India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
United Nations Convention on Rights of Persons with Disabilities - INDIA
Monitoring Report of Civil Society, Zero Draft, 2013
Convenor
Mr. Javed Abidi
Capacity Building
Alexandre Cote
Writers:
Shivani Gupta
Meenakshi Balasubramaniam
Sudha Ramamoorthy
Rama Chari
Bhargavi Davar
Editing:
Bhargavi Davar,
Bapu Trust for Research on Mind & Discourse, Pune.
Supported by NCPEDP & IDA
December, 2013
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Background
India ratified the United Nations Convention on the Rights of Persons with Disabilities in the
year 2007. The National Trust was the first to spring into action, towards harmonization of
the National Trust Act of 1999 with the CRPD. By 2009, an amendment to the existing
Persons with Disabilities Act 1995 was made by the government, which invited wholesome
protest and critiques from the disability movement. A ‘new law’ was proposed to be
drafted, to comply with the CRPD. A committee was set up for making a new law, that had
little representation from persons with disabilities. After further protests, new members
who were persons with disabilities were included. A legal consultant was recruited for the
purpose by the government (Ministry of Social Justice and Empowerment). In the months
that followed, until the submission of the draft Rights of Persons with Disabilities bill of
2011, June draft, the disability movement built up solidarity and nationwide network, keenly
following those developments and providing critical inputs to the government wherever
needed. The idea of writing a parallel report emerged in those times, supported by the first
UNCRPD training provided by the International Disability Alliance, in 2010. At that training,
an attempt was made to respond to the upcoming Universal Periodic Review, and a draft
was made, discussed and submitted. In following consultations, the first source text towards
a parallel report was compiled by NCPEDP & DEOC (2011), on “Key Issues in India”.
Opportunities for many consultations, international exchanges and exposure to CRPD
related developments in other countries, visits to the UN to have a sensory experience of
the meetings of the Monitoring Committees, further trainings on the CRPD through
intensive IDA facilitated workshops (TOTAL), budget analysis trainings, etc. ... these led to
further review of the initial source text. A smaller core group was formed to develop and
update the source text, following a 2 day intensive consultation workshop in Delhi,
organised by NCPEDP. In this workshop, the source text was analysed and further
recommendations made by the larger disability leaders who were invited. People took up
different articles, eventually those were submitted to a team leader, and drafts of
Monitoring the CRPD were collected together article by article. Individually, each team
leader dealt with 6 articles, and thus, 31 articles were divided among 5 people. Following
those first drafts, a further day’s consultation was held in New Delhi in the summer of 2012,
to review and update those drafts, with news from the field. Those inputs were also
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documented and drafts revised. A peer review was held among the writers of those drafts
to standardize them further. We waited for the Country report, a wait which was in vain,
and as on date of this report, it remains a hope that the country will soon submit its report.
Following intensive discussions, the Convener, Mr. Javed Abidi, directed that we should
come up with a CRPD Parallel Report anyway and take it to the people for feedback. That
will serve purposes of solidarity building, updation of the draft and also, public advocacy on
key issues. So, the works of editing all those different articles and finalising a Zero Draft was
given to the Bapu Trust. Bapu Trust finally submitted the draft as on 2 nd December 2013, at
which time, the country report was still not on the horizon.
Several studies were undertaken and reports generated for the purpose of this Monitoring
Report, as listed below, and have been used in this Zero draft:
1. Source Text: NCPEDP & DEOC (2011), Compilation by Rama Chari, Draft CRPD – Key
issues in India, New Delhi.
2. NCPEDP & DEOC, 2011, Poll survey of UNCRPD compliance satisfactoriness in the
opinion of persons with disabilities. Report, New Delhi, 2011.
3. NCPEDP, 2012, Replies to RTI applications filed on the status of the implementation
of the eleventh five year Plan (2007-2012). A compilation. New Delhi.
4. Updates in the Disability News Information Services, NCPEDP, New Delhi (20112012).
5. ‘Review of Indian Case Law, Since India’s Ratification of the UN Convention on the
Rights of Persosn with Disabilities’. Report prepared by Rahul Cherian of Inclusive
Planet Centre for Disability Law and Policy and Centre for Law and Policy research,
2011, Study conducted by Rahul Cherian, Inclusive Planet, Chennai, for purpose of
the UNCRPD Monitoring Report, supported by NCPEDP, New Delhi.
6. ‘Analysis of rights of persons with disabilities Bill of 2011, in light of UN Convention
on the Rights of Persons with disabilities’, Prepared by Rahul Cherian, Inclusive
Planet and Center for Law and Society, Chennai, for purpose of the UN CRPD
Monitoring Report, supported by NCPEDP / NDN.
7. Sudha Ramamoorthy, Meenakshi Balasubramanian, with Inputs from Pooja Parvati
(CBGA) and Alexandre Cote (IDA), (2012). Analysing the Indian Public Financing
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System from the Perspectives of the Rights of Persons with Disabilities – A first step
towards CRPD Compliant Budget Advocacy.
8. ‘Incapacity Laws in India- A compilation of national laws providing for the incapacity
of persons with disabilities’, Prepared by Bhargavi Davar of Bapu Trust, Pune, and
Rahul Cherian of Inclusive Planet and Center for Law and Society, Chennai, for
purpose of the UN CRPD Monitoring Report, supported by NCPEDP / NDN; with
inputs from Reshma Valliappan, Rajiv Rajan, Deepak T, Meenakshi Balasubramaniam
and others.
9. ‘Analysis of the Mental health care Bill of 2010 in the light of the CRPD’. Prepared by
Rahul Cherian, Inclusive Planet and Center for Law and Society, Chennai, for purpose
of the UN CRPD Monitoring Report, supported by NCPEDP / NDN.
10. ‘The Constitution of India versus the CRPD: An overview’. Sanjay Jain, Jino Jose and
Rahul Cherian, Inclusive Planet and Center for Law and Society, Chennai, for purpose
of the UN CRPD Monitoring Report, supported by NCPEDP / NDN.
11. ‘A sample reading of judgments in 2011 on ‘guardianship’’. Bapu Trust, 2012,
Prepared by Bhargavi Davar, In lieu of project paper, TOTAL Training; Pune.
Supported by the Bapu Trust.
12. ‘A sample reading of 20 Reception Orders for admission into Yerawada Mental
Hospital through Pune District Court’, Pune. Bapu Trust 2012. Prepared by Bhargavi
Davar, In lieu of project policy paper, TOTAL Training; Supported by the Bapu Trust.
13. Bapu Trust and Wone Management, 2012. ‘Mental health budgets for India’.
Prepared by Prof. Ramesh Bhatt and Vinita of Wone Management, New Delhi;
Supported by IDA and the Bapu Trust.
14. Bapu Trust, 2012. ‘Private family expenditure on mental health care services’.
Prepared by Bhargavi Davar, Pune; Supported by IDA and the Bapu Trust.
We also gathered inputs from submissions of the DPI(India) / National Disability Network to
other international convention monitoring bodies:
1. Submission from the NDN to the UPR process, India review, 2012.
2. Alternative Report to the CRC Committee on the Rights of CWDs, a joint submission
of the DPI (India) in collaboration with national disability groups in India, to the third
and fourth periodic reports submitted by the Indian government to the Committee
on the Rights of the Child in 2011.
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3. Alternative CEDAW Parallel Report, Anita Ghai and others, Prepared by DPI (India),
submitted to CEDAW Monitoring Committee, September of 2013
Other useful resources and references resourced throughout the text:
1. Human rights in India. Joint Stakeholders’ Report, for the Universal Periodic Review
Report, by Working Group on Human Rights in India and the UN (OHCR), submitted
to UNOHCR on 28th November, 2011.
2. International Disability Alliance: IDA has compiled the Concluding Observations (CO)
and List of Issues (LoI) adopted by the Committee on the Rights of Persons with
Disabilities (CRPD Committee) to date (November 2013):
3. Reports of the UN OHCHR, CEDAW, ICERD and CRC, and reports of the SRs have been
referred to throughout the text.
4. Key judgments from the Supreme Court
5. For judicial proceedings, www.indiankanoon.org has been a comprehensive and up
to date resource.
The various drafts that were on hand covered data until December of 2012 which have been
synergized in this first, Zero Draft. A year has passed since, and in this time, several
developments have taken place. A new Ministry of Disability Affairs has been formed. Each
Ministry, and certainly, the nodal ministries have got into overdrive in the area of
disabilities, bringing out new plans and schemes, budgets allocations, guidelines, etc. [Of
particular critical interest requiring urgent attention from the Disability Network is the “Job
Identification guidelines” issued in July of 2013 by the MOSJE.] Courts at High Court and
Supreme Court level have been agitating the legal quagmire of disability rights with mixed
outcomes. Several dozens of new Bills and amendments have gone up before the
Parliament to which disability groups have responded. A few Standing Committees are
listening to Civil society on some of these Bills, particularly the Mental Health Care Bill of
2013. Various countries have faced the UNCRPD Monitoring Committee, and received their
list of issues and concluding observations. There have been other global events, such as the
6th Conference of States Parties; HLMDD and the post-2015 Development agendas; WHO
Draft action plan on mental health; etc.
In this report, we have gone with the earlier drafts submissions, as on January 2013,
improvising and editing the text so that major developments have not been missed.
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However, updation and upgradation of this Zero Draft CRPD Monitoring Report to ensure
that it captures all developments till date, is another task for another day.
We thank Mr. Javed Abidi of NCPEDP and Mr. Alexandre Cote of IDA for the unflinching
support, facilitation, trainings and mentorship throughout this process; And a number of
leading disability activists from around the country who participated through the last 2
years of run up towards this draft report in several workshops and consultations; To friends
and peers in the international disability movement for their sharing, contributions,
solidarity, feedback and wisdom. So many people and organizations from different fields
and geographic areas have contributed to this draft. Thank you!
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Article 4 : General Obligations
1. States Parties undertake to ensure and promote the full realization of all human
rights and fundamental freedoms for all persons with disabilities without
discrimination of any kind on the basis of disability. To this end, States Parties
undertake:
2. To adopt all appropriate legislative, administrative and other measures for the
implementation of the rights recognized in the present Convention;
3. To take all appropriate measures, including legislation, to modify or abolish existing
laws, regulations, customs and practices that constitute discrimination against
persons with disabilities;
4. To take into account the protection and promotion of the human rights of persons
with disabilities in all policies and programmes;
5. To refrain from engaging in any act or practice that is inconsistent with the present
Convention and to ensure that public authorities and institutions act in conformity
with the present Convention;
6. To take all appropriate measures to eliminate discrimination on the basis of disability
by any person, organization or private enterprise;
7. To undertake or promote research and development of universally designed goods,
services, equipment and facilities, as defined in article 2 of the present Convention,
which should require the minimum possible adaptation and the least cost to meet
the specific needs of a person with disabilities, to promote their availability and use,
and to promote universal design in the development of standards and guidelines;
8. To undertake or promote research and development of, and to promote the
availability and use of new technologies, including information and communications
technologies, mobility aids, devices and assistive technologies, suitable for persons
with disabilities, giving priority to technologies at an affordable cost;
9. To provide accessible information to persons with disabilities about mobility aids,
devices and assistive technologies, including new technologies, as well as other
forms of assistance, support services and facilities;
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10. To promote the training of professionals and staff working with persons with
disabilities in the rights recognized in the present Convention so as to better provide
the assistance and services guaranteed by those rights.
11. With regard to economic, social and cultural rights, each State Party undertakes to
take measures to the maximum of its available resources and, where needed, within
the framework of international cooperation, with a view to achieving progressively
the full realization of these rights, without prejudice to those obligations contained
in the present Convention that are immediately applicable according to international
law.
12. In the development and implementation of legislation and policies to implement the
present Convention, and in other decision-making processes concerning issues
relating to persons with disabilities, States Parties shall closely consult with and
actively involve persons with disabilities, including children with disabilities, through
their representative organizations.
13. Nothing in the present Convention shall affect any provisions which are more
conducive to the realization of the rights of persons with disabilities and which may
be contained in the law of a State Party or international law in force for that State.
There shall be no restriction upon or derogation from any of the human rights and
fundamental freedoms recognized or existing in any State Party to the present
Convention pursuant to law, conventions, regulation or custom on the pretext that
the present Convention does not recognize such rights or freedoms or that it
recognizes them to a lesser extent.
14. The provisions of the present Convention shall extend to all parts of federal States
without any limitations or exceptions.
International Obligations
The United Nations Convention on the Rights of Persons with Disabilities (“UNCRPD”) is the
response of the international community to the long history of discrimination, exclusion and
dehumanization of persons with disabilities.1 Being the first of the twenty-first century, it is
1
See ‘From Exclusion to Equality’, ‘Handbook for Parliamentarians on the Convention on the Rights
of Persons with Disabilities and its Optional Protocol’ available at
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a major step towards altering the perception of disability and ensuring that societies
recognize that all people must have the opportunity to reach their full potential. 2 India
ratified the UNCRPD on the 1st of October, 2007 making it the seventh country in the world
to do so on the opening day.3 India did not sign the optional protocol and customarily has
not signed the OP, except in the case of the CRC. India did not place reservations on any of
the articles of the CRPD.
India has ratified the ICSECR, ICCPR, CEDAW, CRC, CRPD, and ILO conventions. While usually
delayed, reports are submitted to various Treaty Monitoring Bodies. The first CRPD State
Report, due in 2009, is yet to be made public in-country, and submitted to the Treaty
Monitoring Body, even though it has been 6 years since the ratification of the CRPD.
Civil society in India has had the custom of following these submissions and supplementing
them with their own ‘parallel reports’ through participatory processes. In the case of the
Universal Period Review process, the UN Working Group on Human Rights4 has taken up the
task of consultative processes and putting out reports to the OHCHR.
There have been recommendations from the UPR process to India on being more
welcoming of the Special Procedures. In the history of the UN Special procedures, requests
have been made on many an occasion on various topics including Torture, Extrajudicial
Summary or Arbitrary Executions, Sale of Children, Arbitrary Detention, Enforced or
Involuntary disappearances, Racism, Adequate Housing, Indigenous People, Water,
Trafficking and Independence of judges and lawyers. Requests have involved Special
Rapporteurs, Independent Experts, and Working Groups.
However, out of all requests ever made to India, a majority of requests, i.e. upto 24 requests
have not been responded to. 7 SRs have ever visited India on Violence against women; Right
to food; Health; Freedom of religion or belief; toxic waste; Human rights defenders and the
last visit by SR on Violence against women (in 2013).
< http://www.ipu.org/PDF/publications/disabilities-e.pdf>
Id
3
Convention on the Rights of Persons with Disabilities, G.A. Res. 611106 (2007).
4
Human rights in India. Joint Stakeholders’ Report, for the Universal Periodic Review Report, by
Working Group on Human Rights in India and the UN (OHCR), submitted to UNOHCR on 28 th
November, 2011, p. 17
2
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There have been UPR recommendations and also pressure from civil society groups for
signing the Convention against Torture, in lieu of the militarization of major parts of the
country in the north, north east and other parts of the country.
There have been strong recommendations from the UPR process to sign the ILO Convention
on Abolition of Child Labour, which India has placed reservations on and responded to, ‘as
not timely to do so’.
History of fulfilling general obligations under other treatises
India has made a voluntary pledge in the year 2011, in lieu of its application to be a member
of the Human Rights Council (2010-20145). Herein, the GoI has pledged to uphold the
highest standards in the promotion and protection of human rights; shall strive for the full
realization of civil, political, economic, social and cultural rights, including the right to
development; shall consider extending a Standing Invitation to Special Procedures of the
Human Rights Council; remains committed to ratifying the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment; shall maintain the
independence, autonomy as well as genuine powers of investigation of national human
rights bodies; and including other commitments on women, and vulnerable groups, as well
as commitments to the Human Rights Council6.
A reading of all the Concluding Observations of different Monitoring Committees shows
certain common patterns of how successful the GoI has been in fulfilling its International
Obligations and its voluntary pledge. Certain patterns in fulfilment of human rights
obligations to all peoples of the country have been highlighted by those COs, including:

Barriers created by the Federal-State structure and the fact that laws and policies
made at the Central level take interminably long to translate into implementable
policies and actions at the state level. This barrier is compounded by the fact that the
dual system is often not congruent or complementary with each other.
5
‘Note Verbale dated 16 February 2011 from the Permanent Mission of India to the United Nations
Addressed to the President of the General Assembly’, 25th February 2011. Sixty fifth session, Agenda
Item of 112(c), in lieu of ‘Elections to fill vacancies in subsidiary organs and other elections: election
of fifteen members of the Human Rights council’.
6
Ibid. (pp. 3-4)
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
The lack of independence of the national human rights institutions, commissions,
tribunals and other; and their subsidiary bodies at the local level, and inadequate
funding or administrative support

The great gap between the judiciary and the bureaucracy, wherein judgments
passed even in the Supreme Court do not immediately or ever translate into actions
by governance.

Political will in terms of allocation of budgets, and strong systems of monitoring and
evaluation.

Access to justice issues at different levels were regularly flagged off by all the Treaty
Bodies

The use of military, law and order machinery to settle civil issues, police brutality,
custodial / institutional deaths, and poor emergency response in conflict situations.

As this report shows, echoing the concerns raised in case of other Conventions, there
are many laws7 and many schemes for all persons who are in vulnerable situations.
However, the outcomes of those laws and schemes in removal of discrimination and
restoring full enjoyment of all human rights and freedoms are in question. There are
humungous barriers in implementation including, bureaucratic, gatekeeping,
recordkeeping, funding, attitudinal and other issues, including corruption.
Human rights framework in India
The Constitution of India came into effect on January 26, 1950 and is the world’s longest
written constitution. The Constitution of India has very strong provisions with respect to
equality and non-discrimination as well as provisions enabling the State to take affirmative
action to protect minorities and the weaker sections of society. The Constitution has been
amended ninety six times since it came into effect, including twice after India’s ratification
of the UNCRPD. However, the Constitution of India is largely silent with respect to rights of
persons with disabilities.
7
For the winter Parliament session, 2013,102 Bills were pending at the last count in August, 2013.
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The Supreme Court regularly adjudicates on constitutional matters and judicial invigilance
and activism on vulnerable groups is high. In several instances the Supreme Court takes up
suo moto action based on a letter or a media report. The SC sets up amicus curiae briefs,
inquiry commissions, takes in views of human rights institutions, activist groups and other
bodies in adjudicating matters.
A variety of structures have been created under the state obligations to comply with
international human rights standards, including the National Human Rights Commission, and
the state bodies. Not all states have established a state level human rights Commission.
There are also the various National Commissions and their states bodies; illustratively,
National Commission for women; Children; Minorities; Denotified, Nomadic and Semi
Nomadic tribes; Backard Classes; etc.
There is no Commission for persons with disabilities. While they may access any of the
above authorities, a Commissioner for persons with disabilities takes up the human rights
issues under the Ministry of Social Justice and Empowerment.
Constitutional safeguards: On equal basis with others?
The Constitution of India guarantees to all citizens equality before law and equal protection
of law (Article 14); and it prohibits discrimination on grounds of ‘religion, race, caste, sex,
place of birth or any of them’ (Articles 15 and 16 (2)).
Articles 15 and 16 of the Constitution has perpetuated the lack of attention that the Indian
Constitution pays to persons with disabilities by not explicitly recognizing “disability” as one
of grounds for non-discrimination along with other grounds such as race, religion, caste, sex
and place of birth.
There is no constitutional cover for denial of “reasonable accommodation” constituting
discrimination.
India has the obligation to translate the principles of non-discrimination, inclusion and
reasonable accommodation such that these are applicable equally to private parties. Article
15 (2) of the Constitution which provides for non-discrimination by private parties specifies
that citizens shall not discriminate on the basis of religion, race, caste, sex, place of birth or
any of them with regard to (a) access to shops, public restaurants, hotels and places of
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public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or dedicated to the use of the general
public. This safeguard is inadequate. For instance, non-discrimination with respect to
employment, education, services etc. are not covered. It is critical that both nondiscrimination on the basis of disability and “reasonable accommodation” are included in
the widest possible way in the Constitution. There is a precedent in Article 15 (5) of the
Constitution, which envisages reservation and affirmative action in favour of backward class
students even by private and unaided educational institutions. Along the same lines, India
should evolve a policy to combat disability-based discrimination by private sector.
The Preamble, the Directive Principles of State Policy and the Fundamental Rights enshrined
in the Constitution, envisage a very positive role for the State towards its disadvantaged
citizens. Article 41 of the Constitution, a Directive Principle, 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.” The wording of Article 41 of the Constitution is
suggestive of the use of the medical model of disability since the word used is disablement
and not disability. Moreover, the wording of Article 41 requires the State to make provisions
for securing the right to education for persons with disabilities subject to the economic
capacity of the State.
Article 46, another Directive Principle, 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.”
Article 102 (1) (b) of the Constitution disqualifies a person ‘who is of unsound mind’ from
being chosen as, and being a member of either House of the Parliament. Similarly, Article
191 disqualifies persons ‘who are of unsound mind’ from being members of the Legislative
Assembly or the Legislative Council of a State. Article 326 of the Constitution lays down that
the members of both Houses of Parliament and the Legislative Assemblies of the States shall
be elected on the basis of adult suffrage. However it permits the disqualification of persons
‘with unsound mind’ from being registered as voters for such elections. It is untenable that
Constitution of India should use an open textured, ambiguous and clinically anachronistic
phrase such as ‘unsoundness of mind’ to deprive mentally and intellectually disabled
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citizens from exercising their voting rights or contesting elections and be excluded from
political participation.
Schedule VII of the Constitution reveals that the subject matter ‘Relief of the disabled and
unemployable’, which is Entry 9 of List II, is sandwiched between ‘Intoxicating liquors that is
to say the production, manufacture, possession, transport, purchase and sale of intoxicating
liquor’ (Entry 8 of List II) and ‘Burial and burial grounds, cremations and cremation grounds’
(Entry 10 of List II). This do es indeed hint at the shamefully low level of priority given to
persons with disability in the Schedule VII. More alarming is the concurrence of ‘disability’
with ‘unemployability’ reinforcing stigma against persons with disabilities as unproductive
members of society.
Rights of persons with disabilities8 in law: Overview
To ensure equality in the outcome, the Constitution encourages the State, under Articles
16(3) and 16(4), to frame any law or make provision for the reservation of appointments or
posts in favor of any backward class of citizens, which, in the opinion of the State, is not
adequately represented in its services.9
The concept of disability was of such status that legislative cognizance and action could be
availed of only if it was acquired by an able-bodied person resulting in the loss of earning
capacity or utility. This is clearly evident from a close scrutiny of legislations such as the Fatal
Accident Act 1855, Workmen’s Compensation Act 1923, Employees State Insurance Act,
1948 and other, all which were based on the medical model of disability. Herein, acquisition
of disability constitutes violation of the rights of able bodied persons and therefore disability
per-se does not qualify as worthy of any legal solution. A legacy of case law has been
developed based on these laws which continues to date, despite the CRPD. That case law
continues to use the medical model, with concepts such as ‘injury’, ‘permanent incapacity’,
‘disablement’, etc. The concept of ‘disability’ as understood even under the extant disability
legislation is not found in these case laws.
8
‘The Constitution of India versus the CRPD: An overview’. Sanjay Jain, Jino Jose and Rahul Cherian,
Inclusive Planet and Center for Law and Society, Chennai, for purpose of the UN CRPD Monitoring
Report, supported by NCPEDP / NDN.
9
See Chapter 3, ‘The Indian Scenario’, National Human Rights Commission (NHRC) Publication on
Disability available at < http://nhrc.nic.in/Publications/Disability/chapter03.html>
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The legal scenario with respect to persons with disabilities was transformed with the
passage of enactments such as the Rehabilitation Council of India Act 1986, Persons with
Disabilities Act 1995 and the National Trust for the Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple Disabilities Act 1999.
The status of the Mental Health Act of 1987 as a disability legislation has been debated. The
legal format of this law predates the human rights regime, and is linked to the colonial penal
custodial laws (Indian Lunacy Act of 1912, Indian Lunatic Asylums Act of 1858, etc.) which
provided the state with due process to deprive someone of their liberty, along with other
such legislations (Beggary Prevention Act, Leper’s Act, etc.) The Mental Health Act has been
however considered as a ‘disability’ legislation in the times of the CRPD harmonization by
the government; However, there has not been enough regard for studying the dissonance
between this legislation with other positive rights legislations.
The notification issued by Govt. of India under Protection of Human Rights Act 1993
expanding the definition of Human rights and International Covenants where in it inserted
the Convention on Rights of Child and the Convention on the Elimination of All Forms of
Discrimination against Women, in Section 2(d) but at the same time failed to provide any
justification for excluding UNCRPD from the same is another stark instance which illustrates
the neglect that the country has shown toward persons with disabilities. Against the
backdrop of UNCRPD, this omission is extremely grave as India is under obligation to
transform its legal order in the light of letter and spirit of the UNCRPD.
Disabilities: Whose baby is it?
Disability is an inter-sectoral issue and it is expected that every Ministry responds to the
CRPD for compliance on all rights for all persons with disabilities. NCPEDP and allied
organisations filed applications in 2011-2012, under the Right to Information Act (RTI)
before 26 Ministries, on the status of the implementation of the 11th 5 Year Plan, and
ministerial budget allocations for persons with disabilities10. Some findings are reported
below:
10
NCPEDP, 2012, Replies to RTI applications filed on the status of the implementation of the
eleventh five year Plan (2007-2012). A compilation. New Delhi.
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The Ministry of Consumer Affairs, Food and Public Distribution stated that “No specific
programme / policy / scheme for PWDs has been launched during the 11th Plan.”
Ministry of Home Affairs, Ministry of Tribal Affairs, Ministry of Law and Justice and even the
Ministry of Health and Family Welfare, which runs many establishments for care and
treatment of the ‘mentally ill’, replied that they had no jurisdiction over the matter of
Disability, and referred the matter to MOSJE.
Responses received through Ministry of Information and Broadcasting from Press
Information Bureau, Publications Division, national Film Archive of India, Children’s Film
Society, evidenced that they do not have a disability policy.
Ministry of Minority Affairs, Ministry of Statistics and Programme Implementation, Ministry
of Women and Child Development have not made specific policy or allocation for the
benefit of persons with disabilities and referred the matter to MOSJE.
Harmonization efforts
The 3 disability legislations (PWDA, 1995; NTA 1999 and RCI) and their amendments have
been eliciting public debate and involvement of persons with disabilities in the efforts by the
Government, led by MOSJE, to harmonize the legislations with the CRPD.
The PWDA harmonisation started with an amended draft, to which organisations of persons
with disabilities reacted with critiques.
Their demand for a new law was met, and a committee was set up in 2010. However, there
was poor representation from PWDs in the committee. With more advocacy some new
members and inclusivity was brought in. On the contested issue of a comprehensive law
which should cover all persons with all disabilities, some members of the Committee who
were persons with disabilities resigned bringing the representativity issue to the forefront
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
once again11. The consultations were also selective and conducted hurriedly, without effort
at creating translated texts or hurriedly translated texts in some places12.
The Draft Mental Health Care Bill 2013 was not done in consultation with persons with
mental illness. Several groups, such as the National Alliance on Access to Justice for Persons
living with a mental illness,13 the Mental Health Rights Group14 expressed dissatisfaction at
the manner in which the drafting was done.
The other issue that arose was that as mental illness is also covered under the People with
Disabilities Act, was there any need to enact two separate legislations15 or and whether it is
better to have a comprehensive law so as to avoid any contradictions between the Rights of
Persons with Disabilities Bill and the Mental Health Care Bill.
The disability movement has advocated for a comprehensive law, and no ‘special’ laws as
those lead to discrimination of the most marginalized groups among persons with
disabilities. Secondly, and with important consequences for all persons with disabilities, the
non-congruence and non-coordination between different disability authorities causes
immense hardships to persons with disabilities in accruing rights, benefits and entitlements
due to them.
The National Advisory Council which deliberated independently on the question of a
comprehensive law, strongly recommended the matching and the rationalization of systems
and structures under different disability authorities; and different Ministries, to create a
Single Window arrangement for all persons with disabilities16.
The Legal Review team of National Disability Network (N.D.N.) and Disabled Rights Group
(D.R.G) found the total discrimination against all persons with disabilities on grounds of legal
11
‘A new disability rights law that lost its way’, DNIS,
http://www.dnis.org/print_features.php?features_id=179
12
‘Consultations or sham’?
http://www.dnis.org/news.php?issue_id=5&volume_id=8&news_id=1139&i=3
13
“The draft Mental Health law is fascist: N.A.A.J.M.I.”
http://www.dnis.org/news.php?issue_id=4&volume_id=8&news_id=1130&i=4
14
“Why we are opposing the mental health act amendments”
http://www.mhrg.org/Why-We-Against-MHAA.aspx
15
“2 Ministries, two different Bills on mental health”
http://www.hindu.com/2011/03/20/stories/2011032054881200.htm
16
http://dnis.org/news.php?issue_id=7&volume_id=9&news_id=1254&i=1
17
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
incapacity in over 150 laws17 (civil, criminal, family, taxation, military, banking, other). While
a larger number of laws do apply solely to persons of ‘unsound mind’ or to both ‘lunatics’
and ‘idiots’, an equal number of laws apply not only to such persons, but to a wider range of
people with disabilities. For example, the words, ‘physical and mental defect’, ‘incapacity’,
‘physical and mental infirmity’, ‘deaf mute’, ‘blind’, ‘contagious leprosy’, ‘leprosy cured’,
‘epilepsy’ are found pervasively in the laws in the context of legal incapacity. More general
categories of ‘incapable due to serious illness’, ‘found unfit to act by a competent court’,
etc. are also found. Several Acts have general clauses of exclusion (such as ‘proven to be
incapable’), disability linked exclusions (‘physically or mentally incapable’) and mental
disabilities (‘idiot’ or ‘of unsound mind’).
The National Advisory Committee18 recommended harmonization of all legislations in regard
to the right to full legal capacity. Various Bills (Rights of persons with disabilities Bill; Mental
health care Bill; and National Trust Act Amendment) carry provisions which are not
internally harmonious; Nor is any of them in harmony with the provisions of the CRPD 19.
However, while being ‘dressed’ for the Parliament, these laws continue to be in conflict with
respect to full legal capacity (more fully discussed in the Chapter on Article 12).
However, these provisions, which target particular groups of people with disabilities, have
not been put up for CRPD harmonization, and need to be looked at from a constitutionality
point of view as well.
Outcomes
A nodal agency, the Department of Disability Affairs, has been established to oversee the
policy and implementation environment for persons with disabilities20. A budget for the
Department has been included in the XII Plan. The Department will be headed by a Principal
Secretary level officer and 3 Joint Secretaries, with 150 staff.
17
Incapacity laws: A preliminary analysis shows how laws discriminate against various kinds of disabilities and
not just people of ‘unsound mind’!
http://dnis.org/features.php?issue_id=2&volume_id=9&features_id=193
18
http://dnis.org/news.php?issue_id=7&volume_id=9&news_id=1254&i=1
Legal Capacity: Health Ministry and M.S.J.E. come out with two diametrically opposite positions
http://dnis.org/news.php?issue_id=6&volume_id=8&news_id=1147
20
Department of Disability Affairs Notified,
http://dnis.org/news.php?issue_id=7&volume_id=9&news_id=1253&i=0
19
18
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
All the disability legislations and the mental health law (old and proposed) contain anti CRPD
provisions particularly on capacity; and are at odds with each other, as detailed above.
There are questions about inclusivity with different drafts which have been prepared for
presentation before the Parliament: The Rights of persons with Disabilities Bill refers to the
Mental Health Care Bill when it comes to coverage of certified institutions, creating a
division among persons with disabilities. The National Trust Amendment Bill is only for
‘specified disabilities’, viz. ‘Cerebral palsy, Autism, Mental retardation and Multiple
disabilities’. Whereas, the Mental Health Care Bill does not refer to persons with disabilities,
referring throughout only to ‘persons living with mental illness’. The coverage of that Bill,
which is a rights deprivation Bill, is only for this constituency. So the condition of inclusivity
is not met by any legislation.
The allocation of funds to foresee a CRPD compliant future, in the 12 th Five Year Plan, has
been disappointing21. Analysis of various programmes and schemes reveals a lack of
allocation for ensuring inclusion at community level. On the contrary, huge amounts of
money is being spent on National Institutes limited to a few thousands all put together. For
example, the Ministry of Health and Family Welfare spends on the ‘welfare of disabled’. A
closer inspection of the schemes will reveal expenses only on ‘mental asylums’. There is no
change whatsoever in the lives of people with psychosocial disabilities who constitute 2
percent of the country’s population, as per the Ministry’s data; also no health care spending
specifically for other groups of persons with disabilities.
21
‘Where is the money?’ http://www.dnis.org/print_features.php?features_id=194
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Article 5: Equality and Non-Discrimination
1. States Parties recognize that all persons are equal before and under the law and are
entitled without any discrimination to the equal protection and equal benefit of the
law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee
to persons with disabilities equal and effective legal protection against
discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take
all appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of
persons with disabilities shall not be considered discrimination under the terms of
the present Convention.
International obligations22
The UNCRPD Monitoring Committee, in the context of countries reviewed so far has
commented on the restricted definition of discrimination in anti-discrimination laws and
lesser level of legal protection than found in the CRPD. It has recommended strengthening
anti-discrimination laws; defining denial of reasonable accommodation as a prohibited form
of discrimination; including indirect discrimination; guaranteeing protection to all persons
with disabilities, including children, indigenous and minority people, women and girls,
hearing impaired, and people with psychosocial disabilities; broadening remedies and
setting out penalties; abolishing laws which allow a pregnancy to be terminated solely on
the basis of disability; achieving de facto equality; simplifying legal remedies and
establishing fast track legal and administrative remedies to obtain redress; incorporating the
concept of reasonable accommodation; a proactive redressal mechanism; and expanding
protection of discrimination on grounds of disability to explicitly cover multiple disability,
perceived disability and association with a person with a disability.
22
http://www.internationaldisabilityalliance.org/en/compilations-made-ida
20
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Nearly every Monitoring Committee (CEDAW, CRC, ICERD, SECR, CPR and OHCHR) have
commented their regret at continuing discrimination of women, children, indigenous
peoples, and other vulnerable groups such as minorities, in the context of discriminatory
practices.
Constitutional and other statutory guarantees
The Constitution of India guarantees to all citizens equality before law and equal protection
of law (Article 14); It prohibits discrimination on grounds of ‘religion, race, caste, sex, place
of birth or any of them’ (Articles 15 and 16 (2)). Further, to ensure equality in the outcome,
it encourages the State, under Articles 16(3) and 16(4), to frame any law or make provision
for the reservation of appointments or posts in favour of any backward class of citizens. The
constitution by not explicitly including disability as one of the grounds of discrimination fails
to protect or ensure non-discrimination against persons with disability.
Another area of divergence between the Constitution and UNCRPD is the coverage of
private sector in relation to non-discrimination.
The Constitution is silent on reasonable accommodation and denial of reasonable
accommodation constituting discrimination.
In the case of Naz Foundation vs Government Of Nct Of Delhi
23
in the context of
decriminalising homosexuality, the Court referred to the ‘Declaration of Principles of
Equality issued by the Equal Rights Trust in April, 2008’ recognizing the current international
understanding of Principles on Equality. The court recorded the definitions of the terms
'equality' and 'equal treatment' as found therein24.
23
on 2 July, 2009, Delhi High Court, WP(C) No.7455/2001 2nd July of 2009
‘Equal treatment, as an aspect of equality, is not equivalent to identical treatment. To realise full
and effective equality, it is necessary to treat people differently according to their different
circumstances, to assert their equal worth and to enhance their capabilities to participate in society
as equals." Part-II of the Declaration lays down the right to non- discrimination. The right to nondiscrimination is stated to be a free-standing fundamental right, subsumed in the right to equality.
Discrimination is defined as follows: "Discrimination must be prohibited where it is on grounds of
race, colour, ethnicity, descent, sex, pregnancy, maternity, civil, family or carer status, language,
religion or belief, political or other opinion, birth, national or social origin, nationality, economic
status, association with a national minority, sexual orientation, gender identity, age, disability,
24
21
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Right to equality in disability legislations
Chapter VII and Chapter VIII of the PWDA 1995 is concerned about ‘affirmative action’ and
‘non-discrimination’. However, in these provisions, a scheme for provision of aids and
appliances; and preferential allotment of land is being covered. Accessibility to roads and
transport is also covered. No provision is provided that, denial of reasonable
accommodation is discrimination, or other aspects of discrimination, such as discrimination
by association, indirect discrimination. Further, the coverage of this provision is only with
respect to a limited range of socio economic rights. No general principle of Equality and
Non Discrimination is found herein.
Creating a contradiction within law, and discriminatory provisions, PWDA 1995 disqualifies a
person with ‘unsound mind’ from being the member of the Central and State Co-ordination
Committee.
The New Rights of Persons with disabilities Bill of 2013 also incorporates equality provisions.
Section 4(1) and (2) of the Bill read as follows:
“4. Right to Equality and Non-Discrimination
1. All persons with disabilities are equal before the law and are entitled to equal
protection and equal benefit of the law without any direct or indirect discrimination;
2. No person with disability shall be discriminated on the basis of any of the prohibited
grounds; unless it can be shown that the impugned act, provision, criterion, practice,
treatment or omission is a proportionate means of achieving a legitimate aim;
Provided that harassment, victimisation or a failure to provide reasonable
accommodation may not be justified under any circumstance;”
Positive Obligation under CRPD to promote Equality: The Bill does not impose a positive
obligation to promote equality in the same manner that the CRPD does. Article 5(2) of the
CRPD obligates State Parties to “prohibit all discrimination” and “guarantee...equal and
effective legal protection against discrimination on all grounds”. The obligation cast under
this Article mandates the State Parties to ensure that there is equality and equal protection
for persons with disabilities. This indicates a much higher positive obligation to prohibit
health status, genetic or other predisposition toward illness or a combination of any of these
grounds, or on the basis of characteristics associated with any of these grounds’.
22
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
discrimination and to guarantee equality than merely stating that there shall be no
discrimination and that all persons are equal before the law.
Further, while Section 4(2) of the Bill specifically prohibits discrimination on any of the
prohibited grounds, it allows discrimination where it can be shown that “the impugned act,
provision, criterion, practice, treatment or omission is a proportionate means of achieving a
legitimate aim”. This weakens the protection against the non-discrimination guarantee and
it is not clear as to what the ‘legitimate aim’ would be.
Reasonable Accommodation to be recognised as an Equality Measure: It is obligatory to
provide reasonable accommodation in order to promote equality and to eliminate
discrimination. Under the Bill however, the proviso to Section 4(2) only states that
harassment, victimization and denial of reasonable accommodation may not be justified
under any circumstance. This proviso is a weak statement because it does not guarantee
that the provision of reasonable accommodation is a part of the duty to guarantee equality
as required under the CRPD. The duty to provide reasonable accommodation should be
entrenched in promotion of equality and elimination of discrimination. Section 2 (11)
defining “Discrimination on the basis of disability” does include the denial of reasonable
accommodation. However, this is merely a negative statement. The positive duty to provide
reasonable accommodation to guarantee equality is not resonated in Section 4 of the Bill.
The Mental Health Care Bill of 2013 also has a restricted definition of ‘equality and nondiscrimination’.
Section 21 of the Bill provides “Every person with mental illness shall be treated as equal to
persons with physical illness in the provision of all health care”, thereby restricting the
universe of discourse on equality to patienthood. Within health care settings, the Bill
provides, (a) there shall be no discrimination on any basis including gender, sex, sexual
orientation, religion, culture, caste, social or political beliefs, class or disability; (b)
emergency facilities and emergency services for mental illness shall be of the same quality
and availability as those provided to persons with physical illness; (c) persons with mental
health services shall be entitled to the use of ambulance services in the same manner, extent
and quality as provided to persons with physical illness; (d) living conditions in health
establishments shall be of the same manner, extent and quality as provided to persons with
23
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
physical illness; and (e) any other health services provided to persons with physical illness
shall be provided in same manner, extent and quality to persons with mental illness.”
Considering that the Bill allows invasive techniques such as psychosurgery, electroconvulsive
therapy, physical restraint, involuntary treatment and medication, with no safeguard of
legal capacity and informed consent, the above provision can be challenged: Even by the
limited standard set in the Bill, health care patients are not subjected to the same level of
deprivation of the right to life and liberty, as those who are subjects of this legislation
(Described in greater detail in Articles 12, 13, 14, 15) of this report.
Resources
The government has committed to earmark 3% of the outlay of the concerned Ministries
and Departments for protecting the rights of persons with disabilities as enjoined by the
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)
Act 1995.25
The XI Plan outlay for all the concerned Ministries amounts to Rs. 927628.61 crores and 3%
of the same works out to Rs. 27828.8583 crores.
The exercise of mapping schemes of Ministries that have direct allocations for persons with
disabilities and the schemes that have mention of persons with disabilities and of those
from which disability disaggregated data could be culled out reveals less than 1% allocation
except in case of Ministry of Social Justice and Empowerment, which is the nodal Ministry.26
25
26
Planning Commission XIth Plan Document.
Source: Analysing the Responsiveness of the Indian Budget 2007-08 to 2011-12.
24
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Source – Detailed Demand for Grant – Union Budget and Economic Survey – Government of
India
Recommendations
1. Amendment of Article 14 to include prohibition on the basis of disability.
2. Change the 15 Heading : as Prohibition of discrimination on grounds of religion,
race, caste, sex, disability or place of birth.
3. 15 (1) as; The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, disability, place of birth or any of them
4. Article 16 (2), amended as No citizen shall, on grounds only of religion, race, caste,
sex, disability, descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect or, any employment or office under the State.
5. A new Article in the Constitution - Nothing in this Constitution shall prevent the
State from making special provisions, by law, for the advancement of persons with
disabilities to ensure that (a) private parties do not discriminate against persons
with disabilities, (b) private parties provide reasonable accommodation to persons
with disabilities, and (c) the State and private parties provide persons with
25
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
disabilities access, on an equal basis with others, to all facilities and services open or
provided to the public.
6. To evolve a policy to combat disability-based discrimination by private sector.
7. The new disability act should have provision for repealing all the existing
discriminatory
laws
and
policies
of
the
country
mandating
reasonable
accommodation.
26
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Article 6: Women with Disabilities

States Parties recognise that women and girls with disabilities are subject to multiple
discrimination and in this regard shall take measures to ensure the full and equal
enjoyment by them of all human rights and fundamental freedoms.

States Parties shall take all appropriate measures to ensure the full development,
advancement and empowerment of women, for the purpose guaranteeing them the
exercise and enjoyment of the human rights and fundamental freedoms set out in
the present Convention.
NCPEDP & DEOC survey
Upto 88% of persons with disabilities were extremely dissatisfied by rights fulfilled under
this Article. None were extremely satisfied, and 6% were satisfied by efforts in this regard.
International obligations
The CRPD Monitoring Committee27 has made comprehensive recommendations on all
aspects of the CRPD with respect to this article. Specifically, it has recommended
‘comprehensive consideration of women with disabilities in public programmes and policies,
policies on the prevention of gender-based violence’ in the case of all countries; prevent
multiple forms of discrimination against women and girls with disabilities mainstream a
gender perspective in its disability legislation and policy in the case of Austria, Hungary and
Paraguay; legislations to protect women from violence, research and collection of
disaggregated data for women and girls with disabilities in the case of El Salvador, Tunisia,
Peru and China; protection from discrimination of women and girls with intellectual and
psychosocial disabilities, and hearing impairments in the case of Paraguay. In all these, the
Committee has emphasized the participation of organisations of women with disabilities
and participation and the role of the statutory bodies such as the Women’s Commission in
the case of China.
27
http://www.internationaldisabilityalliance.org/en/compilations-made-ida
27
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
The CEDAW country report of ?? did not mention women with disabilities. The CEDAW
monitoring committee, in their most recent Concluding Observations (Cos) on India at their
54th session28, did not comment on the implementation of rights for women with
disabilities. The concluding observations largely cover women with disabilities under the
broader rubric of ‘underprivileged women’.
Constitutional rights and other statutory protections
The Constitution of India grants equality to women and empowers the State to adopt
measures of positive discrimination in favour of women for mitigating discrimination (15,3).
Fundamental Rights, among others, ensure equality before the law (Article 14) and equal
protection of law; prohibits discrimination against any citizen on grounds of religion, race,
caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters
relating to employment (15,i). Other constitutional provisions include- Equality of
opportunity and non discrimination in appointment to any office (Article 16); right to
adequate means of livelihood and equal pay (39a, d); promote justice on equal basis and
provide legal aid (39a); just and humane conditions of work and for maternity relief (42);
justice protection on education and economic interests for weaker sections (46); standard of
living for all people (47); to renounce practices derogatory to the dignity of women (Article
51(A) (e))29.
Crimes against women have been identified under the Indian Penal Code (IPC) 30: Rape (Sec.
376 IPC); Kidnapping & Abduction for different purposes ( Sec. 363-373); Homicide for
Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC); Torture, both mental and
physical (Sec. 498-A IPC); Molestation (Sec. 354 IPC); Sexual Harassment (Sec. 509 IPC);
Importing of girls (up to 21 years of age).
28
The CEDAW Committee Concluding Observations, 54th session, found on 11th July 2013 at
http://www2.ohchr.org/english/bodies/cedaw/cedaws54.htm
29
Constitutional and legal provisions for women in India, by NATIONAL LEGAL RESEARCH DESK,
found on 20th October 2013 at http://nlrd.org/womens-rights-initiative/legislations-laws-related-towomen/constitutional-and-legal-provisions-for-women-in-india
30
Ibid.
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Some examples of legislations which have special provisions to safeguard women and their
interests31, with mixed outcomes in case law, are The Family Courts Act, 1954, The Special
Marriage Act, 1954, The Hindu Marriage Act, 1955, The Hindu Succession Act, 1956 with
amendment in 2005, Immoral Traffic (Prevention) Act, 1956, The Maternity Benefit Act,
1961 (Amended in 1995), Dowry Prohibition Act, 1961, The Medical Termination of
Pregnancy Act, 1971, The Contract Labour (Regulation and Abolition) Act, 1976, The Equal
Remuneration Act, 1976, The Prohibition of Child Marriage Act, 2006, The Criminal Law
(Amendment) Act, 1983, The Factories (Amendment) Act, 1986, Indecent Representation of
Women (Prohibition) Act, 1986, Commission of Sati (Prevention) Act, 1987.
Special laws such as the Prevention of Domestic Violence Act (PDV) and the Legal Services
Authorities Act, do have focus on women, but do not mention disabilities. Other women
specific and related legislations have not been amended to address the rights of women
with disabilities.
Incapacity provisions in a variety of laws (family, civil, criminal, other) work against women
with disabilities despite these rights protections. More than 100 civil laws including the
Constitution of India, deprive persons with disabilities including women of their legal status
and full legal capacity 32. When women with disabilities fall within this spread of safeguards
and incapacity legislations, case law outcomes are not always positive (described more fully
in relevant chapters of right to full legal capacity, family, political participation, etc.)
Women are victims of the ascription of ‘mental illness’ and further disempowerment due to
incapacity legislations33.
31
Ibid.
Human Rights in India - Joint Stakeholders’ Report – UN (UPR) 2011. Working Group on Human
Rights in India and the UN, WGHR, New Delhi, India
33
Davar, Bhargavi V (2012) ‘Legal structures for and against people with psychosocial disabilities’, In
Economic and Political Weekly, Vol. xlvii, No. 52, December 29, pp. 123-131
32
29
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
BOX ITEM34
In the case of Pullanhi Dinesan v. Palangadan Jyothi35, MFA.No. 25 of 2003, judgment dated
24 November 2008, Kerala High Court
Decree for divorce on ground of unsoundness of mind respondent wherein the Court held
that based on the medical records and evidence, the Appellant had proven that the
Respondent was of unsound mind when the marriage took place and further that the
Appellant was unaware of this fact due to concealment by the family of the respondent.
Therefore the High Court granted the decree for divorce on the ground of the unsoundness
of mind of the Respondent and also marriage by fraud.
BOX ITEM
In the case of Pankaj Mahajan v. Dimple @ Kajal36, also a case of divorce filed on ground of
‘mental disorder’, the appellant filed for ‘unsound mind’ and ‘cruelty’. The Amritsar District
Court decreed a divorce on this ground. The High Court squashed the decree, and the case
went upto the Supreme Court. The woman was exposed to a battery of investigations
against her will by different psychiatrists, earning different diagnoses and legal status
certification. The Supreme Court held that the evidence of the doctors who had treated the
Respondent “prove that the respondent-wife was suffering from mental disorder”37. Further
‘all the four doctors/Psychiatrists who treated the respondent-wife, prescribed medicines
and also expressed the view that it is “incurable”’. More problematically, the finding of
‘schizophrenia’ led the Supreme Court to observe that ‘suffering from mental
34
Inclusive Planet Centre for Disability Law and Policy and Centre for Law and Policy research, 2011,
Review of Indian Case Law, Since India’s Ratification of the UN Convention on the Rights of Persosn
with Disabilities. Study conducted by Rahul Cherian, Inclusive Planet for purpose of the UNCRPD
Monitoring Report, supported by NCPEDP, New Delhi.
35
MFA.No. 25 of 2003, judgment dated 24 November 2008, Kerala High Court
36
MANU/SC/1145/2011, Civil Appeal No. 8402/2011, judgment dated 30 September 2011, Supreme
Court . Case description and analysis by Inclusive Planet Centre for Disability Law and Policy and
Centre for Law and Policy research, 2011, Review of Indian Case Law, Since India’s Ratification of the
UN Convention on the Rights of Persosn with Disabilities. Study conducted by Rahul Cherian,
Inclusive Planet for purpose of the UNCRPD Monitoring Report, supported by NCPEDP, New Delhi.
37
Pankaj Mahajan v. Dimple @ Kajal, MANU/SC/1145/2011, Civil Appeal No. 8402/2011, judgment
dated 30 September 2011, at para 18.
30
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
disorder/Schizophrenia’ in itself is a condition where it is not reasonably expected to live
with the wife. And worse, the Court enlisted “Repeated fits of insanity, abnormal behaviour
causing great mental tension to the appellant”, these constituted ‘cruelty’. This is a serious
misinterpretation of cruelty under the Act and deprives the dignity and integrity of persons
with mental disabilities.
The state fails to acknowledge or address the realities, and the fate of those who are
marked with "multiple categories of difference"/ those who lie at intersections of various
structural aspects of exclusion38.
Protections of rights for women in existing disability legislations
In The Disability Act, 1995 there are no specific provisions for non-discrimination or
reasonable accommodation or affirmative action for women with disabilities. It however
mandates that the Central Executive Committee, the State Coordination Committee and the
State Executive Committee should have at least one woman with disability.
The National Trust Act, 1999 also provides that one of the members of the Board should be
from Ministry of Women and Child Development and she/he should not be below the rank
of Joint Secretary. In addition, it states in Clause 11(3), “while earmarking funds for the
purpose of clause (c) of sub-section (2), (i.e., setting up of residential hostels and residential
homes for persons with disability), preference shall be given to woman with disability.”
The Mental Health Act, 1987 on “Judicial Inquisition Regarding Alleged Mentally Ill Person
Possessing Property, Custody of His Person and Management of His Property”, states, “if the
alleged mentally ill person is a woman, who according to the custom prevailing in the area
where she resides or according to the religion, to which she belongs, ought not to be
compelled to appear in public, the District Court may cause her to examine by issuing a
commission as provided in the code of civil procedure, 1908”.39 That apart, the Act does not
have any specific clause or provision for women with disabilities, nor its successor, the
Mental Health Care Bill of 2013.
38
From Alternative CEDAW Parallel Report, Prepared by DPI (India), submitted to CEDAW
Monitoring Committee, September of 2013
39
Accessed at http://nhrc.nic.in/Publications/Disability/annexure3.html on August, 2011.
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Involuntary commitment provisions found extant in the mental health legislations and
practice deprive women ascribed to be ‘mentally ill’ and women with psychosocial and
intellectual disabilities, of their liberty without safeguards. Ms Rashida Manjoo, UN Special
Rapporteur on Violence against Women, on her recent visit to India in 2013, has however
commented extensively on the rights to violations of bodily integrity of multitudes of
women in different vulnerable contexts; and also rights violations of women in custodial
settings.
Rights of women with disabilities on equal basis with others
In a society where the gender ratio is steadily declining, continuing female foeticide and
infanticide, increasing violence against women, the status of women in India remains a
matter of concern40.
“Gendering Human Development Indices (HDI) : Recasting the Gender Development Index
(GDI41) and Gender Empowerment Measure for India”42 a summary report of the Ministry of
Women and Child Development, Government of India revealed that the aggregate HDI43 and
GDI scores estimated for India were 0.530 and 0.514 respectively in 1996 and 0.605 and
0.590 in 2006. Over the decade, the value of the Human Development Index increased by
0.075 points and the Gender Development Index by 0.076 points, showing a huge disparity.
Gender Empowerment Measure (GEM) is intended to measure women’s and men’s ability
to participate actively in economic and political life and their command over economic
resources. It focuses on opportunities and captures gender inequality in three key areas,
‘Political Participation and Decision-making Power’, ‘Economic Participation and Decision40
From Alternative CEDAW Parallel Report, Prepared by DPI (India), submitted to CEDAW
Monitoring Committee, September of 2013
41
The GDI is often considered a “gender-sensitive extension of the HDI” (Klasen 245). It addresses
gender-gaps in life expectancy, education, and incomes. It uses an “inequality aversion” penalty,
which creates a development score penalty for gender gaps in any of the categories of the Human
Development Index which include life expectancy, adult literacy, school enrollment, and logarithmic
transformations of per-capita income
42
http://wcd.nic.in/publication/gdigemSummary Report/GDIGEMSummary.pdf
43
Definition of 'Human Development Index - HDI'A tool developed by the United Nations to measure
and rank countries' levels of social and economic development based on four criteria: Life
expectancy at birth, mean years of schooling, expected years of schooling and gross national income
per capita. The HDI makes it possible to track changes in development levels over time and to
compare development levels in different countries.
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
making Power’ and ‘Power over Economic Resources’. The aggregate score for GEM for
India was 0.497 in 2006 and 0.416 in 199644.
In this scenario women with disabilities, who constitute around 42.6% percent of the total
disabled population45 remain as the marginalized amongst the marginalized, living with the
harsh/grave realities of multiple discriminations.46 The concerns of women with disabilities
have neither been espoused by the women's movement nor the disability movement47.
Their concerns remain unknown, unheard, ignored and at the peripheries in the laws,
polices, systems48, services, schemes and programmes of the Government and the private
sector. Accessibility of systems, services, information, physical infrastructure, basic facilities
etc for women with disabilities does not appear to be a matter of State concern. The paucity
of disaggregated data and research on women with disabilities also reflects this situation 49.
There is a growing body of evidence showing that disabled people, and especially disabled
women, are particularly vulnerable to contracting HIV/Aids, as they are more vulnerable for
44
http://wcd.nic.in/publication/gdigemSummary Report/GDIGEMSummary.pdf
Information from Census of India 2001. The total population of persons with disabilities is 2.1% of
the total population.
http://censusindia.gov.in/Census_And_You/disabled_population.aspx Accessed on 1/9/2013
46
Addlakha, Renu, 2010. From Invalidation and Segregation to Recognition and Intergration:
Contemporary State Responses to Disability in India, Occasional Paper No. 55, Centre for Women’s
Development Studies
47
Mehrotra, Nilika, 2011. Disability Rights Movement In India: Politics and Prcatice, Economic and
Political Weekly, Vol.-XLVI.No.06
48
The absence of women with disabilities is glaring in the missions and plans of Ministry of Women
and Child Development, Government of India. http://wcd.nic.in/ Accessed on 1/9/2013; The
National mission of empowerment of women which was started in 2011 does not even mention
women with disabilities in its scheme and programs. Only once in the mention of target groups,
women with disabilities is mentioned under the category of women and health.
http://www.nmew.gov.in/index1.php?lang=1&level=0&linkid=52&lid=122&ltypeid=2&domid=10
Accessed on 1/9/2013
49
Data on women with disabilities is missing from all Government data on women and health;
disaggregated data regarding the representation of women with disabilities in decision/policy
making processes, although its departments do collect such data for women in general, women from
minorities and scheduled castes and tribes; DoPT, although possesses data on persons with
disabilities (including women) employed with the Government, it does not find a mention in
Government's country reports - in spite of the fact that there is a 3% reservation in jobs for persons
with disabilities under the Persons with Disabilities Act 1995 in the Government's sector.
45
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
sexual abuse, sterilization, hysterectomies, and lack access to information or services for
their protection50.
Barriers to full enjoyment of human rights by women with disabilities
All concerned Central Ministries were requested by Ministry of Social Justice and
Empowerment to implement the provisions of the CRPD in so far as these relate to them.
The need for focus on women and children was also emphasised. The Ministries were also
requested to identify statutes and orders that require amendment in the light of the
Convention and to initiate the process of amendment.51
Ministry of Social Justice and Empowerment, which is the nodal ministry for persons with
disabilities, has not created any development plans or programme for women with
disabilities.
The MOSJE formed a Committee to draft a new law on disability based on the CRPD and out
of 34 Committee Members, only 2 were women with disabilities.
Ministry of Women and Child Development have mentioned women with disabilities only
cursorily. For example, the ‘Swadhar: A Scheme for Women in Difficult Circumstances’ has
the objective of providing primary need of shelter, food, clothing and care to the
marginalised women/girls living in difficult circumstances who are without any social and
economic support. The scheme provides economical, clinical and legal aid to women and
girls in need. One of the beneficiary or target groups of the scheme includes “mentally
challenged women (except for the Psychotic categories who are without any support of
family or relatives)”52. This is also an example of discrimination against specific constituency
of women with disabilities.
Through a variety of legal and policy provisions, many women with disabilities end up within
custodial institutions.
50
a) Equity to Women with Disabilities in India: A Strategy Paper Submitted to National Commission
for Women (2005). IndumatiRao, NCW;
b) Thomas Philippa, 2005, Mainstreaming disability in development: India country report,
http://siteresources.worldbank.org/INTSARREGTOPLABSOCPRO/12117141144074285477/20873614
/IndiaReportDFID.pdf, Accessed on 26/8/2013
51
Page 106, Annual Report, Ministry of Social Justice and Empowerment, 2009-10.
52
Page 27, Annual Report of Ministry of Women and Child Development, 2010-11.
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
BOX ITEM
“In Kolkata city alone, we have more than 750 mentally disabled women who are forced to
live in shelter homes as their families do not accept them.”
-Shampa Sengupta, Sruti Disability Rights Centre, Kolkata through email exchange dated
20th September 2011.
Though there has been mention of women with disabilities in the XI Plan Document 53,
efforts towards the realisation of the commitment have been negligible. For instance the XI
plan mandates 3% of the concerned ministries’ resources has to be earmarked towards the
protection of the rights of persons with disabilities. The analysis of the expenditure of the
Ministry of Women and Child Development, which is one of the concerned ministries
exposed that there is no specific allocation made towards the development, advancement
and empowerment of women with disabilities.
A survey 54 conducted by Tejas, a self advocacy group of disabled women in Tamilnadu, by
Swabhiman in Odisha and by the Association of Women with Disabilities in Kolkatta
revealed that more than out of the sample 60% of women with disabilities have low or no
education, 0% of women with extensive disabilities have accessed higher education, more
that 20% of the women with disabilities working are in some form of sheltered workshops.
There is a huge gap in the marital status of women with disabilities and women without
disabilities. 28.29% of the women with disabilities surveyed were married compared to the
marital status of women without disabilities, which is 59.92% of the sample undertaken for
the study.
Participation of women with disabilities in the decision making and monitoring bodies, be it
the Government, Private Sector or the NGOs, is very limited. In general, people with
disabilities are not in top positions, but in the recent times, there have been a few men with
disabilities holding the top post in the Government, like the Chairman of Rehabilitation
53
http://planningcommission.nic.in/plans/planrel/fiveyr/welcome.html
Research study o the status of Employment of Women with Disabilities in Tamil Nadu conducted
by Tejas, a self advocacy group of women with disabilities – Chennai, Tamil Nadu.
54
35
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Council of India. However, there are no examples of women with disabilities in top
positions.
Resources
The analysis of the financial documents revealed that only Ministry of Social Justice and
Empowerment has mentioned a scheme for women with disabilities55 in its XI Pan outlay
document. The statement of budget and expenditure shows that an allocation of 5 crores
was made in the year 2008-09, 2009-10 and 2010-11 but the expenditure was only 0.01
crore and the allocation was reduced to 0.01 crore for the years2011-12 and no expenditure
is reported. The nature, scope and content of the scheme is not available from the various
sources such as the annual reports and interview with the senior official of the ministry.
There is no disaggregated data on the resource allocation and expenditure towards women
with disabilities and number of women with disabilities benefited from the various schemes
of the Ministry.
BOX ITEM
Divya’s (name changed) story is an example of ‘Insensitivity exhibited by people who work
with women with disabilities.’
Divya is a young woman of 24 years with mild intellectual disability. She studied in
mainstream school till Class VII. She could not cope up with the studies and dropped out.
She started going to a Vocational Training Centre (VTC) for young adults with mental
retardation run by a Parents’ Group.
From the day she joined the VTC, she showed signs of flustered adolescent behaviour –
trying to be too close with male teachers who taught them specific skills as well as openly
saying that she longs to visit Rabindra Sadan (a place frequently visited by young couples of
Kolkata) with male friends. She also demanded to know why these opportunities were not
given to her.
55
http://socialjustice.nic.in/pdf/fiveyearplan.pdf
36
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
The training centre where she goes, did not try to impart life skills or sexuality training to
her. The special educators scolded her and at made jokes about her. Her family was also
clueless about how to deal with this. However, they found a match for her. In the year 2010,
Divya got married to the man chosen by her parents. The mother says she explained the
situation to the man’s family and they accepted.
However the VTC management was not ready to cater to a married woman. So Divya had no
choice – she had to opt for either marriage or work.”
-Shampa Sen Gupta, Sruti Disability Rights Centre, Kolkata.
Recommendations

Disability laws and women related laws need to be reviewed in the light of various
relevant Articles of the CRPD.

