In this article, Priyanka Gupta discusses Human Rights and Disability Laws in India.

Abstract

Individuals with physical or intellectual discrepancies in all sections of the world are considered to be of lower nature, they are seen as objects of charity and welfare. While it has been observed that despite the physical, mental or sensory deficiencies, these people are the owners of some kind of amazing (supernatural) talent and qualities (God Gifted). There are many instances where these people have proved themselves in many areas of life by intellectual or positive attitude, such as in the field of art, fine art etc. Due to increasing discrimination against these people, due to inferiority, inequality, human rights for their disabled persons and their enforcement have become the main topic of discussion around the world. This article wants to focus attention on whether the Centre has such schemes that reduce the diversity towards the disabled people? Do we have a career coaching program that provides a safe, convenient, rewarding and accessible environment for people with disabilities, which is essential for their respect to human dignity? This article is briefly related to those major laws and their enforcement which has been enacted to protect the rights of disabled people.

Introduction

Human rights, a citizen receive from his birth, separate rights were not announced for him, then why was the announcement of human right separately for disabled persons? Disabled is also human; it is not an item to be divided into primary and secondary. Therefore, the rights that an ordinary citizen receive from his birth, likewise a disabled person also receives same rights, since he also comes in the category of citizen of a country, not a secondary person. Therefore, The Constitution of India is equally applicable to every legal citizen of India, even if they are in any way (physically or mentally) healthy or disabled. Yes, it is of course that the disabled person needs some privileged rights rather than a normal person which should be given them. The reason is that they are special (Special child, special person). The second reason is, we ignored disabled persons, they are kept away from their rights, understood as problems, and seen as burden and abhorrence.

Due to the physical, mental, sensory deficiency, someone comes in the category of disability. But in order to overcome that one weakness, they have some special talents and divine qualities. For example, in one case, I met a child who was neglected by the family due to low intelligence but he was a genius in sketching and painting that made him special. He needed only support, to bring his skills/ talent to the society. He was admitted to the special school; teachers there recognized his skills and helped him. In another case, mentally retarded person (age 35 year) who was often neglected by his family but also had this virtue, he used to do all the work at home very well. It meant that there was a sense in him. But unawareness and due to small thinking, he was lost in the darkness of oblivion.

It is clear from these examples that the disabled person has the divine qualities and talent. The United Nations is struggling to get the platform for the achievement of their skills, to bring them in front of the society, to give them recognition and rights.

A new round in the era of disability

There was a time when disabled persons were not included in the census of India’s population. PWD was kept out of the census population till the 1980s. In the 1981 census, 3 types of disability were included. And the disabled cadre of the 1991 census was completely abandoned. After a long battle, disability was included in the 2001 census, which resulted in not being able to get accurate statistics due to minimum awareness and training and mathematicians found that 2.1% of the population was PWD. Although in the census of 2001, only 5 categories of disability were included, many disabled categories, including mental and intellectual handicapped people were kept out completely. In the census of 2011, it was found that 26.8% of people in India suffer from various types of disability and this is 2.1% of the population. Out of the total disability in the country, 14.9 million are men and 11.8 million are women. In rural areas, 18.6 million are disabled, whereas in urban areas, 8.2 million are disabled.

Disability rights movement in India is more than four decades old. In the beginning of 1970, persons with disabilities had demanded rights for themselves. However, their movement did not catch momentum because they lacked integration. In the 1980s, various organizations came together with same intention, representing the interests of incompetent people. In this decade the Disability Rights Movement got momentum and after the many protests the government passed “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995”. As a result, people with disabilities have got a place in government services, educational institutions etc. This act came to be known as the beginning of a new era for disabled persons. But due to some of its deficiencies and the lack of implementation it failed to achieve its goals.

The Current Decade and the new Disability Act

In order to ensure all the rights of persons with disabilities, the United Nation convened a conference on the Rights of Persons with Disabilities in 2006, during which UNCRPD included 50 articles of different aspects of disability related issues, which was reaffirmed by the 160 member states including India in the year 2007.

UNCRPD is based on eight principals:

1. Non-discriminatory treatment of persons with disabilities
2. Full participation and involvement of persons with disabilities in society
3. Freedom of persons with disabilities and disabled persons towards their inherent dignity and personal autonomy
4. Respect for the difference and acceptance of persons with disabilities as part of humanity and diversity
5. Equality of opportunity
6. Accessibility
7. Equality between man and woman
8. Respect for the rights of special children for the development and identification of children with disabilities.

