According to Census 2011, the number of disabled in India amount to 2.21 percent of population that is 26.8 million. Disability activists opine the count is grossly underestimated as no. of disabled in a country on an average roughly amount to 5-6 percent of the population.
India has ratified the UN Convention on Rights of Persons with Disabilities. It requires the nations which are party to the treaty, to provide an enabling atmosphere so that disabled enjoy the status as full and equal members of the society with human rights. It enjoins the states to provide disabled friendly voting machines for their right to vote, to promote good standards of living through access to poverty reduction programs, with right to health, education and work without discrimination based on disability. It prohibits compulsory sterilization of disabled persons and their right to adopt children. It is also gender sensitive.
All the four disability-specific legislations i.e. The Mental Health Act 1987, Rehabilitation Council of India Act 1992, Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 and the National Trust Act 1999 — would have to be harmonized with the letter and spirit of the UNCRPD after India ratified it.
The most marginalized and vulnerable sections of the population has been excluded out of the millennium development goals agenda till 2015. The disability activists are pressing for an inclusion in post 2015 development agenda. Full inclusion of the disabled in the mainstream of the nation necessitates absence or removal of physical barriers to them. Disability is not only a Human Rights issue, it is a Developmental issue as well.
Disabilities directly impinge on the poverty. They often go together. Families with Disabled persons in a household will lead of loss of income from the caretaker. Girls with disabilities are more prone to sexual abuse and are forced sterilization in hospitals are they are assumed incapable of maintaining menstrual hygiene. They were not medically necessitated. Also parents of mentally disabled fearful of rape, sexual abuse or unwanted pregnancy consider hysterectomy as a solution. They are not considered fit to assume the traditional familial roles and they are conditioned to being dependent on someone unable to take care of themselves, which in turn makes them more vulnerable. Disability activists press for Gender sensitive disability law. There is a need to recognize the reproductive rights of the disabled.
Children with Disabilities aren’t even guaranteed an admission in the school despite the legal provisions in the Right to Education Act. They are considered a part of the disadvantaged where the Act necessitates mandatory 25 percent reservation in private and public schools. The elders with disabilities cannot lead a life of dignity in the absence of a supportive social security system. Many are not aware of the govt. programs for the disabled. Many in India resign their disabilities to their fate/karma.
Mentally Disabled are even more vulnerable. They figure out at the bottom of hierarchy in the disability category. They are not even entitled to the reservations in govt. services that physically disabled enjoy. They do not enjoy the Right to Vote that a billion other people in India enjoy. A person who is mentally unsound and stands so declared by court isn’t entitled the right to vote according to the Representation of People Act 1951. Mental unsoundness also limits a person from marriage and family according to our marriage laws.
A disabled person in developed nations might have far better opportunities than for a normal person in India. It is lack of the opportunities to lead a life of dignity that disempowers them. The effects of disabilities is negated by the presence of an enabling societal atmosphere. It is the Universal access and education that empowers them. It is the society that disables them, that denies them the physical access to the workplaces, public places etc. due to lack of enabling environment. It is lack of equal opportunities that they are treated as liability, but indeed they are an asset to the nation if provided enabling atmosphere.
Failings of the PWD Act
- The PWD Act 1995 is the principal legal instrument concerning the limited rights available to persons with disabilities and the obligations of the State. This is not a rights based legislation. The Act fails to impose mandatory obligations on the appropriate government and leaves the realization of opportunities to the discretion of the various state governments.
- The implementation of provisions pertaining to non-discrimination and physical access depends on the state government’s “limits of economic capacity and development”. This absolves the state govt. of any responsibility.
- The Act is not appreciative of Gender concerns of reproductive rights. It does not prescribe punishment for forced abortions or sterilization
- The PWD Act does not internalize any of the core principles of the Disability Convention, which is Disabled persons are right holders and that they are not merely passive recipients of govt. scheme.
- The rights the disabled enjoy according to the convention are the Rights of Women and Children with Disability to full and equal enjoyment of human rights, right to privacy, reproductive rights, right to family, health care, prohibition of discrimination on grounds of disability in employment, political rights of right to vote and contest etc. which are not taken care adequately in the Act
- The Disabilities according to the Act is narrowly defined and includes only blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation and mental illness. As opposed to this, the Disability avoids listing specific conditions and severities and broadly casts “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.”
- No penal provisions for the non-implementation of the law resulting in inaction by govt. in ensuring a disabled friendly schools, hospitals, public transport, pedestrian pathways etc.
Highlights of the Rights of Persons with Disabilities Bill that overrides the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act of 1995
- It raises the reservation to the Disabled in the Govt. jobs from 3 to 5 percent
- Every person with disability who fulfils eligibility requirements is entitled to be registered as a voter. He/she should not be disqualified from exercising the voting right on the grounds of disability, irrespective of any stipulation to the contrary in any law for the time being in force.
- Provides incentives/disincentives to the Private sector for presence/absence of employing persons with disability less than 5 percent. An employer can deduct from his taxable income, an amount equal to the salary of the disabled employees above the 5 per cent or add to the taxable income salary of the disabled employees falling short of the 5 percent requirement
- Any person who is unable to vote in person due to disability or because of admission to hospital for treatment is entitled to opt for postal ballot. It requires the Election Commission to ensure that all polling stations are accessible to persons with disabilities.
- Recognizes the right to fertility to the mentally unsound women making the bill take into account the gender concerns
- Prescribes punishment for forced abortions or hysterectomy
The latest Supreme Court judgment for disabled in the State, Central govt. and Public Sector Undertakings has scrapped the different basis for reservations across the Group A, B, C and D posts and held that 3 percent reservation to be notified across all the Groups. The ruling also held that reservation be calculated on the total number of vacancies in the cadre strength rather than only the vacancies in the “identified” posts fit for the disabled. This ensures that whoever is capable for a job can try and qualify for it and is not denied opportunity for a particular job on the grounds of disability.