The Government should have focused programmes for women/girls with disabilities
and inclusion of women with disabilities in all programmes of the various relevant
Ministries.

Gender-segregated disability data of beneficiaries of various schemes needs to be
maintained and made available to facilitate monitoring and evaluation.

The Government needs to have a policy on including women with disabilities in
decision making, implementing and monitoring bodies.

Special focus on the rights of women with disabilities is needed across ministries.
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Article 7: Children with Disabilities

States Parties shall take all necessary measures to ensure the full enjoyment by
children with disabilities of all human rights and fundamental freedoms on an equal
basis with other children.

In all actions concerning children with disabilities, the best interests of the child shall
be a primary consideration.

States Parties shall ensure that children with disabilities have the right to express
their views freely on all matters affecting them, their views being given due weight in
accordance with their age and maturity, on an equal basis with other children, and to
be provided with disability and age-appropriate assistance to realize that right.
SURVEY FINDINGS
The Survey Findings show that 90% of the respondents were dissatisfied with the
implementation of the Article on child rights. The implementation of laws and policies for
ensuring the rights of children with disabilities need attention so that they can enjoy full
equality and protection.
International obligations
The UNCRPD Monitoring Committee has endorsed the recommendations of the CRC, where
relevant; recommended ending discrimination and the application of child and disability
inclusive perspective in laws, policies and programs for children; speedy implementation;
paying special attention to children with disabilities living in rural areas and indigenous
communities; also children with hearing, visual and intellectual impairments; ensuring
inclusion; preventing violence, abuse, ill treatment, abandonment and institutionalisation;
the right to community life; and a priority of actions for underprivileged families; sufficient
allocation of resources, especially in insurance schemes; eradication of stigma; allow for free
38
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
expression of their own views; strengthen monitoring, especially of extant institutions; and
gather accurate data on children with disabilities56.
Article 23 of the CRC focuses specifically on the rights of the child with disabilities. In 2012,
India took stock of twenty years of its ratification of the Convention on the Rights of the
Child.
In the context of UPR, and in response to Switzerland’s recommendation on abolishing child
labour by lifting India’s reservation on Article 32, India has responded that it will review in
the times to come, and it is not yet time to lift the reservation given the present situation in
India.
In the 3rd and 4th State CRC report, with respect to number of children with disabilities, it is
reported that “there are between 6 and 30 million children with disabilities in India, who
have special needs”57. Such a wide variance in estimates cannot be the basis of any effective
policy or program to improve the situation and respect for the rights of children with
disabilities as the report goes on to suggest.
The Integrated Child Development Scheme (ICDS) is the only major countrywide scheme for
early childhood care and development. With its mandate for the provision of essential
services of immunization, health check-up, and referral services, pre-school non-formal
education and the provision of supplementary nutrition, “it is bringing early childhood care
and education as an integrated package to all children.” It is also seen as the government’s
major scheme to fight childhood malnutrition58. Through its 1.4 million anganwadi centres
and its two million anganwadi workers and helpers, this scheme reaches out to “eighty six
million children and their mothers through supplementary nutritional support and thirty
56
http://www.internationaldisabilityalliance.org/en/compilations-made-ida, accessed on 16th
November 2013.
57
Page 49, Section 3B.3.1, Link - http://wcd.nic.in/crc3n4/crc3n4_1r.pdf; For full details, see
Alternative Report to the CRC Committee on the Rights of CWDs, a joint submission of the DPI (India)
in collaboration with national disability groups in India, to the third and fourth periodic reports
submitted by the Indian government to the Committee on the Rights of the Child in 2011.
58
Pg 38, Section 3.1.3, Point (a), Report of the Working Group on Child Rights for the 12th Five Year
Plan (2012-17), Link http://planningcommission.nic.in/aboutus/committee/wrkgrp12/wcd/wgrep_child.pdf & Link for
ICDS - http://wcd.nic.in/icds.htm
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
three million children with pre-school education”59. However, India’s latest state report to
the UN CRC Committee presents this scheme in terms of the prevention of disability. It does
not report on the inclusion of children with disabilities in the scheme60.
Constitutional guarantees and legal safeguards
Provision 39(e) of the Constitution of India provides that, ‘The state shall … direct its policy
towards securing that children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity, and that childhood and youth are
protected against exploitation and against moral and material abandonment’.
The Constitution of India guarantees some specific rights to children 61:

Right to free and compulsory elementary education for all children in the 6-14 year
age group (Article 21 A).

Right to be protected from any hazardous employment till the age of 14 years
(Article 24).

Right to be protected from being abused and forced by economic necessity to enter
occupations unsuited to their age or strength (Article 39(e)).

Right to equal opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and guaranteed protection of childhood and
youth against exploitation and against moral and material abandonment (Article 39
(f)).

Right to early childhood care and education to all children until they complete the
age of six years (Article 45).
59
Section 6C.3.2, Pg. 135, Point No. 100, 3rd and 4th State CRC Report, Link http://wcd.nic.in/crc3n4/crc3n4_1r.pdf
60
See point 26 Page 118, Link - http://wcd.nic.in/crc3n4/crc3n4_1r.pdf
61
HAQ Centre for Child Rights, Constitution of India, accessed at
http://www.haqcrc.org/constitution-india on 6th October 2011.
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Besides, children also have rights as equal citizens of India, just as any other adult person.
These are:

Right to equality (Article 14).

Right against discrimination (Article 15).

Right to personal liberty and due process of law (Article 21).

Right to being protected from being trafficked and forced into bonded labour (Article
23).

Right of minorities for protection of their interests (Article 29).

Right of weaker sections of the people to be protected from social injustice and all
forms of exploitation (Article 46).

Right to nutrition and standard of living and improved public health (Article 47).
India has 12 special laws for children apart from legal provisions in the penal and criminal
codes. Justice (Care and Protection) Act, 2000 is the only law in the world based on a
preventative approach to juvenile justice. According to the Working Group on Human Rights
Report to the UN OHCHR in the context of the country’s UPR62, poor implementation of the
law, lack of support structures, and inadequate resources lead to derailment of justice for
children in conflict with law. Children’s ages are often falsified and they are tried in adult
courts or sent to adult prisons, and child victims are further victimised in non-child sensitive
judicial processes. While children’s courts were established by the Protection of Child Rights
Act, 2005, not all states of India have those courts. The said legislation has no provision on
children with disabilities.
The National Commission for Protection of Child Rights Act, 2005 and Amendment 2006 and
62
Human rights in India. Joint Stakeholders’ Report, for the Universal Periodic Review Report, by
Working Group on Human Rights in India and the UN (OHCR), submitted to UNOHCR on 28 th
November, 2011. P. 17
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
The Immoral Traffic Prevention Act 1956 are other laws impinging upon the lives of disabled
children, not yet reviewed in the light of the UNCRPD. Chapter 4 on State Commission for
Protection of Child Rights states that out of the six members of the State Commission, one
could be also a person having experience of working with children with disabilities.
The Right to Education Act63 did not include children with disabilities. After advocacy by
disability groups, a recent amendment to this Act has included them; Through a recent
amendment64, children with disabilities have become a named category amongst the
‘disadvantaged groups’ in the Right to Education Act. In the same amendment, children with
severe and multiple disabilities were offered the choice of ‘home based education’ as part
of their right to free and compulsory education. The disability movement is concerned that
this may lead to further stigmatisation and exclusion of children with disabilities.
Rights of children with disabilities in disability legislations
The disability legislations do not have comprehensive human rights provisions for children
with disabilities, except in the areas of education, prevention, early detection and
guardianship.
The principle of the best interest of the child to be paramount is very strongly embedded in
theCRPD for all matters concerning the rights of children with disabilities, as also concepts
of ‘evolving capacity’ and ‘identity’. The extant legislations do not attend to these concepts,
nor case law.
The Disability Act, 1995 includes early detection of ‘at risk’ children and the right to
education of children. It provides for measures like free books, assistive aids, transport etc.
The law also states that the Central Coordination Committee and the State Coordination
Committees need to have members of Ministry of Women and Child Development.
The National Trust Act, 1999, does not have any mention of rights of children with
disabilities. However, the thrust of that legislation is guardianship arrangements for persons
63
See Right to Education Act, 2010, Link - http://www.delta.org.in/form/rte.pdf
See RTE Act, Amendment, 2012, Link http://righttoeducation.in/sites/default/files/rte_amendment_act-2012.pdf
64
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
with disabilities. The Act does not recognize the notion of evolving capacities and identity
development of children with disabilities.
The Rehabilitation Council of India recognises various courses for rehabilitation
professionals, teachers and doctors and ensures that it includes the concerns of children
with disabilities.
The Mental Health Act, 1987, provides for does not have any provision for rights of children.
The legislation is mainly concerned with the institutionalization of persons with disabilities,
including children. The Mental health care Bill of 2013 has made more elaborate provisions
for the involuntary commitment and forced treatment of children with disabilities.
Although the new Rights of persons with Disabilities Bill makes detailed provisions on rights
of children with disabilities,65 the principle of the best interest of the child as laid down in
the CRPD finds no adequate recognition. Under the Bill, while provisions are made with
regard to respect to the right to life, education, health, leisure and home and family of
children with disability, there is no obligation under these provisions to take into account
the best interest of the child. Only in the limited case of separation of the child from the
parents under Section 28(5) it is stated that this shall be done if it is in the bests interests of
the child. This is a serious restriction of a reading of the rights of children with disabilities.
The question of best interest of the child arises not only in the case of separation of
children from their parents, but in the exercise of various rights covered under the Bill. For
instance, in case of a child’s education, the parent’s right to choose should be subject to the
best interest of the child. Also, in cases concerning the medical treatment of the child,
consent and confidentiality acts should be performed in the best interest of the child.
Protection of rights of children with disabilities on equal basis with other children
India is home to the largest number of children in the world. Nearly every fifth child in the
world lives in India. It is estimated that there are about 43 crore children in the age group of
65
See Sections 17 to 19, 34 to 54, Rights of Persons with Disabilities Bill, 2011. See ‘Analysis of rights
of persons with disabilities Bill of 2011, in light of UN Convention on the Rights of Persons with
disabilities’, Prepared by Rahul Cherian, Inclusive Planet and Center for Law and Society, Chennai, for
purpose of the UN CRPD Monitoring Report, supported by NCPEDP / NDN.
43
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
0–18 years. It is estimated that 40% children are in very difficult circumstances or
vulnerable66.
The status of children in the country is a matter of concern. One in every 21 infants die
within one year of life. The Infant Mortality Rate is greater for girls compared to boys.
According to the Census 2001, about 12.6 million child labourers in the age group of 5–14
years were engaged in hazardous occupations.67 Though there is no data on status of
children with disabilities, however, it cannot be disputed that children with disabilities are
more vulnerable than non disabled children. Poverty and gender further adds to the
vulnerability.
According to Census 2001, the population of children with disabilities in the 0 -19 age group
is 77 lakhs.68 The Census 2011 data on disability is not released yet. If one takes conservative
estimate of 5% of the total population of children, it would work out to 2.1 crores children
with disabilities in India.
India has one of the highest concentrations of street children in the world, with UNICEF
estimating their number to be as high as 11 million. This figure is considered to be
conservative.69 There is no data on number of children with disabilities living in the streets,
but the numbers would be high. It is common to see them on the Indian roads,
intersections, around traffic signals, market places, places of worship, begging or just left to
wander around.
Since birth children with disabilities are mostly socialised into dependence, requiring
constant monitoring or supervision and never encouraged to take care of themselves or
think independently. Their rights to personal mobility, decision making, participation, leisure
and play and other rights, are restricted from very early on, due to lack of understanding of
developmental milestones; anxiety and fears of parents and their overprotection. Such
66
Report of the Working Group on Child Rights for the 12th Five Year Plan (2012 – 2017 )
XII Five Year Plan, Chapter 23, Women’s Agency and Child Rights STATUS OF CHILDREN: AN
OVERVIEW, 23.98.
67
68
http://mospi.nic.in/Mospi_New/upload/disablity_india_statistical_data_11mar2011/Chapter%204Dimension_Disability.pdf accessed on 19th January 2013
69
Consortium for Street Children, Street Children Statistics, June-August 2009, page 5, available at:
http://www. streetchildren.org.uk/_uploads/resources/Street_Children_Stats_FINAL.pdf
44
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
dependence increases their vulnerability, identity confusion and it is used to justify their
inability to found a family, and have a productive career. Their right to participation
continues to present a huge challenge in a country which is highly patriarchal and
hierarchical.
A wide disparity in the rights that are enjoyed by children with disabilities and other children
is reflected in a deep exclusion and invisibility of children with disabilities in all programs for
children. This is because the rights of children with disabilities are divided across different
Ministries with none taking complete responsibility. This confusion and lack of ownership
has resulted in the exclusion and isolation of children with disabilities from the mainstream.
The Nodal Ministry, the Ministry of Social Justice and Empowerment (MSJE) does not have
any program or scheme that has been designed keeping the rights and specific
requirements of the child in focus.
The responsibility for the education of children with disabilities continues to be divided
amongst the Ministry of Social Justice and Empowerment and the Ministry of Human
Resource Development (MHRD)70, with neither taking full responsibility nor coordinating for
the full participation in education for children with disabilities.
The Ministry of Human Resource Development addresses children with disabilities as
‘Children with special needs’ (CWSN), while the Ministry of Social Justice and Empowerment
addresses the same children as ‘children with disabilities’. Other documents and guidelines
use the phrase, ‘Children with special needs’ to address a wide range of children including
the child with disabilities.71 This confusion is reflected in India’s official report to the CRC.
The 3rd and 4th State report uses the terms ‘differently-abled’72 ‘children with disabilities’73
and ‘children with special needs’74 to address the same set of children. This lack of
consistency in addressing a set of children is not only discriminatory but also adds to the
confusion about the identity of this child. This situation continues despite the continuous
demand by Disabled People’s Organizations (DPOs) for full responsibility to be taken by the
70
Ministry of Human Resource Development is the nodal Ministry for education of all children
http://www.adoptionindia.nic.in/guide_inter_country.htm
72
Preface, Point 5, Link - http://wcd.nic.in/crc3n4/crc3n4_1r.pdf
73
Page 60, Link - http://wcd.nic.in/crc3n4/crc3n4_1r.pdf
74
Page 18, Link - http://wcd.nic.in/crc3n4/crc3n4_1r.pdf
71
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Ministry of Human Resource Development that deals with education, suggestions made by
committees75, and the enactment of the Right of Children to Free and Compulsory
Education Act 2009.
In the Tenth Plan76 document India has specifically recognized children with disabilities as
children living in difficult circumstances. In 2006, the National Policy For Persons with
Disabilities77 made a special mention of children with a focus on the girls with disabilities.
The 11th plan document focused on inclusion78. The recently announced National Policy For
Children (2013) 79 makes specific reference to the rights of children with disabilities. Laws
relating to children are beginning to acknowledge the extreme vulnerability of children with
disabilities and acknowledge that the fulfillment of the rights of this child will require some
specific action. However, these efforts are meager, and children with disabilities are far
from being mainstreamed within the universe of children in many areas of life.
Barriers to full enjoyment of human rights for children with disabilities
The Integrated Child Protection Scheme (ICPS) that brings together all the government
schemes and bodies working to implement the JJ Act was launched in the 11 th plan, it is
another flagship program of the government of India. The ICPS makes specific reference to
the child with disabilities only in the context of institutionalization. While recognizing that
“poverty and lack of social security and medical services tend to cause parents to abandon
children with physical and mental disability” the specific solution for this is to provide
“specialized institutional care and treatment including medical, nutritional, and
psychological support80. It is a matter of grave concern that specific recognition of high
levels of abandonment has not resulted in either a detailed official study, policy directions
or indeed strategies to secure the child within their family and communities so that children
75
Section 5.2, Recommendations made by the Committee drafting the Rights of Persons with
Disabilities Bill,2011, Pg. 9, http://socialjustice.nic.in/pdf/report-pwd.pdf
76
http://wcd.nic.in/crc3n4/crc3n4_1r.pdf (Section 2.11.143, Page 268, 10th Five Year Plan, 20022007, Volume II)
77
http://www.svayam.com/pdf/English-national_disability_policy.pdf
78
http://planningcommission.nic.in/plans/planrel/fiveyr/11th/11_v1/11th_vol1.pdf (Section 6.180.,
Pg. 131, , 11th Five year Plan, 2007-12, Volume I)
79
http://wcd.nic.in/childreport/npc2013dtd29042013.pdf
80
See sec 4.5, Titled Specialized Services for Children with Special Needs, Link http://wcd.nic.in/icpsmon/st_abouticps.aspx
46
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
with disabilities can exercise their right to stay and be cared for within their family. Rather,
the ‘solution’ will lead to more segregation and isolation of children with disabilities. The
deplorable conditions of shelter homes, observation homes and special homes for all
children have been the focus of many debates in the media, civil society and government in
recent years in India (discussed more fully in Articles 14, 15 and 16).
According to the 'Study on Child Abuse: India' conducted by Ministry of Women and Child
Developed in 2007: "53.22 % of children reported sexual abuse, 50% reported physical
abuse, and in almost all cases the abuser was a known person.
81
These numbers would
presumably be higher for children with disabilities. Most cases of violence and abuse against
children with disabilities go unnoticed/unreported/underreported and sometimes even
supported by community, justifying the fact that it is difficult and stressful to take care of
children with disabilities.
BOX ITEM
“My child was routinely being beaten up in the school by his teacher for not studying and
for misbehaving. I finally had to remove him from the school.”
-Parent of a child with learning disability.
BOX ITEM
“A
12
year
old
mentally
challenged,
hearing
and
speech
impaired
girl
was raped by CRPF constables. The inhuman incident took place at the Sai Vikas Home and
School for Mentally Retarded at Bhimaram in Andhra Pradesh. The CRPF camp was located
near the institution.”
-Email from Kanti Ganguly, Convenor and Muralidharan, National Platform for the Rights of
the Disabled (NPRD)
81
Study on Child Abuse: India' conducted by Ministry of Women and Child Developed in 2007;
accessed at http://wcd.nic.in/childabuse.pdf on 14th January 2013
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BOX ITEM
“I have no choice but I have to lock up my child in the house and go for work, as I am a
single parent.” -Mother of a child with intellectual impairment.
Redress mechanisms: We do not know if the National Commission for Protection of Child
Rights (NCPCR) or helplines for children or organizations working with children adequately
cater to children with disabilities. There is no information in NCPCR website regarding the
work they are doing with regard to children with disabilities. There is a section on Children
with Disabilities. The only information that is available is the Minutes of the Consultation on
Identifying Best Practices in Early Detection and Intervention for Children with Disabilities,
which was held in February 2010 82.
The Integrated Child Development Services (ICDS) is not designed to include children with
disabilities. The only specific directions in the guidelines of this scheme is for the anganwadi
worker to conduct a survey of children with disabilities in the community and to refer the
child with disabilities to the nearest Public health Centre (PHC). In response to a Right To
Information (RTI) query filed in October 2011 by the National Centre for Promotion of
Employment for Disabled People (NCPEDP), the Ministry of Women and Child Development
has mentioned that The existing MIS (Management Information Systems) “does not capture
information of disabled children”83.
There are also other schemes implemented by Ministry of Women and Child Development
targeting health/nutrition/pre school education of children and adolescent girls. None of
these address the specific needs of persons with disabilities and data is not available..
The Ministry of Women and Child Development is also implementing schemes for child
protection namely, Programme for Juvenile Justice, Integrated Programme for Street
Children (24 hour Shelters Scheme, food clothing, education recreation counseling etc.),
Assistance to Homes for Children (Shishu Greh) to promote in-country adoption, CHILDLINE
Service, a 24 hour emergency telephone outreach service. The Working Group Report for
82
NCPCR Website; Children with Disability, http://www.ncpcr.gov.in/childrenwithdisability.htm
accessed on 13th February 2011
83
See Page 189, UNCRPD Key Issues in India Prepared by DEOC for NCPEDP, December 2011
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XII Plan84, has mentioned that the coverage in general is very low for these schemes. There
is no data of children with disabilities who have benefited from these services.
One of the major initiatives of the Government of India to promote universalisation of
elementary education is the Sarva Shiksha Abhiyan (SSA). The enrollment of children with
disabilities in the schools has increased due to the focused initiative under SSA. However,
the number of children with disabilities identified and enrolled is far lower than the
estimated population of children with disabilities. Further, the drop out rates are higher for
children with disabilities. There are no records for dropout of children with disabilities being
maintained by SSA. (For data related to education of children with disabilities, please refer
to the chapter on Article 24).
The population of children with disabilities is officially about 6 to 30 million 85.
Yet,
rehabilitation services have not reached more than 0.50 million (5 lakhs) people86 which
implies that far less than 8%87 of children with disabilities have accessed services.
The ADIP Scheme88 to promote the personal mobility and accessibility of persons with
disability reaches only 0.25 mn people annually89. There are huge gaps in ensuring the right
to these services particularly among the children with disabilities residing in rural India as
most of the services are housed in urban India 90. Children who are underprivileged, living in
slums, and other vulnerable geographic locations within urban areas are equally excluded
from benefits under this scheme due to extremely poor coverage.
The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007
as a statutory body under the Commission for Protection of Child Rights Act, 2005. It was set
84
Accesses at http://wcd.nic.in/reportwgdtd01032012.pdf In January 2013
Section 3B.3.1, Page 49, 3rd and 4th State CRC Report, 2011, Link http://wcd.nic.in/crc3n4/crc3n4_1r.pdf
86
Section 6B.6, Pont No. 32, Table 6.1, Page 120, 3rd and 4th State CRC Report, 2011, Link http://wcd.nic.in/crc3n4/crc3n4_1r.pdf
87
Even if we take the population of children with disabilities as 6 million, the services reach to far
less than 8% of children with disabilities, provided that in the absence of child specific data regarding
reach of services, we have used the figure 0.50 million that implies all people with disabilities who
have accessed services
88
See ADIP Scheme, Link - http://socialjustice.nic.in/pdf/adipsch.pdf
89
See Point No. (d), Page 135, Annual Report 2010-2011, MSJE, Link http://socialjustice.nic.in/pdf/ar11eng.pdf
90
See Para 2, Charter of Demands from Pratidhwani
85
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up to protect, promote and defend child rights in the country. Though children with
disabilities have not been specifically mentioned in the chapter on functions and powers of
the Commission, one of the functions mentioned is to look into the matters relating to
children in need of special care and protection, including children in distress, marginalised
and disadvantaged children, children in conflict with law, juveniles, children without family
and children of prisoners and recommend appropriate remedial measures.
Resources
7.17 For information regarding the allocation for children with disabilities in SSA is given in
chapter on Article 24 of this document. .91
7.18 There is no disability segregated information available with respect to beneficiaries on
spending for Schemes specific for children under MWCD.
BOX ITEM
The investigations into the horrific situations within institutions for children have taken
place through Public interest Litigation in the case of Asha Kiran (A residential home for
intellectually disabled children and adults)92 and some reports of civil society. Courts have
also taken suo moto cognizance of news reports93and investigated the situation of homes
for children particularly those with intellectual disabilities. These PILs and the consequent
reports of different human rights Commissions, High Court Committees and disability rights
91
NCPEDP-CBGA Document
Asha Kiran, founded in 1961, is located in Rohini, Delhi. The Asha Kiran complex is made up of six
institutions for intellectually disabled persons. These include homes for intellectually disabled
children - it is known to be the only such facility in northern India. Human rights violations have been
reported from this group of institutions since the 1990s. In 2009, based on the violations of children
and intellectually disabled adults in observation homes in Delhi and the high number of unexplained
deaths in the Asha Kiran home, Reena banerjee filed a PIL before the High Court of Delhi and was
later joined by Raj Hans Bansal, Chief Editor, Human Rights Observer.
93
On August 23, 2010 Mumbai Mirror reported that five children had died of malnourishment in a
home for children with intellectual disability in Maharashtra. Some were sexually abused and more
would have died if they had not been shifted because of the report. The High Court of Mumbai took
suo motu cognizance of this article and public interest litigation was initiated.The high Court
appointed a Co-Ordination Committee for Child Protection with Dr Asha Bajpai Amicus Curiae (friend
to the court) on this matter as the Chairperson. The committee visited 23 homes for children with
intellectual disability throughout the state of Maharashtra and submitted a report on the situation in
these homes.
92
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organizations have brought into focus gross human rights violations against children and
persons with disabilities.94 Uusually high number of deaths with little or no investigation or
accountability are cited on Reports. Thirty five (35) children with intellectual disabilities
died in two years in Maharashtra. “The Home is not held responsible and there is no
mechanism to ensure that the death was not due to preventable causes95. Thirty seven (37)
children died in one home of the Asha Kiran Complex in Delhi over a period of four years
(2004-2008)96. It has been reported that proper medical care and treatment could have
saved many lives. Furthermore, Post-Mortem was avoided in most cases, which goes against
the law of the land, as the concerned children were inmates living under government
custody.97
Medical negligence starvation and neglect, Sexual abuse situations of ill treatment and
torture abound in these homes. Underlying these are structural issues, unbearable living
conditions, lack of required records on children, untrained and underpaid staff, governance
issues with the lack of oversight and willful negligence from personnel who are charged with
protecting children in the system98. Lack of knowledge and understanding of the specific
requirements of children with disabilities, lack of individual care plans, no right to education,
negligible rehabilitation services, no support facilities for recreations and play and
vocational training or skill building activities characterise the majority of homes that have
been studied and visited in different states in the country. Instead “They live in the homes
worse than prisoner for rest of their life doing nothing constructive. They become sort of
free bonded labor of the home owners and been used practically for every purpose – some
are being used as house maid to daily labor in field owned by the home owners or the
94
See Report on the Conditions of the Homes for Children with Disability Within West Bengal, 2006,
Disability Activists Forum and also see Chauhan, Lost innocence!, Hindustan Times, Link –
http://www.hindustantimes.com/India-news/NewDelhi/Lost-innocence/Article1-346535.aspx
Chetan Chauhan, Hindustan Times (Chauhan, 2008)
95
Executive summary of status report of homes for mentally deficient children in Maharashtra,
Author The Maharashtra State Coordination Committee for Child Protection appointed by the
Bombay High Court, July 2011 pg 20
96
Report received in response to RTI enquiry vide letter no. 40/RTI/2/DD(FAS)/DSW/2008/8084 dated
10/08/08
97
A Report on the Visit (1.02.2010) of Asha Kiran Complex, Delhi Commission for Protection of Child
rights, Government of N.C.T of Delhi
98
See Page 21-22, Executive Summary of Status Report of Homes for Mentally Deficient Children in
Maharashtra, The Maharashtra State Coordination Committee for Child Protection appointed by the
Bombay High Court, July 2011
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club/society”.99 Reports point to the large number of residents who enter homes (for
children with mental disability) as children become adults but continue to live in the same
way in the same home often for the rest of their lives. This even though many residents in
these homes are capable of self care and independent living100 The state has no plan in
place for their growth and development and finally for their reintegration in society.
RECOMMENDATIONS
1. Make necessary amendments in existing child laws to not only include children with
disabilities but also ensure accessibility and accommodation for all services and
support.
2. Disability laws should have stringent provisions to ensure right to protection from
abuse, exploitation and neglect of children with disabilities.
3. Children with disabilities need to be included in all relevant provisions and
programmes initiated by various Ministries. Data on beneficiaries with disabilities
needs to be maintained. Budget allocation for children with disabilities needs to be
part of each of these programmes.
4. Children with disabilities should be included during consultations with respect to
child rights. When preparing disability laws and policies, children should be included
as one of the key stakeholders.
5. Coordination between different relevant Ministries needs to be established.
99
See Footnote 32 & Report on the Conditions of the Homes for Children with Disability Within West
Bengal, 2006, Disability Activists Forum; See also Executive Summary of Status Report of Homes for
Mentally Deficient Children in Maharashtra, The Maharashtra State Coordination Committee for
Child Protection appointed by the Bombay High Court, July 2011; A Report on the Visit of Asha Kiran
Complex, Delhi Commission for the Protection of Child Rights, 2010; A Monitoring Report on the
Functioning of the Govt.-run- Home for Mentally Retarded persons (Including Children) in Asha
Kiran Complex, Avantika, Delhi submitted by the National Commission for the Protection of Child
Rights;
100
(For example in Maharashtra, “according to data provided by Superintendents, 59% of the
children in Homes across the state are capable of self-care and independent living.” - Executive
Summary of Status Report of Homes for Mentally Deficient Children in Maharashtra, The
Maharashtra State Coordination Committee for Child Protection appointed by the Bombay High
Court, July 2011; Once children are sent to a home there is no plan to enable them to leave the
home at the age of 18 and reintegrate into society. No plans are in place to relocate inmates into
another facility when they reach adulthood. - Report on the Conditions of the Homes for Children
with Disability Within West Bengal, 2006, Disability Activists Forum.
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6. Curriculum of disability professionals, health professionals, mental health
professionals, social workers and teachers need to include concerns of children and
adolescents with disabilities. Government needs to support NGOs and schools
working with children to include children with disabilities in their programmes.
7. Child friendly and disabled-friendly redress mechanism to be established at various
levels by the Government, private and NGO sectors.
8. Programmes for raising awareness amongst children, parents, teachers, community
workers, professionals, etc. on rights of children with disabilities needs to be
initiated at local, District, State and National levels by Ministry of Information and
Broadcasting through various mediums.
9. All programs must hold Inclusion as a key principle, in line with the UN CRPD.
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Article 8

States Parties undertake to adopt immediate, effective and appropriate measures:
a. To raise awareness throughout society, including at the family level,
regarding persons with disabilities, and to foster respect for the rights and
dignity of persons with disabilities;
b. To combat stereotypes, prejudices and harmful practices relating to persons
with disabilities, including those based on sex and age, in all areas of life;
c. To promote awareness of the capabilities and contributions of persons with
disabilities.

Measures to this end include:

Initiating and maintaining effective public awareness campaigns designed:

To nurture receptiveness to the rights of persons with disabilities;

To promote positive perceptions and greater social awareness
towards persons with disabilities;

To promote recognition of the skills, merits and abilities of persons
with disabilities, and of their contributions to the workplace and the
labour market;

Fostering at all levels of the education system, including in all children from
an early age, an attitude of respect for the rights of persons with disabilities;

Encouraging all organs of the media to portray persons with disabilities in a
manner consistent with the purpose of the present Convention;

Promoting
awareness-training
programmes
regarding
persons
with
disabilities and the rights of persons with disabilities.
Survey Results
The results with respect to the efforts made by the Government to create awareness
amongst persons with disabilities, their families and the society at large about disability
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rights, show that about 88% of the respondents are dissatisfied. The results of the Survey
with respect to the efforts made by the Government to create awareness amongst
Government officials (central and local) showed 86% expressed dissatisfaction.
International Obligations
The UN Monitoring Committee encourages the State party launch public information
campaigns on the Convention ; take initiatives in relation to awareness-raising to transform
perception of persons with disabilities from welfarism to a positive image as rights holders.
In consultation with disabled persons’ organisations, take specific measures, including
awareness-raising campaigns, aimed at elimi;ating prejudices; to address negative
stereotypes and all practical impediments faced by persons with disabilities in relation to
adoption; disability education as a cross-cutting theme in university courses; training
programs on the UNCRPD for persons with disabilities and their representative organisation
in accessible formats and media; to encourage a culture of respect for those rights by means
of information, communication and education; inform especially those living in rural areas,
of their rights, specifically the right to receive minimum welfare subsidies and the right to
attend school; to focus on the dignity, capabilities and contributions to society of persons
with disabilities in such efforts; awareness in particular among the judiciary and the legal
profession, political parties, Parliament and Government officials, local officials; civil society,
and media.
Awareness raising in disability legislations
The Disability Act, 1995, mentions awareness creation, campaigns and information
dissemination only in relation to prevention and early detection of disabilities!
Although the new proposed Rights of Persons with Disabilities bill makes detailed provisions
regarding Awareness raising under Section 75, it does not prioritize these measures and
specify which measures have to be carried our immediately and which are progressively
applied.
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Efforts on Awareness Raising
The National Trust has organised 1084 training programmes in different States. National
Trust’s, ‘Badhte Kadam – Mobile Disability Awareness Expedition’, in the year 2009-10, 14
States of India in four different routes, covering 60 NGOs of National Trust were
covered. They created awareness on the CRPD, rights of persons with autism, cerebral palsy,
mental retardation and multiple disabilities. In the year 2010-11 29 states and 1 UT was
covered. Clearly this awareness programme has expanded geographically over 1 year. 101
They also have a helpline, ‘ABLINE’, for answering queries and counselling support
for people with disabilities and their families.102There is no data available on the number of
people who have been reached. Calendars’ are printed featuring persons with autism,
cerebral palsy, mental retardation and multiple disabilities. These diaries and calendar are
sent to Members of Parliament, Governors and Chief Ministers of every State besides their
stakeholders.103 The Rehabilitation Council of India (RCI), in collaboration with the Media
Lab Asia, has developed a national web portal, namely, ‘www.punarbhava.in’ on
disability. The portal is designed to provide all related information regarding different
disability issues at one platform. This purpose is to provide information to , professionals,
policy makers, students, parents, community workers, and other stakeholders about
disability sector on a regular basis.104 The site has about 1400 hits a day.
The Education Satellite Channel ‘NAVSHIKHAR’ has been set up at RCI Office in collaboration
with Indian Space & Research Organization (ISRO) and Media Lab Asia (MLA). More than 500
study centres/institutions have been connected through this station for the benefits of the
students, trainees and parents of the persons with disabilities. Live telecast/re-telecast of
recorded programme/teleconferencing is done on regular basis.105Around 200 centres
participate per programme benefitting around 4000 students / special educators (on an
101
Source: Annual Reports, National Trust 2009-10,2010-11
Source: Annual Report, Ministry of Social Justice and Empowerment, 2009-10.
103
Source: Annual Report National Trust 2011-12
104
Page 149, Annual Report, Ministry of Social Justice and Empowerment, 2009-10.
105
Page 148, Annual Report, Ministry of Social Justice and Empowerment, 2009-10.
102
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average 20 persons /centre) with the Inclusion of 200 centers all over India and 40 centers
in N-E region.106
According to the Annual Report of Ministry of Information and Broadcasting, the Ministry,
one of whose main role is information dissemination, launched a campaign based on the
advisories received from the MSJE, regarding implementation of the provisions of the CRPD.
The Report states, “Programme, highlighting provisions covered under Articles 8, 9, 21, 27
and 30 of the CRPD were broadcast creating social awareness on the issues of persons with
disabilities”.However, very few people in the country are aware of the CRPD, including those
involved in the sector.
BOX ITEM
“I am a District Committee Member of the National Trust and have been attending the
meetings regularly since the past 8 years, never has anyone mentioned/discussed anything
about UNCRPD. My region has been totally neglected of the same.”
- Rajni Bala, Himachal Pradesh, In response to the Survey Questionnaire of NCPEDP & DEOC.
The Office of the Registrar General and Census Commissioner, under the Ministry of Home
Affairs, organised trainings on the disability question in Population Census 2011, to the
enumerators and their trainers. It was a collaborative effort between the disability sector
and the Census Commission. NCPEDP developed the Training Module and trained the
National Trainers, Census Officials and select NGOs, who then trained the Trainers at the
State level and the enumerators. NGOs and DPOs, particularly people with disabilities, were
actively involved in the training at the National, State and District level in many States. The
training at District and Village levels were conducted in the local language.
The training was done in a cascade manner, covering 90 National Trainer, 725 Master
Trainer Facilitators, 54000 Master Trainers and 27 lakh enumerators and supervisors. People
involved in the Census were mostly school teachers and public servants. Hence, this training
helped in sensitisation and awareness creation on disability issues in general throughout the
country.
106
medialabasia.in/download/brochure.pdf
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Posters and TV spots to highlight the importance of disability question in the Census were
also brought out by the Census Commission and aired on national channels during the
Census enumeration period.
BOX ITEM
“I am not sure if awareness has increased in the society. My family still does not take me to
any social functions because they have to face a lot of questions from our relatives. I am of
marriageable age and I don’t think they are thinking about my marriage. They are more
worried that my sister and my brother would have difficulty finding a life partner because of
my disability.”
-Geetha (name changed) from Tamil Nadu.
BOX ITEM
“I have Bipolar disorder from the year 1992. Till date, I do not know about any provisions,
which regards psychiatric illness/condition as a disability! Therefore, I have never accessed
any Governmental support regarding the same.”
-Response to the CRPD Questionnaire
The Central Board of Film Certification (CBFC) is a regulatory body under the Ministry of
Information and Broadcasting, Government of India. The Censor Board of India basically
censors and reviews movies, television programmes, television advertisements or any sort
of promotional materials.
The Cinematograph Act, 1952, Cinematograph (Certification) Rules promulgated in the year
1983 and the guidelines issued on December 6, 1991 under Section 5B of the
Cinematograph Act guides the Censor Board in the censorship of films. The Cinematograph
Act, 1952 does not specifically mention ‘portrayal of persons with disability’ as a criteria for
deciding the certification of the film for public viewing.107 However, the detailed
107
‘Harmonizing Laws with the UNCRPD – Human Rights Law Network, Deaf Way and NAD’, Edited
by Dr. Amita Dhanda and Rajive Raturi, May 2010.
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Guidelines for Certification of Films, issued in 1991, states that a film shall not be certified
for public exhibition, if, in the opinion of the authority competent to grant the certificate,
the film or any part of it is “showing abuse or ridicule of physically and mentally
handicapped persons”.108
A redress body, Broadcast Content Complaints Council (BCCC), has been established to selfregulate the content of all non-news TV channels in India on 1st June 2011. It will regulate
the 550 Indian general entertainment television channels, children’s television and special
interest channels, to prevent the broadcast of vulgar or offensive content, and provide a
mechanism of redress for public complaints. The guidelines now divide India’s broadcast
content into two categories. ‘G’ stands for content suitable for unrestricted viewing or
under parental guidance, while the second category, ‘R’ is for restricted content to be aired
after 11pm and before 5am.
Resources
In the 2009-10 the national Trust spent Rs 11,08440 towards community awareness through
its registered NGO’s.109In 2010-11 spent Rs 65,54289110 and in 2011-12 spent Rs 40,55142111
towards Badhte Kadam. The amount spent on community awareness by NGO’s could not
captured.
Recommendations
1. Disability laws should mandate relevant stakeholders, including the judiciary and the
private sector, to undertake awareness programmes on disability etiquette, issues
and rights.
2. Stronger legislation for Censor Board to ensure that negative, stereotypical and
misleading information about disability is not given by the films.
3. Each concerned Ministry should allocate a part of their Budget for awareness
creation for disability related information dissemination.
108
Accessed at http://www.indianetzone.com/8/central_board_film_certification_%28cbfc%29.htm
on 10th October 2011.
109
National Trust annual Report 2009-10
110
National Trust Annual Report 2010-11page 105
111
National Trust Annual Report 2011-12 page 106
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4. Awareness programmes should be planned and budgets allocated at Village, District,
State and National levels, so that persons with disabilities are aware of their rights
and know where to go in case of complaints.
5. Relevant bodies that make curriculum for school education should include age
appropriate information about disability, which could include stories of successful
people with disabilities, information about rights, etc.
6. Curriculum of professional courses and services should include disability issues (for
journalists, doctors, architects, film makers, Government officers, social workers,
customer support, security guards, etc.)
7. Disability studies should be introduced as a separate course in various Universities.
8. People with disabilities should use media to spread awareness on various issues that
concern them. Leadership training programmes for persons with disabilities can
include this aspect in the trainings.
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Article 9: Accessibility
1. To enable persons with disabilities to live independently and participate fully in all
aspects of life, States Parties shall take appropriate measures to ensure to persons
with disabilities access, on an equal basis with others, to the physical environment,
to transportation, to information and communications, including information and
communications technologies and systems, and to other facilities and services open
or provided to the public, both in urban and in rural areas. These measures, which
shall include the identification and elimination of obstacles and barriers to
accessibility, shall apply to, inter alia:
(a) Buildings, roads, transportation and other indoor and outdoor facilities, including
schools, housing, medical facilities and workplaces;
(b) Information, communications and other services, including electronic services
and emergency services.
2. States Parties shall also take appropriate measures:
(a) To develop, promulgate and monitor the implementation of minimum standards
and guidelines for the accessibility of facilities and services open or provided to
the public;
(b) To ensure that private entities that offer facilities and services which are open or
provided to the public take into account all aspects of accessibility for persons
with disabilities;
(c) To provide training for stakeholders on accessibility issues facing persons with
disabilities;
(d) To provide in buildings and other facilities open to the public signage in Braille
and in easy to read and understand forms;
(e) To provide forms of live assistance and intermediaries, including guides, readers
and professional sign language interpreters, to facilitate accessibility to buildings
and other facilities open to the public;
(f) To promote other appropriate forms of assistance and support to persons with
disabilities to ensure their access to information;
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(g) To promote access for persons with disabilities to new information and
communications technologies and systems, including the Internet;
(h) To promote the design, development, production and distribution of accessible
information and communications technologies and systems at an early stage, so
that these technologies and systems become accessible at minimum cost.
NCEPDP and DEOC survey findings
The NCEPDP and DEOC survey of 2011112 polling opinions persons with disabilities,
evaluating the satisfaction level of the efforts made by the government to promote various
elements of accessibility, ranging from built environment, transportation, services,
information, ICT, consumer goods and assistive devices revealed that merely 4% - 15%
respondent were satisfied. The rest of the respondents were dissatisfied or extremely
dissatisfied by the government’s efforts.
Constitutional guarantees
Article 15 (2) of the Constitution prohibits discrimination on the basis of disability to access
public services and facilities that are open to the public maintained partly of wholly by state
funds. While it does not specifically talk about accessibility but accessibility is a presumption
for persons with disabilities to gain access to public services and facilities, thereby granting
persons with disabilities their constitutional right.
International obligations
The Committee recommends that sufficient resources be allocated to ensure monitoring
and implementation of the Disability Standards and requirements
113;
develop an
overarching inclusive approach to accessibility; decreasing and meeting the timelines (114);
establish a monitoring mechanism involving DPOs; penalties for non-compliance; Adopt an
action plan which is compliant with the CRPD; bring focus to rural areas (El Salvador
115);Modification
of all infrastructure and buildings116; guarantees from private sector117;
112
See NCPEDP & DEOC (2012), Draft CRPD – Key issues in India, (Page 61)
CRPD/C/AUS/CO/1
114
CRPD/C/AUT/CO/1, CRPD/C/HUN/CO/1
115
CRPD/C/SLV/CO/1
113
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overhauling the transport system; a legal oversight framework
118;
aligning federal and
provincial legislations to comply with the CRPD119; universal application of national
standards; international co-operation and awareness raising.
The Union Cabinet approved the proposal that India both sign and ratify the Marrakesh
Treaty to Facilitate Access to Published Works 120 for persons who are blind, visually
impaired, or otherwise print disabled. The treaty was adopted in November of 2013.
Right to Accessibility in disability legislations
The Persons with Disabilities Act 1995
121
covers issues of accessibility122 , but has many
lacunae that have resulted in inadequate results in promoting accessibility. Some major
issues of concern are123 - the chapter addresses only physical accessibility and
transportation and not information and communication or accessibility to services and
facilities. Also the Act is applicable to public buildings but it is unclear what a ‘public building
is’ and therefore has been applicable to only government owned buildings.
The focus of the Act is only on urban physical environments while more that 70% of Indian
population lives in rural India. Also accessibility for persons with disabilities is dependent on
the economic capacity provision without a requirement of provision of minimum
requirements or reasonable accommodation.
Additionally, since the present legal system does not apply to the private sector there is no
mandatory requirement for services and facilities privately provided to be accessible to
persons with disabilities, that excludes persons with disabilities in participating on an equal
basis with others from a large part of community life. Also there is presently no requirement
for providing reasonable accommodation to ensure non-discrimination.
116
CRPD/C/CHN/Q/1
CRPD/C/ARG/CO/1
118
CRPD/C/PRY/CO/1
119
CRPD/C/ARG/CO/1
120
http://www.thehindu.com/books/miracle-at-marrakesh-to-help-visually-impairedread/article4864281.ece accessed online on 20th November 2013
121
Persons with Disabilities Act (Chapter VIII) http://socialjustice.nic.in/pwdact1995.php?pageid=17
Accessed on December 27, 2012
122
Chapter 8 on Non Discrimination
123
See The World Bank Report (2009), People with Disabilities in India – From Commitment to
outcome, (Page 143)
117
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Other disability legislations have not considered accessibility issues, though Mental health
Act 1987 through the Ministry of Health and Family Welfare has provided for the creation,
licensing and regulation of mental institutions. A variety of small and big private mental
institutions, notching upto over 500 approximately, are found in the country. No guidelines
exist on accessibility features of these institutions nor is there any available data whether
audits are being done on this feature. The new proposed Mental Health Care Bill of 2013
which, if passed by the Parliament, will over ride the MHA of 1987, also does not provide for
accessibility conditions for the large infrastructure held by MOHFW in different states.
Similarly, other legislations such as the National Trust Act and RCI, which have a number of
institutions registered under them, do not mention accessibility.
Under the new proposed legislation, Rights of persons with Disabilities Bill of 2013, a
National Institute of Universal Design has been provided for, which will have the vision of
‘making this nation universally accessible and paving the way to equal access, upholding the
principles of Indian Constitution and UNHCR’.
Section 77 of the new proposed Bill obligates the National Disability Rights Authority to
formulate regulations for ensuring accessibility in the physical environment. Section 77(2)
also lays down certain applicable subjects while ensuring such accessibility. However, the
Bill does not mandate the NDRA to ensure that all public buildings and other facilities have
signage in Braille and live assistance with sign language interpreters etc., as prescribed
under Article 9(2)(d) and (e) of the CRPD. Ensuring that such measures are undertaken
cannot be left as implied under the Bill. Since the CRPD lays down certain minimum
requirements that promote accessibility, these requirements need to find express mention
under the Bill.
During the reporting year of 2011-2012, Office of Chief Commissioner of Persons with
Disabilities conducted access audit of Safdarjung Hospital, Anand Vihar Bus Terminal and LIC
Building, Laxmi Nagar and recommended necessary modifications to the concerned
authorities. CCPD also passed an order directing Superintending Engineer (M-23), Public
Works Department, Delhi to make building of Directorate of 10 | Annual Report 2011—12
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Training, UTCS, Govt. of NCT of Delhi accessible to PwDs. However this effort by the CCPD’s
office was restricted to Delhi alone124.
Accessibility in Urban Development
There is a rapid increase in the infrastructure of the country, may it be physical
infrastructure, ICT or the availability of goods and facilities at large. This is evident from the
select indicators from the data provided by the World Bank125 that shows that the number
of Internet users per 100 people has increased from 4.4 in 2008 to 10.1 in 2011, number of
mobile phone subscribers per 100 has increased from 29 in 2008 to 72 in 2011. Also the
export of goods and services as a percentage of GDP was 20 in 2008 and has increased to 25
in 2011.
The Ministry of Urban Development formed a committee in 2009 to harmonize and update
the accessibility design guidelines and minimum requirements but even in three years, the
task has not got completed.126 For built up environments, the Ministry of Urban
Development recognizes that the country has several accessibility guidelines developed by
various non government organizations, with different dimensional requirements, thus,
confusing the architects and other associated professionals and leading to poorly designed
infrastructures.
As a basic step to ensure that all new construction is accessible it is important that Building
Bylaws of all States and Union Territories (UT) in the country adopt minimum accessibility
standards. According to the Action Plan for implementation of action points by the Ministry
of Urban Development127, only 16 out of 35 States and UT in the country have adopted
accessibility requirements, but the requirements adopted are not uniform or based on
national minimum requirements.
124
http://www.ccdisabilities.nic.in/content/en/docs/AR12E.pdf Annual Report, Office of the Chief
Commissioner of persons with disabilities, New Delhi, Page 9.
125
World Bank Data – India, accessed at http://data.worldbank.org/country/india, accessed on
March 2, 2013
126
Implementation for identification of Action Points by the Ministry of Urban Development
Accessed at, http://urbanindia.nic.in/programme/ud/actionplan_barrierfree.PDF, page 3, on
December 27, 2012
127
Accessed at, http://urbanindia.nic.in/programme/ud/actionplan_barrierfree.PDF, pdf page, on
12th October 2012
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There is poor awareness and understanding of accessibility amongst designers, architects,
policy makers and service providers. In a survey undertaken on practicing architects in 2008
revealed that only 11% of the architects surveyed were aware of availability of any
accessibility guidelines present in India128. Also accessibility requirements of persons with
disabilities and universal design are not a core requirement in the curriculum of various
professional courses such as architects, civil engineers, automobile designer, etc.
As a basic step to ensure that all new construction is accessible it is important that Building
Bylaws of all States and Union Territories (UT) in the country adopt minimum accessibility
standards. According to the Action Plan for implementation of action points by the Ministry
of Urban Development129, only 16 out of 35 States and UT in the country have adopted
accessibility requirements, but the requirements adopted are not uniform or based on
national minimum requirements.
Directorate General of Civil Aviation (DGCA) issued a Civil Aviation Requirement (CAR)
Section 3, Air Transport, Series M, Part 1 dated 1st May 2008 regarding carriage by air of
persons with disabilities and/or persons with reduced mobility130. But discrimination against
people with disabilities has continued. Following protest and advocacy by DPO’s, the
Ministry of Civil Aviation has constituted a committee with participation of civil society to
review the existing CAR. A report has been finalized, Action on the implementation of the
report is awaited.
Indian Sign Language Research & Training Centre (ISLRTC) has been set up in Delhi in 2011
by the government.
The Government has adopted the Web Content Accessibility Guidelines (WCAG 2.0) as the
standard for making all Government websites accessible and very few websites of the
128
See The World Bank Report (2009), People with Disabilities in India – From Commitment to
outcome, (Page 145 & 146)
129
Ministry of Urban Development Action Plan for Implementation of Action points, accessed at,
http://urbanindia.nic.in/programme/ud/actionplan_barrierfree.PDF, (Annexure B Page 12) , on
December 27, 2012
130
Civil Aviation Requirements, Section 3 Ait Transport Series ‘M’ Part 1 issued by the Office of
Director General Civil Aviation, Subject – Carriage by air of persons with disabilities and/or persons
with reduced mobility, Accessed at http://dgca.nic.in/cars/d3m-m1.pdf, January 1, 2012
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Government have also been made compliant.131 There is no requirement yet for websites
operated by private service providers to be accessible, because of which a large number of
important service providing websites such as websites of banks, airlines, online retail etc.
remain inaccessible.
A good breakthrough has been the recognition of the electronic accessibility and reasonable
accommodation for persons with disabilities by the Parliamentary standing committee for
the Electronic Delivery of Services Bill132 after advocacy initiatives by several DPO. This Bill, if
passed, will be a welcome precedent for the disability sector to replicate in other legislations.
-- Amba Salalkar, Inclusive Planet
The Reserve Bank of India, India‘s Central Bank, issued a Circular on 4th June 2008 titled
Banking facility to visual impairments.133 It states, ―Banks are advised to ensure that all the
banking facilities such as cheque book facility including third party cheques, ATM facility,
Net banking facility, locker facility, retail loans, credit cards etc. are invariably offered to the
visually challenged without any discrimination. Banks may also advise their branches to
render all possible assistance to the visually challenged for availing the various banking
facilities. The circular is applicable to all Scheduled Commercial Banks (excluding Regional
Rural Banks (RRBs)). The banking rules set by the Reserve Bank of India (RBI) still remain
discriminatory to some persons with disabilities not allowing them to open an account 134 135
136.
131
Guidelines for Indian Government Websites, Compliant websites, accessed at
http://web.guidelines.gov.in/compliantwebsites.php, www page, on December 27, 2012.
132
Electronic Accessibility and Reasonable Accommodation Breakthrough in India, a blog post
accessed at http://inclusiveplanet.org.in/content/electronic-accessibility-and-reasonableaccommodation-breakthrough-india-0, on January 1, 2013
133
Circular by the Reserve Bank of India, RBI / 2007-08 / 358 DBOD.No.Leg BC. 91 /09.07.005/200708, accessed at http://rbi.org.in/scripts/NotificationUser.aspx?Id=4226&Mode=0, accessed on
December 27, 2012
134
No bank account for people with disabilities, news link accessed at,
http://www.thehindu.com/news/states/tamil-nadu/no-bank-account-for-people-withdisabilities/article4181736.ece, on December 28, 2012
135
RBI Circular accessed at, http://rbi.org.in/scripts/BS_CircularIndexDisplay.aspx?Id=3965, on
December 28, 2012
136
Reaching ATM an uphill task for disabled, news link accessed at
http://articles.timesofindia.indiatimes.com/2012-12-10/chennai/35725613_1_disabled-people-atmpin-rbi-instructions on January 1, 2013
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Furthermore the new currency and coins made by the RBI is difficult for persons with vision
impairments to distinguish. The bank branches remain inaccessible throughout the country
and for ATM facilities, ramps have been provided in a handful of places but it remains
largely inaccessible.
“India used to have accessible coins and currency however, over time, with modernisation,
India now has undistinguishable coins making them inaccessible to persons with disabilities.”
-Kanchan Pamnani, Lawyer
Inter- sectoral compliances
Provision of accessibility is not a mandatory design requirement for various policies,
guidelines, schemes and programmes that are undertaken by the different Ministries. If we
look at Jawaharlal Nehru National Urban Renewal Mission (JNNURM)137, the flagship city
modernization programme under the Ministry of Urban Development, it does not provide a
mandate on accessibility in infrastructure development projects. As a result all new
infrastructure that includes public transport, sanitation facilities, development of slums etc.
do not provide accessibility for use by disabled people. Needless to say all that National
policies such as the National Urban Sanitation Policy138 and National Urban Transport
Policy139 do not specifically recognize the accessibility requirements to enable persons with
disabilities to benefit from them.
Till date there has never been any emphases given by any of the five year plans to enable
inclusion of disabled people in using the road transport comfortably. As a result there is zero
number inter state buses that are accessible for persons with disabilities. Further in most
States, Government buses do not ply in the interior areas - districts and villages. It has been
given to private operators. In general, they do not follow any rules and when it comes to
137
Jawaharlal Nehru Urban National Urban Renewal Mission overview, published by the Ministry of
Urban Development and the Ministry of Urban Employment and Poverty Alleviation, accessed at,
http://jnnurm.nic.in/wp-content/uploads/2011/01/PMSpeechOverviewE.pdf, pdf page, 12th October
2012
138
National Urban Sanitation Policy, published by the Ministry of Urban Development, accessed at,
http://www.urbanindia.nic.in/programme/uwss/NUSP.pdf, accessed on 12th October 2012
139
National Urban Transport Policy, published by the Ministry of Urban Development, accessed at,
http://www.urbanindia.nic.in/policies/TransportPolicy.pdf, on December 27, 2012
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people with disabilities, most of them are just not cooperative. They refuse carrying them,
they do not stop the bus when they see a person with disability in the bus stop or charge
extra money from them and are abusive.
There have been some measures taken by Railways and the airways to make travel by
persons with disabilities more comfortable. There have been no measures whatsoever
taken until now to make long distance surface transport more accessible to persons with
disabilities.
The Indian Railways has been giving considerable concession for persons with disabilities
and their escorts140 to travel by train. But the trains and the railway stations remain
inaccessible. In response to the disabled passengers demand to improve accessibility, from
2002 onwards the railways has progressively provided 2100 separate coaches specially
designed for passengers with disabilities.141 Even after the ratification of the UNCRPD as is
evident from the Eleventh five year plan document142, the Ministry of Railways continues to
follow a policy of having special coaches for passengers with disabilities rather than having a
plan towards providing basic accessibility in all coaches progressively.
Further The Eleventh five-year plan document talks about 22 stations to be renovated to
become World Class Stations. An access audit of two of the renovated stations revealed that
they continue to be inaccessible for persons with disabilities example the main entrance for
the New Delhi Railway Station while it has a ramp but is kept blocked by barricades forcing
people with disabilities to use an alternate side entrance, which is difficult to find because of
lack of signage. The railways have tried to provide accessibility to disabled passengers, but
they do not have any minimum accessibility standards or design guidelines to follow that
seem to be detrimental to providing accessibility and also incorrect utilization of funds.
140
Facilities for handicapped persons for train reservation, accessed at
http://www.indianrailways.gov.in/railwayboard/uploads/directorate/establishment/ENGII/pt1_5.pdf (page 2), accessed on January 29, 2013
141
Railways provide facilities for disabled, news link, accessed at, http://www.disabledworld.com/news/asia/india/railway-facilities.php, 11th October, 2012
142
The Eleventh Five Year Plan, Volume 3, Planning Commission (page 288), Accessed at,
http://planningcommission.nic.in/plans/planrel/fiveyr/11th/11_v3/11th_vol3.pdf, pdf page, on
December 27, 2012
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For example the railways has sanctioned money for providing escalators for inter platform
transfers for disabled passengers143 without recognizing the fact that people with physical
impairments are not able to use escalators.
There are 125 airports managed by the Airport Authority of India. As per their annual report
for the year 2011-12 they have provided a number accessibility provision at the airports.144
A Supreme court case Javed Abidi vs Union of India & ors on December 17, 1998145 directed
the airlines to provide ambulift and aisle chairs to passengers with disabilities. Even after 14
years of the judgement there are still cases reported where ambulifts have not been
provided to the passengers.146 147
There are several instances that are reported by persons with disabilities who were denied
carriage because of their disability. In order to curb instances like these and for ensuring
that services are provided to persons with disabilities, the office of Director General Civil
Aviation introduced a policy pertaining to Carriage of persons with reduced mobility in 2008.
Cases of discrimination continue to happen inspite of the policy.
BOX ITEM
“Jeeja Ghosh, who was forcibly deplaned from a Goa-bound SpiceJet flight from Kolkata in
February because she suffered from cerebral palsy and made to miss an international
143
Railways to install escalators at 100 stations, news link accessed at,
http://www.indianexpress.com/news/railways-to-install-escalators-in-100-stations/413006/, www
page, on 11th October 2012
144
17th Annual Report 2011-12, Airport Authority of India, access at
http://www.aai.aero/public_notices/aaisite_test/AAI_Annual_report_2012_Eng_11jan13.pdf (Page
13). Accessed on January 29, 2013
145
Javed Abidi vs Union Of India & Ors on 17 December, 1998, accessed at
http://www.indiankanoon.org/doc/1962463/ viewed in January 29, 2013
146
Rajiv Rajan denied ambulift facility at the airport, news link accessed at
http://ibnlive.in.com/news/rajiv-rajan-denied-ambulift-facility-at-airport/177775-60.html, accessed
on January 29, 2013
147
Harrowing Flight for UN Rapporteur on Disability, news link accessed at
http://www.thehindu.com/news/national/harrowing-flight-for-un-rapporteur-ondisability/article3433534.ece on January 29, 2013
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conference, on Wednesday took her fight to the Supreme Court alleging discriminatory
treatment to disabled by airlines” 148….
In 2009, the Government adopted the Web Content Accessibility Guidelines (WCAG 2.0) as
the standard for making all Government websites accessible. A recent study ‘Accessibility of
Government websites in India – a report’149 published in 2012 shows very poor
implementation of these guidelines and states that out of the total of 7800 government
websites that were tested for accessibility, 1985 websites failed to open and the remaining
5815 websites had some accessibility barriers. There is no mandatory requirement for
private service providers to ensure that their websites are accessible.
In a public interest litigation at the Delhi High court, National Association of the Deaf vs UoI
& ors on November 24, 2011150, the petitioner demanded for the availability of sign
language interpreters at various public places, vocational training centres and employment
exchanges etc. They also demanded for creation of a larger pool of interpreters by
establishing centres for training in sign language interpretation. The respondent – Ministry
of Social Justice and Empowerment has been directed to undertake a study to ascertain the
requirement of interpreters at various areas specified by the petitioner and to put up the
results to various ministries/departments/officials for the creation of posts for interpreters.
There has been no further action on the appointment of sign language interpreters in public
places since. Whenever appointments of sign language interpreters are announced, there
would be a severe shortage of trained sign language interpreters and also unavailability in
many geographic locations as in country with 18 million hearing impaired people but only
250 certified interpreters151.
148
Cerebral Palsy afflicted woman moves Supreme court, demands compensation from SpiceJet,
news link accessed at http://articles.timesofindia.indiatimes.com/2012-0405/india/31293874_1_spicejet-flight-disabled-people-persons, on January 1, 2013
149
Accessibility of Government Websites in India a Report accessed at http://cisindia.org/accessibility/accessibility-of-govt-websites.pdf on December 29, 2012
150
National Association of the Deaf vs UoI & ors on November 24, 2011 accessed at
http://www.indiankanoon.org/doc/143093158/, accessed on January 30, 2013
151
Need interpreters for hearing impaired at public places: HC, news link accessed at,
http://www.indianexpress.com/news/need-interpreters-for-hearing-impaired-at-public-placeshc/880608/, on December 27, 2012
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There are several barriers for people with disabilities for using the various consumer goods
available in the market. For example, visually impaired persons have difficulty operating an
oven or a washing machine; a person with hand function impairment finds it difficult to
open a door latch; a person with hearing impairment has difficulty knowing when the door
bell/alarm system is ringing etc. There are a few products that are available like talking
watches, calculators etc. The Ministry of Consumer Affairs, under which is the Bureau of
Indian Standards, has not done much in the area of promoting the concept of universal
design in designing goods.
Resources
It is evident that for realization of Article 9, Indian government must show evidence of
action through budget allocation, utilization, and upgrading available allocations. Such
financing for accessibility will consider geographic coverage, coverage inter sectorally across
all departments, and provide ample funding for R&D. A systemic approach to ensuring the
right to accessibility will be required emanating from the centre and going outward towards
the states, involving a wide range of consultative processes, people with disabilities and
professionals, and concrete actions.
But there seem to be no systemic approach towards resource allocations by any of the
Ministry towards improving accessibility. The exiting development programmes such as the
JnNURM, that have a major impact on infrastructure development across the country do not
mandate accessibility because of which the money being spent by the government
continues to create more barriers for persons with disabilities rather than foster
accessibility.
Under the Scheme for the Implementation of the PWD Act 1995 (SIPDA) in the financial year
2010-11152, the MSJE spent Rupees 37.4 corers (USD 6,800,600) for improving physical
accessibility of public buildings including universities across the country. Majority of the
funds were used to install lifts, build ramps and to create accessible toilets. Additionally 0.05
corers (USD 9000) were spent for making websites accessible.
152
Annual Report of MSJE Accessed at http://socialjustice.nic.in/pdf/ar11eng.pdf on December 31,
2012
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The Indian Railways in the Eleventh Five Year Plan (2007 – 2012) on India talks about 22
stations to be renovated to become World Class Stations. An access audit of two of the
renovated stations revealed that they continue to be inaccessible for persons with
disabilities. The railways have tried to provide accessibility to disabled passengers, but they
do not have any minimum accessibility standards to follow, which seem to be detrimental to
providing accessibility and also incorrect utilization of funds.143 above
Till date there has never been any emphasis given by any of the five-year plans and
subsequently the budget to enable inclusion of disabled people in using the road transport
comfortably. As a result there is zero number inter-state buses that are accessible for
persons with disabilities.
There is no resource allocation for the creation of accessibility standards and for
undertaking regional research for inaccessible environments that are specific to India and
solutions of which cannot be replicated from the West, for example accessibility in rural
India, hilly, coastal and difficult terrain etc. The XI five year plan (2007 – 2012) has also
earmarked funds for the creation of a National Institute for Universal Design and Barrier
Free Environment, that apart from other activities is envisaged to take up research 153 on
various issues pertaining to accessibility. At the end of 2012, there are no signs of the
institute taking shape.
9.21
The MSJE has mentioned in their Status Report that a National Captioning Centre
was to be set up to provide sub-titling and captioning services, but that plan was not backed
financially in the Eleventh Five Year Plan. As a result, it has not been set up yet.154
Recommendations

While the government is in the process of amending the Persons with Disabilities Act
1995 and has proposed to come out with an alternate Act, it is recommended that
the government fast tracks the process and ensure that provision of accessibility are
provided as per the UNCRPD.
153
Press release by the Ministry of Social Justice and Empowerment, accessed at
http://pibmumbai.gov.in/scripts/detail.asp?releaseId=E2010PR1958. On December 28, 2012
154
Status Paper, Working Group on Empowerment of Persons with Disabilities for formulation of XII
Plan (2012-17), 2011.
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
The Ministry of Urban Development must ensure that minimum accessibility
standards for physical environments with uniform design guidelines are drafted
immediately and then ensure that all the 35 States and UT in India adopt these in
their building bylaws. The ministry must also strictly monitor the implementation of
these standards with the assistance of State departments. Persons with disabilities
must be included in developing the standards.