Keeping in view the principles of the United Nations Conference 2006, a new Act was passed while making necessary amendments in the provisions of the Act 1995. The right of the person with disability, Act of 2016 received the pronunciation of the President on December 27, 2016 and was published in the Official Gazette on 28 December 2016, which came into effect from 15 June 2017. Section 102 of this Act speaks of cancellation of comprehensive law in that it means that the Act of 1995, the persons with disability (equal opportunity, protection of rights and full participation) The proposal of this Act clearly states that its purpose is to maintain the dignity of every person in the society and prevent any kind of discrimination. It speaks about the acceptance of people with any type of disability and ensures their full participation in such persons and society. Since India is the signatory of the Conference on the rights of people with disabilities of the United Nations General Assembly, such a domestic law for India was in fact mandatory.

Key Features of Disability Act, 2016

1. Classification of persons with disabilities-

• persons with disability
• persons with benchmark disability
• persons with disability having high support needs

2. Contrary to the definition of the person with disability provided by the Act 1995, under this Act, a complete definition has been provided including 21 types of specific disability.
3. Most of the liability under this Act has been put on appropriate government and local authorities. With this (some private sector) establishments, some obligations have also been imposed.
4. Act 2016 prohibits discrimination against persons with disabilities unless it can be shown that the act of discrimination was a proportional means of obtaining legitimate objectives.
5. The government is entitled to facilitate the rights of disabled people. Therefore, it is the duty of the government to make necessary laws, rules and plans and strictly enforce them for the convenience of the disabled people; the onus has been placed on the government. The government is required to secure the rights of the disabled person towards equality, dignity and respect as normal people get; Do not discriminate against the right of personal liberty; The right to live in a community; Right to safety and security in situations of risk, armed conflict, human emergency, natural disasters etc.; Access to materials related to polling stations and electoral processes; The right to access judicial or semi-judicial or investigative powers without any court, tribunal, authority, commission or body; Ownership or successor of property (movable or immovable); The right to access one’s own financial matters and other forms of bank loans, mortgages and financial credits; The right to obstruct free access to health care institutions and centres; The right to attain cultural life and participate in recreational activities and sports activities etc.
6. All establishments (including the private sector) need to frame and publish the same opportunity policy.
7. Additional benefits such as rights for free education (between the ages of 6 to 18 years), reservation in education, government jobs, land allocation, poverty alleviation schemes etc. have been made available to people with benchmark disability.
8. Reservations in Government vacancies Establishments have been increased from 3% to 4% for the persons with disability.
9. In order to ensure speedy trial, provision of special courts has been made in each district to handle matters related to violation of rights of persons with disabilities.

New disability law affects the principles of the United Nations Conference on the basis of persons with disabilities. Disability Law 2016 protect disabled persons from various forms of discrimination, Increases their effective participation and inclusion in the society and ensures equality of opportunity and adequate accessibility.

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Persons with Disabilities Act, 2016 and Persons with Mental Illness

In the 2016 Act, the disability list has been extended to 7 to 21 situations. Under this, disabilities such as chronic neurological disorders and blood disorders have been included. Terminology mental retardation has been replaced by intellectual inefficiency, which is defined as “the basis of critical limitations in both intellectual functioning and adaptive behaviour, in which there is a series of social and practical skills each day, including specific learning disabilities and autism spectrum disorder.” This act provides a detailed definition of mental illness, which is a major disorder of “thinking, mood, perception, orientation, or memory that can identify the reality, or identify the ability to meet the normal demands of life, and reduces the capacity but it does not include retardation, which is the position of arrest or incomplete development of a person’s brain.

Although Mental Illness has been included in the Act as a disability but the special needs of mental sick persons and their families have not been properly addressed. Person with disability with mental illness requires special attention and care due to various types of illnesses and often a person with mental illness is not in a position to become aware of his illness due to lack of vision. Under these circumstances, support from his family plays an important role.

In our country where the health care centre, mental health care centre, care worker is extremely rare, it requires family support in the management of mental illness. So it is necessary that members of the family should actively play a role and encourage family support, since it provides ethical, emotional, mental and physical support to person with mental illness. But most of the time it is seen that in the family, the sick person is left helpless, what can be the reason for the first low mentality, a lack of awareness, a burden to the sick person. On the other hand if we study section 7 of Person with Disabilities Act, 2016 is the address that Section 7 has been introduced for a good cause at protecting person with disability from act of abuse, violence and exploitation but sometimes such a situation arises, when a family or auxiliary person, who is trying to control the person mentally ill, or who treats them with strictness, then provision 7 turns upside down on such people and such people Come across the perpetrator. So Section 7 needs to address this problem with proper amendment.

In one third of the country, mental health services operated by government are not available. Due to this shortage, family and social bonds in our country are only helpful for mentally ill people. While the section 38 of the Personal with Disability Act, 2016 emphasizes the support of the PWD, Act for this depends heavily on Non-Government Organization, while failing to see the importance of family.

