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In a most tragic incident at
Erwadi, near Ramanathapuram, 25 people including 11 women were
charred to death. A devastating fire broke out at 5 am, in the
thatched hostel housing them. Out of the 46 hostel inmates, 40
were chained to their beds. They kept screaming for help but no
one came to their rescue. The 46 hostel inmates were mentally ill.
Erwadi is considered a holy place and has a Dargah. People from
various parts of the country brought their loved ones to this
place in the belief that the Dargah here had magical powers to
cure mental illness. During the course of the 'treatment', these
persons with mental illness were frequently caned, whipped and
beaten up in the name of 'driving away the evil'. During the day,
they were tied to trees with thick ropes. At night, they were tied
to their beds with iron chains.
PUCL Bulletin, December 2001
The question under consideration is that the population of India
is crossing the figure of 10 million and 5% of the population is
afflicted of mentally illness and mentally disorder, means 5 crore
persons. After going through the above-referred news- it strikes
our mind-what about their human rights?
The Preamble to the
Constitution of India assures the equal treatment and equality of
opportunity and status to all the citizens. No discrimination is
allowed on the basis of race, religion, race, caste, place of
birth, sex code or any of them etc. It assures the dignity of the
individual. It is important to point out here that dignity of the
individual is a fundamental notion behind all the fundamental
rights guaranteed under part III of the Constitution. Right to
dignified life is not only a fundamental right but also a human
right, civil right recognized by number of international treaties
and obligations. The Preamble to the Constitution of India & Part
III of the Constitution imposes a negative obligation on the part
of the state ?not to restrain the liberties and rights guaranteed
under the same part. Further the State has been directed under
the various provisions of the constitution
to extend similar treatment to all persons. Article 41 declares
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.
Article 46 lays down an obligation on the State. To promote
with special care the educational and economic interests of the
weaker sections of the people, and protect them from social injustice and all forms
of exploitation. Apart from this, various international
conventions also compelled Indian government to join the worldwide
movement to protect the dignity of mentally disabled persons.
The movement started in the
earlier years of decade of 1980 When General Assembly adopted the
Declaration on the Rights of Mentally Retarded Persons. However, a
little attention has been paid to the rights of disabled persons
while passing of Universal Declaration of Human Rights. The
Declaration was intended as a common standard of attainment for
all nations. Though it was not seen at the time as imposing
binding legal obligations on governments yet in practice the
Declaration has obtained a substantial force. Article 25 of the
Universal Declaration states that each person has, the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other
lack of
livelihood in the circumstances beyond his control. The United
Nations
was founded on the principle of equality for all. The Preamble of
the
Charter affirms the dignity and worth of every human being and
gives
primary importance to the promotion of social justice. Persons
with
disabilities are, de-facto, entitled to all the fundamental rights
upheld by the Charter and other human. Bearing in mind the
necessity of
assisting mentally retarded persons to develop their abilities in
various fields of activities and of promoting their integration as
far
as possible in normal life, the Declaration on the Rights of
Mentally
Retarded Persons proclaimed the necessity of protecting the rights
and
assuring the welfare and rehabilitation of the physically and
mentally
disadvantaged. The Declaration also enumerated some rights as the
pre-requisites to be complied with and protected to ensure the
human
rights of mentally disabled persons.
These rights were:
1. The mentally retarded person has, to the maximum degree of
feasibility, the same rights as other human beings.
2. The mentally retarded person has a right to proper medical care
and
physical therapy and to such education, training, rehabilitation
and
guidance as will enable him to develop his ability and maximum
potential.
3. The mentally retarded person has a right to economic security
and to
a decent standard of living. He has a right to perform productive
work
or to engage in any other meaningful occupation to the fullest
possible
extent of his capabilities.
4. Whenever possible, the mentally retarded person should live
with his
own family or with foster parents and participate in different
forms of
community life. The family with which he lives should receive
assistance. If care in an institution becomes necessary, it should
be
provided in surroundings and other circumstances as close as
possible to
those of normal life.