There must be an emphases laid on research along with resource allocation to
undertake it, of locally suitable solutions and the provision of accessibility in rural,
challenging environments and transport systems throughout the country. Persons
with disabilities must be involved in this process. National Centre for Universal
Design and Barrier Free Environments must be set up as soon as possible.

Concerned ministries must ensure that course curriculums of students of architects,
engineers, designers, planners and service professionals, medical etc. must include
accessibility of persons with disabilities and universal design as a core subject. There
must be awareness raising and orientation programmes organised for on job
professionals from these fields.

The government must have regular public interest audio, visual and print
announcements stating accessibility for persons with disabilities as mandatory for all
providing any service of facility to the public. There must be large awareness building
campaigns undertaken by relevant ministries to educate service and facility
providers under them on what making the service or facility accessible to all people
with disabilities mean and what reasonable accommodations may be provided. The
service and facility licensing criteria by the government must require provision of
accessibility and sensitization trainings of staff.

All Ministries must amend all their programmes and schemes pertaining to all
infrastructure development to ensure that accessibility in built in them. Especially
the 26 Ministries identified by the MSJE that are concerned with the Persons with
disabilities Act 1995 must take immediate action in this regard.

There must be accountability built into the monitoring and procurement system of
all infrastructure development projects to ensure that any public money spent
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
addresses accessibility for persons with disabilities as a basic requirement. This must
also include money loans and grants from international agencies for infrastructure
development in India.

Ministry of Railways must change its approach from exclusion to inclusion of persons
with disabilities in the way they provide their service. The must create standards for
coach accessibility with involvement of disabled people. All new coaches must be
universally designed and accessible to disabled persons. Additionally they prepare a
timed plan with budgeting to progressively make the existing rolling stock accessible.
For railway stations the Ministry of Railways must make train station accessibility
standards with involvement of disabled people. Additionally they must prepare a
timed plan with budgeting to progressively make all stations accessible, including
smaller stations in the villages to promote rural accessibility.

In an effort to provide a seamless travel opportunity for passengers with disabilities
by interstate bus travel, the Ministry of Surface Transport must make bus station
accessibility standards as well as bus accessibility standards with involvement of
disabled people. Additionally they must prepare a timed plan with budgeting to
progressively make all bus stations accessible, including smaller stations in the
villages to promote rural accessibility. Also progressively at least 5% of all buses
running in the State Run Transport undertakings must be made accessible. All major
mid points where the buses halt for refreshments must also be made accessible for
passengers with disabilities.

Ministry of Civil Aviation must amend its present policy on carriage of disabled
persons based on the draft policy submitted by the committee. All airlines must
ensure compliance to the policy.

Government must ensure that all private taxi service (Easy Cab, Citi Taxi, Meru cabs
etc.) mandatorily have some taxis that are accessible that are made available to
passengers with disabilities when required at no extra cost.

While the establishment of Indian Sign Language Research & Training Centre
(ISLRTC) is a commendable step taken by the government, but immediate action
must be taken by the government to appoint/make available sign language
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
interpreters in all public places irrespective of ownership. Considering there will be
an enormous number of interpreters required across the country, it may take years
to train adequate number of interpreters and also creating of a new post in all places
may not be economically viable; the government may create alternate plans to fulfil
its commitment to provide interpreters, such plans may include the government to
promote in service training of staff in basic sign language skill. 151 above

There must be an adequate budget allocation for the creation of the National
Captioning Center as proposed in the status report of MSJE.154 above

Web accessibility requirements must be extended to all facility and service providers
irrespective of its ownership, especially where there is important information shared
about the service, if the service is provided through e-commerce etc.

Banking services must be made accessible to all persons with disabilities without
discrimination. Reserve Bank of India must have appropriate rules/accessibility policy
to ensure accessibility to all persons with disabilities to the banking service which
includes opening and operating accounts, lockers etc., accessing bank branches and
ATM, access to online banking facility and easy use of currency. Strict action to be
taken against banks violating again accessibility policy.

All laws pertaining to provision on transport, information, communication,
technology, broadcasting, consumer goods, facilities and services, consumer rights
should clearly prescribe provision of accessibility for persons with disabilities.
Universal design should be promoted.
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Article 10: Right to Life
States Parties reaffirm that every human being has the inherent right to life and shall take all
necessary measures to ensure its effective enjoyment by persons with disabilities on equal
basis with others.
International Obligations
The UNCRPD Committee has strongly urged the state parties to investigate into incidents of
abduction and private trade of boys with intellectual disabilities; providing remedies to the
victims;
address suicide risk; provide necessary mental treatment based on free and
informed consent of the person and counselling to these persons; and informed consent of
all persons with disabilities is secured on all matters relating to medical treatment,
especially the withdrawal of treatment, nutrition or other life support.
Constitutional safeguards and statutory provisions
Right to Life is sacrosanct to the Constitution of India, and has been provided for in Article
21: ‘No person shall be deprived of his life or personal liberty except according to procedure
established by law’. Right to Life has been interpreted widely by the Supreme Court, to
include right to dignity, free and compulsory education, right to privacy, right to healthy
environment, right to medical treatment, etc. These may be invoked in the case of persons
with disabilities.
The Indian Law Commission has noted that ‘While ‘Euthanasia’ is an act of any person,
including a doctor, of intentionally killing a person who is terminally ill by giving drugs,
‘Assisted Suicide’ is an act of the patient who receives the assistance of a doctor and takes a
drug with the intention of committing suicide. They are unlawful as held by our Supreme
Court in Gian Kaur vs. State of Punjab: 1996(2) SCC 648 155and will continue to be unlawful.
155
1996(2) SCC 648
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Right to life in disability legislations
This right is explicitly provided for only in the new Rights of persons with Disabilities Bill of
2013, being prepared for presentation in the Parliament in the winter of 2013.
Article 8, ‘Right to life includes the right to live with dignity, which includes but is not
limited to:
a. adequate nutrition, clothing and shelter;
b. access to facilities for reading, writing and expressing one-self in any form or
language whether written, spoken, unspoken, or sign language; and
c. freedom of movement, association, participation and living and sharing with other
persons and communities.
d. Opportunity to acquire personal, social, educational and vocational skills required to
function as a person with disability;
e. Right to legal capacity on all aspects of life on an equal basis with others and access
to any support or arrangements necessary for the exercise of legal capacity’
(3)
Any act or omission which damages or injures or interferes with the use of any limb
or faculty of a person with disabilities either permanently or even temporarily, will be
punishable under this Act.
In the new proposed Mental Health Care Bill, right to life has been put up under the Right to
freedom from cruel, inhuman degrading and torturous treatments, including Right to
nutritious food, clean environment, clothing, etc. No other provisions are included here on
health care or other safeguards during ‘emergency’ treatments such as electro convulsive
therapies, psychosurgery, etc. Liberal provisions are given for proxy consent under various
circumstances through substituted decision making by Nominated Representative.
BOX ITEM156
Data retrieved from the website of the Ministry of Health and Family Welfare shows these
comparative figures of deaths. [Note, deaths in the mental hospitals to be counted as
156
Public health statistics, Table 30: Statistics of Mental hospitals; Table 30.15: Number of cases and
deaths due to diseases.
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‘custodial deaths’ due to the nature of those hospitals, where admission and discharge are
involuntary] 157.
(2000) Deaths in case of Malaria: 2918 out of 8870507
(2000) Deaths in case of Diarrhoea: 931 out of 2031790
(2000) Deaths in mental hospital: 5176 out of 34653
Decriminalization of the Attempt to Commit Suicide:
The Mental Health Care Bill of 2013 in an ‘innovative’ attempt, decriminalizes the action of
attempted suicide, as a way to repeal the provision of IPC which criminalises the person who
has attempted suicide158. This has received approval from public at large159 . This provision
has been challenged by the women’s movement, as well as groups of persons with
psychosocial disabilities and allies. In the new legal environment, it is feared, a person who
has attempted suicide will be presumed, in law, to be “suffering from mental illness”. A
person who has attempted suicide, so presumed to be ‘mentally ill’, will be subject to
‘mental health treatment’ including loss of legal capacity, having decisions made by proxy
(Nominated Representative), and higher likelihood of forced treatment / institutionalisation.
The advocates argue that merely shifting the institutional ‘jurisdiction’ from prison to
mental asylum is not a gain in terms of human rights160.
157
The year 2000 is taken as reference as complete data is found in both the public health data, as
well as the mental hospital data.
158
The relevant provision reads:
“124. (1) Notwithstanding anything contained in section 309 of the Indian Penal Code,
any person who attempts to commit suicide shall be presumed, unless proved otherwise, to
be suffering from mental illness at the time of attempting suicide and shall not be liable to
punishment under the said section.
(2) The appropriate Government shall have a duty to provide care, treatment and
rehabilitation to a person, having mental illness and who attempted to commit suicide, to
reduce the risk of recurrence of attempt to commit suicide”.
159
http://articles.timesofindia.indiatimes.com/2012-09-17/india/33901600_1_suicide-attemptdecriminalize-attempt-suicidal-deaths
160
Inclusive Planet, Bapu Trust and others, ‘Letter to the Parliamentary Standing Committee’ on
Decriminalization of suicide in the Mental Health Care Bill of 2013, 30th September, 2013.
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Barriers to enjoyment of Right to Life
A National Human Rights Commission Report161 has shown that nearly all admissions into
mental hospitals are ‘voluntary admissions’. However, ‘voluntary admission’ here is taken to
signify Section 19 admissions under the MHA of 1987, wherein, without judicial review of
deprivation of liberty, a person may be directly admitted into a mental asylum with the
proxy consent of family members. The conflict of interest between family and person
charged with ‘mental illness’ is not given due recognition in law and consent obtained in this
way is treated as ‘voluntary admission’.
Recommendations
A special law for ‘mentally ill’ people will discriminate and create threat to Right to Life due
to core provisions being on forcible admission and treatment.
The State can take up the mandate of provision of community care and support, family
counseling, trauma counseling, suicide care centres and hotlines to assist persons in need
through a robust National Community Mental Health Policy, also in the making by the
MOHFW, under the aegis of ‘National Mental Health Task Force’.
Provision of right to health care can be provided in the Draft Rights of persons with
Disabilities Act, which is also in pendency with the Ministry of Social Justice and
Empowerment; as well as any other legislation that will cover the human rights and health
care rights of all persons with disabilities (e.g. Right to Health Care Bill also in pendency).
Every detainment in a custodial set up under the MHA must come under judicial review.
161
NHRC 2012, Care and Treatment in Mental Health Institutions–Some Glimpses in the Recent
Period, NHRC
http://nhrc.nic.in/Documents/Publications/Care_and_Mental_Health_2012.pdf; accessed on 26th
November 2013
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Article 11: Situations of Risk and Humanitarian Emergencies
States Parties shall take, in accordance with their obligations under international law,
including international humanitarian law and international human rights law, all necessary
measures to ensure the protection and safety of persons with disabilities in situations of risk,
including situations of armed conflict, humanitarian emergencies and the occurrence of
natural disasters.
NCPEDP & DEOC Survey Findings
As per NCPEDP-DEOC Survey, 95% respondents felt that nothing much was done by the
Government of India to provide protection and safety to persons with disabilities in
situations of risk, armed conflict and humanitarian emergencies.
International Obligations
The UNCRPD Monitoring Committee has called upon State parties to establish a nationally
consistent emergency management standards, that are implemented across all levels of
government; inclusivity across diverse disabilities; coverage of all phases of emergency
management; inclusion in National Plans through emergency response schemes for persons
with disabilities; to define a concrete role for organizations of persons with disabilities in the
design of the national civil protection system and to ensure that information on emergency
mechanisms is made available in accessible formats 162.
Statutory guarantees
Even though Article 11 of the CRPD is not found as a separate article in the Constitution, the
scope of coverage of this article is under Article 21, the right to life and liberty. The West
Bengal National University of Juridical Sciences has noted: ‘From this, the Supreme Court has
deduced an affirmative obligation on the part of the state to preserve and protect human
life. A collective reading of judgments will lead to the logical conclusion that the right to
162
IDA Compilation of CRPD articles, found at
http://www.internationaldisabilityalliance.org/en/compilations-made-ida
CRPD/C/AUS/CO/1, in case of Australia; CRPD/C/AUT/CO/1 in case of Austria; CRPD/C/SLV/CO/1 in
case of El Salvador; CRPD/C/PRY/CO/1 in case of Paraguay; CRPD/C/ESP/CO/1 in case of Spain.
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rescue, relief and rehabilitation is a right guaranteed under Article 21’ 163. Right to relief and
rehabilitation is a guaranteed right under Article 21. The state is also responsible under the
doctrine of parens patriae to provide adequate protection to the people from disasters.
Under the Legal Aid Services Authorities Act, the state is obligated to provide free legal aid
services to a ‘mentally ill’ or otherwise disabled person; and a person under circumstances
of underserved want such as being a victim of a mass disaster, ethnic violence, caste
atrocity, flood, drought, earthquake or industrial disaster. This legislation particularly
categorizes ethnic violence and caste atrocity in the context of disasters.
The Disaster Management Act, 2005 is the main Act that is used to manage disasters
throughout the country, both natural and man-made (except drought and epidemics). There
is no reference in this Act to persons with disabilities.
Regarding the Government machineries, Natural and man-made disasters, except droughts
and epidemics, come under the purview of the Home Ministry of the Government of India.
The key organisations involved are the National Disaster Management Authority (NDMA),
which is under the chairpersonship of the Prime Minister, State Disaster Management
Authorities (SDMAs) under the chairpersonship of the Chief Ministers and District Disaster
Management Authorities (DDMAs) under the chairpersonship of Collectors, District
Magistrates and Deputy Commissioners. Since many states do not have SDMAs or DDMAs,
the armed forces step in: Instead of arriving late and leaving early, they arrive early and
leave late164
The National Policy on Disaster Management (NPDM), which was issued based on the
Disaster Management Act, 2005 makes a mention of persons with disability, under the
Section 5.3.2 under the ‘Community Based Disaster Preparedness’. It says, “Needs of the
elderly, women, children and differently abled persons require special attention”.
The Section 4(1)(c)(ii) in The Workmen' S Compensation Act, 1923 provides that, in the case
of an injury such percentage of the compensation payable in the case of permanent total
163
Jacob P Alex. (2006). Disaster management: Towards a legal framework, West Bengal National
University of Juridical sciences, Kolkatta. Found at http://www.iipa.org.in/common/pdf/12.pdf
accessed on the 12th of July, 2013
164
Shivananda H. and P.K. Gautam ‘Reassessing India’s Disaster Management Preparedness and the
Role of the Indian Armed Forces., Journal of Defence Studies, Vol. 6 No. 1 January 2012, pp. 102-113.
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disablement as is proportionate to the loss of earning capacity (as assessed by the qualified
medical practitioner) permanently caused by the injury; and other specific provisions.
Insurance, compensation and other assorted benefits obtain under the Motor Vehicles Act
of 1923, through a Tribunal. These sections of legislations are fairly well utilized in the
courts, by aggrieved families and individuals; however, no mention of ‘disability’ as such is
made in the legislations or case law. These laws also have not been reviewed to comply to
contemporary human rights standards.
Right to Article 11 on equal basis with others
A ‘social’ ecological model of explaining disasters exists. This school advocates that there is
nothing called natural disasters: It is the vulnerabilities of the people and failure to live in
harmony with nature that transforms the natural hazards into disasters, which are always
man made. This view focuses more on prevention and mitigation than the view that a
disaster is purely a natural event 165.
India due to its geo-climatic and socio-economic condition, is prone to various disasters.
During the last thirty years time span, the country has been hit by 431 major disasters
resulting into enormous loss to life and property. According to the Prevention Web
Statistics, 1,43,039 people were killed and about 150 crore were affected by various
disasters in the country during these three decades.166
According to the National Institute of disaster Management, out of the 35 States/Union
Territories in the country, 25 are disaster prone and 348 districts have been identified as
multiple-hazard prone. 300 Mn. people inhabit zones of multiple hazards. Disasters due to
hydro-climatic disaster events are the highest occurrence. During the thirty-five year period
from 1974 to 2008, India faced 209 major flood events, with an average frequency of 8.8
165
Financing Disaster management in India: A study report for the 13th Finance Commission, National
Institute for Disaster Management, New Delhi, 2009.
166
Disaster Management in India, Ministry of Home Affairs, 2011
http://www.undp.org/content/dam/india/docs/disaster_management_in_india.pdf)
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floods every year, with increasing frequency year by year. 61 floods were recorded during
the period 2004-08 167.
It is recognized that women are vulnerable during disasters due to conventional approach,
habitually home bound work, care giving functions, and restricted personal mobility 168.
In the context of poverty, disablement and unorganized labour, the Delhi High court has
noted169: ‘It is estimated that about 8.5 million workers in the country are engaged in
building and other construction works. Building and other construction workers are one of
the most numerous and vulnerable segments of the unorganized labour in India. The
building and other construction works are characterized by their inherent risk to the life and
limb of the workers. In the absence of adequate statutory provisions, the requisite
information regarding the number and nature of accidents is also not forthcoming. In the
absence of such information, it is difficult to fix responsibility or to take any corrective
action’.
The definition of ‘disaster’ in the Disaster management Act of 2006 is, a ‘catastrophe,
mishap, calamity or grave occurrence in any area arising from natural or man made causes
or by accident or negligence which results in substantial loss of life or human suffering or
damage to, and destruction of property or damage to or degradation of environment andn
is of such a nature or magnitude as to be beyond the coping capacity of the community of
the affected area’. All these criteria of a ‘disaster’ are found in conflict areas, zones of
communal or ethnic clashes. However, these aspects of breakdown of relationship between
state and civil society has not been recognized by the state approved list of ‘disasters’.
Rather, they have only been seen as ‘law and order’ situation, a point contested by the
Special Rapporteur on freedom of religion or belief, Ms. Asma Jahangir170.
167
Financing Disaster management in India: A study report for the 13th Finance Commission, National
Institute for Disaster Management, New Delhi, 2009.
168
Madhura Lohokare and Bhargavi Davar “Women in Disasters and mental health”. Indian Journal
of Social Work, Special Issue on Disasters and social work, 61(4), October, pp. 565-580.
169
Builders Association Of India And ... vs Union Of India (Uoi) And Ors. Etc.... on 28 February, 2007,
Equivalent citations: 139 (2007) DLT 578, Delhi High Court
170
Asma Jahangir, Addendum, 2009, ‘Promotion and protection of all human rights, civil, political,
economic, social and cultural rights, including the right to development: Report of the special
rapporteur on freedom of religion or belief’. A/HRC/10/8/Add.3, HRC, 10th Session, Agenda Ite 3.
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There is the situation of disablement caused by disasters, and the plight of the disabled
during disaster time. We may surmise that both aspects must be covered in disability
sensitive disaster management. However, there is no clear data on how many people with
disabilities have got affected due to disasters (for example, number of people rescued/left
at home /left out in the relief measures); nor the number of people who acquired disability
in a situation of disaster. Mortality measures in state records are available, but the rest of
the harm caused is put under a general category of ‘injuries’.
After the Asian Tsunami, it was estimated that there was a 20% increase in the number of
persons with disabilities in the affected areas. Following a disaster, 5 - 7% of people in
camps or temporary shelters have a disability and one third of all people affected suffer
from mental distress.171
Ministry of Home Affairs in partnership with UNDP has formulated a toolkit to promote an
understanding of the needs of persons with disabilities in disaster situations. There is no
information as to where and how the toolkit is being implemented, and whether persons
with disabilities or their organizations are involved in this process.
Right to Article 11 in disability legislations
Even though the Persons with Disabilities Act was gazette and notified in the year of 1995,
the National Disaster Management Act of 2005 does not specifically provide for persons
with Disabilities. The PWDA itself does not mention state obligation to persons with
disabilities in disaster management.
Other disability legislations (National Trust Act, Mental Health Act, Rehabilitation Council of
India Act) do not make reference to disasters.
Violation of Article 11
Access to emergency services, such as ambulance, fire engines, police, etc. for persons with
disabilities have not been given due priority. Most of these services have to be accessed
171
Mainstreaming Disability in Community Based Disaster Risk Reduction; A Training Manual for
Trainers and Field Practitioners accessed (2008) accessed from
http://www.handicapinternational.ph/docs/drm/India-Training-Manual.pdf on 11 April 2013
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telephonically (100, 101, 102, 108, 1098, etc.) and there seems to be no alternative methods
for persons with speech and hearing disabilities to contact these. Even if one wants to
access these services in person, there are many barriers - physical, communication and
attitudinal, as the case study below shows.
Ambulance service for the ‘mentally ill’ has been specially created under the State Mental
Health Authority of Karnataka with help from family organisations. The ‘scheme’ has been
named as an ‘innovation in psychiatric practice’. However, those services are for ‘emergency
situations’ for people and families in crisis. Enforcing stereotypes, professionals have
described the services thus: ‘Aggression, agitation, confusion, violence, suicidality, nonadherence and exacerbation of psychotic symptoms are situations during which
interventions are most required. ‘Ambulatory services for the mentally ill’ is an initiative
taken by the Karnataka State Mental Health Authority (KSMHA) …. After getting the call…
the ambulance reaches patients' residence. A written request is obtained from the family
members before any intervention is made. The ambulance staff …will assist the family to
shift the patient to the hospital of their choice. If patient is uncooperative (usual scenario),
the ambulance staff tries to counsel the patient …. If the counselling fails, the staff suggests
the family to seek admission in the hospital under various provisions of the Mental Health
Act 1987. The ambulance staff under (medical) supervision may administer medications. The
emergency team is not authorized to use any form of physical restraint on the patient.
However, if the family wishes to physically restrain the patient, safe means will be
suggested. This service is free of cost and exclusive for psychiatric emergencies and
operated within a specified geographic boundary’172.
Even though some Building bylaws specifically mention accessibility, only cursory checks are
done. Details like accessibility of emergency exits; steepness of the ramps, availability of
continuous railings on both sides of the emergency staircase, colour contrasts, lighting,
tactile maps and signages indicating these exits, visual alarm for hearing impaired people
etc. are not taken into account. Most buildings do not have these accessibility features.
172
H. Chandrashekar, N.R. Prashanth, et. al. (2009) ‘Innovations in psychiatry: Ambulatory services
for the mentally ill’. Indian Journal of Psychiatry, 51(3): 169-170. doi: 10.4103/0019-5545.55081,
accessed on 20th September 2013
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As part of preparedness, mock drills, etc. are now being conducted by organisations,
including the private sector. One could not find much evidence as to how the needs of
persons with disabilities are being taken into account in terms of information, capacity
building, evacuation, etc.
BOX ITEM
(December 11, 2012) In Mumbai, 26 residents of a high rise luxury apartment housing block,
including, women, elderly and disabled people were rescued in an emergency action by the
Fire Brigade. A fire raged in the 19th floor of the building, and the housing society had poorly
installed / maintained the fire fighting safety system. A case was filed Maharashtra Fire
Prevention and Life Safety Measures Act (2006) by the Fire Brigade. The newspaper noted
that this measure of seeking legal redressal for a first, for the Fire Brigade173.
BOX ITEM
“One of the large companies that conducts mock fire drill on a regular basis actually had a
practice of telling one of their employees with disability prior to the drill that there is going
to be a mock drill on a specific date and she can work from home on that day. This was
basically done with an intention to “not inconvenience” her! The fact is that they didn’t
know how to help persons on a wheelchair to evacuate from higher floors. One standard
alternative that companies come up with is that all employees with disabilities should work
on the ground floor near the exit!”
There is a high incidence of physical and mental disability in areas of internal strife,
communal clashes or armed conflicts
174.
There is no specific programme for protection of
persons with disabilities in these areas.
According to state reports, Jammu & Kashmir has initiated a door to door Survey to
ascertain the exact number of persons with disabilities. 783 persons with disabilities were
173
http://articles.timesofindia.indiatimes.com/2012-12-11/mumbai/35749271_1_fire-brigade-firesafety-maharashtra-fire-prevention
174
WGHR Stakeholders’ report of 2011 to the UPR process.
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rendered disabled due to militancy related incidents and have been registered and provided
monthly pension of Rs.750. The pension amount is not adequate. There seems to be no
other measures such as rehabilitation or helping them return to work or providing any other
support that may be required.
BOX ITEM
The use of supposedly ‘non-lethal’ weapons like ‘tear gas shells’, ‘pellet guns’, ‘rubber
bullets’, ‘mock bombs’ and custodial torture have caused serious injuries, physical and
mental disability and even death. For example, in Kashmir, Wamiq Farooq (13 years) was
killed by a tear gas shell fired by police, while he was out playing. Yawar Ibrahim (13 years)
was seriously injured in his head by a tear gas shell, when he was on his way to buy butter.
He is now speech impaired and the lower half of his body is completely paralysed.
Psychological disorders, like the ‘Post-Traumatic Stress Disorder’, have been reported in
conflict areas.175
Though the Guidelines issued by Director General of Civil Aviation (DGCA) mentions that,
“Airlines should develop emergency evacuation procedures and training of their staff for
handling persons with disabilities and include the same in their safety manuals”.176
However, many private airlines even after four years after the announcement of Guidelines,
ask people with disabilities to sign the indemnity bond, stating clearly that they are not
responsible for their safety. There have been also many instances, where people with
disabilities have been asked to de-board.
RESOURCES
Source: Finance Commissions from the beginning were seized with the issue of financing
disaster management by the States. The Second Finance Commission (1955-60) is said to
have innovated the concept of Margin Money to be set apart for meeting expenses on
175
Human Rights in India; Status Report 2012, Updated and Revised with First and Second UN
Universal Periodic Review Recommendations accessed at
http://www.wghr.org/pdf/Human%20rights%20in%20India%20%20Status%20report_revised_Dec2012.pdf in April 2013
176
Carriage by Air of Persons with Disability and/ or Persons with Reduced Mobility, DGCA Office,
1st May 2008; New Delhi accessed at http://dgca.nic.in/cars/d3m-m1.pdf; accessed in January 2013
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natural calamities. Those amounts went mainly to fire-fight the damage once the disaster
occurred.
In India the Planning Commission recognized disaster management as a development issue
for the first time in 2002 when a chapter on ‘Disaster Management: A Development
Perspective’ was included in the Tenth Five Year Plan. Until the Disaster Management Act of
2005, the idea of prevention and mitigation was not found in policy.
The Ninth Finance Commission (1990-95) constituted the Calamity Relief Fund (CRF) to be
contributed by the Central and the States Governments on 75:25 basis as non-plan grant.
The quantum of fund allocated to the States was determined also with reference to the
actual expenses on relief incurred during the previous decade.
The Tenth (1995-2000), Eleventh (2000-2005) and the Twelfth Finance Commissions (20052010) retained the CRF scheme with minor modifications. CRF allocation to the States has
registered an increase from Rs. 40200 Mn. INR during 1990-95 to Rs. 213333 n. INR during
2005-10. The Tenth Finance Commission constituted the National Fund for Calamity Relief
(NFCR) to deal with catastrophic disasters, which was substituted by National Calamity
Contingency Fund (NCCF) by the Eleventh Finance Commission. With an initial corpus of Rs.
5000 Mn. INR, NCCF is replenished by levy of special surcharges on taxes for a limited
period. The NCCF expenditure is also showing a rising trend from Rs. 9242.1 mn. in 2000-01
to Rs. 30614.4 mn. during 2005-06.
The Disaster Management Act mandates the setting up of the National Disaster Response
Fund (NDRF) and State Disaster Response Fund (SDRF) to finance the disaster preparedness
and management activities.
However, despite these efforts, there is no specific allocation or utilization for persons with
disabilities. Disability data is invisible in the general presentation.
RECOMMENDATIONS

The Disaster Management Act and the disability laws should specifically mention
measures with respect to prevention, mitigation, preparedness, relief, information
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
dissemination in order to ensure people with disabilities are provided equal
opportunities and support during disasters.

An Inclusive Emergency Response from state and district level authorities must be an
obligation. Federal – state fiscal and regulation relationship must be strengthened,
with better allocations and monitoring of state and district level bodies.

Audit of all emergency services, personnel fitness, surveillance systems and other;
and a time bound Plan to make them inclusive. Emergency numbers need to be
made the same all across India. These numbers need to be well publicised and need
to be accessible for people with different disabilities.

Committees/Groups formed as part of disaster management, should include
disability experts and persons / organizations of persons with disabilities.

Trainings of all relevant personnel in rural and urban areas should include the
concerns of persons with disabilities. Persons with disabilities should be trained in
handling emergency situations in schools, institutions, camps, etc.

Mock drills and trainings should be done on regular basis at Government buildings,
NGOs, shopping centres, private offices, and must include evacuation of persons
with disabilities etc.

Specific schemes for providing focused health and rehabilitation services should be
started in areas of conflict. Army role in managing disaster should be strictly defined.

