Critique of Existing Legislation and National Policy

According to the 2001 Census conducted by the Government of India, there are a total number of 21,906,769 persons with disabilities in India. As per the Survey conducted by the National Sample Survey Organisation, Government of India in 2002, the distribution by type of disability is according to the following table:

When it comes to the legal and policy framework on disability in India some of the aspects that need to be looked at are the relevant guiding principles, articles and sections of the Constitution of India and judicial interventions, as well as disability specific Acts passed by Parliament. But first a historical perspective on disability related norms and policies in India has to be discussed and the work of the disability oriented non-government organizations (NGOs) currently active in the country introduced.

Historical Perspective

Despite having a progressive Constitution, an enlightened and alert judiciary, and a fast evolving legal regime with a clear disability focus, the ground level situation in the country leaves much to be desired. There is little impact of recent changes in law and policy, and that too is limited to small pockets of urban India. The slow pace of process of change can be attributed to the social construction of disability that views it as an individual issue and considers family as the primary institution responsible for dealing with it.

Though there is a long tradition in India of caring for the weak and vulnerable by family members at a great personal sacrifice, the role of the family as a sole support for people with disabilities grew out of the failure of colonial rulers in maintaining social safeguards that were available throughout ancient and medieval India. In fact, the concept of charity got introduced in India during British rule to basically contain problems of destitution, beggary, crime, and delinquency, which grew out of proportion with the diminishing of social safeguards that existed earlier.

In the Ancient India many important figures such as Kautilya (known as the Machiavelli of India, was the author of a Treatise on Political Administration called Artha Shastra) who was the mentor and political Guru of Chandra Gupta Maurya ( 321 BC - 279 BC), the Emperor Ashoka (269 BC - 232 BC) and even the Mughal Emperors (14th and 15th Centuries, AD), brought in many statutes which ensured the security of the downtrodden and poorest such as the aged, the ill and infirm. They ensured easy access to public health and focused on the self reliance and earmarked sustained livelihoods for the lower classes. Here specific mention must be made of Chandra Gupta who established workshops for the vocational rehabilitation of people with physical impairments and those who are socially disadvantaged members in society.

When the British took over political power in India, the programs and policies that the Rulers implemented in their mother country of Great Britain were also implemented here. Even after the Indian Independence the policy of charity towards persons with disabilities, a legacy of colonial times, continued wherein the first three Five Year Plans (1951-66). The sole support to people with disabilities comprised grants-in-aid to NGOs and the establishment of national institutions to prepare qualified personnel, mainly to serve in charitable institutions. During this period, a Central Social Welfare Board was set up in order to assist the voluntary organizations in implementing the several programs for people with disabilities in Indian Society.

Since the 1950s, when the Constitution of India was written, to the modern day India has enacted and been signatory to several national and international legislations, which stipulate that each and every citizen is a rights-holder and as such is entitled to all the basic facilities and schemes that should be implemented by the Government. But it can be seen that even by the 10th Five Year Plan, which has just come to an end, the Steering Committee on Social Welfare members have expressed deep concern that the role of and funding to the voluntary organizations working with Persons with Disabilities and other vulnerable communities is on a downward trend and urged an increase in funding to the NGOs as well as to tap the resources from the Corporate Sector, in order to implement the several Schemes and policies for the vulnerable communities including Persons with Disabilities. This is against the very principles of the International and National Human Rights legislations which insistently hold the State to be responsible to ensure the equal enjoyment of rights by one and all. Commenting on State obligations, the Committee on Economic, Social and Cultural Rights in General Comment No. 5 states,

while it is appropriate for Governments to rely on private, voluntary groups to assist persons with disabilities in various ways, such arrangements can never absolve Governments from their duty to ensure full compliance with their obligations under the Covenant.

There is a need to understand what exactly are the specific statutes that have been stipulated under the different legislations and enactments that have been brought out for the welfare of persons with disabilities over the last few years. The first and foremost document relevant for each and every citizen of India is the Constitution of India which was formulated and written during the year 1956.

The Constitution of India

Equality, dignity, autonomy and liberty are the founding principles on which international human rights law is premised and as such the Preamble to the Constitution of India, while giving a structure and philosophy of governance, clearly proclaims 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...

Equality

Under the right to equality the Constitution of India guarantees to all citizens equality before law and equal protection of law (Article 14); and it prohibits discrimination on grounds of ‘religion, race, caste, sex, place of birth or any of them’ (Articles 15 and 16). Further, to ensure equality in the outcome, it encourages the State, under Articles 16(3) and 16(4), to frame any law or make provision for the reservation of appointments or posts in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in its services.