Area of concern

1. It is largely believed that this act is insufficient till “reservation” for disability
2. Loose language used in discrimination and guardianship provision.
3. Regardless of the number of disabilities covered under this Act, it has turned 21 to the previous Act of 1995, yet many disabilities are not covered under this Act.
4. Under the Disability Act 2016, there is no transit framework or timeline provided to ensure its compliance, its implementation.
5. Disability law does not provide any kind of incentives for private establishments to provide training to disabled people, to ensure accessibility criteria, to provide accessory equipment, etc. so that they may be able to determine the cost.
6. Although disability law prevents discrimination against disabled person, the law does not provide an effective and strong grievance redress mechanism.
7. The Act 2016, ignoring the role and importance of the family in the care of PMI, is silent on how to create a huge support system for the people with high support, which has millions of people suffering from severe mental illness.
8. The success of this law will largely depend on the measures taken by the government, because it is the responsibility of the government to ensure the safety of the disabled under disability law and to implement the schemes.

Challenges in implementation

1. The biggest challenge is to change the mindset of people towards a large level of disability, change their mentality. Make people aware about disability law and its benefits.
2. A large part of the disabled population lives in rural India. Their literacy levels are very low. Therefore, the most important challenge is to educate the primary stakeholders about the disability law so that they can take initiative for rights of disabled person both with the State as well as with the civil society.
3. India is a country full of various complexities. This is a multi-lingual, multi-cultural and multi-ethnic state, due to which the right motive of the related act does not reach the concerned person in the right way. This is both a challenge and a barrier to work; this obstacle is due to factors like resource crunch, poverty, illiteracy, etc.
4. Orientation to various stakeholders is important for the implementation of this Act, such as media persons, bureaucracy etc., is also a challenging challenge in view of the country’s diversity.

Suggestions and Recommendations

1. People must be aware of disability and disability laws. They must change their mentality. They have to explain that disability is not a burden; PWD is also human like us. They also have sensations and if proper attention is given to them, their skills can be brought before the society. By working hard with them, they can also be put on their feet, they can be made independent.
2. Families with disabilities should be encouraged by the government, so that the family can come forward to support the disabled. Not only this, members of such family should be specially trained, necessary/helpful equipment should be provided to them. Whether it is normal or disabled, family is its first school. The family is the first stair from where he learns to climb. Family support is the biggest support for any individual, so it is important that their families should support the children with disabilities in every way.
3. In today’s fast-paced world where multi-national companies are looking for multi talented professionals, why would the companies come forward for the employment of disabled people, where they have to spend extra for them? It is therefore necessary that the companies should be invited with the help of beneficial schemes and incentives by the government.
4. Where the benefits of reservation for disabled persons in educational institutions have been made, syllabus should be made in accordance with them. In addition, emphasis should be on easy education methods and language of education.
5. To spread awareness to village to village and city to city, it is necessary that school/college students make street shows in this regard. In this connection, electronic media, print media, coaching centres should actively participate.
6. Just as ADA (American disabilities act) has clear and specific guidelines for implementation of effective dates, time limits, alternate arrangements, temporary relief etc., in the same way these facilities have to be provided by PDA.
7. ADA Watch “is an effective surveillance system for monitoring the implementation of the law. Under PDA the surveillance system should be made highly effective. All agencies receiving ADA are required to comply with positive action programs. PDA should start and maintain positive action program.

Conclusion

The values (dignity, equality, autonomy and liberty) supported by human rights law form the basis of the basic freedom of the individual, which provides protection against misuse of power and creates a place for the development of human emotion. It would not be wrong to say that human rights are the power that gives a person the power to stand up with respect to society. Human rights are not just rights but self-respect for any person. Therefore, a person with disabilities is a special person who needs special attention, so he should be given special human rights.

Before the enactment of the PWD Act, 2016, the rights relating to persons with disabilities, various acts, the Constitution of India, persons with disabilities (Equal Opportunities for Equality and Full Participation) Act, 1995, Mental Health Act, 1987, Rehabilitation Council of India Act and National Trust (for the Welfare of Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities) Act, 1999 Were scattered in. Although the purpose of these laws are to protect the rights of people with disabilities, but these laws did not provide equality of opportunity, especially regarding employment. PWD Act 2016 has tried to reconcile these laws and the equality of opportunity has been provided.

For people with disabilities, a piece of law is a boon and not less. This act is widely related to the rights of persons with disabilities. It also orders the government to perform its duties in the most diligent manner and to make plans and programs in the direction of community welfare. This act is definitely a good step in that direction.