covering impairments, activity limitations, and participation

restrictions. An impairment is a problem in body function or structure; an activity limitation
is a difficulty encountered by an individual in executing a task or action; while a participation
restriction is a problem experienced by an individual in involvement in life situations. Thus,
disability is a complex phenomenon, reflecting an interaction between features of a person’s
body and features of the society in which he or she lives.

— World Health Organization, Disabilities

Disability is not a tragedy but an inconvenience. As noted above, about 650 million persons
or one-tenth of the world’s population are estimated to be disabled in one form or another,
e.g., Visual, auditory, physical, speech, cognitive and neurological. Unlike the disability
legislation in various countries, the persons with Disabilities (Equal opportunity, Protection
of Rights and Full Participation), Act 1995 in India, recognises only limited forms of
disabilities such as:

I. Blindness;
II. Low vision;
III. Leprosy-cured;
IV. Hearing impairment;
V. Locomotors disability;
VI. Mental retardation
VII. Mental illness

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Disability means the state or quality of being mentally or physically disabled or weakness,
incapacity or inability to hold a certain job because of physical or mental handicap, want or
legal qualification.

In pursuance of the U.N. Charter, the General Assembly of the United Nations, adopted the
Declaration on the Rights of the Disabled Persons. The term "disabled person" means "any
person unable to ensure for himself or herself wholly or partly the necessities of a normal
individual and or social life as a result of a deficiency, either congenital or not, in his or her
physical or mental capabilities". The conditions of disability have been dealt with by
legislations in two kinds of situations in India. One, which determines compensation on the
occurrence of disability—whether it be on road or workplace. The Workmen's Compensation
Act, 1923 and the Motor Vehicles Act, 1988 are two major statutes which are related with
compensation-related disability legislations. The second situation of disability law making is
when persons are disqualified from educational opportunities or undertaking particular jobs
due to their disabilities. However, the important of these laws is the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

INTERNATIONAL INITIATIVES

The United Nations since its inception in 1945 is making a relentless campaign for the
protection of human rights of all in general and various deprived sections in particular. Based
on the International Bill of Rights, the U.N. formulated the first specific document regarding
disabilities in 1971 in the form of Declaration on the Rights of Mentally Retarded Persons.
Basically, all international human rights instruments, protect the human rights of persons with
disabilities, as they apply to all persons, thus principle of universality is reinforced by the
principles of equality and non-discrimination which are included in human rights instruments.
International human rights law determines that every person has:

1. The right to equality.

2. The right to non-discrimination.

3. The right to equal opportunity.

4. The right to independent living.

5. The right to full integration.

6. The right to security

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The Universal Declaration of Human Rights (UDHR) represents the normative basis that led
to formulating the standards concerning persons with disabilities that exist today. In Article
25 (1) of the UDHR specifically mentions the socio-economic rights of people with
disabilities: the right to an adequate standard of living, including food, clothing, housing and
medical care and social services and the right to security in the event of unemployment,
sickness, disability, widowhood, and old age or other lack of livelihood in circumstances
beyond his control. The Universal Declaration recognises a form of equity inherent in human
dignity with equal and inalienable rights as the foundation of freedom and justice; that all
men are born free, and equal in dignity and rights; that all are equal before the law; and that
all are entitled to equal protection against discrimination and that everyone has the right to
freedom of thought

International Covenant on Civil and Political Rights, 1966 (ICCPR) lists several rights that
are relevant to disability. Article 26 states that all people are equal before the law and have
the right to equal protection of the law. Although the International Covenant on Economic,
Social and Cultural Rights (ICESCR) does not specifically refer to disability, however it can
be included under -other status" in Article 2(2), which calls for non-discrimination on any
grounds such as race and colour, and "other status".

In 1969, the United Nations General Assembly adopted the Declaration on Social Progress
and Development,' which started the movement relating to the right of persons with disability.
The
Declaration while proclaiming the right to live in dignity for all people emphasised the need
to assure disadvantaged sectors of the population equal opportunities for social and economic
advancement.

In 1971 General Assembly adopted the declaration on the rights of mentally disabled persons.
The Declaration states that: "The mentally retarded person has, to the maximum degree of
feasibility, the same rights as other human beings". The Declaration calls for national and
international guidance as would enable him to develop his maximum potential. Proper
medical care and such education, training, rehabilitation and the rights of disabled persons.
The mentally retarded person has a right to action to ensure that it will be used as a common
basis for the protection and international action to ensure that it will be used as a common
basis for the protection of the rights of disabled person. He will also have the right to

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economic security and to a decent standard of living to do productive work or engage in other
meaningful occupations to the fullest extent of his capability

In 1975, the General Assembly adopted the "Declaration on the Rights of Disabled Persons.”
It was the first international document that tried to define the term "disability". Like the
Declaration on Mentally Retarded Persons, this Declaration also stresses that disabled persons
have the inherent right to respect for their human dignity and the right to enjoy a decent life,
as normal and full as possible. They are entitled to measures designed to enable them to
become as self-reliant as possible, and that their special needs must be taken into
consideration at all stages of economic and social planning.