Record keeping must disaggregate with respect to gender, disability and other key
variables.
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Article 12: Equal recognition before the law
1. States Parties reaffirm that persons with disabilities have the right to recognition
everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an
equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with
disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal
capacity provide for appropriate and effective safeguards to prevent abuse in
accordance with international human rights law. Such safeguards shall ensure that
measures relating to the exercise of legal capacity respect the rights, will and
preferences of the person, are free of conflict of interest and undue influence, are
proportional and tailored to the person's circumstances, apply for the shortest time
possible and are subject to regular review by a competent, independent and
impartial authority or judicial body. The safeguards shall be proportional to the
degree to which such measures affect the person's rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and
effective measures to ensure the equal right of persons with disabilities to own or
inherit property, to control their own financial affairs and to have equal access to
bank loans, mortgages and other forms of financial credit, and shall ensure that
persons with disabilities are not arbitrarily deprived of their property.
NCPEDP & DEOC survey findings
89% of people surveyed by DEOC were dissatisfied by the outcomes on Article 12. 6% were
satisfied overall; and another 6% did not know much about the issue. Awareness existed in
the group surveyed about discriminatory “incapacity” laws.
Constitutional guarantees
The Preamble, an integral part of the Constitution, pledges to secure `equality of status and
of opportunity', assuring `fraternity' and `dignity' of the individual in India. Article 6 declares
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that everyone has the right to recognition everywhere as a person before the law. Article 7
provides that “The state shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India”. As parens patriae, the state is obligated
to respect, protect and fulfil Article 12 for all people on equal basis, based on these
constitutional provisions.
Case law is rarely found on this particular right singly. However, courts do arbitrate this right
along with a variety of other civil political rights, especially in the case of people in conflict
with law (e.g. migrants, juveniles, those accused of terrorist acts, etc.) In the case of Gaurav
Jain vs Union Of India & Ors on 9 July, 1997
177,
the court led by Hon Justice Ramaswamy,
drawing from the above provisions, made an impassioned exposition of the rights of
commercial sex workers to equal recognition before the law. Equal status before the law
also comes up in various contexts of medical treatment, negligence, organ transplants,
invasive surgical procedures, etc. in exercise of the right to free and informed consent to
health care.
The Supreme Court
178
has upheld the personal autonomy of a woman with intellectual
impairment and ordered the continuation of her pregnancy, as per her wish and choice,
clearly stating that “Consent of the pregnant woman is indeed an essential condition for
proceeding with the termination of a pregnancy as per Medical Termination of Pregnancy
Act 1971. However, the apex court has made a distinction between “mentally ill” person and
“mental retarded” person in this instance, noting that full legal capacity may be reinstated
in the case of the latter only; and not the former. This amounts to discrimination.
Meeting International Obligations
While some countries have placed reservations on Article 12 (Right to equal recognition
before the law), in ratifying the UNCRPD, the GOI did not place any reservations. In India,
work by civil society on CEDAW has resulted in landmark judgments on the enjoyment of full
legal capacity for women, in the last decade. While CEDAW provides for equal recognition
177
WRIT PETITION (CRL.) NOs. 745-54 OF 1950, in the Supreme Court of India, Judgement Order on
09/07/1997
178
Supreme Court of India, Record of Proceedings C.A. No. 5845 of 2009, Suchita Srivastava & Anr
Versus Chandigarh Administration, 28/08/2009.
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before law, the CEDAW monitoring committee, even in their most recent Concluding
Observations (Cos) at their 54th session179, did not comment on the implementation of legal
capacity for women in general; or the violations to right to legal capacity found in law
through special legislations such as the mental health legislations, family laws and other
common law. Legal capacity issues can be obliquely read into the concluding observations
on domestic violence, referring to the ‘voluntary consent of rape victims’.
Ms Rashida Manjoo, Special Rapporteur on Violence against Women, in her recent visit to
India in 2013, has noted the ‘forced medication’ of persons with disabilities as a human
rights concern.
Equal recognition before the law in Disability Legislations
The extant Persons with Disabilities Equal Opportunities Act, 1995, is silent on the issue of
legal capacity for persons with disabilities and guardianship. However, the Act, has an
incapacity provision that, “No person shall be a Member of the Central Coordination
Committee, who is of unsound mind and stands so declared by a competent court.”
The new Rights of Persons with Disabilities Bill, proposed to replace the PWDA, recognizes
full legal capacity of all persons with disabilities and provided for obligation to create
support in the exercise of legal capacity. The proposed Bill also provides for legal capacity
with respect to property and financial matters. It however does not declare the abolition of
plenary guardianship; and, in terms of safeguards, introduces the provision for “limited
guardianship”, without laying the overall conditions, monitoring mechanisms or time frame
of such guardianship.
Mental Health Act: The extant Mental Health Act of 1987 provides for a formal system of
plenary guardianship and inquisition of property. Whilst the guardian is meant to perform
his or her duties in the best interest of the person living with mental illness, there is no
obligation to consult with the declared “incompetent”. Further any action taken or decision
made by the person declared “mentally ill” has no validity in the eyes of the law; Such a
system continues till the person living with mental illness is declared fit and the guardian
179
The CEDAW Committee Concluding Observations, 54th session, found on 11th July 2013 at
http://www2.ohchr.org/english/bodies/cedaw/cedaws54.htm
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removed from office180. The judicial review mechanism has been largely dysfunctional as
guardians do not go back to court and there is no independent monitoring of guardianship
arrangements under the MHA 1987.
Mental Health Care Bill: Mental Health Act is being proposed to be replaced by a Mental
Health Care Bill, 2013. In principle, the MHC Bill of 2013 recognizes the full legal capacity of
persons with psychosocial disabilities. However, in a stepwise manner, it dismantles the
capacity provision with substituted decision making. Substituted decision making is provided
for, not only in health care decisions but all life decisions through “schemes” of Advance
directive or a Nominated Representative. The Advance Directive procedure needs prior
establishment of mental capacity, to be a valid one. If a person refuses medical treatment
for mental illness, or in case of an “emergency” situation, it is provided that, the Advance
Directive will not be valid. A person loses full legal capacity under such ‘emergency
conditions’ or refusal of treatment. The test for a valid Advance Directive are set at stringent
threshold, that there is a concern among civil society activists that those standards will not
be met by large numbers of persons with disabilities. The Nominated Representative can
make several proxy decisions for the person with disability, including institutionalisation.
Any advance Directive can be in any case overruled by families, psychiatrists or by the local
committee. In these ways, legal capacity provisions are countered by laying down conditions
of capacity and process which makes it easy for third parties to enforce incapacity and
institutionalisation.
National Trust Act of 1998 is largely seen as a legislation for limiting legal capacity of persons
with specified disabilities and providing for guardianship arrangements. However, some
conditions are placed on the need for a guardian, their roles and covering for abuse and
exploitation. The idea of providing support to exercise capacity is not found in this
legislation.
180
Page 208, ‘Harmonizing the Laws with UNCRPD’, Edited by Dr. Amita Dhanda and Rajive Raturi,
Human Rights Law Network, The Deaf Way Foundation, National Association of the Deaf, May 2010.
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Legal barriers to Article 12 181
Not only the disability legislations, but a variety of civil, criminal, family, taxation and other
laws provide for determination of incapacity. At the time of writing this report, the
fulfilment of state obligations on Article 12 of the CRPD is far from satisfactory for full
enjoyment of this right by persons with disabilities. Legal barriers have not been addressed
for all people with disabilities. Some groups of people with disabilities bear
disproportionately high to severe deprivations of Article 12 when compared to others. There
are no other groups or constituencies who face restriction or deprivation of legal capacity in
India, excepting persons with disabilities.
The scan of national laws shows the overwhelming discrimination of all persons with
disabilities on grounds of legal incapacity. Not only people with psychosocial disabilities are
denied this right, but a variety of other groups of persons with disabilities. For example, the
words, ‘physical and mental defect’, ‘incapacity’, ‘physical and mental infirmity’, ‘deaf
mute’, ‘blind’, ‘contagious leprosy’, ‘leprosy cured’, ‘epilepsy’ are found pervasively in the
laws in the context of determining legal incapacity. More general categories of ‘incapable
due to serious illness’, ‘found unfit to act by a competent court’, etc. are also found.
There are no attempts so far by the legislature to address these provisions. The genre of
incapacity laws are enlisted below:
Army law
The words ‘lunacy’ and idiot are still widely used in Acts such as the Army Act, Air Force Act,
Navy Act, Coast Guard Act, Border Security Force Act, Assam Rifles Act, Sashastra Seema Bal
Act, IndoTibetan Border Police Force Act. These Acts deny capacity to stand trial, to defend
oneself, to appeal, and to give consent to treatment. The Army and Airforce (Disposal of
Private Property) Act of 1950 provides that a person of unsound mind be treated as a “dead
person” from the moment unsound mind is ascertained. Works of Defence Act denies
capacity to act for “lunatics” and “idiots”.
181
For the purpose of this report, NCPEDP facilitated a study on Legal Capacity in national laws. The
report was put together by Bhargavi Davar, Rahul Cherian, Rajiv Rajan, Reshma Valliappan, TN
Deepak, and others.
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Criminal law
Criminal Procedure Code, Indian Penal Code and Evidence Act deny capacity to stand trial,
bear witness, and give consent. In a recent amendment of CrPC, “idiot” has been replaced
by “mental retardation”; but “unsound mind” has been retained.
Family law
These laws deny capacity to marry, stay married, to adopt, to inherit, terminate a
pregnancy, choose a pregnancy, incapacity to acquire new domicile, etc. State may decide
to give a child in adoption, if one or both parents are of “unsound mind”. A “lunatic” cannot
acquire a new domicile under the Indian Succession Act. A person who is blind or deaf or
dumb can make a will if they can understand what they are doing. A ‘Lunatic’ cannot
probate or administer a will.
Laws relating to work and employment, public office
The bulk of incapacity laws are in this area. Several higher educational laws, such as North
Eastern Hill University Act, The Visva-Bharati Act, provide that a staff may be removed if
found to be “of unsound mind”, is “deaf mute” or “suffers from contagious leprosy”. Other
Acts, too numerous to be listed, are illustratively: Airports Authority of India Act, Air and
Water Prevention and Control of Pollution Acts, International Airports Authority Act, Road
Transport Corporations Act, Municipality and Cantonment legislations, Panchayati Raj Acts,
Waterways Authority of India Act, Coastal Aquaculture Authority Act, Food Corporation Act,
Warehousing Corporations Act, Spices Board Act, and various Rural Development, Finance,
Banking, Credits and Taxation laws, including the Reserve Bank of India Act. Some incapacity
provisions are broad and include all persons with disabilities and not only persons with
psychosocial disabilities, e.g. Telecom Regulatory Authority of India Act, Gurudwara Act.
Exclusions are mainly in performing professional job in senior position, being elected Board
member, being elected or nominated a member of any other statutory body of the
institution, holding any public office or having voting rights in the Board. Laws relating to
professional registration, such as Architects Act, Bombay Civil Courts Act, Judges Inquiry Act,
disqualify people from practising their profession on the basis of incapacity using broad
categories of “physical or mental incapacity”. Various other Acts regulating authorities,
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commissions and boards, such as Commission for Protection of Child Rights Act, Consumer
Protection Act, PreNatal Diagnostic Techniques Act, Displaced Persons Claims and
Compensations Acts, Safai Karamcharis Commissions Act, Commission for backward Classes
Act, Patents Act, Advocates Welfare Fund, etc.
Land and Taxation laws
Laws such as Land Revenue Act, Wealth Tax, Income Tax, Gift Tax, etc. similarly, deny legal
capacity to cultivate one’s own land, manage financial matters, file tax, hold assets, etc.
Land Reforms and Revenues Acts, in general, deny a person with “blindness”, “lunatics”,
those with “physical or mental disability”, “bodily infirmity”, “defect” or “infirmity”, the
capacity for cultivating, or subletting land.
Other civil and political laws
The Contract Act provides that “a person who is usually of sound mind may not make a
contract when he is of unsound mind”. Registration Act allows the registrar to refuse
registration of documents by anyone who “appears” to be an idiot or a lunatic.
NALSA scheme for ‘mentally ill persons and persons with mental disabilities’
NALSA (National Legal Services Authority) Scheme 2010 for “mentally ill persons and
persons with mental disabilities”
182,
which is however not a statute, in unique in that it
provides for a ‘scheme’ for equal recognition before the law. “It is obligatory for our legal
system to ensure the human rights and fundamental freedoms of persons with disability
(including mentally ill persons and persons with mental disabilities) are enjoyed on equal
basis with others and to ensure that they get equal recognition before the law and equal
protection of the law”. However these guidelines do not provide for voluntary treatment,
and those “not capable” of giving consent to treatment is still found in the scheme. Among
the services offered, “support for exercising legal capacity” in all legal domains is not found.
Most legal aid services are within the context of institutions, including legal rescue from
forced treatments.
182
A national legal authority which enables cadres of legal aid services in all states of India, adopted
the “Legal services to the mentally ill persons and persons with mental disabilities) Scheme of 2010”,
in the Meeting of the Central Authority of NALSA held on 8.12.2010 at the Supreme Court of India.
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In their recent newsletter, NALSA has referred to this scheme as helping in issuing reception
orders and inquisition of property / guardianship procedures under the Mental Health Act of
1987, 183 showing a perversion of purpose from the original vision.
Experience of Guardianship in Indian courts
World experience on guardianship is available, showing how plenary guardianship results in
nullification of all rights of persons with disabilities (Mental Disability Advocacy Center,
2007)184. Recent Czech court decision is also noteworthy 185. The court has ruled that every
person has a right to a ‘legal personality’; and that, just a finding of intellectual disability /
mental health problem cannot be the justification of denying legal personality. The court
has declared plenary guardianship as ‘obsolete’. In the context of Czekhoslovakia, the
MDAC, Hungary, notes that parents have had a choice of choosing plenary or partial
guardianship arrangements. Even though both options have equal probability, plenary
guardianship has been the more frequently exercised option by communities. The reasons
for this are, that within the court system, no reasonable accommodation is provided to hear
and understand the wishes of a disabled person, and support mechanisms to exercise legal
capacity have not been made available.
A sample reading of judgments in 2011 on ‘guardianship’ done for purpose of this report,
suggests that district courts are regularly giving guardianship over people mainly in the
context of property matters, pensions, etc.
186.
Guardianship granted is not for a specific
cause (e.g. management of property), but of ‘person’ found to be ‘mentally ill’, giving all
embracing powers to the guardian. In a judgment of 18/11/2011, the district court noted in
their judgement that ‘Certainly there needs to be someone to take care of this fellow’,
handing over the person of Bhimaji Kulkarni, person with mental disability, to his brother
183
NALSA, (2010) Newsletter, April – November, Volume 1.
Mental Disability Advocacy Center (MDAC) (2011). Supported decision making as an alternative to
guardianship. Policy Paper 4, 2011, MDAC with Civil Rights Defenders, Budapest. Found on 16-082012 at http://www.mdac.info/sites/mdac.info/files/English_Supported_Decisionmaking_An_Alternative_to_Guardianship.pdfhttp://www.mdac.info/en/Hungary, found on 7th
September 2012
185
http://www.mdac.info/en/czech-republic-constitutional-court-finds-deprivat found on 8th
September 2012
186
On 02.05.2011, petition M.A.578/2010, Pune district court, guardianship over person and
property of ‘mentally ill person’, Sriram given to Mrs. Meena Dubey, under MHA 1987.
184
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187.
In the sample of 10 cases reviewed, two cases, a person of ‘mild mental retardation’ was
found to be ‘mentally ill’ by the court and granted guardianship under the MHA. Even
though MHA specifically excludes MR, section 52 of MHA on guardianship was applied
188,
189.
An illustrative case to report here is that of Jaydeep Ladkat
190
of Wanawadi, Maharashtra,
who filed for guardianship of person and property of his father, Vitthal Ladkat, on grounds
of ‘mental illness’. Within 6 months of this order, Jaydeep Ladkat also got the court to notice
the ‘mental illness’ of his mother, after institutionalising her in the same year for 4 months.
The mother was diagnosed consecutively with ‘occassional depression’, ‘major depression’,
‘schizophrenia’ and ‘paranoid schizophrenia’, the same diagnoses applied on the father.
Huge properties involving hectares of prime land and several city properties, under litigation
already, were involved in this matter before the court: Even so, the court did not make
further inquiries upon receipt of doctor certificates, did not have independent examination
of the senior Ladkats and pronounced guardianship. In both these cases, a private mental
asylum owner from Pune city has been involved in the certification process and
institutionalisation. The court in fact went so far as to declare the senior Ladkats not even
capable of going before any court of law and managing their legal affairs, because found
‘mentally ill’.
Guardianship under National Trust Act:
Section 89 of the Indian Penal Code protects guardians, along with children and people of
“unsound mind”, if actions are done “in good faith” except in case of death, abetment to
crime or voluntary causing of harm. The extant National Trust Act of 1999 provides for
guardianship arrangements whenever needed. It lays out an administrative procedure for
substituted decision making. No regular monitoring procedure exists within the NTA, 1999.
At the time of writing this report, the NTA is under review for amendment.
187
Civil Application No.618/2011, by applicant Vijay Pandurang Kulkarni, in Pune District Court
Misc. Application No. 387/2009, Sandesh Gajanan Bhave, receiving pension and managing
property, of brother Prashant Bhave, found to have ‘mild mental retardation’. Decided on
18/06/2011.
189
Civil Application No. 109/2010, by Deepak Shridhar Bhalerao, order on 13/07/2011
190
District court of Pune, In civil suit No. 1640 of 2009 M.A.NO : 681/2009, under MHA 1987190,
Judgement Date: 31-01-2011; Civil suit NO: 680/2009, Order date 18/06/2011
188
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Withdrawal of parens patriae function of the state
Access to justice on Article 12 also has great challenges and limitations, with poor outcomes.
In many an instance, as evidenced by courts, the state is withdrawing from its parens
patriae obligations towards persons with disabilities, and more concerning, handing this
obligation over to non-state actors (private individuals, doctors, and NGOs) without
regulation.
In the post CRPD period, there is shift of parens patriae obligations from the state, from
judicial process of a constitutional matter, to administrative management of a “scheme” by
non-state actors. Legal capacity, which is a constitutional matter ensuring the autonomy,
self determination and the right to live independently, is converted into a routine service
matter by providing a “scheme” for substituting decision making for a person with disability.
In the Mental Health Act, capacity is a constitutional matter on right to life and liberty and
self determination. Deprivation of these rights is decided by the courts, in the context of
care and treatment. However, the MHC Bill of 2013 does not provide judicial cover for
monitoring the involuntary commitment admissions, discharge, Advance Directive and
Nominated Representative in people’s lives, leaving it to be administratively managed by
local committees. In this instance, judicial monitoring of Article 12 of the Constitution has
been watered down, from a rights and justice issue on deprivation of liberty to an
administration issue, to be done by non state actors (psychiatrists), family members and
local committees. The state is seen to be withdrawing from its parens patriae obligations in
this instance.
In the case of guardianship also, in recent case law, high courts of several states are
routinely directing individuals seeking guardianship, to administrative authorities and local
level committees. In the post CRPD era, guardianship is increasingly being seen as purely
social matter of care giving and protection ; and not as a justice issue concerning protection
of constitutional right of individuals to life, liberty, dignity and self determination.
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In the case of Sushma Sharma vs State Bank Of India & others191, Delhi High Court made
court procedures on substituted decision making and guardianship unnecessary, when it
ordered that:
“This Court is of the opinion that the RBI should issue appropriate guidelines using
the powers under the Banking Regulation Act and the RBI Act and direct that all
banks in India must ensure that in their Branches, essential details about the facilities
under the enactment; that certificate issued under the Mental Disabilities Act (sic)
are acceptable; and the fact that the parties can approach the Local Level
Committees, for the purposes of issuance of the certificate“.
In a similar judgment of 4th November 2008, the High Court of Kerala 192, acknowledged the
applicability of NTA, 1999 in respect of the guardian of the person and property of a person
with mental disability. In yet another case,193 the High Court of Orissa also acknowledged
the applicability of NTA, 1999, and had ruled that guardianship applications on behalf of
mentally retarded persons have to be made to Local Level Committee. In November 2012,
the Delhi High court noted that the National Trust Act 1999 “is a complete enactment in
itself and the certificate issued by Competent Authority under this enactment is binding” 194.
Local Guardianship Program of National Trust Act: National Trust has started “local
guardianship scheme” because of “Impaired capacity of PWDs for making informed decision
making”195. The Local Committee under the head of District Collector issues Guardianship
certificates, after full inquiry of applicant, and if required, after conducting a physical visit
and verification. Within 45 days, the LG certificate is to be issued. The scope of the guardian
is not mentioned in the scheme outline196. In terms of safeguards, only gross abuses and
neglect are listed. General day to day denial of autonomy and self determination is not
191
In the High Court of New Delhi, 08/04/2009, writ petition (C) 5271/2008, Sushma Sharma versus
SBI and others.
192
Narayankutty Menon vs. State of Kerala and Anr. 2009 (1) KLT 910, in the High Court of Kerala
193
Amit Toppo vs. None, 113 (2012) CLT 1033
194
W.P.(C) 1531/2012, Jagjit Singh And Anr vs Delhi Development Authority on 26 November, 2012
195
Accessed on 3rd January 2013 at
http://www.thenationaltrust.co.in/nt/index.php?option=com_content&task=view&id=34&Itemid=1
20
196
http://www.thenationaltrust.co.in/nt/index.php?option=com_content&task=view&id=34&Itemid=2
39 accessed on 3rd January 2013
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safeguarded. Thus, the risk to right of full legal capacity is quite high under such
guardianship scheme. A National Depository of Local Guardian Certification is uploaded on
publicly accessible MIS system by the National Trust, to comply with transparency. Around
800 registered LGs are found listed on the National Depository. Unfortunately, Right to
Privacy is not met in the MIS, as names of persons with disabilities as well as their guardians
are publicly accessible. Since the MIS gives only basic information, reason for guardianship,
consent, for how long, outcomes of reviews, and various other issues related to
guardianship matters, including re-dressal matters if any, are not found on the Depository.
Recommendations
1. Parens patriae function on matters relating to autonomy and self determination
(here, Article 12) must be restored in full to the State and to courts of justice.
Matters relating to plenary guardianship and substituted decision making should be
treated as constitutional matter.
2. Investing in alternative legal formulations: Event though of the same time frame of
law making following Indian Constitution, the Customs Act of 1962 does not use the
disqualification of “unsound mind”, stating generally (138) “In any prosecution for an
offence under this Act which requires a culpable mental state on the part of the
accused, the court shall presume the existence of such mental state but it shall be a
defence for the accused to prove the fact that he had no such mental state with
respect to the act charged as an offence in that prosecution.” "Culpable mental
state" in this provision includes intention, motive, knowledge of a fact and belief in,
or reason to believe, a fact. The GoI should invest in research and pedagogy around
developing alternative legal text, with safeguards for the person with disability.
3. Law reform: Disability laws have to provide for full legal capacity for persons with
disabilities; and should provide clear mandate/framework as well as resources for
supported decision making. All incapacity laws need to be amended that goes
against the right to full legal capacity as per UNCRPD. These should have provisions
for reasonable accommodation and support to persons with disabilities. For
example, the Advocates Act provides for financial support to advocates who have
been disabled.
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4. Plenary Guardianship must be abolished, and a new legal structure put in place for
supported decision making.
5. Awareness and building capacity among decision/policy makers, legal fraternity,
politicians, bureaucrats, health functionaries, bankers, social workers, disability
professionals, community workers etc. and the larger public, to understand and
promote a culture of respect for the personal autonomy for every individual.
6. Last but not the least, involvement of persons with disabilities is crucial and their
voices must be fully included in these changes.
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Article 13: Access to Justice
1. States Parties shall ensure effective access to justice for persons with disabilities on
an equal basis with others, including through the provision of procedural and ageappropriate accommodations, in order to facilitate their effective role as direct and
indirect participants, including as witnesses, in all legal proceedings, including at
investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for persons with disabilities,
States Parties shall promote appropriate training for those working in the field of
administration of justice, including police and prison staff.
DEOC Survey
87% of people with disabilities surveyed by DEOC were not satisfied with the outcomes,
with majority being extremely dissatisfied. 8% were overall satisfied, with 5% not knowing
much about the issue.
Constitutional and systemic guarantees
The Constitution of India recognizes access to justice through the following provisions,
where disability is recognized broadly, including the social aspects: Article 32, the right to
move the courts; Article 22, the right to obtain legal representation; and Article 39A of the
Directive Principles, which states that
“The State shall secure that the operation of the legal system promotes justice, on a basis of
equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities.”
In a 2012 judgment, the Supreme Court has clarified:
“Access to justice in an egalitarian democracy must be understood to mean qualitative
access to justice as well. Access to justice is, therefore, much more than improving an
individual's access to courts, or guaranteeing representation. It must be defined in terms of
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ensuring that legal and judicial outcomes are just and equitable”, referring to the United
Nations Development Programme, Access to Justice, Practice Note of (2004).197
There are about 10,000 Courts in India. Out of these, there are the Supreme Court, 21 High
Courts, 3150 District Courts, 4861 Munsif and 1st class Magistrate courts and 1964 2nd class
Magistrate courts 198. Besides, there are many tribunals and special courts.
NALSA199 (National Legal Services Authority) has set up several schemes particularly for
addressing justice issues of those who cannot pay and for vulnerable groups (including
those in institutions, persons with disabilities, destitute and homeless, etc.) Under NALSA,
Lok Adalats (Peoples’ Courts) have been set up, with scope of a civil court, for settling issues
quickly and ‘amicably’ (relating to family, neighbours, property, etc.) at the district level
through mediation, conciliation and settlements. Over the years, the Lok Adalat has grown
into the present structure of a ‘Permanent Lok Adalat’, which will deal with both pending
and pre-litigation disputes relating to public utilities. The quasi-judicial body is being
established under Section 22 (A) (B) of Legal Services Authorities Act, under which NALSA
works 200.
There are also redress forums like Consumer Forum, Labour Court, Insurance Ombudsman,
etc. for specific issues.
The Right to Information Act 2005: This Act gives citizens across India the right to demand
information on government systems, increasing chances of placing evidence before the
courts; and making systems more transparent and accountable 201. In the post CRPD period,
DPOs and civil society organisations working in human rights have been using this law and
accessing information more systematically, to build on litigation.
197
Supreme Court of India, Imtiyaz Ahmad s State of UP & Others, 1 February 2012. Criminal Appeal
nos. 254-262 of 2012
198
Accessed at http://legalserviceindia.com/article/l317-Justice-Delayed-is-Justice-Denied.html on
th
15 August 2011.
199
http://nalsa.gov.in/legalservices.html; http://nalsa.gov.in/schemes.html
200
http://timesofindia.indiatimes.com/city/mumbai/Permanent-Lok-Adalat-to-settle-under-25Lcases/articleshow/26061579.cms accessed on 20-11-2013
201
See, www.righttoinformation.info
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International obligations
Judicial activism is not matched by bureaucratic responsiveness. The Committee on
Economic, Social and Cultural Rights, in their Concluding Observations on India, stated 202:
“The Committee is concerned by the non-implementation of court decisions by state
authorities”. The Committee remarked on the absence of effective mechanisms to co
ordinate and ensure at both federal and state level, administrative and policy measures of
economic, social and cultural rights and commented on the widespread discrimination
against many constituencies including persons with disabilities.
The report of the Special Rapporteur on freedom of religion or belief, on a Mission to India,
noted widespread failure of access to justice to victims of communal violence203. Several UN
linked directives such as WGHR report for UPR, the ECOSOC committee Concluding
Observations, CEDAW Concluding Observations of 2007, to mention a few, note barriers to
access to justice due to impunity granted to state officials. Section 197 of the CrPC requires
prior sanction of the state for prosecution of individuals who come under the category of
“public servant”. This provision weakened investigations involving the state and its officers.
As the WGHR Report to the UPR shows
204,
there is total breakdown of access to justice
systems in areas of conflict (Discussed more fully in Art. 11 of this report).
Following CRPD ratification, the National Human Rights Commission (NHRC) has adopted a
multi-pronged approach on redress of individual complaints, legislative policy reform,
spreading of awareness205, etc. The NHRC appointed a Special Rapporteur on Disability and
constituted a Core Advisory Group on Disability to advise the Commission on matters
connected with and incidental to the promotion, protection and monitoring of the human
rights of persons with disabilities. The Commission has advocated to the Government of
India for the ratification of Optional Protocol to the UN-CRPD to strengthen state
202
Committee on Economic, Social and cultural Rights, 40th Session, 28th April – 16th May 2008. E/C12/IND/CO/5, adopted Concluding Observations on India.
203
26th January, 2009, Promotion and protection of all human rights, civil, political, economic, social
and cultural rights, including the right to Development: Report of the Special Rapporteur on freedom
of religion or belief, Asma Jahangir. Mission to India. Human Rights Council, Tenth Session,
A/HRC/10/8/Add.3
204
Human rights in India. Joint Stakeholders’ Report, for the Universal Periodic Review Report, by
Working Group on Human Rights in India and the UN (OHCR), submitted to UNOHCR on 28 th
November, 2011
205
‘NHRC, ‘Know your rights: Rights of persons with Disabilities’, (2010), New Delhi.
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accountability. Special Rapporteur has been visiting various States. The Commission has also
asked all the State Government bodies to give wide publicity to the CRPD to create
awareness regarding the rights of persons with disabilities
206.
However, the interaction of
National Human Rights Institutions with communities through the Special Rapporteur or in
other ways has been very low key, depending on the state level authority, its priorities,
resources allocations and its practices.
Access to Justice on Equal Basis with Others
Access to justice is not an issue only for people with disabilities, but for all vulnerable
groups, including women, children, Dalits, religious and sexual minorities and the poor.
However, common law (e.g. Criminal Procedure Code) has failed in protecting rights of
vulnerable groups, including persons with disabilities, on accessing justice.
The Indian courts face a huge backlog of cases, some say, it will take upto 300 years to settle
the backlog207, due to a variety of reasons: Delay in deposition of cases; Deficit in number of
judges; Poor infrastructure in lower courts; Poor quality of support staff in lower courts;
Other agency delays (e.g. intelligence). Access to justice is an issue for all citizens of India.
The WGHR report for UPR notes the serious lack of implementation structure and
compromise on human rights in community arbitration process (Lok Adalat), because the
system favours numbers served rather than quality of justice process.
As discussed more fully in CRPD Article 12, and here below, constitutional matters relating
to Article 21 (Right to Life and Liberty), are being relegated to administrative duties rather
than being treated as Access to justice issues, for example in the case of Guardianship and
involuntary commitment into mental asylums.
As evidence to this chapter shows, access to justice is not uniformly realized for all people
with disabilities; and some groups have borne the effects of not having any legal means of
accessing justice despite the several schemes and programs. Even if the law and a
206
Annual Report, Ministry of Home Affairs, 2010-11
Deepak Miglani, ‘Justice delayed is justice denied’, accessed online at
http://www.legalserviceindia.com/articles/jdjd.htm on 10th October 2013.
207
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smattering of case law have been applied, in everyday lives of people with disabilities,
access to justice is still to be realized.
Access to justice in disability legislations
The extant Disability Act, 1995, provides for a complaints procedure with the office of the
Chief Commissioner at the Central and State Level. The Commissioner’s office is equal to a
civil court, and from thereon, litigants may file in the High Court 208.
Bula, a young woman with intellectual disability, was married to a man who worked in an art
studio run by Bula’s family i.e. mother and brother including his family. They all were living
in the same house owned by Bula’s parents. Mother made a will where a part of the house
was given to Bula along with some cash savings. After mother’s death Bula’s husband took
legal guardianship of his wife through court. He sold the property that was in Bula’s name
and took his wife to some unknown place and no one knows what happened to Bula after
that. The case was reported to commissioner disability but no follow up was done by the
commissioner’s office.
There are no provisions in PWDA 1995 on accessibility to justice, to courts and procedures,
such as reasonable accommodation, sign language interpreters in courts, accessible
information and documentation, etc. Impunity provisions are found herein, without a
punishment or penalty system, making it difficult to have positive outcomes in litigation
against the state.
Under the new Rights of persons with Disabilities Bill of 2013, access to justice is provided
for in terms of (1) rendering null and void provisions found in various older legislations
which are barriers to access to justice (2) all and every person with disability having access
to justice through judicial, and all other statutory bodies serving quasi judicial function (3)
physical, informational accessibility and reasonable accommodations within various justice
and semi judicial systems.
208
The Annual Report details status and achievements and has released their Annual Report for
2011-2012 at the time of writing Refer http://www.ccdisabilities.nic.in/content/en/docs/AR12E.pdf
accessed on 12th November of 2013
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Mental health Act of 1987 has complaints procedures and right of appeal to persons who
have been involuntarily admitted (at the District court level). Board of Visitors have the role
of inspecting institutions and to regulate involuntary commitment. However state impunity
is provided for in this legislation as well and those provisions for appeal do not materialise in
courts due to perceived or adjudged incapacity of person with disability.
Right to appeals on involuntary commitment or take other treatment abuses to courts
(described more fully in Art. 15) are rarely witnessed before courts as access to justice
issues; They are seen more as problems of the treating doctors to be suitably resolved with
proper medication or other methods. The courts are rarely agitated over access to justice
matters as provided for in mental health legislation, because the overwhelming legal
framework is based on the incapacity provisions and it is impossible for a person of
‘unsound mind’ to have access to a lawyer or to self represent.
A study of 20 Reception Orders done in Pune, of people admitted into
209
the Pune mental
hospital in 2010 under the Mental Health Act of 1987 revealed the following
210:
In the final
judicial orders for admission, persons being admitted through involuntary commitment
(Section 20 admission) are referred to as ‘non-applicant’, and the ‘applicant’ is the mental
hospital authority. This is a perversion of the adversarial system of access to justice, where
both applicant and respondent have equal right of recognition before a court of law (or are
juridical entities). In these cases, there is no respondent, and the ‘applicant’ is state party,
viz. the said mental institution, which is committing the involuntary admission. Even names
of the person involuntarily admitted have not been mentioned, and no further
jurisprudence is found regarding arbitration on the constitutional issue of deprivation of
liberty in these cases. Each Order repeats word for word, that case paper of ‘non applicant’,
advocate for applicant has been heard, and the person with disability has been admitted or
readmitted as the case may be. It is evident that the person so committed under these ROs
209
Bhargavi Davar, (2012). ‘TOTAL- Final Policy Paper on implementation of Article 19 in Pune
district’, Pune: Bapu Trust.
210
A RO is an involuntary admission made under the MHA, by bringing a person before a court for
certifying as mentally ill and adjudicating right to liberty, to further admit that person in the asylum.
A total of 20 Reception Orders were looked at of 2010, from the court of the Chief Magistrate, Pune
district court, Pune: 0402030/2010, 2555/2010, 2575/2010, 2592/2010, 2593/2010, 2629/2010,
2890/2010, 2857/2010, 2841/2010, 2828/2010, 2812/2010, 2763/2010, 2857/2010, 2755/2010,
2737/2010, 2703/2010, 2685/2010, 2673/2010
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never came before the courts. A constitutional procedure in this instance has been treated
as an administrative matter.
The new proposed Mental Health Care Bill of 2013, pending before the Parliament, has
diluted judicial review process in case of admission, discharge into mental institutions,
whether private or public. The inspectorate, right of appeal, and other mechanisms as found
in Mental Health Act have been withdrawn; leaving everything in the hands of psychiatrists
and families alone.
The National Trust Act, 1999 and the Rehabilitation Council of India Act, 1992, do not have
any provision on access to justice, despite providing for guardianship arrangements and
licensing of institutions. Presently there are no review mechanisms in place to see if legal
guardian is performing their role properly. The Local Level Committee is supposed to act,
when someone files a complaint. But review of guardianship does not happen as evidenced
in Chapter on Article 12.
In the last decade, since the advent of the NTA 1999, judicial oversight over guardianship is
restricted in the case of persons with specified disabilities to administrative settlements
through local level committees.
Expanding legal discourse on disabilities in courts at all levels
In several cases after 2007, the Supreme Court and High Courts have explicitly relied upon
the CRPD, have enforced the rights of persons with disabilities and have advanced concepts
such as reasonable accommodation. When using the disability legislation, in several cases,
courts have been progressive and have advanced the case for stronger disability rights
under the existing PWD Act, the constitution, even noticing the disability law as a ‘mandate’
and not an ‘option’ for the state 211.
Supreme court has read PWDA 1995 in the light of CRPD, and noticed the human rights
based intent of disability legislation
212
and also, in the light of the constitution, especially
211
Prof I Elangovan v. Govt Of Tamil Nadu, W.P.NO.28217 OF 2008 (Madras High Court)
Bhagwan Dass and Anr v. Punjab State Electricity Board, Civil Appeal No. 8 of 2008, judgement
dated 4 January 2008 (Supreme Court); Syed Bashir-ud-Din v Nazir Ahmed Shah, Civil Appeals No.
2281-2282/2010 (Supreme Court of India)
212
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Article 21 (Right to Life and Liberty), and Article 14 (Equality). These new readings of
disability law open up new perspectives, concepts and litigation opportunities for access to
justice 213 for persons with disabilities.
In a wide array of laws (described in full at Art. 12) incapacity provisions are not supported
by safeguards and measures for access to justice. Considering that ‘incapacity’ finding is a
high level of disqualification, as described in chapter on Legal Capacity, not providing
safeguards and access to justice is a violation of Article 13.
Of particular concern is the fact that courts, at lower and high court levels, are making a
difference between ‘person with disability’ and ‘incapacitated’ person, going so far as to not
recognize a person of high support need as a person with disability and therefore not as a
juridical entity entitled to justice 214.
State legislations on Prevention of Vexatious Litigation are found, which controls access to
justice, allowing courts to dismiss cases considered by the court as frivolous and
vexatious215. In a recent case before the Delhi High Court, dismissed by the court as a
frivolous and vexatious, the appellant, Deepak Khosla was self representing himself on some
civil matters. However, not content with dismissal of case, Deepak Khosla was sent off to
IHBAS, New Delhi, for psychiatric assessment and observation216. Deepak Khosla’s
belligerent behaviour in court was construed to be justification for denial of access to
justice; but more than that, he was perceived to be “mentally ill” by the high court doubling
his barriers to accessing justice, and freshly establishing stereotype within courts about
people with psychosocial disabilities.
213
Ínclusive Planet, Center fro Disability Law and Policy and Center for Law and policy Research,
Chennai, 2011. Study on “REVIEW OF INDIAN CASE LAW SINCE INDIA’S RATIFICATION OF THE UN
CONVENTION ON RIGHTS OF PERSONS WITH DISABILITIES”, done for the purpose of this report,
supported by NCPEDP.
214
Kunal Singh versus Union of India, Appeal (civil) 1789 of 2000, in the supreme court of India
215
The Goa Vexatious Litigation (Prevention) Act, 2007 found on 26th January 2013:
http://goaprintingpress.gov.in/uploads/Vexatious%20Litigation%20Prevention%20Act.pdf
TamilNadu Vexatious Litigation (Prevention) Act of 1949 found on 26th January 2013
http://www.lawsofindia.org/pdf/tamil_nadu/1949/1949TN8.pdf
216
In the High court of Delhi, Deepak Khosla vs Montreaux Resorts Pvt Ltd & Ors on 24 April, 2012,
LETTERS PATENT APPEAL NO. 16/2012, decision of 24th April 2012.
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Police system
The Guidelines for the Code of Conduct for the Police were issued by the Ministry of Home
Affairs and communicated to Chief Secretaries of all States/Union Territories and Heads of
Central Police Organisations as on July 4, 1985. More recently, there are also Guidelines for
making arrests compiled by the Commonwealth Human Rights Initiative. While these
documents mention women, children and disadvantaged groups, there is no mention of
persons with disabilities 217.
Police system is the first step for people to access justice procedurally. Only after police file
First Information Report or other inquiry, can the case be taken any further. The WGHR
report for UPR describes several police atrocities against vulnerable groups. With respect to
disability, police are given a negative legal role to play, of aiding the state in apprehending
the person, if necessary forcibly, often times without warrant.
In legislations relating to persons with disabilities, especially of ‘unsound mind’ or ‘idiot’,
access to justice is greatly restricted by ‘incapacity’ provisions, and the police have a role to
play in restriction of human rights.
The Beggary Prevention Act 1959, Police Act 1861, Railways Act, a variety of Army Acts, have
provisions by which a person of ‘unsound mind’ or ‘idiot’ can be detained in a custodial
institution (of any kind) without their consent, restricting their chances of access to justice
at the time of being apprehended and thereafter. Such persons can also be transferred
between institutions without judicial review, leading to a process of ‘transinstitutionalisation’.
‘Arrest without warrant’ is provided for in these laws explicitly or by presumption; giving
notice to the person, a reading of rights, certain protocols about women who are getting
apprehended, and the many safeguards provided for those accused of a crime in the CrPC,
are not provided for in these legislations. These provisions have not been changed in the
post CRPD period.
217
‘Guidelines for Police Officers on Making Arrests’, compiled by Aravinda Kosaraju,
Commonwealth Human Rights Initiative, accessed at http://www.humanrightsinitiative.org on 18th
November 2011.
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JB, a woman in her mid thirties, with 3 sons, has been battling a divorce case in the Delhi
family court for nearly a decade. Somewhere during the domestic conflict, she was given a
diagnosis of mental illness and has been engaged in the process of full recovery. On the
label of ‘mental illness’ she lost custody of her sons. The legal situation was very difficult,
with continuing daily conflicts. On one of those occasions, JB did her morning chores and
returned home: where a van was waiting for her, with 10 accompanying policemen, only
two of them women. The police men did not inform her of her rights, and afraid of the
menacing scenario, she went without demur to IHBAS, a mental hospital in Delhi. On the
pretext that there were no private wards available, JB was interned in the highest security
forensic ward of the hospital with the help of the police. She reports that this was done
mainly to subdue her and make her very afraid. Further, she was asked to sign a paper that
she was there voluntarily. With advocacy and a public campaign by NAAJMI, the National
Alliance on Access to Justice for persons living with a Mental Illness, she was shifted to a
private ward; and then released218. Her own doctor had given an opinion that she did not
need institutionalisation. The Human Rights Law Network took up her case in the Delhi High
court. The sitting judge remarked that no father would forcibly commit his own daughter
without reason; further, that the head of Institute of Human Behaviour and Allied Sciences,
(IHBAS) New Delhi, would not violate patient rights! The case was eventually withdrawn by
the lawyers in the face of these judicial opinions. The court did not notice the inherent
violations found in the Mental health Act, the various PILs against the said institution in the
past; JB did not get a chance to represent herself or through a lawyer before the court.
“I was stopped by a traffic policeman. I could not understand why I was stopped. He said
something and started beating me. When I tried to tell them I cannot speak or hear, he
didn’t believe me. He took away my licence. This happens all the time with deaf people” 219.
(A victim of police brutality.)
218
http://mindarcs.wordpress.com/petitions/stop-forced-institutionalization-and-release-jhilmilbreckenridge/.
219
Also see The National Association of the Deaf though its Joint Secretary and another v Union of
India, W.P(C) 10849/2009 (Delhi High Court), where NAD has filed for sign language interpreters in
the context of addressing police harassment.
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“The training of police personnel to identify deaf persons appears to be to beat them until it
is amply evident that they are in fact “deaf” and in fact “mute” and therefore genuinely
deserving of their protection!”220
As discussed more fully in Article 12 NALSA has a state wide scheme for ‘protecting the
rights of the mentally ill’. Included in those provisions is the right to be protected from
forced institutionalisation and treatment. However, in their recent newsletter, NALSA has
referred to this scheme as helping in issuing reception orders under the Mental Health Act
of 1987, 221 which is restricting the right of access to justice.
In the Evidence Act, 1872, a witness who is unable to speak may give his evidence in any
other manner in which he can make it intelligible, as by writing or by signs; But such writing
must be written and the signs made in open Court. The Act also states that a “lunatic is not
incompetent to testify” during lucid intervals. Other CrPC provisions also deny capacity to
stand witness, give evidence, to persons of ‘unsound mind’. Such laws need to be
harmonized with the CRPD, as they pose barriers to full enjoyment of Article 13. The Penal
code does allow ‘right of private defence’ to persons of unsound mind (Sec 98) however
rarely witnessed in court practice.
A Double Edged Sword: The CrPC in India222
The “mentally ill accused” person stands on a different footing from other under trial
prisoners for the fact that such a person’s mental condition, when it falls for consideration
before the adjudicating authorities, brings into play specific procedures under sections 328
and 329 of the CrPC (The Code of Criminal Procedure) that allow for postponement of her
trial. If it appears to the adjudicative authorities that the accused is of ‘unsound mind’, and,
that she is “so incapacitated by her unsoundness of mind to be unable to defend herself or
stand trial”, the authorities postpone her trial. ... But, without basic procedural safeguards
220
-Email from Mr. Arun Rao, Deaf Way Foundation.
NALSA, (2010) Newsletter, April – November, Volume 1.
222
“Sheathing a Double-Edged Sword: Recent amendments to the CrPC in the context of accused
persons of ‘unsound mind’’, guest post by Aarthi Rajan, Posted on January 7, 2011 by Alok, accessed
at
http://www.criticaltwenties.in/lawthejudiciary/sheathing-a-double-edged-sword-recentamendments-to-the-crpc-in-the-context-of-accused-persons-of-%E2%80%98unsoundmind%E2%80%99 on 16th August, 2011.
221
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such as, a reasonable time limit on the period of postponement of trial, legal entitlement to
treatment at mental health care facilities during the period of postponement, waiver of the
condition to provide surety on release, and confinement (if at all) in a place other than a
prison, postponement has proven to be the proverbial “double-edged sword”. The CrPC is
invoked to protect the fair trial rights of the mentally ill accused but in reality, it causes and
perpetuates prolonged, even lifelong confinement of such persons in prisons.
Accessibility concerns
There was no information available on the Annual Reports of Law Ministry or Ministry of
Social Justice and Empowerment regarding any measures taken to provide accessibility for
legal proceedings. There is also no information available as to how many of the Courts,
Tribunals and Police Stations are accessible for persons with disabilities. The Supreme Court
and some High Courts have certain accessibility features, like ramps. However, most courts
are inaccessible, including that of the Disability Commissioners’ in many States. There are
also issues about reaching these places, for people who have mobility difficulties.
BOX ITEM
“Among those buildings that need barrier-free features in the city are the disability
commissioner's office on Church Road, collectorate, council hall and the regional
transport office. There are scores of others.223”
BOX ITEM
“I explained to the Police that I was a wheelchair user, who lived alone and neither
did I have a car nor was the public transport system accessible to me, hence I could
not come to the police station physically (to file an FIR). The final verdict was that
either I rush to the police station now to get investigation started or just forget
about my handbag. Of course going to the station was not possible so I had no
223
From ‘Challenge for the disabled’, Neha Madaan, Times of India, 7th November 2010. Accessed at
http://articles.timesofindia.indiatimes.com/2010-11-07/pune/28225848_1_barrier-freeenvironment-buildings-disabled-friendly-barrier-free-building on 18th November 2011.
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option but to forget about my handbag. The issue here is not of my losing my
handbag, but the inaccessibility for me as a disabled person to the police services.
This is a situation that disabled and elderly people are bound to face more often.
Today the question was only of my handbag but tomorrow it may be something
more severe, but even tomorrow having access to the police service will be
impossible. If there are people with sensory impairments who want to make a
complaint, does the police department have forms and information in alternate
format that can be understood by vision impaired person? Do they have sign
language interpreters, even if they are available on call bases, who can assist in
lodging complaints of hearing impaired persons? Can the information provided by
them in their website be read by all? Here I am talking about something as basic a
lodging a complaint with the police, which is just the tip of the ice berg and that
probably for most is a considerably easy task, but for some of us is impossible”
224.
There are barriers of communication and information, which makes accessing justice quite
difficult. Redress related information is available through Internet in most government
websites. There are also online services. Government is also planning information kiosks in
rural areas. The Information and Technology Ministry had announced a policy in 2009 to
make all Government websites compliant to WCAG 2.0 standards. However, most of the
websites/kiosks are not compliant to web accessibility standards.
“Speech and communication are key in courtroom discussions. But if a speech and hearing
impaired person is involved, the system becomes mute to his or her needs. The gamut of
communication needed in a court of law presupposes the ability to communicate clearly and
comprehensively. The need for communication, with lawyers, judges, witnesses and in
writing, is so great that in fact most hearing persons are daunted at the prospect of going to
courts and dealing with these situations. It is remarkable that in the 60 years of
Independence and the active Indian Jurisprudence and the plethora of heinous crimes
224
Email from Shivani Gupta, of Access India
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against deaf persons, no judge has ever felt the need to write a judgment including the right
to interpreters and the rights of the deaf person in the justice system.225”
Children with disabilities face the highest barriers on access to justice (described more fully
in Arts. 7, 15). The Mumbai High Court, following sexual atrocities against children with
mental disabilities (more fully described in Art. 15 of this report) has issued “Guidelines226
for access to justice in cases of sexual abuse/assault/sexual offences against mentally
deficient (sic) children”.
-
“A Crisis Intervention Centre which will be recognized as Police and the Maharashtra
State Commission for Children for responding to calls of sexual assault at the police
station to provide counselling and other support services to victims of rape and
sexual assault.
-
“Every police station to have 24 hours a lady police officer or a designated police
officer.
-
“The presence of a support person permitted while recording the statement of the
MDC.
-
“The recording of statements of MDC will require a lot of time and patience on the
part of IO. They are special children and the IO will first have to build a rapport with
the children as many of them will not speak initially. Statement must be recorded
under S.164 Cr.P.C. before a Magistrate. Assistance must be made available of sign
language experts, counsellors, psychiatrists and a support person must be allowed to
be present with the child, at the police station and Court.
-
“Special rooms to be set up in all government hospitals for MDC victims to be
examined and questioned in privacy. Psychiatric units must assign paediatric wards
for the sexually abused children.
225
Arun Rao, Disability Activist, Combat Law, Jan-Feb 2008, Accessed at http://combatlaw.org/wpcontent/uploads/Combat_Law_Jan-Feb_2008.pdf on 16th November 2011
226
In the High Court of Judicature at Bombay, Suo Motu PIL No. 182 of 2010, Article in Mumbai
Mirror versus The Secretary, Department of Women & Child Development,Govt. of Maharashtra &
Ors. Respondents: Prof. Dr. Asha Bajpai, Amicus Curiae, in the court of MOHIT S. SHAH, C. J. AND DR.
D.Y. CHANDRACHUD, J., Judgment of 29th July 2011.
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-
“A sexual assault forensic evidence (SAFE) collection kit consisting of a set of items
used by medical personnel for gathering and preserving physical evidence following
a sexual assault should be available in all government hospitals.
-
“All hospitals must cooperate with the police and preserve the samples likely to
putrefy in their pathological facility till such time that the police are able to complete
their paperwork for despatch to forensic lab test including DNA.
-
“Child welfare committee shall monitor that the necessary medical and psychological
aid and rehabilitation facility are provided to the MDC victim.
-
“An endeavour must be made to commit such cases to the Court of Sessions
expeditiously.
-
“The Legal Services Authority to provide such victims with a counsel.
-
“The Additional Sessions Judgte/District Judge shall maintain a panel of
psychiatrists/psychologists and experts in sign language who could assist in recording
the statement of witnesses as and when requested by the Sessions Court.
-
“The trial to be conducted through video conferencing.
-
“Permitting use of a videotapped interview of a child’s statement by a Judge in the
presence of a child support person. The cross examination of a MDC victim only be
carried out by the Judge or an expert wherever required, based on written questions
submitted by the defence upon perusal of the testimony of the MDC.
-
“The learned trial Judge may also consider the feasibility of examining the child
through video conferencing or in the chamber so that the MDC victim is not
intimidated”.
Trainings:
-
The Annual Report of Ministry of Social Justice and Empowerment, 2009-10, has not
mentioned any activities that has been undertaken on CRPD trainings. The CRPD has
not even been translated in all Indian official languages and sign language.
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-
The Lal Bahadur Shastri National Academy of Administration (LBSNAA), which
provides training to new joinees in Civil Services has a module on disability. The Civil
Services include the Indian Police Service. The Syllabus for the Basic Course Training
Program for IPS Officers of Sardar Vallabhbhai Patel National Police Academy has a
paper on ‘Ethics and Human Rights’ 227.
-
The Department of Justice, Ministry of Law and Justice, Government of India has
invited proposals from organisations to create voice-based information kiosks. These
kiosks will be placed in the States of Chhattisgarh and Jharkhand. The proposals are
invited in the context of the GOI-UNDP “Project on Access to Justice for Marginalized
People”. The project is expected to enable empowerment of women and people
belonging to marginalised groups (SCs, STs, minorities, children, disabled people etc.)
The Project aims at exploring innovative ways of leveraging Information and
Communication Technology (ICTs) to enable access of marginalised people to key
information and awareness on legal issues. The belief is that access to key
information, together with support from Civil Society Organisations and networks
would enable marginalised sections to demand their legal entitlements and seek
speedy and affordable justice services. A person visiting the info-kiosk would be able
to access information on legal issues, including information on rights and legal
entitlements and also how to access justice delivery system228.
Resources
There is an acute underutilisation of funds (example, 87.33% underutilization in Madhya
Pradesh) on legal aid services; and lack of experienced lawyers; severely underpaid by
government.
While children’s courts were established by the Protection of Child Rights Act, 2005, Delhi
was the first state to open such facilities for speedy trials in 2011. Protection of children still
continues to receive only 1.26% of the national budget.
227
Accessed at http://www.svpnpa.gov.in/Innerpage.aspx?st=Basic%20Course&cat=Training on 7th
November 2011.
228
‘ICTs for Enabling Access to Justice: Voice-based Information Kiosks’, Government of India and
UNDP Project, accessed at http://lawmin.nic.in/doj/justice/kiosk.doc on 10th November 2011.
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Recommendations:
1. Based on the Study undertaken by Human Rights Law Network229, The Deaf Way
Foundation, and the National Association of the Deaf, legislations with core
provisions on access to justice, including The Criminal Procedure Code, 1908, The
Evidence Act, 1872, The Legal Services Authorities Act, 1987, Probation of Offenders
Act, 1958, Juvenile Justice Act require amendments to harmonise them with the
CRPD. This will lead to better realization of right of access to justice.
2. State must ensure the implementation of provisions and court directives, as per
international obligations.
3. Ministry of Social Justice and Empowerment, Ministry of Law and Justice and
Information and Broadcasting Ministry and other statutory bodies such as NALSA,
NHRC, should have targeted programmes for awareness creation through mass
media on all rights of all persons with disabilities.
4. Access to judicial/legal infrastructure, services and information needs to be ensured
through provisions for accessibility for persons with disabilities. Time bound targets
with budgets should be made for making infrastructure, information and procedures
accessible for persons with disabilities.
5. Impunity granted to public servants in a variety of protection laws must be nullified.
6. Training of legal fraternity and police personnel on the CRPD needs urgent attention.
7. Law curricula must compulsorily include CRPD trainings.
229
Page 61-64, ‘Harmonizing Laws with the UNCRPD’, Edited by Dr. Amita Dhanda and Rajive Raturi,
Human Rights Law Network, The Deaf Way Foundation, National Association of the Deaf, May 2010.
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Article 14 Right to Liberty and security
1. States Parties shall ensure that persons with disabilities, on an equal basis with
others,
(a) Enjoy the right to liberty and security of person;
(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any
deprivation of liberty is in conformity with the law, and that the existence of a
disability shall in no case justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty
through any process, they are, on an equal basis with others, entitled to guarantees
in accordance with international human rights law and shall be treated in compliance
with the objectives and principles of the present Convention, including by provision of
reasonable accommodation.
NCPEDP & DEOC survey
80% of people surveyed by DEOC for this report were not satisfied with outcomes on Article
14. Another 14% did not know much about this issue. Only 6% were satisfied with
outcomes.
Constitutional guarantees and recent legal outcomes
Constitutional protections on Right to Liberty exist: Article 21 of the Indian Constitution
provides that, ‘No person shall be deprived of his life or personal liberty except according to
procedure established by law.’ There are no exceptions made on the basis of status or
identity. The clause ‘according to procedure established by law’ has been arbitrated with full
judicial process by the courts, including the Supreme court, usually in the context of crime.
Article 22 of the Indian Constitution is procedural and provides protection against arbitrary
and unlawful arrest and detention. It provides for the right to information on the reasons
for arrest; for being brought before a judge promptly, the right to have a proceeding before
a court, etc.
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There are many institutions in India which deprive persons of liberty on the basis of
disability, such as institutions for people with psychosocial disabilities; and for people with
mental, intellectual disabilities. These are set up through different Ministries, notably those
with scope of social development (Ministry of Health and Family Welfare, Ministry of Social
Justice and Empowerment, Ministry of Women and Child).
Due to Public Interest Litigations in the 1980s, and the 1990s, the Supreme Court of India as
well as various High Courts have issued directives on ‘wrongful’ or ‘illegal’ confinement, and
inhuman, degrading treatment of people within custodial institutions of different kinds,
particularly the prisons. Note that the Indian court reading of the Right to Life and Liberty
also includes the right to Privacy 230 (which is treated elsewhere in this report).
Following a Supreme Court Order of 2002231, and in reaction to great human rights
violations which occurred within a private shelter for people with psychosocial disabilities in
2001232, the government of India was placed under pressure to fully implement the Mental
Health Act 1987 throughout the country. The Supreme Court also instructed state
governments to construct a mental hospital where none exist. As compliance, the GOI
liberalised norms for setting up private mental hospitals, and by 2009, despite the advent of
the CRPD, over 400 private mental hospitals have sprung up in India, with applications
continuing to go before the state mental health authorities.
Recent affidavits filed by various state governments before the Supreme Court shows that in
Andhra Pradesh and Chandigarh, over 35 institutions have been licensed; in Maharashtra,
101 institutions licensed; and Kerala is the highest with around 150 private institutions
233.
The Supreme Court did not provide directions on safeguards to be adopted during
admission, request for discharge and stay at the institution.
230
http://www.indiankanoon.org/doc/611349/ as found on 1st January 2013
231
Writ Petition (Civil) No. 334/2001, Saarthak versus Government of India
232
Davar, Bhargavi and Lohokare, M. 2008. ‘Recovering from psychosocial traumas: The place of
Dargahs in Maharashtra’. Economic and Political Weekly, Vol. XLIV, no. 16 (April): 60-68.
233
Davar, Bhargavi V (2012) ‘Legal structures for and against people with psychosocial disabilities’, In
Economic and Political Weekly, Vol. xlvii, No. 52, December 29, pp. 123-131
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Right to liberty on equal basis with others
Concerns about arbitrary arrest and detention are not specific to people with disabilities in
India, though all people with disabilities are at higher risk. The Working Group on Human
Rights
234
reported to the OHCHR for UPR hearing in 2012, on the arbitrary and unlawful
arrest and detention through the use of special laws, including Chhattisgarh Special Public
Security Act, 2005 (CSPSA), Jammu & Kashmir Public Safety Act, 1978 (PSA) and AFSPA (Army
Forces Special Powers Act) operative in many conflict zones of India. In a recent 2012 court
order, Manipur High Court Bench have raised hopes for the contesting civil society
organisations that AFSPA will be repealed in the state 235.
However, the right to liberty concerns all citizens of India, including children. In the post
colonial period, India has continued the culture of creating closed door or semi-penal type
institutions for women, children, homeless and destitute, people with disabilities and the
elderly, as fulfilment of its obligations as parens patriae. Most of these institutions practice
involuntary civil commitments which are modelled on the legal format of criminal
commitments.
The CRPD compliant outcome that there would be no deprivation of liberty on the basis of
disability is belied not only for the most marginalised groups of people with disabilities, but
for all people with disabilities.
Civil commitments of persons with disabilities
Legislations from colonial times have provided for warehousing of people, especially the
‘poor’, the ‘infirm’, the ‘idiots’, the ‘insane’ and the ‘paupers’
236.
Those provisions and
234
Human rights in India. Joint Stakeholders’ Report, for the Universal Periodic Review Report, by
Working Group on Human Rights in India and the UN (OHCR), submitted to UNOHCR on 28 th
November, 2011, p. 11
235
http://in.news.yahoo.com/sc-raises-army-act-repeal-hope-220128315.html, as found on 1st
January 2013
236
Mills, J. H. (2000). Madness, Cannabis and Colonialism: The ‘‘Native-Only’’ Lunatic Asylums of
British India, 1857-1900. UK: Macmillan Press Ltd.
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institutional arrangements therein have not been reformed following Independence and the
legal reform movement237.
The civil commitment laws governing these constituencies overlap in function, with
provisions for easy transfer of people between the institutions, absent, space to
accommodate them in any one of them. Institutions are closed door in design, with wards
which may have their own lock up system.
The ‘Beggars’ Homes’ in over 17 states of India, using penal, and often inhuman methods of
‘arrest without warrant’
238.
Many ‘beggars’ homes’ are converted into ‘old age homes’ or
‘disabled homes’, where the homeless, elderly, destitute and people with disabilities are
lumped together without any reasonable accommodation, services or care 239, 240. Beggary
Act does not provide for minimum standards, safeguards or monitoring. A section of human
rights activists and academics are asking for change and repeal241. The role of the police in
‘round up’ to be taken forcibly to these institutions has been observed.
“I was standing near station waiting for next train. A woman in a Khaki color sari was
standing with a group of other people. She approached me and told me that they needed
some people to work somewhere and that they will give good money and vada pav (a
favourite street food) for the work done. As there was some time left for the train to arrive, I
decided to go with her. They brought me directly to the court. I started realizing that
something was going wrong. I was fearful and started protesting. One of the men went
inside the court and asked me to sit in the vehicle. Eventually the vehicle brought me here (in
237
Davar, B.V. (2012a). ‘Legal Frameworks for and against persons with psychosocial disabilities’.
Economic and Political Weekly, XLVI(52)52, 123-131.
238
http://www.telegraphindia.com/1100805/jsp/opinion/story_12767012.jsp, as found on 1st
January 2013
239
Seher Counselling Center Progress Report 2008, Pune: Bapu Trust for Research on Mind &
Discourse
240
HRC No. 5978/SM-1242/2010 and connected cases, before Justice SR Nayak, in the Karnataka
State Human Rights Commission, on 18th September 2010.
241
Dyutimoy Mukherjee, (2008). ‘Laws For Beggars, Justice for Whom: A Critical Review of the
Bombay Prevention of Begging Act 1959’ The International Journal of Human Rights, Volume
12, Issue 2, 279-288; Usha Ramanathan, (2010), A constitution amid dire straits, Accessed online at
http://www.india-seminar.com/2010/615/615_usha_ramanathan.htm on 15th November 2013.
