Right to Person with Disability- An analysis

Context:

Alleged violation of disability reservation provisions in student selection and faculty recruitment in a Central University

What is disability?

• The WHO defines disability as “any restriction or lack (resulting from an impairment) of ability to perform in a manner or within the range considered normal for a human being”
• Disability is a complex concept and is difficult to define since it varies in type, form and intensity. The World Report on Disability, 2011 sums up various definitions of disability by stating “Disability is complex, dynamic, multidimensional, and contested”.

Disability in India-Fast Facts:

• As per Census 2011, in India, out of the total population of 121 crore, about 2.68 Cr persons are ‘Disabled’ (2.21% of the total population)
• Out of 2.68 crore, 1.5 crore are males and 1.18 crore are females
• Majority (69%) of the disabled population resided in rural areas

Types of Disability:

• Among the State/ UTs, Sikkim has the highest prevalence of disability (2.98). Daman and Diu has the lowest prevalence of disability (0.9%)

Legislations

1. Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

The aims and objectives of the Act were:

• To spell out the responsibility of the state towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
• to create a barrier free environment for person with disabilities in the sharing of development benefits, viz-a-viz non disabled persons;
• to counteract any situation of abuse and exploitation of persons with disabilities; and
• To make special provision of the integration of persons with disabilities into the social mainstream.

The Act defines “person with disability” as a person suffering from not less than forty per cent of any disability as certified by a medical authority. There are 7 recognized disability conditions:

1. Blindness
2. Low vision
3. Leprosy-cured
4. Hearing impairment
5. Loco motor disability
6. Mental retardation
7. Mental illness

2. Rights of Persons with Disabilities Act, 2016

Addition in types of disability:

• The types of disabilities increased from 7 (in 1995 Act) to 21.
• Further, the Central Government has been empowered to add more types of disabilities.

 Education:

• Every child with benchmark disability to get free education from 6 to 18 years of the age. 

Reservation:

• Reservation to the differently-abled person in the education and government jobs has been increased from 3% to 4%.

Infrastructure:

• An important distinguishing feature of the 2016 Act is that it provides for time limits within which existing infrastructure and premises should be made disabled friendly.
• The obligations laid down in the Act are mandatory for both government and private establishments.

Fund:

• Creation of National and State Fund will be created to provide financial support to the persons with disabilities.
• The existing National Fund for Persons with Disabilities and the Trust Fund for Empowerment of Persons with Disabilities will be subsumed with the National Fund.

Grant of guardianship:

• The Bill provides for grant of guardianship by District Court, under which there will be joint decision, making between the guardian and the persons with disabilities.

Strict enforcement:

• Special Courts will be designated in each district to handle cases concerning violation of rights of PwDs.

Additional Benefits Persons with benchmark disabilities:

• Additional benefits such as reservation in higher education, government jobs, reservation in allocation of land, poverty alleviation schemes etc. have been provided for persons with benchmark disabilities and those with high support needs.

Criticisms

1. The Act does not clear about the legal rights of the disabled
2. Section 3(3) of the Act states that discrimination against a disabled person can be allowed if it is “a proportionate means of achieving a legitimate aim”. The term “legitimate aim” is not clearly defined. Critics are of the opinion that this term gives power to the implementing agencies to discriminate against persons with disabilities as it leaves open the interpretation to the bureaucracy
3. Further, the Act has been criticised on the grounds that there has been inadequate representation of persons with disabilities while formulating the Act. The UN Convention on Rights of Persons with Disabilitiesmandates that a decision which affects the lives of persons with disabilities cannot be taken without consulting their representative organisations.
4. The Act has not completely incorporated private sector. Under the Act, the establishments have been defined as government establishments and just establishments. But the rule has not legislated anything on private employers

Government Schemes/ Initiatives:

1. Assistance to Disabled Persons for Purchase / fitting of Aids and Appliances (ADIP)

• The Scheme aims at helping the disabled persons by bringing suitable, durable, scientifically-manufactured, modern, standard aids and appliances within their reach.

2. Deen Dayal Disabled Rehabilitation Scheme

• Under the scheme financial assistance is provided to NGOs for providing various services to Persons with Disabilities, like special schools, vocational training centres, community based rehabilitation, pre-school and early intervention etc

3. Accessible India Campaign- Sugamaya Bharat Abhiyan

• The aim of the Campaign is to make a barrier free and conducive environment for the differently-abled persons
• The campaign is based on the principles of the Social Model of Disability which states that disability is caused by the way society is organised, and not the person’s limitations and impairments. The physical, social, structural and attitudinal barriers prevent People with Disabilities from participating equally in the socio-cultural and economic activities.
• Therefore, it is important to ensure a barrier free environment to facilitate active participation of the PwDs

4. National Fellowship for Students with Disabilities (RGMF)

• The scheme aims to increase opportunities to students with disabilities for pursuing higher education.
• Under the Scheme, 200 Fellowships per year are granted to students with disability.

