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Persons with Disabilities- Rights, Rehabilitation and Resource Development

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About the Author: Pratim Sarkar - Lecturer-in-Law,has secured the position of 1st Class First in LL.M

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Disability refers to the disadvantage or restriction of activity caused by the way society is organized which takes little or no account of people who have physical, sensory or mental impairments. As a result such people are excluded and prevented from participating fully on equal terms in mainstream society. Disability is an unfortunate part of human life which can effect not only the natural way of living but also despair component strength and power. Persons with disability are most disadvantaged section of society, they are also neglected in their family. As per an estimate of World Health Organization, ten percent of the world’s population suffers from one or other disabilities and almost one fifth of the disabled person of the world lives in India. According to Census 2001, nearly 5% of people in India are affected with impairment or disability.1

In general connotation disability is of two kinds, Legal Disability and Physical Disability.
Legal disability can be defined as a the absence of legal capacity to do certain acts or enjoy certain legal rights. It is divided into two classes- 1. absolute, it wholly disables the person, like outlawry, excommunication, attainder and acts by statutory bodies or corporation in excess of their statutory powers; 2. partial as infancy, lunacy, drunkenness etc.2

Civil disability- The condition of a person who has had a legal right privilege revoked as a result of a criminal conviction.3
Physical Disability is of different kinds like Blindness, Leprosy cured persons, Hearing Impairment, Locomotor Disability, Mental Illness and Mental Retardation, Autism, Cerebral Palsy, Learning Disabilities(Dyslexia), Writing Disabiluties (Dysgraphia) etc.
Persons with Disability means a person suffering from not less than forty percent of any disability as certified by a medical authority.

The main causes of disability are malfunction, malformation or disfigurement of a part of the body at the time of birth, hereditary problem, lack of proper care at the time of pregnancy and childbirth, lack of consciousness, malnutrition, traffic accidents, employment injury creates disability, occupational diseases, illness, environment pollution physical torture, sport accidents, mental and nervous disorders, use of certain chemicals, drugs, alcohol, smoking, high blood pressure, old age, obesity may cause disability.

Poverty and disability these two concepts are deeply interrelated. As disability causes poverty, it is also possible that poverty causes disability. Disability, physical or mental restricts the choices available to a person due to multiple deprivations and social discriminations. People living in constrained economy tend to become disabled because of aggravating factors such as malnutrition and squalid housing, hazardous occupation and so on. 4

The incidence of disability is not the same in males and females. Certain health conditions are more frequent in one of the sexes. For instance, there is a slightly higher incidence of mental retardation in males, they faces more accidents, they have certain genetic disorders etc. Females have disabilities caused by motherhood, osteoporosis etc. Over 6% of India’s population is above the age of 60 years. Because of natural correlation between aging and aging and disability most of the people will have atleast a short term disability before the end of their lives and more than half of them may actually have long term disability or chronic condition which lasts more than 6 months during some periods before the end of their lives. Obesity is a kind of disability.5

International Initiatives-
All human rights instruments affirm fundamental and inalienable rights to all persons who are physically disabled. Article 1 of the Universal Declaration of Human Rights, 1948, states that, “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.

In the year 1969 an international awareness programme has been adopted in the name of Declaration on the Social Progress and Development by UN General Assembly.

In 1971 the General assembly adopted the Declaration on the Rights of Mentally Retarded Persons, taking into account the necessity of providing help to mentally retarded persons in order to enable them to develop their abilities and promoting their integration in the normal life. The Declaration recommends a frame work within which national and international actions should initiated for the advancement of rights such as medical care, education, training, rehabilitation, economic security, right to have qualified guardian, protection from exploitation, abuse, degrading treatment etc.

The year 1981 was announced as the ‘International Year for Disabled Persons’, some important objectives have been taken to implement in national, regional and international level.

Another declaration was adopted by the general assembly for mentally retarded persons in the year 1975, keeping in view, “the necessity of preventing physical and mental disabilities and of assisting disabled persons to develop their abilities in the most varied fields of life”.

