The Right Handicapped

Justice RK Abichandani
Judge, High Court of Gujarat

The Constitutional Perspective

The concept of equality enshrined in Article 14 of the Constitution of India itself enjoins duty on the State to bring about a situation where the fundamental rights can be exercised on the footing of equality. Necessarily therefore, a disabled person is entitled to a right to be placed at the level at which he can enjoy the rights. The duty of the State to enact special provisions to enable the disabled persons to exercise their fundamental rights is thus provided in Article 14 itself. In the background of this fundamental right to equality, the directive principle of State policy contained in Article 39A of the Constitution assumes significance. Under that provision, the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Therefore, no disability shall deny to any citizen an opportunity to secure justice on the basis of equal opportunity. There is also an important directive principle contained in Article 41 enjoining a duty on the State (within the limits of its economic policy and development) to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want. Thus, much before the progress was made in the international arena, the founding fathers of the Constitution found it necessary to emphasize the duty of the State in Article 41 to make effective provision for securing the right to work, to education and to public assistance in cases of disablement. The concepts of justice social, economic and political, equality of status and of opportunity and of assuring dignity of the individual incorporated in the Preamble, clearly recognize the right of one and all amongst the citizens to these basic essentials designed to flower the citizens’ personality to its fullest. After all, an able-bodied person can have many hidden disabilities and an apparently disabled person may have many hidden abilities, and the concept of equality helps both in reaching their highest potential.

The Disability Dimension

More than half a billion persons are disabled as a result of mental, physical or sensory impairment and unable to enjoy life due to physical or social barriers. Nearly 80% of the world’s disabled persons live in developing countries. They constitute a significant reservoir of human potential which can be tapped with some efficient management and by recognition of their potential worth. Millions of disabled persons worldwide are reported to be living in misery and exclusion. The Rapporteur on Disability of the Commission for Social Development - Bengt Lindqvist reported to the Commission (Press Release dated 9th February 2000) that, the fundamental rights of disabled persons - including the right to education, parenthood, participation in elections, access to courts of law, and property rights were consistently violated around the world. Groups with psychiatric and development disabilities were extremely vulnerable and often exposed to exclusion and neglect. The Special Rapporteur told the Commission for Social Development that “People with disabilities were left behind in emergency situations in armed conflict, and disabled children were often hidden by their families or shut up in inhuman institutions”. There obviously has been noticed a strong link between disability and poverty; and, persons with disability tend to be less educated and poorer than their more fortunate brethren.

The disability dimension is to be regarded in the human rights perspective; and concern for disabled persons was a social and human rights issue.

