Country Report First Draft
Prepared
By
Centre for Disability Studies
NALSAR Law University
Shameerpet, Hyderabad
1.Background
1.1India is often described as an old civilization but a young country.As the country enters its 64thyear of independent existence the description of youth does not seem too apposite. It can now be termed young by reason of the fact that 50% of its billion plus population consists of persons below 25 years of age and 65% of the population is below 35 years. It is significant to note that this second most populous country in the world is a functioning democracy. This democratic character of the polity exerts influence on political governance across the ideological divide. This influence has been constitutionally secured by the induction of a Bill of Rights in the Constitution. These fundamental rights are justiciable and any law in infringement of the fundamental rights is to the extent of the contravention void. And the people of the country have the right to directly move the Superior Courts to seek remedy against such infringement.
1.2The 2011 census estimates the population of the country to be 1.21 billion. Of this, the total male population is 623.7 million and female population is 586.5 millions.The sex ratio being 914 females per 1000 males. About 72.2% of the population lives in some 638,000 villages and the remaining 27.8% in about 5,480 towns and urban agglomerations. The Planning Commission of the country on the basis of the 61stround of the National Sample Survey Organization in 2004-05 estimated that 28.3% households in the rural areas were living below the poverty line. An expert committee appointed by the Ministry of Rural Development using a different criteria has found that 50% of rural Indians live in poverty. The GDP growth rate of the country has been around 7.5% in 2009 and 2010.
DISTRIBUTION OF RELIGIONS IN INDIA
Religions / %Hindus / 82.00
Muslims / 12.12
Christians / 2.34
Sikhs / 1.94
Buddhists / 0.76
Jains / 0.40
Other Religions & Persuasions / 0.44
Miscellaneous / 0.05
1.3There are 18 major languages spoken in India and over 1600 regional dialects. Even though Hindi is the official language, many people in India do not speak it at all. Hindi is spoken by about half the population, mostly in North India. Most languages have their own script. Some of the major languages are Hindi, English, Assamese, Bengali, Gujarati, Kannada, Kashmiri, Malayalam, Marathi, Oriya, Punjabi, Sanskrit, Tamil, Telugu and Urdu.
1.4This report aims to outline the status of persons with disabilities in the country.As it seeks to elaborate on the implementation of the Convention on the Rights of Persons with Disabilities (hereinafter CRPD) in India, the perambulatory paragraphs provide a snapshot of the socio-economic context within which the rights of persons with disabilities are being democratically addressed in India.
1.5 India signed the CRPD on 30thMarch 2007 when it opened for signature and ratified it in October 2007. The promise to implement the Convention was not made on a clean slate. Various initiatives surrounding persons with disabilities antedated the CRPD. Whilst some of these initiatives were in accord with the CRPD, others demonstrate a pre-CRPD understanding of disability. A synoptic detailing of the various disability related developments is being made so to enable understanding ofthe threats and opportunitiesexisting in the country.
1.6Even as some persons with disabilities participated in the freedom struggle, persons with disabilities, in accord with the then prevailing outlook, were primarily viewed as objects of welfare, when the constitution of the country was adopted.It is this outlook which caused the founders to induct Article 41 in the constitution which provided that “the 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 and in other cases of undeserved want”.
1.7In the federal division of power, the responsibility of making laws and policies in relation to persons with disabilities was allocated to the states.However, the kind of interventions contemplated can be deduced from the relevant legislative entry which spoke of “relief of the disabled and unemployable”.The exclusion of persons with disabilities from social discourse was perceived as a consequence of the deficiency of their body and mind and not due to social prejudice. Thus though discrimination on grounds only of “religion, race, caste, sex, descent, place of birth, residence or any of them” was prohibited disability did not find inclusion in the prohibited grounds.
1.8That the founders did not subscribe to the prejudicial exclusion of any people can be discerned from the debate on including unsoundness of mind as a ground for denial of the right to vote.Whilst the drafting committee acknowledged that a person of unsound mind should not be allowed to vote, they were not amenable to the disqualification coming to play without a judicial determination.Consequently, electoral rights were denied to only those persons of unsound mind who had been so declared by a competent court.
1.9In accord with their constitutional mandate various State governments instituted different relief schemes for persons with disabilities. These schemes primarily provided disability or unemployment pension to persons with disabilities,concessions in travel was another common relief provided.