The General Assembly in its resolution in 1982, decided to observe the period of 1983-1992 as United Nations Decade of Disabled Persons and requested the member states to utilize this period for implementing the World Programme of Action for Disabled Persons.

India was a member State to the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific region, which was adopted at the meeting to launch the Asian & pacific Decade of Disabled persons 1993-2002 convened by the Economic and social Commission for Asia and Pacific at Beijing in 1992.

Constitutional Concerns-
The Constitution of India has guaranteed the full protection to the rights of disabled people. The Preamble of the Constitution embodies the concept of social justice and equality of status and opportunity to all the people of India. Article 14 & 16 of the Constitution guarantee equality of opportunity to all citizen of India. Article 38 of the Constitution which falls within Directive Principles of State Policy, requires the State to promote the welfare of the people by securing a social order in which social, economic and political justice can inform to all institutions of national life and the State is required to make efforts to eliminate inequalities in status, facilities and opportunities amongst individuals.

The disabled citizens have the same rights as other citizens to a descent standard of living and economic security, right to work, education, employment and also right to access and communication. In India there is a long list of legislations and regulations which protect and govern the rights and interests of disabled persons. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is the principal and comprehensive legislation concerning disabled persons. The Acts defines the responsibilities of the Central and State govt. with regard to the services for disabled persons. Provisions have been made in this Act for the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of disabled persons. The Act also recommends to create a barrier free environment by removing all type of discrimination against persons with disabilities where they can share the development benefits which a normal person enjoys.

The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 provides for the establishment of an institution for the welfare of people with autism, cerebral palsy, mental retardation and multiple disabilities. The Act gives direction for the care and protection of persons with these disabilities in the event of death of their parents, procedures of appointment of guardians and trustees for persons in need of such protection and to provide need-based services in times of crisis to the families of the disabled.

The Mental Health Act, 1987 was enacted to regulate admissions to psychiatric hospitals psychiatric nursing homes of mentally ill-persons who do not have sufficient understanding to seek treatment on a voluntary basis and to protect the rights of such persons while being detained, to protect society from the presence of mentally ill persons who have become or might become a danger or nuisance to others, to protect citizens from being detained in psychiatric hospitals or nursing homes without sufficient cause, to regulate responsibility for maintenance charges of mentally ill persons who are admitted in psychiatrist hospitals or nursing homes, to provide facilities for determining guardianship or custody of mentally ill-persons who are incapable of managing their own affairs, to provide for the establishment of Central Authority and State Authorities for mental health services, to regulate the power of the Govt. for establishing, licensing & controlling psychiatric nursing homes for mentally persons and to provide for legal aid to mentally ill-persons at state expense in certain cases.

The Rehabilitation Council of India Act, 1992, was passed to regulate the man power development programmes in the field of education of persons with special needs. The main objectives are to regulate the training policies and programmes in the field of rehabilitation of people with disabilities, to standardize training courses for rehabilitation professionals, to recognize institutions/universities running degree/diploma/certificate courses in the field of rehabilitation of the disabled and to recognize and equalize foreign degree/diploma/certificate courses.6he RCI Act has amended in 2000 to entrust the additional responsibility of promoting research in rehabilitation and special education.

The National Policy on Education 1986 is implemented to achieve the goal of providing education to all including the disabled. The objective of this policy is to integrate the physically and mentally handicapped with general community as equal partners to prepare them for normal growth and to enable them to face life with courage and confidence.

The Workmen’s Compensation Act, 1923 Section 3 says (in brief) that, if personal injury is caused to a workman by accident arising out of or in the course of his employment, his employer shall be liable to pay compensation. As per Section 4 of the above Act, where permanent total disablement results from the injury, an amount equal to 60% of the monthly wages of the injured workman multiplied by the relevant factor or amount of twenty thousand rupees whichever is more; where permanent partial disablement results from the injury in case of an injury mentioned in Part II of Schedule I, such percentage of compensation which would have been payable in the case of permanent total disablement, in case of injury not mentioned is Schedule such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity. In case of temporary disablement whether total or partial, a half monthly amount payment of the sum equivalent to 25% of monthly wages of the workman is payable.