5. The mentally retarded person has a right to a qualified
guardian when
this is required to protect his personal well-being and interests.
6. The mentally retarded person has a right to protection from
exploitation, abuse and degrading treatment. If prosecuted for any
offence, he shall have a right to due process of law with full
recognition being given to his degree of mental responsibility.
7. Whenever mentally retarded persons are unable, because of the
severity of their handicap, to exercise all their rights in a
meaningful
way or it should become necessary to restrict or deny some or all
of
these rights, the procedure used for that restriction or denial of
rights must contain proper legal safeguards against every form of
abuse.
This procedure must be based
on an evaluation of the social capability of the mentally retarded
person by qualified experts and must be subject to periodic review
and to the right of appeal to higher authorities. Therefore the
Declaration stipulated that mentally retarded persons are accorded
the same rights as other human beings, as well as special rights
corresponding to their needs in the medical, educational and
social fields. In 1975, the General Assembly adopted, the
Declaration
on the Rights of Disabled Persons which proclaimed equal civil
and
political rights of disabled persons the inherent right to respect
for
their human dignity; the same fundamental human rights, whatever
the
origin, nature and seriousness of their handicaps and
disabilities, as
their fellow citizens, including the right to a decent life, as
normal
and full as possible ; the right to legal safeguards against abuse
of
any limitation of rights made necessary by the severity of a
person's
handicap , including regular review and the right of appeal ; the
right
to protection against exploitation or discriminatory, abusive or
degrading treatment ; and the right to qualified legal assistance
to
protect their rights, and for legal procedures to take their
condition fully into account.
Then in 1976, the General Assembly declared
that
the year 1981 will be the International Year of Disabled Persons
and
called for a plan for action at the national, regional and
international levels with an emphasis on equalization of
opportunities,
rehabilitation and prevention of disabilities. An important
outcome of
the International Year of Disabled Persons was the formulation of
the
World Programme of Action concerning Disabled Persons, adopted by
the
General Assembly in December 1982. For implementing the activities
recommended in the World Programme of Action, within a time frame,
the
General Assembly proclaimed 1983 - 1992 the United Nations Decade
of
Disabled Persons. The Principles for the Protection of Persons
with
Mental Illness and for the Improvement of Mental Health Care (MI
Principles) were adopted by the UN General Assembly and UN
Commission on
Human Rights in 1991.
These principles offer important guidance
for
standard setting. The Principles focus primarily on human rights
in
relation to the mental health system. It affirmed that every
person with
a mental illness has the same basic rights as every other person,
specifically including the rights set out in the ICCPR and the
rights
recognized in the Declaration on the Rights of Disabled Persons ;
that
discrimination on the basis of mental illness is not permitted ;
and
that people being treated for a mental illness must be accorded
the
right to recognition as a person before the law . This exercise
led to
the adoption by the General Assembly of the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities in
1993,
which served as an instrument for policy making and a basis for
technical and economic co-operation. Coming to the scenario
prevailing
in Asia, Economic and Social Commission for Asia and Pacific
organized a
meeting at Beijing in which Full Participation and Equality of
People
with Disabilities in the Asian and Pacific Region was adopted and
1993-2002 was launched as a decade for the achievement of the same
goal.
Therefore the attitude of the society towards persons afflicted
with
mental illness has changed considerably and it is now realized
that no
stigma should be attached to such ill-ness as it is curable,
particularly, when diagnosed at an early stage. Mentally ill
persons are
to be treated like any other sick persons and the environment
around
them should be made as normal as possible.
Though the government recognised the need for such a legislation
as
early as 1980, it was enacted only in 1995. The delay could be
attributed to the fact that the Indian Constitution while
distributing
legislative powers between the Centre and States kept the
disability
issue in the State list at Entry 9 of Schedule 7. The Parliament
of
India gained competence to legislate on disability issues with the
signing of the Proclamation of Equality and Full Participation of
People
with Disabilities in Asian and Pacific Region. Article 249 of the
Constitution empowers the Parliament to legislate on any subject
falling
in any list in order to fulfill its international obligations.