The International Efforts
1. The United Nations General Assembly established the foundation for promotion and protection of human rights in 1948, when it proclaimed the Universal Declaration of Human Rights. Article 25 of the Declaration states that each person has “the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in the circumstances beyond his control.” The United Nations was founded on the principle of equality for all. The Preamble of the Charter affirms the dignity and worth of every human-being and gives primary importance to the promotion of social justice. Persons with disabilities are, de facto, entitled to all the fundamental rights upheld by the Charter and other human rights instruments such as International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. Disability is perhaps the area in which the importance of recognizing the individuality and interdependence of human rights and fundamental freedom as both covenants do is most evident and sharp.
2. The United Nations has been active in promoting the well-being and rights of persons with physical disabilities through a range of social welfare approaches and has provided assistance to governments in disability prevention and rehabilitation of disabled persons through advisory missions, workshops for the training of technical personnel and setting up rehabilitation centres. In the year 1971, the General Assembly adopted the “Declaration on the Rights of Mentally Retarded Persons”, which stipulated that mentally retarded persons are accorded the same rights as other human beings, as well as special rights corresponding to their needs in the medical, educational and social fields. In 1975, the General Assembly adopted, the “Declaration on the Rights of Disabled Persons” which proclaimed equal civil and political rights of disabled persons. Then in 1976, the General Assembly declared that the year 1981 will be the International Year of Disabled Persons and called for a plan for action at the national, regional and international levels with an emphasis on equalization of opportunities, rehabilitation and prevention of disabilities. An important outcome of the International Year of Disabled Persons was the formulation of the World Programme of Action concerning Disabled Persons, adopted by the General Assembly in December 1982. For implementing the activities recommended in the World Programme of Action, within a time frame, the General Assembly proclaimed 1983 - 1992 the United Nations Decade of Disabled Persons. This exercise led to the adoption by the General Assembly of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in 1993 which served as an instrument for policy making and a basis for technical and economic co-operation.
Standard Rules on the Equalization of Opportunities for Persons with Disabilities
1. In its 85th Plenary Meeting on 20th December 1993, the General Assembly adopted the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, requesting Member States to apply the Rules in developing national disability programmes. It was noted that there were persons with disabilities in all parts of the world and at all levels in every society and the number of persons with disabilities in the world is large and is growing. The Standard Rules were developed on the basis of the experience gained during the United Nations Decade of Disabled Persons (1983 - 1992). The International Bill of Human Rights, comprising the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women, as well as the World Programme of Action concerning Disabled Persons, constitute the political and moral foundation for these Rules. Although the Rules are not compulsory, they can become international customary rules when applied by a great number of States. The purpose of the Rules is to ensure that girls, boys, women and men with disabilities, as members of their societies, may exercise the same rights and obligations as others. The Rules emphasize the responsibility of States to take appropriate action to remove the obstacles that prevent persons with disabilities from exercising their rights and freedom and make it difficult for them to participate fully in the activities of their societies.
2. The Standard Rules are divided into three sections:
  1. Preconditions for Equal Participation
  2. Target Areas for Equal Participation
  3. Implementation Measures
The first section presents rules on different forms of support to the individual, medical   care, rehabilitation and various forms of supportive services.

The purpose underlying these Rules is to reduce the functional limitations and increase the independence of the individual. The section on Target Areas for equal participation deals with sectors and aspects of the society, which are of general importance for the quality of life. The Rule on accessibility deals with all the various aspects of access to physical environment and activities   and   services generally available to   non-disabled   persons.     The Rules on education, employment and income maintenance and social security, have great significance.   The Rule on family life and personal integrity is meant to ensure the full participation of persons with disabilities in family life and to prevent discrimination against persons with disability with respect to sexual relationships, marriage and parenthood. Rule 10 having a bearing on Culture, provides that the States will ensure that persons with disabilities are integrated into and can participate in cultural activities on an equal basis and that persons with disabilities have the opportunity to utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of their community, be they in urban or rural areas. The third section, providing for Implementation Measures, expects States to establish a data bank on disability, which would include statistics on available services and programs as well as on the different groups of persons with disabilities while bearing in mind the need to protect individual privacy and personal integrity. In the field of policy making and planning, the States are expected to ensure that disability aspects are included in all relevant policy making and national planning. The needs and concerns of persons with disabilities are required to be incorporated into general development plans and are not be to treated separately.   The States have a responsibility to create the legal basis for measures to achieve the objectives of full participation and equality for persons with disabilities and it is provided in Rule 15 that, national legislation, embodying the rights and obligations of citizens, should include the rights and obligations of persons with disabilities.

