New Era In The Lives Of Disabled In India – Legal Commentary

 Jalaj Pandey, IIIrd Year,  B.A. LLB (Hons), West Bengal National University Of Juridical  Sciences

The much ‘demonetized’ month of November and December overshadowed the recent passing of the landmark Rights of Persons with Disabilities Bill, 2014 (hereinafter ‘Bill’). The Bill is set to repeal the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995. While the Bill is being considered a giant leap in the Indian Disabilities Movement, the lack of media coverage received to the issue shows the persistent otherization and general neglect, people with disabilities receive in India.[1] Despite the media’s apathetic response to the issue, the Bill has succeeded in several aspects and has brought imperative amendments. There have been several criticisms of the Bill but the overall conclusion of the disabilities rights activists has been more than favourable.

The article has been divided into two parts. Part I deals with salient features of the Bill, elaborating upon the key changes that have been made. It also covers several criticisms of the Bill. Part II deals with the issue of execution of the Bill and discusses that the Act could only be a true success if it fulfils in reaching out to the disabled persons in the country. The author believes that a mere legal framework would have no meaning, if the Act fails to work at the social level.

Part I

India became a signatory to the United Nations Convention on Rights of Persons with Disabilities in 2007 and subsequently ratified it.[2] It is morally reprehensible that a country which has a population of more than 60 million people suffering from different disabilities took almost a decade to pass a legislative provision to cater to their needs.[3] The recent passing of the Bill holds an immense symbolic value that reflects upon the decade long battle of persons with disabilities in India.

One of the revolutionary changes brought in the Bill is increasing the ambit of the word ‘disabilities.’ There has been an increase from 7 to 21 conditions that would come within the purview of disabilities as defined in the Bill.[4] The list of disabilities conditions mentioned in the Bill is not exhaustive. The power to increase the list has been reserved with the Government. The Bill has included conditions like Specific Learning Disabilities, Speech and Language Disability, Sickle Cell Disease, Thalassemia, Chronic Neurological Conditions and Parkinson’s disease.[5] The inclusion of disabilities from acid attacks and the Bill mentioning the special needs for women with disabilities is highly commendable. It is being widely applauded by feminist groups across the country.  Further the Bill has defined persons with benchmark disabilities that can avail of benefits such as reservation in education, employment, other schemes, etc. the quantum of which has been increased from 3% to 4%.[6] This has been one of the criticisms of the Bill, as many believe that the increased percentage is not commensurate to the population of persons with disabilities. The increased list of disabilities would further bring more persons within the bracket, and 4% reservation would fail to serve the purpose of the Bill.

The Bill has approved universal certification system by giving Disabilities certificates that would be valid throughout the country. Such a system is expected to ease out the process of distribution of entitlements. Prior to the Bill, disabilities certificates were given by each States, which were often questioned and in some cases not recognized in other States.[7] Such administrative issues would be hopefully tackled as a result of universal certification. Another change brought in the Bill, is with the interpretation of the word, ‘establishment’ which has included both Government and private buildings to conform as per the provisions to make ‘barrier free’ buildings.[8] Other amendments include –

  1. free education for children (6-18 years in age) with benchmark disabilities;
  2. increasing the strength of the office of Chief Commissioner and State Commissioners along with setting up of District Level committees

iii.   provisions for guardianship for mentally challenged persons, etc

are likely to have a remarkable impact at the social level.[9]

Despite the multiple positives, the Bill has been weakened compared to the prior Disabilities Draft Bill which was submitted to the Parliament in 2011. One of major problems of the Bill is lack of special legal mechanisms for enforcing the provisions of the Bill. National Commissions or State Commissions which would have judicial powers at par with civil courts are an absolute necessity for enforcement. The Commissions have not been included in the Bill. Further the absence of any penal provisions of imprisonment for crimes committed against persons with disabilities makes the Bill extremely weak on the enforcement front.[10]

While the Bill has brought numerous positive changes it has rested to a great extent on the existing administrative and executive structures for enforcement.  The Bill in this regards has been feeble and it would be interesting to see how the Government goes about in implementing the Bill.

Part II

The Bill is undeniably a major step forward but it remains to be seen is how it works in empowering persons with disabilities. There are several road blocks that the Bill would have to address in order to be a true success.

