INTRODUCTION
The rights a person enjoys only by virtue of being human are known as human rights. According to Vasudeva Kutumbakam, our old Vedic foundation, human rights are the right to universal brotherhood and happiness. Human rights are intrinsic and unalienable. Natural law acknowledges these ideas, yet prejudice and ignorance allow discrimination to continue in our society. Although they have human rights, people with disabilities often have those rights infringed. Their standard of living is consistently inferior to that of the general populace. In the democratic process, these people frequently have no voice or have insufficient voice. Even in cases where they have a loud voice, they may not always be taken seriously. This means that the groups that will probably be affected by the policy’s outcome are not actively involved in its development. Cynicism about the likelihood of attaining justice through the judicial system and a sense of estrangement from democratic institutions are possible outcomes. Furthermore, it results in inactivity and reliance, both of which contribute to the marginalization of those with disabilities and promote stereotypes.
It is unacceptable that the human rights system has historically disregarded and hidden these individuals with impairments. Over two thirds of them live in underdeveloped countries. They have to deal against biases, obstacles, and stereotypes and are treated as second-class citizens. Numerous issues pertaining to impairments must be addressed, such as their root causes, care, treatment, empowerment, and mainstreaming in the workplace, school system, healthcare system, and transportation. However, not enough was being done to remove the obstacles in the way of their full participation in society. Over the past 20 years, attitudes toward those with disabilities have significantly changed, shifting from one focused on charity to one based on rights. According to the human rights approach, disability is an important part of human culture. The human rights concept holds that everyone, regardless of disability, has certain inalienable rights. The Universal Declaration of Human Rights, which declares that “all human beings are born free and equal in rights and dignity,” is strengthened by this paradigm, which emphasizes that those with disabilities have the same rights as everyone else.
MEANING AND CONCEPT OF DISABILITY
A number of environmental and individual variables, as well as medical disorders like dementia, blindness, or spinal cord damage, can combine to cause disability. Today, an estimated 1.3 billion people, or 16% of the global population, have a significant disability. This figure is rising due to an increase in noncommunicable diseases and people living longer lives. Persons with disabilities are a diverse group, and factors such as gender, age, gender identity, sexual orientation, religion, race, ethnicity, and economic situation all have an impact on their life experiences and health needs. People with disabilities die younger, have poorer health, and have more limitations in daily functioning than others.1
According to the World Health Organization, “disability” is a general term that includes participation restrictions, activity limitations, and impairments. An impairment is a problem with the structure or function of the body; an activity limitation is a problem that a person faces when performing a task or action; and a participation restriction is a problem that a person faces when participating in life situations. Interventions to eliminate social and environmental barriers are necessary to help people with disabilities overcome their challenges.2
Lack of normal functioning of mental, psychological, or bodily processes is a common way to characterize a disability. It can also be described as learning disabilities or social adjustment issues that impede a person’s typical development. The phrase “handicapped” is frequently used, however it is today considered politically inappropriate.3
Disability is not a tragedy, but a nuisance. One-tenth of the world’s population, or around 650 million individuals, are thought to have some form of disability, including verbal, visual, auditory, physical, cognitive, and neurological impairments. Unlike disability laws in other countries, the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation), Act of 1995 in India only acknowledges a small number of disabilities, including: blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation, and mental illness.
In addition to weakness, incapacity, or the inability to perform a specific work because of a bodily or mental impairment, desire, or legal necessity, disability is the state or quality of being physically or mentally impaired.
The United Nations General Assembly adopted the Declaration on the Rights of the Disabled Persons in accordance with the U.N. Charter4. The definition of the term “disabled person” means “any person unable to ensure for himself or herself wholly or partly the necessities of a normal individual and or social life as a result of a deficiency, either congenital or not, in his or her physical or mental capabilities”.5
Disability is a state in which a person has limitations on how they can go through with their daily lives due to an impairment. A person who experiences a disadvantage as a result of a disability or impairment that makes it difficult for them to perform a task or a goal is said to be handicapped. To effectively bridge the gap between individuals with disabilities and attain personality and dignity in the purest meaning of the words, it is necessary to comprehend and study human rights and other legislation in India as well as other viewpoints.
