This article is written by Bharti Garg, a qualified lawyer.
If we talk about the Dictionary definition of the word ‘disability’, i.e. the absence of competent physical, intelligent, or moral power, means, fitness and the like, it would be wide enough to take within its sweep the entire humankind (on this planet at least), as goes the saying that ‘no one can be perfect’, obversely meaning that each one of us possesses one or the other variant of ‘disability’. However, when confining it for legal purposes, the state recognizes some long-term physical, mental and intellectual impairments which presumably put a person at a more disadvantageous position than others in following the personal, economic and social pursuits, for instance, disabilities related to speech, sight, movement, mental retardation and mental illness. Because of their uncommon disabilities and equally rare qualities, such people are more appropriately addressed as differently-abled or specially-abled persons. The Article 14 of our Constitution promises equality of all and Article 21 guarantees the dignity of every individual to be secured, and it is for the realisation of the essence of these rights that the differently-abled persons are conferred with additional protection by the law. Similarly, Article 46 directs the state to ensure promotion with special care of the economic and educational interest of the weaker sections.
Although there have now been quite comprehensive legislations in the field, nevertheless, the access of these people to public services is still hugely hampered, their employment rate languishes at a low ebb, and the women and children are subject to blood curdling sexual crimes. What also unhinges one’s conscience is the inability of the society to give such people a sense of belonging and to appreciate their wherewithal and independence. Even worse is to know that they are neglected by their own families.
The legal recognition to this concern was first given in 1995 by the enactment of ‘The Rights of Persons with Disabilities Act’ which has recently been repealed to be supplanted by ‘The Rights of Persons with Disabilities Act, 2016’. The purpose is to align the domestic laws more intimately with The United Nations Convention on the Rights of Persons with Disabilities which was ratified by India on the 1st of October 2007. Keeping in tandem with the new medical and social understanding of the meaning of disability, the Act provides a remarkable overhauling of the legal status by increasing the number of disabilities from 7 to 21 including autism, Parkinson, dwarfism, acid attack victim, Speech and Language Disability and Specific Learning Disability.
In the education sector, the appropriate government has been mandated to conduct the survey of school going children every five years to identify and address the special requirements of children with disabilities. The teachers must also be trained to be able to communicate effectively with these children. Moreover, those in the age group of 6 to 18 years with the benchmark disabilities now have the right to free education. Persons with Benchmark Disabilities refer to those who are certified as having atleast 40% of the disability. An additional reservation of minimum 5% to persons with benchmark disabilities has also been promised in respect of Government institutions of higher education and higher education institutions receiving Government aid. It is worth mentioning here that the Government of India recently launched “Atlas for Visually Impaired (India)” in English Braille, and is also going to release the first of its kind Indian sign language dictionary soon.
We all know that the employment rate among persons with disabilities is less than half of that among their non-disabled counterparts. Even the ones who are employed face other kind of challenges like difficult access to facilities, distrust of the employers and colleagues and differential pays. To grapple with such barriers at least in the government sector, the provision of reservation and its increase from 3% to 4% under the new Act is progressive, though it may not have yet completely translated into reality. The grim unemployment rate in many public sector companies despite these statutory reservations, especially among the disabled women and mentally disabled persons, still mars the tall claims of inclusive development. We often fail to appreciate that such people have an unparalleled grit and display stouter commitment to their jobs. So far as the statutory intervention in the private sector is concerned, Section 35 is quite plauditory for it obliges the government to provide incentives to the private sector employers so as to ensure that atleast 5% of their workforce comprises of persons with benchmark disabilities. Further, Section 20 of the Act reaffirms that no government establishment shall discriminate against any person with disability in the employment matters. However, the proviso thereto enables the government, regard being had to the ‘type of work’, to notify establishments which would be exempted from the non-discrimination clause.
Certain provisions of the Act also pertain to the domain of sports to bolster effective participation in sporting activities of persons with disabilities and to expand the resources and infrastructure for their training.The awe-inspiring feats of Devendra Jhajharia, Mariyappan Thangavelu, Deepa Malik, Varun Singh Bhati and the Indian T20 Blind Cricket World Cup Team lately held the entire nation in awe. India is one country whose sports culture has already not had many admirers, but when it comes to the sports virtuosity of differently abled, their achievements are more often glossed over. To assure that the thunder of these victories isn’t stolen again, it becomes important to honour these provisions with strict observance and to build a larger societal familiarity and admiration of these players, so as to establish parity in real sense.
A litany of security and protective measures have further been adumbrated under the Act, like finessing schemes for providing livelihood to women, an unbridled access to sanitation and safe drinking water, disability pension, retrofitting different modes of public transportation to enable smoother access, creation of National and State Fund to provide financial support, and many more. To make their participation in electoral process meaningful, the statute also enjoins the Election Commission of India and State Election Commissions to ensure that their access to polling stations becomes more congenial.
A definite Avant-garde leap is the provision of Section 92 which along with being gender sensitised, also enhances punishment for certain offences committed against persons with disabilities, notwithstanding any other Central or State Act. It says that “whoever-
1. intentionally insults or intimidates with intent to humiliate a person with disability in any place within public view;
2. assaults or uses force to any person with disability with intent to dishonour him or outrage the modesty of a woman with disability;
3. having the actual charge or control over a person with disability voluntarily or knowingly denies food or fluids to him or her;
4. being in a position to dominate the will of a child or woman with disability and uses that position to exploit her sexually;
5. voluntarily injures, damages or interferes with the use of any limb or sense or any supporting device of a person with disability:
6. performs, conducts or directs any medical procedure to be performed on a woman with disability which leads to or is likely to lead to termination of pregnancy without her express consent except in cases where medical procedure for termination of pregnancy is done in severe cases of disability and with the opinion of a registered medical practitioner and also with the consent of the guardian of the woman with disability,
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”
Moreover, special courts have also been proposed by the Act so as to expeditiously try cases involving violation of the rights of, and commission of offences against, the persons with disabilities.