Implementation of legal provisions

The story of Persons with Disabilities has been a disheartening one for a long time. The primary reason for this has been the ineffective implementation of legal provisions. Bureaucratic corruption, research and information database discrepancies and orthodox social traditions plague the process of implementation.[11] On counts of accessibility and availability of resources for persons with disabilities, rural areas fare worse off as compared to urban areas. Lack of monitoring bodies with vague accountability procedures give a sad commentary of the poor governmental functioning at the smallest social levels. There is a lack of general physicians, intermediate level supervisors, technicians, resource teachers and vocational trainers that could directly engage with the problems of persons with disabilities deprive.[12] The shadow report released by Chief Commissioner for Persons with Disability in 2009 stated that the utilisation of funds by the central government had been vacant for over nine months.[13] In light of these problems it is essential that Government takes special care in galvanizing the existing monitoring bodies. Monthly and Annual reports concerning the functioning of such governmental bodies need to be mandated. Proper checks and balances need to be introduced to enhance the execution of laws.

It has also been recorded that there exists an area wise implementation discrepancy. The National Centre for Promotion of Employment for Disabled People’s Disability Law Unit revealed shocking statistics in 2005. The report stated that no comprehensive policy on disability existed in the North Eastern States. Barring Meghalaya and Nagaland, the other north eastern states did not even have a full time Commissioner and where there was one, the Commissioner was not active.[14] Post the enactment of Disabilities Act, 1995, in states of Arunachal Pradesh, Mizoram, Meghalaya and Nagaland, no steps were taken for identification of persons with disabilities for jobs and reservation of posts against vacancies in listed jobs. [15] These facts put grave concerns not just on the lives of persons with disabilities but also on the integrity of the nation.

The primary objectives of legislative provisions on disabilities is ensure that persons with disabilities are able to maximize their physical and mental abilities, have access to regular services and opportunities and achieve full integration within communities.[16] The objective can never be fulfilled if the Bill fails to address the problems that exist at the ground level.

Awareness and tackling social stigma

Problems of social stigma and lack of awareness pave way for stereotyping of persons with disabilities in India. Orthodox social traditions have constructed disgusting notions to physical and mental disabilities. A number of communities in India regard disabilities a result of karma, and a person with disabilities is socially labelled as one who is bearing the aftermath of one’s wrongdoings of current and former life.[17] Such social stigmas perpetuate discrimination against person with disabilities which damages their identity. It is for this reason that there is widespread problem of persons with disabilities in asserting their rights and entitlements. Even in the urban areas, discourse on the persons with disabilities is quite deplorable. The identity of person with disabilities is woven around a sympathetic perspective, creating a narrative of dependency. Their entitlements are viewed as charities and they are classified as dependent lots of the society. For enabling persons with disabilities to access the opportunities created by the Bill, it is essential that such narratives are broken down. Their skills should be recognized and they should be viewed as individuals with potential skills contributing to the society.[18]

Awareness campaigns can play an important role in resolving such problems. The recent Accessible India Campaign launched by the Department of Empowerment of Persons with Disabilities is one such awareness program. It has been working progressively against the biased narratives against person with disabilities.[19]

Further it is essential that an enhanced participation from persons with disabilities section is incentivized. The National Commission for Women can be used as prime example. Since its inception the primary positions are being held women commissioners nominated by the Government. Similar model should be followed in the case of persons with disabilities. This can be impactful on two levels –

  1. Firstly, it gives a better account of the problems faced by the persons with disabilities and brings more representation directly in the executive bodies.
  2. Secondly, it generates a strong symbolic impact in boosting the morale of the millions of the disabled people who stop seeing themselves as part of the mainstream society.

The participation of Non Governmental Organizations (NGOs) should be welcomed. NGOs like Udaan, Asha Bavan Centre, Association of People with Disability India and many others have played a key role in the Indian Disabilities Movement.

Rehabilitation and integration of persons with disabilities

The rehabilitation and integration measures adopted by the country for persons with disabilities in the country lag far behind when compared to other nations. Mental Illnesses are often stigmatized under garb of various evil social traditions. The discrimination against acid attack victims has been so critical that such women refuse to see themselves as a part of the society.[20] Similar is the case with many physically disabled people in the society. It is essential the Government considers establishing of clinics that offer counselling and therapy sessions. Many researchers have stated that positive psychological interventions increase the quality of life and reduce disability severity. In addition to this, a multi-sectoral approach including social integration interventions, health, education, and vocational programs are important issues related to rehabilitation services.[21]

The next step is to use the education sector as a tool to empower the person with disabilities and integrating them into the society. Primary and Secondary schools should include curriculums that sensitize the issue of disabilities. The sensitization of the issue that can come through primary and secondary educational institutions can bring extraordinary changes. Fear of the being judged and scourged in public for their disabilities often create a psychological vacuum in the eyes of the persons with disabilities. It is essential that such fear is tapped and rooted out of the minds of the disabled people and educational sectors can be used as a tool in solving these problems.

