ACCESS TO SOCIAL JUSTICE FOR PEOPLE WITH DISABILITIES

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By Rajat Shandilya from Faculty of Law, Aligarh Muslim University

INTRODUCTION:

In today’s modern times the world is progressing at a fast pace and is of dynamic nature. It is a common saying that “Every individual is not the same and has different capacities and capabilities and is unique from each human being.”

It is a natural to be different and variations exist everywhere, every single individual holds a different skill set and also is differ and has a unique identity from the rest of the people.

But unfortunately, not everyone has the fortune of being perfect in all the aspects ranging from physical to mental and even emotional aspect and are ‘differently abled’

The issue of impairment of disability is an issue of the contemporary society that needs considerable amount of attention because people with disabilities face much more difficult situations as compared to people who are completely fit and fine.

MEANING AND TYPES OF DISABILITY:

The International Classification of Functioning, Disability and Health (ICF) define disability as an umbrella for and impairments, activity limitations and participation[i].

“Person with disability includes 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[ii].

In general ‘Disability’ can be defined as an unusual condition which renders the mind or the body of an individual in a state of Impairment where the person finds it difficult or impossible to execute a particular task due to limited abilities as compared to other normal people.

According to World Health Organisation, disability has three dimensions[iii].

  1.  Impairment in the body of the Individual which may be any of any of the nature ranging from loss of the limbs of the body of the person
  2. Activity limitation: this is a type of inability restricts a person of a  specific activity
  3. Participation Limitation: it is a very well accepted fact that naturally the people with disability are vulnerable within the ambit of the society and finds it very difficult to jam up in the mainstream society.

GLOBAL STATISTICAL DATA OVER THE ISSUE OF DISABILITY:

As estimated by WHO, as many as 15% of the population worldwide i.e. more than a billion people fall under the ambit of having some or the other sort of disability out of which 2-4% of the people have severe disabilities. According to the globally estimated data, the number is supposed to be doubled by 2050.

INDIAN STATISTICS ON DISABILITY:

The total percentage amounting to the disabled population in India is 2.2% of the total population in the year 2018 according to the data released by the National Statistical Office (NSO). It was observed by the NSO that the proportion of disabled persons was equal in both the rural and urban Areas which stand at 2.3 in rural areas and 2% IN URBAN areas. Another notable point of the report was that it mentioned that the issue of disability is more in males as compared to females[iv].

CONSTITUTIONALFRAMEWORK FOR THE RIGHTS OF THE DISABLED IN INDIA:

Article 14 of the constitution of India guarantees to all its citizens equality of law and equal protection of law irrespective of caste creed colour gender or any other such ground.

Article 15 and 16 specifically prohibit discrimination on the ground of religion, race, caste, sex or place of birth or any of them.

The formal recognition of discrimination on the grounds of disability is a recent development.

CONCERNED LEGISLATIONSOVER THE AUTHORITY:

In order to provide a strong position and status to the people with disabilities, extra-legal assurances and safeguards have now been provided in several spheres.

Moving a step ahead in this regard ‘The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was passed by the parliament to give an exclusively formal structure to the safeguarding of the Rights of ‘differently abled persons.’

This Act has a separate chapter titled as ‘Non Discrimination’ in order to counter the discrimination faced by the people with disabilities.

Section 45, 46 and 47 of this Act gives power to quasi-judicial and judicial bodies to efficiently dispose of cases of discrimination faced by the people with disabilities.

A point to be noted here is that this act has now been replaced by the Rights of Persons with Disabilities Act 2016.

Also the constitution of the country plays a vital role in safeguarding the rights of the ‘disadvantaged’ citizens of the country:

Article 41 of the constitution of India says 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[v].

In Indian approach to counter this issue of grave concern is still a charity centric issue, The Indian government also greatly depend upon various NGOs and other non-governmental bodies to come to its  rescue and help in the direction of securing the rights of people with disabilities.

NATIONAL TRUST ACT 1999:

The National Trust Act of 1999 (44 of 1999) is another disability centred Act passed by the parliament with the aim of empowering the persons with disabilities to improve their social status and to enhance their interaction with the society.

REHABILITATION COUNCIL OF INDIA ACT OF 1986:

Under the ambit of this Act, The Rehabilitation Council of India was set up by the Government of India in the year 1986 to regulate and standardize training policies and programs for rehabilitation of persons with disabilities.