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the beggars’ Home).They did not tell me why they brought me here or how long I will be here
.242”
Even though there has been grassroots advocacy for the repeal of the Beggary Prevention
Act 1959, the government has not initiated any firm action in this regard. But there has been
dialogue within the Ministry of Social Justice and Empowerment about whether to repeal
the Act, make a new legislation, or make a national policy 243.
Against principles of the CRPD, the country continues to ‘upgrade’ such facilities 244. For
example, in 2013, the Chembur beggars’ home in Mumbai is all set for a ‘makeover’ to be
able to ‘admit’ more people. Men to be interned in the new facility are estimated at 850,
and women at 550, making this ‘service’ a warehousing of the poor and disabled. Women
with psychosocial disabilities are kept segregated from the main wards, in a separate lock up
ward in the Chembur facility.
Correction homes exist for children by the Department of Women and Child. Under Juvenile
Justice (Care and Protection) Act, 2000 several remand institutions for children ‘in conflict
with law’ have been created (treated more fully in Article 15). The WGHR report to OHCHR
notes, poor implementation of the law, lack of support structures, low trial rates and
inadequate resources leading to indefinite confinement of children. Children’s ages are
often falsified and they are tried in adult courts or sent to adult prisons 245. At present courts
around the country are invigilating these institutions due to various rights violations and
issuing guidelines.
Often, there is no record of how many such institutions exist and what is happening wthin
them. In Tamil Nadu, 246 as shared by Mr. A. Sarvana Kumar, Dy. Director, his Dept. of Social
242
Ibid.
Workshop Report on ‘Begging: Perspectives, Issues and the Road Ahead’, 15th December 2011,
Department of Social Welfare and Tata Institute of Social Sciences, New Delhi.
244
http://articles.timesofindia.indiatimes.com/2013-06-27/mumbai/40232220_1_beggars-shelterhome-bmc
245
Human rights in India. Joint Stakeholders’ Report, for the Universal Periodic Review Report, by
Working Group on Human Rights in India and the UN (OHCR), submitted to UNOHCR on 28th
November, 2011, p. 17
246
MINUTES OF THE FIRST REGIONAL CONSULTATION FOR CROSS_LEARNING ON ICPS BETWEEN
STATES, HELD AT REGIONAL CENTRE, NIPCCD, LUCKNOW, 27 TH & 28 TH SEPTEMBER, 2012
243
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Defence, with help of several other departments and organisations, identified 2054 Homes,
and the State finalized 1686 Homes for inspection and registration. The State had made 5
teams per district having Probation officers, DSWO, District Nutrition officer, etc. and each
team was required to inspect 10 Homes. These efforts of monitoring the many thousands of
institutions that exist in each state require streamlined monitoring mechanisms, enormous
budgets and are rarely done, and when done, as above, coverage is also quite poor.
Most recently, homes for ‘indigent elderly’ is being created and maintained under the
Maintenance and Welfare of Parents and Senior citizens Act, 2007. This legislation may also
have significance for elderly with disabilities.
Civil commitment under disability legislations
The Persons with Disabilities Act of 1995, presently in force, does not mention Right to
Liberty nor deprivation of liberty explicitly. However, the relevant authority, viz. Ministry of
Social Justice and Empowerment, maintain a number of institutions for persons with
disabilities; and separate institutions for persons with severe disabilities (80% and above).
The Act provides for the licensing and regulation procedures for both kinds of institutions
under Chapters X and XI. Illustratively, in Delhi alone, as found in 2012, there are 10 such
licensed institutions for ‘differently abled’ children 247.
Abuses and atrocities in these institutions, of children, is described in Article 7 of this report,
but to mention briefly, these institutions, along with those regulated by Women and Child
department, have very poor human rights records.
The new proposed Rights of Persons with Disabilities Bill, 2012, provides Right to Liberty
explicitly. It provides for non coercive institutions which build values of community, peaceful
and non violent living, and right to choice; and restrictions / phasing out of involuntary
commitment. However harmonizing these with other legislations will be quite a challenge
for the Government of India.
http://wcd.nic.in/icpsmon/pdf/Regional%20consultation/Minutes_201213_Firstregionalconsultation.pdf
247
http://delhi.gov.in/wps/wcm/connect/doit_socialwelfare/SocialWelfare/Home/Our+Services/Welfar
e+of+Persons+with+Disabilities/Institutions+for+Welfare+of+Persons+with+Disabilities
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A variety of institutions have also been created under the National Trust Act, though, as
with PWDA, they do not have explicit provisions of involuntary commitment. These
institutions being for children, or adults with mental disabilities, a culture of custody and
guardianship prevails.
The extant Mental Health Act 1987, an institutional legislation for ‘mentally ill’ people,
allows the licensing of ‘special’ institutions for people with psychosocial disabilities; and
provides liberally for involuntary commitment by Reception Order (Section 20 Admission)
through the court; Under Special Circumstances (Section 19 admission) with minimum
judicial safeguards; involuntary admission procedures for moving the homeless disabled
between institutions.
Mental Health Act of 1987 does not provide for human rights safeguards when arrested /
rescued and restricts voluntary discharge, as this law is based on ‘incapacity’ of person with
disability. Such a person cannot self represent, request legal aid or give consent. The
legislation does not provide for human rights safeguards or judicial due process when a
person is transferred between different penal institutions (prisons, police custody, ‘beggars’
homes’); does not specify any measures for reasonable accommodation, and makes no
comment on how a person may be treated within the mental institution. There is a simple
provision in Chapter VIII: Any person who detains a mentally ill person otherwise than in
accordance with the Act, shall be punishable with imprisonment for two years or with a fine
of Rs. 1000/- or with both248. Some recent judgments, in the context of foreign nationals,
have been proactive in restoring right to liberty for persons ‘rounded up’ by the police and
certified mentally ill ‘mindlessly’ 249.
‘Five (private) facilities were surrounded by fences and topped with barbed wire. Seven
residential rehabilitation centres (RC) had facilities where locking mechanisms were used to
248
Uma Manickam vs The Inspector Of Police on 14 September, 2007, Habeas Corpus Petition
No.1334 of 2007 In the Madras High Court.
249
Nathalie Vandenbyvanghe vs The State Of Tamil Nadu on 19 September, 2008, in the Madras High
Court, Petition under Article 226 of the Constitution of India seeking to issue a writ of habeas corpus
directing the 3rd respondent to set Mr. Roger Vandenbyvange, a French National, aged about 61
years, at liberty forthwith.
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prevent residents from exiting the facility or a portion thereof. I would therefore describe a
significant portion of the RCs that I visited as locked or closed facilities 250.
Several reports of illegal and wrongful confinement, fraudulent admissions reported in post
CRPD period. In many private rehabilitation centers, patient signature for consent is not
taken for admission. It has been found that, on the admission forms, there is space provided
only for consent by family member 251.
On December, 2011, a raid on illegally run private mental asylum in Thrissur, revealed that
41 ‘mentally ill’ people were chained to their beds and most had not left their room in years.
It was reported that the ‘managers’ received monies from India and abroad for keeping
those people there. On 22-3-2012, Thrissur, 5 ‘mentally ill’ people were rescued from an
illegal asylum, The Thapodhyan Ashram, where they were confined to small cells without
any treatment 252. In Chennai, following, a ‘Beggar Free Chennai Campaign’ 253, around 420
people
254
were forcibly caught and detained in Kilpauk mental hospital. According to an
independent inquiry, many were in good mental health, working in unorganized sectors,
migrants from other districts and states and homeless. Those people who were sleeping or
living on the streets were rounded up randomly by the health inspectors from the 10 zones
of Chennai Corporation. Masina hospital, a century old private asylum in Mumbai has been
exposed by the media repeatedly for fraudulent admissions, extant involuntary
commitments, fraudulent admissions and various other abuses 255.
There are no safeguards for admission and discharge and judicial inquiry is far from
satisfactory, making an admission into a mental institution unconstitutional in most
instances.
250
From ‘General Hospital, Psychiatric Unit and Rehabilitation Centres in India: Do Law and Public
Policy present barriers to community based mental health services?’, Kevin M. Cremin, An occasional
study paper of The Centre for Advocacy in Mental Health, Pune, 2007.
251
Ibid.
252
http://www.thehindu.com/todays-paper/tp-national/tp-kerala/article3027286.ece
253
http://www.ndtv.com/video/player/news/chennai-to-become-beggar-free-soon/143406 as
found on 1st January 2013
254
Dispensable lives, a beggar free ‘Singara Chennai’: Report by PUCL fact finding team. Chennai, 7th
June, 2010.
255
http://www.mumbaimirror.com/article/15/20110103201101030853502491dd077d5/Healthchiefs-raise-alarm-on-masina%E2%80%99s-house-of-horrors.html;
http://www.ndtv.com/article/cities/man-admitted-for-alcohol-rehab-says-ward-boys-beat-him-up23519; http://www.dnaindia.com/india/report_in-for-medical-counselling-scarred-for-life_1707626
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A study of 20 Reception Orders (ROs) done in Pune, of people admitted into
256
the Pune
mental hospital in 2010 under Section 20 of the Mental Health Act revealed the following
257:
-
An administrative order, repeated word for word in each and every 20 ROs reviewed,
is passed off in all cases of this small sample as a judicial order 258.
-
MHA provides for very short detention period by which time a Reception Order must
be issued, else it is to be construed as illegal detention. The study of ROs shows that,
a person may have been admitted on a certain day. However courts have taken upto
3 months to issue a reception order.
-
It is clear that no inquiry has been conducted because admission orders are all the
same, except for change in the case number and the date, sometimes the name of
the sitting judge.
-
The judge does not make any inquiry or special notings for any of the ROs. Each RO
in very same words says that the ‘advocate’ for the applicant has been heard, and
medical report has been satisfying. However no further judicial notings were found
on who the advocate is, what the hearing was, what the medical report said and the
reasoning of the court for the involuntary admission.
-
The court has not engaged at any point with examining opportunities for discharge
or placing challenges before the institutional authorities.
-
It is also clear from the ROs that the person with disability never came before the
court at any point, whether for admission, or whether for extension of stay in the
hospital. It is evident from the above analysis that people with mental and
256
Bhargavi Davar, (2012). ‘TOTAL- Final Policy Paper on implementation of Article 19 in Pune
district’, Pune: Bapu Trust.
257
A RO is an involuntary admission made under the MHA, by bringing a person before a court for
certifying as mentally ill and adjudicating right to liberty, to further admit that person in the asylum.
A total of 20 Reception Orders were looked at of 2010, from the court of the Chief Magistrate, Pune
district court, Pune: 0402030/2010, 2555/2010, 2575/2010, 2592/2010, 2593/2010, 2629/2010,
2890/2010, 2857/2010, 2841/2010, 2828/2010, 2812/2010, 2763/2010, 2857/2010, 2755/2010,
2737/2010, 2703/2010, 2685/2010, 2673/2010
258
‘Order No _____ of date ____: Non applicant admitted on _________ Medical report is satisfying,
advocate for the applicant has been heard. And non applicant can be admitted / RO extended until
fully recovered. In the court of ___________, judgement date ___________, signed by Presiding
officer’.
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psychosocial disabilities, which is a big barrier for life in the community and being
able to access services in the community.
Further, once incarcerated, the legislations do not further prescribe any human rights
standards for care.
“In (Pune) mental hospital, I had very bad experience. There was lot of filth there. People do
not treat a human being as human being, they are treated as animals there ….no proper
food, no proper clothing …..no washed clothes …..so much that there are lice on the clothes ,
you have to wear such clothes because of that I also once ran away from there. Lot of
restrictions, yes, they lock you there. When I felt better, then I used to realize that here they
lock up, they make us stay in such filth. The entire day, just roaming….they used to lock us
….only they would allow us to go out for having food and later again lock us. They make it so
bad, that we have to just survive in that. Then I used to feel sad, then I used to cry so I used
to tell the social worker that ‘send a letter to my family members and tell them to come and
take me away’… in that period I used to suffer a lot …” 259.
Continuing the legacy of creating institutions and perpetrating the practice of involuntary
commitment, the government of India has proposed a new Mental Health Care Bill 2010
and also set up a 13 member Mental health Task Force (April 2011) to come out with a
national mental health policy. Ministry of Health and Family Welfare is adopting a two
pronged approach to reform the poorly developed Mental health sector: (1) Making a new
mental health law for creating and regulating institutions, especially private institutions and
(2) Strengthening and expanding the community mental health programs in the country.
Under (1) a scheme has been recommended in the Minister’s discretionary fund, on 6 th
September 2011: ‘Supervised specialist inpatient treatments for persons with chronic and
enduring mental disorders e.g. Treatment for resistant OCD and Schizophrenia & chronic
psychoses’, referring to the creation of more institutional facilities for the ‘mentally ill’
260.
The Bill is pending before Parliament for final approval.
259
Interview with Bapu Gore, survivor, Kashewadi basti, Pune. Found in Base line report of “Urban
mental health program”, Bapu Trust, 2010.
260
http://mhpolicy.files.wordpress.com/2012/06/summary-of-work-of-policy-group-till-jan2012.pdf, as found on 31st December 2013
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The proposed Mental Health Care Bill 2010 is a penal law, further diluting the regulatory
function of the state; allowing easy and online registration of mental asylums; no judicial
reviews of admissions and discharge, thereby removing all safeguards on deprivation of
liberty and constitutional guarantees; and no penalty system. Decision making on admission
discharge is by administrative order and a review committee will arbitrate those decisions
and eventually ‘inform’ the state regulatory authorities. The justice issue concerning Right
to liberty has been eschewed in this legal presentation.
Civil commitment under other laws
Not one, but a variety of laws and institutions exist for placing people with disabilities
whose liberty has been involuntarily deprived. Legislative change has been slow in most
areas where needed. Extant legislations do not carry adequate human rights safeguards,
leading to rights violations. Reasonable accommodation has not been provided for people
within institutions.
Refer The Army Act of 1950 (Sections 145-149); The Air Force Act of 1950 (Sections 145149); The Navy Act of 1957 (Sections 143-144); The Coast Guard Act of 1978 (Sections 8892); Border Security Force Act of 1969 (Sections 99-103); Assam Rifles Act of 2006 (Sections
121-125); Sashatra Seema Bal Act of 2007 (Sections 111-115); Indo Tibetan Border Police
Force Act of 1992 (Sections 111-115).
In these may be found pathways for involuntary civil commitment into ‘lunatic asylum’. The
words ‘lunacy’, ‘lunatic’, ‘unsound mind’ and ‘idiot’ are still widely used in this set of laws.
There are detention provisions to a variety of institutions, and reference is made to the
Indian Lunacy Act of 1912. The government has not yet addressed these legislations from
CRPD point of view.
A recent Madras High Court Judgment reads as follows, clearly giving powers to all statutory
authorities under a variety of legislations to involuntarily institutionalise ‘mentally ill’
persons: ‘An order under section 30 of the Prisoners Act, 1900, or under section 144 of the
Air Force Act, 1950, or under section 145 of the Army Act, 1950, or under section 143 or
section 144 of the Navy Act, 1957, or under section 330 or section 335 of the Code of
Criminal Procedure, 1973, directing the reception of a mentally ill prisoner into any
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psychiatric hospital or psychiatric nursing home, shall be sufficient authority for the
admission of such person in such hospital or psychiatric nursing home to which such person
may be lawfully transferred for detention’. There is no judicial oversight of these transfers
and detentions wrought by multiple legislations.
Sections relating to criminal procedures concerning people of ‘Unsound Mind’ and ‘Idiot’ in
the Indian CrPC [Criminal Procedure Code] were amended in 2008. ‘Idiot’ has been replaced
by ‘mental retardation’; ‘Unsound mind’ however remains in criminal law. As a remedy for
the long term or indefinite incarceration of ‘insane’ under trials due to finding of
‘incapacity’, section 330 now provides for acquittal, discharge, hand over to relative or
discharge to ‘lunatic asylum’, if found ‘incapable’ of standing trial or defence.
The amendment has not changed ground realities for people with disabilities inside prisons.
According to the latest Prison Statistics prepared by the National Crime Records Bureau
(NCRB), 296 inmates across the jails in the state are suffering from mental illness. Out of
them 224 have been convicted and the rest are undertrials. As per the report, inmates with
mental illness account for 4.26 per cent of the total 6,947 prisoners lodged in the jails in the
state261.
A person suspected to be ‘of unsound mind’ can be involuntarily committed in a psychiatric
institution for observation. If found of unsound mind, may be interned involuntarily in the
institution. Such institutionalisation tends to be indefinite, without any trial procedure262.
Various other legislations (Police Act, Corporation Act, Railways Act) provide alternative
authorities and penal pathways for involuntary commitment of the destitute and disabled in
existing penal institutions. The government has not yet addressed these legislations from
CRPD point of view and vested interest in institutionalising a person as ‘mentally ill’ is not
uncommon.
In a recent judgment, the Madras high court observed: ‘We are grieved at the turn of events
in this case, viz., making a normal man, a mentally ill person, in order to grab his property
fraudulently, by perverting or subverting the provisions of the Mental Health Act, 1987
261
http://newindianexpress.com/states/kerala/Shackled-and-lost-justice-eludes-mentally-illundertrials/2013/10/18/article1841422.ece
262
ibid.
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which is enacted to consolidate and amend the law relating to treatment and care of
mentally ill persons, to make better provision with respect to their property and affairs and
for matters connected therewith or incidental thereto’
263.
Also refer chapter on Article 12
for other illustrations.
Mental health law and incapacity legislations have to be seen together, to assess their
impact over the lives of people. Mental health legislation serves the purpose of managing
those who fall through the ‘incapacity’ case law, who the court deems ‘unsound’, and who
are directed to be observed, examined, etc. Such incarceration could be in the context of
marriage, property, contracts, guardianship, etc.
BOX ITEM
A TALE OF TRAVAILS AND TRIUMPHS
Hasan Galib came to Odhisa from Assam in 2008. Upon finding him wandering on the
streets of Kakdwip, the police admitted him to Lumbini Park Mental Hospital, Kolkatta, for
treatment. In six months, although he was officially declared clinically fit to go out into the
world, the consultant psychiatrist declined to let him go. They said that he would be
discharged only under the three following circumstances: (a) A family member came and
signed him out; (b) Anjali, an NGO working at Lumbini, signed a bond on his behalf or (c) or a
court order. Hasan filed a case against the state in the lower court in Kakdwip, which did not
take the case even to the hearing stage and kept deferring it time and again, while this
young man kept languishing in this facility against his will. The Additional Chief Judicial
Magistrate (ACJM) of Kakdwip court dismissed the case denying discharge. Advocate
Debasish Banerjee then filed a case of criminal revision under constitutional law with the
Calcutta High Court. Completely oblivious of the fact that Hasan’s case was waiting to be
heard at the High Court on 12th September, all of a sudden after two long years Kakdwip
ACJM ordered immediate release of Hasan. However, the Hospital Authorities were once
again confused as to whom they are going to handover Hasan. They wanted Anjali to take
his ‘custody’, arguing that Hasan needed no custody. Hasan was back in the ward. On 12th of
263
Habeas Corpus Petition No.1334 of 2007, in the High Court of Chennai, Uma Manickam ..
Petitioner vs.Inspector of Police, Villivakkam, Jayakumar, Ravikumar, SR Raja, 2007
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September Hon’ble Judge at High Court reprimanded the Superintendent and the Medical
Officer for their ignorance about the mental health act and their callous attitude. He clearly
expressed his mistrust on the documents furnished by the hospital and disregarded the
report of the concerned Medical officer of the hospital. He appointed amicus curiae for a
detailed case history, present condition of Hasan, etc. The court was adjourned and the next
hearing date was 24th September 2012. On 21st September 2012, two Police officers from
Kakdweep came to Lumbini Park mental hospital with a revised order from ACJM, Kakdwip
to release Hasan instantly and unconditionally. The hospital authorities were reminded that
the next hearing of the case at High court is two days away on 24th September. ACJM
persisted that Hasan be released on that day instantly. The Superintendent again
pressurized the NGO of for taking custody of Hasan, which they refused. It was clarified to
the Superintendent, that the order did not say that Hasan had to be handed over to
someone. Therefore hospital should release Hasan unconditionally. Following which, Hasan
signed on his discharge certificate and left the hospital. On 24 th September 2012,
representatives of Anjali along with a freed Hasan and his lawyers appeared at high court
for the final hearing of Hasan’s case. The Hon’ble Judge reviewed the report which said that
Hasan is competent and should be fine with maintenance medication. It took 2 years and
more for Hasan to be discharged, after a ferocious public campaign for his release 264.
Resources 265, 266, 267
Under Scheme A, of XI Five Year Plan, 11 mental institutions were converted into ‘Centers of
Excellence’ without making any congruent legal reforms and despite the 20 year old history
of abuse within those institutions. A total of 1,40,02,08,352 INR (1400 mn. INR) were
264
Case study from Anjali, Kolkatta
Sudha Ramamoorthy, Meenakshi Balasubramanian, with Inputs from Pooja Parvati (CBGA) and
Alexandre Cote (IDA), (2012). Analysing the Indian Public Financing System from the Perspectives of
the Rights of Persons with Disabilities – A first step towards CRPD Compliant Budget Advocacy.
NCPEDP and CBGA, New Delhi.
266
Wone management and Bapu Trust (2012). Mental health in India; Analysis of the trends in
budget and expenditure. New Delhi.
267
http://mohfw.nic.in/showfile.php?lid=1141
265
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released, with the Yerawada mental institution in Maharashtra getting the highest
amount268 of 300 mn. INR 269.
Of the 4,000 psychiatrists in the country, 70 per cent of them practise in private hospitals in
urban areas. Many psychiatrists in urban areas start their own private institution, under the
new liberal norms for starting institutions.
The mental health legislation (old and proposed) gives recognition only to mental
institutions and psychiatrists. But as per estimates, less than one psychiatrist is available for
very 3 lakh population. The psychiatrist/population ratio in rural areas that account for 70%
of country's population, could be under one for every million 270.
In 2008, according to an NHRC report, a single psychiatrist was found manning the 331-bed
hospital in Varanasi. There were no sanctioned posts of general medicine officer, clinical
psychologist, psychiatry social worker, occupational therapist, dietician and nurses. Four
years down the line, all that the hospital has got is an additional psychiatrist 271.
At an estimate of 70 mn people with psychosocial disabilities, a budget of around Rs 20 per
per person per month is available for people in institutions, when at least Rs. 500 is
estimated to be required to ensure that basic needs are met and not covering care and
treatment costs 272.
268
http://articles.timesofindia.indiatimes.com/2013-03-19/pune/37842515_1_mental-hospitalsmental-health-courses-in-clinical-psychology
269
1. Institute of Mental Health & Hospital, Agra, Uttar Pradesh Rs. 20,84,00,000/-; 2. Hospital for
Mental Health, Ahmedabad, Gujarat Rs. 5,28,00,000/-; 3. State Mental Health Institute, Pandit
Bhagwat. Dayal Sharma University of Health Sciences, Rohtak, Haryana Rs. 20,84,00,000/-; 4.
Institute of Psychiatry- Kolkata, West Bengal Rs. 5,28,00,000/-; 5. Institute of Mental Health,
Hyderabad, Andhra Pradesh Rs. 5,28,00,000/-; 6. Psychiatric Diseases Hospital, Government Medical
College, Srinagar, Jammu & Kashmir Rs. 15,82,08,352/-; 7. Department of Psychiatry, Govt. Medical
College, Chandigarh, Rs. 5,28,00,000/-; 8. Mental Health Institute, Cuttack Rs. 5,28,00,000/-; 9
IMHANS, Kozhikode Rs. 20,84,00,000/-; 10. IHBAS, Shahdara, Delhi Rs. 5,28,00,000/-; 11. IMH,
Pune, Maharashtra Rs. 30,00,00,000/270
http://week.manoramaonline.com/Cgibin/MMOnline.dll/portal/ep/theWeekContent.do?contentId=11632435&programId=1073755753.
Assessed on 21 November 2012.
271
http://week.manoramaonline.com/Cgibin/MMOnline.dll/portal/ep/theWeekContent.do?contentId=11632435&programId=1073755753.
Assessed on 21 November 2012.
272
Verbatim of Tapas Ray, founder of Sevac, a Kolkata-based NGO ,in an interview available at
http://week.manoramaonline.com/Cgi-
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There has been a significant increase of around 70% in the budget. Yet higher funding does
not mean better human rights. The overall thrust of spending has been on institutional care.
The ‘Centers of Excellence’ are being established by upgrading and strengthening identified
mental health institutes, mental hospitals and departments of psychiatry.
The government spends double the amount in establishing, running and maintaining
institutions catering only to a handful of Persons with Disabilities.
More importantly, people with psychosocial disabilities do not want institutionalisation and
it is the responsibility of the government to ensure community living273.
Spending on other institutions: On Build-operate-Transfer (BOT) basis, the Chembur
beggars’ home in Mumbai is being ‘upgraded’ into a ‘swanky’ facility at 334 Cr.
274
Those
interned there at present will be moved into this new facility. The government has not
considered community based rehabilitation options despite the availability of huge amounts
of money from the builders.
Recommendations
1. As per the pronouncements of the UNCRPD Monitoring Committee, particularly in
the context of China, mental health legislation must be repealed, and all human
rights covered under the proposed disability legislation.
2. All existing legislations must be reviewed and made compliant with Article 14 of the
CRPD. The wide range of custodial institutions where people, and children with
disabilities are interned, must be audited and suitable process begun for their
inclusion within communities.
3. All efforts must be made to legally curb the unlimited growth of penal institutions for
people with disabilities in the private sector.
bin/MMOnline.dll/portal/ep/theWeekContent.do?contentId=11632435&programId=1073755753.
Assessed on 21 November 2012.
273
Bapu Trust for Research on Mind & Discourse, (2013). Report: Transforming communities for
Inclusion of Persons with psychosocial disabilities”. May, 2013, Pune, India.
http://camhjournal.com/advocacy/report-transforming-communities-for-inclusion-of-persons-withpsycho-social-disabilities/
274
http://www.indianexpress.com/news/rs-334-cr-will-turn-beggars-home-into-swanky-sprawlingcomplex/509164/
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4. The NALSA scheme 2010, now operational in some parts of India, do not comply with
the CRPD. Extensive lawyers’ trainings must be conducted so that their mandate in
present regime is understood and executed.
5. Public budgets for institutions must be restricted and a de-institutionalisation
process must begin. Community centers and small sized recovery centers on open
door basis should be considered, with capacity building, social support and
protection mechanisms for people with high support need and strengthening
monitoring systems.
6. Assets held by institutions of different kinds must be audited, especially prime land
held and then transferred to private parties for urban development. The government
is only considering relocation of people with disabilities interned in those institutions
during this transition; and not considering their inclusion within local communities.
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Article 15: Freedom from torture or cruel, inhuman or degrading treatment or punishment
1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his or her free consent to
medical or scientific experimentation.
2. States Parties shall take all effective legislative, administrative, judicial or other
measures to prevent persons with disabilities, on an equal basis with others, from
being subjected to torture or cruel, inhuman or degrading treatment or punishment.
NCPEDP & DEOC Survey
The DEOC survey found that upto 86% of people interviewed were dissatisfied by the
outcomes on this Article. Only 5% were satisfied, and 9% did not know much about this
issue.
Constitutional and statutory Guarantees
Article 15 of CRPD is included within the jurisprudence of Article 21 (Right to Life and
Liberty) of the Indian Constitution. Life or personal liberty has been held to include the right
to live with human dignity and includes within its ambit a personal guarantee against
torture or to cruel, inhuman or degrading treatment or punishment.
The Supreme Court has repeatedly chastised state authorities and the police in recent times
for not serving the role of protectors and infact, becoming perpetrators of torture and
custodial deaths; and further clarified through a series of judgments, what constitutes
torture, cruel, inhuman and degrading treatments.
The Supreme Court has held that in view of “The provisions of Article 21 of the Constitution
of India, any form of torture or cruel, inhuman or degrading treatment is inhibited.... The
State must protect victims of torture, ill treatment as well the Human Rights defender
fighting for the interest of the victims.... Therefore the State must ensure prohibition of
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torture, cruel, inhuman or degrading treatment to any persons particularly at the hands of
any State agency/police force 275.”
Reiterating the Supreme Court, in a recent case, the Punjab Haryana High Court has held:
“The State-machinery has an overriding obligation to protect the right to life of every person
within its territorial jurisdiction and must protect the victims of torture, ill-treatment as well
as the human-rights. … In addition to the protection provided under the Constitution, the
Protection of Human Rights Act, 1993, also provide for protection of all rights to every
individual. It inhibits illegal detention. Torture and custodial death have always been
condemned by the courts in this country.276”
Torture is not merely physical but may consist of mental and psychological torture
calculated to create fright to submit to demands; forcible intrusion into a person’s mental
processes; illegal detention; forcible use of scientific techniques 277; etc. This jurisprudence
can be applied in the context of atrocities committed against people with disabilities.
The National human rights institutions and various commissions have not shown
consistency or collaboration in addressing Article 15 in the context of disabilities.
The NALSA legal aid scheme provides for right to life covering privacy and dignity, but does
not specifically mention key elements of Article 15, i.e. protection from cruel, inhuman,
degrading and torturous treatments: “Mentally ill persons are entitled to right to privacy and
dignity emanating from the right to life under Article 21 of the Constitution of India”.
International commitments
Health care professionals world wide, guided by the WHO278, have been gatekeepers of
persons with psychosocial disabilities, and have set irreconcilable inequality between us and
275
See Prithipal Singh Etc v. State of Punjab & Anr Etc, Criminal Appeal No. 528 of 2009, Supreme
Court of India, Criminal Appellate Jurisdiction, 4 November 2011, para 7.
276
Atma Singh Bhullar And Others vs State Of Punjab And Another on 14 May, 2012, CRM Nos. M7861 of 2005 (alongwith connected petitions)
277
Dr.Mehmood Nayyar Azam vs State Of Chattisgarh And Ors on 3 August, 2012, in the Supreme
Court of India, CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 5703/2012, (Arising out of SLP (C)
No. 34702 of 2010)
278
‘Draft comprehensive mental health action plan 2013–2020’, EXECUTIVE BOARD EB132/8, at the
132nd session 11 January 2013, Provisional agenda item 6.3
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other health care patients; worse, continuing methods of ‘treatment’ which the UN Special
Rapporteur for Torture has recently affirmed, is torture 279, 280.
The WGHR submission to the UN for the UPR (2011) India review notes281: “India committed
to expedite ratification of the Convention against Torture (CAT). "Prevention of Torture Bill,
2010 (PTB) was referred to a Parliamentary Select Committee of the Upper House in August
2010.” At the time of writing this report, CAT has been signed but not ratified.
Right to protection on equal basis with others
Right to protection from torture or other cruel, inhuman degrading treatments is relevant
not only for people with disabilities, but for all vulnerable groups.
The Maintenance and Welfare of Parents and Senior citizens Act, 2007 is meant to uphold
the rights of senior citizens. This legislation does not mention persons with disabilities; nor,
anything relating to cruel, inhuman and degrading treatment or punishment.
Child protection law has been legislated in the last decade, for example, National
Commissions for Protection of Child Rights Act, 2005 and Amendment 2006.
279
“The Special Rapporteur draws the attention of the General Assembly to the situation of persons
with disabilities, who are frequently subjected to neglect, severe forms of restraint and seclusion, as
well as physical, mental and sexual violence. He is concerned that such practices, perpetrated in
public institutions, as well as in the private sphere, remain invisible and are not recognized as torture
or other cruel, inhuman or degrading treatment or punishment” and passim; 28th July 2008, Sixty
third session Item 67(a) of the provisional agenda A/63/150 of the United Nations General Assembly.
The Special Rapporteur also included among the practices of concern as torture and ill-treatment,
that „persons with disabilities are exposed to medical experimentation and intrusive and irreversible
medical treatments without their consent (e.g. sterilization, abortion and interventions aiming to
correct or alleviate a disability, such as electroshock treatment and mind-altering drugs including
neuroleptics).“ In 2013, the Special Rapporteur called for an absolute ban on forced and nonconsensual medical interventions imposed on persons with disabilities, including non-consensual
administration of electroshock, psychosurgery and mind-altering drugs such as neuroleptics,
restraint and solitary confinement for long- or short-term periods. A/HRC/22/53.
280
World Network of users and survivors of psychiatry (WNUSP) and Bapu Trust for Research on
Mind & Discourse, Position paper, ‘Human Rights of persons with psychosocial disabilities in the post
2015 Inclusive Development Agenda: Towards HLMDD’, September 2013.
281
Pledge made by India at the UN GA in February 2011 at the time of its re-election at the Human
Rights Council. See Sixty-fifth session Agenda item 112 (c), A/65/758, UNGA, “Elections to fill
vacancies in subsidiary organs and other elections: election of fifteen members of the Human Rights
Council: Note verbale dated 16 February 2011 from the Permanent Mission of India to the United
Nations addressed to the President of the General Assembly”. Voluntary Pledges and Commitments
by India, as found on 14th January 2013, available at:
http://www.un.org/ga/search/view_doc.asp?symbol=A%2F65%2F758&Submit=Search&Lang=E
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Some state commissions for child protection, example, Maharashtra, set up in July, 2007,
have prohibited the illegal use of narcotic and psychotropic substances; and abuse of all
kinds. Further, “No child shall be subjected to torture or other cruel, inhuman or degrading
treatment or punishment or be deprived of his liberty unlawfully or arbitrarily”
282.
The
Protection of Human Rights Act of 1993, while providing a redressal mechanism, does not
specifically address this aspect.
However, the Prevention of Domestic Violence Act, read along with section 498A of
the
Indian Penal Code, has led to wider interpretation on the notions of torture and cruelty in
courts. In the case of the Girdhar Shankar Tawade vs State Of Maharashtra on 24th April,
2002, and Amalendu Pal @ Jhantu vs State Of West Bengal of 11th November, 2009283, the
Supreme Court noted in ‘Explanation (a) (cruelty) involves three specific situations viz. (i) to
drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or
health, both mental and physical, and thus involving a physical torture or atrocity; and in
Explanation (b) there is absence of physical injury but the legislature thought it fit to include
only coercive harassment which obviously as the legislative intent expressed is equally
heinous to match the physical injury’.
As evidenced in this chapter, though slowly changing due to judicial activism, we can say
that the Indian state has failed in its duty to protect persons, with disabilities from torture,
and cruel, inhuman and degrading treatments. Neither the policies, nor state response to
human rights violations have addressed Article 15 obligations.
Particularly people with disabilities, children, girls and women with disabilities, and those
with mental and psychosocial disabilities, are exposed to torture, and cruel, inhuman,
degrading treatments. While the higher courts have been active, however, the trend has
been that the invigilating courts leave it to state administration to execute those judicial
orders. Unless there are further advocacy from advocacy groups, or some mishap happens,
courts do not in general revert back for judicial oversight. When the perpetrator of such
282
283
https://sites.google.com/site/childrightsmaharashtra/home
AIR 2002 SC 2078, 2002 (1) ALT Cri 360
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treatments is state institutions, this falling back upon state machinery to monitor has not
been effective284.
Protection in disability legislations
The extant Persons with Disabilities Act, 1995 does not have any provision or clause on
protection or prevention from torture or cruel, inhuman or degrading treatment or
punishment & from exploitation, violence and abuse.
In the new proposed disability legislation, Right to protection from cruel, inhuman,
degrading treatment particularly as they apply to institutional context and other state party
obligations, is not covered as an independent human right. It may be found in some mixed
provisions such as 8(b): All children with disabilities have a right to be protected against all
forms of physical or mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse in all settings, including the home,
family, schools, institutions and the juvenile justice systems. Under right to life, penalty is
imposed on people who cause injury or damage to life and limb, or faculty permanently or
temporarily, on a person with a disability.
The National Trust Amendment Act, which is presently an amendment to the extant
National Trust Act, and pending Parliament notice, does not make any mention of the Right
to protection from torture and from cruel, inhuman and degrading treatment.
The extant Mental Health Act 1987, Chapter 8 (81) provides for the “Protection of Human
Rights of Mentally Ill Persons”: No mentally ill person shall be subjected during treatment to
any indignity (whether physical or mental) or cruelty. There is no known case law on this
provision, however. The Central and State Mental Health Authorities have roles prescribed
for them, under the MHA 1987. Their role is to “supervise psychiatric hospitals and
psychiatric nursing homes and other Mental Health Service role Agencies (including places
in which mentally ill persons may be kept or detained) under the control of the
Government”.
284
Davar, Bhargavi and Lohokare, M. (2008) ‘Recovering from psychosocial traumas: The place of
Dargahs in Maharashtra’. Economic and Political Weekly, Vol. XLIV, No. 16, April 18, 2009. 60-68.
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The proposed Mental Health Care Bill has a provision on protection from torture, cruel,
inhuman and degrading treatment; however, includes here only issues such as unhygienic
environment, poor quality food, etc. not addressing structural violence that happens within
mental institutions nor the use of procedures such as direct ECT, forced ECT, narco-analysis
and solitary confinement.
Since a Guardian is working on behalf of state, these provisions may be also treated under
Article 15. The National Trust Act, 1999 states that the application for guardianship for
personal care and maintenance shall be accepted to cover areas including ‘Protection from
exploitation and abuse & protection of constitutional and human rights.’ Under Procedure
for removal of Guardian, the following acts of “commission or omission” constitute abuse or
neglect on the part of the guardian285: Solitary confinement of person with disability in a
room for longer period of time; Chaining of the person with disability; Beating or treating a
person with disability resulting in bruises, skin or tissue damage; Sexual abuse; Long
deprivation of physical needs such as food, water and clothing; etc.
The proposed new draft legislation, Rights of Persons with Disabilities Bill (February 2011
draft), has provided for consent to medical research under Right to Integrity, and in Article
15, covers the harm and damage caused by a range of scientific procedures such as
radiation, electric current, etc. The Mental Health Act provides for proxy consent for
medical research, contra Article 15. “... where such person (whether or not a voluntary
patient) is incompetent, by reason of minority or otherwise to give valid consent, the
guardian, or other person competent to give consent on his behalf, has given his consent in
writing for such research”. The Indian Council of Medical Research (ICMR) Guidelines for
Biomedical Research also provides for proxy consent, while maintaining that the right to
informed consent of people with mental disabilities and illness must be protected 286.
285
Accessed at http://www.thenationaltrust.co.in/nt/images/stories/list/nt_rules_regulations.pdf
on 15th November 2011.
286
From ‘ICMR Ethical Guidelines for Biomedical Research on Human Participants’, Indian Council of
Medical Research, 2006, accessed at icmr.nic.in/ethical_guidelines.pdf on 12th November 2011.
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Violations of Article 15 post ratification of the CRPD
Examples of atrocities reported herein show an universal pattern, requiring further inquiry
and investigation at a systemic level, as such instances are not exceptional, nor are they
impacting few lives.
As found in discussion of Article 14, Indian government has been maintaining custodial
institutions under Ministry of Health, Social Justice & Empowerment as well as Women and
Child Departments. These total institutions perpetrate inhuman, cruel, degrading and
torturous treatments in the name of care and protection. The children’s homes and mental
institutions have been exposed repeatedly in the media and through courts for gross
violations since 2007, as evidenced in detail below.
Since 2010, Masina hospital, a private asylum in Mumbai has been repeatedly exposed for
fraudulent admissions, illegal detentions, overuse of shock treatments, overuse of
medication and various other abuses 287. In July 2012, a woman with psychosocial disability
was raped and killed in a rehab home in Kolkatta. In this instance two other bodies were
found on the premises and cruelty, starvation and torture exposed
288.
Over 100 people
were rescued in a raid from a mental health rehabilitation center in Karnataka, near
Hoskote: They were abused, stripped and humiliated, and lived in inhuman and degrading
conditions 289. Around 41 people with psychosocial disabilities were rescued from a squalid
center in Thrissur district in Kerala in January, 2012. The inmates reported torture, removal
of kidneys and sale of cadavers to the nearby medical hospital 290.
287
http://www.mumbaimirror.com/article/15/20110103201101030853502491dd077d5/Healthchiefs-raise-alarm-on-masina%E2%80%99s-house-of-horrors.html;
http://www.ndtv.com/article/cities/man-admitted-for-alcohol-rehab-says-ward-boys-beat-him-up23519; http://www.dnaindia.com/india/report_in-for-medical-counselling-scarred-for-life_1707626
288
http://ibnlive.in.com/news/west-bengal-woman-raped-buried-in-shelter-home/272331-3231.html as found on 19/01/2013
289
http://www.thehindu.com/news/cities/Bangalore/article231561 as found on 19/01/2013
290
http://indiatoday.intoday.in/story/kerala-asylum-treats-mentally-ill-inmates-likeanimals/1/167147.html; http://www.thesundayindian.com/en/story/license-mandatory-for-privatemental-care-units-in-kerala/118/28243/; http://www.thehindu.com/todays-paper/tp-national/tpkerala/article2807452.ece as found on 19/01/2013
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Rape and torture of disabled girls and women in institutions: Children in India are exposed
to atrocities within penal institutions291. Women with mental disabilities and hearing
impairment were tortured and raped in a rehabilitation home in Hooghly292. Activists have
been up in arms against AshaKiran in Delhi where disabled children were “treated like
animals”
293.
In early 2012, 5 girl children with mental disabilities were raped in a shelter
home in Panvel, near Mumbai; and reports of starvation and abuse at Kavdas orphanage in
Shahpur. The High Court appointed a committee to investigate shelter homes in
Maharahstra294. Around 35 children with mental disabilities were starved, tortured and
abused in a home in Mankhurd295. 19 girls with mental disabilities were rescued from Navi
Mumbai in February of 2011. They were physically and sexually tortured with cigarette
butts, hot spoons, safety pins, etc.296 Also see, rape and sadistic torture of blind and hearing
impaired children in Chandigarh, Lucknow and Allahabad297. In Haryana, similar cruel
treatment was meted out to elderly within an institution for the ‘physically and mentally
disabled’ 298.
Also being reported here, is the torturous and cruel treatment of persons with disabilities by
the Police, and other security officials in non-institutional settings.
291
http://www.dailyexcelsior.com/web1/12feb02/edit.htm#4;
http://www.deccanherald.com/content/228358/sordid-story-arya-anathalaya.html
292
http://articles.timesofindia.indiatimes.com/2012-07-13/kolkata/32663133_1_guriya-deathcertificate-hooghly
293
http://www.hindustantimes.com/News-Feed/Chunk-HT-UI-No-Country-for-Children-2012TopStories/Kids-at-Asha-Kiran-treated-like-animals/Article1-891567.aspx
294
http://articles.timesofindia.indiatimes.com/2011-03-12/mumbai/28683292_1_shelter-homesasha-bajpai-mentally-deficient-children
295
http://articles.timesofindia.indiatimes.com/2011-03-12/mumbai/28683292_1_shelter-homesasha-bajpai-mentally-deficient-children
296
http://www.indianexpress.com/news/rescued-orphanage-girls-to-be-rehabilitated-soon/895365/
http://www.indianexpress.com/news/court-frames-charges-against-10-for-abusing-orphanageinmates/898325/
297
http://articles.timesofindia.indiatimes.com/2012-04-07/lucknow/31304399_1_minor-girlsorphanage-childless-couple
http://www.indianexpress.com/news/haryana-cops-raped-us-childrens-home-inmates/958499/
http://ibnlive.in.com/news/more-sexual-abuse-in-haryana-shelter-homes/265240-3.html
http://ibnlive.in.com/news/naked-yoga-oral-sex-in-haryana-shelter-home/265947-3.
htmlhttp://articles.timesofindia.indiatimes.com/2012-07-04/chandigarh/32535930_1_rohtaksuperintendent-shelter-home-hostel-warden
298
http://www.tribuneindia.com/2012/20120402/himachal.htm#10
http://www.himvani.com/news/2012/07/18/open-letter-chief-secretary-order-request-judicialinquiry-age-home-basantpur/20770
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BOX ITEM
Policeman attacks man with psychosocial disability, with brute force
299
A policeman, surrounded by others, stands above a man lying on the ground. The
policeman, who is in uniform, raises a stick - a huge lathi -and brings it down on the man.
The gathered crowd shouts "Maaro, maaro (beat him, beat him)." The policeman continues.
At least seven blows are delivered. The man starts bleeding. The victim, a 40-year-old naked
Ram Krishna Agarwal – is a person with a psychosocial disability. He lives with his family in
Satna in Madhya Pradesh. When they saw the police attacking him, they were too
intimidated to intervene. The police later ties up Ram Krishna and drags him by his legs on
the ground before moving him to a police station. Nobody steps forward to help the victim.
Local media and camerapersons - none of them from NDTV -say they filmed the incident as
evidence of police brutality against a helpless man. Ram Krishna allegedly got into a fight
with his neighbours in his village in Madhya Pradesh's Satna district because they were
mocking his mental ability. When he got into a fight with them, neighbours called the police.
Ram Krishna, now agitated, tried to fight two constables. The head of the local police station
- named Balbir Singh Jaggi - then arrived. He is the one who is seen attacking Ram Krishna
with brute force. He has since been suspended by the state's Home Minister, Uma Shankar
Gupta. Ram Krishna was taken to the police station and released after an hour. His family
took him to a local hospital and has now moved him to home.
BOX ITEM
Brutality by railway administration against people with disabilities
Kriparam, son of Ramdas from Gahal village of Harda District, Madhya Pradesh. He is a
visually impaired person, married and has a 6 months old daughter. His wife is also a
disabled person and the entire family depended on the income of Kriparam who was selling
books at the Harda railway station. He was killed by RPF (Railway Police Force) staff of Harda
station on 22nd September 2011. When he was selling books at the Harda railway station, a
299
Accessed at http://www.ndtv.com/article/cities/policeman-attacks-mentally-challenged-manwith-brute-force-135739, on 1st October 2011.
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few RPF staff had an unnecessary argument and harassed him. He was then arrested and
was beaten up so badly that he died on the way to the hospital. He was the only earning
person and bread winner in the family whose death has caused serious and unrecoverable
loss to the family 300.
BOX ITEM
What is the fuss about? 301
On 8th March 2008, the daughter of a female patient went to visit her mother at Pavlov
Mental Hospital, a government-run hospital in Kolkata, West Bengal. As the patient’s
condition was serious, the treating Doctor took the girl into the ward where her mother
was. There, they were both shocked to see that all the female patients were stark naked.
According to hospital authorities, this was because their clothes had gone for washing.
When the doctor protested, the hospital staff started arguing with him. A nurse, when
questioned, explained that a second set of clothes was usually given to the patients when
one set went for washing, but that stripping mentally ill patients of their clothes was “not a
serious issue”. According to the reporter who was following up the case, the hospital
superintendent claimed it was a non-issue and he did not understand what all the fuss was
about.
Some cruel, inhuman, and degrading treatments continue to be used such as cochlear
implants, direct Electro convulsive therapy (ECT without anesthesia), forced shock
treatment, and solitary confinement. Since people with mental and psychosocial disabilities
are considered “incapacitated”, their consent is rarely taken. Not only in government
facilities, solitary confinement, resolved by the UN to be a form of inhuman, degrading
treatment or punishment302, was found in private rehabilitation centers as well 303.
300
Email from Dr. Victor John Cordeiro, President, RED-India, Rashtriya Viklang Manch, National
Confederation of Disabled, dated 28th September 2011.
301
From ‘No rights for the mentally disabled’, Shampa Sengupta, Info Change News & Features,
April 2008.
302
On 5 August 2011 through a resolution, the UN secretary general made a clarificatory statement
on “torture and other cruel, inhuman or d egrading treatment or punishment”. The special
rapporteur on torture reported that where the physical conditions and the prison regime of solitary
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Saarthak, an NGO, filed a Public Interest Litigation (PIL) in 2001, seeking ban on direct ECTs,
calling it a “barbaric” practice. However, a few associations of Psychiatrists opposed the
petition citing that it is useful in some cases of mental illness. Unfortunately, the debate
continues and so does the practice of direct ECT . Contrary to international recognition of
direct ECT as a form of torture, the Indian Association of Psychiatry, the Indian Association
of Private Psychiatry and the Indian Association of Biological Psychiatry have issued a recent
statement advocating for ECT without anesthesia304 “Another grim aspect of this case is that
the consumer’s narratives on the ECT experience have neither been cited nor summoned by
the Court. This can be attributed to the entrenched legal construction and a disqualifying
legal regime. The matter is being played out as a scientific controversy instead of a human
rights issue.”305
Recommendations
1. India should ratify CAT and notify the Prevention of Torture Bill 2008 after
harmonising it with the CRPD.
2. Human rights legislations must recognize cochlear implants, direct ECT, solitary
confinement and other such procedures as forms of torture and cruel, inhuman and
degrading treatments or punishments.
3. Criminal complaints procedure on torture, inhuman and degrading treatments
should be laid out clearly in criminal law. Penalties built into the legislation.
confinement cause severe mental and physical pain or suffering, when used as a punishment, during
pre-trial detention, indefi nitely, prolonged, on juveniles or persons with mental disabilities, it can
amount to cruel, inhuman or degrading treatment or punishment and even torture. In addition, the
use of solitary confinement increases the risk that acts of torture and other cruel, inhuman or
degrading treatment or punishment will go undetected and unchallenged”.
303
From ‘General Hospital Psychiatric Unit and Rehabilitation Centres in India: Do law and public
policy present barriers to community based mental health services’, by Kevin M. Cremin, The Centre
for Advocacy in Mental Health, Pune, 2007.
304
Andrade C, Shah N, Tharyan P, Reddy MS, Thirunavukarasu M, Kallivayalil RA, Nagpal R, Bohra NK,
Sharma A, Mohandas E. Position statement and guidelines on unmodified electroconvulsive therapy.
Indian Journal of Psychiatry [serial online] 2012 [cited 2013 Jan 20];54:119-33. Available
from: http://www.indianjpsychiatry.org/text.asp?2012/54/2/119/99530
305
From Chapter 10 of ‘International and National Law on Selected Civil Rights’, National Human
Rights Commission. Accessed at http://nhrc.nic.in/Publications/Disability/chapter10.html on 1st
October 2011.
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4. Public defence lawyers, legal aid lawyers and public prosecutors should be available
for such cases. Deposition procedures must be streamlined so that such cases can
get speedy trials.
5. Monitoring compliance with court directives must be independent of state
machinery.
6. All laws, policies and guidelines, existing and upcoming, meant for the protection of
citizens against abuse, violence and exploitation, especially women and children,
(like the Torture Bill, 2010, Sexual Harassment at Workplace Bill, 2010) should be
harmonised with CRPD. The Criminal Procedure Code, Indian Penal Code, Indian
Evidence Act, Juvenile Justice Act etc., should also be harmonised with CRPD.
7. All institutions must have open monitoring systems, with community involvement
with greater public surveillance.
8. Sensitisation/training programmes should be undertaken to educate professionals
(medical, para-medical, legal, social work, etc.), officials, and other people involve
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Article 16: Freedom from Exploitation, Violence and Abuse
1. States Parties shall take all appropriate legislative, administrative, social, educational
and other measures to protect persons with disabilities, both within and outside the
home, from all forms of exploitation, violence and abuse, including their genderbased aspects.
2. States Parties shall also take all appropriate measures to prevent all forms of
exploitation, violence and abuse by ensuring, inter alia, appropriate forms of genderand age-sensitive assistance and support for persons with disabilities and their
families and caregivers, including through the provision of information and education
on how to avoid, recognize and report instances of exploitation, violence and abuse.
States Parties shall ensure that protection services are age-, gender- and disabilitysensitive.
3. In order to prevent the occurrence of all forms of exploitation, violence and abuse,
States Parties shall ensure that all facilities and programmes designed to serve
persons with disabilities are effectively monitored by independent authorities.
4. States Parties shall take all appropriate measures to promote the physical, cognitive
and psychological recovery, rehabilitation and social reintegration of persons with
disabilities who become victims of any form of exploitation, violence or abuse,
including through the provision of protection services. Such recovery and
reintegration shall take place in an environment that fosters the health, welfare, selfrespect, dignity and autonomy of the person and takes into account gender- and agespecific needs.
5. States Parties shall put in place effective legislation and policies, including womenand child-focused legislation and policies, to ensure that instances of exploitation,
violence and abuse against persons with disabilities are identified, investigated and,
where appropriate, prosecuted.
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International Obligations
In their concluding observations with regard to various states parties, the UNCRPD
Committee has recommended306 that states parties adopt legislation to prevent, investigate
and punish exploitation, violence and abuse involving persons with disabilities, with a
particular focus on women and children (El Salvador, Paraguay, Argentina, Australia,
Hungary, Tunisia); prohibit corporal punishment, especially within institutions; keep records
of complaints and report back (Paraguay); investigation, without delay, into situations of
violence, exploitation and abuse experienced by women and girls with disabilities in
institutional settings, and to take appropriate measures on the findings (Australia, El
Salvador, Argentina, Hungary); take further measures to ensure protection of women, men,
girls and boys with disabilities from exploitation, violence and abuse (Austria, El Salvador);
adopt measures to prevent the exploitation of children with disabilities for the purpose of
begging and establish programmes to promote their integration in society and their right to
live in the community (El Salvador, Paraguay); Take necessary steps to protect victims of
trafficking and those who are making a living by begging, community based centers for their
psychosocial care and rehabilitation (Paraguay); Early detection of situations in which
violence may occur, due diligence in investigations, and protection to testify (Argentina,
Hungary); prevention of kid of persons with intellectual disabilities and sexual abuse (China,
Hungary); awareness and legal aid (Tunisia).
India is signatory to a variety of International conventions, each of those providing for state
obligations with respect to this article. Every Monitoring Committee (CEDAW, CRC,
Committee for Economic, Social and Cultural Rights, OHCHR, ICERD) have expressed their
regret at the non compliance of the Indian state in protecting its citizens from violence,
abuse and exploitation. The Committee for Economic, Social and Cultural Right expressed
their deep concern that, despite several legal and constitutional guarantees, ‘punishing acts
of discrimination, widespread and often socially accepted discrimination, harassment and /
or violence persist against members of certain disadvantaged and marginalized groups,
including women, scheduled castes and scheduled tribes, indigenous peoples, the urban
306
http://www.internationaldisabilityalliance.org/en/compilations-made-ida, Compilation on Article
16, International Disability Alliance.
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poor, informal sector workers, internally displaced persons, religious minorities such as the
Muslim population, persons with disabilities and persons living with HIV/AIDS’307. The
committee recommended a number of steps to address these concerns in a systematic
manner, asking the state to report back on some key areas of concern.
Constitutional provisions and other legal safeguards
These rights are covered under Articles 14 and 21 of the Constitution of India.
Human rights violations against people with disabilities may be covered through common
law, a variety of commissions (women’s commissions, human rights commissions) that exist
to monitor Human Rights in the country, and special laws on prevention of atrocities against
vulnerable groups such as women, children and scheduled caste / tribes. These systemic
pathways to redressal have been installed through legislations.
Right to protection from exploitation, violence and abuse in the disability legislations
The Persons with Disability Act of 1995 does not have any provision or clause on protection
or prevention from exploitation, violence and abuse.
Under guidelines for appointment of a guardian, The National Trust Act, 1999 states that the
application for guardianship for personal care and maintenance shall be accepted to cover
areas including ‘protection from exploitation and abuse & protection of constitutional and
human rights.’ Under Procedure for removal of Guardian, the following Acts of commission
or omission constitute abuse or neglect on the part of the guardian.308
 Solitary confinement of person with disability in a room for longer period of time.
 Chaining of the person with disability.
 Beating or treating a person with disability resulting in bruises, skin or tissue damage.
 Sexual abuse.
 Long deprivation of physical needs such as food, water and clothing.
307
Consideration of Reports submitted by states parties under articles 16 and 17 of the Convenant.
Concluding observations of the Committee on Economic, Social and Cultural Rights: India. Fortieth
Session, 28 April – 16 May 2008, E/C.12/IND/CO/5, 8th August 2008.
308
Source : NCPEDP & DEOC (2012), Draft CRPD – Key issues in India, (Page121) accessed at
http://www.thenationaltrust.co.in/nt/images/stories/list/nt_rules_regulations.pdf on 15th
November 2011.
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 No provision or non-compliance of rehabilitation or training programmes as specified by
experts in the field of disability rehabilitation.
 Misappropriation or mis-utilisation of the property of the person with disability.
 Lack of facilities or no provision of trained or adequate staff for meeting the training.
The PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 in its Chapter 2
specifically mentions children with disabilities. Under Section (25) there is a provision for
recording the statement of the child with disability by seeking assistance from special
educator or any person familiar with the manner of communication of the child or an expert
in that field, having such qualifications, experience, and it is mandated that the state bear
the cost. Here there is no specific mandate that this person should be that of the choice of
the child with disability.
The Mental Health Act of 1987 has a provision, in its Human Rights chapter, on prevention
of ‘cruelty’ upon persons with ‘mental illness’. Another provision exists for prevention of
abandonment of such a person by family members, both provisions being rarely utilized
before courts of law.
Other acts related women and children namely Protection of Women from Domestic
Violence Act, 2005, Juvenile Justice Act, 2000 and Juvenile Justice Act Amendment, 2006;
The National Commissions for Protection of Child Rights Act, 2005 and Amendment 2006;
The Immoral Traffic Prevention Act 1956. The Maintenance and Welfare of Parents and
Senior citizens Act, 2007 is meant to uphold the rights of senior citizens do not mention
persons with disabilities.
Right to protection from violence, abuse and exploitation on equal basis with others
According to the National Crime Record Bureau there are have been 35565 cases of
kidnapping and abduction of women and girls,99135 cases of cruelty by husband and
relatives on women and girls in 2010-2011 309.
As per the United Nation Population Fund Report, around two-third of married Indian
women are victims of domestic violence and as many as 70 per cent of married women in
309
Accessed at http://ncrb.nic.in/
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India between the age of 15 and 49 are victims of beating, rape or forced sex. In India, more
than 55 percent of the women suffer from domestic violence.310
A survey of teens and college students found that rape accounted for 67 percent of sexual
assaults in girls.
Women and girls with disabilities are particularly vulnerable to abuse. A study from Orissa
indicates that women with disabilities were subject to significant domestic abuse and sexual
abuse, and that the situation was sharply worse for women with mental impairments
relative to women with other types of disabilities.311
Violence, exploitation and abuse of persons with disabilities
There is lack of data and documentation on persons with disabilities facing violence, abuse
and exploitation within their homes and the community at large. The Ministry of Home
Affairs in its Annual Report 2010-11, documents crimes against women, the steps taken to
tackle the issue, and reports that women and children with disabilities are more prone to
violence and abuse; But little or no data and documentation work has been undertaken by
the concerned authorities.312
The deplorable conditions of shelter homes, observation homes and special homes for all
children have been the focus of many debates in the media, civil society and government in
recent years in India313. The Media from time to time has reported cases of abuse and
physical violence against persons with disabilities at home and in the community. Medical
negligence starvation and neglect, Sexual abuse situations of ill treatment and torture
abound in the institutions, as described in Article 7 and 14. Underlying these are structural
issues, unbearable living conditions, lack of required records on children, untrained and
underpaid staff, governance issues with the lack of oversight and willful negligence from
310
Accessed at http://www.youthkiawaaz.com/2010/02/domestic-violence-in-india-causesconsequences-and-remedies-2/#IrF0gXx3bmSwHJmx.99 on 4.01.13
311
http://siteresources.worldbank.org/INDIAEXTN/Resources/2955831220435937125/Philip_Okeefe_1_1a.pdf
312
See NCPEDP & DEOC (2012), Draft CRPD – Key issues in India, (Page 127)
313
Alternative Report to CRC Committee, 2013.
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personnel who are charged with protecting children in the system314. Lack of knowledge and
understanding of the specific requirements of children with disabilities, lack of individual
care plans, no right to education, negligible rehabilitation services, no support facilities for
recreations and play and vocational training or skill building activities characterise the
majority of homes that have been studied and visited in different states in the country.
Instead “They live in the homes worse than prisoner for rest of their life doing nothing
constructive. They become sort of free bonded labor of the home owners and been used
practically for every purpose – some are being used as house maid to daily labor in field
owned by the home owners or the club/society”.315
BOX ITEM
A woman who cannot speak or hear was gang raped for a week by three persons in
Depalpur area of Indore, Madhya Pradesh. The three used the woman's two-year-old kid to
blackmail her. They held a knife to the child's neck every time they raped her, said an
official.316
Very few cases of exploitation of persons with disabilities reach the Courts. However, out of
those cases that have reached, a few have received favourable judgments and sensitive
intervention from the court.
In the case of Tulshidas Kanolkar vs. State of Goa, the Supreme Court of India expressed
anguish at the repeated rape of a mentally challenged woman and observed that in such a
case, apart from physical violence, there is also “exploitation of her helplessness”. Justice
314
See Page 21-22, Executive Summary of Status Report of Homes for Mentally Deficient Children in
Maharashtra, The Maharashtra State Coordination Committee for Child Protection appointed by the
Bombay High Court, July 2011
315
See Footnote 32 & Report on the Conditions of the Homes for Children with Disability Within
West Bengal, 2006, Disability Activists Forum; See also Executive Summary of Status Report of
Homes for Mentally Deficient Children in Maharashtra, The Maharashtra State Coordination
Committee for Child Protection appointed by the Bombay High Court, July 2011; A Report on the
Visit of Asha Kiran Complex, Delhi Commission for the Protection of Child Rights, 2010; A Monitoring
Report on the Functioning of the Govt.-run- Home for Mentally Retarded persons (Including
Children) in Asha Kiran Complex, Avantika, Delhi submitted by the National Commission for the
Protection of Child Rights;
316
Source:
http://www.mid-day.com/news/2012/feb/250212-Deaf-and-dumb-woman-gang-raped-at-knifepoint.htm
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Arijit Pasayat drew attention to the fact that while Section 376(2)(f) of the Indian Penal Code
prescribes higher penalty for rape of a woman below 12 years of age, it is exigent on the
legislature to prescribe a higher penalty for the rape of a mentally challenged woman whose
mental age may be less than 12 years 317.
BOX ITEM
In a shocking report from Odisha, a 27-year-old man has been chained for the past 20 years
at his village home as his poor parents are unable to spend money for treating his mental
illness. 318 (2012)
Bhubaneswar : A father in Orissa chained his apparently ‘insane’ adult son for nearly 10
years because he was poor and could not pay for the treatment, a media report Friday
said.319 (2009)
In Delhi I know of countless persons with disabilities who live in homes that are inaccessible
and are often unable to even step out of homes living on upper floors without a lift. From
my recent experience with home modifications for persons with disabilities in rural areas, it
came as a surprise to me when parents and joint family members refused to allow
modifications to be made to their house so that the resident with disabilities could have
access just till the toilet and out of the house. 320
Resources
Analysis of the all the Union level Ministries , National Human Rights Commission, National
Women’s Commission, National Commission for the Protection of Child Rights and National
Minority Commission did not reveal disability disaggregated expenditure.
317
From ‘Protecting women with disabilities from violence’, by Swagata Raha, Infochange
Disabilities, Accessed at http://infochangeindia.org/disabilities/backgrounder/protecting-womenwith-disabilities-from-violence.html on 2nd October 2011.
318
see http://www.thehindu.com/news/national/mentally-ill-man-chained-for-20years/article3999936.ece, January 4, 2013
319
see http://twocircles.net/2009jan23/orissa_man_chained_10_years.html, January 4, 2013
320
see http://accessability-india.blogspot.in/2012/10/living-independently-and-being-included.html,
January 4, 2013
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Recommendations
1. A specific law to prevent exploitation, violence and abuse against persons with
disabilities in the lines of The Scheduled Castes and Tribes (Prevention of Atrocities)
Act, 1989 should be enacted.
2. All laws, policies and guidelines, existing and upcoming, meant for the protection of
citizens against abuse, violence and exploitation, especially women and children,
(like the Torture Bill, 2010, Sexual Harassment at Workplace Bill, 2010) should be
harmonised with CRPD. The Criminal Procedure Code, Indian Penal Code, Indian
Evidence Act, Juvenile Justice Act etc., should also be harmonised with CRPD.
3. Abuse and exploitation of people with disabilities should invite severe punishment
for the accused under the law.
4. There should be specific programmes, including setting up of a redress mechanism,
for addressing issues of persons with disabilities. The existing redress mechanisms
for women, children, senior citizens, minorities, should be made inclusive and
sensitive to disability issues.
5. The concerned Ministries, Commissions etc. should ensure documentation of abuse,
violence, torture, neglect and exploitation of persons with disabilities.
6. Awareness campaigns through mass media should be undertaken to educate people
with disabilities on their rights and the community at large.
7. Sensitisation/training programmes should be undertaken to educate professionals
(medical, para-medical, legal, social work, etc.), officials, and other people involved
in supporting victims of crime and abuse to be able to provide their support and
services to people with disabilities.
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Article 17: Protecting the Integrity of the Person
Every person with disabilities has a right to respect for his or her physical and mental
integrity on an equal basis with others.
Explanation
The European Union Charter of Fundamental Rights defines this right as 321:
1. “Everyone has the right to respect for his or her physical and mental integrity.
2. In the fields of medicine and biology, the following must be respected in particular:

the free and informed consent of the person concerned, according to the procedures
laid down by law,

the prohibition of eugenic practices, in particular those aiming at the selection of
persons,

the prohibition on making the human body and its parts as such a source of financial
gain,

the prohibition of the reproductive cloning of human beings.”
These are considered as International crimes under the Statute of the International Criminal
Court adopted in Rome on 17 July 1998 (see its Article 7(1)(g)).322
NCPEDP and DEOC study
About 78% of persons with disabilities who responded to the Survey, were dissatisfied with
the implementation of Article 17 of CRPD. They reported that the integrity of the person is
not respected in the country, especially when it comes to taking consent for treatment.
321
EU Charter on Fundamental Rights, http://www.eucharter.org/home.php?page_id=10, accessed
10th September 2013.
322
adopted in Rome on 17 July 1998 (see its Article 7(1)(g)).
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International obligations
In the case of surgery, medical and psychiatric treatment, abortion and sterilization of
people, especially girls and women with disabilities, the CRPD Monitoring Committee has
directed its prohibition through repeal of law, formulation of new law, and strictly following
a code of conduct regarding full and informed consent 323.
Constitutional and other statutory guarantees
This right can be read into Articles 14 and 21 of the Indian constitution.
The Supreme Court of India has commented on the right to bodily and mental integrity.
Rape has been recognised by the said court as a violation of a woman’s bodily integrity 324.
In a medically complex case of craniophagus twins (CTs), Saba and Farah, debating the
application of risky surgical procedures on the twins, the apex court noted that ‘Right to life
is guaranteed under Article 21 of the Constitution of India, so also the right to bodily
integrity’325.
In a recent Supreme Court (criminal) case, the court elaborated on “how the compulsory
administration of any of these techniques (narcoanalysis, and other) is an unjustified
intrusion into the mental privacy of an individual”326.
The Right to integrity has been read into Article 14 of the Indian constitution. The apex court
noted that “`Eugenics theory' has been used in the past to perform forcible sterilisations
and abortions on mentally retarded persons. We firmly believe that such measures are anti-
323
IDA’s Compilation of the CRPD Committee’s Concluding Observations and List of Issues on Article
17, http://www.internationaldisabilityalliance.org/en/compilations-made-ida, accessed on 15th
November 2013.
324
Md.Eqbal & Anr vs State Of Jharkhand on 22 July, 2013, In the Supreme Court of India, Criminal
Appeal Nos. 109-110 of 2011.
325
Aarushi Dhasmana vs Union Of India & Ors. on 10 April, 2013, Supreme Court of India, (CIVIL)
NO.232 OF 2012.
326
Selvi & Ors. vs State Of Karnataka & Anr. on 5 May, 2010, in the Supreme Court of India,
(Criminal) Appeal No. 1267 of 2004.
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democratic and violative of the guarantee of `equal protection before the law' as laid down
in Article 14 of our Constitution’327.
In the case of Suchita Srivastava & Anr. Versus Chandigarh Administration (2009) 328, the
court deliberated a lot on the issue of consent in the case of a right to have a child for a
woman with mental disability. It recognized that while reproductive choices can be
exercised to procreate as well as to abstain from procreating, ‘the crucial consideration is
that a woman's right to privacy, dignity and bodily integrity should be respected’.
The best instance of negotiating consent and surrogate decision making came from a
Supreme Court judgment in the famous case of Aruna Ramchandra Shanbaug vs Union Of
India & Ors.329 in the context of a decision on euthanasia: “Autonomy means the right to
self-determination, where the informed patient has a right to choose the manner of his
treatment”.
The XI Five Year Plan under the section Women with Disability, states that “Although a
rights-based approach today defines the disability rights movement, the specific concerns of
women with disabilities have to be adequately reflected in the planning process.
Reproductive and Child Health (RCH) programmes will pay attention to reproductive health
needs of women with disabilities. Violation of their reproductive rights through forced
sterilisation, contraception and abortion especially in institutions will be dealt with
severely.”330 However, no progress has been made to implement any of the points
mentioned in the Plan.
Right to Integrity in disability legislations
The Disability Act, 1995, too does mention anything regarding the right to integrity of
persons with disabilities.
327
Ibid.
Supreme Court Judgement in the case of Suchita Srivastava & Anr. vs Chandigarh Administration
on 28 August, 2009, (Civil), No. 5845 of 2009, Arising out of S.L.P. (C) No. 17985 of 2009.
329
Aruna Ramchandra Shanbaug Petitioner -versus-Union of India and others on 7 March, 2011,
Supreme court of India, Writ (Criminal) No. 115 of 2009
330
Accessed at http://planningcommission.nic.in/plans/planrel/fiveyr/11th/11_v2/11th_vol2.pdf on
5th October 2011.
328
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The National Trust Act, 1999, provides the obligation of protection ‘abuse’ of persons with
disabilities. The proposed Amendment of 2011 has no provision on abuse. In both these
legislations, there is no complaints process and procedure for reporting abuse. The extant
act of 1999 provides for substituted decision making through plenary guardianship
arrangements in case of all decisions, including health care.
The Mental Health Act, 1987, has a provision on prohibition of ‘cruelty’ on a person with a
‘mental illness’. It allows substituted / surrogate decision making in the case of admission of
persons with psychosocial disabilities; as well as conducting medical research on them.
The Mental health Care Bill of 2013 allows involuntary commitment and surrogate decision
making through a Nominated Representative; and has no provision on protecting the right
to integrity of persons with psychosocial disabilities.
The Rights of persons with disabilities Bill of 2013, other than providing for right to bodily
and mental integrity, interprets ‘integrity’ as inclusive of a right to identity to live and enjoy
dignity as a person with disability.
Article 17 on equal basis with others
Right to integrity has been a concern before courts of law and civil society in the case of the
violence, sexual abuse, rape and gang rape of women, especially in the metropolises;
atrocities committed on dalit and minority communities; in conflict areas where armed
forces have been given powers extraordinaire with respect to communities; in the arrest
and detention of those charged with crime and criminal acts; in the context of organ
transplant and ‘trade’; and in the case of chronically or terminally ill patients 331.
In the case of persons with disabilities, the constitutional obligation to protect this right, has
been obviated through ‘due process’ clauses, by allowing a variety of incapacity laws (e.g.
mental health legislation, national trust legislation) and provisions within laws (e.g. family
laws). These apply only on persons with disabilities.
331
Law Commission 196th Report (2006). Author: Jagannatha Rao. Medical Treatment to Terminally
Ill Patients, (Protection of Patients and Medical Practitioners). Law Commission, New Delhi.
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The Law Commission of India, in 2006, issued a report on dealing with consent issues in the
case of ‘terminally ill’ patients. Here, they gave disqualifications on full and informed
consent to ‘incompetent patients’, who is, ‘defined as being a minor or person of unsound
mind or a person who is unable to (i) understand the information relevant to an informed
decision about him or her medical treatment; (ii) retain that information; (iii) use or weigh
that information as part of the process of making his or her informed decision; (iv) make an
informed decision because of impairment of or a disturbance in the functioning of his or her
mind or brain; or (v) communicate his or her informed decision as to the medical
treatment’332.
The Division of Research Studies & Standards, Ministry of Health & Family Welfare,
Government of India has brought out standards for male and female sterilization services.
Section 1.4.4 mandates informed consent before sterilization
333.
However, the standard in
its section 1.3 mandates ‘soundness of mind’ as one of the prerequisite for consent to
sterilization.
Consent from a ‘parent of unsound mind’ is not required to give his or her child in
adoption334; Nor required from a ‘mentally ill’ woman who is above eighteen years of age,
to terminate a pregnancy335.
Violations of Article 17
In 2002, following the death of 25 people incarcerated in a make shift ‘shelter’ in Tamil
Nadu, the Supreme Court placed a prohibition on ‘chaining’ of people with mental illness336.
However, in 2009, affidavits before the Supreme Court from various state Governments
report that ‘no person with mental illness is chained’ in their state. However, various media
do report chaining found in communities.
332
Ibid.
333
http://mohfw.nic.in/NRHM/RCH/guidelines/Standard_for_female_male_sterilization_services_final.
pdf accessed on 10th September 2013.
334
The Hindu Adoptions and Maintenance Act of 1956, Section 9
335
The Medical Termination of Pregnancy (Amendment) Act No. 64 of 2002
336
Orders of the Supreme Court in Civil Writ Petition No. 334/2001 & 562/2001- Erwady-Saarthak
Public Interest Litigation (PIL)
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The National Human Rights Commission has directed that “No patient, howsoever violent or
aggressive, should be brought with fetters and should be allowed to remain with fetters” 337.
In their survey of mental hospitals, they have reported that people are brought into the
hospital in fetters; further, that most hospitals have lock up wards, though solitary
confinement cells are slowly being abolished.
BOX ITEM
On October 20, 2010, Headlines Today published a report, “Families chain mentally‐ill
members”, in which they featured many people with mental illness who have been chained
in their home for many years. Family members who were interviewed said, they did not
know how to take care of them. They had not been given any mental health or other
treatment/support. Some of them had epilepsy, and they had not been given treatment for
even that. 338
Chapter 4 of the Mental health Act 1987 gives unconditional powers to the police to ‘detain’
a mentally ill person, particularly if destitute or ‘dangerous’. Such powers can be abused as
found in the case of ‘Both Residing At B-2/504, Powai vs The State Of Maharashtra’ 339 on 22
October, 2008. Here, a woman was assaulted and beaten by superior police offices of Pune
city; and breaching several legal provisions at the level of police officers and the magistrate,
was incarcerated in the Yerawada mental hospital, as ‘mentally ill’. In chastising the police
and the magistracy the court noted: ‘Magistrates should treat themselves to be the
custodian and protector of the rights of the people and if police fail in their duty the
Magistrates should not fail and should ensure that the person is not sent to a mental
hospital without strict compliance of the provisions of the (Mental Health) Act’.
337
NHRC 2012, Care and Treatment in Mental Health Institutions–Some Glimpses in the Recent
Period, NHRC
http://nhrc.nic.in/Documents/Publications/Care_and_Mental_Health_2012.pdf; accessed on 26th
November 2013
338
Universal Periodic Report-India, Key Issues of 120 Million Persons with Disabilities in IndiaNational Disability Network , accessed from
http://indiatoday.intoday.in/video/families‐chain‐mentallyill‐)members/1/117158.html
339
In the High court of Bombay, Writ (Criminal) No. 1353 of 2008
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Forced sterilizations have been a problem in India at least since the administration of Indira
Gandhi. However, in 1994, women with disabilities were found to be a particular target of
forced sterilizations
340.
Because of the pervasive stigma about disability, physicians may
recommend sterilization or abortion and convince a disabled person’s family members to
approve the procedure, regardless of whether they are legally the person’s guardian.
Physicians may also perform the procedure at the request of family members who have not
consulted the person with a disability. A survey conducted in India among women with
disabilities revealed that six percent had been forcibly sterilized341.
A 35-year-old ‘mentally retarded’ and childless man was allegedly taken away and
vasectomised in the district hospital in Rewa, under the government's sterilisation drive, as
reported by the media. Ramavtar Gupta, a resident of Mahsaw village, underwent
vasectomy in the district hospital on Thursday. His brother, Moolchand, has now petitioned
the police seeking action. In his complaint to Kotwali police, Moolchand says his brother was
taken by two anganwadi workers from Mahsaw and vasectomised in the district hospital 342.
We come to know of many instances of forced sterilisation and treatment of children with
disabilities but do not have data.
Ms. Radhika Alkazin, Arth Astha
Evidences could not be gathered because it is also an issue of protecting the privacy of
individuals by medical practitioners.
Ms. Kanchan Pamnani, Adocate, Mumbai
In a five-page affidavit submitted to the Bombay High Court, Deputy Secretary of Women
and Child Development Department, has endorsed guidelines vetted by four government
doctors recommending hysterectomies on mentally retarded women with an Intelligence
Quotient (IQ) below 50. DNA (the news service) interacted with 12 mentally disabled girls
(over 16 years of age), all with an IQ below 50, at the SPJ Sadhana School at Peddar Road on
Monday and found that all of them were aware of their menstrual cycles and were capable
of maintaining hygiene personally. Labelling the government’s move as “an easy way out”,
340
Swagata Raha, Protecting women with disabilities from violence, Infochangeindia,
http://infochangeindia.org/disabilities/backgrounder/protecting-women-with-disabilities-fromviolence.html (last visited 1st September 2013)
341
http://www.opensocietyfoundations.org/sites/default/files/against-her-will-20111003.pdf
342
http://articles.timesofindia.indiatimes.com/2012-02-12/bhopal/31052139_1_anganwadiworkers-childless-man-moolchand accessed 6th September 2013
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the principal, Sister E Gaitonde, said, “Persons with IQ as low as 20 can be taught how to
maintain personal hygiene. All it takes is a little time and commitment 343.
Consent to Medical Research: In a recent communication from the Ministry of Health and
Family Welfare, the Ministry has reiterated its stance that substituted decision making and
proxy consent for medical research is acceptable. A writ petition challenging the MHA
provisions on proxy consent filed by Saarthak NGO before the Supreme Court in 2002 has
not elicited any directives yet from the SC 344, 345. One article346 reports that more than half
the scrutinies of clinical trials by the US FDA in India, involve neuropsychiatric drugs.
Between 2007 and 2010, 1700 people have died in clinical trials in India. In Bhopal, in 2012,
42 people living with mental illness died in an illegal clinical trial of a drug, Dapoxetine, said
to cure premature ejaculation. Their consent were not taken, their legal incapacity status
and provisions of the Mental Health Act was exploited to over ride consent to research. The
12 erring doctors were fined a paltry sum of 5000 INR347.
Recommendations:
1. Repeal of incapacity provisions in law that allow violation of right to integrity. There
should be very stringent legislative provisions with punitive measures to protect the
integrity of all persons with disabilities.
2. Clear guidelines and procedure should be detailed out with respect to informed
consent for any medical interventions for persons with physical and mental
disabilities.
3. Full and informed consent procedure for treatment should be in easy to understand
and in accessible format.
343
‘Hysterectomies the answer’, Government, January 29, 2008, Daily News and Analysis (DNA).
Accessed at http://www.dnaindia.com/mumbai/report_hysterectomies-the-answer-govt_1148030
on 16th August 2013.
344
Writ 562 of 2001, Saarthak and Achal Bhagat versus Union of India, Ministry of Social Justice and
Empowerment, Ministry of Health, Disabilities Commissioner and other State Governments.
345
http://articles.washingtonpost.com/2012-01-01/world/35440252_1_drug-trials-drug-companiesindian-patients, accessed 1st October 2013.
346
Saifuddin Kharawala and Jeroze Dalal, (2011), Challenges in conducting psychiatry studies in
India. Perspectives in Clinical Research, January-March, 2(1): 8-12.
347
http://www.thehindu.com/opinion/editorial/article2876316.ece accessed on 16th January 2013,
‘Clinical Trials in the Dock’, Editorial, The Hindu, 10th February 2012.
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4. The Government should initiate the development of suitable support networks and
services, including promoting self help groups, appointing counsellors, social workers
etc., for persons with disabilities and families, so that counselling, peer interaction,
etc. happen so as to ensure informed and where necessary, supported decision
making.
5. Awareness about this right for persons with disabilities, families, medical and para
medical professionals, legal fraternity and society in general, is crucial to ensure the
implementation of this right in the right spirit.
6. Adequate resource allocation must be earmarked for the implementation of the
provisions of the article including sensitisation programme for various professionals
such as police, judiciary, medical and paramedical professionals, rehabilitation
professionals, monitoring and Redressal.
7. Statistics and data collection on violation of the provisions of this article such as
involuntary sterilisation, unnecessary, hazardous or forced medical interventions,
segregated based on gender and disability.
8. Appropriate amendment must be made in the medical standards for male and
female sterilization in consultation with persons with disabilities.
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Article 18: Liberty and Freedom of Movement
1. States Parties shall recognize the rights of persons with disabilities to liberty of
movement, to freedom to choose their residence and to a nationality, on an equal
basis with others, including by ensuring that persons with disabilities:
(a) Have the right to acquire and change a nationality and are not deprived of their
nationality arbitrarily or on the basis of disability;
(b) Are not deprived, on the basis of disability, of their ability to obtain, possess and
utilize documentation of their nationality or other documentation of
identification, or to utilize relevant processes such as immigration proceedings,
that may be needed to facilitate exercise of the right to liberty of movement;
(c) Are free to leave any country, including their own;
(d) Are not deprived, arbitrarily or on the basis of disability, of the right to enter
their own country.
2. Children with disabilities shall be registered immediately after birth and shall have
the right from birth to a name, the right to acquire a nationality and, as far as
possible, the right to know and be cared for by their parents.
International obligations
The UNCRPD Committee called on State parties to ensure that children with disabilities are
entered in the civil registry at birth. The Committee urges the State party to set up a
programme on the civil registration of children with disabilities at birth, on an equal footing
with other children, and decentralize registry procedures and ensure that they can be
carried out simply, quickly and free of charge.
Constitutional provisions
Article 19 (1) (d) and 19 (1) (e) of the Indian Constitution348 allows all it’s citizen without
discrimination right to move freely throughout the country and the right to reside and settle
in any part of the country respectively. Except for the State of Jammu and Kashmir where as
348
Article 19 of the Constitution of India,1949
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per the Article 370349 of the Indian constitution where non-Kashmiri’s do not have a right to
buy property in Kashmir.
All existing Acts pertaining to rights and entitlements of persons with disabilities do not
address issues pertaining to safeguarding discrimination that may happen in relation to
Article 18 of the CRPD.
The Registration of Births and Deaths Act (RBD Act), 1969350, was enforced in all parts of the
country in 1970. The Act provides a uniform law for compulsory registration of births and
deaths across the country. There is no specific question on disability in the Birth Registration
Form. Hence, procedurally, all children, irrespective of whether they have a disability or not,
are registered, if parents apply for their registration. While there is a lack of documented
evidence but it is assumed that there is a low birth registration prevalence of children with
disabilities because various factors ranging from parents being ignorant towards their
disabled child to the fact that most birth certificates are made at the time of school
admission of children, where it is a required document. Considering a small percentage of
disabled children are in school, it suggests that they are not registered.
BOX ITEM
BS is a 30 year old woman, unmarried, and dependent on her 2 brothers and their family,
who have lived in a slum over many decades. She is a ‘little person’ and has mental
disability. She rarely steps out of the house and when she does, she is teased and taunted
by the neighbours. She has never visited a public hospital or a doctor for any kind of
treatment for any problem, and has never been evaluated. She does all the work in the large
household, including cleaning, cooking, washing, cutting, etc. and enjoys household work.
She is very particular about the clothes she wears and care about how she looks. She is
unemployed and never went to school. Her birth was not registered and her name is not
included in the family’s ration card351.
349
Article 370 0f the Constitution of India ,1949
Chapter (III), Registration of Birth and Death Act, 1969
351
Bapu Trust case study, Pune, Kashewadi, 2012.
350
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Right on equal basis with others
All Indian nationals have the liberty and freedom of movement to travel and reside in any
part of the country. There is no discrimination based on disability. There may be some
restrictions imposed due to restriction of travel in ‘disturbed areas’ or due to constitutional
restrictions to buy property in Jammu and Kashmir.
There are restrictions posed in the freedom of movement due to the Armed Forces (Special
Powers) Act 1958 (AFSPA)352 that grants extraordinary powers to the military, including the
powers to detain persons, use lethal force, and enter and search premises without warrant
in ‘disturbed areas’. In the North Eastern States of India and in Jammu and Kashmir has
discouraged all citizens as well as foreigners to exercise their liberty of movement to these
states. The members of the UNHRC have criticized the AFSPA in the past. Sections of the
government are calling for repealing the law, which is opposed by the army. 353
For Indians traveling abroad from India there is no direct discrimination faced by persons
with disabilities, but there is a lot of indirect discrimination faced by people with disabilities
as an outcome of inaccessibility of all travel related services and facilities such as the visa,
and passport offices, transport infrastructure etc. is a general hindrance for people with
disabilities in general to exercise freedom of movement.
For foreign travelers in India, a visa may be denied on grounds of so called "insanity" and
"infectious diseases".
BOX ITEM
In the case of Jeeja Ghosh versus Government of India, the court clarified that she was not
‘mentally ill’ and therefore entitled to travel. The airline in the said case, Spice Jet, had
‘presumed’ that she was ‘mentally ill’ and were ‘not aware’ about ‘cerebral palsy’.
While here is a clear mandate for registering all births in the country, India has reached 76%
birth registration. This registration varies based on geographic and demographic spread.
352
353
Armed Forces (Special Power) Act 1958
see WGHR Joint Stakeholders Report, Human Rights in India and overiew, 2011 (pg 9)
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There has been little evolution overtime in enhancing the freedom and liberty of people at
large and for people with disabilities in specific. Old acts and rules continue without much
change. There has been an increase in the birth registration percentage over the years,
though it has yet not reached the 100% mark.
There is no discrimination based on disability in the Passport Act, 1967, yet a number of
persons face indirect discrimination in procuring a passport mostly because of inaccessible
infrastructure, and practices and systems of procuring a passport.
BOX ITEM
When applying for passport, if we are affixing thumb, we have to get it attested by a notary.
The authorities insisted me for a gazetted attestation on the prescribed performa and
further insisted me to sign an illiterate declaration along with it. Notary authorisation is
compulsion354.
While there is no restriction for persons with disabilities to travel abroad but the visa
regulations for some countries have been found to be discriminatory towards recognizing
reasonable accommodation required by disabled people to be able to travel, where the
Ministry of External Affairs has not made any efforts to ensure non-discrimination for its
citizens with disabilities. One such case has been highlighted below.
Shivani Gupta, Accessibility Expert, had been invited for a business meeting to London on a
short notice. The invitation letters stated very clearly that Shivani has a disability and that
she will be accompanied by her carer, with the carer‘s name clearly mentioned. The letter
stated that all expenses for both of them relating to travel and hotel accommodation will be
borne by their company.” Shivani applied for their visas under the Business Visa‘ category as
the invitation letter said that she was travelling for a business meeting. At the time of
submitting the forms the lady at the VFS counter informed her that she would need to fill a
different form for her carer as she was going to be in her service during the travel and
cannot be given business visa which was only Rs 5000/- (US$ 91). The fee for the other visa
354
Srikanth Kanuri, E-mail to Access India, 12th October, 2010, Subject: Special Formalities
for passport?‘
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was about Rs 18,000/-(US$ 328). She went ahead and filled the business visa for her and her
carer. The visa of the carer was rejected stating she was not travelling for business!
Shivani has questioned this in her blog, ―Is it not discriminatory that I am required to pay a
heightened visa fee of Rs.18,000/- for my personal carer‘s visa just because I cannot travel
without her? It is more like a fine I need to pay to the UK Government because I am disabled
and require a personal carer. The repercussion of this on me was that I was unable to travel
also and had to miss my business meeting and miss the future business prospects just
because my carer was refused a visa. Is it fair?” 355
Bureau of Immigration under the Ministry of Home Affairs clearly states that a foreigner
may be not granted a visa if he/she “is insane or is suffering from infectious or loathsome
disease which is prejudicial to public health”.356 There is no clarification as to what
‘infectious or loathsome disease’ may include. This can result in direct discrimination faced
by person’s disabilities in being able to enter the country.
Resources
There is no data available on the resources spent on making Article 18 of the CRPD a reality.
Recommendations

All domestic Acts pertaining to rights and entitlements of persons with disabilities
such as The Persons with Disabilities Act 1995, National Trust Act and Mental Health
Act and other Acts must address issues pertaining to liberty and freedom of
movement of persons with disabilities and must have safeguards to ensure that it is
not violated including.