Non-Discrimination

The formal recognition of discrimination on grounds of disability is a recent phenomenon and laws enacted even twenty years ago generally did not include disability in the list of prohibited discriminations. For instance, the Constitution in Articles 15 and 16 prohibits discrimination in the matter of employment and access to public facilities on grounds of religion, race, caste, sex and place of birth, but is silent on disability.

Directive Principles of State Policy and the Fundamental Rights

The Preamble, the Directive Principles of State Policy and the Fundamental Rights enshrined in the Constitution, envisage a very positive role for the State towards its disadvantaged citizens.

Article 41 declares that, ‘(T)he State shall, within the limits of its economic capacity and development make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement.’

Article 46 lays down an obligation on the State ‘(T)o 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.’

Enforceability of Socio-Cultural rights

Theoretically, social and cultural rights have not been perceived enforceable both in the Constitution of India (Part III) and under the international human rights law. The Covenant on Economic, Social and Cultural Rights requires the realisation of these rights progressively by States in accordance with their level of development and economic capacity. Such a concept has assumed greater acceptance since the enforcement of these rights requires financial investment and thus the pace of implementation is linked to the implementing states’ economic capacity. Under the Directive Principles of State Policy (Part IV) too, the rights enunciated are to be realised in accordance with the level of economic capacity. State and its agencies tend to take refuge under this arrangement for justifying non-action.

Protection of Human Rights Act, 1993

After ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), India brought into force the Protection of Human Rights Act, 1993. This Act provides for the establishment of the National Human Rights Commission and States Human Rights Commissions for better protection of human rights. Section 2(d) of this Act 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.’ Thus, the Act provides a mechanism to monitor the implementation of various constitutional provisions and obligations under international covenants on different rights, including economic, social and cultural rights. This also indicates India’s readiness to implement non-justiciable rights.

Disability Laws

The movement demanding for the protection of their rights was initiated by the persons with disabilities way back in the 1970s in this country and though the Central Government recognized the need for such an enactment in 1980 itself, it was not until 1995 that Government was able to take affirmative action in enacting the Persons with Disabilities Act. One of the main reasons for the delay of more than 15 years in coming out with a legislation for persons with disabilities was because disability as an issue was put under the State List under the Constitution of India and as such the Center could not enact this legislation. But once India signed the Proclamation of Equality and Full Participation of People with Disabilities in Asian and Pacific Region, the Article 249 of the Constitution was made use of, wherein it empowers the Parliament to legislate on any subject falling in any list in order to fulfill its international obligations. The following is a brief of some of the important legislations at work at present in the country.

National Policy for Persons with Disabilities 2006

Some of the major areas on which the National Policy concentrates on include:

1. Prevention of Disabilities
2. Rehabilitation Measures
   1. Physical Rehabilitation Strategies
      1. Early Detection and Intervention
      2. Counseling and Medical Rehabilitation
      3. Assistive Devices
      4. Development of Rehabilitation Professionals
   2. Education for Persons with Disabilities
   3. Economic Rehabilitation of Persons with Disabilities
      1. Employment in Government Establishments
      2. Wage employment in Private sector
      3. Self-employment
3. Women with disabilities
4. Children with Disabilities
5. Barrier-free environment
6. Issue of Disability Certificates
7. Social Security
8. Promotion of Non-Governmental Organizations (NGOs)
9. Collection of regular information on Persons with Disabilities
10. Research
11. Sports, Recreation and Cultural life
12. Amendments to existing Acts dealing with the Persons with Disabilities

Some important things that may need to be critically examined are

• The highlight of the document is the change in the use of language
• bringing education of people with disabilities under the Ministry of Human Resources Development and all that is Special and Exclusive for people with disabilities is confined only to that of persons with severe disabilities
• there is also a considerable emphasis on inclusivity in terms of private and public responsibility in the context of health, education, livelihood, sports, games and other cultural activities
• one of the important features in the above mentioned areas is the use of technology in the areas of communication and mobility, that is, provision for required software and hardware, built infrastructure, roads and other modes of transport, and aids and appliances
• interestingly, research agendas that which is being transferred to Ministry of Human Resources Development (MoHRD), also brings in genetic sciences, only to the extent of prevention of disability
• the document is committed more to medical rehabilitation than the rights of persons with disabilities
• this very well reflects in the area of research envisaged in the document (Chapter VIII, page 25) which at once forecloses the research agenda within the confines of understanding that social attitudes are mirrors of pure and transparent and easily available social and cultural behaviour and such attitudes are easily available "out there" without any relationship to law, development, and other human sciences or science and technologies.