Conclusion

Problems of persons with disabilities in India are not one-dimensional. The pervade gender, caste, class which significantly contribute to the kind of lives persons with disabilities live. Therefore the solution to the problems is not just framing legislative provisions but ensuring that such provisions succeed in creating real opportunities for the persons with disabilities. It is essential that the Government recognizes and finds solutions that address all the contributing factors that create social, legal and cultural impediments for persons with disabilities.

 

 

Photo Source: Pixabay

[1] Martand Jha, Why Did India’s Media Ignore the Disability Bill?, THE DIPLOMAT, December 22, 2016, available on – http://thediplomat.com/2016/12/why-did-indias-media-ignore-the-disability-bill/.

[2] India ratifies UN Disabilities Convention, United Nations Information for India and Bhutan, October 3, 2007, available on – http://www.unic.org.in/display.php?E=872&K=Disability.

[3] Monica Sarkar, Disability in India: The struggles of infrastructure, prejudice and karma, CNN, December 27, 2013, available on – http://edition.cnn.com/2013/12/27/world/asia/india-disability-challenges/.

[4] Rights of Persons with Disabilities Bill – 2016 Passed by Parliament, Press Information Bureau Government of India, December 16, 2016, available on –

http://pib.nic.in/newsite/PrintRelease.aspx?relid=155592

[5]  Id., 4.

[6]  Disha Chaudhari, The Rights Of Persons With Disabilities Bill, 2014 Is Now An Act – How Far Have We Come Since 1995?, FEMINISM IN INDIA.COM, December 21, 2013, available on –

http://feminisminindia.com/2016/12/21/disability-bill-2014-act/(feminism).

[7] Shampa Sengupta, The Rights of Persons with Disabilities Bill 2016 Is Historic, and Here’s Why, December 20, 2016, available on –

http://www.thebetterindia.com/78948/why-rights-of-persons-with-disabilities-bill-worth-wait/.

[8]  Handbook on Barrier Free and Accessibility, Central Public Works Department, available on –

http://cpwd.gov.in/Publication/HandbookonBarrier.pdf.

[9]  Feminism, supra not 7.

[10] Nipun Malhotra, India’s disability law is a step forward for rights of disabled when it could have been a giant leap, SCROLL.IN, December19, 2016, available on –

http://scroll.in/pulse/824527/indias-disability-law-is-a-step-forward-for-rights-of-disabled-but-it-could-have-been-a-giant-leap.

[11] S. Ganesh Kumar, Disability and Rehabilitation Services in India: Issues and Challenges, Journal of Family Medicine and Care, Jan 2012, available on –

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3893941/(Rehabilitation Services).

[12]  Id., 9.

[13] Priya Bansal, Right To Employment Of Disables: A Law Merely On Paper, available on –

http://accessindia.org.in/pipermail/accessindia_accessindia.org.in/2012q4/072723.html.

[14] Shishu Sarothi, Status of Implementation of Disability Legislation in North East States of India, DNIS, Volume 3 Issue 20 , October 15, 2005, available on –

http://www.dnis.org/features.php?issue_id=20&volume_id=3&features_id=97 (North East).

[15] Id., 12.

[16] Feminism supra note 7, 10.

[17] Monica Sarkar, Disability in India: The struggles of infrastructure, prejudice and karma, CNN, December 27, 2013, available on – http://edition.cnn.com/2013/12/27/world/asia/india-disability-challenges/.

[18] North East supra note 16.

[19] Accessible India Campaign, Department of Empowerment of Persons with Disabilities, available on –

http://www.disabilityaffairs.gov.in/content/accessible_india.php.

[20] Sruti Radhakrishnan, Disabilities Bill recognises acid attacks and Parkinson’s disease too, THE HINDU, December 14, 2016, available on –

http://www.thehindu.com/news/national/Disabilities-Bill-recognises-acid-attacks-and Parkinson%E2%80%99s-disease-too/article16804595.ece1.

[21]  Rehabilitation Services, supra note 13.