The States are under an obligation to enable persons with disabilities to exercise their rights, including their human, civil and political rights, on an equal basis with other citizens. The States have the financial responsibility for national programs and measures to create equal opportunities for persons with disabilities. Disability involves all spheres of society and therefore, it is necessary to use a comprehensive approach for which there would be a constant need for co-ordination. The States are, therefore,   made   responsible   for   the establishment and strengthening of national coordinating committees or similar bodies, to serve as a national focal point on disability matters.    For an effective implementation of   the   Standard Rules, monitoring mechanism is incorporated in Chapter IV which provided that a Special Rapporteur with relevant and extensive experience in disability issues and international organizations shall be appointed.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
1. India was a signatory to the proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region, which was adopted at the Meeting to Launch the Asian and Pacific Decade of Disabled Persons 1993 - 2002 convened by the Economic and Social Commission for Asia and Pacific at Beijing on 1st December 1992 and with a view to implement the Proclamation, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted wef 1st January 1996. The word ‘disability’ is defined in section 2(i) so as to mean (a) blindness, (b) low vision, (c) leprosy-cured, (d) hearing impairment, (e) locomotor disability, (f) mental retardation, and (g) mental illness.
2. There are difficulties in defining the expression ‘disability’ in a manner which reflected the social dimensions of disability, avoided considering of persons with disabilities as abnormal or inferior and reflected the fact that disability was frequently dependent on context and was required to be defined or described for certain purposes. The word ‘disability’ should connote
  1. The total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body
  2. The presence in the body of organisms causing, or likely to cause, chronic disease or illness
  3. the malfunction, malformation or disfigurement of a part of a person’s body
  4. A condition or malfunction which results in a person learning differently from a person without the condition or malfunction
  5. a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behavior.
3. The Act intends to provide for the following, as is apparent from the statement of objectives and reasons:
  1. To spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities
  2. To create barrier-free environment for persons with disabilities
  3. To remove any discrimination against persons with disabilities in the sharing of development benefits, vis-à-vis, non-disabled persons
  4. To counteract any situation of the abuse and the exploitation of persons disabilities
  5. To lay down strategies for comprehensive development of programs and services and equalization of opportunities for persons with disabilities
  6. To make special provision for the integration of persons with disabilities into the social mainstream
4. In Javed Abidi vs Union of India, AIR 1999 SC 512, the Supreme Court, keeping in view the objectives of the Act, while agreeing that the economic capacity is a relevant consideration while deciding the question as to whether all persons suffering from disability as defined under section 2(i) of the Act should be granted concession like the blind persons for traveling by air, held that the Court cannot ignore the true spirit and object with which the Act was enacted to create barrier free environment for persons with disabilities and to make special provisions for the integration of persons with disabilities into the social mainstream apart from the protection of rights, provision of medical care, education, training, employment and rehabilitation which are some of the prime objectives of the Act. The Supreme Court bearing in mind the discomfort and harassment a person suffering from locomotor disability would face while traveling by train particularly to far of places, issued a direction to the Indian Airlines to grant persons suffering from locomotor disability to the extent of 80%, the same concession which the Airlines is giving to those suffering from blindness. This is an important decision, because, despite the plea that the economic condition of the Indian Airlines was such that it was not feasible to grant any further concession to any other category of disabled persons, and that the Act itself postulates for providing facilities to the disabled persons within the limits of economic capacity, the Court issued the above directions keeping in view the broad objectives of the Act.
Evolution of Thinking about Disability Issues
1. “The move from the patronizing and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disability, as well as in moves to place the rights of persons with disabilities within the category of universal human rights”. (See Report of the United Nations Consultative Expert Group Meeting on International Norms and Standards Relating to Disability10-2-2001). Some provisions of the earlier instruments are based on assumptions and analyses which do not reflect current thinking and which persons with disabilities would today consider inappropriate or offensive. One such example was the reference in Article 7 of the Declaration on the Rights of Disabled Persons (1975) to the right of disabled persons “according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation”. The traditional approaches to disability have depicted it as health and welfare issue, to be addressed through care provided to persons with disabilities, from a charitable point of view. The disabled persons are viewed as abnormal, deserving of pity and care, and not as individuals who are entitled to enjoy the same opportunities to live a full and satisfying life as other members of society. This has resulted in marginalizing the disabled persons and their exclusion both from the mainstream of the society and enjoyment of their fundamental rights and freedom. Disability tends to be couched within a medical and welfare framework, identifying people with disabilities as ill, different from their non-disabled peers, and in need of care. Because the emphasis is on the medical needs of people with disabilities, there is a corresponding neglect of their wider social needs, which has resulted in severe isolation for people with disabilities and their families. (See “South African Integrated National Disability Strategy”, White Paper Office of the Deputy President of South Africa, 1997).
  
