ACCESS TO JUSTICE FOR PERSONS WITH DISABILITIES
Simran Walia*
Sanjana Rai**
INTRODUCTION
Article 13, Access to Justice:
1. States Parties shall ensure effective access to justice for persons with disabilities
on an equal basis with others, including through the provision of procedural and ageappropriateaccommodations, in order to facilitate their effective role as direct and
indirect participants, including as witnesses, in all legal proceedings, including at
investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for persons with disabilities,
States Parties shall promote appropriate training for those working in the field of
administration of justice, including police and prison staff.
Disability[1]- A physical or mental condition that limits a person’s movements, senses, or activities.
Disabled- unable to use a part of your body completely or easily because of a physical condition, an illness, an injury, etc.; unable to learn easily.
A eloquent portion of our population has impairments which reduce their ability to effectively or safely use standard consumer products. These rough ups may be acquired at birth or through accident or disease. Many impairments which result in disabilities are corelated with aging. This is especially convincing, as the population as a whole is growing older. Although there is a tremendous variety of distinguished causes, as well as combinations and severity of disabilities.
Types of Disabilities
- Attention-Deficit/Hyperactivity Disorders-
ADD and ADHD are neurological conditions which affect both learning and behaviour. They result from chronic disturbances in the areas of the brain that regulate attention, impulse control, and the executive functions, which control cognitive tasks, motor activity, and social interactions.
- Blindness or Low Vision-
"Totally blind" students learn via Braille or other non-visual media.
"Legally blind" indicates that a person has less than 20/200 vision in the more functional eye or a very limited field of vision (20 degrees at its widest point.
“Low vision”a combination of vision and other senses to learn, and they may require adaptations in lighting or the print size, and, in some cases, Braille.
- Brain Injuries-
Injuries that are caused to the brain due to accidents; however, insufficient oxygen, stroke, poisoning, or infection may also cause brain injury.
- Deaf/Hard-of-Hearing-
People who are deaf or hard of hearing require different conformities depending on several factors, including the age of onset, the degree of hearing loss, and the type of language or communication system they use.
- Learning Disabilities-
Learning disabilities are neurologically based and may interfere with the accustom and use of listening, speaking, reading, writing, reasoning, or mathematical skills. A learning disability may be characterized by a marked discrepancy between rational potential and academic achievement resulting from difficulties with processing information.
- Medical Disabilities-
Other disabilities include the conditions that affect one or more of the body's systems. Which include respiratory, immunological, neurological, and circulatory systems.
Eg . Cancer
AIDS
Chronic diseases
- Physical Disabilities-
A variety of physical disabilities result from indigenous conditions, accidents, or progressive neuromuscular diseases. Disabilities may include conditions such as spinal cord injury muscular dystrophy, paralysis, polio/post polio, and stroke.
- Psychiatric Disabilities-
A wide range of behavioural and/or psychological problems characterized by anxiety, mood swings, depression, and/or a negotiated assessment of reality refers to Psychiatric disabilities.
- Speech and Language Disabilities-
It may result from hearing loss, cerebral palsy, learning disabilities, and/or physical conditions. There may be a range of challenges from problems with articulation or voice strength to complete absence of voice. Included are difficulties in projection, fluency problems, such as stuttering and stammering, and in articulating particular words or terms.
APPRAISMENT OF DISABLED IN INDIA
The official estimates of disabled persons in India, obtained through the latest Population Census and National Sample Survey Organisation’s comprehensive surveys on disability, put the figure as about 21 million (roughly around 2 percent of the population) at the beginning of the new millennium. However, estimates vary across sources and a new World Bank Report on disabled persons in India, has observed that „there is growing evidence that people with disabilities comprise between 5 and 8 per cent of the Indian population (around 55 – 90million individuals). [2]
Census 2001 has revealed that over 21 million people in India as suffering from one or the other kind of disability. This is equivalent to 2.1% of the population. Among the total disabled in the country, 12.6 million are males and 9.3 million are females. Although the number of disabled is more in rural and urban areas. Such proportion of the disabled by sex in rural and urban areas. Such proportion has been reported between 57-58 percent for males and 42-43 percent females. The disability rate (number of disabled per 100,000 populations) for the country as whole works out to 2130. This is 2,369in the case of males and 1,874 in the case of females.
Among the five types of disabilities on which data has been collected, disability In seeing at 48.5% emerges as the top category. Others in sequence are: In movement (27.9%), Mental (10.3%), In speech (7.5%), and In hearing (5.8%). The disabled by sex follow a similar pattern except for that the proportion of disabled females is higher in the category In seeing and In hearing.
