Rights of person with Disabilities

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 20th 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
recognizes 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.

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.

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. 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, recognizes 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

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

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 color, 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 emphasized 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 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.

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.

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 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 favor 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.

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, the 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.’ Article 46 lays down an obligation on the State ‘ 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 recognized 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.

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
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.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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