Section 2: National Policy and Legislative Framework
The National Policy for Persons with Disabilities, 2006 4, specifically addresses the need to apply the Constitutional vision to persons with disabilities. The Policy proposes amendments to existing legislation that impact on persons with disabilities. However, this process has not yet gathered momentum. As a result, the situation of persons with disabilities on the ground remains largely unchanged. This is evident through shadow reports5 published from time to time by disability rights groups in India. In the realm of policy however we witness a sudden awareness about the criticality of disability issues both in the deliberations of the planning commission and the Ministry of Education.
- Note #5
- The Shadow Report
- Return
The National Policy for Persons with Disabilities, 2006 asserts the principle of full participation and inclusion. Drawing on figures from the National Census of 2001, which put the illiteracy rate among persons with disabilities at 51%, the policy proposes a sector-wise strategy for inclusion and full participation.6 Teaching methods, languages, communication and assistive devices in educational institutions under this policy will be inclusive of all disability conditions. The policy envisages setting up model schools for inclusive education. Inclusive schools will co-exist with special schools for children with severe disabilities that require special environments. The educational needs of non-literate adults with disabilities will be addressed through setting up of adult learning centres. Distance learning programmes and the national open school will broaden the base of formal education to persons with disabilities.
A similar initiative has been proposed in the field of higher education. The policy also proposes strengthening of existing affirmative action in public employment and the adoption of proactive measures like incentives and tax waivers for private employers employing persons with disabilities; and proposes initiatives that will facilitate the modification in design of machinery and implements at the workplace to ensure full work place participation by persons with disabilities.
The principle of equality of opportunity for persons with disabilities particularly in education and public employment is fairly well enunciated in Indian policy and judicial decision-making as is evident from the case law cited in the template. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 7 asserts the principle of equality of opportunity. In addition there is an ongoing effort to set up an Equal Opportunity Commission that will address the question specifically for persons with disabilities as well as other classes that face systemic discrimination. In addition, the Persons with Disabilities Act (1995) includes measures specifically designed to counter discrimination faced by those with disabilities. Special legislations and policy initiatives follow this principle.
- Note #7
- Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
- Return
The Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 defines disability
under section 2 (i) as blindness, low vision, leprosy cured, hearing impairment, locomotor disability, mental retardation, mental illness. A person with disability
is defined under this statute as a person suffering from not less than 40% of any disability as certified by a medical authority.
The definition under this act does not address the barriers that hinder access and full participation.
However the National Policy for Persons with Disabilities, 2006 recognises the existence of barriers in the social environment. The definition of the person with disability under this policy includes persons with visual, hearing, speech, locomotor and mental disabilities.
The policy then recognizes the impact of social environment on disability particularly in terms of access and full recognition:
Seventy five per cent of persons with disabilities live in rural areas, 49 per cent of the disabled population is literate and only 34 per cent are employed. The earlier emphasis on medical rehabilitation has now been replaced by an emphasis on social rehabilitation. There has been an increasing recognition of abilities of persons with disabilities and emphasis on mainstreaming them in the society based on their capabilities.8
The right to barrier free access and environments has increasingly been recognized as indispensable to the full participation of persons with disabilities in civil society. The creation of barrier free environments, social security measures for persons with disabilities and their families, and the creation of supporting infrastructure at the community level are other areas addressed by the national policy. All public endeavours, the Sarva Shiksha Abhiyaan9 and the University Grants Commission for example, address the need to create barrier free environments. Even prior to the adoption of national policy for persons with disabilities, the ambulift cases 10 highlighted the need for persons with disabilities to dignified access to airplanes. On the ground however even public institutions have not begun as a rule to create barrier free access. So this remains largely a commitment on paper. Several disability rights groups have expressed concern about the situation on the ground.
- Note #10
- Javed Abidi v Union of India 1999 AIR (SC) 512
- Return
The National Policy for Persons with Disabilities, 2006, addresses the concern of reasonable accommodation
especially with reference to the progressive elimination of architectural barriers, and provision of transport under the Integrated Education for Children with Disabilities scheme and with reference to the modification of machinery and equipment to suit the needs of persons with disabilities in the workplace. It requires the state to take all appropriate steps to ensure reasonable accommodation. However, the monitoring mechanisms that will measure the extent and effectiveness of the steps are not yet in place, nor are there any sanctions that make the adoption of such steps non-negotiable. The principle of reasonable accommodation, like the right to barrier free access, is therefore one that is recognized in policy. Government reports suggest that concrete measures are underway to realize this principle. We do not have enough information however of the actual implementation of these measures. There are however obstructions still in place in the law, that prevent persons with disabilities, designated by the fuzzy term infirmity or bodily defect
from entering into judicial services as is evident in the judicial services rules of the state of Andhra Pradesh. The policy also details the specific measures in terms of public health, rehabilitation and assistive devices that enhance the potential of persons with disabilities to enjoy a better quality of life and access information at all levels.
- Note #11
- Human Rights Act 1993
- Return
The Protection of Human Rights Act 1993 11 offers a general protection to all persons resident in India and is deemed to be an inclusive protection which by definition offers protection for persons with disabilities against human rights violations. While the National Human Rights Commission, set up under the Protection of Human Rights Act, 1993 is charged with the responsibility of protecting human rights of all persons, it has interpreted this with reference to persons with disabilities primarily in terms of access to education and employment and welfare, as is evident from the case law on disability handled by the NHRC. There have been over the years, sporadic reports of gross violations of human rights particularly of people in custodial institutions, which have been interpreted by the courts under the fundamental right to life liberty and equality in Indian Constitution. It is also now customary for human rights groups in India to use the commitments to international instruments as a tool to demand compliance from the Indian government. To that extent, the ratification of the Disability Rights Convention itself is a powerful tool that is now available to persons with disabilities within India.