Across the country, the highest number of disabled has been reported from the state of Uttar Pradesh (3.6 million). Significant numbers of disabled have also been reported from the state like Bihar (1.9 million), West Bengal (1.8million), Tamil Nadu and Maharashtra (1.6 million each). Tamil Nadu is the only state, which has a higher number of disabled females than males. Among the states, Arunachal Pradesh has the highest proportion of disabled males (66.6%) and lowest proportion of female disabled.[3]
TABLE 1: NUMBER OF DISABLED POPULATION AND TYPE OF DISABILITY
Population / Percentage (%)Total population / 1,028,610,328 / 100.0
Total disabled population / 21,906,769 / 2.1
Disability rate ( per lakh population) / 2,130 / --
Type of Disability
(a) In seeing / 10,634,881 / 1.0
(b) In speech / 1,640,868 / 0.2
(c) In hearing / 1,261,722 / 0.1
(d) In movement / 6,105,477 / 0.6
(e) Mental / 2,263,821 / 0.2
Source : Census of India 2001.
Support Services for Victims with Disabilities
In the absence of formal support services for people with disabilities who are the victims ofcrime, some advocacy groups are working to provide in-person support services. Theseservices include such activities as:
1. Accompanying the victim to the police station.
2.Talking with the police to help them understand the nature of the victim’s
disability.
3. Making suggestions for modifications that could be made to the usual
procedures in order to help the investigation.
4. If desired by the victim, being present with him or her during police
questioning.
5. Accompanying the victim to the courthouse prior to any official meetings
there, in order to prepare them for the courtroom environment.
6.Helping the victim understand what procedures will occur and easing their
concerns about these procedures.
7. Accompanying the victim during court proceedings, in order to help calm
and support them if requested by the victim.
8. Where appropriate, and with the victim’s permission, asking the court to
make modifications to the testimony procedures. For example, moving
proceedings to the judge’s chambers or other environment less intimidating
than the courtroom, or bringing in an expert to help court officials understand the victim’s disability and its possible impact on the testimony.[4]
1993 UN Standard Rules on the Equalization of Opportunities for Persons
with Disabilities(Standard Rules) does not expressly address the issue of access to justice, it
does address a number of issues that can impact the enjoyment of access to justice by people
with disabilities:
- Awareness-raising of the rights, needs, potential and contributions of people with
disabilities in society (Rule 1)
- Support services to promote independence and facilitate the exercise of rights by
people with disabilities (Rule 4)
- Physical, informational and communication accessibility (Rule 5)
- Education (Rule 6)
- Personnel training (Rule 19).[5]
Access to Justice in Action:South African Equality Court Supports Access forPeople with Disabilities.
Esthe Muller is a South African lawyer and also a wheelchair user. When she and
other people with disabilities were unable to access her local courthouse because ofthe presence of steps, she brought a case in 2003 under the “Promotion of Equalityand Prevention of Unfair Discrimination Act” of 2000. Her case was supported bythe South African Human Rights Commission and was brought against the Justice Department and the Department of Public Works.Because of the inaccessibility of the courthouses, Ms. Muller had to be carried upthe stairs to enter the courthouse. On another occasion the court had to postponeher cases because she could not get into the room. “It’s embarrassing for my clientto have his lawyer carried into court. It’s also embarrassing for me,” she said.In September 2004 the South African Equality Court reached a final settlement inthe case. The two government departments admitted that they had failed to provideproper wheelchair access.They also admitted that their failure was a form of unfairdiscrimination against Ms. Muller and other people with similar accessibility needs,and they apologized for this. The departments committed to a plan to ensure that allcourt buildings throughout the country will be made accessible within three years.At least one courtroom and one toilet in each building will have to be accessible topeople with disabilities. The plan requires specific actions to be taken by specificdates, and the departments will report on their progress to the Equality Court. Inthe meantime, inaccessible courthouses will need to find other ways to make surethat people with disabilities can access their facilities. For example, some haveconstructed “makeshift” courtrooms, and in other instances judges and magistrateshave moved their proceedings to more accessible spaces.[6]
The Right of Persons with Disabilities Bill, 2014Highlights of the Bill
- The Bill replaces the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Instead of seven disabilities specified in the Act, the Bill covers 19 conditions.
- Persons with at least 40% of a disability are entitled to certain benefits such as reservations in education and employment, preference in government schemes, etc.
- The Bill confers several rights and entitlements to disabled persons. These include disabled friendly access to all public buildings, hospitals, modes of transport, polling stations, etc.
- In case of mentally ill persons, district courts may award two types of guardianship. A limited guardian takes decisions jointly with the mentally ill person. A plenary guardian takes decisions on behalf of the mentally ill person, without consulting him.
- Violation of any provision of the Act is punishable with imprisonment up to six months, and/or fine of Rs 10,000. Subsequent violations carry a higher penalty.[7]
Ministry: Social Justice and Empowerment
LEGAL RIGHTS OF THE DISABLED IN INDIA
THE DISABLED AND THE CONSTITUTION
The Constitution of India applies uniformly to every legal citizen of India, whether they are healthy or disabled in any way (physically or mentally). Under the Constitution the disabled have been guaranteed the following fundamental rights:
- The Constitution secures to the citizens including the disabled, a right of justice, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and for the promotion of fraternity.
- Article 15(1) enjoins on the Government not to discriminate against any citizen of India (including disabled) on the ground of religion, race, caste, sex or place of birth.