NATIONAL POLICY ON DISABILITY, 2006:The government of India has adopted a comprehensive national policy on disability covering within its ambit the critical areas like education, employment, social security etc. It is also important to take into account that the policy needs to be adequately changed in the light of UNCRPW.

One of the major shortcomings of this policy is that it is silent in the area of civil and political rights of the persons with disabilities. Moreover, it is very unfortunate that there are many states in the country still which do not have any specific law in the direction concerned with the people with disabilities.

BINDING INTERNATIONAL CONVENTION:

India signed the UN Convention on the Rights of Persons with Disabilities, 2006 and subsequently ratified the same on 1st October 2007.

This Act seeks to give effect to various provisions in the Convention on the Rights of Persons with Disabilities.

NON BINDING INTERNATIONAL AUTHORITIES:

1. Declaration on the Rights of Mentally Retarded Persons, 1971

2. Declaration on the Rights of Disabled Persons, 1975

3. The World Program of Action 1981

4. Standard Rules 1993

5. Asian and Pacific Decade 1993-2002

6. Biwako Millennium Framework 2003-2012

7. International Labour Organisation Discrimination (Employment and Occupation) Convention 1958

UN PRINCIPLES FOR THE ACCESS TO SOCIAL JUSTICE FOR THE PERSONS WITH DISABILITY:

  1. ‘Each person with disability has legal capacity and hence no one should be denied access to justice due to disability.
  2. Facilities and services must be universally accessible to make sure equal access to justice without discrimination of person with disabilities.
  3. Disabled persons together with children with disabilities have the right to appropriate procedural accommodations.
  • They have the right to access legal notices and information in a time bound and accessible manner on an equal basis with others.
  • Person with disability have the right to each substantive and procedural safeguard recognised in International law on an equal bases, the states must make available the essential accommodations to guarantee due process.
  • These people are entitled to have free and affordable legal assistance.
  • They have the right to take part in the administration of justice on an equal basis with other people.
  • Disabled persons have the rights to file complaints and initiate proceedings regarding human Rights Violation and crimes also they have the right to get their complaints investigated and be afforded appropriate remedies,
  • Effective and robust monitoring systems play a significant role in supporting access to justice for persons with disabilities.
  1.  Everyone, working in the justice system, must be made aware and trained to address the rights of disabled persons especially in the context of access to justice.’[vi]

JUDICIAL PRONOUNCEMENTS:

Indra Sawhney v. Union of India[vii]In this case the Supreme Court checked the legality of reservation in favour of the disabled who are not clearly covered under Article 16. The honourable court held out that mere formal declaration of any of the right would not make unequal as equal.

In the case of Nandkumar Narayanrao Godmare v. State of Maharashtra[viii] the Supreme Court of the country directed the concerned authorities that the candidate who was rejected on the grounds of colour blindness should be given  at any of the position  of agricultural service post apart from  5 out of 35 posts where perfect vision was a compulsory requisite. This was considered to be a judgement of remarkable importance in the direction of safeguarding the rights of people with disabilities.

CONCLUSION:

The persons with disabilities also have equal protection of their rights like any other normal human being and in the same regard there exist legal backings of various constitutional provisions and other national and international conventions and authorities. However there is still a need for better ground level implementation of the laws which are on paper in order to uplift the status of people with disabilities.


[i]WHO/Home/newsroom/factsheets/Disability and Health, available at https://www.who.int/news-room/fact-sheets/detail/disability-and-health

[ii] United Nations Convention on Rights of persons with Disability (2006) pg.4.

[iii] World Health Organisation, International Classification of Functioning, Disability and Health (ICF): Geneva, 2001 WHO.

[iv] ‘PTI’ ‘India’2.2% population suffering from Disability: NSO survey for July-Dec.2018’.https://www.google.com/amp/s/m.economictimes.com/news/economy/indicators/indias-2-2-population-suffering-from-disability-nso-survey-for-july-dec-2018/amp_articleshow/72202650.cms

[v] Constitution of India, 1950.

[vi] Explained desk, “Explained: The UN’s guidelines on access to social justice for people with disabilities”, New Delhi, Updated: August 31, 2020 9:46:06 A.M. available athttps://indianexpress.com/article/explained/united-nations-guidelines-people-with-disabilities-social-justice-6575766/lite/#referrer=https://www.google.com

[vii](1992) Supp. (3) SCC.

[viii] 1995 SCC (6) 720.

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