THE INTERNATIONAL FRAMEWORK AND THE HUMAN RIGHTS OF PERSONS WITH DISABILITIES
People with disabilities have often been forced to live in institutions that kept them isolated from society, or they have been the victims of physical and sexual abuse. Reports of abuse were also not uncommon. It has often been impossible for people with impairments to get married or start a family. Leaving them behind or even killing them were common forms of extreme maltreatment. Individuals with impairments were simply viewed as “not quite” or “less than” human. The growth of human rights and the recognition of other marginalized groups have led to the recognition of people with disabilities as a marginalized group.
Instead of being viewed as less human, they began to be seen as individuals who, given the opportunity, could realize their full potential. Over time, a number of international policies and initiatives were developed to protect the rights of people with disabilities. Below is a quick list of a few of these:
| 1. | The Universal Declaration on Human Rights, (1948) |
|---|---|
| 2. | The International Convention on Civil and Political Rights, 1966 |
| 3. | The International Covenant on Economic, Social and Cultural Rights, 1966 |
| 4. | The UN Declaration on the Rights of Mentally Retarded Persons |
| 5. | The UN Declaration on the Rights of Disabled Persons |
| 6. | General Comment No. 5 to the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1994 |
| 7. | Decade of Disabled Persons, 1983-92 |
| 8. | Asia Pacific Decade of Disabled Persons, 1993-2002 |
| 9. | Asia Pacific Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region, 1992 |
Although the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR) addressed frameworks to prevent discrimination against people on a number of grounds, disability was not one of them. As a result, there was a need for tools tailored to people with disabilities. However, compared to the mainstream, some tools have been accused of making disabled persons feel more excluded. Based on the comprehensive approach taken in the work done in the areas of social development, human rights, and non-discrimination, the UN General Assembly decided to establish a committee to examine ideas for an international convention to protect the rights and dignity of people with disabilities. The UN General Assembly recognized the necessity for an international instrument and expressed great concern about the predicament facing the 600 million people with disabilities worldwide. As a result, the human rights perspective firmly backed the shift toward giving impairments special attention.
As previously stated, discrimination on the basis of disability was not expressly addressed by the ICESCR. To help understand the ICESCR and prevent discrimination against individuals with disabilities, however, General Comment No. 5 was established in 1994. According to the Comment, discrimination against those with disabilities has historically taken many forms, including unjust laws and real-world practices. The Comment defines disability-based discrimination as “any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability, which has the effect of nullifying or impairing the recognition of a disability.“
The UN established the Decade of Disabled Persons, which ran from 1983 to 1992. The Asian and Pacific Decade of Disabled Persons (1993–2002) was then created. During this time, a lot of awareness was raised regarding the challenges faced by individuals with disabilities. In 1992, the Asia-Pacific region adopted a proclamation on the equality and full participation of those with disabilities. Along with other countries, India signed the declaration.
INDIA’S LEGAL SYSTEM WITH RESPECT TO PEOPLE WITH DISABILITIES
It has taken nearly 50 years since the nation’s independence for a legislation that expressly safeguards the rights of individuals with disabilities to be passed. This is due to the fact that the current global scenario necessitates a human rights-based approach to the problems of discrimination and service accessibility that individuals with disabilities face on a daily basis. Until the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act was passed in 1995, the Constitution acted as the cornerstone for the protection and advancement of their rights. A new legal framework now better protects the rights of people with disabilities.