1.10In accord with this welfarist approach, a number of organizations for persons with disabilities sprang up in different parts of the country, several of these organizations were established by parents and family members of persons with disabilities. Organizations lead by persons with disabilities themselves was a much later phenomenon.
1.11The service oriented outlook towards disability was also promoted by the National institutes who inaugurated professional and technical outlook towards disability.The establishments of the Institutes contributed to the impairment specific research and interventions in the country.
- National Institute for the Physically Handicapped set up in 1976
- National Institute for the Orthopedically Handicapped established in Kolkata in 1978
- The National Institute for Visually Handicapped was established in Dehradun 1979
- National Institute for the Hearing Handicapped was established in Mumbai in 1983
- National Institute for Mentally Handicapped was established in Hyderabad in 1984
- National Institute for Empowerment of Persons with Multiple Disabilities was established in Chennai in 2005.
The National Institutes along with their regional centres created a network of technical professional expertise around the particular impairments for whose study they were established.
1.12 The professional outlook was not limited to the government established National Institutes. Thus the technical initiatives around cerebral palsy were primarily driven by voluntary initiative whereby parents of persons with cerebral palsy set up Institutes which would advance technically informed interventions in the field. Institutes were established in different regions of the country from 1972 onwards. The Institutes which were termed as Spastic Societies at initiation have from the beginning of this century started to adopt a more advocacial and human rights approach to their work. The need to have the specificrequirements of the particular impairment to be understood has caused service and advocacy initiatives to spring up for autism from the early nineties.
1.13Service provision has not been confined to governmental effort and the voluntary enterprise of parents and families. The philanthropic impulse has also informed social intervention in the field. It is with this impulse that theBhagwan Mahaveer Viklang Sahayata Samiti (BMVSS), Jaipur was set up in 1975. It is amongst the largest organizations for the fitment of artificial limbs and calipers for persons with disabilities. The organization provides all the artificial limbs, calipers, crutches, ambulatory aids like wheelchairs, hand paddled tricycles and other aids and appliancesfree of chargeto those persons with disabilities who cannot afford them.
1.14Persons with disabilities started to represent themselves only in 1970 whenthe National Federation for theBlind was established with the philosophy of “Let the blind Lead the blind”.This trend of single impairment advocacy continued till the 1990’s. From the mid 90’s cross disability advocacy started to gain credence with loose networks such as the Disability Rights Group. Even so persons with intellectual and developmental disabilities were primarily represented through organizations of parents. Thus, Parivaar – National Federation for Parents Association for Persons with Mentally Handicapped, autism, cerebral palsy and multiple disabilities was formed in 1995. The self advocacy chapter was inaugurated in 2008. The concerns of persons with psychosocial disabilities haveagain been represented by parents and caregivers and by user survivors themselves.
1.15 The above narration has been made to underscore that the CRPD does not become operational in a clean slate situation. There are persons and organizations who are in accord with the CRPD outlook and philosophy and there are others who are at odds with it. The rights discourse of the Convention has been inaugurated in a social-political context where perspectives of welfare and rights; preferences of autonomy and protection; technical and experiential expertise are engaged in both amicable and antagonistic dialogue to define the strategy of realizing the rights of persons with disabilities.
2Definition of Disability
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others
2.1Article 1 of the Convention defines persons with disabilities to include those who have long term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. The CRPD has focused on the interplay between impairment and social barriers to define who is a person with disability. The subsisting Indian law makes the definition of person with disability to depend upon the severity of the impairment.
2.2Thus, Section 2 (t) of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 (hereinafter PWDA) defines a person with disability to mean “a person suffering from not less than 40% of any disability as certified by a medical authority”.
2.3Section 2 (i) of the same statute defines disability to mean “blindness, low-vision, leprosy cured, locomotor disability, hearing impairment, mental retardation and mental illness”. The statute then goes on to define each of the conditions on a severity scale. The duration of the condition has only come into play in relation to persons living with mental illness. The PWDA defined mental illness to mean “any mental disorder other than mental retardation”. The Indian Disability Valuation Evaluation and Assessment Scale has limited the eligibility for disability benefits to Schizophrenia, bipolar disorder, dementia and obsessive compulsive disorder. The total duration of the illness is required to be at least two years and for the purpose of scoring the number of months the patient is symptomatic in the last two years is taken into account. Thus, the longer the period of symptoms the higher the disability score.