The government must take concrete steps to ensure that the process of getting
travel documents such as passport and visa is accessible to all persons with
disabilities. Making these services accessible may entail making the physical
infrastructure accessible, making the online application form accessible, ensuring
355
Disability and the UK visa, blog post accessed at http://accessabilityindia.blogspot.in/2011/05/disability-and-uk-visa.html on December 26, 2012
356
Instructions for Foreigners coming to India, Ministry of Home Affairs, Accessed at
http://www.immigrationindia.nic.in/Instr_foreigners2.htm on December 26, 2012
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private agencies such as the Visa Facilitation Services are accessible, availability of
live assistance and intermediaries etc. Also the application procedure must be
reviewed to ensure that it is accessible to disabled persons.

Ministry of External Affairs must negotiate and intervene in visa procedures of other
countries to ensure that they do not discriminate against persons with disabilities
and their personal attendants. They must also ensure that reasonable
accommodation is provided in the visa process.

The Bureau of Immigration, Ministry of Home Affairs should amend its visa policy
that disallow entry for foreigners into India on grounds of being ‘insane’ and must
specify what ‘loathsome diseases’ are to make sure that this does not adversely
affect people with disabilities.

While registration of birth of a child, there must be a column in the form for
disability. Also an awareness drive needs to be undertaken to ensure that infants
with disabilities get birth certificate.

Repeal of AFSPA and other such army legislations giving overwhelming power to
control liberty of movement to citizens of India.
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Article 19: Living independently and being included in the community
States Parties to the present Convention recognize the equal right of all persons with
disabilities to live in the community, with choices equal to others, and shall take effective
and appropriate measures to facilitate full enjoyment by persons with disabilities of this
right and their full inclusion and participation in the community, including by ensuring that:
(a) Persons with disabilities have the opportunity to choose their place of residence
and where and with whom they live on an equal basis with others and are not
obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-home, residential and other
community support services, including personal assistance necessary to support
living and inclusion in the community, and to prevent isolation or segregation
from the community;
(c) Community services and facilities for the general population are available on an
equal basis to persons with disabilities and are responsive to their needs.
International Obligations
The UNCRPD Committee has given detailed directions in regard to this Article. The
Committee encourages the State party to develop and implement a national framework for
the phasing out and closure of residential institutions; to allocate the resources necessary
for support services that would enable persons with disabilities to live in their communities;
to make sure that persons with disabilities are given a free choice of where they want to live
and with whom; conduct a mapping of the various forms of living accommodation based on
needs; inclusion of all persons with disabilities; de-institutionalisation; support live and
financial assistance programs; coverage of live assistance to cover persons with psychosocial
disabilities; adequately fund de-institutionalisation of persons with disabilities, including
children with intellectual and / or psychosocial impairments; adoption of measures to
prevent persons with disabilities being hidden or isolated from society or being separated
from their families and social circle; de-institutionalisation with clear time frames and
benchmarks; setting up community services including rights based mental health services;
involvement of persons with disabilities and their organizations in developing services;
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comprehensive programmes that will enable persons with disabilities to have access to a
wide range of in-home, residential, community-based and other rehabilitation services;
support services for persons with high level of support needs; eliminate lepers’ colonies;
support local authorities in enabling persons with disabilities to live in the community;
provide services that will enhance living independently; ensure full compliance with
provisions of article 19 of the Convention.
Constitutional safeguards and other statutory provisions
Article 15 (2) of the constitution very specifically denies discrimination on the bases of
disability to access public services and facilities that are open to the public maintained partly
of wholly by state funds. Also Article 19 (1)(e) of the Constitution guarantees its citizens the
right to reside and settle in in any part of the country, with some reasonable restrictions as
per Article 19(5).
The Supreme Court has read this right into Article 21, in the context of Right to shelter,
interpreted broadly to include civic amenities, safety, space, etc.
Right to live independently and be included in the community on equal basis with others
Although joint family is slowly giving way to nuclear families357, a number of studies reveal
that despite the fact of living in the nuclear family set-up many functional relationships are
maintained with non-residential family members. In India the parents arrange most of the
marriages, marital life begins in the parents family. Parents and relatives guide the decisions
taken by the members even in the nuclear family 358.
Given the fact that the ‘Spirit of family solidarity’ is an integral part Indian society, majority
of persons with disabilities also live with their families with a family member as their
primary care giver. Decisions for family members with disabilities is made by parents or
family members in most cases and the person with disabilities continue to live in the living
conditions as provided to them by their family with little option or choice available for
357
As per the National Family Health Survey conducted in 1992 – 1993, more than half of the urban
population lives in nuclear family and 20% lied in joint family set up. While in rural areas 47% and
27% of families belong to nuclear and joint types respectively in 1992-93.
358
see http://www.womenstudies.in/elib/demography/dm_family_structure.pdf, January 4, 2013
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change. Without adequate support and systems in place by the government this often
causes a tremendous burden on the family and violation of rights of persons with
disabilities.
According to the WGHR report to the UPR process, 2011, a majority of Indians live in
inadequate or insecure housing. Major threats to housing and land rights include: forced
evictions, land grabbing, failed agrarian reform, real estate speculation, and absence of
social housing. The report cites the Arjun Sengupta Committee appointed by the Prime
Minister, which showed that 77% of Indians live on a consumption expenditure of less than
20 rupees (around USD 0.4) a day. India ranks 134 of 187 countries on the UN human
development index report 2011. Thee number of people displaced from ostensible
‘development’ projects16 over the last 60 years is estimated at 60 million; only a third of
whom have been resettled. Most of the displaced are the rural poor, marginal farmers, and
fisherfolk, dalits tribals and adivasis continue to face severe displacement threats. Around
13-18 million families in rural India are landless; 8 million of them lack homes of their own.
The Ministry of Rural Development has a housing scheme, Indira Awaas Yojana (IAY). It is
recognised that the IAY does not benefit the poorest and women as they so not have a land
holding359. During the period 2010-11 (up to December 2010) total number of Dwelling
Units completed was 26,86,117 out of which 33,118 (1.23%) houses were allotted in the
name of persons with disabilities360. This is way below the 3% is mandated by the law.
Cities are faced with a large amount of migration because of reasons such as land grabbing,
agrarian crisis. Jawaharlal Nehru National Urban Renewal Mission (JNNRRM) focuses mainly
on large infrastructure projects, largely failing to provide improved civic services for the
poor. The fact remains that in its guidelines this flagship programme of the government
doesn’t include accessibility for persons with disabilities.
Absence of affordable housing forces many to live in overcrowded slums without tenure,
security and access to basic services. The Ministry of Housing and Urban Poverty Alleviation
has initiated the Rajiv Awaas Yojana (RAY) that aims at providing support to States that are
willing to provide property rights to slum dwellers. While the beneficiary is required to pay
359
360
see WGHR Joint Stakeholders Report, Human Rights in India and overiew, 2011 (pg 3)
Annual Report of Ministry of Rural Development 2010-11
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only 12% of the cost of shelter but people of weaker section including people with
disabilities may pay only 10% of the cost.361 But the problem continues, according to the
mid-2011, India’s urban slum population was estimated at 158.42 million.362 Further
because the Urban Slum Rehabilitation Programmes because it doesn’t include compliance
to accessibility standards, people with disabilities, who earlier could move around in the
bastis/slums now have became housebound and cannot access common community
areas.363
Housing is an important aspect for leading a life with protection, safety, security and dignity.
There is reservation for persons with disabilities in Government housing schemes. Housing is
a State subject and implementation varies from State to State. Some States are providing
3% reservation for persons with disabilities, some are providing 1% and some are providing
none. Some States provide reservation to people with only certain disabilities, for example
Maharashtra. Apart from that there are other housing schemes by the government but what
is disheartening is that none of the housing projects ensure accessibility for persons with
disabilities.
There is also a tendency to look at institutions/hostels/homes as the first or only option for
persons with disabilities. Most schools for blind people and deaf people have been
residential. People with mental illness are treated in penal custodial homes. Many families
of children with intellectual disabilities look for hostels/homes, when they are unable to
look after their child. Older parents of persons with disabilities also look for homes as they
fear for what would happen to them when they are no more there to give care. This
probably is the case because of lack of support system and accessibility to enable people
with disabilities to continue living in the community. Also people with disabilities find it
difficult to rent accommodation because first inaccessible housing and second because of
poor attitudes and awareness about their capability to be able to pay rent.
Further People with psychosocial disabilities find it very difficult to organise ‘self help’
groups unless they can afford to rent or buy their own space. Unlike other self help groups,
361
RAY Guidelines, accessed at http://mhupa.gov.in/ray/02-RAY-Guidelines.pdf, on January 5, 2013
WGHR UPR REPORT II (2011), Human Rights Review in India an Overview (pg 10)
363
Observation shared by Bapu Trust Pune, an organization working with people with disabilities in
Basties.
362
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it is difficult to obtain necessary approvals for social or networking meetings in common
areas. There is no support from the government to assist in creation of self help groups for
persons with psychosocial disabilities363 above
Women with disabilities have been consistently denied both the traditional as well as non
traditional roles assigned to women. Thus it is assumed that they are incapable of
undertaking family responsibilities or obtaining gainful employment. Women and children
with disabilities are often home bound, with poor personal mobility, participation in family,
work, and leisure.
The problems that confront women with disabilities in rural areas,(70%-80% of total
disabled women’s population in India), are even more severe. The inadequate or total lack
of access to information, education, health care, rehabilitation services, remunerative and
productive employment opportunities is further compounded by much higher non-literacy
rates, longer distances to services and facilities, if they exist at all, lack of accessible
transport system and more severe conditions of poverty than in urban areas.364The worst
affected are women with mental impairments and multiple disabilities. Lack of
environmental access to water and sanitation facilities in many rural areas create severe
problems for women with disabilities. It has been widely reported that lack of toilets in
many rural schools is the sole reason for a lot of girls not been able to access education,
recently forcing even Supreme Court of India to intervene365. The disabled women face
double irony in the form of totally inaccessible toilets even in schools where these do exist.
In addition, traditions and prejudices within the family and the community that discriminate
against women with disabilities are more likely to be widely practiced in the rural areas,
isolating them further from socio-cultural life.366
There is an acute shortage of houses and 90% of which affects the weaker section. Then
there is a challenge of displacement. The number of people displaced for ‘development’
364
Developing the Gender Dimension in India’s Disability Rights Movement (Year?).BrootaHosamane,
Sakshi.
http://www.isiswomen.org/index.php?option=com_content&view=article&id=659:developing-thegender-dimension-in-indias-disability-rights-movement&catid=125:women-and-disabilities
365
Kalpana’s Reference – Ask Anita G for full details
366
Equity to Women with Disabilities in India: A Strategy Paper(2012). IndumathiRao, National
Commission for Women, India
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since independence is estimated at 60 million; only a third of whom have been resettled.
Most of the displaced are the rural poor, marginal farmers, Dalits and tribals. Resettlement,
where provided, is on peripheries of cities/towns with inadequate housing or access to civic
services, livelihoods, natural resources, healthcare, and education. Acquired land is seldom
replaced with alternative land of commensurate or better quality. Climate change20 and
rise in disasters will increase displacement of the most vulnerable. Vulnerable sections of
society such as women, children, persons with disabilities and minorities, including Dalits
are most severely impacted by the inadequate living conditions.367 Further people with
more severe disabilities may be further disadvantages because of inaccessibility of
resettlement colonies and people with intellectual and psycho-social disabilities who on the
basis if their disability are not allowed to own property.
More than 60% of Leprosy affected persons in the world are in India. Social stigma against
persons affected by leprosy. There are more than 1000 colonies where families with persons
affected by leprosy are forced to live due to the intense stigmatization. According to a 2007
survey conducted by the International Association for Integration, Dignity and
Advancement, leprosy-affected families across India face serious discrimination. Of 4,512
leprosy-affected persons surveyed, 1,259 were illiterate. Most of the children were not in
school, and only 30 were in college. The job market was tough on them, too, with 712
people begging for a living and another 994 unemployed.368 In many cities, there are
segregated colonies for the ‘lepers’, for example, Pune city. On appoint days of the week,
the ‘lepers’ are released into the streets for begging.
For living independently, availability, accessibility and affordability of community services is
crucial for any person with disability. There seems to be little done by Government to
ensure that these are accessible to people with disabilities. Disability specific services such
as support services, aid and devices repair services etc. are no available as well in the
community making it very difficult for persons with disabilities. (Refer Article 9, 20 and 21
of this report)
367
368
WGHR UPR II Report (2011) : Human Rights in India (pg 13)
see, http://www.globalpost.com/dispatch/india/100219/leprosy-india-health-lepers?page=0,1
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Right to Article 19 as found in disability legislations
Under Chapter 7 of the Persons with Disabilities Act 1995, in clause 43 there is provision for
preferential allotment of land for certain purposes. There is no data to show whether it has
been implement at all. A recent Public Interest Litigation, Salil Chaturvedi and Prajwala v
Union of India. 369 The petitioner alleged that despite the commencement of the PWD Act,
many of the State Governments or the local authorities in the various States have not fully
complied with Section 43 of the PWD Act.
The Supreme Court without giving a conclusive direction to the states observed that many
of the state governments or the local authorities in the various states have not fully
implemented Section 43 of the PWD Act. Under these circumstances, the Supreme Court
directed that whenever the state government or local authority allots land for various
purposes indicated in Section 43 of the PWD Act, preferential treatment needs to be given
to disabled persons and the land shall be given at a concessional rate. The percentage of
reservation maybe left to the discretion of the state governments/local authorities.
However the total percentage of disabled persons shall be taken into account while deciding
the percentage.
The Delhi Development Authority (DDA) has a policy for preferential allotment of
houses/land to persons with disability. It states that370
i.
1% reservation in allotment of flats and plots and 5% reservation in allotment of
shops will henceforth be provided to the persons with disability as defined in Section
2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995. The above reservation will not be applicable in case of
auction mode of disposal.
ii.
Allotment of flats to persons with disability will be made at Ground Floor.
The allotment of DDA flats to persons with disability would be on hire purchase basis. The
initial payment in case of hire purchase allotment would be 25% instead of 50% of the total
cost applicable for general category. Rest of the amount would be taken in monthly
instalmentsRecent Mumbai High Court judgment (India Centre for Human Rights & Law &
369
370
(2009) 4 SCC 798 (Supreme Court)
Accessed at www.dda.org.in on 10th October 2011
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ors vs The State of Maharashtra and ors.) on expansion of reservation of MHADA housing
that was originally available only to blind persons to include people with mental illness, the
court included only persons with mental illness along with the blind persons to benefit from
this reservation, ignoring hence discriminating against all other constituencies of persons
with disabilities.
The National Trust under the Ministry of Social Justice and Empowerment started various
schemes to create better living conditions for persons with disabilities covered by the
National Trust Act. While Sahyogi is a extremely valuable scheme that needs to be scaled up
but the other two schemes both foster institutional living and it may be better if they are
more community based allowing people with disabilities to be a part of the society.
Schemes details are provided below:
“Sahyogi‟, a scheme started in 2008-9, which aims at promoting care giving services by
establishing care giving cells and training care givers. The impact of the scheme has been
minimal till now due to multiple reasons, that include inability and unwillingness of careseekers to pay for the service as the cost of care-givers 371 as it is quite high. This has posed
a serious constraint in expanding the coverage of the scheme despite huge requirement in
the society. In three years 40 Care Giver Cells have been set up across the country to
conduct trainings of care-givers. They have trained 1176 Caregivers out of which 740 have
been deployed, including 531 Caregivers trained and 405 deployed during the year 201112372.
Samarth – Samarth is a Samarth is a “Centre Based Scheme (CBS)” for Residential Services,
both Short Term and Long Term, effective from 2005-06. It is an institutional facility for
destitute adults and children with disabilities, for elderly with disabilities and for people
with disabilities whose families are unable to care for them. There are presently 119 Centres
around the world.
371
National Trust Annual Report 2010-11, accessed at http://socialjustice.nic.in/pdf/ar11eng.pdf, on
January 2, 2013
372
National Trust Annual Report 2011-12, accessed at
http://www.thenationaltrust.co.in/nt/images/stories/Downloads/english%20annual%20report%202
011-212.pdf, on January 2, 2013
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GHARAUNDA (Group Home and Rehabilitation Activities under National Trust Act for
Disabled Adults) – A life long shelter and care scheme. So far 11 GHARAUNDA Centres have
been sanctioned in 10 States till now. 2 Centres are operational till now. The Centres are
mostly located on the out skirts away from the city, and may lead to seclusion and
segregation.
Though one of the objectives of The National Trust, 1999, is ―to enable and empower
persons with disability to live as independently and as fully as possible within and as close to
the community to which they belong, a variety of institutions have been created under this
Act.
The Mental Health Act, 1987, does not mention personal mobility in any form. However,
there are provisions that allow involuntary admissions. Even if one gets admitted
voluntarily, the discharge is decided by a Medical Board. It is a clear curb on the
independence and the choice of the person.
Resources
As per the National Trust Annual report

For the Samarth scheme as per the National trust Annual Report for the year 201112 money spent on the scheme by 65 centre Rs. 1.07 corers benefiting 1609 inmates.
For the year 2010-11 Rs. 1.90 crore was released to 82 centres for around 1345
beneficiaries. In the year 2009-10373 Rs 2.15 corers was released for 2227
beneficiaries. The money spent by the government to (US$ 254) to Rs 9,600/- (US$
174) yearly in the different years quoted above. It is unclear how the standard of
living of the inmates is ensured especially since the below poverty line daily
consumption expenditure for persons below poverty lines has been set at Rs 28.35 in
urban areas374 by the government, which amounts to approximately Rs 10,206 yearly
(UD$ 185).
373
National Trust Annual Report 2009-10, accessed at
http://www.thenationaltrust.co.in/nt/images/stories/Report/Annual_%20Report200910_ENGLISH.pdf, on January 4, 2013
374
see http://www.thehindu.com/news/national/article3013870.ece, January 4, 2013
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
According to the National Trust annual report for the Sahyogi scheme in the year
2012-11 Rs 4,17,385 was spent for the care givers training and development in the
year 2010-11 Rs 8,89,000. The decrease of funds to more than half reflects on the
slow progress of this important scheme.

There is no desegregated data available regarding resources spent especially for the
disabled in the Indira Awaas Yojana or the Rajeev Awaas Yojana.

The National Mental Health Program is the flagship program of the MOHFW, as a
way of providing mental health services to all people of the country especially those
living in remote areas, villages, etc. When implemented, the National MHP program,
envisioned upon community based rehabilitation principles, provides only medicines
and does not address social, economic and other human rights issues375.

As the following table shows, expenditure on the NMHP is extremely low. National
Mental Health Programme - Budget and Revised Expenditures (Rs. Mn.)
Budget
Revised
Total Budget as %age of Total Health
Estimates
Estimates
Outlay
2007-08
700
380
0.49%
2008-09
700
700
0.42%
2009-10
700
550
0.36%
2010-11
1200
1010
0.54%
2011-12
1300
750
0.52%
Source: National Health Profile, Central Bureau of Health Intelligence, Accessed on 14
November 2012.376
375
Jain S, Jadhav S: Health Program in Northern India: Pills that Swallow Policy: Clinical Ethnography
of a Community Mental health programme in Northern India. Transcultural Psychiatry 2009; 46: 6085.
376
Source: National Health Profile, Central Bureau of Health Intelligence, Accessed on 14 November
2012.
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Implementation of programmes and policies when funds are available has also gone wrong
at times, as seen from the following illustration of the underutilization of funds allocated. In
the state of Kerala the state was unable to utilise the Rs 40.7 mn of the allotted Rs 99.8 mn.
This is despite the fact that Kerala is a state where prevalence of mental health problems is
almost three times the national average. 377
Further, delayed receipt of funds, irregular dispersal of funds, administrative blocks in the
full utilization of available funds and a variety managerial issues have bogged down even the
proper implementation of the National Mental Health Program in many states and Union
Territories.378 In 2007-08 and 2008-09, less than half of the funds allocated in the National
Mental Health Programme were actually utilized. Last three years (2009-2012) has shown
around 75% utilization.
In the context of people with psychosocial disabilities MOHFW has not made any scheme for
de-institutionalisation. So the pathway created for isolation and segregation, not been
removed by any new efforts.
Recommendations

All Disability Laws should explicitly mention the right to live independently and be
included in the community.

Mental Health Act and Beggary Prevention Act to be repealed along with scaling
down of any resource support for institutions. De-institutionalisation must begin
immediately.

All poverty alleviation programs such as IAY, JNNRUM, RAY must be amended to
ensure that people with disabilities are able to live independently and be included in
the society.
377
http://week.manoramaonline.com/Cgibin/MMOnline.dll/portal/ep/theWeekContent.do?contentId=11632435&programId=1073755753.
Accessed on 21 November 2012.
378
Mohan Isaac. (2011). National Mental Health Programme: Time for reappraisal. Chapter from
Kulhara P et al “Themes and Issues in Contemporary Indian Psychiatry” New Delhi, Indian Psychiatric
Society, 2011.
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
All housing projects must mandatorily be designed following the principles of
universal design.

The Government needs to closely monitor effective implementation of housing
schemes to ensure fulfillment of 3% quota. Additionally the government may roll out
schemes for housing loans at a softer interest rates for persons with disabilities.

Community based / disabled people’s organizations must be involved in full measure
to train and capacity build communities for understanding disability, taking steps
towards inclusion and living independently.

A central scheme of ‘personal assistance’ must be initiated immediately, within
MOSJE, which can be linked to existing pathways for providing social services.

The government in collaboration with associations such as the ‘Resident Welfare
Associations’, Village Panchayat etc. may organize awareness raising programmes
regarding the rights of persons with disabilities.

Schemes such as GHARUNDA and Samarth must focus on community living for
persons with disabilities rather than separate institutions or group housing. With an
altered aim supporting inclusion they should be expanded and strengthened to more
people with disabilities. Also such schemes must not be only for persons with
disabilities covered under the National Trust Act.

The government must take all necessary steps to reintegrate persons affected by
leprosy into the community illuminating the need for such colonies and increasing
opportunities for the affected persons and their families.

Sahyogi scheme should be strengthened and expanded to cater to more people with
disabilities and all types of disabilities who need attendant services. Their training
should be based on the practical and functional needs of persons with disabilities.
The cost of hiring a personal attendant should be subsidized by the Government to
ensure a wider reach. Apart from creating a pool government must roll out a
programme such that they can be hired/made available for disabled people requiring
them at affordable costs.
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
Independent living is also largely dependent on accessibility of community
infrastructure, spaces and services and therefore the Government needs to ensure
the same through guidelines, government orders, funds, trainings, etc.379

All hostels (for students and for those who are employed) should have some rooms
that are accessible. The Government should launch a scheme to construct new
hostels that are fully accessible in every major city of the country that can house
persons with different disabilities easily.

Effective redress mechanisms with penalties to be established to ensure people with
disabilities are not harassed in the community by any service provider or by any
other member of the society. The Local Police should ensure security of people with
disabilities staying alone.
379
Reference Article 9 of this report
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Article 20: Personal Mobility
States Parties shall take effective measures to ensure personal mobility with the greatest
possible independence for persons with disabilities, including by:
(a) Facilitating the personal mobility of persons with disabilities in the manner and
at the time of their choice, and at affordable cost;
(b) Facilitating access by persons with disabilities to quality mobility aids, devices,
assistive technologies and forms of live assistance and intermediaries, including
by making them available at affordable cost;
(c) Providing training in mobility skills to persons with disabilities and to specialist
staff working with persons with disabilities;
(d) Encouraging entities that produce mobility aids, devices and assistive
technologies to take into account all aspects of mobility for persons with
disabilities.
NCEPDP and DEOC survey findings
As a part of a study380 undertaken by NCEPDP and DEOC in 2011 to evaluate the satisfaction
level of the efforts made by the government to ensure that persons with disabilities have
access to mobility and other assistive aids and technologies at affordable cost, revealed that
merely 10% respondents were satisfied. The rest of the respondents were dissatisfied or
extremely dissatisfied by the government’s efforts.
International obligations 381
The CRPD Monitoring Committee has elaborated on this right in the case of El Salvador382
and Paraguay383. It has been concerned about states having a comprehensive strategy on
the provision of mobility equipment and aids; universal design; R&D; and the universal
distribution of mobility aids. The Committee directed state parties to “ensure access to
380
See NCPEDP & DEOC (2012), Draft CRPD – Key issues in India, (Page 145)
Found at http://www.internationaldisabilityalliance.org/en/compilations-made-ida, accessed 20th
November 2013
382
CRPD/C/SLV/CO/1
383
CRPD/C/PRY/CO/1
381
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equipment and various other forms of mobility aids, technical aids, live assistance and
support technologies for all persons with disabilities, including those living in rural areas and
those who do not benefit from any specific social security or insurance”. Further, the
Committee urged states party to ensure “that persons with disabilities have ready access to
the high-quality equipment and aids they need in order to exercise their right to mobility and
freedom of movement autonomously and independently”.
Constitutional and statutory safeguards
Article 19(1)(c) of the constitution recognizes that all citizens have the freedom to
movement throughout the country. For persons with disabilities personal mobility is a
prerequisite to enjoy this freedom.
Under ‘incapacity’ or ‘fitness’ provisions, the right to personal mobility can be deprived or
limited in a variety of life domains. The Motor Vehicle Act, 1988 384, Clause 8(4) states that
―If, from the application or from the medical certificate referred to in sub-section (3) it
appears that the applicant is suffering from any disease or disability which is likely to cause
the driving by him of a motor vehicle of the class which he would be authorized by the
learner‘s license applied for to drive to be a source of danger to the public or to the
passengers, the licensing authority shall refuse to issue the learner‘s license; Provided that a
learner‘s license limited to driving an invalid carriage may be issued to the applicant, if the
licensing authority is satisfied that he is fit to drive such a carriage. The Government needs
to review the Act and the guidelines for the licensing authority to issue the learner‘s license.
In a landmark judgement which will benefit millions of deaf people in the country, the Delhi
High Court has opened the doors for deaf people to take a driving test, and if they pass, to
get a driving licence for the first time in India. 385
384
Motor Vehicle Act 1988, accessed at http://www.tn.gov.in/sta/mvact1988.pdf, January 3, 2013
Deaf eligible to undertake driving test, license: Delhi HC, New Delhi, 15th February, 2011,
accessed at
http://hrln.org/hrln/index.php?option=com_content&view=article&id=612:deaf-eligible-toundertake-driving-test-licence-delhi-hc&catid=28:pils-a-cases&Itemid=155) on 15th September
2011.
385
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Personal mobility on equal basis with others
Personal mobility is a concern for all citizens of India, especially those who are more
vulnerable (the poor, women, elderly). Roads are not suited for cyclists, pedestrians, elderly,
and women. A study on Two and Three Wheelers in India386 suggests that 70% of the
vehicles on road are two-wheelers, about 12%-15% are cars and jeeps and the rest are
buses and trucks (Cycles were not included in the study). In a recent effort to free the roads
from congestion, the Kolkatta government banned cycling in key areas of the city, leading to
public protest 387. Protestors highlighted that this will affect the poor the most. For women,
elderly and children, personal mobility is an even greater issue in urban areas 388.
The situation of personal mobility is quite complex for people in general, and people in
vulnerable situations, in areas torn by conflict, as per the report submitted to the OHCHR by
the Working Group on Human Rights389.
“Subsidies to public transport are common in developing countries and are often justified on
the grounds that they make transport affordable, rather than on efficiency grounds”390: This
holds true for mobility of persons with disabilities. There are a range of concessions given
out by the government but the transport system remains largely inaccessible. These
concessions are State specific391 and not available across the country. Also these
concessions are for specific disabilities and do not cover all disabilities392. Additionally each
386
iTrans Pvt Ltd, TBIU, IIT Delhi (2009): A Report Two and Three Wheelers in India, ICCT and ITPD,
accessed http://www.itdp.org/documents/2_and_3_wheelers_in_India.pdf (Pg 56), on January 2,
2013
387
http://www.theguardian.com/world/2013/oct/29/kolkata-india-cycling-ban-outcry accessed on
25th November 2013.
388
‘Transpotraits: Women and mobility, a chance to submit’, A visual arts exhibition, ‘Women’s
Safety: Building Inclusive Cities, November 22–24, 2010, New Delhi.
389
Human rights in India. Joint Stakeholders’ Report, for the Universal Periodic Review Report, by
Working Group on Human Rights in India and the UN (OHCR), submitted to UNOHCR on 28th
November, 2011
390
Public Transport Subsidies and Affordability in Mumbai, India, accessed at
http://www.hindawi.com/journals/usr/2012/865972/, January 2, 2013
391
Details of bus concessions availed in different states, access at
http://www.dandnetwork.com/2011/details-of-bus-concession-available-in-different-states-ofindia/, on January 2, 2013
392
Concessions Sought for Handicapped, news link accessed at,
http://articles.timesofindia.indiatimes.com/2011-05-17/mumbai/29551913_1_handicappedpersons-cancer-patients-concessions, on January 2, 2013
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state has their own gate keeping mechanism / bus pass system to access these concessions,
which are often not compatible with other states and therefore useless when traveling
interstate. In villages, where public local transport is unavailable, people travel without any
concession in the buses owned by private operators.
Many of them refuse to take
passengers with disabilities. In urban areas, people with leprosy are not allowed into any
public transport due to stigma.
The enactment of the Right of Children to Free and Compulsory Education Act, 2009393
marked a historic moment for the children of India. While children with disabilities are part
of all children in India, this historic Act sets these children apart from other children. So
while on the one hand all children with disabilities are covered by the Right to Education Act
(RTE Act), it also invokes the Persons with Disabilities Act, 1995 when it mandates that
children with disabilities shall have the right to pursue free and compulsory elementary
education in accordance with the Chapter V of the said Act394. Through a recent
amendment395, children with disabilities have become a named category amongst the
‘disadvantaged groups’ in the Right to Education Act. In the same amendment, children with
severe and multiple disabilities were offered the choice of ‘home based education’ as part
of their right to free and compulsory education. The disability movement is concerned that
this option will restrict the personal mobility and inclusion of children with disabilities even
more396.
Personal mobility in disability legislations
The Disability Act, 1995 mentions in the chapter on ‘Affirmative Action‘ (Clause 42) that ‘The
appropriate Governments shall by notification make schemes to provide aids and appliances
to persons with disabilities’. Under the chapter on Research and Manpower Development‘
(Clause 48c), it mentions that the Government shall ―promote and sponsor research, inter
alia, in the area of development of assistive devices including their psycho-social aspects.
There is no specific mention of the need for personal mobility for independence, the quality
393
See Right to Education Act, 2010, Link - http://www.delta.org.in/form/rte.pdf
See Chapter V, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, Link - http://bhind.nic.in/Sparsh_disability%20act%201995.pdf
395
See RTE Act, Amendment, 2012, Link http://righttoeducation.in/sites/default/files/rte_amendment_act-2012.pdf
396
http://www.slideshare.net/anjelataneja/home-based-education
394
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of services provided, reasonable accommodations, gender differences in aids and
appliances, the need for mobility training and the training personnel required, the need for
personal assistants, or the need to have various options for mobility aids and equipment to
choose from. The new proposed Rights of Persons with Disabilities Bill of 2013 provides for
personal mobility.
None of the other Acts related to disability address the issue of personal mobility, despite
the fact that RCI is a regulatory authority on the special education system; the National
Trust has several institutional programs registered under it; and the Mental health Act of
1987 and the proposed Mental Health Care Bill of 2013, which have over 500 mental
institutions under their coverage.
Efforts and barriers in enjoying the right to personal mobility
ADIP scheme
MoSJE has rolled out a scheme of Assistance to Disabled Persons for Purchase/Fitting of
Aids/Appliances (ADIP scheme)397 especially to respond to Clause 42 of the Act. The scheme
pays the full cost of an appliance, with a ceiling of Rs 6000/- (approx. US$113) for disabled
persons whose yearly family income is less than Rs 78,000/- (approx. US$ 1,476) and up to
Rs 3,000/- (approx. US$ 57) for disabled people whose family yearly income is less than
1,20,000/- (US$ 2,272). A disabled person may avail of this benefit once in three years. They
have a wide range of aids and appliances listed for each disability that can be procured by
persons with different disabilities under this scheme.
A large number of aids and appliances provided under the ADIP scheme are manufactured
at Artificial Limbs Manufacturing Corporation of India (ALIMCO) a public sector enterprise
under the MSJE.398 There is also a Science and Technology Mission mode399 under the MSJE
397
ADIP Scheme, Ministry of Social Justice & Empowerment, accessed at,
http://socialjustice.nic.in/pdf/adipsch.pdf, on 14th October 2012
398
Empowerment of Persons with Disabilities – Organisation and Divisions, Ministry of Social Justice
and Empowerment, accessed at, http://socialjustice.nic.in/orgdivisionunder3.php#c1, January 2,
2013
399
Empowerment of Persons with Disabilities – Frequently Asked Questions, Ministry of Social
Justice and Empowerment, accessed at, http://socialjustice.nic.in/faqs3.php#a7, www page, January
2, 2013
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that coordinates funds and direct applications of technology development for suitable and
cost effective aids and appliances apart from other things.
The availability of aids and assistive devices is crucial for independent living and personal
mobility of children or persons with disabilities. Such services have to be designed keeping
in mind the requirements of children, of women and girls with disabilities and of the varied
environments in which children and persons with disabilities live in India. Yet, the ADIP
Scheme reaches only around 0.25 million (2.5 lakhs)400 persons with disabilities annually,
mostly in urban areas, which is a negligent number for a scheme that has the responsibility
of providing aids and assistive devices to more than 60 million people with disabilities 401
including 6-30 million children with disabilities.
Further, there are huge gaps in ensuring the right to these services particularly among the
children with disabilities residing in rural India as most of the services are housed in urban
India402. In rural areas, children, especially with cerebral palsy, were often left in a lying
position for the whole day, which led to many secondary disabilities, health problems, sores
and infections, etc.403
Pratidhwani, a parents organization for children with hearing disability demanded to the
Department of Disability Affairs, Ministry of Social Justice and Empowerment, that hearing
aids must be provided on a non-profit basis through the ADIP Scheme404 with provision of
providing battery and ear mould for the aids for minimum of three years and accessible
repairing facilities and training should be provided to parents and guardians on the
importance, use and maintenance of hearing aids405.
400
See Point No. (d), Page 135, Annual Report 2010-2011, MSJE, Link http://socialjustice.nic.in/pdf/ar11eng.pdf
401
It is acknowledged the population of people with disabilities in India can be reasonably assumed
to be between 5-6% i.e. more than 60 million (in a country of 1.21 Billion people – Census 2011) See
Section 6.172., Page 130, Eleventh Five Year Plan (2007–2012), Inclusive Growth, Volume I, Link http://planningcommission.nic.in/plans/planrel/fiveyr/welcome.html
402
See Para 2, Charter of Demands from Pratidhwani
403
http://timesofindia.indiatimes.com/city/delhi/Demand-for-barrier-freebuildings/articleshow/18683893.cms
404
See ADIP Scheme, Link - http://socialjustice.nic.in/pdf/adipsch.pdf
405
See Point No. 2, Charter of Demands from Pratidhwani
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The ADIP scheme is very limited in its scope as it addresses only needs of disabled people
eligible for benefits. Additionally there are several drawbacks with the scheme some of
which include:
1. Compromise on the quality of aids provided under the scheme.
2. Most aids and appliances covered under the scheme cost more than Rs 6000/- hence
not always useful
3. There is no aid or repair centres present in the country for repairing of the aid or
appliance
4. For persons with vision impairments while aids and softwares to make the computer
hardware are included but there is no direction on how one can procure the main
hardware
5. Needless to say that a motorized wheelchair or a tricycle do not fit in the Rs 6000/ceiling of the scheme, but the newly provided accessible pedestrian and public
transport environments are impossible to negotiate in a manual wheelchair
independently. Looking at the rural areas the uneven un-tarred roads in the villages
are impossible to negotiate in manual chairs. Also at times home in rural areas are
too small for wheelchair mobility.
There is no mechanism by which persns with disabilities can know about the mobility and
assistive devices. Additionally there isn’t a practice followed on a regular basis to evaluate
the needs of a person with disability before giving a prescription having a derogatory result
on the users.
There are no government recognised manufacturers of totally disabled-friendly vehicles, for
example, wheelchairs that can go into a car. There are very few people who make these
modifications in India and not everyone is able to access them. Where the government has
no centers nor standardizing procedures for vehicle modifications there have been several
cases from various States in the country where modified vehicles have been denied
registration by the Regional transport Office.406, 407
406
accessed at a forum for people with disabilities,
http://accessability.co.in/community/viewtopic.php?t=1905&highlight=vehicle+registration, January
2, 2013
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The Government has taken no steps to promote manufacturing or marketing of assistive
devices in the country. None of the larger bicycle or automobile companies in India
manufactures mobility aids. Most manufacturers of mobility aids are either small scale or
are distributors of imported aids. There are no incentives or schemes/funds to encourage
manufacturers to get into the production of mobility aids. There is also lack of research in
this area. There are institutions like the National Institute of Design and the Indian Institutes
of Technology that undertake such types of research but most of what they do remain as
prototypes and hardly ever come into production.
There is a lack of trainers to teach mobility, teach driving and the use of mobility aids for
persons with disabilities. This is especially true for persons who acquire disability at a later
stage in their lives. The Rehabilitation Council of India (RCI) conducts a one year course
called Bachelor in Mobility Science in the field of visual impairment.408 Mobility training
needs to become an integral part of all training courses conducted by the Rehabilitation
Council of India and by NGOs. It needs to include the importance, safety and security,
methodology, new aids and technologies, fitting and repairing of aids etc.
“I went to an NGO in Bangalore for finding information about mobility training after I started
losing my sight. I was uncomfortable to get trained from a male trainer. There were no
female trainer there. I am still to find a female trainer who can come home and train me.
There are hardly any mobility trainers in the country. As a result, most of us stay at home
and do not venture out alone even to the shop near by. Even within home, we are restricted
and are not allowed to work in kitchen. Mobility training is crucial to give us and our family
members confidence.”
--Shared by a woman with vision impairment in a meeting in Bangalore organised by Retina
India, 2010.
In Pune city, Pune district offers only institutional arrangements for people with disabilities,
as sanctioned by the Municipality Act. Even though Leper’s Act has been repealed at central
407
accessed at a forum for people with disabilities,
http://accessability.co.in/community/viewtopic.php?t=87&highlight=driving+licence+license,
January 2, 2013
408
Accessed at http://rehabcouncil.nic.in/programmes/crregular.htm on 12th November 2011.
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level, custodial homes for people with leprosy are found, in the outskirts. On appointed days
every week, the ‘lepers’ are ‘released’ from these private shelters and may be found in
inhuman and degrading condition begging on city roads and at road crossings, with very
limited mobility. Some are carried on the backs of others, some have wooden trolleys on
which they wheel themselves across the busy roads, etc.409
According to a recent report by the National human Rights Commission, personal mobility
for persons in institutions is severely restricted as the system of closed wards continues in
all the public mental hospitals 410.
Resources
During 2009-10, the outlay under ADIP scheme was Rs. 79 crore, out of which expenditure
was Rs. 23.23 crore up to 31/12/2009411. During the year 2010-11, Rs 60 corers were
allocated for the scheme and Rs 23.64 corers were utilized412. What is evident is that while
the total allocation for the scheme has reduced but there has been no increase in the
utilization of allocations, which was only 29% in the year 2009-10 and 39% in the year 201011.
There is excise duty exemption for people with disabilities on purchase of cars. The Excise
Duty on motor cars for disabled people is reduced from 16% to 8% and are further
exempted from the National Calamity Tax of 1%.413 There is also exemption from Road Tax.
People with disabilities find it extremely difficult to get these exemptions. There is a lack of
awareness among the manufactures/distributors about these exemptions. Some
manufactures insist on medical certificates to prove that the person can drive the car. There
409
Bhargavi Davar, (2012). ‘TOTAL- Final Policy Paper on implementation of Article 19 in Pune
district’, Pune: Bapu Trust.
410
NHRC 2012, Care and Treatment in Mental Health Institutions–Some Glimpses in the Recent
Period, NHRC
http://nhrc.nic.in/Documents/Publications/Care_and_Mental_Health_2012.pdf; accessed on 26th
November 2013
411
Annual Report MSJE 2009-10 (page 111) accessed at http://socialjustice.nic.in/pdf/Chapter6.pdf,
on January 3, 2013
412
Annual Report MSJE 2010-11 (Page 368), accessed at http://socialjustice.nic.in/pdf/ar11eng.pdf,
on January 3, 2013
413
Guidelines for issue of Excise duty concessions for physically disabled, accessed at
http://www.dhi.nic.in/phy_hand.pdf, January 2, 2013
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are also several issues faced at the RTO where people with disabilities are harassed for
registering a modified vehicle. Additionally the scope of the concession is very narrow
considering a very small percentage of people with disabilities can afford to buy a motor car
and also this concession is available only for disabled drivers and not people with disabilities
who may want to use the car as a passenger.
It is interesting to note that that the Ministry of Finance gives a complete refund of excise
duty for vehicle (up to 13 seater) used as taxi’s as an incentive for the taxi owners under its
‘Taxi Refund Scheme’ 414 but there is no requirement for making the taxi service accessible
for persons with disabilities what so ever.
While there isn’t any desegregated data available pertaining to the number of disabled
people who have availed of the excise duty concession for buying motor cars or for any
other monetary sanction that would benefit mobility of people with disabilities.
Recommendations

The PWD Act 1995 to be amended to recognise the right of all persons with
disabilities to personal mobility with maximum possible independence. Appropriate
amendments must be made also in all other disability Acts and other relevant Acts to
address the personal mobility of persons with disabilities.

The ADIP scheme to be expended in its scope from just being a benefit-oriented
scheme to be rights based scheme that recognises and works towards the promotion
of research and development, manufacturing and marketing of various aids and
appliances for all persons with disabilities. The benefit for eligible persons may
continue but the scheme may be more flexible to meet individual requirements of
different people with disabilities such as customising wheelchairs used etc. and the
top ceiling may be revised from time to time and based on the individual
requirements. Also there must be a follow-up system to evaluate how well the
disabled person is being able to use the aid or appliance given to them.
414
Circular no. 169/3/96 CX, accessed at http://www.cbec.gov.in/excise/cx-circulars/cx-circulars96/169-96-cx.htm, on January 3, 2013
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
Incentives and
schemes
(tax exemptions and
subsidies) for companies
manufacturing mobility aids, including making it easier for foreign manufacturers to
sell their products here in India.
1. There needs to be action taken by the government to create mobility centres that
repair assistive devices, research and provide personal vehicle modifications for
persons with disabilities that are standardized and are easy to register with the
Regional Transport Offices.
2. There must be soft loans/subsidy available for people with disabilities to purchase
vehicles for their personal mobility and modify them to suit their needs.
3. There must be a scheme to give allowance to improve home accessibility to enable a
disabled person to use their mobility device effectively.
4. Agencies such as ALIMCO must research and design better quality of products that
may be used effectively in rural environments and difficult terrains such as mountain
or coastal areas.
5. Incentives and schemes (tax exemptions and subsidies) must be given to companies
manufacturing mobility aids and devices, including making it easier for foreign
manufacturers to sell their products here in India.

Vehicle manufacturers should be encouraged to manufacture fully accessible
vehicles in all ranges.

Government must mandate availability of taxis that are accessible at the same cost
as regular taxi with private taxi operators who have more than 5 taxis such as Meru,
Easy cab, cool cab etc. A clear mandate should be set to ensure no taxi or auto
rickshaw or any other public transport should not refuse taking a passenger with
disability or their mobility aids. Redress mechanism is needed for this.

Bus concessions and bus pass schemes must be streamlined across the country, such
that a pass from any State is valid across the country and the amount of concession
given is uniform across the country.
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Article 21: Freedom of Expression and Opinion, and Access to Information
States Parties shall take all appropriate measures to ensure that persons with disabilities can
exercise the right to freedom of expression and opinion, including the freedom to seek,
receive and impart information and ideas on an equal basis with others and through all
forms of communication of their choice, as defined in article 2 of the present Convention,
including by:
(a) Providing information intended for the general public to persons with disabilities
in accessible formats and technologies appropriate to different kinds of
disabilities in a timely manner and without additional cost;
(b) Accepting and facilitating the use of sign languages, Braille, augmentative and
alternative communication, and all other accessible means, modes and formats
of communication of their choice by persons with disabilities in official
interactions;
(c) Urging private entities that provide services to the general public, including
through the Internet, to provide information and services in accessible and
usable formats for persons with disabilities;
(d) Encouraging the mass media, including providers of information through the
Internet, to make their services accessible to persons with disabilities;
(e) Recognizing and promoting the use of sign languages.
NCPEDP & DEOC Survey Findings
According to a survey undertaken by NCEPDP415 in 2011 with people with disabilities
revealed that 11% of the respondents are satisfied with the efforts made by the
Government on this article while 87% are dissatisfied. The 87% respondents who expressed
dissatisfaction, indicates that much needs to be done to improve access to information for
persons with disability, as that limits freedom of speech.
There continues to be indirect discrimination because of issues such as sign language has
not been developed or recognized; Braille and audio books are not widely available; not
415
See NCPEDP & DEOC (2012), Draft CRPD – Key issues in India, (Page 153)
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much has been done in the area of promoting/developing augmentative communication;
assistive technologies for effective communication are not available or affordable; media,
courts, and other public places remain informationally inaccessible. These are some of the
areas of concern for persons with disabilities.
International obligations
The CRPD Monitoring committee has recommended, that state parties officially recognize
sign language, develop the use of other forms of accessible formats, provide adequate
funding for developing these 416; training; and augmentative and alternative communication
for persons with intellectual or psychosocial impairments417.
Constitutional and statutory safeguards and guarantees
Article 19 (1)(a) of the Constitution of India provides that all citizens shall have freedom of
speech of expression. There are restrictions on specific grounds in the constitution, which
has been upheld by the Supreme Court of India that has emphasized the primacy of this
right by not allowing it to be restricted on any ground other than that which has been
specified in article 19(2). This right, constitutionally, has a broader scope than only access to
information. This constitutional right applies also for persons with disabilities.
However, the Delhi High Court has defined the limits to the Right to freedom of expression.
For example Article 19(1)(a) is “to promote and enjoy freedom of speech and expression and
not to misuse and propagate use of substances medically and scientifically proven as
harmful, causing disease or in-salubrity”. Article 19(2) places conditions on this right which
may be restricted “in the interest of public order, morality, decency and inducement for
committing an offence”. The court has further clarified that 'Public Order' is synonymous
with public peace, safety and tranquility; and that “in the interest of 'Public Order'” is wider
and broader than the “maintenance of 'Public Order' ”. Further, there can be matters which
disturb public tranquility without disturbing public order 418.
416
In the case of Australia, CRPD/C/AUS/CO/1; Paraguay CRPD/C/PRY/CO/1
In the case of El Salvador, CRPD/C/SLV/CO/1
418
Mr. Mahesh Bhatt And Kasturi And ... vs Union Of India (Uoi) And Anr. on 7 February, 2008
2008 BusLR 366 Del, 147 (2008) DLT 561
417
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Even though the CRPD was ratified by India in 2007, the courts are yet to take note of the
Right to Freedom of Expression and opinion, in its larger import as defined above, in the
case of persons with disabilities.
On Access to Information, the National Association of the Deaf filed against the Union of
India on the non-availability of sign language interpreters in public services. The Delhi High
Court419 specific directions to the authorities. These directions included undertaking a
survey to assess the availability and requirements for sign language interpreters, appointing
nodal officers to seek information from concerned authorities and prepare a report to be
used for creation of new posts, creating courses and curricula for training of interpreters.
The Central Administrative Tribunal of Delhi in 2012 chastised the Public Service
Commission about not providing the visually impaired candidates who took the examination
Braille scripts or a scribe, nor relaxing the time to write their paper 420.
Right to expression and opinion on equal basis with others
This right has been contested before courts mainly in the context of the freedom of
expression of the press, cinema and other public media. The courts have not
comprehensively addressed the censorship that happens at the community and family level,
on the freedom of expression and opinion of persons with disabilities.
The Working Group on Human Rights421 has brought to the attention of the UN and
international bodies how speech and opinion censorship is established over communities
through fear of facing charges of ‘terrorist’, ‘maoist’, ‘antinational’, etc. and the rule of the
army in nearly 50% of the Indian states. Not having the right to speak and express one’s
419
The National Association of the Deaf v Union of India, W.P.(C) No.6250/2010, Judgment dated
24.11.2011 (Delhi High Court)
420
Pankaj Kumar Srivastava vs Union Public Service Commission ... on 30 May, 2012, Original
Application Nos.3493 of 2011, 3209 of 2011, 3494 of 2011 and 3988 of 2011. Order 30th May, 2012
by the Central Administrative Tribunal of Delhi
421
Human rights in India. Joint Stakeholders’ Report, for the Universal Periodic Review Report, by
Working Group on Human Rights in India and the UN (OHCR), submitted to UNOHCR on 28 th
November, 2011
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opinions has led communities in Kashmir (as elsewhere) to lose their sense of identity,
memories, and positive connection with community 422.
People determined to have a ‘mental illness’ or a mental disability, find it very difficult to
express themselves, for fear that what they say will be considered as another symptom. The
right to be listened to and understood emerged as key concern for them
423.
Within
different kinds of institutions for different constituencies, including those specially created
for persons with disabilities, there is severe restriction of freedom of speech, including
freedom to fraternize, have family and guests over for visits, communication by phone or
letter, etc.
Children in general, and children with disabilities, have barriers to expressing themselves
freely. In 2005, special children’s courts have been notified
424
to encourage child friendly
judicial procedures in line with the CRC.
Right to freedom of expression and opinion, access to information
The Disability Act, 1995, has certain provisions that refer to accessibility to information for
persons with disabilities. These are given below.

In Chapter V, Education, clause 27(e) touches upon the need to impart information
through interactive electronic and other media. 27 (f) mentions providing every child
with disability, free of cost, special books and equipment needed for his education.
Clause 28 mentions that research should be initiated for designing and developing
new assistive devices, teaching aids, special teaching materials or such other items
as are necessary to give a child with disability equal opportunities in education.
Clause 30(c) provides for the supply of books, other materials to children with
disabilities attending school. Clause 31 provides for amanuensis (a person employed
422
Fahad Shah, (2011), Of occupationan and resistance. Book Reviewed in
http://www.livemint.com/Leisure/xdPCjGDpCoeYVH5VaNYj8N/Book-Review--Of-Occupation-andResistance-Writings-from-Ka.html
423
Kavita Nair, Mad Lives India (2010), Bapu Trust, Pune, India; National Alliance on Access to Justice
for persons living with a mental illness, (2008), Bill of Rights: Insights from a mad campaign. Bapu
Trust, India.
424
The Commissions For Protection Of Child Rights Act, 2005
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to take dictation or to copy manuscripts) to blind students and students with low
vision for assisting in writing.

In Chapter VIII, on Non-Discrimination, we have the following clauses that encourage
the setting up of appropriate signage and so on. Clause 44 (c) Engraving on the
surface of the zebra crossing for the blind or for persons with low vision; 44 (d)
Engraving on the edges of railway platforms for the blind or for persons with low
vision; 44 (e) Devising appropriate symbols of disability; 44 (f) Warning signals at
appropriate places. Clause 45 provides for (a) Installation of auditory signals at red
lights in the public roads for the benefit of persons with visual handicap; Clause 46(c)
Braille symbols and auditory signals in elevators or lifts;

There are many points related to accessibility that have not been mentioned in The
Disability Act such as development and use of sign language, alternative and
augmentative mode of communication, availability of information in accessible
formats, accessibility of Internet, etc.
The National Trust Act, 1999, and Mental Health Act, 1987, have certain provisions that curb
the freedom of expression and opinion for persons with disabilities. As per the National
Trust Act, ―parent or a relative of a person with disability or a registered organisation can
remove the guardian of a person with disability on certain grounds mentioned in Article 17
of the Act. The person with disability herself/himself does not have a say in it. The Mental
Health Act allows for involuntary admission into institutions of a person with mental health
issues without her/his own consent.
The Right to Information (RTI) Act, 2005, Clause 7(4)425, states ―Where access to the record
or a part thereof is required to be provided under this Act and the person to whom access is
to be provided is sensory disabled, the Central Public Information Officer or State Public
Information Officer, as the case may be, shall provide assistance to enable access to the
information, including providing such assistance as may be appropriate for the inspection.
Not many persons with disabilities are aware of this provision. Moreover, the officer in
charge of replying to the RTI letter is not be equipped to reply in an accessible format.
425
Right to Information Act 2005, accessed at http://rti.gov.in/rti-act.pdf, on December 31, 2012
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Although the freedom of expression and opinion and access to information is recognised
and provided for under Section 31 and 80 of the new Rights of Persons with Disabilities Bill,
2013, the obligation under Article 21(b) of the CRPD is not recognised in any of these
provisions. While detailed provisions are made on information flowing through internet and
other technology, the Bill fails to ensure that official communications are disability-friendly.
There is no provision in the Bill directing the GoI to recognize sign language or other forms
of communication as a legitimate language.
Sections 26 (1) and (2) of the new proposed Mental Health Care Bill of 2013 provides the
right to receive or refuse visitors, phone calls, etc. ‘at reasonable times subject to the rules’
of the institution, to ‘persons with mental illness’. Such a person may also send and receive
electronic mails. However, this right is restricted through further conditions of finding of
‘incapacity’.
Barriers to exercise Right to freedom of expression and opinion and access to information
To exercise, on an equal basis with others, Article 21 of the CRPD, accessibility of
communication and information systems and technologies is imperative. While there has
been some evolution over time, more in the higher education sector where there is an
effort towards making libraries have books in Braille and Talking books426, it seems to be a
drop in the ocean.
The WCAG 2 Level A became the standard for Indian government websites in January
2009427, but a recent study ‘Accessibility of Government websites in India – a report’428
published in 2012 states that out of the total of 7800 government websites that were tested
for accessibility, 1985 websites failed to open and the remaining 5815 websites had some
accessibility barriers. There is no mandatory requirement for private service providers to
ensure that their websites are accessible.
426
UGC Grant in in circular (No. F-6-1 (CCP II) dated 09/01/2009)
See Guidelines for Indian Government Websites (Page 4) accessed at
http://darpg.nic.in/darpgwebsite_cms/Document/file/Guidelines_for_Government_websites.pdfhtt
p://darpg.nic.in/darpgwebsite_cms/Document/file/Guidelines_for_Government_websites.pdf on
December 29, 2012
428
Accessibility of Government Websites in India a Report accessed at http://cisindia.org/accessibility/accessibility-of-govt-websites.pdf on December 29, 2012
427
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Sign Language Interpretation services are unavailable and while the government has
initiated setting up of a sign language institute, the disparity between demand and supply is
so high429.
There is a surge of new technology in the market that can be very useful for accessing
information and for communicating by people with sensory impairments such as the 3G
mobile phones, but they remain very expensive with no government efforts to make it
affordable for people with disabilities also such equipment would not fit under the
Assistance to Disabled Persons for Purchase/Fitting of Aids/Appliances scheme rolled out be
the MSJE430 (discussed more fully in Article 20).
All mass media options ranging from television, radio, newspaper, films etc. remain
inaccessible to a large number of persons with disabilities. Even the Prime Minster's address
to the nation remains inaccessible to a large number of persons with disabilities. The
Ministry of Information and Broadcasting does not fully address accessibility needs of
persons with disabilities in any of its existing laws and Acts. The National Doordarshan
channel has one news bulletin a day with sign language interpretation but it is telecast at an
odd hour. The MSJE Annual Report 2010-11 has mentioned about setting up of a National
Captioning Centre but there are no resources allocated for it.431 Online news is the only
prominent accessible option for reading news for persons with vision impairments in the
country and therefore is mostly available only to net users though not all news sites may be
accessible. The Ministry of Social Justice and Empowerment has a National Programme for
Braille Literacy, but availability of braille material and books is scarce and difficult to
procure.
The University Grants Commission had started the scheme of assistance to
universities/colleges to facilitate Higher Education for Persons with Special Needs
(HEPSN)432 during the Ninth Five-Year Plan with an aim to improve accessibility for disabled
429
Refer to the section on Article 9 – Accessibility of this report
Scheme of Assistance to disabled persons for Purchase/Fitting of Aids/Appliances, Ministry of
Social Justice and Empowerment, accessed at, http://socialjustice.nic.in/pdf/adipsch.pdf, on
December 29, 2012
431
Refer to Article 9 on Accessibility of this report
432
Accessed at http://www.ugc.ac.in/oldpdf/xplanpdf/DifferentlyAbledPersons.pdf, on December
31, 2012
430
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students to higher education. Under this scheme support is provided to central universities
to have assistive technology equipment at libraries to make for students with vision
impairments.
The recent Copyright (amendment) Act 2012433 allows any person to facilitate access by
persons with disabilities to copyrighted works without any payment of compensation to the
copyright holder, and any organization working the benefit of persons with disabilities to do
so as long as it is done on a non-profit basis. This is a good success for DPO’s and persons
with disabilities advocating for this.
Another success was when All India Confederation of the Blind (AICB) filed a Public Interest
Litigation (PIL) in Delhi High Court regarding availability of Braille textbooks for the visually
impaired children in schools. After a long fight the Government finally consented to provide
Braille books to all visually impaired students whether studying in the government, aided or
recognized schools in Delhi.434 The judgement must be replicated across the country.
Resources
There is no disaggregated data available of resources that may be used to improve
accessibility of information and communication for persons with disabilities that can suggest
the clear direction the nation may be taking to improve and provide this.

Some scattered data suggests that 44 corers435 have been allocated for setting up
the Indian Sign Language Research and Training Centre over five years.

The Media Lab Asia, under the Department of Information Technology (DIT). The
objective of the company was set to bring the benefits of ICT to the common man. It
has taken up several projects to improve accessibility to information for persons with
433
Copyright Amendment Act 2012 (28 (vii)(zb)), accessed at
http://copyright.gov.in/Documents/CRACT_AMNDMNT_2012.pdf, on December 28, 29012
434
Combating discrimination, accessed at
http://aicb.in/images/Combating%20Discrimination,%20Some%20PathBreaking%20Initiatives%20for%20the%20Visually%20Impaired.pdf on January 1, 2013
435
Indian Sign Language Research & Training Centre to setup, press release Ministry of Social Justice
and Empowerment, accessed at http://pib.nic.in/newsite/erelease.aspx?relid=73454, on December
31, 2012
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disabilities436, they have a limited reach and also disaggregated data on the amount
spent specifically on research related to disability is not available.
Recommendations

Disability laws should ensure provisions for freedom of expression and opinion, and
access to information. Additionally all other related laws should be reviewed and
amended in the light of the CRPD.

All related Ministries (Information and Broadcasting and Communications and
Information Technology) should have a disability cell with a clear-cut mandate so
that funds, human resources and implementation and monitoring mechanisms reach
every village of the country.

Conferences, public speeches, rallies, debates should ensure that persons with
disabilities are equal participants by providing sign language interpreters, material in
CDs or Braille and other accessible formats etc.

The National Centres for Universal Design and for Sign Language need to be
developed as very dynamic and visionary institutions.