A. Indian Constitution
International human rights law is based on the guiding principles of equality, dignity, autonomy, and liberty. These ideals have had a significant impact on democratic polity’s fundamental law and are reflected in the Constitutions of the majority of democratic States, including India. While providing a framework and governing philosophy, the Preamble to the Indian Constitution states unequivocally that it is intended to “secure to all its citizens…justice, social, economic and political; liberty of thought, expression, belief, faith, and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation.”6
Equality
Article 14 of the Indian Constitution’s right to equality states that all citizens are guaranteed equality before the law and equal protection under the law7, and that discrimination on the basis of “religion, race, caste, sex, place of birth, or any of them” is forbidden8. Additionally, it encourages the State to draught any laws or make provisions for the reservation of appointments or posts in favor of any disadvantaged class of citizens that, in the State’s opinion, is not adequately represented in its services in order to ensure equality in the results.9
Non-Discrimination
Laws enacted even 20 years ago often did not include disability as one of the forbidden reasons for discrimination, and disability discrimination has only lately been explicitly acknowledged. Articles 15 and 16 of the Constitution, for example, forbid discrimination on the basis of handicap, but they make no mention of it in relation to work or public services. In truth, higher tiers of service were off-limits to those with impairments until 1995 due to service laws. Due to these regulations, workers who developed disabilities while in service were often dismissed, had their rank lowered, or were compelled to retire early if doing so was in the public interest. Most of the time, their opportunity to grow in their occupations was lost forever.
Fundamental Rights and Directive Principles of State Policy
The term “disability” appears only once in Article 41 of the Indian Constitution. Among other things, an accident or other damage prevents a person from using any portion of their body. Other times, people with disabilities are the target of unwarranted desire, despite the medical community’s ongoing recognition of their severe deficiencies. The Supreme Court ruled that the Act should be read by the courts in a way that achieves the economic and social aims of Article 41, even though it does not grant reasonable rights. According to Article 41 of the Indian Constitution, the State is directed to assure people in cases of unemployment, old age, sickness and disability and in other cases of undeserved want within the limits of their economic capacity and development in terms of employment, education and public assistance.10
Article 46 lays down an obligation on the State ‘to promote with special care the educational and economic interests of the weaker sections of the people, and … protect them from social injustice and all forms of exploitation.”11
According to Article- 47 “The State shall consider raising the nutritional level and living conditions of its people and maintaining public health as one of its primary tasks and, in particular, the State shall endeavor to introduce a ban on consumption except for the medicinal purpose of intoxicating drinks and drugs that are harmful to health.”12
B. Protection of Human Rights Act, 1993
India implemented the Protection of Human Rights Act, 1993 after ratifying the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR). For better human rights protection, this Act enables the establishment of a National Human Rights Commission and State Human Rights Commissions. The act in section 2(d) defines ‘human rights’ as: ‘the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in international covenants and enforceable by courts in India’13.
As a result, the Act offers a mechanism for ensuring that various constitutional provisions and obligations under international covenants on various rights, including economic, social, and cultural rights, are being carried out. This shows that India is prepared to enact non-justiciable rights.
C. The Rehabilitation Council of India Act, 1992
In order to standardize and raise the caliber of rehabilitation services accessible to those with disabilities, the Rehabilitation Council of India was founded.
D. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
This legislation may be the most significant in this area. It was historic legislation because it made it plain for the first time that those with disabilities had the right to full citizenship and equal opportunities, and that these rights would be legally safeguarded. Beginning on February 7, 1996, the “Persons with Disabilities (Equal Opportunities, Rights Protection, and Full Participation) Act, 1995” became operative. It is an important step in guaranteeing equal opportunity and full involvement in the development of the country for disabled individuals. The Act covers both preventive and promotional aspects of rehabilitation, including education, employment and vocational training, reservations, workforce research and development, barrier-free environments, unemployment benefits for individuals with disabilities, special insurance plans for individuals with disabilities, housing for individuals with severe disabilities, and more.
This Act is a hybrid of rights-based and service-oriented legislation, based on the following strategies: inclusion in mainstream programs; positive discrimination in favor of individuals with disabilities; prohibition of disability discrimination in various spheres of life; and provision of accommodations to help them overcome their respective disabilities. Education, employment and vocational training, reserves, research and manpower development, and the creation of a barrier-free environment are all preventive and promotional aspects of rehabilitation that are covered by the Act.
The seven disabilities listed in the introduction are addressed by the Act. Medical criteria, not societal views of disability, are used for classification. The PWD Act focuses more on rights. Preventive and early diagnosis, education, employment, affirmative action, non-discrimination/barrier-free access, research and manpower development, and institutions for individuals with severe disabilities are all covered by the Act’s substantive provisions. As enforcement tools, the Act contemplates a State Coordination Committee at the state level and a Central Coordination Committee at the federal level.