Employees’ State Insurance Act, 1948, Section 46(c) says like this, periodical payment shall be made to an insured person suffering from disablement as a result of an employment injury sustained as an employee under this Act and certified to be eligible for such payments by an authority specified in this behalf by the regulations. Section 51 of the same Act states that, Disablement benefit- a) a person who sustains temporary disablement for not less than three days (excluding the day of accident) shall be entitled to periodical payment of such rates and for such periods and subject to such conditions as may be prescribed by the Central Govt. b) a person who sustains permanent disablement, whether total or partial, shall be entitled to periodical payment at such rates and for such periods and subject to such conditions as may be prescribed by the Central Govt.

The Payment of Gratuity Act, 1972 is one of the piece of legislation for the rights of disabled persons. As per Section 4 of this Act, gratuity shall be payable to an employee on the termination of his employment on his death or disablement due to accident or disease, if he has rendered continuous service of five years.

In Javed Abidi v. Union of India,7the Supreme Court taking into consideration the true spirit and objective for which the Persons with Disabilities(……) Act,1995 was enacted to create barrier free environment, to make special provisions for the integration of the persons with disabilities into the social mainstream apart from the protection of rights, provision of medical care, education, training employment and rehabilitation which are some of the prime objectives of the Act. The Supreme Court bearing in mind the discomfort and harassment suffering by a person of locomotor disability would face while travelling by train particularly to far off places, issued direction to the Indian Airlines to grant persons suffering from locomotor disability to the extent of 80%. In Chandan Kumar Banik v. State of West Bengal,8the Supreme Court has given the order to provide respite to mentally challenged inmates of a hospital in Hooghly district who were being kept chained by the hospital authority to control their unruly and violent behaviour. National Federation of Blind v. Union Public Service commission,9in this case the Supreme Court held that, the UPSC may be directed to allow blind person for appearing the examinations for Indian Administrative and allied services. In Ramchandra Tandi v. the State of Orissa,10 the concerned authority refused to accord recognition and financial assistance to a school for the deaf and dumb in order to avoid unnecessary financial burden. The court has decided the case in favour of disabled persons. In Govt. of NCT of Delhi v. Bharat Lal Meena,11the Delhi High Court held that people with disabilities can be appointed as physical education teachers provided they have passed the qualifying examination and undergone the requisite training. The Supreme Court in Kunal Singh v. Union of India,12held that Section 47 contains a socially beneficial provision and must be interpreted liberally so that the object of the Act, i.e. equal opportunities, protection of rights and full participation of persons with disabilities is advanced. Uppala Venkat v. Divisional Railway Manager(P)South Central Railway, Secunderabad and Others,13 in case of total disability which renders a person unfit for any employment in the establishment, he has the right of protection under the relevant provision of Persons with Disabilities(……) Act,1995. under this Act if a person is completely disabled, he should be provided with alternative employment and if such employment is not possible, he should be kept in a supernumerary post till he attains the age of retirement.

According to NSSO 2002, the estimated number of disabled persons in the country were 1.85 crore, According to Census 2001, there were 2.19 crore disabled persons in the country.14 One in every 10 children born with or acquires a physical, mental or sensory disabilities. India is a country where above 70% of the population living in rural areas and villages. Thus, people living in villages, requiring a wide range of professionals for providing rehabilitation services.

Rehabilitation Programmes and Support services-
The Govt. of India launched the District Rehabilitation Centre Scheme in the year 1995, to provide comprehensive rehabilitation services to the rural disabled right at their doorsteps. The scheme, is operational at 11different districts of 10 states.15 The services provided in their scheme includes, prevention and early detection, medical intervention and surgical correction, fitment of artificial limbs, therapeutic services, training, job placement etc.