A reference here can also be made to another legislative (and more humane) development in the area of mental health, i.e. The Mental Health Care Act, 2017, which repealed the 1987 Act by the same name and received the assent of the President on 7th April 2017. It seeks to propel the security and dignity of people afflicted with mental health problems and even decriminalises suicide.
Undoubtedly, the 2016 legislation can act as a substantial facilitator of personal, intellectual and economic growth of the persons concerned in the near future, nonetheless, there are certain provisions which have found disfavour with the disability rights activists. One of them is Section 3(3) which provides that no person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is appropriate to achieve a legitimate aim. Apparently, this provision has loose ends, and in the absence of any specific guidelines, leaves an indeterminate scope for the authorities to dilute the object of the statute. In fact, the said impugned act will have to strictly satisfy the test of reasonable classification, if it is to be saved from being read down.
Equally notable is the fact that none of the statutes gives enough attention to the role of families of such people. Their worries begin from homes as many of them are constantly dissuaded by their kith and kin from leading normal lives, made to feel dependant and sometimes even sidelined with apathy. Unless the families are fastened with more responsibilities, we will fail to grasp the nettle.
Thirdly, the statute seems to give no express notice to the problem of wage discrimination against the affected individuals. Apart from that, the stress on unfettered access to physical facilities must, as of necessity, include an inexpensive access to court and legal remedies as well, especially for two reasons, viz. the unavoidable costs of their treatment and their less than average earnings, which expose their grievances to greater repression.
All told, overall these headways do show a major attitudinal shift on the part of the law making bodies to push the envelope of social reforms in one of the areas often overlooked.
But as for our society, we must ruefully admit that the same is still a far cry. The Apex Court recently echoed a similar apprehension in the case of Jeeja Ghosh v. Union of India by holding that the persons suffering from mental or physical disability experience a nonpareil form of discrimination. They’re not looked down by people, but are not accepted in the mainstream either, even when people sympathize with them. The general feeling is that these ‘invalid people’ are incapable of doing anything in life. They are taken as a burden by the society and people may even want to willingly bear the burden. But what they don’t understand is the feelings of these people. Disabled people no longer see their physical or mental limitation as a source of shame or as something to overcome in order to inspire others. They don’t want to depend on others but to brave their disabilities and want a proper environment to grow.
Judicial approach in disposing cases involving disability rights has been more than laudable. One significant case is that of Suchitra Srivastava v. Chandigarh Administration, where the Supreme Court recognized the legal capacity of a woman affected with mental retardation, who became pregnant due to a rape by an in-house staff, to decide for herself whether to bear the child or not. It held that “her reproductive choice should be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter.”
Then in Ranjit Kumar Rajak v. State Bank of IndIa, the main question that fell for consideration before the Bombay High Court was “whether a person who is fully qualified for a post because of his past or present medical condition which otherwise did not interfere with his fitness to dispense the duties of his post, be denied employment because of the financial burden that would be cast on the employer.” In an emphatic ruling, court imported for the first time the concept of ‘reasonable accommodation at the work place’ as ensconced in the UN Convention, and noted that while it will have to have a nexus with the financial burden on the institution which will have to bear the burden and further the extent to which reasonable accommodation can be provided for, but it would go a long way in ensuring that such people have an easy access to and adaption in the labor market. Therefore, subject to the financial limit of the undertaking, a duty was casted upon the state to bear such financial costs of differently abled employees.
We may appreciate that there exist certain avenues where the exclusive talents of such people could be significantly harnessed. A case in point is the newly opened College of Fragrance for the Visually Impaired in Mumbai which trains them and hone their smell identification abilities so that they could be employed in fragrance or perfume industries. This is a remarkable initiative since these people are scientifically proven to have better olfactory organs. This also evinces that it might just take more adequate researches and receptive minds to enable us to discern their other similarly wondrous calibres which could be utilized for augmenting productivity in other specific industrial sectors.
No doubt we have had the fortune to know about and learn from people like Stephen Hawking, a wizard scientist; Sudha Chandran, an acclaimed international dancer; Arunima Sinha, a record-breaking mountaineer: Shekhar Naik, the young captain of Indian Blind Cricket Team, and many more, but the list can be extended to an unceasing length, only if we stop putting them through the crucibles of our superficial understanding of an ideal physical body. They have been known for ‘disabling the disabilities’, and to require them to seek our validity and approval is only illustrative of our cocksureness.
Therefore, it is a gross impiety to undermine their quality of existence either by ridiculing them, exaggerating their vulnerability or even by pitying them. We have become so inured to harbor such emotions that we fail to see through their most facile and legit expectations from us, i.e. to desist from undesirable intruding into their lives and accept them for what they are, to not identify them with their disabilities but as imperfect human beings the way we all are, to not judge the standard of their aptitude by their disabilities but their abilities, and to display the same strength of belief as them when they say that they are ‘normal’. On the other hand, if we continue to absorb ourselves with such misgivings, then we would appear like unqualified preachers, when all they need is our bonhomie. I would like to conclude with a strong hope that both the government and society work hand in glove with each other so that the fulfillment of the constitutional goals is met not out of mere legal duress but by voluntary embracement.