5. Schemes of the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
6. DISHA – early intervention and school readiness scheme for children in the age group of 0-10 years with disabilities viz. Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
7. BADHTE KADAM : aims at community awareness, sensitisation, social integration and mainstreaming of Persons with Disabilities
8. GHARAUNDA: Aims to provide an assured home and minimum quality of care services throughout the life of the person with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
9. NIRAMAYA -Health Insurance Scheme for persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities.
10. SAMBHAV -Aids and Assisted Device. Aims to create additional resource centres
11. SAHYOGI Caregiver training scheme- Aims to provide training and create a skilled workforce of caregivers to provide adequate and nurturing care for Person with Disabilities (PwD) and their families who require it
12. GYAN PRABHA –Scheme to provide educational support
13. PRERNA –Aims to provide funds to participate in events such as exhibitions, , fairs, etc. to sell the products made by PwDs.
14. SAMARTH -Respite Care- Aims to provide respite home for orphans or abandoned, families in crisis and also for Persons with Disabilities (PwD) from BPL & LIG families
15. VIKAAS -Day Care Scheme: aims to expand the range of opportunities available to a person with disability for enhancing interpersonal and vocational skills as they are on a transition to higher age groups.

Issues and Challenges

1. Health:

• A large number of disabilities are preventable, including those arising from medical issues during birth, maternal conditions, malnutrition, as well as accidents and injuries.
• However, the health sector especially in rural India has failed to react proactively to disability
• Further there are lack of affordable access to proper health care, aids and appliances
• Health care and poorly trained health-workers in rehabilitation centres is another concern

2. Education:

• The education system is not inclusive. Inclusion of children with mild to moderate disabilities in regular schools has remain a major challenge
• There are various issues such as availability special schools, access to schools, trained teachers, and availability of educational material for the disabled.
• Further, reservations for the disabled in higher educational institutions has not been fulfilled in many instances

3. Employment:

• Even though many disabled adults are capable of productive work, disabled adults have far lower employment rates than the general population
• The situation is even worse in private sectors, where much less disabled are employed

4. Access:

• Physical accessibility in buildings, transportation, access to services still remain a major challenge

5. Discrimination/Social Exclusion:

• Negative attitudes held by the families of the disabled, and often the disabled themselves, hinder disabled persons from taking an active part in the family, community or workforce.
• Differently-abled people face discrimination in everyday life. People suffering from mental illness or mental retardation face the worst stigma and are subject to severe social exclusion.

6. Inadequate data and statistics:

The lack of rigorous and comparable data and statics further hinders inclusion of persons with disabilities. The major issues with collection of data and measuring disability are:

• Difficult to define disability
• Coverage: Different purposes require different disability data
• Reluctance in reporting disability as disability is considered to be stigma in many places/societies

7. Poor implementation of policies and schemes hinders the inclusion of disabled persons. Though various acts and schemes have been laid down with an aim to empower the disabled, their enforcement face many challenges.

Way Ahead:

Prevention:

• Preventive health programs need to be strengthened and all children screened at a young age.
• Kerala has already started an early prevention programme. Comprehensive Newborn Screening (CNS) programme seeks early identification of deficits in infants and reduce state’s burden of disability

Awareness

• People with disabilities need to be better integrated into society by overcoming stigma
• There should be awareness campaigns to educate and aware people about different kinds of disability
• Success stories of people with disabilities can be showcased to inculcate positive attitude among people

Employment:

• Disabled adults need to be empowered with employable skills
• The private sector needs to be encouraged to employ them.

Better measurement:

• The scale of disability in India needs to be better understood by improving the measurement of disability.

Education:

• State-wise strategies on education for children with special needs need to be devised.
• There should be proper teacher training to address to the needs of differently-abled children and facilitate their inclusion in regular schools
• Further there should be more special schools and ensure educational material for differently-abled children

Access:

• Safety measures like road safety, safety in residential areas, public transport system etc, should be taken up
• Further, it should be made legally binding to make buildings disabled-friendly

Policy Interventions:

• More budgetary allocation for welfare of the disabled. There should be a disability budgeting on line of gender budget.
• Proper implementation of schemes should be ensured. There should be proper monitoring mechanisms and accountability of public funds.