Being a
signatory to the number of conventions, with a view to implement
the
Proclamation, the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 was enacted
w.e.f. 1st January 1996.
The enactment of the Persons
with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 ( referred to as Persons with
Disabilities Act) is a signal achievement of the Indian disability
movement. Preamble to this Act clearly delineates its objective of
promoting and ensuring equality and full participation of persons
with disabilities. The Act aims to protect and promote economic
and social rights of people with disabilities. In literal sense,
disability is a result both of the biological condition of the
individual and of the social status that attaches to that
biological condition. The word disability under Medical Jurisprudence
connotes
(a) the total or partial absence of a
person's bodily or mental
functions, including the absence of a part of a person's body,
(b)
the
presence in the body of organisms causing, or likely to cause,
chronic
disease or illness,
(c) the malfunction, malformation or
disfigurement
of a part of a person's body,
(d) a condition or malfunction which results in a person learning
differently from a person without the condition or malfunction
(e) a condition, disease or illness
which
affects a person's thought processes, perception of reality,
emotions
or judgement or which results in disturbed behaviour.
Though the words disability has not been defined under the Act ,
but it
may be pointed out that the Act covers seven disabilities under
section
2(i) of the Act - blindness; low vision; leprosy-cured; hearing
impairment; loco-motor disability etc.
The same clause of section
2 (I)
also deals with mental retardation & mental illness. Mentally
disabled
people means, "mental illness" means
any mental disorder other
than
mental retardation. "Mental retardation" means
a conduction of
arrested or incomplete development of mind of a person which is
specially characterized by sub-normality of the intelligence;
The Act spells out responsibilities of the Government at all
levels
including establishments under its control. It lays down specific
measures for the development of services and programmes for
equalising
opportunities for the enjoyment of right to education, work,
housing,
mobility and public assistance in case of severe disability and
unemployment. To execute the mandated responsibilities, a Central
Co-ordination Committee and State Co-ordination Committees
representing
major development ministries, Members of Parliament and
disability
NGOs and having a woman with disability as a member have been
envisaged
in a multi-sectoral model. Furthermore, the institution of Chief
Commissioner in the Centre and Commissioner for Persons with
Disabilities in States has been proposed . Their mandate is to
redress
individual grievances, provide safeguards to the rights of persons
with
disabilities, monitor implementation of disability related laws,
rules
and regulations, and oversee utilisation of budget allocated on
disability.,. These quasi-judicial bodies are vested with the
powers of a civil court.
This historic legislation is a
corner stone of evolution of jurisprudence on the rights of
persons with disabilities in India. As a result, disability
concerns have come into sharp focus. However, within a period of
ten years of enforcement of this Act its weaknesses have also
surfaced in the absence of a powerful implementing
instrumentality. Unlike usual indifference the government soon
realised these weaknesses and acceded to the demand of the
disability movement for overall review
of the Act. Towards this end a committee was constituted which
harmonised views of the disability sector and relevant bodies in
its comprehensive report. Unfortunately, no concrete proposal has
been moved to the Parliament so far for carrying out amendments
that have been felt necessary to plug loopholes in the present
Act.
Prior to the enactment of the
Persons with Disabilities Act,
Mental Health Act, 1987
was in application. It was intended to provide
for the
treatment and care of mentally ill persons, to make better
provision
with respect to their property and affairs and for maters
connected
therewith or incidental thereto. The Act provides that any person
(not
being a minor), who considers himself to be a mentally ill person
and
desires to be admitted to any psychiatric hospital or psychiatric
nursing home for treatment, may request the medical officer in
charge
for being admitted as a voluntary patient. If the person to be
admitted
is minor, the request can be made by the guardian. The Medical
Officer
In charge of the nursing home may discharge the person on
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Indian
Parliament: Responding To International Obligations Regarding -
The Rights Of Mentally Retarded People
More
Articles:
The
author can be reached at:
tarunarora@legalserviceindia.com /