Additionally, it consists of a state commissioner and a national chief commissioner for people with disabilities. Because some of the PWD Act’s provisions that offer something tangible and concrete for people with disabilities are qualified or prefixed with the phrase “the appropriate government and local authorities shall, within the limits of its economic capacity and development…….” critics of the Act claim that it lacks teeth and gives the relevant government plenty of ways out. However, a comparatively weaker Act has been strengthened as a result of the progressive statements made by the Indian judiciary.
E. National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
The Act was passed by the Parliament with the extremely progressive objective of enabling individuals with disabilities to live as fully and independently as possible within and near their community. The intention is to encourage people to live with their family rather than to keep them in institutions and out of society. They have the right to live with their family. Developing protocols for designating guardians and trustees for individuals with disabilities who need such protection is another objective. Along with counseling and training for family members of individuals with disabilities, the Act also asks for the establishment of a friendly environment in the community.
F. The Rights of Persons with Disabilities Act, 2016
After a bill to replace it was submitted to the Parliament in 2014, the Rights of Persons with Disabilities Act, 2016 was passed by both Houses of Parliament in 2016. After signing the United Nations Convention on the Rights of Persons with Disabilities in 2006, India ratified it on October 1, 2007. This Act aims to implement a number of requirements of the Convention on the Rights of Persons with Disabilities. The number of recognized disabilities has increased from seven to twenty-one. It includes a wide range of illnesses, including learning difficulties, Parkinson’s disease, muscular dystrophy, thalassemia, acid attack disability, and hemophilia.
The Act’s Section 34(1) stipulates a 4% reservation in government jobs, with one percent going to each of the following categories: blindness and low vision; deaf and hard of hearing; locomotor impairment, such as muscular dystrophy, dwarfism, healed leprosy, cerebral palsy, and victims of acid attacks; Under sections (a) to (d), a one percent reservation has been made for people with autism, intellectual impairments, special learning disabilities, mental illnesses, and multiple disabilities, including deaf-blindness, in the positions designated for each disability.
G. Mental Health Act, 2017
Provide mental healthcare and services for persons with mental illness and to protect, promote, and fulfil the rights of such persons during delivery of mental healthcare and services and for matters connected therewith,” according to the Preamble to the Mental Health Act of 2017. It further states that this legislation aims to harmonize existing laws with the 2006 United Nations Convention on the Rights of Persons with Disabilities, which India ratified on October 1, 2007.
SIGNIFICANT JUDGMENTS RELATING TO THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016
The judiciary is essential to the protection and empowerment of individuals with disabilities. The Indian judiciary has responded to violations and is now regarded as the guardian of human rights. Although it was first absent, judicial activity in the human rights domain is beginning to appear as a fresh hope for the marginalized communities. In several decisions, the Supreme Court has progressively construed the Rights of Persons with Disabilities Act, 2016 in favor of impaired individuals.
The question of whether disabled people were entitled to a promotion in reservation came up in the case of State of Kerala v. Leesamma Joseph14. While making its decision, the Court interpreted the terms of both the 1995 Act and the 2016 Act. The Court determined that under the 1995 Act’s promotion policy, disabled people are entitled to a reservation. The Court additionally stated that although it is simpler to adopt legislation, it is challenging to change people’s societal thinking in a way that truly carries out the legislation’s noble aims. The purpose of the 1995 and 2016 Acts is to guarantee that individuals with disabilities are given equal opportunity, and this chance can only be granted by giving them a reservation in promotion as well. Every government facility must make “reasonable accommodations” and a welcoming environment for people with disabilities, according to Section 20(2) of the Act. The Court reached the conclusion that promotion preferences are due to those with disabilities.
In the case of Disabled Right Group v. Union of India15, In order to ensure that individuals with orthopaedic disabilities had complete access so they could move around educational institutions without restriction, to ensure that effective measures were taken to provide the disabled students with adequate pedagogy facilities, and to investigate the non-implementation of reservation provisions for disabled people, a public interest litigation was brought before the Apex Court. Regarding the fundamental principle of the 2016 Act, the Court said that it was based on the idea that societal barriers and impediments restrict the development of people with disabilities.
