Ability Forum

[kodakkal]

The Right Handicapped

Justice R. K. Abichandani,
Judge, High Court of Gujarat




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 :


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.


_________________
KODAKKAL SHIVAPRASAD,FUWAI,
Award Winner & Record Holder-International Biographical NOte.
PRO- www.disabilityindia.org/legalaid.cfm#1
Web:http://www.kodakkal.ning.com
http://www.giveindia.org/m-890-society-for-child-development.aspx

The Right Handicapped

Justice R. K. Abichandani,
Judge, High Court of Gujarat




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 :


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.


_________________
KODAKKAL SHIVAPRASAD,FUWAI,
Award Winner & Record Holder-International Biographical NOte.
PRO- www.disabilityindia.org/legalaid.cfm#1
Web:http://www.kodakkal.ning.com
http://www.giveindia.org/m-890-society-for-child-development.aspx

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