2.4Other than the Persons with Disabilities Act of 1995, a person with disability has been defined in the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act of 1999 (hereinafter NTA). In this statute, a person with disability is defined to mean “ a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such condition and includes a person suffering from severe multiple disability”.
2.5Disability related entitlements are primarily limited to persons who have medically certified to have the above named conditions. This definition has been judicially expanded if a person acquires a disability during his service. The Indian Supreme Court has ruled that these acquired disabilities are not limited to the one’s the named in the Act and even impairments not so named shall stand included. On this interpretation the Court has included medical and learning disabilities.
2.6Similarly, the Court has extended the benefits of Reasonable Accommodation in educational instruction and examination to persons with learning disabilities. The PWDA provides for 3% reservation in all educational institutions for persons with disabilities. The benefit of this provision has again not been limited to the named disabilities. The present legal position therefore is that in legislative policies and programmes the country operates under an enumerative model of disability. This enumerative model is supplemented by court decisions when an individual is able to establish that he or she has been denied a constitutional right of equality by reason of disability.
2.7In the deliberations surrounding the adoption of a new disability rights law, the continuance of an enumerative model is being hotly debated. Paragraph (e) of the preamble to the UNCRPD recognizes that disability is an evolving concept which results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder full and effective participation in society on an equal basis with others. An enumerative model its critics contend would thus seem to be in opposition to an evolving outlook towards the definition of disability. The proponents of the enumerative model however point out that without explicit naming the lesser known and invisible disabilities would never obtain the programmatic support required to realize the rights guaranteed by law. Furthermore a generic definition may open the flood gates of claims and to meet such demand may be beyond the capacity of a developing economy. These concerns are being reported to highlight the difficulties faced on the ground in adopting the philosophical inclinations of the UNCRPD.
The concept of Reasonable Accommodation
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;
2.8The PWDA which is the operative disability rights law in India does not recognize the concept of reasonable accommodation as enunciated in the UNCRPD. Section 47 of the Act incorporates a more absolute version of this concept in relation to persons who acquire a disability during service. This section states that “no establishment shall dispense with or reduce in rank an employee who acquires a disability during his service; provided that if an employee, is not suitable for the post he was holding could be shifted to some other post with the same pay scale and service benefits. Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation whichever is earlier”. The hardship questioned has also been generically answered rather than specifically addressed. Thus, an additional proviso to the section allows that an “appropriate government may having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any as may be specified to such notification, exempt any establishment from the provisions of this section”.
2.9It is significant to note that the Indian Courts have not limited the application of this section to the disabilities enumerated in the statute. However, they have taken a more restrictive interpretation of the establishments covered by the provision. Thus in Dalco Engineering Private Ltd. v. Shree Satish Prabhakar Padhye, (AIR 2010 SC 1576), the Supreme Court of India ruled that this section did not apply to private establishments.
2.10The legislative induction of the concept of reasonable accommodation still awaits the enactment of a new disability rights law. However, the Indian Supreme Court has ruled in Daily Rated Casual Labour (1988) 1 Supreme Court Cases 122; Visakha vs State of Rajasthan (1997) 6 SCC 241; and TN Godavaraman (2002) 10 SCC 606 ruled if there was no conflict between a human rights convention and municipal law then it could be directly enforced even without its explicit incorporation in municipal law. The Bombay High Court in Ranjit Kumar Rajak vs State Bank of India (WP No. 576 of 2008 decided on 8th May, 2009) has used these rulings to utilize the concept of reasonable accommodation in relation to an individual who was denied appointment by a State Bank due to a medical disability despite being found fit to perform the job for which he was recruited. The Court ruled that in the face of such fitness recruitment could not be refused only because the employer feared that the employee may claim higher medical expenses. The standards of medical fitness, the Court ruled have to be assessed on the basis of the duties and functions to be discharged by the employee. The fact that such an employee may seek higher medical support to continue to perform his duties can be no basis for refusing employment; such medical support would have to be reasonably accommodated by the employer.
Article 4 - General obligations
1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:
(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;
(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
(c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes;
(d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
(e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;