As per the objectives of Rehabilitation Council India Act, the Council initiated the process of developing training programmes for human resource considering the needs of the professionals at different levels. 16 types of professionals are required in different fields. For that, Certificate, Diploma, Degree, Master Degree courses, training programmes for IAS officers, regular training courses are being implemented. In our country, 33 universities are directly running the programmes. The National Institutes, the Regional Centers and other apex institutes are conducting 90 programmes. The NGO’s are offering 136 programmes. There are 3,200 NGOs are working in this field. The number of qualified professionals in the Central Rehabilitation Register in 2004-05 is 26,363. More than 700,000 professionals will be required to serve persons with disabilities.16 With the coming in to force of the Persons With Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, there is a statutory responsibility on the Government to ensure that all disabled children are provided free education in an appropriate environment till the age of 18 years. A sceme called Integrated Education for Disabled Children (IEDC) was launched by the Government in 1974 to provide educational opportunities for disabled children in the general school system, so as to facilitate their retention and ultimate integration in the system. Under this scheme 100 percent financial assistance is supposed to be provided for the education of disabled children which includes, assistance towards books and stationery uniforms, transport allowances, readers allowance for blind children particularly those with lower extremity disability, boarding and lodging charges for disabled children residing in hostels. The IEDC scheme is being implemented in most of the States and Union Territories. the IEDC scheme has proposed an outlay of Rs. 1,000/- crore for the 11th Five Year Plan which is five time more than the 10th Five Year Plan allocation. To impart education, there are about 400 special schools for hearing impaired, and 300 schools for visual impairment and about 1500 schools for persons with mental retardation. Most of the schools are managed by NGO and only a few by the Govt. School attendance amongst the children with various types of disabilities range from a high of 56.4 percent (locomotor) to low of 13 percent (mental retardation). Enrollment of children with other disabilities varies with the type of disabilities- 50 percent (hearing disability), 49 percent (low vision), 36.5 percent (speech disability), 22.6 percent (blindness) and 13 percent (mental illness).17

Perhaps it is beyond debate and doubt that there is a tremendous need for decentralization of rehabilitation services to the district levels. Only local communities know their potential and without their co-operation no rehabilitation program can sustain. There is a wealth of wisdom and experience in the rural areas and it is necessary to build rehabilitation on the basis potential of families and the community. However there is a need of networks and linkages for dissemination of knowledge, skills, man power development strategies, technology from global level to village level communities.

In keeping with India’s philosophy of ‘Vasudhaiv Kutumbakamb’ which literally means ‘the world is one family, so all the family members deserve equal care and equal treatment. Members who are physically weak, defective should not be neglected and should not be treated differently. The dreams and aspirations of disabled persons should align with the ‘Millennium Development Goals’ and this possible when decentralization of rehabilitation planning and implementation starts happening.

Thus, we should come together and extend our support and co-operation to create a world, a world without stairs, prejudice, discrimination, and stigma where Braille and sign language become as a common medium as written and spoken words with another medium of expression that is through heart. A world where disabled have easy access to public places and utilities, can participate in cultural activities, political process and are capable to enjoy their lives in a meaningful way is the idle we should strive for.

References-
1. http:// www.infochangeindia.org/disabilities.jsp
2. A.N. Sen, Human Rights, 1st Edn. 2002, Sri Sai Law Publication
3. Black Law Dictionary, 7th Edn. 1999, West Group, St. Paul Minn
4. International Conference on Human Resource Development in the Area of Disability Rehabilitation. 25th and 26th April 2005. Ministry of Social Justice & Empowerment Government of India and Rehabilitation Council of India. Kanishka Publishers, Distributors. p. 249
5. Ibid, p. 283
6. Asha Bajpayee, Child Rights in India, 1st Edn. 2003, Oxford University Press, p. 420
7. (1999) 1 SCC 467
8. (1995) Supp(4) SCC 505
9. AIR1993 SC1916
10. AIR 1994 Orissa228
11. (2002) 100 DLT 157
12. JT 2003(2) SC 132
13. 2003(5) ALD 263
14. International Conference on Human Resource Development in the Area of Disability Rehabilitation. 25th & 26th April 2005. Ministry of Social Justice & Empowerment Government of India and Rehabilitation Council of India.Kanishka Publishers,Distribitors. p.235
15. Ibid, p. 289
16. Ibid, p. 31
17. Ibid, p. 2O3

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Date of Publication: 14 Feb 2010

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