The Declaration on the Rights of Deaf-Blind Persons, 1979 also guarantees universal human
rights to all deaf-blind persons. Article 1 of the Declaration states that “….. every deaf-blind
person is entitled to enjoy the universal rights that are guaranteed to all people by the
Universal Declaration of Human Rights and the rights provided for all disabled persons by
the Declaration of the Rights of Disabled Persons".

In a landmark resolution adopted on 16 December 1976, the United Year' of Nations General
Assembly proclaimed 1981 as the "international Disabled Persons" with the theme "Full
Participation and Equality". Two international human right treaties, namely the convention on
the Elimination of All forms of Discrimination Against Women, 1979 (CEDAW), and the
Convention on the Rights of the Child (CRC) highlighted particular vulnerability of women
and children to right abuse.

Thus, the United Nations and its various agencies are contributing substantially towards the
integration of persons with disabilities by adopting various conventions, declarations and
recommendations.

NATIONAL LEGAL FRAMEWORK

 CONSTITUTION OF INDIA

Equality, dignity, autonomy and liberty are the founding principles on which international
human rights law is premised. These values have sufficiently influenced the fundamental law
of democratic polity and are reflected in Constitutions of most democratic States including
India. The Preamble to the Constitution of India while giving a structure and philosophy of
governance clearly proclaims to,

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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.

• Equality

Under right to equality the Constitution of India guarantees to all citizens equality before law
and equal protection of law (Article 14); and it prohibits discrimination on grounds of
‘religion, race, caste, sex, place of birth or any of them’ (Articles 15 and 16). Further, to
ensure equality in the outcome, it encourages the State, under Articles 16(3) and 16(4), to
frame any law or make provision for the reservation of appointments or posts in favour of any
backward class of citizens, which, in the opinion of the State, is not adequately represented in
its services.

• Non-Discrimination

The formal recognition of discrimination on grounds of disability is a recent phenomenon and

laws enacted even twenty years ago generally did not include disability in the list of
prohibited discriminations. For instance, the Constitution in Articles 15 and 16 prohibits
discrimination in the matter of employment and access to public facilities on grounds of
religion, race, caste, sex and place of birth, but is silent on disability. In fact, the service rules
until 1995 prevented entry of persons with disabilities in higher grades of service. These rules
gave the employer the authority to force premature retirement in public interest and often
employees who acquired disability during service were either forced out of job or got their
rank reduced. In most cases their opportunity for career enhancement was suspended forever.

• Directive Principles of State Policy and the Fundamental Rights

The Preamble, the Directive Principles of State Policy and the Fundamental Rights enshrined
in the Constitution, envisage a very positive role for the State towards its disadvantaged
citizens.

Article 41 declares that, ‘(T)he State shall, within the limits of its economic capacity and
development make effective provision for securing the right to work, to education and to
public assistance in cases of unemployment, old age, sickness and disablement.’

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Article 46 lays down an obligation on the State ‘(T) to promote with special care the
educational and economic interests of the weaker sections of the people, and … protect them
from social injustice and all forms of exploitation.’

 PROTECTION OF HUMAN RIGHTS ACT, 1993

After ratification of International Covenant on Economic, Social and Cultural Rights

(ICESCR) and International Covenant on Civil and Political Rights (ICCPR), India brought
into force the Protection of Human Rights Act, 1993. This Act provides for the establishment
of National Human Rights Commission and States Human Rights Commissions for better
protection of human rights. Section 2(d) of this Act defines ‘human rights’ as: ‘the rights
relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution
or embodied in international covenants and enforceable by courts in India’. Thus, the Act
provides a mechanism to monitor the implementation of various constitutional provisions and
obligations under international covenants on different rights, including economic, social and
cultural rights. This also indicates India’s readiness to implement non-justiciable rights.

DISABILITY LAWS:

During the 1970s a distinct self-advocacy movement of people with disabilities started a
sustained campaign demanding protection and recognition of their human rights. Towards
this end, it sought enactment of a comprehensive legislation having a rights-based approach
with special emphasis on social and economic rights. Though the government recognised the
need for such a legislation as early as 1980, it was enacted only in 1995. The delay could be
attributed to the fact that the Indian Constitution while distributing legislative powers
between the Centre and States kept the disability issue in the State list at Entry 9 of Schedule
7. The Parliament of India gained competence to legislate on disability issues with the signing
of the Proclamation of Equality and Full Participation of People with Disabilities in Asian
and Pacific Region. Article 249 of the Constitution empowers the Parliament to legislate on
any subject falling in any list in order to fulfil its international obligations.

Some of the other important Acts are

 Persons with Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995

This Act is a combination of service-oriented and rights-based legislation, based on the

following approaches: prohibition of discrimination on the ground of disability in different

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spheres of life; positive discrimination in favour of people with disabilities; grant of
relaxation in their favour to overcome respective disabilities; and their inclusion in
mainstream programmes. The Act provides for both preventive and promotional aspects of
rehabilitation like education, employment and vocational training, reservations, research and
manpower development and creation of a barrier-free environment.