The Court noted that in government-aided educational establishments, the 1995 Act required a minimum 3% reserve for individuals with disabilities. The 2016 Act only increased the welfare provisions, and Section 31 ensures that children with disabilities from the age of 6 to 18 receive free education. This entitlement is more expansive than the one granted under the 2009 Rights of Children to Free and Compulsory Education Act. In addition to the minimum standards, people with disabilities have the right to higher education. Consequently, the Court issued an order mandating that all educational institutions comply with the reservation requirements outlined in the Act. Consequently, the Court issued an order mandating that all educational institutions comply with the reservation requirements outlined in the Act. The UGC and the Bar Council of India issued inspections to ensure that the educational institutions complied with the reservation regulations.
SUGGESTIONS
All of India’s efforts to date to provide those with disabilities with equal rights and opportunities are only based on medical models and lack a social, economic, or legal viewpoint, rendering such protection discriminatory. These are the few suggestions:
• The inclusion of the right to a barrier-free environment in all buildings and facilities, including urban and rural, to provide appropriate accessibility for individuals with disabilities. In this sense, the State must regularly create suitable accessibility standards by modifying existing international standards for information and communication technologies related to the physical environment and creating systems suitable for Indian contexts.
• The State’s support of the Right to Equality and Non-Discrimination, as well as’reasonable accommodation,’ would enable individuals to get entry to, participate in, or advance in employment, as well as enjoy legal capacity on an equal footing with others in all aspects of life.
• Women and girls with disabilities must be supported in all settings, including the family, care facilities, educational institutions, workplaces, and institutions, because they are more vulnerable to exploitation, abuse, and violence.
• People with disabilities should be able to access all facilities related to the legal system, such as police stations and courts, since the ability to enter court is essential to guaranteeing the exercise of any right.
CONCLUSION
The right to an independent life, the right to unhindered access, the right to work and education, the right to equal opportunities, and the right to be free from discrimination are among the fundamental rights of individuals with disabilities. Programs related to social assistance and awareness-raising are essential to changing how society operates and removing the barriers that prevent persons with disabilities from fully participating in society.
Without a doubt, the Persons with Disabilities Act of 2016 is a progressive piece of law. It signifies a paradigm shift from a charity-based statute to a rights-based statute. When a disabled person is mistreated, it frequently leaves a hole in their heart and causes significant psychological harm. Ensuring social and economic justice is the aim of the Indian Constitution.
While the Act’s special provisions for employment and education guarantee economic justice for handicapped people, its fundamental rights guarantee social justice for those with disabilities. The execution of the Act will require ongoing oversight, even if the government and the judiciary have adopted a rights-based approach to disabled people. Certain statutory rights were denied to disabled people even after the Act entered into effect, therefore the judiciary needs to be proactive in making sure that the Act’s provisions are upheld both literally and figuratively.
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Footnotes
1. https://www.who.int/news-room/fact-sheets/detail/disability-and-health accessed dec 9, 2022.
2. “Disabilities” https://www.afro.who.int/health-topics/disabilities accessed dec 9, 2022.
3. The Rights of the Disabled by Meera Pillai
4. U.N.G.S, Resolution 3447 (XXX), 9th December, 1975.
5. Id; Article 1.
6. The Constitution of India, 1950, Preamble.
7. The Constitution of India, 1950, art. 14.
8. The Constitution of India, 1950, art. 15 & art. 16.
9. The Constitution of India, 1950, art. 16(3) & 16(4)
10. Ruchika Pandey & DR. MWIRIGI K CHARLES, “A critical study of legal rights of people with disabilities: Indian scenario”, IJRAR- International Journal of Research and Analytical Reviews. VOLUME 6 I ISSUE 1 I JAN.– MARCH 2019, E ISSN 2348 –1269.
11. The Constitution of India, 1950, art. 46.
12. The Constitution of India, 1950, art. 47.
13. The Protection of Human Rights Act, 1993, s. 2(d).
14. State of Kerala & othrs v. Leesamma Joseph LL2021SC273
15. Disabled Right Group v. Union of India (2016) 7 SCC 761