  Disability is a result both of the biological condition of the individual and of the social status that attaches to that biological condition. The subject of the rights of persons with disabilities should be approached from a human rights perspective, which recognized that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and give detailed contextual content to those general guarantees. There should be a full recognition of the fact that persons with disability were integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others.
2. In recent years, however, the approach has indeed been of a broader understanding of disability, which recognizes that the circumstances   of   people with disabilities   and   the discrimination they face are socially created phenomena and have little to do with the impairments of people with disabilities.    This is a critical reorientation   of   perspective,   which has important implications for the way in which law and policy in relation to disability are developed. It is recognized that problem does not reside in the person with a disability, but results from the structures, practices and attitudes that prevent that individual from exercising his or her capabilities.   The South African White Paper on an Integrated National Disability Strategy (supra), illustrates the significance of the shift in perspective from the “medical model” to the “Social Model” by the following examples:
  §        “It is the stairs leading into a building that §        disable the wheelchair user rather than the wheelchair.
  
  §        It is defects in the design of everyday equipment §        that cause difficulties, not the abilities of people using it.
  
  §        It is society’s lack of skill in using and §        accepting alternative ways to communicate that excludes people with communication disabilities.
  
  § It is the inability of the ordinary schools to § deal with diversity in the classroom those forces children with disabilities into special schools.”
The Legislation and its Interpretation
1. The following aspects should guide the legislation and its interpretation in context of the disabled persons:
  1. Individuals with disabilities are the most disadvantaged groups in society and still encounter daily discriminations in every facet of life
  2. Disability is a natural part of life and does not in any way diminish the right of individuals to live independently, make choices, contribute to society, and pursue meaningful careers
  3. For an increased employment of individuals with disability, there should be increased access to needed training, supports and reasonable accommodation
  4. Individuals with disabilities should be afforded tools to make informed choices and decisions, and to achieve equality of opportunity, full inclusion and integration in society
  5. Individuals with even the most severe disabilities should be presumed to be capable of gainful employment and be provided the needed supports for the purpose.
2. The law should recognize that disability is a natural part of the human experience and it does not in any way diminish the right of individuals to independently enjoy self-determination, make choices, contribute to society, pursue meaningful careers, and enjoy full inclusion and integration in the economic, political, social, cultural and educational systems of Indian society. With the advancement in technology and advent of supports, as may be provided through supported employment, the notion of equating disability with inability to work is erroneous and outmoded. There should be a presumption of ability that a person can achieve employment and other rehabilitation goals regardless of the severity of his or her disability, if appropriate services and supports are made available. There should also be a presumption that an individual can benefit in terms of ‘employment outcome’ from vocational rehabilitation services - unless it is demonstrated by clear and convincing evidence that such individual is incapable of benefiting from the vocational rehabilitation services in terms of an employment outcome.
Individualized Rehabilitation

The State should maintain data in respect of each disabled person and his technology needs should be addressed in a personalized rehabilitation program by including a statement of specific rehabilitation technology services which could be provided to assist in the implementation of intermediate rehabilitation objectives and long term rehabilitation goals for the individual. There should be a regular and periodic assessment to ensure that adequate supports and specific technology is aimed at the current and changing needs of the individual who will be using the technology. The rehabilitation program must be designed to achieve the employment objectives of the individual concerned with his or her unique strength, priorities, abilities and capabilities. There should also be given a choice to the individual disabled person in selecting the field of his engagement.

Conclusion

The existing laws and the constitutional equality provision, if properly implemented, should ensure a fuller life with dignity to the disabled persons. The financial constraints cannot be put forth by the State for dealing with the implementation of the programs reflected in the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. There is a Constitutional obligation on the part of the State to ensure equal opportunity to all persons including disabled persons. This gives them a right to seek removal of their handicaps so as to place them on a competitive level with others by making supportive provisions which can enable them to exercise their fundamental right to life to its fullest extent.

Discrimination on the ground of disabilities should be penalized and the provider of a service should be duty bound to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities, it would be impossible or unduly difficult for such person to avail himself or herself of the service.