 National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999

The Act was passed by the Parliament with a very progressive objective, namely to enable
persons with disability to live as independently and as fully as possible within and close to the
community to which they belong. The idea is not to push people out of the society and keep
them in residential institutions but to encourage them to live within their family. They have
the right to live with their family. Another objective is to evolve procedures for appointment
of guardians and trustees for persons with disabilities requiring such protection. The Act also
provides for creating conducive environment in the community and also envisages
counselling and training of family members of persons with disability.

INDIAN JUDICIARY

The role of judiciary in protection and empowerment of persons with disabilities is an

important one. In recent times, the Indian judiciary has emerged as the protector of human
rights and its responses towards violation of human rights have been optimistic. Though
initially scanty, judicial activism in the field of human rights is beginning to emerge as a new
hope for the vulnerable groups. The Supreme Court in a number of cases has progressively
interpreted the Disabilities Act 1995 for the benefits of disables persons. In Javed Abidi v.
Union of India, the Supreme Court, keeping me view the objectives of the Act, hold that the
Court cannot ignore the true spirit and object of the Act to create a barrier free environment
for persons with disabilities and to make special provisions for the integration of persons with
disabilities into the social mainstream. In Chandan Kumar Banik v. State of West Bengal The
Supreme Court had to intervene in order to provide respite to mentally challenged inmates of

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hospital in Hooghli district who were being kept chained by the hospital administration to
control their unruly or violent behaviour.

In Sheela Barse v. Union of India directions were issued by the Supreme Court that
physically and mentally retarded children and abandoned or destitute children shall be lodged
in protective or observation homes and if such children are accused of any offence, the
investigation and trial against them be expedited by setting up juvenile courts in each district
and a cadre of trained magistrates for dealing with such cases be formed.

In National Federation of Blind v. Union Public Service Cornmission, the Supreme Court was
activated so that the Public Service Commission may be directed to allow blind persons to
compete in the exams for the Indian Administrative and Allied services. The petition was
allowed by the Court. The Court also acceded to the petitioners request to write the
examination in Braille scripts or with the help of scribe.

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 SUGGESTIONS AND RECOMMENDATIONS

All the attempts made till to date in India for providing equal rights and opportunities for the
persons with disabilities are purely based on medical model and lack the social, economic,
and legal perspective making such protection discriminatory. However, the future of the
disabled individuals is not all that gloomy there is lot of scope for amendments to the existing
legislation PD Act 1995 in conformity with UN Convention on the Rights of Persons with
Disabilities (2006) to which India a signatory in the following areas:

• Inclusion of a new definition on ‘persons with disabilities that endorses the social
model of disability as it locates the problem of disability outside the individual
person.
• Inclusion of Right to Barrier free environment in order to ensure proper accessibility
to the persons with disability in all buildings and facilities both in rural and urban
areas. In this regard the State must formulate suitable Accessibility Standards from
time to time by adapting prevailing international standards on physical environment
information and communication technologies and develop systems that are suitable to
Indian conditions.
• Promotion of Right to Equality and Non-Discrimination and ‘reasonable
accommodation’ by the State would enable them to have access to, participate in, or
advance in employment, to enjoy legal capacity on an equal basis with others in all
aspects of life right.
• As women and girls with disabilities are more vulnerable to all kinds of exploitation,
abuse and violence, they must be taken care off in all settings at all places including,
home, care-houses, educational institutions, institutions, workplaces.
• The Right to access court is an essential component of guaranteeing the enjoyment of
any right therefore, all buildings which are related to the justice system, including
courts and police stations, should be made accessible to persons with disabilities.
• To promote, protect and enforce the rights of the persons with disability on an equal
basis with others a Disability Rights Authority (DRA) must be constituted.

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 CONCLUSION

It is evident from the review given in the preceding paragraphs that the worldwide disabilities
rights movement has initiated a new thinking among non-disabled persons that people with
disabilities must also be provided with equal opportunities and equal treatment by society.
Despite international and national movements, it is evident from the various data that the
existing facilities are extremely inadequate. In certain cases, the foundation has been laid
while in others, a beginning has to be made. Even though, laws have been passed for the
protection of the rights of persons with disabilities, enforcement of the same has been tardy.
However, the new laws cannot bring the rights of the disabled until we as human beings,
thinks that in addition to access, education, health care, rehabilitation services and
employment, all people with disabilities need a safe, secure and accessible environment
which is respectful of their dignity. We need to learn to care for all human beings as human
beings, with due respect for all their differences.

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REFERENCES:-

Books

ANTHONY, M J: Rights of persons with disabilities. (Indian Social Institute, New Delhi,
1999)

AWADHESH KUMAR SINGH, Rights of the Disabled: Perspective, Legal Protection and
Issues.(Serials Publication, New Delhi, 2002)

DESPOUY, Leandro: Human rights and disabled. (United Nations, New York, 1993)

KRISHNA.V.R, Human rights in India. (Central Law Agency,Lucknow,2008)

Web links:

http://nhrc.nic.in/ http://www.un.org/disabilities/index.asp

https://en.wikipedia.org/wiki/Disability http://www.deafadvocacy.org

http://www.ohchr.org/EN/Issues/Disability/Pages/DisabilityIndex.asp

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