A STUDY ON RIGHTS OF DIFFERENTLY-ABLED PERSONS IN INDIA

By Mr. Kabilan.P


“Life is all about balance. Since I have only one leg, I understand that well.”

-Sandy Fussell.


1. Introduction

The society has invariably seen a differently-abled person with pity and has impugned the ability to compete. In India, about 2.1% of the population consists of differently-abled people among which only 60% of the population is educated[i]. Being an integral part of society specially-abled should also be treated with equal rights to lead their life in a peaceful way.

Who is a differently-abled person?

A differently-abled person is one who is handicapped or disabled mentally or physically. The United Nations Democratic National committee in the early 80’s coined the term differently-abled as more accepted one than handicapped, disabled.

The World Health Organisation defines Impairment, Disability and Handicap [ii](WHO, 1976)

“Impairment is a loss or any kind of abnormality of a psychological, physiological or anatomical structure or function.”

“A disability is a lack of any kind of bodily physical performance resulting due to the consequences of impairment.”

“An Individual is considered as a handicap as a result of impairment or a disability that prevents a particular individual from being considered as normal.”


2. The Convention on the Rights of Persons with Disabilities

The United Nations assembly adopted CRPD on 13th December 2006, with the purpose to promote, protect and ensure the full and equal enjoyment of human and fundamental rights by all differently-abled persons and to promote respect for their inherent dignity. This convention was the first legally binding instrument internationally to pointedly address the rights of the persons with disabilities (Article 1). Till date, 163 countries have signed out of 181 parties.

The author has listed the outline of the important provisions of the convention;

Article 2 and 3 provides the definition and sets out the basic principles of the convention such as Respect of Dignity, Equal opportunity on the basics of non-discriminatory grounds in participation and inclusion of men, women and children with disabilities.

Article 8 to 32 deals with the obligation of the state towards the disabled and their rights. The General obligation (Article 4) of the signatory state of the convention is to strike down or modify the existing laws, regulations of the state which constitute discrimination and are inconsistent with the convention. The parties of the convention are needed to create awareness of the human rights of differently-abled people and ensure access to their basic amenities such as roads, buildings, and information (Article 8, 9).

Articles 33-39 govern reporting and monitoring of the convention by the national human rights institutions (Article 33)and the committee on the rights of persons with disabilities (Article 34). Articles 40-50 govern ratification and the amendment, entry into force of the convention.

After the adoption, CRDP has spread awareness about the disability and the matters related to the development of the differently-abled.


3. Indian Constitution and differently-abled.

The Constitution of India secures the people (including disabled) with various rights enshrined under Part III of the Constitution. The Persons with Disability Act under section 2(1) defines disability “as a person living with low vision, blindness, loco motor disability, leprosy cured, and illness mentally and physically, hearing impaired, among others”.

1. Constitution in Article 15(1) states that all the citizens of the country (including disabled) shall not be discriminated in the grounds of religion, sex, caste or birthplace.

2. Article 15(2) states that no citizen with disabilities on the above grounds can be denied access to public places.

3. A differently-abled person shall be treated with equal grounds of the right to employment without any discrimination.

4. No differently-abled shall be treated as untouchable and is a punishable offence provided in Article 17 of the constitution.

5. Article 21 guarantees every citizen (including disabled) the right to life and liberty.

6. Human trafficking and forceful employment of the citizens of the country (including disabled) is prohibited under Article 23 and a punishable offence.

7. Article 24 prohibits the employment of disabled persons below 14 years of age in a factory or any other hazardous situation.

8. Article 25 ensures the right to freedom of religion to every citizen (including disabled).

9. The Constitution guarantees that no disabled shall be deprived of the right to language, culture, script.

10. According to Article 32 in case of breach of the rights of the disabled, they have the right to approach the Court.

11. The Constitution ensures each citizen (includes disabled) of the nation has a right to vote after the attainment of 18 years.

There are other basic rights such as disability certificate, train commission, disability pension, legal guardianship certificate, income tax concession, employment enjoyed by the disabled other than the above-mentioned fundamental rights of the constitution.


4. Rights of the person with disabilities Act, 2016

The Rights of the person with disabilities was enacted in accordance with the implementation of the obligations of the CRDP by replacing the previously existing the persons with Disabilities Act, 1995 which enclosed only seven disabilities. The newly enacted act covered 15 disabilities including dwarfism, acid attack victim, intellect disabilities, and specific learning abilities. The act defined a differently-abled person from the text in Article 1 of the convention.

The new act entitles certain benefits to people with at least 40% of disability such as 4% of the job vacancies in the Indian government, also it lays down certain rules for filing complainant and penalties in case any of discrimination. The act has enforced certain obligations on private institutions to empower differently-abled people[iii].


5. Are the rights being accessed by the differently-abled in India?

Even though there is development in society on viewing the differently-abled as contributing members to society. In the case of Disabled group rights V. Union of India[iv], petition was filed by Ms.Pooja Sharma, who was unable to pursue her studies due to lack of adequate facilities in nationally recognised Law University. By the order of the Supreme Court of India, the Bar Council of India passed a resolution that all the law universities must make courses accessible to the disabled. However the differently-abled persons face lots of discriminations be it at the workplace, educational institutions, other public places. The condition in rural areas is far worse than that in developed urban areas. Now even during the pandemic the disabled are not able to get their government allowances properly. This kind of situation can be changed by the government taking measures to spread awareness about the differently-abled and their rights with the help of governmental organisations and NGOs. There should be proper implementation of rights and allowances by the government.

6. CONCLUSION

Every Human being has flaws, but being differently-abled is not one of them. The view that differently-abled people not taken into consideration as worthy contributors to society must change, disabled must be able to access the rights in a fair manner. It is unfortunate that they are caught in these kinds of situations in the society. The change must take place within every human being by shifting their perspective of seeing the differently-abled.

[i]Prerna Kapoor, Prashanth K.Nanda, In Charts: Literacy and education status of India’s differently abled population, LIVE MINT (July 9, 2020, 5 PM), https://www.livemint.com/Politics/Uc9LNviy7xjWj8y87KM30I/In-charts-Literacy-and-education-status-of-Indias-differen.html. [ii]International Classification of Impairments, Disabilities, and Handicaps, resolution WHA29.35, §§ 13-14 (1976). [iii]LusLaboris, Rights of persons with Disabilities in India and other Jurisdictions, LEXOLOGY (July 10, 2020, 7:00 AM). https://www.lexology.com/library/detail.aspx?g=c606f652-6bf9-42d7-ab1d-a764c3215e0e. [iv]Disabled Rights group v. Union of India,2013 C.W.P. 997 (India).

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