- Article 15 (2) States that no citizen (including the disabled) shall be subjected to any disability, liability, restriction or condition on any of the above grounds in the matter of their access to shops, public restaurants, hotels and places of public entertainment or in the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of government funds or dedicated to the use of the general public. Women and children and those belonging to any socially and educationally backward classes or the Scheduled Castes & Tribes can be given the benefit of special laws or special provisions made by the State.
- No person including the disabled irrespective of his belonging can be treated as an untouchable. It would be an offence punishable in accordance with law as provided by Article 17 of the Constitution.
- Every person including the disabled has his life and liberty guaranteed under Article 21 of the Constitution.
- There can be no traffic in human beings (including the disabled), and beggar and other forms of forced labour is prohibited and the same is made punishable in accordance with law (Article 23).
- Article 24 prohibits employment of children (including the disabled) below the age of 14 years to work in any factory or mine or to be engaged in any other hazardous employment. Even a private contractor acting for the Government cannot engage children below 14 years of age in such employment.
- Article 25 guarantees to every citizen (including the disabled) the right to freedom of religion. Every disabled person (like the non-disabled) has the freedom of conscience to practice and propagate his religion subject to proper order, morality and health.
- No disabled person can be compelled to pay any taxes for the promotion and maintenance of any particular religion or religious group.
- No Disabled person will be deprived of the right to the language, script or culture which he has or to which he belongs.
- Every disabled person can move the Supreme Court of India to enforce his fundamental rights and the rights to move the Supreme Court is itself guaranteed by Article 32.
- No disabled person owning property (like the non-disabled) can be deprived of his property except by authority of law though right to property is not a fundamental right. Any unauthorized deprivation of property can be challenged by suit and for relief by way of damages.
- Every disabled person (like the non-disabled) on attainment of 18 years of age becomes eligible for inclusion of his name in the general electoral roll for the territorial constituency to which he belongs.[8]
- The right to education is available to all citizens including the disabled. Article 29(2) of the Constitution provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on the ground of religion, race, caste or language.
- Article 45 of the Constitution directs the State to provide free and compulsory education for all children (including the disabled) until they attain the age of 14 years. No child can be denied admission into any education institution maintained by the State or receiving aid out of State funds on the ground of religion, race, caste or language
- Article 47 of the constitution imposes on the Government a primary duty to raise the level of nutrition and standard of living of its people and make improvements in public health - particularly to bring about prohibition of the consumption of intoxicating drinks and drugs which are injurious toone’s health except for medicinal purposes.
- The health laws of India have many provisions for the disabled. Some of the Acts which make provision for health of the citizens including the disabled may be seen in the Mental Health Act, 1987 (See later in the chapter).
The rights and duties of the parties to a marriage whether in respect of disabled or non-disabled persons are governed by the specific provisions contained in different marriage Acts, such as the Hindu Marriage Act, 1955, the Christian Marriage Act, 1872 and the Parsi Marriage and Divorce Act, 1935. Other marriage Acts which exist include; the Special Marriage Act, 1954 (for spouses of differing religions) and the Foreign Marriage Act, 1959 (for marriage outside India). The Child Marriage Restraint Act, 1929 as amended in 1978 to prevent the solemnization of child marriages also applies to the disabled. A Disabled person cannot act as a guardian of a minor under the Guardian and
Wards Act, 1890 if the disability is of such a degree that one cannot act as a guardian of the minor. A similar position is taken by the Hindu Minority and Guardianship Act, 1956, as also under the Muslim Law.
INCOME TAX CONCESSIONS
RELIEF FOR HANDICAPPED
- Section 80 DD: Section 80 DD provides for a deduction in respect of the expenditure incurred by an individual or Hindu Undivided Family resident in India on the medical treatment (including nursing) training and rehabilitation etc. of handicapped dependants. For officiating the increased cost of such maintenance, the limit of the deduction has been raised from Rs.12000/- to Rs.20000/-.
- Section 80 V: A new section 80V has been introduced to ensure that the parent in whose hands income of a permanently disabled minor has been clubbed under Section 64, is allowed to claim a deduction upto Rs.20000/- in terms of Section 80 V.
- Section 88B: This section provides for an additional rebate from the net tax payable by a resident individual who has attained the age of 65 years. It has been amended to increase the rebate from 10% to 20% in the cases where the gross total income does not exceed Rs.75000/- (as against a limit of Rs.50000/- specified earlier).[9]
- This Act may be called the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
- It extends to the whole of India except the State of Jammu and Kashmir
- “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” had come into enforcement on February 7, 1996. It is a significant step which ensures equal opportunities for the people with disabilities and their full participation in the nation building. The Act provides for both the preventive and promotional aspects of rehabilitation like education, employment and vocational training, reservation, research and manpower development, creation of barrier- free environment, rehabilitation of persons with disability, unemployment allowance for the disabled, special insurance scheme for the disabled employees and establishment of homes for persons with severe disability etc.