Disability Rights- A Comparative Analysis

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Human Rights are the rights given to every individual irrespective of gender, caste, nationality and appearance. They are the rights inherent to all human beings. Disability is a very important issue which needs to be studied from the prism of human rights.

The persons with disabilities are one such segment in the human race who are eligible with all the rights that are conferred in the same manner on the normal persons.

Human rights brings right to integrity and dignity which every individual is entitled to. The social values that are related to the persons with different disabilities have changed a lot from ancient days. They encounter problems in their everyday life which stop them from participation in the society. They are often exposed to denial of education, employment and recognition.  The Government is required to promote the necessary conditions that are required for the full development of those individuals.

The Constitution of India provides in its different provisions the rights of the persons with disabilities. For example, all the Fundamental rights are given to the disabled persons on par with the normal citizens. They have the right to enforce the fundamental rights under Article 32 of the Constitution of India.

Coming to the Directive Principles of State Policy, Article 45 grants compulsory education to the children including the disabled up to the age of 14 years. However,  there is no specific provision which expressly states about the persons with disability.

The rights and duties with respect to marriage for disabled persons are governed under Hindu Marriage Act, 1955, the Christian Marriage Act, 1872 and the Parsi Marriage and Divorce Act, 1935 etc. There are so many legislations which indirectly talks about disabled persons.

In the year 1995, Persons with Disabilities Act was passed but it was not successfully implemented. The aim of the Act was only to endeavour, ensure and promote equality among the persons with disability [Reports Vikaspedia].

There were many disability friendly schemes that were made under this Act. For examples, measures to be taken in the buses, railways or any other public transport for the easy commutation of the disabled persons. Despite the provisions for the barrier free environment, the employers like the builders pay less importance to the service of the disabled persons. The buses, rail compartments and so on are not accessible for the people in wheelchairs. The road crossings and the zebra crossing do not have any kind of audio signals for the persons with disabilities to cross the road. A disabled person is still considered as an object of pity and mercy. The transport system is not at all disabled friendly. All this signals towards the lack of funds in the hands of authorities or otherwise corruption.

Comparative Analysis

In most of the countries of European Union, the disability rights are more of a social policy rather than a matter of social legislation. For example, in Belgium, the disability policies focus on the opportunity in the employment, education and better living standards. There is no separate legislation for the same.

In the United Kingdom, the disabled workers were protected under Disabled Persons (Employment) Act, 1944. But this did not cater to the needs of the nation. The latest legislation is Disability Discrimination Act (DDA), 1995. This statute provides for the accessibility to goods and services by the disabled persons, management of the premises etc. The quota system that was prevailing in the earlier Act was abolished. It envisaged for non-discrimination against the persons with disabilities in the schools, colleges and industries. The statute puts burden on the educational institutions to encourage the disabled pupils to attend classes. But the 1995 statute fails to take into consideration the social model as envisaged by United Nations regarding disability.

In Germany, the German disability law was enacted for the protection of the disabled group. One of the provisions was that every employer, with at least 16 employees, has to reserve the posts for 6 percent of the total for the persons with disability. The problem was with the employers going away from their duties after the quota is filled.

In the United States of America, the Americans with Disabilities Act, 1990 was passed to provide protection to the disabled group. The statute stated about providing a clear and comprehensive mandate for the elimination of the discrimination of the persons with disabilities. It spoke about the accessibility of the public services by the persons with disabilities. This Act applied during employment as well as pre-employment proceedings. This statute is binding on the employers with at least 15 employees. The employers have to provide with reasonable accommodation for the persons with disabilities. But as per the reports the main point in the United States is that the disabled persons were treated on individual basis rather than on group basis.

The Indian disability laws suffer from major flaws. Unlike the above laws, the private sector is not covered under the Indian statutes. There are no provisions for tribunals for the enforcement of the rights of the persons with disabilities or to impose penalty in case of any discrimination. It is not at all compulsory for the government to remove structural and environmental barriers for the protection and integration of disabled persons [Reports Punarbhava].

Current Scenario

The United Nations Convention on Rights of Persons with Disabilities was ratified by India in the year 2007. But the persons had to wait till the end of 2016 to get a legislation in place.

The Government of India has recently notified the bill on Rights of Persons with disabilities which was passed by the Parliament during its winter session. The reservations for the persons with benchmark disabilities have been increased from three to four percent in the Government jobs and from three to five percent in the higher educational institutions. A National Trust is to be established under the Act.

A mobile app and facebook page has already been created to provide for a platform for all NGOs to work together and to get acquainted with the schemes and policies regarding the disabled persons.  Every child between the age of 6 and 18 years with disabilities will be provided with free education. The number of disabilities has been increased from 7 to 21 in accordance with the UN Convention on Rights of Persons with Disabilities.

The Central Government has the power to add more diseases if it is needed. The penalties have been imposed to the extent of 5 lakhs in case of any contravention. Any assault, intimidation, denying food to the persons with disabilities or performing any medical procedure without any consent if it leads to termination of pregnancy, it will be punishable with 5 years of imprisonment [Reports New Indian Express]

But the above Act does not provide any disabilities like thalassaemia, learning disabilities or autism. There is no tool in India at present to measure autism or learning disabilities.

The definition of ‘disability’ under the Act is any “distinction, exclusion, restriction on the basis of disability” which impairs or nullifies the exercise on an equal basis of rights in the “political, social, cultural, civil or any other field”.

However, it condones such discrimination if “it is shown that the impugned act or omission is a proportionate means of achieving legitimate aim”. This definitions might lead to wrong interpretations. There is a special mention about rights of women and children with disabilities, but nothing specific has been stated. There are no provisions in marriage or divorce laws for the women with disabilities where the women suffer the most. There is a special mention about the children with disability but there is no provision for their compulsory education etc. In adoption laws, the children with disabilities are totally left out [ Reports Indian Express].

The need of the hour is to make adoption laws for those children. As India is a signatory to the United Nations Convention on the Rights of Persons with Disabilities, there can be no policies without the PwDs (Persons with Disabilities) can be valid. But the new Act curtails the rights of the disabled persons. This Act enables many violators to go scot free as the imprisonment period has been lessened from the ones suggested by the earlier amendments.

Section 3 (3) allows “discrimination against disabled person if it is ‘a proportionate means of achieving a legitimate aim. The term ‘legitimate aim’ is open for subjective interpretation. The Act states that “appropriate Governments shall, within the limit of their economic capacity and development, formulate necessary schemes and programmes to safeguard and promote the rights of persons with disabilities for adequate standard of living, to enable them to live independently or in the community.”

The words “within the limit of their economic capacity and development” is left open for interpretation. Another provision is “The appropriate Government shall ensure that the persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life and have the right to equal recognition everywhere as any other person before the law,” and it also talks about guardianship for the disabled persons in the other provisions. This seems to be contradictory [Reports LiveLaw].

Conclusion

It can be seen from the above arguments that India has taken a lot of time for a comprehensive Act regarding disabled persons as compared to other nations. The Act has to cater to all needs but it is not possible in a country like India. The activists are there to find the loopholes of any Act. But it should be appreciated that the Government has taken a step towards the realisation of its duty to protect the persons with disabilities. Time has to be given to the statute in order to assess the same. It would be quite unfair to judge the same at such an early stage. The social norms of different nations are not the same. The Act has been made dynamic to meet the future needs.

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