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

Referred to as Persons with Disabilities Act in common parlance, this Act is understood to be indeed an achievement for the Indian disability movement. Right from its Preamble this Act clearly states its objective of promoting and ensuring equality and full participation of persons with disabilities and aims to protect and promote economic and social rights of people with disabilities. The Act covers seven disabilities broadly and all these are based on the bio-medical model. The disabilities that have been listed in Section 2 include blindness, low vision, hearing impairment, locomotor disability or cerebral palsy, mental retardation, mental illness and persons cured of leprosy.

The Act details the various responsibilities of the Government, both State and Central, at all levels including establishments under its control. Some of the areas for which it lays down specific measures for the development of services and programs for equalizing opportunities include the enjoyment of right to education, work, housing, mobility and public assistance in case of severe disability and unemployment. The implementing agency for the mandates of this Act are a Central Co-ordination Committee and State Co-ordination Committees representing major ministries, Members of Parliament and disability NGOs and having a woman with disability as a member.

Other than this a separate Commissionerate of Disabled Welfare, with a Chief Commissioner at the Center and Commissioners at the State levels work for the implementation of the various welfare schemes meant for the persons with disabilities. Another important responsibility of the Commissionerate is to redress individual grievances, provide safeguards to the rights of persons with disabilities, monitor implementation of disability related laws, rules and regulations, and oversee the utilization of budget allocated for persons with disabilities. These quasi-judicial bodies and especially the Commissioner are vested with the powers of a civil court.

Though this was a revolutionary legislation when it was enacted, in as much as it addresses the issues of Persons with Disabilities directly for the very first time in the history of Jurisprudence in this country, the instrument is now in urgent need of some amendments. The most significant weaknesses that have surfaced are related to the absence of a powerful implementing instrumentality. The necessity becomes urgent in the light of the UN Convention for the Rights of Persons with Disabilities which India has not only signed (3003-2007) but has even ratified (01-10-2007) . Though the concerned Ministry in the Central Government has accepted that there are issues to be considered in this Act, and constituted a Committee to work on the amendments, to date a great deal more progress has still to be made on this front.

National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999

The basic premise for the enactment of this Legislation was to ensure the additional care and protection needed by persons with severe and multiple disabilities, as also for their property and well-being. This Act focuses mainly on assuring a person with severe or multiple disabilities a life as independent as possible, and the opportunity to be part of the community as everyone else in society. Measures to ensure protection of people with severe and multiple impairments in the case of death of their family members or guardians, and to support the organisations which are working with people with severe and multiple disabilities in order to provide need based services in the time of crisis were also considered . To this end a National Trust has been set up at the Central level, with Local Level Committees (at the District Level), the members for which are appointed through vote by the registered organisations of the parents of children with severe and multiple disabilities and the Central Government has contributed 100 Crore Rupees and the annual interest from this Corpus is used for the mandated activities.

Mental Health Act, 1987

This Act primarily focuses on possible State’s intervention to secure and protect the lives of Persons with Mental Illness. This Act precedes the Human Rights Legislations and so tends to be more focused on regulating the standards of the institutions for mental health as well as appointment of various officials, officers and medical professionals in these institutions and has provisos for non-cruel treatment of the mentally ill patients as well as conducting research on the patients only after their consent or at least of their relatives or friends.

The fundamental flaw of this Act is that it takes it for granted that the only panacea for the mentally ill is institutionalization. This becomes problematic given that the monitoring and review mechanisms of these institutions are more or less non-existent, which becomes an open invitation for all sorts of human rights violations. Thus the National Human Rights Commission, at New Delhi, the Capital of the country, has had to intervene in reprimanding the administrators of institutions for the Mentally Ill on more than one occasion.

Rehabilitation Council of India Act, 1992

Though the Rehabilitation Council of India was set up by the Government of India in 1986 to regulate and standardize training policies and programmes in the field of rehabilitation of persons with disabilities, there remained an urgent need for ensuring minimum standards, as the majority of persons engaged in education, vocational training and counselling of persons with disabilities were not professionally qualified. As such, an Act of Parliament in 1992 made the Council a statutory body with following aims:

• To standardize training courses for professionals dealing with people with disabilities;
• To prescribe minimum standards of education and training of various categories of professionals dealing with people with disabilities;
• To regulate these standards in all training institutions uniformly throughout the country;
• To promote research in rehabilitation and special education; and
• To maintain Central Rehabilitation Register for registration of professionals.

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