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| Today, not just another day | | | Krishan Shrivastva
Not many readers are aware that December 3 is World Disabled Day. Even if Mumbai hadn’t happened, it is unlikely that the occasion would have attracted much attention in the media or among the public. Yet the disabled and the poor are everywhere and always with us. India has one-tenth of the world’s disabled population. This day of the year is when governments and individuals should be prodded to give their disadvantaged fellow citizens their due.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995 was meant to have affirmative action, rather than negating discrimination, as its goal. Its effect has been disappointing, as Indian courts have not used constitutional principles adequately to substantiate its provisions.
The UN Convention of the Rights of Persons with Disabilities which India ratified last year, is the first binding instrument to set out the obligations of the State to promote and protect the rights of disabled people. The Disabilities Convention is path-breaking for the protection of the world’s 650 million disabled persons. It incorporates civil, political and socio-economic rights, including those to life, movement, thought and expression, association, religion, political participation, housing, education and employment, and these are potentially justiciable.
The common perception of disability earlier conformed to the medical model that viewed a person’s limitations as inherent, excluding him from mainstream social and economic participation. In contrast, best-practice disability policies now no longer provide directions for those unable to integrate into society, but rather try to make society accessible to everyone alike, even if it means lifting environmental and attitudinal barriers.
The Convention defines disabled persons as those who have long-term physical, mental, intellectual or sensory impairments that, in interaction with other barriers, hinder their effective participation in society on an equal basis. Rather than relegating the disabled to separate, segregated or sheltered support, it focuses on the societal barriers that prevent the disabled from full and equal participation. It provides that the disabled must enjoy their human rights in all aspects, and that sign language must be recognized and promoted officially.
It is now essential that the PWD Act is strengthened and expanded in line with the Disabilities Convention. Until this is done, the courts should interpret the act in the context of the Convention. While the act concentrates on affirmative action, there is no affirmation, let alone guarantee, of the right to non-discrimination and equality, and the protection of the right to life and dignity. Its definition of a disabled person is a narrow one — a person with 40 per cent disability in seven categories; locomotion, blindness, low vision, hearing, leprosy, mental illness and retardation. This is restrictive compared to the norms propounded by the Indian disabled themselves and legislations on them elsewhere. To achieve non-discrimination, the definition needs to be interpreted broadly.
The Disabilities Convention, unlike the PWD Act, insists that non-discrimination laws should respond appropriately to disability by providing for the obligation of “reasonable accommodation”. The significance of this is that it moves beyond respecting difference to accommodating it in order to guarantee compliance with the principle of equal treatment. Measures that are appropriate may include adaptations to the premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources. The PWD Act provides for education and employment in the public sector, but does not insist on reasonable accommodation measures.
Disabled persons are as much, if not more, at risk of being discriminated against by private parties and entities as public ones. The Convention binds States to ensure that private entities that offer facilities and services which are open to the public make them accessible to persons with disabilities, and urges all private entities that provide services, including the internet, to fashion them in accessible and usable formats.
The Indian disabled were initially happy with the Convention and its separate chapter on disabilities, which states that within six months of its passage, every ministry would have its own plan for the empowerment of the disabled community. These plans are nowhere to be seen. Nor is the 3 per cent allocation promised to each ministry’s budget for the disabled. India was the seventh country to have ratified the Convention, but once again, there are promises, but no action.
Disability is a condition that all of us are susceptible to. It will, in some form or the other, be the condition of the vast majority of the world’s senior citizen population. Let us keep firmly in mind that each of us is disabled, at least potentially. |
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