Accessibility for persons with disabilities should be ensured as part of various
programmes of the relevant Ministries, in addition to initiating separate focused
programmes.

All e-governance programmes should be audited to ensure accessibility for people
with all disabilities.

Training of existing professionals like website developers, software engineers and
bureaucrats should be conducted regularly.

In order to provide various services such as sign language/tactile communication
interpreters, transcribers, readers, scribes, personal assistants to ensure effective
communication, there should be focus on training of personnel. These services
would have to be provided at no extra cost to persons with disabilities.
436
Media Lab Asia, accessed at http://medialabasia.in/index.php/research/projects/empowermentof-disabled, on January 1, 2012
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
Various forms of media should ensure that disability issues are highlighted on the
rights based model through articles, reports, discussions, documentaries, films,
theatre, dance-drama and so on.

A conscious effort should be made to provide media space for persons with
disabilities to express their opinions on various issues and not just disability issues.

Promote and facilitate research and development in the area of modes and means of
communication and access to information.
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Article 22: Respect for Privacy
1. No person with disabilities, regardless of place of residence or living arrangements,
shall be subjected to arbitrary or unlawful interference with his or her privacy, family,
home or correspondence or other types of communication or to unlawful attacks on
his or her honour and reputation. Persons with disabilities have the right to the
protection of the law against such interference or attacks.
2. States Parties shall protect the privacy of personal, health and rehabilitation
information of persons with disabilities on an equal basis with others
NCPEDP & DEOC SURVEY FINDINGS
As per the NCPEDP-DEOC Survey, 84% people reported dissatisfaction with regard to the
State’s effort in protecting the right to privacy for persons with disabilities. This shows that
the right is quite often violated in the country.
International Obligations
The UNCRPD Monitoring Committee has not elaborated any directives to any country on
this right.
Constitutional provisions and other statutory safeguards
The Constitution does not explicitly provide for the right to privacy. The concept of privacy
as a fundamental right first evolved in 1964 in the case of Kharak Singh vs the State of Uttar
Pradesh. The Supreme Court of India, for the first time, recognised that there is a right of
privacy implicit in the Constitution under Article 21. The Court held that the Right to Privacy
is an integral part of the Right to Life, but without any clear cut laws it still remains a grey
area.437
437
Does right to privacy exempt right to know? A case study in the Indian Context, Devmalya
Chakraborty, December, 2010, Global Media Journal – Indian Edition
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However, courts recognize the right to privacy as having constitutional status438. The
Supreme Court has held that the right to privacy is an independent and distinctive concept
under which a new cause of action for damages resulting from unlawful invasion of privacy
was recognised. This right has two aspects (1) the general law of privacy which affords a tort
action for damages resulting from an unlawful invasion of privacy and (2) the constitutional
recognition given to the right to privacy which protects personal privacy against unlawful
governmental invasion. In recent times, however, this right has acquired a constitutional
status.
As per the dictum laid down by the Supreme Court, right to privacy is available as long as
the privacy is maintained by the parties. If the privacy comes out to public, the question of
retaining the privacy does not arise. It is also provided that the right to privacy is not only
about the privacy of living at home, but it is the ‘right to be let alone’439.
The Supreme court, after noting the severe right to violation of privacy, integrity and meting
out of cruel, inhuman treatment to homosexuals, elaborated on this right in the case of Naz
Foundation vs Government Of Nct Of Delhi 440 of 2008.
Rights under the RTI act and the right to privacy have been contested before courts. In a
recent case before the Madras High Court, the court noted:
“One of the objectives to this right to information is eradication of ineffective governance
and corrupt governance. Corruption is now recognised as violation of human rights. Good
transparency practices are essential for good governance and it includes maximum
disclosure; obligation to publish; promotion of open government; limited scope of
exceptions; minimum costs; processes that facilitate access; open meetings; precedence of
disclosure; and protection of whistle-blowers. The civil society must be unrelenting in its
efforts to ensure that the government at all levels reaches a reasonable standard in
affording public information to the citizens. Sometimes even harmless information is not
made available. When what is asked for is just ordinary data, data that any interested taxpaying citizen has a right to know - a human right, even where no national secrets that
438
The Managing Director vs Mrs.V.Muthulakshmi on 26 October, 2007; CRP. (PD) No.3299 of 2007
Alarmelu Mangai vs The Secretary To The Government Of ... on 27 April, 2010 W.P.NO.14781 of
2004, Madras High Court.
440
on 2 July, 2009, Delhi High Court, WP(C) No.7455/2001 2nd July of 2009
439
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threaten public interest are asked for - it is not furnished. This access to information is more
vitally important in developing countries. It is very necessary that the ordinary person is
enabled to participate in the processes that affect daily life and he has empowered with the
information to play an effective role in policy-making and legislative decision-making. To
promote broader political participation, there should be accountability and transparency of
government, to prevent the criminalisation of policy, there should be free flow of
information. These are the reasons why the Act came into force. The Government should
have the will to make the shift from being niggardly in providing access to information.
Transparency is essential for a healthy democracy and robust economy.”441
Right to Privacy in disability legislations
Neither The Disability Act, 1995 nor The National Trust Act, 1999, cover anything on privacy
or confidentiality.
The Mental Health Act, 1987 provides for confidentiality of the personal records of a
patient. It also mentions that “No letter or other communication sent by or to a mentally ill
person under treatment shall be intercepted, detained or destroyed”. The Act has only a
cursory mention about privacy in certain situations but does not mention it as an absolute
right.
The new Proposed Mental Health care Bill of 2013 has linked provisions (22-24) on
transactions between client and state parties / professionals on the right to information,
privacy, and access to medical records. (24,1) provides that no photograph or any other
information relating to a person with mental illness undergoing treatment at a mental
health establishment shall be released to the media without consent. And that, this may
apply to digital, electronic or other ‘virtual’ information. 23(1) provides that a person ‘with
mental illness’ shall have the right to confidentiality in respect of his mental health, care,
treatment and physical health care. However, the right is not without restrictions; those
restrictions are liberally defined; allows proxy use of the information by Nominated
Representative; and reinforces the stereotype of the person as causing violence and harm,
and to save lives. Further the information may be released to the mental health
441
R. Anbazhagan vs Mrs.M.Vijaya on 17 April, 2008, Dated : 17.04.2008, W.P.No.47897 of 2006,
Madras High Court.
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commissions, high court supreme court, or any other statutory authority. Further, the
information may also be released in interests of public safety and security. The person’s
right to information concerning his or her own admission and treatment is granted, but also
comes with liberally interpreted restrictions as above.
As per Government Policy, the Census data and NSSO data is confidential. Though
individual data on disability is taken, only aggregates are used and publicised. The individual
respondents are assured of confidentiality of the information shared.
Professional Conduct, Etiquette and Ethics Regulations, 2002442, states under Clause 2.2,
Patience, Delicacy and Secrecy, that “Confidences concerning individual or domestic life
entrusted by patients to a physician and defects in the disposition or character of patients
observed during medical attendance should never be revealed unless their revelation is
required by the laws of the State.”Privacy, as an issue, in general, and for persons with
disabilities in particular, has not been much discoursed in the country. There are range of
issues that have direct implication on privacy of persons with disabilities - accessibility,
availability of carer services, work ethics of professionals, interpreters and assistants,
awareness amongst persons with disability about their rights and awareness in the society
about human rights of persons with disabilities.
Privacy data protection laws in general are not very strong in India. There are various bills
and propositions in the pipeline for the same. These policies/laws/guidelines, when they are
framed, should ensure that they have strong provisions to ensure confidentiality of disability
related information.
Barriers to full enjoyment of the Right to Liberty on equal basis with others
Based on personal accounts of persons with disabilities and media reports, there have been
quite a few instances where their personal space is often violated due to various reasons in
family, health centres, institutions, by professionals, attendants, etc. Most of the instances
go unreported.
442
Professional Conduct, Etiquette and Ethics Regulations, 2002 Accessed at www.mciindia.org on
15th November 2011
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BOX ITEM
“I cannot access my ATM on my own. I have to give my debit card to my friend to withdraw
money, due to inaccessibility of ATM Machine in my locality”. A person with orthopaedic
impairment.
All poverty alleviation programmes, in order to ensure transparency and to check
corruption, have a clause that states that list of beneficiaries should be made public. For
example, the Guidelines Issued by the Ministry of Rural Development for Indira Awaas
Yojana mentions under Section 22, ‘Transparency in Implementation’, that “The disclosure
of information should be the rule and withholding of information an exception. List of items
on which information should invariably be made available to people to bring about greater
transparency at village, block and district level is given below.” One of the items in the list is
“List of beneficiaries identified during preceding year and current year, including details of
SC/ST, women beneficiaries and disabled persons under IAY.”443. Moreover, considering that
Disability Certification falls under ‘Social Protection’, many State Governments publicise the
list of people who have been issued Disability Certificate, their nature of disability and
percentage. A few States have also put up this information on their website.
The Social Justice Department, Government of Himachal Pradesh, has a website that gives
the list of people with disabilities who have taken Disability Certificate. It mentions their
name, age, type of impairment, severity of impairment, Tehsil and District name.444
BOX ITEM
“I went to see a Disability Certification Camp in Bihar. It was held in open air. Hundreds of
people had gathered. There were no enclosures. The doctors were examining people,
443
Indira Awaas Yojana Ministry of Rural Development accessed at
http://megcnrd.gov.in/forms/IAY.pdf) in January 2013
444
http://india.gov.in/outerwin.php?id=http%3A%2F%2Fhimachal.gov.in%2Fwelfare%2FSearchDCIS.as
p accessed on 17th November 2011.
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including women in public and asking questions in front of everybody. They were quite
unaware of privacy issues.” - Rama Chari
Most NGOs do not have data protection policy for the information that they collect on
persons with disabilities. Some NGO take in depth case history of individuals, including their
family, marital relationships, etc. Sometimes, the information is shared with employers,
educators, funders etc. without taking appropriate permission from person with disability.
Information about ‘clients’/‘students’ is shared openly with other staff members, trainees,
visitors, etc. They are spoken about in the meetings, conferences and case studies with
photos are presented in annual reports, proposals and media without taking permission.
The personal problems of persons with disabilities are over emphasised to gather funds.
Even doctors openly advertise ‘before’ and ‘after’ photos of people with disabilities who
underwent surgeries; etc. to attract more clients.
BOX ITEM
“I shared information about my mental illness in a support group. The next day I saw the
information was in a newspaper with my full name in it. I was not told there is a journalist
sitting in that session”. – Person with disability
Resources: There has been no separate effort to protect the right of privacy of persons
with disability. Hence, it is difficult to estimate the resource spent on this aspect.
Recommendations
1. All the disability and other relevant laws and guidelines should explicitly mention the
right to privacy of persons with disabilities. It should apply to privacy of personal,
health and rehabilitation information.
2. Training of rehabilitation and medical professionals should include right to privacy of
the client in the curriculum.
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Article 23: Respect for Home and the Family
1. States Parties shall take effective and appropriate measures to eliminate
discrimination against persons with disabilities in all matters relating to marriage,
family, parenthood and relationships, on an equal basis with others, so as to ensure
that:
a) The right of all persons with disabilities who are of marriageable age to marry
and to found a family on the basis of free and full consent of the intending
spouses is recognized;
b) The rights of persons with disabilities to decide freely and responsibly on the
number and spacing of their children and to have access to age-appropriate
information, reproductive and family planning education are recognized, and the
means necessary to enable them to exercise these rights are provided;
c) Persons with disabilities, including children, retain their fertility on an equal basis
with others.
2. States Parties shall ensure the rights and responsibilities of persons with disabilities,
with regard to guardianship, wardship, trusteeship, adoption of children or similar
institutions, where these concepts exist in national legislation; in all cases the best
interests of the child shall be paramount. States Parties shall render appropriate
assistance to persons with disabilities in the performance of their child-rearing
responsibilities.
3. States Parties shall ensure that children with disabilities have equal rights with
respect to family life. With a view to realizing these rights, and to prevent
concealment, abandonment, neglect and segregation of children with disabilities,
States Parties shall undertake to provide early and comprehensive information,
services and support to children with disabilities and their families.
4. States Parties shall ensure that a child shall not be separated from his or her parents
against their will, except when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures, that such separation
is necessary for the best interests of the child. In no case shall a child be separated
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from parents on the basis of a disability of either the child or one or both of the
parents.
5. States Parties shall, where the immediate family is unable to care for a child with
disabilities, undertake every effort to provide alternative care within the wider
family, and failing that, within the community in a family setting.
“I am a woman with disability. I have not been able to find a suitable alliance due to my
disability. Even men with disability do not want to marry a girl with disability. They think I
may not be able to do household chores, like cooking, washing clothes, dishes etc. They
think I may not be able to bear or take care of children. I am over 40 years and am
unmarried. I am now thinking of adopting a child. I am well educated and well employed. At
the same time, I am also single, a woman and disabled! I am not sure if I will be allowed to
adopt!” -Kalpana (name changed), a person with physical impairment.
“For ages, the champions of women’s right and liberation have fought to discard traditional
roles of women and define themselves anew. On the other hand, the fight of women with
disabilities has been, to be heard and be accepted as a woman, spouse, mother, etc.” –Priya
Varadan, Researcher, a person with disability
Taken from ‘Mad Lives – India’, Bapu Trust for Research on Mind and Discourse, Stories and
testimonies of how persons living with a mental illness survive, 2010.445
Chrysann (name changed), who was a married woman with two children, was taken for
psychological evaluation by her husband because she gets angry very often...certain tests
were done...she was given no details of the reports...One night, she was tricked and
drugged and was admitted in a ‘mental hospital’, where she lived a life of a prisoner...She
was forced to have tablets, injections, shock treatments and solitary confinement...(she is a
naturopath and has never taken allopathic medicine in her life). Most times, she wouldn't
even know what treatment was being given to her as it was done after drugging her. All she
can remember are the after effects (bad headache lasting for 2-3 days, swelling in her
hands, etc.) She was not allowed to meet anybody or go outside...She couldn’t see her
445
Taken from ‘Mad Lives – India’, Bapu Trust for Research on Mind and Discourse, Stories and
testimonies of how persons living with a mental illness survive, 2010.
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children...Later, when she came back home (after her mother intervened), she saw
everything had changed in her house. The sign board at the door indicating that she is a
professional practicing naturopathy had been taken off and she was told not to continue.
The treatment had also affected her memory and slowed her down. Her social interaction
suffered, as she could not remember her neighbours because of the shock treatment,
medications, etc. (she was earlier a very outgoing person). It took time for her to
recover...She stopped taking medicines (without telling her husband) as it made no
difference. She started studying herself...She was feeling much better...She passed the
insurance agent’s exam with good marks. One day when she was cleaning the house, she
realised all her papers - bank papers, passport, etc had been taken away. Then, when her
divorce matter came up for hearing, she realised she had no papers (including medical
papers) to prove anything. She had lots of questions, ‘what would happen in the
Court…after 10 years of such history, is somebody still considered to be mentally sick and
only that? If you had a problem once and you’re sick once, you’ll be sick for always: is that
it?’ She tried getting the papers from the hospital. She was not given any information. Lies
were fabricated in the Court. She lost the case, including access to her children.
NCPEDP & DEOC SURVEY FINDINGS
According to the Survey Findings, there is considerable dissatisfaction (85%) among people
with disabilities, as these are not rights recognised by disability laws in our country.
Moreover, this is an area where people with disabilities are discriminated against in the
family and by the society, due to many myths surrounding disability.
International Obligations
The family is the fundamental and natural unit of society and requires the full protection of
the state. Human rights law upholds the positive right of all peoples to marry and found a
family. It upholds the ideal of equal and consenting marriage and tries to guard against
abuses which undermine these principles. It is not prescriptive as to the types of families
and marriages that are acceptable, recognising tacitly that there are many different forms of
social arrangements around the world. These are also captured in Article 23 of the ICCPR
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and Article 10 of the International Covenant on Economic, Social and Cultural Rights 1966
both ratified by India.
The CRPD Committee has urged State parties to to take appropriate measures to enable
men and women with disabilities who are of marriageable age to marry and found a family;
to provide adequate support services to men and women, boys and girls with disabilities to
enable them to live with their families, with a view to prevent and reduce the risk of
placement in an institution; put in place adequate measures to make it easier for persons
with disabilities to exercise their family and maternity rights; encourage foster families;
provide financial support to low income families with children with disabilities; guarantee
equality of treatment for children with disabilities in all protection programs; make support
services to assist with the demands of parenthood available to persons with disabilities who
require them; and prohibit compulsory sterilization and forced abortion on women with
disabilities.
The Right to Family and Marriage in disability legislations
The Disability Act, 1995 and The Mental Health Act, 1987, do not make any specific mention
about right to home and family.
The National Trust Act 1999, in Chapter 3, ‘Objects of the Trust’, states the following points
which has some relevance to this Article:
Ø To strengthen facilities to provide support to persons with disability to live within
their own families.
Ø To extend support to registered organisation to provide need based services during
the period of crises in the family of persons with disability.
Ø To deal with problems of persons with disability who do not have family support.
Ø To promote measures for the care and protraction of persons with disability in the
event of death of their parent or guardian.
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Other legislations do not mention this right.
Incapacity legislations as barrier to full enjoyment of the Right to family
There are negative provisions that restrict the right to full enjoyment of the Right to family,
in statute and case law. Many Family Laws have discriminating provisions against persons
with disabilities. Based on the Report, ‘Incapacity Laws – A Compilation of National Laws’446,
following laws have discriminatory provisions - The Hindu Adoptions and Maintenance Act,
1956; The Hindu Inheritance (Removal of Disabilities) Act, 1928; The Hindu Marriage Act,
1955; The Indian Divorce Act, 1869; Indian Divorce (Amendment) Bill 2001;The Indian
Christian Marriage Act, 1872; The Special Marriage Act, 1954; The Parsi Marriage and
Divorce Act, 1936; Medical Termination of Pregnancy Act, 1971; The Foreign Marriage Act,
1969; The Indian Succession Act,1925; Hindu Minority and Guardianship Act, 1956. Some of
the discriminating provisions in the Family Laws have been quoted below.
The Hindu Marriage Act 1955
“A marriage can be solemnized between any two people if the following conditions are
fulfilled: (1) neither party (a) is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or (b) though capable of giving valid consent, has been suffering from
mental disorder of such a kind or to such an extent as to be unfit for marriage and for
procreation of children; or (c) has been subject to recurrent attack of insanity or epilepsy.
The Indian Divorce Act 1869
“Grounds of dicree :- Such dicree may be made on any of the following grounds: (3) that
either party was a lunatic or an idiot at the time of the marriage
48. Suits on behalf of lunatics when the husband or wife is a lunatic or an idiot, any suit
under this Act (other than a suit for restitution of conjugal rights) may be brought on his/her
behalf by the Committee or other person entitled to his/her custody.
446
Incapacity Laws: A Compilation of National Laws (Authors?)
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Indian Divorce (Amendment) Act 2001
Grounds for dissolution of marriage: Any marriage solemnized, whether before or after
commencement of Indian Divorce Amendment Act, 2001, may on a petition presented to
the District Court either by the husband or the wife, be dissolved on the ground that since
the solemnization of the marriage which, the respondent –
iii.
has been incurably of unsound mind for a continuous period of not less than two
years immediately preceeding the presentation of the petition;
iv.
has for a period of not less than two years immediately preceeding the presentation
of the petition, been suffering from a virulent and incurable form of leprosy.
Recent case law continue to discriminate on grounds “incapacity due to unsound mind”
within Marriage and divorce laws447.In one Supreme Court case
448,
the court not only
granted divorce on grounds of “mental disorder”, but also observed that “it is not
reasonably expected to live with her”; and that “giving repeated threats to commit suicide
amounts to cruelty”. This is a serious misinterpretation of cruelty under the Act and
deprives the dignity and integrity of persons with mental disabilities.
BOX ITEM
One marriage in Pune was annulled by a lower court on the basis of a finding of ‘moderate
depressive episode with somatic syndrome’
449.
The history of this case shows that the
husband filed nullity of marriage petition on ground of insanity and fraud due to
nondisclosure, in Pune family court. He alleged that his wife has had ‘as many as 6 previous
sexual relationships’ and had kept him in the dark about it. Not revealing these past
relationships was construed by the lower court as ‘deception’, the ground of ‘insanity’
447
Pullanhi Dinesan v. Palangadan Jyothi, MFA.No. 25 of 2003, judgment dated 24 November 2008,
Kerala High Court.
448
Pankaj Mahajan v. Dimple @ Kajal, MANU/SC/1145/2011, Civil Appeal No. 8402/2011, judgment
dated 30 September 2011, Supreme Court.
449
Mr. Vinand Vilas Arabale versus Ms. Shilpa Vinand Arabale, Petition A.NO.487/2011, for
annulment of marriage under section 12(1)(c) in the court of Principal Judge, Family Court of Pune,
at Pune. Judgment delivered on 29/07/2012
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admitted and the marriage was rendered null and void. The husband had alleged the
woman’s ‘abnormal’ behaviour (promiscuity) and some other events (crying spells, poor
sleep). He alleged that her ‘vaginal opening was enlarged and vaginal muscles laxed’. After 2
independent gynaecologists found that the vaginal muscles were indeed ‘laxed’, the
gynaecologists directed that both of them should see a psychiatrist. The judgment was
squashed by the High Court, which however engaged in serious violation of the right to
bodily and mental integrity and the right to privacy. The woman was repeatedly sent for
different gynaecological tests and psychiatric tests. After several subsequent referrals to a
variety of doctors, she was diagnosed with ‘severe subjective distress’ and ‘moderate
depression with somatic complaints’. Tussle between two courts and between 2
psychiatrists or more resulted in serious violations of her autonomy and self determination,
right to bodily and mental integrity, consent to medical interventions, and right to privacy.
The Medical Termination of Pregnancy Act, 1971
Pregnancy may be terminated by Registered Medical Practitioner
(iv) a. No pregnancy of a woman, who has not attained the age of eighteen years or who,
having attained the age of eighteen years is a lunatic, shall be terminated, except with the
consent in writing of her guardian.
The Medical Termination of Pregnancy (Amendment) Act, 2002
For the word “lunatic”, the words “mentally ill person” shall be substituted. “Mentally ill
person” means a person who is in need of treatment by reason of any mental disorder other
than mental retardation.
There are also barriers to adoption and taking custody of children if found to be ‘of unsound
mind’.
One landmark judgment of the Supreme Court in 2009 450, which upheld the right to
motherhood to a person with intellectual impairment and obligated the State to provide
necessary support to the woman for bringing up the child, was a huge step forward in this
450
Supreme Court judgement out on Right to Motherhood of mentally retarded, 15th September,
2009, Disability News and Information Service.
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regard. However in this case the Supreme Court clarified that the said woman was a person
with mental disability, and not ‘mental illness’, therefore not ‘unsound of mind’.
Barriers in society to full enjoyment of Right to Marriage and Family
For generations, India has had a joint family system. In the last few decades, with
urbanization and economic development, India has witnessed a break-up of joint family into
more nuclear families. Family continues to play a central role in providing physical and
emotional support and in shaping one’s life in general and for persons with disabilities too.
However, there are quite a few instances, where families, due to societal, economic and
other pressures, have abandoned/surrendered their children with disabilities or kept them
hidden or locked up or denied any rights in the family.
BOX ITEM
As per data available between 2007-2008 with Child Line Lucknow, out of the 27 new born
abandoned children, 21 were females and had disability. While out of 19 boys abandoned,
10 had disability and out of the total of 50 found abandoned in one year, 31 were disabled
and females451.
BOX ITEM
People with certain impairments and those with more significant impairments face more
discrimination than others. There are 700 leprosy colonies in the country where over 2 lakh
people
live
marginalised
lives.452
There
are
also
several
institutions/mental
institutions/orphanages, where people with disabilities are abandoned/admitted and
families never return. There are innumerous people with disabilities who are
homeless/begging at the signals and outside places of worship. These numbers, if counted,
451
‘Children of a lesser God? Abandoned and Stricken too!’, By Anjali Singh, NI Wire, February 10,
2009, accessed at http://www.newstrackindia.com/newsdetails/66829 accessed on 10th October
2011.
452
Dr. Gopal, International President of the International Association for Integration, Dignity and
Economic Advancement (IDEA), The Hindu Leprosy continues to haunt India, social stigma remains
AARTI DHAR http://www.thehindu.com/news/national/leprosy-continues-to-haunt-india-socialstigma-remains/article4358263.ece accessed on 12 February 2013
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would be alarmingly high. Government has hardly taken any focussed steps to address the
issue and to provide support (caretaking, rehabilitation, counselling, information etc.) to
families of children with disabilities to ensure equal right to family life for people with
disabilities.
India has the tradition for arranged marriages and even today, majority of the marriages are
arranged by parents and relatives. There is no data on the number of people with disabilities
married, divorced, having children, adopting, etc. Many people with disabilities find it
difficult to find partners due to societal attitude and perception about disability.
BOX ITEM
”In a typical arranged marriage, the two people meet each other through their families
based on similar family backgrounds, education, and traditions. In today’s world, arranged
marriages are usually an introduction of two people through family or even friends, they
find out if they are compatible in talking, meet each other, and subsequently get married.
For a person with a disability, this process is nearly nonexistent. Family and friends often
overlook persons with disabilities for such introductions. Often times, family and friends
introduce prospective grooms and brides to the people who do not have a disability, but not
to the person with a disability even if they are the same age, are accomplished in their
careers, and independent. Again, the focus is on, “oh, this person is well-educated, belongs
to a good family, but unfortunately has a disability, so can’t be in a relationship”.453
Some State Governments, in the name of ‘affirmative action’ are providing monetary
incentives for promoting marriage between disabled people and non disabled people. For
example, in October 2010 Maharashtra Government had launched a scheme where anyone
marrying person with disability will be awarded Rs. 50,000/-. Goa, Himachal, Puducherry,
Tamil Nadu, Andhra too have a similar scheme. It is given to the person without disability as
an encouragement or a reward for marrying a disabled person. The move has been criticised
strongly by disability activists saying, it is like paying dowry, in fact, far worse! In
453
Attitudinal Barriers: The Indian View of Love and Marriage, Rupa Chandrashekar
http://lifestyle.sulekha.com/attitudinal-barriers-the-indian-view-of-love-and-marriage_97970_blog
accessed on 12 February 2013
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Chhattisgarh, it is more progressive, as this incentive (Rs. 21,000/-) is given to the couple, of
whom, either one or both the spouses are disabled. In Tamil Nadu, an assistance of Rs.
50,000 and 4 grams of gold is given at the time of marriage if the person is a diploma holder,
otherwise an assistance of Rs. 25,000 with 4 grams gold is given. 50% of the money
allocated to individuals is given as National Savings Certificates.
People with disabilities, in general, are seen as incapable of parenting and are advised by
families and society against having children.
The Guideline of Central Adoption Resource Authority (CARA), Ministry of Women & Child
Development has mentioned in eligibility for adoption, “Prospective Adoptive Parents
(PAPs) should have good health and should not be suffering from any contagious or terminal
disease or any such mental or physical condition which may prevent them from taking care
of the child.” Persons with disabilities can be denied adoption on the above-mentioned
clause in the Guidelines.
Retaining fertility as a right is not granted to many persons with disabilities. There is no
data in this regard. The convenience of the caretaker is often the priority in such instances.
BOX ITEM
Human rights activists are up in arms against a recent decision by the Maharashtra State
Government. The Government proposes to perform hysterectomy operations on mentally
challenged women. The reason it gives is that ‘mentally retarded adolescent girls or adult
women during menstruation have no sense of hygiene.’ 454
There are schemes of Ministry of Women and Child Development for adolescent
girls/expecting mothers for providing information and support in the area of reproductive
health. There is no data being maintained about beneficiaries of persons with disability by
the Ministry. There also seems no effort in making these information and support accessible
to persons with disabilities.
454
Maharashtra Government Recommends Hysterectomy to the Mentally Challenged’,
Mental Health News, January 30, 2008, accessed at
http://www.medindia.net/news/Maharashtra-Government-Recommends-Hysterectomy-to-theMentally-Challenged-32420-1.htm on 10th October 2011.
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BOX ITEM
Manju, unable to bear the torture of domestic violence, filed a case against her husband and
in-laws with the police. Her in-laws were extremely rich and influential people and it was
difficult for her to get justice. She took help of National Commission for Women as well as
State Commission for Women. When pressurised by both these bodies and after fact-finding
teams visited her family, the Sekhri family agreed to pay Mrs. Manju Rs. 1,60,00,000/(Rupees One Crore Sixty Lakhs only) to vacate their house and to withdraw the police case.
This deed of Agreement was signed by both NCW and State Women’s Commission
representatives on 16th June 2006.
The deed states that “The younger daughter Mathura shall stay with her mother. The elder
daughter Vasudha (elder daughter of the Sekhris) will stay with her father and her
maintenance, education, marriage and final settlement in life will be fully taken care by her
father.” Not a single line on who will take care of education, day-to-day living or
rehabilitation of the girl with disability was mentioned.
The Sekhris were not even interested in accepting responsibility of Mathura – they
considered her as a non entity as she is mentally disabled. Mathura has no brother, so the
question arises who has the right to inherit properties of her great grandfather, grandfather
as well as father? Is her sister the only heir of father’s property? Can her father write her off
from Family Trust Property because she is a mentally disabled girl? Does he not have any
responsibility towards making arrangements for her day to day living, education, medical
and future rehabilitation programmes? Mathura’s mother is afraid that after her death,
Mathura will be without a shelter and will have no house to live even though her family
possesses a number of houses in different cities of India455.
Resources
The marriage incentive is supportive and progressive in some States, like Tamil Nadu, as it
helps people with disabilities financially for creating a home and family.
455
Shampa Sengupta, Sruti Disability Rights Centre, Kolkata, through email exchange dated 20th
September 2011.
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BOX ITEM
The Government of Tamil Nadu has spent Rs. 97,00,000 in the year 2009-10, Rs. 1,17,75,000
in the year 2010-11 and Rs.8,56,49,000 in the year 2011-12.
However, in quite a few States this spending is discriminatory. In Maharashtra and Goa, any
person (non disabled) who marries a person with disability is given a grant!
Recommendations
1. The disability laws should be amended to ensure that the right to home and family is
explicitly mentioned.
2. The other laws related to marriage, family, adoption, guardianship, etc. have to be
reviewed and incapacity provisions repealed, as per the CRPD.
3. Government should establish systems and networks to ensure that appropriate
information and support are provided to the parents of children with disabilities.
4. There should be adequate monetary support (social security, insurance, disability
allowance, etc.) to ensure that the financial burden on the families due to disability
is reduced.
5. Hospitals and doctors should not only be made aware of disability rights and facilities
but they should be encouraged to play a more proactive role in terms of referring
parents to these support systems. Doctors should not deny persons with disabilities
their right to marry and found a family, adopt, terminate a pregnancy, etc.
6. The course curriculum of social workers, rehabilitation workers, psychologists, etc.
should include counselling for marriage, parenthood, family planning, reproductive
health etc. of persons with disabilities. Information on the same should be made
available in accessible formats.
7. The Ministry of Women and Child Development should ensure inclusion of women
and children with disabilities in all their programmes and also ensure data is
collected and maintained with regard to number of beneficiaries with disabilities for
all their programmes.
8. Sterilization on girls and women with disabilities should be prohibited.
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Article 24: Right to Education
1. States Parties recognize the right of persons with disabilities to education. With a
view to realizing this right without discrimination and on the basis of equal
opportunity, States Parties shall ensure an inclusive education system at all levels
and lifelong learning directed to:
a) The full development of human potential and sense of dignity and self-worth,
and the strengthening of respect for human rights, fundamental freedoms and
human diversity;
b) The development by persons with disabilities of their personality, talents and
creativity, as well as their mental and physical abilities, to their fullest potential;
c) Enabling persons with disabilities to participate effectively in a free society.
2. In realizing this right, States Parties shall ensure that:
a) Persons with disabilities are not excluded from the general education system on
the basis of disability, and that children with disabilities are not excluded from
free and compulsory primary education, or from secondary education, on the
basis of disability;
b) Persons with disabilities can access an inclusive, quality and free primary
education and secondary education on an equal basis with others in the
communities in which they live;
c) Reasonable accommodation of the individual's requirements is provided;
d) Persons with disabilities receive the support required, within the general
education system, to facilitate their effective education;
e) Effective individualized support measures are provided in environments that
maximize academic and social development, consistent with the goal of full
inclusion.
3. States Parties shall enable persons with disabilities to learn life and social
development skills to facilitate their full and equal participation in education and as
members of the community. To this end, States Parties shall take appropriate
measures, including:
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a) Facilitating the learning of Braille, alternative script, augmentative and
alternative modes, means and formats of communication and orientation and
mobility skills, and facilitating peer support and mentoring;
b) Facilitating the learning of sign language and the promotion of the linguistic
identity of the deaf community;
c) Ensuring that the education of persons, and in particular children, who are blind,
deaf or deafblind, is delivered in the most appropriate languages and modes and
means of communication for the individual, and in environments which maximize
academic and social development.
NCPEDP & DEOC Survey Findings
The Survey findings with respect to the efforts made by the government to ensure that
persons with disabilities have access to education on an equal basis at the primary and
secondary levels showed that 40% of the respondents were extremely-dissatisfied and 40%
were dissatisfied, and 44% were extremely dissatisfied and 37% dissatisfied by the efforts of
the Government towards providing access to higher education, vocational training and adult
education for persons with disabilities.
International Obligations
The Committee has reminded some states on the concept of inclusion being a key notion of
the Convention and should be the rule rather than the exception; and that denial of
reasonable accommodation constitutes discrimination. The Committee has recommended
that the State parties develop inclusive models at all levels; models that are gender and
culture sensitive; increases its efforts to provide reasonable accommodation of the
necessary quality in education; conduct research into impact of education on inclusion;
targets to measure participation; accessibility in tertiary education; develop pathways for
inclusion in higher education; quality of sign language used by teachers within the education
system; recognition of sign language as an official language in the constitution; coverage of
inclusive education in both urban and rural areas; adopts plans and devolve budgets; design
accessible pedagogical tools and teaching methods; move from a medical model and special
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education towards social inclusion; pay attention to ethnic, linguistic and indigenous groups;
training teachers for them to work better in inclusive schools.
Right to Education under the Constitution and other statutory provisions
As per the Constitution of India (Article 21A), “the State shall provide free and compulsory
education to all children of the age of six to fourteen years in such manner as the State may,
by law, determine.”
Post ratification of the CRPD, in August 2009, India enacted The Right of Children to Free
and Compulsory Education Act (RTE). In Chapter 2, RTE says that “a child suffering from
disability as defined in The Disability Act, 1995, shall have the right to pursue free and
compulsory elementary education in accordance with the provisions of Chapter 5 of the said
Act.
There has been an amendment to the RTE 2010 to include the proviso ‘Provided that the
child with ‘multiple disabilities’ referred to in clause (h) and ‘severe disabilities’ as referred
to in clause (o) of section 2 of the National Trust for the welfare of persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple disabilities Act 1999 may also have the
right to home based education.’
Sarva Shiksha Abhiyan (SSA) is the Government of India's flagship programme with stated
purpose of achievement of Universalization of Elementary Education (UEE) in a time bound
manner, as mandated by 86th amendment to the Constitution of India making free and
compulsory Education to the Children of 6-14 years age group, a Fundamental Right.
Right to education in the disability legislations
Chapter 5 (Clauses 26 - 30) and Chapter 6 (Clause 39) of The Persons with Disabilities Act of
1995, are on education. The Act mandates that every child with a disability should have
access to free education in an appropriate environment till the age of eighteen years. It
provides for a comprehensive education scheme, which should cover transport facilities;
removal of architectural barriers from schools, colleges or other institutions; supply of
books, uniforms, etc.; scholarships and setting up of a forum for the redress of grievances. It
also mandates restructuring of curriculum for the benefit of children with disabilities. It
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mandates the Government to set up an adequate number of teachers' training institutions
and to assist the national institutes and other voluntary organisations to develop teachers'
training programmes so that requisite trained manpower is available for special schools and
integrated schools for children with disabilities. It also provides for research for designing
and developing new assistive devices, teaching aids and special teaching materials. It also
mentions provision of non-formal education.
In the making of the new disability legislation, which provides for life long education, an
irreconcilable difference ensued regarding ‘special’ versus ‘inclusive’ schools.
Under The Rehabilitation Council of India Act, 1992, the term ‘Rehabilitation professionals’,
include “special teacher for educating and training the handicapped”. The Act focuses on
recognising rehabilitation courses, setting standards for curriculum and ethics for
rehabilitation professionals and registering of these professionals.
The Ministry of Social Justice and Empowerment has a Scholarship Scheme under
which, every year 500 new scholarships are awarded for pursuing post-matric professional
and technical courses of duration more than one year. However, in respect of students with
cerebral palsy, mental retardation, multiple disabilities and profound or severe hearing
impairment, scholarship are awarded for pursuing studies from IX Standard onwards.456
The National Handicapped Finance Development Corporation (NHFDC) also has a similar
scholarship scheme.
National Policy on Skill Development mandates 3% reservation, accessibility and reasonable
accommodation for persons with disabilities. However, its implementation at the end of five
years has been very poor. There is no centralised data on how many people with disabilities
benefited from this programme.
The other disability legislations do not have provisions on education.
456
MoSJE website, Scheme and programmes, accessed at
http://socialjustice.nic.in/schemespro3.php#a4 on 12th November 2011.
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Right to education on equal basis with others
According to the latest statistics available from the Flash Statistics and Analytical Reports on
Elementary Education in India, on an average there are only three classrooms per primary
school in India, and there are only three teachers per school. About 14 per cent of the
schools have a single classroom each, and single-teacher schools constitute a similar
proportion.457
Right to education is a concern for all children, especially those in socially disadvantaged
position (poor, those living in slums, girl children, children in rural areas). Facilitated by
Pratham, Annual Status of Education Report458 is an annual survey creating a database of
children in rural India. It is undertaken by local organisations and concerned citizens and is
an independent organisation. According to the ASER 2011, enrolment of students in private
schools has seen a sharp increase. From 18.7% of children between the age group 6-14
years getting enrolled in private schools in 2006, it is 25.6% in 2011. However, nationally,
reading levels have declined, suggesting challenges in the area of the quality of education.
The all India figure for the proportion of children in class V able to read a class II level text
has dropped from 53.7% in 2010 to 48.2% in 2011. Basic arithmetic levels also show a
decline. Nationally, the proportion of class III children able to solve a two-digit subtraction
problem with borrowing has dropped from 36.3% in 2010 to 29.9% in 2011. Among children
of class V, the ability to do a similar subtraction problem has dropped from 70.9% in 2010 to
61% in 2011. In some states, children’s attendance shows a sharp decline over time. The
ASER report also reports high incidence of multi-grade classrooms (children of different
classes in the same classroom). Nationally, for rural government primary schools, data
suggested that over half of all classes visited were multi-grade.
Children with disabilities are discriminated against, in terms of literacy, scope and quality of
education, as well as education as lifelong learning for inclusion.
457
Source: DISE, published by the National University of Educational Planning and Administration in
2009-10)
458
ASER 2011, http://articles.timesofindia.indiatimes.com/2012-01-21/news/30650229_1_studentenrolment-reading-levels-primary-schools accessed 20th October of 2013
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In India, there is a parallel existence of both inclusive and special education systems. As
disability is a State subject most of the government run special schools are funded by the
State Government under the aegis of the MoSJE. 78,599 children with disabilities were
covered through special school readiness programme in 20 States/UTs. 162,072 Children
with disabilities were being provided Home based education (HBE) in 30 States/UT.
459
Compared to those being enrolled in regular schools, those in HBE are slightly smaller in
number. However, for a country with over 1.2 bn. Population, those numbers are still large,
requiring focussed policy attention.
There are gender differences in educational attainment among people with disabilities, with
the literacy rate of females with disabilities pegged at 36% against literacy of 57% amongst
males with disabilities. In particular in elementary schools the Gender Parity Index in rural
areas is 75.7460 and in the urban areas is 76.1461.
Further, NSS found that, out of children with disabilities going to school, only 5.7% were in
schools. Of these school going children, 94.3% were in regular schools, in the age group 5 14 years.462
Only 0.74 % of primary and upper primary school going children are children with disabilities
which drops to 0.42 % at the Secondary level463. As per the NSS Report, about 95.5% drop
out after primary school. Only about 4.5% of students with disabilities pursue education
beyond the primary level.464
According to the Flash Statistics 2010-11’ DISE (District Information System for Education)
73.42 per cent of the children enrolled in Grade I survive to Grade V in India, that is, as much
459
Source: Annual Report of Ministry of Human Resource Development (MHRD), 2010-11 (page
293)and Annual Report 2011-12 page 244
460
Elementary Education in Rural India, Where do we Stand, Analytical Report 2011-12, Published by
National University of Education Planning and Administration
461
Elementary Education in Urban Indial India, Where do we Stand, Analytical Report 2011-12,
Published by National University of Education Planning and Administration
462
World Bank Report, ‘People with Disabilities in India: From Commitments to Outcomes’, May
2007.
463
Accessed at http://www.dise.in/Downloads/Publications/Publications%20201112/Elementary%20Education%20in%20Rural%20India.pdf on 7th January 2013 and MHRD Annual
report 2011-12
464
Source: People with Disabilities in India – From Commitments to Outcome, The World Bank, 2007
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as 26.58 per cent of the children enrolled in Grade I drop out before reaching Grade V465 .
Since there is no specific mandate on ensuring retention children with disabilities it can be
inferred that children with that their dropout rate is no less if not higher.
The situation over the last 4 years has improved to an extent but the % figures of children
with disabilities in school as part of the total population of children makes this insignificant.
According to Census 2001 literacy is 49% across all persons with disability versus 65% in the
general population. According to the National Sample Survey of India, 58th Round (2002),
50% of persons with disabilities are literate (28% of children with ‘severe’ disability, 57% of
children with ‘moderate’ disability and 65% of children with a ‘mild’ disability). In the case of
enrolment in the special schools, about 11 percent are enrolled in special schools in the
urban areas as compared to even less than 1 percent in the rural areas.466
Barriers to the right to education
One of the major initiatives of the Government of India to promote universalisation of
elementary education in a time-bound manner was the Sarva Shiksha Abhiyan (SSA). SSA
had “zero rejection policy”, meaning, no children should be excluded from receiving
education. The scheme also had “inclusive education” as a component. The interventions
under SSA for inclusive education are identification, functional and formal assessment,
appropriate educational placement, preparation of Individualized Educational Plan,
provision of aids and appliances, teacher training, resource support, removal of
architectural barriers, research, monitoring and evaluation and a special focus on girls with
special needs . Under SSA different guidelines covering the various aspects of inclusive
education like assessment of, and evaluation systems for children with disabilities,
guidelines for training teachers, and guidelines for making the school environment barrier
free have been set down. sarva Siksha Abhiyan is being implemented in partnership with
State Governments to cover the entire country and address the needs of 192 million
children in 1.1 million habitations.
465
http://www.dise.in/Downloads/Publications/Publications%202010-11/Flash%20Statistics-201011.pdf accessed on 7th January 2013
466
Punarbhava Website accessed at
http://punarbhava.in/index.php?option=com_content&task=view&id=734&Itemid=540&limit=1&li
mitstart=7 on 14th August 2011.
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The enrolment of children with disabilities in the schools has increased marginally due to
the focused initiative under SSA. The Number of students with disabilities identified in the
year 2011-12 is 1.65 lakhs. Total identified so far 30.28 lakh. Children with Special Needs
(CWSN) enrolled in schools till September 2011 as a proportion of that figure is 26.46 lakh
children. There is an increase in the % students been enrolled from 2010 to 2011 from
82.74% (of those identified) to 87.38% (of those identified). Aids and appliances, availability
of materials in Braille, and accessibility continue to be huge concerns. Only upto 1000 or so
NGOs are involved in these efforts. In the absence of data on the population of children in
the school going age of 6years to 14 years, the data does not allow us to make any further
inferences regarding drop outs, completion of school education, outcomes in terms of
empowerment, etc.
When it comes to disability, two categories of teachers cater to the needs of children with
disabilities - one, regular school teachers who have children with disabilities in their
classrooms and the other, ‘special’ educators, who work as resource teachers or teach in
‘special’ schools. Most teachers in the country (particularly in the Government schools) have
gone through some formal teachers training courses, before joining as teachers. However,
these training courses do not equip teachers with skills required to teach children with
different disabilities.
Under SSA there is a component of training regular school teachers. According to the MHRD
Annual Report 2011-12 26.53 lakh teachers have been covered through regular teacher
training Programmes, which include a 1 day, 3-5 day capsule on inclusive education; 17.35
lakh teachers have been provided 3-5 days additional training for better orientation to
inclusive education. Most number of trainings have been conducted in the 1 day module. In
addition 1.12 lakh teacher have been trained in 30 states at the Rehabilitation Council of
India for 90 days as resource teachers. But this is a small number compared to those have
taken the 1 day or 3-5 day trainings The JRM has expressed concerns about the knowledge
and skill of the teachers getting trained in service.467
467
Source:: Annual Report of Ministry of Human Resource Development (MHRD),2011-12, page 30
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BOX ITEM
“According to the Planning Commission’s Institute of Applied Manpower Research (IAMR),
India has 5265 professionals for the hearing impaired people while the requirement is for
58,000.”
-DeepaSuryanarayan,’ In desperate need of special educators’, DNA (Daily News & Analysis)
23rd March 2009.468
BOX ITEM
“Differently abled students of Municipal Corporation of Delhi (MCD) schools across the city
will have to wait for special educators for some more time. In spite of the High Court order
in 2009 asking for at least two special educators in all MCD schools for differently abled
children, two years down the line there still are not any recruitments.” 469
According to the Annual Report of MHRD, 2011-12, page 31, “14 States so far have renewed
their curriculum based on NCF, 2005 and 8 States have completed the revision of textbooks
accordingly to make them more activity-based, child-friendly and sensitive to gender and
marginalised groups.” However, there is no mention about changes undertaken with
respect to disability or the reasonable accommodations that may be required in learning the
curriculum.
Individualised Reasonable Accommodation and Support: 21.07 lakh children with special
needs who require have been provided with assistive devices470 (2011-2012).
468
http://www.dnaindia.com/mumbai/report_in-desperate-need-of-special-educators_1241600,
accessed on 21st November 2011.
469
-Disabled kids wait for special educators in MCD schools; 7th June 2011.
http://www.indianexpress.com/news/disabled-kids-wait-for-special-educators-in/800177/, accessed on 21st
November 2011.
470
Annual Report, Ministry of Human Resource Development, 2011-12 Page 30
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In Tamil Nadu students giving their Elementary School Leaving Certificate Examination,
Secondary school Leaving Examination, Higher Secondary School Leaving Examination and
Graduate examination have been given reasonable accommodations471.
Barrier Free Access: According to the DISE 2011-12 Statistics 40.15 percent schools have
ramps in the urban areas and 55.60 percent schools in rural areas have ramps.
Tertiary, Vocational and Life Long Learning: There is no compressive data on the total
number students with disabilities taking up higher education in the country. According to
the data given in the Annual Report of Ministry of Human Resource Development, 2011-12,
the enrolment of persons with disability in polytechniques, non-formal courses in diploma is
526 and in formal courses is 1190 in the year 2010-11.666 students have benefitted under
Higher Education for Persons with Special Needs (HEPSN) Scheme.
The Manual for Planning & Implementation of Inclusive Education in SSA has a small
paragraph on Architectural Barriers. It says, “All new school buildings being constructed
under SSA should have ramps, handrails and other such modifications to provide easy
access”. Moreover, no standards have been indicated.
IEDSS is another programme of the Ministry of Human Resource Development towards
integrating children with disabilities in the secondary education. This scheme replaces the
scheme, IEDC in the year 2008 and is a 100% centrally sponsored scheme.
The Department of Higher Education apart from the programme polytechnics for disabled
students has spent money through the University Grants Commission for the following
components, some developed in the post CRPD period:
Higher Education for Persons with Special Needs (HEPSN). This programme has two
components namely setting up of enabling units and provision of barrier free environment
in colleges registered with UGC. The functions of the enabling unit will be to 1) facilitate
admission of persons with disabilities in various courses 2) provision of guidance and
counseling for students with disabilities 3) create awareness about the needs of persons
with disabilities and other general issues concerning their learning 4) assist with persons
with disabilities to gain successful employment in public as well as private sector. A recent
471
GO(MS) 110 dated 17,07 2003 , GO 132 dated 28.12 2007
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blogpost472 of Activities Taken in 2012-2013 shows that the priority area is for ‘physically
challenged’, mostly visually impaired.
Teacher Preparation in Special Education (TEPSE). This scheme is meant for assisting the
department of education to launch special education teacher preparation programmes to
prepare special teachers to teach children with disabilities in both special and inclusive
settings. The scheme provides financial assistance to offer B.Ed and M.Ed degree course
with specialization in one of the disability areas as specified in the PWDA, 1995.
Financial Assistance to Visually Challenged Teachers (FAVCT).The scheme has been
formulated to help visually challenged permanent teachers to pursue teaching and research
with the help of a reader and by using teaching and learning aids by way of providing
reader’s allowance and funds for purchase of Braille books, recorded materials etc,. All
teachers with visual impairment working in colleges of India, which are included in sections
2(f) and 12B of the UGC Act are covered under the scheme.
As above details testify, the schemes are geared towards 3 groups: those with visual
impairments, hearing impairments and orthoepedic impairments. Since the passing of these
schemes, not much detailing is available about the outreach. The language attracting
persons with disabilities is welfaristic. These schemes are not inclusive of all persons with
disabilities.
Resources
Table below gives total Expenditure incurred by the Ministry on Children with Disabilities
and comparison with the total expenditure of the Ministry through the Department of
School Education & Literacy.
472
http://alchepsn.blogspot.in/
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Year
SSA – IED
IEDSS/ IEDC
(in crores)
(in crores)
Total
Total
% allocation
expenditure
towards
incurred
by education of
the Ministry
Disabled
Children
2007 – 08
156.4247
54
210.4247
23191.35
0.90
200.9532
63
263.9532
26026.57
1.01
2009 – 10
223.3200
55.13
278.45
24466.07
1.13
2010-11
753.082
80.32
833.402
36432.50
2.28
831.2517
80.16
911.4117
41521
2.19
2008 – 09
(RE)
2011-12
(RE)
Source : Union Budget and Economic Survey – Expenditure Budget Volume II
This table also shows insufficiency of the funds allocated under the programme. MHRD is
one of the concerned Ministries that has to earmark 3% of its total outlay for persons with
disabilities. But the actual allocation has not crossed 2.28% in any given year though we can
see a small increase in allocation over the years during the plan period.
The table below gives the allocation & expenditure on Inclusive Education under SSA
(Rupees in lakhs)
Year
Allocation
Expenditure
%
2007- 08
22848.55
15642.47
68.46
2008 - 09
24574.13
20095.32
81.77
2009 - 10
28309.65
22332.00
78.88
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Source – SSA
The money allotted for implementing the IED programme under SSA has been under spent/
unutilised, which implies there has been an overall compromise on the quality of education,
a fundamental right of children.
Almost all the States except for Kerala, Mizoram, Tripura and Pondicherry there has been an
underutilization of the funds allotted.
Audit of allocation and expenditure under IED vis-a-vis the provisions made for inclusion of
disabled children:
(Rupees in lakhs)
Year
Amount
to
be Amount to be Actual
allocated
allocated
% of allocation
- allocation
(3000*no.of disabled Central share#
children identified)
(Rs.1950*no.of
disabled
children
identified)
2007 - 08
79112.28
51422.98200
22848.55
44.43
2008 – 09
87445.59
56839.63350
24574.13
43.23
2009 - 10
91261.59
59320.03350
28309.65
47.72
#This
is assuming that if the Centre is spending 65 % of the total allocation, the
The table shows that resources allocated by the ministry for all the 3years falls short of
their own provisions. This also clearly indicates lack of commitment and accountability
towards ensuring the protection of right to education for children with disabilities.
The government has released Rs. 14.3 crores for the HEPSN, TEPSE and FAVCT programmes
of the UGC covering 132 universities during the XI Plan period. This is as per the Annual
Report 2011-12 of MHRD.
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The Ministry has released in total Rs.31.82 crore (Polytechnics for the disabled & UGC Grant)
for higher education for persons with disabilities. This works out to 0.045% of the total
expenditure of the Ministry. This is nowhere near the 3% mandate of the Planning
Commission.
Recommendations
1. The subject of ‘Education for persons with disabilities’ should be placed entirely
under Ministry of Human Resource Development (MHRD) without any further delay,
on equal basis with other children.
2. At least 3% of the MHRD’s resources should be allocated for disability, as given in the
Eleventh Plan and its utilisation should be mentioned in the Annual Report.
3. A Disability Cell should be set up in MHRD to not only ensure that disability is
included in all educational policies and schemes, but also to have targeted
programmes for educating people with disabilities.
4. The plan of the Government to make education “not compulsory” for students with
severe disability should be revised, with repeal of the said provision in RTE;
concerted effort should be made to address issues that prevent their inclusion in
regular schools.
5. Indicators must be set for total shift from special schools to inclusive schools.
6. The regular teachers training programmes, like nursery teachers training, Diplomas,
Bachelors and Masters programmes in Education should have ‘education of persons
with disabilities’ as a compulsory subject.
7. The training programme in inclusive education for regular school teachers should be
evaluated and refresher trainings should be provided on a regular basis to make
them more competent and aware of latest developments, including use of assistive
devices, technologies and different modes of communication.
8. The curriculum of training of Resource Teachers should be reviewed and modified to
equip them with knowledge and skills to work with students with different
disabilities.
9. Accessibility is vaguely mentioned in the SSA Manual. RTE has also mandated
‘barrier-free access’ to buildings under the norms and standards for schools.
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Accessibility standards have to be specified for school buildings and should include
needs of children with all disabilities.
10. Hostels, libraries, play areas and other areas linked to life long learning should also
be made accessible for students with disabilities.
11. Provision of reasonable accommodation should be adopted as a policy in our
education and examination system, so that support/adjustment based on
individual’s need is provided.
12. Access to books, learning materials and inclusion in extra-curricular activities should
be ensured.
13. There are many children with disabilities who are still “out of school”. A focused
effort should be made to bring them to schools. The drop out data should be
maintained with respect to students with disability under the SSA.
14. The curriculum and evaluation system which would be framed as per RTE, should
take into account needs of children with disabilities. Further, the school curriculum
should include sensitisation module on disability, sign language and Braille for all
children to learn.
15. The ADIP scheme should be revised to ensure people with disabilities get
appropriate devices suitable to their individual needs.
16. The Government should either strengthen the ICDS through a focused Programme or
launch a targeted mission for holistic development of young children with
disabilities.
17. All the schemes/programmes to promote higher/technical/vocational education
should have a disability focus not just in terms of reservation but also in providing
equal opportunities and accommodations for students with disabilities.
18. Disability Units should be set up in every university/institution. Disability Units
should also be set up in the University Grants Commission (UGC), All India Council for
Technical Education (AICTE), National Council of Educational Research and Training
(NCERT), Kendriya Vidyalaya Sangathan (KVS), and all other apex education bodies.
19. There should be a special literacy drive targeting people with disabilities (age of 16
and above) in the country. The initiative should impart literacy and vocational skills
in tandem.
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20. Distance Education/Open Schooling systems should make a proactive initiative to
ensure that their methodology of teaching/evaluation is inclusive.
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Article 25: Health
States Parties recognize that persons with disabilities have the right to the enjoyment of the
highest attainable standard of health without discrimination on the basis of disability. States
Parties shall take all appropriate measures to ensure access for persons with disabilities to
health services that are gender-sensitive, including health-related rehabilitation. In
particular, States Parties shall:
Provide persons with disabilities with the same range, quality and standard of free or
affordable health care and programmes as provided to other persons, including in the area
of sexual and reproductive health and population-based public health programmes;
Provide those health services needed by persons with disabilities specifically because of their
disabilities, including early identification and intervention as appropriate, and services
designed to minimize and prevent further disabilities, including among children and older
persons;
Provide these health services as close as possible to people’s own communities, including in
rural areas;
Require health professionals to provide care of the same quality to persons with disabilities
as to others, including on the basis of free and informed consent by, inter alia, raising
awareness of the human rights, dignity, autonomy and needs of persons with disabilities
through training and the promulgation of ethical standards for public and private health
care;
Prohibit discrimination against persons with disabilities in the provision of health insurance,
and life insurance where such insurance is permitted by national law, which shall be
provided in a fair and reasonable manner;
Prevent discriminatory denial of health care or health services or food and fluids on the basis
of disability.
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NCPEDP & DEOC SURVEY FINDINGS
The findings with respect to the efforts made by the Government to ensure that persons
with disabilities have access to adequate health services
revealed
that 93% were
‘dissatisfied’ with the efforts made by the Government to ensure that persons with
disabilities have access to adequate health services. Only 6% were satisfied with
Government efforts on this issue.
Constitutional Safeguards
Article 47 of the Constitution of India imposes on the Government a primary duty to raise
the level of nutrition, the standard of living of its people and improve public health.
The right to health has also been read into the Right to Life and Liberty of the Indian
Constitution. In Consumer Education & Research Centre v. Union of India 473 the Supreme
Court held that the expression of the term ‘life’ includes a wider meaning of the term ‘life’.
In Paramanand Katra v. UOI,474 the Supreme Court held the right to emergency medical
treatment as an important facet of the right to health. In Paschim Banga Khet Mazdoor
Samity and Others v. State of West Bengal475 the Court in interpreting Article 21, directed
that State Governments were obligated to provide adequate and proper medical facilities to
all.
Right to health in disability legislations
The Disability Act, 1995 states that the Central and State Co-ordination Committee shall
consist of Secretaries to the Government of India and State Government who are in-charge
of the Departments of Welfare, Health, Woman and Child Development. The Central
Executive Committee shall include the Director-General for Health Services as a member.
The Act also provides for appropriate Governments and local authorities to take certain
steps for the early detection of disabilities.
473
(1995) 3 SCC 42
(1989) 4 SCC 286
475
1996 (4) SCC 37
474
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Section 25 states that the appropriate Government shall screen all the children at least once
a year for the purpose of identifying "at-risk" cases, provide facilities for training to the staff
at the primary health centres, take measures for post-natal care of mother and child,
educate the public through pre-schools, schools, primary health centres, village level
workers and anganwadi workers. Under the provisions for employment, we have the
following clauses that discuss aspects of health.
Section 38 states that the appropriate Governments and local authorities shall, by
notification, formulate schemes for ensuring employment of persons with disabilities and
such schemes may provide for health and safety measures where persons with disabilities
are employed.
Section 46 mentions ramps in hospitals, primary health centres and other medical care and
rehabilitation institutions.
Section 67 mandates framing of an insurance scheme for the benefit of its employees with
disabilities.
The new proposed Rights of Persons with disabilities Bill of 2013 provides comprehensively
for the Right to Health in Article (21). It
provides for reasonable accommodation,
accessibility, gender sensitivity, community based care, early identification and intervention,
health care during natural disasters and other situations of risk, and covering rural areas.
Certain conditions on the cost of health care are also provided for.
The National Trust Act, 1999, states that the Board of the National Trust should consist of
officials (not below the rank of Joint Secretary to the Government of India) to represent
Ministries including the Ministries or Departments of Social Justice and Empowerment,
Women and Child Development, and Health and Family Welfare. Under the rules prescribed
for appointing a guardian, this Act states that the application for guardianship for personal
care and maintenance shall be accepted to cover the following areas including health care
needs, nutrition and medical & surgical needs.
Mental Health Act 1987 empowers the Union Government or the State Government to
establish or maintain psychiatric hospitals/nursing homes. The Act prohibits the
establishment or maintenance of any psychiatric hospital or psychiatric nursing home by any
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person unless she/he holds a valid licence granted to her/him under the Act. It provides for
Central/State Authority for Mental Health Services to supervise the psychiatric hospitals and
psychiatric nursing homes and other Mental Health Service Agencies under the control of
the Central/State Governments respectively. The legislation is largely about administration
of public asylums, and especially about how to admit and how to discharge several kinds of
persons. However, there are no provisions in the Mental health care Act on providing health
care to persons with disabilities. The ‘standard minimum care’ is more about institution
infrastructure than about care and treatment.
The Mental Health Care Bill retains the core custodial, administrative goals of the Mental
Health Act of 1987. It however provides for Electro convulsive therapy, psychosurgery and
other such invasive procedures with minimum regulatory or penal procedures for misuse or
abuse. Informed consent is violated through liberally providing for proxy consent through
Nominated Representative. Right to consensual treatment is violated by providing that an
Advance Directive stands cancelled in ‘emergency situations’.
Right to health care: Efforts and Barriers
An estimated 70 million persons with disability in India are faced with problems of access to
basic and specialized health care services.476
Emphasis of efforts has gone in two directions, in terms of health care for persons with
disabilities: i.e early detection and prevention; and institution based care. However, a recent
study conducted with responses from persons with disabilities showed that most, especially
those with disabilities like Multiple Sclerosis, Down’s Syndrome, Cerebral Palsy had never
received early intervention care477.
Women with disabilities are invisible as a target group and remain excluded from gender
specific health programmes, health awareness, preventive health care, family planning
services, sexual and reproductive health programmes available to non-disabled women478.
476
UN Factsheet on Persons with Disabilities, Available at:
http://www.un.org/disabilities/documents/toolaction/pwdfs.pdf
477
Jayna Kothari, 2012, ‘The right to health of persons with disabilities in India’. The Centre for Law
and Policy Research, Prepared for HRLN, IAMD and NAAJMI, New Delhi.
478
JananiSurakshaYojna, Kishori Shakti Yojana, Reproductive and Child Health.
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BOX ITEM
Personal experience of one of the rare women with disability who got married: She faced a
life threatening situation during her first delivery when doctors failed to recognize the
impact of her impairment (ataxic movements) on the birthing process and neglected to
provide required medical intervention. As a result she lost her baby and had a close shave
with the death herself. During her second pregnancy, a disability NGO ensured appropriate
healthcare throughout her pregnancy and had to force doctors to provide quality medical
intervention for safe delivery. She is today enjoying motherhood479.
Many studies reveal women with disabilities are 13%-50% less likely to receive health care
and aids and assistive devices as compared to men with disabilities.480 Health services
including primary health centers, public or private hospital rehabilitation services, remain
inaccessible in terms of being too far away, in difficult terrains, inaccessible transport
systems, expense, and severe infrastructural barriers including architectural, diagnostic
tools and equipment, especially for persons with physical and multiple impairments.481
Sometimes complicated procedures to avail a crucial disability focused health facility like
Disability Certificate severely impede the access to it.482
479
A Compilation of Experiences of Women With Disabilities From the Field By Different NGO’s,
August 2013, Alternative CEDAW Parallel Report, Anita Ghai and others, Prepared by DPI (India),
submitted to CEDAW Monitoring Committee, September of 2013
480
a)People with Disabilities in India: From Commitment to Outcomes (2009). World Bank Report.
http://siteresources.worldbank.org/INDIAEXTN/Resources/2955831171456325808/DISABILITYREPO
RTFINALNOV2007.pdf Accessed on 1/9/2013
b)A Multistate Socio Economic Study of Women with Disabilities in India (2007). SMRC,
Bhubaneshwar. UNDP, Government of India.
c) Disability and Poverty in Developing Countries: A Snapshot from the World Health
Survey(2011).Mitra Sophie, Posarac Aleksandra and Vick Brandon.World Bank
481
Personal sharing by a woman author and an academician with disability – “Based on my own
experience with cancer, I have tried to study issues on breastcancer screening services. I realized
that disabled women face financial, architectural, environmental, and attitudinal barriers that
affected all of their health care services. I have faced heavy doors, and inaccessible examination
tables and bathrooms in a premier hospital such as Rajiv Gandhi Hospital in Delhi.” ;
H.P. Study;
Women with Disabilities: A Status Report-An Analysis of Data collected from 8 districts
http://aaina.org.in/resources_Publications.asp?id=5&subid=17Accessed on 1/9/2013;
Working group on Human rights 2012, Human Rights In India: Status Report 2012, WGPR
http://www.wghr.org/pdf/Status%20report%2023.05%20version.pdf Accessed on 1/9/2013
482
Disability certificate studies to be added
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Health Insurance is another area where people with disabilities are highly discriminated in
private, public and even state sectors483.
The XI Five Year Plan states that the Reproductive and Child Health (RCH) will pay attention
to reproductive health needs of women with disabilities. In addition, sensitisation
programmes will be conducted for Government departments, police, and health care
personnel which would include sensitisation to the needs of women with disabilities484.
None of these provisions are reflected in any of the programmes of the Ministry.
Ministry of Health and Family Welfare has programmes for rehabilitation of persons with
disabilities run by Institutes with the status of Institutes of Excellence. This Ministry has
allocated funds for National Mental Health Programme apart from running and maintaining
the Central Institute of Psychiatry, Ranchi, Tejpur and National Institute for Mental Health
and Neuro Sciences.
Disaggregated data on Persons with Disabilities cannot be culled out in all the MOHFW
budget, though they have identified persons with disabilities as one of their target groups.
The reason is that the guidelines of the programmes run by this Ministry at the time of
planning do not focus on inclusion of persons with disability and so the allocations do not
reflect them and just remain as an item in expenditure without any impact on the successive
budgets.
The National Rural Health Mission485 and the National Urban Health Mission486, flag ship
schemes of the Union Government of India has no provision for addressing the specific
health care needs of persons with disabilities including children with disabilities. There is no
provision to ensure accessible environment in the health care system.
483
Health Insurance companies do not provide the insurance service to persons with disabilities,
especially with mental disabilities except public sector health insurance company (LIC), which
anyway discriminates against disabled personsby charging higher premium – to be verified. Although
Govt. has taken a positive step by starting a health insurance scheme under the National Trust
Act’99, but it is not cashless and available only to men and women with cerebral palsy, intellectual
impairment, autism and multiple disabilities, which again is a discrimination against women and men
with other disabilities.
484
Accessed at http://planningcommission.nic.in/plans/planrel/fiveyr/11th/11_v2/11th_vol2.pdf on
5th October 2011.
485
http://mohfw.nic.in/index3.php?lang=1&level=0&deptid=69
486
http://mohfw.nic.in/index3.php?lang=1&level=0&deptid=70
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BOX ITEM
“I am deaf and wanted to meet a doctor to share certain problems that I was having. I am
not very articulate in writing. I was not comfortable sharing it with my family. None of the
hospitals have sign language interpreters. I somehow managed to communicate with my
doctor. But I realise this is a huge problem for deaf people who have communication
difficulties.” -A deaf person shared this with DEOC.
There is lack of awareness among persons with disabilities and their families about their
right to access to health facilities. Majority of people in the country (disabled or nondisabled) have little awareness about the facilities that are available. For persons with
disabilities, access to this information becomes even more difficult, as the media through
which the information may be disseminated may not be accessible. For instance, TV/Radio
advertisement on various health aspects like vaccinations, family planning, health issues etc.
are not accessible for people with sensory impairments.
BOX ITEM
“Government has not been taken health campaign for deaf people and are not raising
awareness.” -T.K.M. Sandeep, Response to the CRPD Questionnaire
One of the major areas of work of the Ministry of Health and Family Welfare is ‘Mental
Health’. The National Mental Health Programme (NMHP) was started in 1982 and the
District Mental Health Programme (DMHP) in 1996 with the objective to ensure availability
and accessibility of minimum mental health care for all, to encourage mental health
knowledge and skills and to promote community participation in mental health service
development and to stimulate self-help in the community.
Some of the progress as mentioned in the Annual Report of Ministry of Health and Family
Welfare (2010-11) are give below.487
 At present DMHP is covering 123 districts in 30 States and Union Territories
487
Page 150-152, Annual Report of Ministry of Health and Family Welfare, 2010-11.
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
 As of now, 9 Mental Health Institutes have been funded for developing as centres of
excellence in Mental Health.
 23 Post Graduate departments have started Post Graduate courses and/or increased
the intake.
 A total of 29 mental hospitals/institutes have been supported for modernisation.
 A total of 88 psychiatry wings have availed grant for upgrading facilities and equipment.
 Funds were provided for research to institutes and organisations in the field of mental
health in the country.
 Efforts are being made to mainstream the components of NMHP under the overall
umbrella of National Rural Health Mission so that the States are able to plan
requirements concerning mental health services as part of their respective Programme
Implementation Plans (PIPs).
Though there has been some progress, however, the impact at the ground level has been
minimal even after about 30 years of implementation of NMHP and 15 years of DMHP.
“The reason for the failure of NMHP is that “the how of it” is missing in the programme.
There is no clear strategy or mechanism to implement the programme. NMHP is under
Central Government and the implementer is the State Government. Monies are not being
released on time for the States to implement the programme. There are several initiatives
mentioned in NMHP, which have not been implemented. For instance, there is a School
Programme mentioned in NMHP which is yet to take off in many States. There is no well
established monitoring system, including civil society or affected persons.” Late D.M. Naidu,
Base Line Report on Health, NCPEDP, 2009.
In Odisha, there is no progress in this programme after the X Plan period with the state
being unable to spend the allocations made for the District Mental Health Programme even
for the X Plan. The data obtained is based on the application filed by Basic Needs Odisha
under the Right to Information Act 2005. The reasons cited were lack of manpower and
professionals. This is validated by the report of the regional workshops on National Mental
health programme conducted by the MHFW. The utilization certificate for the X Plan period
has been submitted only by one of the 8 implementing districts. This shows lack of
monitoring mechanisms to ensure accountability for the unspent amount with the State
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Government and the Union Government has also not taken any proactive measures to
support the state in reviving the programme.
BOX ITEM
In Tamil Nadu, the officials felt that the lack of flexibility in the programme could be
addressed if it were part of the National Rural Health Mission. The officials also felt the need
to have more awareness and training in order to sensitize the community at large488.
Niramaya is the only health insurance scheme specifically for persons with disabilities and
this also does not cover all disabilities. As a result, people with disabilities have to shell out
large amounts of money on their health needs.
BOX ITEM
“I had a fall and had a nose fracture and was admitted in the hospital for treatment. I
mentioned about epilepsy in the hospital so that doctors are aware. My epilepsy has been in
control for some years now. Even then, because of doctor’s noting about my epilepsy in the
record, my insurance was denied. ” -A person with Epilepsy
Consent to Medical Research: In a recent communication from the Ministry of Health and
Family Welfare, the Ministry has reiterated its stance that substituted decision making and
proxy consent for medical research is acceptable. A writ petition challenging the MHA
provisions on proxy consent filed by Saarthak NGO before the Supreme Court in 2002 has
not elicited any directives yet from the SC 489, 490. One article491 reports that more than half
the scrutinies of clinical trials by the US FDA in India, involve neuropsychiatric drugs.
488
Refer to Annexure II in order to understand the state wise implementation of the National Mental
Health Programme
489
Writ 562 of 2001, Saarthak and Achal Bhagat versus Union of India, Ministry of Social Justice and
Empowerment, Ministry of Health, Disabilities Commissioner and other State Governments.
490
http://articles.washingtonpost.com/2012-01-01/world/35440252_1_drug-trials-drug-companiesindian-patients
491
Saifuddin Kharawala and Jeroze Dalal, (2011), Challenges in conducting psychiatry studies in India.
Perspectives in Clinical Research, January-March, 2(1): 8-12.
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Between 2007 and 2010, 1700 people have died in clinical trials in India. In Bhopal, in 2012,
42 people living with mental illness died in an illegal clinical trial of a drug, Dapoxetine, said
to cure premature ejaculation. Their consent were not taken, their legal incapacity status
and provisions of the Mental Health Act was exploited to over ride consent to research. The
12 erring doctors were fined a paltry sum of 5000 INR492.
Resources
Ministry of Health and Family Welfare is one of the 26 concerned Ministries that has to
reserve 3% of its financial outlay towards protection of rights of persons with disabilities, as
per planning commission.The expenditure by the Ministry of Health and family welfare for
the plan period is more than the expenditure incurred on persons with disabilities by MSJE
the nodal Ministry. This shows the lack of shift from the medical to the social and human
rights model. The analysis of the expenditure also revealed that there is no allocation
towards ensuring the provisions of Article 25, which talks about quality, standard, free and
affordable healthcare including areas of sexual and reproductive health care.... of the
UNCRPD.
Apart from this the Ministry is spending more than twice, in running institutions for persons
with psychosocial disabilities compared to its spending on District Mental Health
Programme, which is a community based programme.
Allocations towards Health for Persons with Disabilities
Year
(in Rs.Crore)
Total Expenditure of Expenditure
%
to
total
Ministry of Health incurred on Persons departmental
&Family Welfare
with Disabilities
expenditure
2007 – 08 (RE)
14500
129.60
0.89
2008 – 09 (RE)
17307
217.36
1.25
2009 – 10 (Actual)
19554.09
262.17
1.3
492
http://www.thehindu.com/opinion/editorial/article2876316.ece accessed on 16th January 2013,
‘Clinical Trials in the Dock’, Editorial, The Hindu, 10th February 2012.
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Year
(in Rs.Crore)
Total Expenditure of Expenditure
%
to
total
Ministry of Health incurred on Persons departmental
&Family Welfare
with Disabilities
expenditure
2010 – 11 (Actual)
22764.50
305.05
1.3
2011 – 12 (RE)
25254
365.71
1.4
2012-13 (BE)
30702
443.79
1.4
Source: Ministry of Health & Family Welfare, Union Budget & Economic Survey
Table XX above shows the allocation for Persons with Disabilities against the total allocation
for the ministry. This is way below the 3% mandate of the Act.
The allocations that are presented in Table 11 are the allocations made for (i) running
Institutions for people with psychosocial disabilities, (ii) Institute of Physical and
Rehabilitation services, Mumbai and (iii) All India Speech and Hearing Impairment.
The District Mental Health Programme is restricted to 123 districts covering 29 States/Union
Territories for the X and the XI Plan periods493. The total outlay for the National Mental
Health Programme for the XI Plan period is Rs.622.93 crore. The budget statements of the
Ministry of Health & Family Welfare revealed that only Rs.340.59 crore have been spent
towards the programme during the Plan period.
There is no data on health conditions of persons with disabilities, due to which disability
budgeting and evaluation of programmes gets affected. There is a lack of participation of
the disabled population in all health-related decision-making at the community and national
levels.
Only 35% of persons with disabilities have been issued disability certificates till 2010-11,
without which none of the schemes can be accessed. So even in the best case scenario only
35% of persons with disabilities would be benefitted under any of the government schemes.
493
The circular/ notification approving the district mental health programme for the 11th Plan period
was issued videF.No.V.15011/6/2007-PH –I ( Vol 2) on 28th of November 2011.
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Recommendations
1. Local hospital management committees and the commission for planning policies
and programmes should include persons with disabilities.
2. Dissaggregated data on the coverage of persons with disabilities through the various
schemes related to health must be maintained and must be published by the
respective ministries and departments. The data must also be dissaggregated on
women and childrenwith disabilities covered under the various schemes.
3. The Draft National Health Bill has to be reviewed and amended to ensure its
compliance with CRPD.
4. The Ministry of Health should take under its purview health and rehabilitation of all
people with disabilities.
5. The NMHP and DMHP should be reviewed on the basis of various provisions in CRPD,
including aspects of ensuring community involvement, setting up of support
networks, creating awareness, etc.
6. Persons with disabilities should be included under “vulnerable/targeted sections” in
all health schemes of the country.
7. The Insurance schemes should be reviewed and amended to ensure non
discrimination against persons with disabilities.
8. The Niramaya insurance scheme should be strengthened and should cover all people
with disabilities.
9. The Government should provide subsidies to manufactures/distributors in order to
reduce the costs of various medicines, medical equipments (catheter, diapers etc.),
used by persons with disabilities on a regular basis to make them affordable.
10. Home based services should be introduced to persons with disabilities who have
difficulty reaching clinics/hospitals.
11. The Government of India should make disability-specific provisions that can address
the needs of children, the elderly persons and women with disabilities.
12. The Government should subsidise healthcare services for people with disabilities,
irrespective of whether it is public or private.
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13. There is an urgent need for sensitisation of healthcare professionals on disability and
the staff working in health programmes, right from community workers to medical
professionals and officials in charge of various schemes.
14. The Medical Courses (Bachelor of Medicine, Nursing, and other Paramedical
Courses) should cover disability not just in terms of diagnosis and treatment but also
in terms of rehabilitation and rights, which would enable doctors to provide the right
information and advice to families and persons with disabilities.
15. Better convergence is required between the various Ministries - Ministry of Health
and Family Welfare, Ministry of Social Justice and Empowerment and Ministry of
Women and Child Development, to ensure a more coordinated effort in this area
Accessibility norms should be strictly implemented in all hospitals, Primary Health Centres
(PHCs), medical clinics, testing labs etc. including the ones that are privately owned. Those
found not following the norms should be severely penalised
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Article 26: Habilitation and Rehabilitation
1. States Parties shall take effective and appropriate measures, including through peer
support, to enable persons with disabilities to attain and maintain maximum
independence, full physical, mental, social and vocational ability, and full inclusion
and participation in all aspects of life. To that end, States Parties shall organize,
strengthen and extend comprehensive habilitation and rehabilitation services and
programmes, particularly in the areas of health, employment, education and social
services, in such a way that these services and programmes:
a) Begin at the earliest possible stage, and are based on the multidisciplinary
assessment of individual needs and strengths;
b) Support participation and inclusion in the community and all aspects of society,
are voluntary, and are available to persons with disabilities as close as possible to
their own communities, including in rural areas.
2. States Parties shall promote the development of initial and continuing training for
professionals and staff working in habilitation and rehabilitation services.
3. States Parties shall promote the availability, knowledge and use of assistive devices
and technologies, designed for persons with disabilities, as they relate to habilitation
and rehabilitation.
NCPEDP & DEOC SURVEY FINDINGS
A survey with respect to the efforts made by the Government to ensure that persons with
disabilities have access to habilitation and rehabilitation services close to their communities
revealed that about 11% of the respondents have expressed ‘satisfaction’ with the efforts
made by the Government to provide rehabilitation services. However, the majority (86%)
have expressed ‘dissatisfaction’. Considering the medical model that is being followed in the
country for dealing with disabilities, one would have expected a slightly better score in this
aspect compared to other aspects. But it is not that surprising either, as it is a known fact
that habilitation and rehabilitation services are almost non-existent in many parts of the
country.
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Right to Habilitation in disability legislations
The Disability Act, 1995, has clauses for early detection and rehabilitation of disabilities. It
also mentions research in the area of rehabilitation, including community based
rehabilitation. Section 66 (2) states that rehabilitation shall be undertaken by nongovernmental organisations with financial assistance from Government and local
authorities. It also states that Governments and local authorities shall consult the nongovernmental organisations working for the cause of persons with disabilities while
formulating rehabilitation policies.
The National Trust Act, 1999, provides for need based services (through guardians and
caregivers) to only persons with particular disabilities and not all disabilities. However, the
terms, habilitation and rehabilitation, are not mentioned in the National Trust Act, 1999!
Here it is relevant to mention that the State of Jammu and Kashmir is not covered by the
National Trust Act, the schemes of NT does not reach persons with disabilities in Jammu and
Kashmir.
The Rehabilitation Council of India (RCI), 1992, amended in 2000, was enacted to regulate
and monitor services given to persons with disability, standardise syllabi and to maintain a
Central Rehabilitation Register of all qualified professionals and personnel working in the
field of Rehabilitation and Special Education. The Act also prescribes punitive action against
unqualified persons delivering services to persons with disability. It has been often felt by
the disability sector that the punitive clause is restricting because while developing human
resources for habilitation and rehabilitation is crucial, ensuring that disability knowledge
spreads to all other professionals, doctors, teachers, architects, lawyers, etc. is also
extremely important to promote inclusion.494
The Chairperson of the Rehabilitation Council of India is an honorary post.
The Mental Health Act 1987, allows for the institutionalisation of a person with mental
illness. It talks more of forced treatment and less of rights. It mentions that “Mental Health
Services” include, in addition to psychiatric hospitals and psychiatric nursing homes,
observation wards, day-care centres, inpatient treatment in general hospitals, ambulatory
494
Source: Rehabilitation Council of India website
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treatment facilities and other facilities, convalescent homes and half-way-homes for
mentally ill persons. It does not talk about how services need to reach the remote corners of
the country or about the need for more trained manpower for rehabilitation of persons with
mental illness. There is no community outreach, nor provision for building support and
reducing stigma. It also does not mention the need for early identification and
treatment/support.
Programs and schemes
Deendayal Disability Rehabilitation Scheme (DDRS) is operated through giving grant in aid
to NGOs, National Institutes for Blind, Deaf, Mentally Retarded and Orthopedically
Handicapped scheme and the Aid and Appliances for the Handicapped(ADIP) are the
scheme through which habilitation and rehabilitation programmes are funded by the Union
Government.
ADIP Scheme
The main objective of the Scheme is to assist the needy disabled persons in procuring
durable, sophisticated and scientifically manufactured, modern, standard aids and
appliances that can promote their physical, social and psychological rehabilitation, by
reducing the effects of disabilities and enhance their economic potential. The aids and
appliances supplied under the Scheme must be ISI. The scheme is implemented through
implementing agencies such as the NGOs, National Institutes under this Ministry and
ALIMCO (a PSU)495
No policy effort has been made towards to ensuring repair and maintenance of the
assistive devices or subsidies for long term rehabilitation have been made.
Over the XIth Plan period The National Trust has devised a scheme called the ‘Remote Area
funding’, the scheme is designed to encourage NGO’s to start services in areas that do not
have rehabilitation and habilitation services for persons with the disabilities covered under
the National Trust Act 1999.
495
Source: http://socialjustice.nic.in/schemespro3.php#a1
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There has been an effort to bring in new legislation in lines with UNCRPD during the XI Plan
period. The bill is still at the stage of review by the different State Governments.
The rehabilitation of people with disabilities is under the Ministry of Social Justice and
Empowerment (MSJE). ‘Medical treatment’ of psycho-social disabilities falls under the
Ministry of Health. However, there seems to be little work being done in the area of
rehabilitation (employment, education and social services).
All the tertiary level Government hospitals have a rehabilitation department, catering to the
general population and persons with disabilities.
As per the Annual Report of Ministry of Social Justice and Empowerment, 2009-10, some of
the main components of rehabilitation of persons with disabilities are:
 provision of assistive aids and appliances
 education
 vocational training
 assistance for employment
 training in or assistance for independent living
Under the MSJE, there are eight autonomous National Institutes for different types of
disabilities. These are involved in early identification, therapy, counselling, outreach,
vocational training, training of manpower, research, information dissemination,
rehabilitation, etc. Then there are Composite Regional Centres (CRCs) whose function is to
speed up the process of establishing, strengthening and upgrading rehabilitation services to
reach every person with disability in the country. The centres also facilitate capacity
building. At present, there are six CRCs.
Persons with disabilities have expressed dissatisfaction about the infrastructure at some
CRCs and about the dedicated at these CRCs .
BOX ITEM
Srinagar, Oct 30: Humanity Welfare Organization Helping, an NGO Thursday accused
Composite Regional Centre for multiple disabilities at Bemina of failing to develop the
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infrastructure
adequate
to
provide
assistance
to
the
physically
challenged.
In a handout here, the NGO chairman, Javed Ahmad Tak alleged that the “CRC has not been
able to develop its infrastructure in eight years of its existence, since it was established by
Union Ministry of Social Welfare in 2000.”
“CRC does not have the equipment to serve the disabled persons and they (CRC) ask the
disabled persons to buy the equipment’s from outside instead of providing them the
facilities
at
the
centre,”
Javed,
who
has
a
spinal
injury,
said………………………………………………………..
When contacted the CRC director, Dr Riyaz Untoo, said, “Of late the center has been
suffering due to various reasons but the condition has improved a great deal.”
“We have been providing assistance to more than 200 disabled persons and that speaks for
the worth of CRC,” he added.
Greater Kashmir News Network 2008496
Also the purpose of setting up these CRCs to reach every person with disability living in any
area has not been met.
The CRC, which was supposed to be taken over by the government and equipped
with permanent directorate and staff, has failed to get the attention of the
authorities.
“………There are no permanent directors. Till now it has had eleven directors but
none of them permanent. An accountant serves as an administrator at CRC,” said
Javed.
“The CRC is supposed to conduct research, identify disabilities and provide required
facilities and rehabilitation for them which they haven’t done so far,” said
Mohammad Ismail, a physically disabled person.
He said that in the absence of CRC branches at district levels, majority of the
population is unable to get any benefits.
496
http://www.greaterkashmir.com/news/2008/Oct/31/crc-fails-to-help-disabled--39.asp Accessed
on 7th January 2013
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“The number of people going to CRC is very less while we have lakhs of disabled
persons. Those living in other districts won’t travel every day to Srinagar,” said
Ismail. He said that most of the people attending the Centre are disappointed.
-CRC brings only disappointment for disabled persons in Kashmir published
12/2/2011 11:27:00 PM by SANA ALTAF497
To facilitate the creation of infrastructure and capacity building at the district level for
awareness generation, rehabilitation, training and guiding rehabilitation professionals, the
Ministry, with the active support of the State Governments, is providing services to the
persons with disabilities by way of setting up of District Disability Rehabilitation Centres
(DDRCs) in all those districts of the country that do not have them. This initiative was
launched in 1999-2000. This is the only scheme of the government aimed at community
level rehabilitation services. As for the XIth plan proposal 300 districts were to be covered
with 1 DDRC each but only 179 DDRCs are functional( this is still 20 short of the 199 DDRCs
sanctioned in the Xth Plan) and are providing rehabilitation services to persons with
disabilities.498 There are 640 Districts in India (from Census 2011). The reach of DDRCs is
only 28%, i.e. 72% of the Districts do not have DDRCs. Also these DDRCs are set up at the
District head quarters. There are no services beyond the district level.
The quality of services provided by DDRC’s is also highly inconsistent. The NGOs and DDRCs
face a lot of constraints, particularly with respect to manpower, infrastructure, equipment’s,
etc. The ones that are functioning are facing a lot of issues with regard to resources. Funds
from the Centre are not reaching on time and the funding is only for 3 years.
The District Disability Rehabilitation Centre (DDRC) at Sir Sayajirao General (SSG)
Hospital has been treating over thousands of persons with disabilities annually for
the past seven years. But with the irregular funding by the Central Government, the
rehabilitation centre is now almost on the verge of getting closed. The centre, which
should have at least ten working employees, is functioning with only five of them,
who have not received their salary for the last eight months.
497
498
http://www.kashmirawareness.org/Article/View/8643 Accessed on 7th January 2013
Page 130, Annual Report, Ministry of Social Justice and Empowerment, 2009-10.
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-Debarati Basu, ‘DDRC on crutches as Central government forgets to send funds’,
Vadodara, Express India, 6th August, 2008.499
DDRCs in many places are non-functional. Often dedicated staff has not been appointed to
head the DDRC’s, there is no plan given to the DDRC’s to carry out the rehabilitation
programme forward or autonomy given to the existing staff to do the same.
Through an interview with an official at the State Institute for Disability
Rehabilitation it was found that 11 Lakhs has been sanctioned for the construction of
DDRC building in Khurda and is lying in the account as land has not been identified
for the construction of the building. The in charge of the DDRC is actually a staff at
the SIDR with additional charge.
No activity plan has been made by WCD for the staff at the DDRC in Khurda, so there
are 7 staff appointed on contractual basis with a salary of Rs 5000 a month each with
nothing to do.
-Meenakshi .B and Sudha Ramamoorthy as part of the Alternate Report, the May
2012
Under the Deendayal Disabled Rehabilitation Scheme (DDRS) of the Ministry of Social
Justice-and Empowerment 687 NGOs in the year 2007-08 with 1.9 lakh beneficiaries were
assisted. In 2010-11, 530 NGOs with 2.3 lakh beneficiaries were assisted. The average
number of beneficiaries benefiting from the programme is only about 1.5 lakhs per year.
This is again substantially low compared to what the need is.500
2 lakh persons with disabilities are provided with assistive devices every year under the ADIP
scheme. A rating of excellent is given to a coverage of 2.3 to 2.5 persons with disabilities
under the Deendayal Disability Rehabilitation Scheme and ADIP Scheme501 in a country
where there are 21 million persons with disabilities, in other words a coverage of 0.01% of
the population each year is accorded a rating of excellent.
Appliance or assistive device provided may not be appropriate or of questionable quality
499
Accessed at http://www.expressindia.com/latest-news/ddrc-on-crutches-as-central-governmentforgets-to-send-funds/345302/ on May 13th 2011.
500
Status paper, Working Paper on Empowerment of Persons with Disabilities for Formulation of XII
Plan.
501
Result Frame Work Document MSJE 2009-12
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
The National Trust has the following programmes/projects which are aimed at
rehabilitation. ‘Samarth’ is a programme under which there are 120 short and long term
stay facilities for adults and destitute children. Each facility caters to 30 residents at any
time. In the year 2010-11 it reached out to 1345 beneficiaries and 2011-12 t to 1609
beneficiaries502
Another scheme is ‘Aspiration’, which are Day Care Centres that work with infants from
birth to 6 years with developmental disabilities in order to make them ready for schooling.
At present, 79 Centres have been sanctioned, providing services to 825 beneficiaries.503 The
beneficiaries over the last three years have decreased from 1265to the present number,
there is information available on why this is so.
Over the XIth Plan Period National Trust has been able to increase its reach from 268
districts to 482.
Here it is relevant to mention that the State of Jammu and Kashmir is not covered by the
National Trust Act, the schemes of NT does not reach persons with disabilities in Jammu and
Kashmir.
Habilitation and Rehabilitation Professionals Training
The reach and the quality of rehabilitation services are directly related to availability and
the skills of people providing the services. According to the Rehabilitation Council of India
(RCI), which regulates and monitors services given to persons with disabilities, the total
number of registrations of professionals and personnel involved in rehabilitation is only
43,675 as on 31st March 2009! Only 6092 registrations have been added in a year. With
over 100 million people with disabilities in the country, the numbers given here are terribly
low.
RCI has also set up a dedicated satellite channel on disability which is the Education Satellite
Channel ‘NAVSHIKHAR’. More than 500 study centres/institutions have been connected
502
503
Page 39,33 The National Trust Annual Report 2010-11, 2011-12
Page, 34,The National Trust Annual Report, 2010-11, 2011-12
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
through this station for the benefits of the students, trainees and parents of the persons
with disabilities.504
The availability of rehabilitation professionals for mental health is also low. According to a
Study conducted by the National Human Rights Commission (NHRC) and the National
Institute of Mental Health and Neuro Sciences (NIMHANS), the gap between the resources –
human, material and financial needed on account of the growing demand for mental health
services and the available resources is a major concern.505
One of the studies conducted by Handicap International indicated that only about 15% of
the people living in urban areas and 3% of the people living in rural areas can avail of
rehabilitation services in India. The total coverage is only 5.7%!506 Clearly establishing the
fact that the efforts made by the Government of India towards habilitation of persons with
disabilities are meagre.
Resources
The analysis of the various programmes of the MSJE, The nodal ministry responsible for the
habilitation and rehabilitation of persons with disabilities, illustrates that none of them
conform to the principles of UNCRPD except the scheme looking at implementation of the
Persons with Disabilities Act and On further analysis we find that the funds earmarked for
the department during the plan period was not adequately utilised.
504
Page 148, Annual Report, Ministry of Social Justice and Empowerment, 2009-10.
Mental Health Care & Human Rights; National Human Rights Commission; and National Institute
of Mental Health & Neuro Sciences; Editors: D Nagaraja; Pratima Murthy
506
Rehabilitation Professionals in Public Health Systems - An Initiative to Reduce Vulnerabilities for
Disadvantaged Communities by Satish Mishra, Handicap International.
505
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Particulars 11th
2007-
2008-
2009-10
2010-11
2011-12
Total
(In
08(RE)
09(RE)
(Actual)
(Actual
(RE)
of RE, of
Rs. Plan
Crore)
Outlay
Actual
Percentage
expenditure
to
total
outlay
Deendayal
600
69
60.5
61.56
82.27
81.10
354.43 59.07
320
73.79
80.82
82.42
91.93
108.13
437.06 136
Aids and 542
59.05
69.5
67.35
69.68
70
335.58 61
Disabled
Rehabilitat
ion
Scheme
National
Institutes
for Blind,
Deaf,
Mentally
Retarded
and
Orthopedi
cally
Handicapp
ed
Appliances
for
the
Handicapp
ed
Expenditure incurred under various schemes of MSJE
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Source Annual reports of MSJE 2007-10 and Union Budget & Economic survey –
Government of India
The Government has functioned at only 60% capacity in key programmes, which ensures
community living and right to mobility as opposed to spending on institutes.
Out 503 NGO’s which were released Grant-in -aid under the DDRS in 2011-12. 9 received
grant which was pending since 2007-08, 12 pending since 2008-09, 143 pending since 200910 and more that 400 pending since 2010-11.507
The Expenditure for the Samarth and Aspiration Scheme is as in the table below.508
Year
Samarth
Aspiration
2009-10
2.15crore
0.98crores 1265
2010-11
1.90 crore
0.75 crore 1053
2011-12
1.08 crore
0.37crore 825
From the table above it that the expenditure for the Samarth programme has decreased
over the years, the centres that funds have been released has dropped from 119 to 65.The
reason for this as gathered from the Annual Report of the National Trust seems to be due to
lack of adherence by some of the Samarth Centres to the standards prescribed and also the
delay in submission of the Utilisation Certificates.
Recommendations
1. All disability laws need to be reviewed and amended in the light of CRPD to include
comprehensive habilitation and rehabilitation in the area of health, education, and
employment.
2. There needs to be coordination between the various relevant Ministries to ensure
rehabilitation services reaches every village of the country.
3. Primary, secondary and tertiary level rehabilitation model should be linked to the
health system. There will have to be posts/jobs for rehabilitation services for various
507
508
http://socialjustice.nic.in/pdf/relddrs1112.pdf
Source: Annual Report National Trust,2009-10 2010-11, 2011-12
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
disabilities in primary, secondary and tertiary level hospitals/health centres and in
NGOs.
4. The Government’s initiative to give grants to NGOs that provide rehabilitation needs
to be reviewed to ensure that NGOs working in remote and left-out areas get
financial support. The Government needs to enhance its support to NGOs.
5. The Government needs to create a cadre of professionals in lines with village health
nurse(VHN) with expertise to provide services to infants with disabilities and set up
centres at the rural areas , urban areas for the same.
6. The Government needs to upgrade the ICDS Aganwadi to provide services to
children with disabilities of the age group 2 to 6 years.
7. The Government needs to promote cross-disability institutes as well as specialised
institutions and support groups for specific impairments.
8. The Government needs to take steps to promote rehabilitation as a lucrative career
option.
9. The Government needs to introduce schemes to provide rehabilitation services at
home. services.
10. The Government needs to conduct courses for personal attendants across the
country (also in local language) and maintain their District-wise data that is easily
available in all hospitals and NGOs.
11. The Government should introduce schemes to subsidise items for rehabilitation and
provide disability allowance or insurance coverage to those requiring long term
habilitation and rehabilitation.
12. The Government needs to review the curriculum of various medical, rehabilitation
and paramedical professionals to ensure that it includes updated and current
knowledge of rehabilitation techniques and is rights based.
13. All laws promoting, protecting and ensuring all human rights and fundamental
freedoms of all persons with disabilities should be made applicable to the state of
Jammu &Kashmir.
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Article 27: Work and Employment
1. States Parties recognize the right of persons with disabilities to work, on an equal
basis with others; this includes the right to the opportunity to gain a living by work
freely chosen or accepted in a labour market and work environment that is open,
inclusive and accessible to persons with disabilities. States Parties shall safeguard
and promote the realisation of the right to work, including for those who acquire a
disability during the course of employment, by taking appropriate steps, including
through legislation, to, inter alia:
a) Prohibit discrimination on the basis of disability with regard to all matters
concerning all forms of employment, including conditions of recruitment, hiring
and employment, continuance of employment, career advancement and safe
and healthy working conditions;
b) Protect the rights of persons with disabilities, on an equal basis with others, to
just and favourable conditions of work, including equal opportunities and equal
remuneration for work of equal value, safe and healthy working conditions,
including protection from harassment, and the redress of grievances;
c) Ensure that persons with disabilities are able to exercise their labour and trade
union rights on an equal basis with others;
d) Enable persons with disabilities to have effective access to general technical and
vocational guidance programmes, placement services and vocational and
continuing training;
e) Promote employment opportunities and career advancement for persons with
disabilities in the labour market, as well as assistance in finding, obtaining,
maintaining and returning to employment;
f) Promote opportunities for self-employment, entrepreneurship, the development
of cooperatives and starting one's own business;
g) Employ persons with disabilities in the public sector;
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h) Promote the employment of persons with disabilities in the private sector
through appropriate policies and measures, which may include affirmative action
programmes, incentives and other measures;
i) Ensure that reasonable accommodation is provided to persons with disabilities in
the workplace;
j) Promote the acquisition by persons with disabilities of work experience in the
open labour market;
k) Promote vocational and professional rehabilitation, job retention and return-towork programmes for persons with disabilities.
2. States Parties shall ensure that persons with disabilities are not held in slavery or in
servitude, and are protected, on an equal basis with others, from forced or compulsory
labour.
DEOC survey
In the DEOC survey on Article 27, dissatisfaction was expressed with regard to all sectors:
Public Sector (84%), Private Sector (93%) and Self Employment (86%). There is
comparatively greater satisfaction with respect to Public Sector employment. Employment
being a key domain of highest priority among PWDs, this may signify satisfaction with
reservation policy, though as detailed below, there are huge gaps in the implementation of
this policy.
Constitution of India on Article 27
Article 39 of the Directive Principles of the Constitution of India provides “that the citizens,
men and women equally, have the right to an adequate means of livelihood”; that “there is
equal pay for equal work for both men and women”; and that “the health and strength of
workers, men and women and the tender age of children are not abused and that citizens
are not forced by economic necessity to enter into avocations unsuited to their age or
strength”.
Article 41 provides that the “State shall, within the limits of its economic capacity and
development, make effective provision for securing the right to work” and (Article 42
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
requires) that “the State shall make provision for securing just and humane conditions of
work…”.
Further, Article 16(1) of the Constitution provides for “equality of opportunity for all citizens
in matters relating to employment under the State”; and that, “trafficking in human beings
and beggar and other similar forms of forced labour” is prohibited (Article 23).
In interpreting the Constitution of India, the Supreme Court has interpreted the right to
dignity and the right to livelihood as key to the right to life.
Work and Employment on equal basis with others
63.6% of the Indian population are in the adult, working age group509. More than 90% work
in the informal economy, mainly agriculture and services. Less than 10% work in the
organized sector; mainly industry, mining and new services like Information Technology (IT),
Business Process Outsourcing (BPO) etc.
It is not only persons with disabilities, but vulnerable groups in India, such as women,
minorities, dalits and the poor who face discrimination in employment with respect to
disparity in wages, relegation of certain jobs (e.g. child labour, manual scavenging, bonded
labour) to certain groups, excluding some groups from ‘higher’ jobs, curtailment of
promotions, increments, etc. and discrimination in work cultures. For example, upto 75% of
dalit community work as marginal or small farmers and 50% as landless labourers. In urban
areas, they work mainly in the unorganized sector. Less than 0.8% of dalits occupy reserved
seats in the government sector. In the private sector, there is no reservation for any group
510.
In 2 post CRPD judgments511, the Supreme Court has held that private companies are not
‘establishments’ under the Persons with Disabilities Act.
The UN Committee on Economic, Social and Cultural Rights, in their Fortieth Session,
expressed concern about the ‘disproportionate representation of women in the informal
509
S. Pingle, (2012). ‘Occupational safety and health in India: Now and the future’. Industrial Health,
50(3): 167-71.
510
Dr. Anand Teltumbde, Globalisation and the dalits, Accessed at
http://www.ambedkar.org/research/globalisationandthedalits.PDF on 10-10-2013
511
Dalco Engineering Private Ltd v Shree Satish Prabhakar Padhye & Ors, AIR 2010, SC 1576; Fancy
Rehabilitation Trust v Union of India, Civil, No. 1886 of 2007.
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labour market ad significant gender disparities in wages’
512.
The Committee has exhorted
GoI to ensure the right to decent work, noting hazardous, unsafe, undignified, inhuman and
degrading forms of work still in practice. Further, the Committee has requested India to
provide information on measures taken within the 10 th and 11th Plans to ‘achieve adequate
rate of employment growth’, targeting the most affected groups and regions.
India signed and ratified the ILO Convention No. 105 (1957) on Abolition of Forced Labour in
2000. The ICSCER Committee has recommended the ratification of ILO Convention No. 2 on
Unemployment and No. 98 on the Right to Organize and Collective Bargaining.
GoI has still not reviewed the reservation to Article 32 of the CRC, in response to the UPR
(2008) recommendations from the Netherlands: While stating that measures are being
taken to protect children from economic and other exploitation, GoI states that ‘The present
socio-economic conditions in India do not allow prescription of minimum age for admission
to each and every area of employment’, bringing this right within a ‘progressively realizable’
process513.
A recent survey from the Ministry of Labour and Employment (2010)514 suggests that
discrimination in work and employment applies to several vulnerable groups. The survey
was conducted in 28 States/UTs. 45,859 household schedules have been canvassed of which
24,653 were rural and 21,206 are urban households. A total of 2,33,410 persons were
interviewed to gather information from 45,859 households. 515 The worker population ratio
is estimated at 325 persons per 1000 population at the overall level, being slightly higher in
rural areas. Even though the survey itself was to estimate unemployment among the
‘worker’ population, and the first of its kind in the post CRPD era, and the survey did not
512
Committee on Economic, Social and Cultural Rights, Fortieth Session, 28 April – 16 May 2008.
Consideration of Reports submitted by States Parties under Articles 16 and 17 of the covenant
(ICESCR): Concluding Observations of the Committee on Economic, Social and Cultural Rights. India.
E/C.12/IND/CO/5, 8th August 2008.
513
Universal Periodic Review: Report of the Working Group o the UPR, India. Addendum: Response
of the Government of India to the recommendations made by delegations during the UPR of India.
A/HRC/8/26/Add.1, 25th August 2008. Human Rights Council, Eight session.
514
http://labourbureau.nic.in/Final_Report_Emp_Unemp_2009_10.pdf/ /accessed on 14th October
2013. Report on Employment and Unemployment survey, 2009-2010. Ministry of Labour and
Employment, Government of India, Labour Bureau, Chandigarh.
515
The survey was conducted in 28 States/UTs. 45,859 household schedules have been canvassed of
which 24,653 were rural and 21,206 are urban households. A total of 2,33,410 persons were
interviewed to gather information from 45,859 households.
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disaggregate data for disability. Gender discrimination was found in terms of number of
women, type of occupation and wages. The department has committed in this document, to
take up other social groups in their next survey.
The right to the opportunity to gain a living by work in a work environment that is open,
inclusive and accessible is not available to persons with disabilities in India.
Census 2001 data showed that the total work participation rate among persons with
disabilities is only 35 percent, 26 and 9 percent among males and females respectively, very
low compared to the population at large. Work participation rate is low among females as
compared to males and in urban areas as compared to rural areas. Most people with
disabilities are in rural areas, working in unorganized sector, in agricultural work 516.
The number of placements of people with disabilities by Employment Exchanges
has declined from 4,200 in 1999 to 3,700 in 2008, whereas the general employment had
increased from 1,77,700 in 2000 to 3,04,900 in 2008. The data of persons with disabilities
was available only till 2008 in the Publication of 2010 and in the Annual Report of Ministry
of Labour and Employment (2011-12)517.
The live register of Employment Exchanges had 6,69,400 people with disabilities in 2008.
The percentage of placement to the number of registration was only 0.6%!518
There has not been any placement of persons with disabilities through these Exchanges in
12 States and Union Territories and less than 10 placements in 20 States and Union
Territories in the year 2008. 519
516
Appunni, S.S. and Deshpande, A.P. (2009). ‘Work participation among disabilities in India’. Journal
of Social Sciences, 21(2): 117-122.
517
Page 44 and 27, Performance of Employment/Special Employment Exchanges for Physically
Handicapped 1999-2008, Employment Exchange Statistics, 2010, Ministry of Labour and
Employment, New Delhi.
518
Page 43, Performance of Employment/Special Employment Exchanges for Physically Handicapped
1999-2008, Employment Exchange Statistics, 2010, Ministry of Labour and Employment, New Delhi.
519
Annexure 3, State wise placement of physically handicapped during the last five years 2004-2008;
Fax sent to NCPEDP by Bachchoo Sharma, Research Officer, Directorate General of Employment and
Training (DGE&T), dated 20th June 2011.
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Provisions to Article 27 in extant disability legislations and role of courts
The Persons with Disability Act, 1995, provides for 3% reservation in the Government and
Public Sector jobs in certain ‘identified’ jobs. The Disability Act has seven impairments
included in the definition of disability. However, the reservation in jobs is only for the three
categories - visual, hearing and loco-motor disabilities.
The National Trust Act, 1999, specifically for people with developmental disabilities has no
provisions on Right to employment.
The Mental Health Act of 1987, being a deprivation of liberty legislation, does not provide
for right to work and employment of people determined to be ‘mentally ill’.
In the Disability Act, 3% reservation has been provided in all poverty alleviation schemes of
the Government. However, it does not provide for reasonable accommodation. Under the
Chapter on ‘Affirmative Action’, it says that preferential allotment of land at concessional
rate should be given to persons with disabilities for setting up business and establishment of
factories. The chapter on ‘Non-Discrimination’ clearly mentions non-discrimination in
Government employment to a person who acquires disability during service. The Act also
provides for an incentive scheme for the Private and Public Sector to ensure that five
percent of the workforce is composed of persons with disabilities.520
The Indian courts have been most active with respect to this Article. Persons with
Disabilities Act (PWDA, 1995) prohibits the termination or demotion of any employee who
acquires a disability during service521, a provision held as mandatory by the courts522. The
Supreme Court declared in 2003 “that a person does not acquire or suffer disability by
choice. An employee, who acquires disability during his service, is sought to be protected
520
Clauses related to Employment in The Disability Act 1995 are Clauses 32 - 38, 40, 41, 43 (b, f) and
47.
521
Courts have interpreted ‘during the course of employment’ as during the period of employment,
and not as while doing any action related to employment. A person going to or returning from work
becoming disabled due to accident has obtained reprieve under this clause. Also, courts have ruled
that it is not necessary a person become disabled due to the employment.
522
Kunal Singh versus Union of India, Appeal (civil) 1789 of 2000, in the supreme court of India;
Bhagwan Dass versus Electricity Board of Punjab, Civil Petition, 8 of 2008, Supreme Court of India.
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under Section 47 of the Act specifically. … The very frame and contents of Section 47 clearly
indicate its mandatory nature”. Courts have also held that, even if the person who acquired
disability was not aware of his or her rights, the employer is obligated to inform him about
them523. Some judgments have extended the reservation benefit to promotions also,
arguing that not doing so would defeat the object of the Act and contrary to the
Constitutional rights524.
Yet, courts in many states continue to adjudicate cases of discrimination against persons
with disabilities in the context of work and employment, and they have to spend many years
and resources in having justice restored.
For example, in the case of Municipal Corporation of Gr. of Mumbai v Mr. Shrirang
Anandrao Jadhav525, 2009, in the Mumbai High Court, the respondent was terminated from
his job as he was declared unfit for his work, following injury on his right hand while
performing his duties. The Labour Court held that the termination was unlawful, held by the
Industrial Court. The Municipal Corporation made a difference between ‘unfit for duty’ and
‘disability’, arguing that the driver had only 12% disability and was not a person with
disability; yet, is unfit for work as driver. He was compensated and reinstated in the Mumbai
High Court, with the court citing the CRPD and recent readings of Article 21 (Right to Life) of
the Constitution. This whole process took all of 9 years.
In the case of Syed Bashir-ud-Din v Nazir Ahmed Shah526, judgement in his favour, was
passed 5 years later, with the aggrieved having to take the case upto the Supreme Court in
2008.
Reasonable accommodation for persons with disabilities at place of work527
523
Bhagwandass versus Electricity Board, Punjab, 8 of 2008, Supreme Court of India.
Union of India v. Jagmohan Singh, WP (C) Nos. 11818 and 13627-28/2004, judgment dated 7
December 2007; Viklang Sang, Haryana v. State of Haryana and others, CWP NO. 12741 of 2009,
judgment dated 18 March 2010.
525
Municipal Corporation of Gr. of Mumbai v Mr. Shrirang Anandrao Jadhav, W.P. (Civil) No.
1900/2009, judgment dated 11.11.2009 (Bombay High Court)
526
Syed Bashir-ud-Din v Nazir Ahmed Shah, Civil Appeals No. 2281-2282/2010 (Supreme Court of
India)
524
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A person had undergone a renal transplant in 2004. Subsequently, he applied to the post of
a probationary officer in the State Bank of India and was considered suitable to enter Phase
II of the selection process. He enrolled for the medical test as per the rules, and
subsequently, the Bank rejected him on the ground that he was found medically unfit. The
petitioner challenged this in the High court. The main legal question was “whether a person
who is fully qualified for a post because of his past or present medical condition which
otherwise did not interfere with his fitness to dispense the duties of his post, be denied
employment because of the financial burden that would be cast on the employer.”528
In a significant ruling, the Bombay High Court articulated the concept of reasonable
accommodation at the workplace, reading from the CRPD and Article 27 of the Convention.
The Court also considered Article 1 and the definition of Reasonable Accommodation under
Article 2 of the CRPD. In interpreting “reasonable accommodation” and “undue burden” the
Court relied on a paper of the Ad Hoc Committee529. The Court observed that there was no
domestic law which was based on the CRPD and the PWD Act did not cover employment for
persons with medical disabilities. Therefore, the Court tested equal opportunities to
employment and ‘reasonable accommodation’ on the touchstone of Articles 14 and 16(1) of
the Constitution of India which deal with equality and more particularly equality in matters
527
Inclusive Planet Center for Disability, Law and policy, and Center for Law and policy research,
(2011). “Review of Indian Case law since India’s Ratification of the UN Convention on Righs of
persons with Disabilities”. Chennai.
528
Ranjit Kumar Rajak v. State Bank of India 2009 (5) BomCR 227 at Para 1.
529
on a Comprehensive and Integral International Convention on the Protection and Promotion of
the Rights and Dignity of Persons with Disabilities, United Nations General Assembly, Seventh
Session, New York, 16 January, 3 February, 2006. In this regard the following extract is
relevant: “The concept of disproportionate burden tends to rest on two common denominators: (1)an
insistence on “reasonableness in the circumstances: and (2) an underlying proportionality test that
balances the rights of and burdens and benefits to, all persons affected by the proposed
accommodation or adjustment. A common denominator as well is that all examples of national
legislation, together with their accompanying interpretations, place the burden of proof with respect
to “unjustifiable hardship”(or its terminological equivalent) on the claimed provider of
reasonable accommodation (e.g. The employer or the landlord). While it is the claimant’s
burden—the responsibility of
the person with disabilities who asserts his/her right to an
accommodation- to prove that the sought accommodation is “reasonable” (which the defendant
the party against which the action is brought can rebut based on the totality of the circumstances), it
is the claimed provider’s burden to prove that “adjustifiable hardship” will arise if the
accommodation or adjustment is provided. In this way, “reasonableness” and “unjustifiable
burden”
while
largely
identical in scope, are often interpreted in various
national
legislations as a means of differentiating a plaintiff’s case from the defendant’s legitimate defense.
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of public employment. The Court recognised the importance of India’s international
obligations with respect to rights of disabled persons by stating that:
“The law is now well settled that though the United Nations Convention may not
have been enacted into the Municipal Law, as long as the convention is not in
conflict with the Municipal Law and can be read into Article 2 thus making it
enforceable. Therefore, in the absence of any conflict it is possible to read the test of
reasonable accommodation in employment contracts.”
The Court further held:
“A duty is, therefore, cast on the State to provide reasonable accommodation in the
matter of employment subject to the burden of hardship test being satisfied. In the
absence of a statutory definition of reasonable accommodation, the reasonable
accommodation as set out in the protocol in the first instance can be considered. It
will have to have a nexus with the financial burden on the institution and/or
undertaking which will have to bear the burden and further the extent to which
reasonable accommodation can be provided for.”
The Court concluded that the Bank has a duty to provide reasonable accommodation to the
Petitioner subject to any undue burden and directed that the Petitioner be offered
appointment and allowed to join the post. Also see Syed Bashir-ud-Din v Nazir Ahmed Shah,
2010, on reasonable accommodation to a teacher who could read, but not write.
Employment of persons with disabilities in the Public sector
The state has been challenged by the Supreme Court for not implementing provisions of the
extant legislation in creating work and employment opportunities for persons with
disabilities. For example, in the case of Government of India v Ravi Prakash Gupta530, GoI
argued in the High Court that since the government did not identify posts for persons with
disabilities, there was no reservation; and it was unable to appoint a meritorious candidate
with disability in the Civil Services. The Supreme Court chided the GoI for not implementing
provision 32 of PWDA, about job identification and reservation; directing further that this
lapse on the part of the GoI could not be further used to deny opportunity to the said
530
Government of India v Ravi Prakash Gupta, (2010) 7 SCC 626 (Supreme Court)
279
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
candidate. The Court’s interpretation aimed to ensure that the governmental obligation to
provide recognise the right to work and employment of persons with disabilities is not
hampered by bureaucratic conditions. Such an interpretation is consistent with Article 27 of
the CRPD. Also see Prof I Elangovan v. Govt Of Tamil Nadu, 2008531, Chennai court order on
obligations of the government to reserve posts;
While persons with disabilities are waiting to get a dignified job, there is a huge backlog of
vacancies in the Government sector. There are 6,611 vacancies unfilled, based on the
information received from 65 Ministries/Departments of the backlog vacancies for persons
with disabilities, as on 15th November, 2009. The total number of backlog vacancies
identified was 7,628 and the number of backlog vacancies filled was only 1,017 as on 15 th
November 2010.532
NCPEDP and allied organizations of the National Disability Network filed upto 26
applications533 to various Ministries under the Right to Information Act (RTI) between 20102011 on filling up reservations under Persons with Disabilities Act. Most Ministries did not
respond on this topic, noting only that they have ‘complied’ with the extant legislation.
Specific responses received are as follows:
The Ministry of Consumer Affairs, Food and Public Distribution: out of a total number of 187
employees, only 2 are PWDs. Ministry of Information and Broadcasting responded that 89
out of 5623 employees were persons with disabilities (1.58%). Ministry of External Affairs
sent a statement that out of 5971 employees, 2081 were posts identified for persons with
disabilities, out of which 67 persons with orthopaedic impairment; 6 persons with visual
531
Prof I Elangovan v. Govt Of Tamil Nadu, W.P.NO.28217 OF 2008 (Madras High Court)
Page 28, Status Paper, Working Group on Empowerment of Persons with Disabilities for
formulation of XII Plan 2012 -2017
533
Ministry of Rural Development, Ministry of Consumer Affairs, Food & Public Distribution, Ministry
of Civil Aviation, Ministry of Youth Affairs and Sports, Ministry of Social Justice and Empowerment,
Ministry of Human Resource and Development, Ministry of Railways, Ministry of Personnel, Public
Grievances and Pension, Ministry of Home Affairs, Ministry of Tribal Affairs, Ministry of Culture,
Ministry of Law and Justice, Ministry of Women and Child Development, Ministry of Micro, Small and
Medium Enterprises, Ministry of Statistics and Programme Implementation, Ministry of Road
Transport and Highways, Ministry of Information and Broadcasting, Ministry of Urban Development,
Ministry of Housing and Urban Poverty Alleviation, Ministry of Health and Family Welfare, Ministry
of External Affairs, Ministry of Minority Affairs, Ministry of Communications and Information
Technology, Ministry of Development of North Eastern Region, Ministry of Panchayati Raj and
Ministry of Labour and Employment.
532
280
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
impairment and 5 persons with hearing impairment were employed. Other disabilities were
not represented on their payroll.
The Ministry of Minority Affairs reported that out of 93 sanctioned staff, most were filled up
by other reservation categories or were deputations, etc. ‘Hence, the question of giving the
benefits of reservation to persons with disabilities does not arise’. Ministry of Civil Aviation
and several other Ministries have not responded to the reservation question.
In a detailed response to the RTI query (No. K-14014/1/2011-UPA, dated 24-10-2011), the
Ministry of Housing and Urban Poverty Alleviation has responded as follows. To the question
regarding whether 3% reservation commitment under the PWDA 1995 has been fulfilled in
the years from 2008-2011, the response came, ‘UPA Division is not concerned’.
Job identification as inhuman, undignified and highly discriminatory
The PWDA 1995 provided for job identification, and a review had to be undertaken at least
once every 3 years. The PWDA also provided for employment opportunity only for some
categories. The practice of identifying only certain jobs for people with certain disabilities is
discriminatory.
As
per
the
data
available
(2003),
10.2%
of
all
posts
in
Ministries/Departments and Public Establishments have been identified as suitable for
persons with disabilities.534 There has been no public / policy debate on job identification
and the Committee has met only twice in the last 15 years, in 2001 and 2007.535
In December of 2010, Ministry of Social Justice and Empowerment, in pursuance of the
provisions of Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 had constituted an Expert Committee to make an indepth study of various jobs performed in Government of India Ministries/Departments,
public sector undertakings and autonomous bodies including Universities. The Subcommittees also reviewed jobs notified in 2007 and prepared a detailed list of Groups A, B,
C and D posts which were identified suitable for persons with disabilities. The Expert
Committee submitted its report on 24th January, 2012. The Central Government accepted
the report and the list of posts identified for Persons with Disabilities was published vide
534
535
People with Disabilities in India: From Commitments to Outcomes, World Bank, July 2009.
Reply to an RTI filed by NCPEDP dated 10th June 2011.
281
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
Notification No.16-15/2010-DD-III dated 29th July 2013. No consultation or feedback loop
was established with DPOs or civil society, and very few members from DPOs were involved
in this process, though an Order was passed in May of 2013 inviting suggestions536. Through
these administrative notifications, posts identified for persons with disabilities under Group
A, B, C and D within government sector were issued537.
We express several concerns about these notifications, specifications for identification
therein and nature of jobs identified, as follows:
1. For each job, a detailed specification of ‘physical requirement’ has been introduced
such as (S=Sitting, ST=Standing , W=Walking, BN=Bending , L=Lifting, KC=Kneeling
& Croutching (sic!), Ju=Jumping, CRL= Crawling, CL=Climbling MF=Manipulation by
Fingers, RW=Reading & Writing, SE=Seeing, H=Hearing, C=Communication,
PP=Pulling & Pushing). On the basis of these ‘physical requirements’, ‘Categories of
disabled suitable for jobs’ has been specified as follows: OA=One Arm, OL=One Leg,
BA=Both Arms, BL=Both Leg, OAL=One Arm and One Leg , BLOA=Both leg & one arm
, BLA=Both Legs Arms, B=Blind, LV=Low Vision, HH= Hearing Impaired , CP= Cerebral
Palsy, LC= Leprosy Cured, OH= Orthopaedically Impaired, VH= Visually Impaired.
2. There is no congruence between disability as prescribed in the CRPD, or even as
prescribed in the extant PWDA of 1995, or the new Rights of persons with Disabilities
Bill of 2013. It is not clear what kinds of ‘assessments’ will be done to recruit a
person, say, ‘MF’ (Manipulation by Fingers) to a specific post, say, Joint Manager
(Accounts.) Since ‘MF’ is not a listed disability category, it will not be ‘assessed’ at
the time of issue of disability certificate. It is likely that to ‘prove’ ‘MF’ a likely
disabled candidate to this post will have to respond to a series of verbal and physical
verification tests of his or her ‘MF’ status. It is not clear what those tests are, and
that those tests will not be discriminatory, undignified or violating personal integrity.
3. Some categories of persons with disabilities are completely missing from this list, e.g.
persons with psychosocial or mental / cognitive disabilities, making this exercise
highly discriminatory. If introduced, it will be a real challenge to define and specify
536
http://socialjustice.nic.in/pdf/ordidposts.pdf
537
Notification No. 16-15/2010-DD-III dated 29th July 2013, MOSJE, GoI
282
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
both (1) What physical requirement is there and (2) What category of disability (as
per this document) will suit the post.
4. Finally, of all the many human physical and mental actions, processes and functions,
it is a mystery why S, ST, W, BN, L, KC, JU, CRL, CL, MF, RW, SE, H, C and PP have
been enlisted.
The case of Hariram Krishna Iyer v. State Bank of India, Mumbai and Others, 2009 before the
Supreme Court shows that establishing CRPD compliant rights on Article 27 will be very
difficult, when courts give up on the broad principles of the CRPD or other human rights
legislations, and arbitrate on medical condition (in this case, ‘one eye’).
Legally restricted opportunities for promotions, holding office, nominations, and other
work in professional capacity etc.
While some safeguards and positive rights provisions to work and employment may be
found in law and in case law, a variety of laws exist which deny this right to persons with
disabilities on grounds of ‘incapacity’. In some case law, the courts have asked the question,
‘Is this a person with disability or incapacitated person’? The status of ‘disability’ has to be
independently established before a court of law, as not being ‘incapacitation’.
In the case of Kunal Singh versus Union of India (2009) 538 described earlier, the High Court
answered this question by saying that Kunal Singh was not a person with a disability, but
‘permanently incapacitated’ person, a contention challenged by the Supreme Court.
In order to establish CRPD compliant judgments, the courts and people with disabilities are
having to first pass through those incapacity legislations which are rights deprivatory for
persons with disabilities. Having set ‘precedents’, courts in future will adjudicate ‘disability’
vis a viz ‘permanent incapacity’, and outcomes will be checkered for persons with
disabilities, involving more time and money spent with uncertainty and stress.
‘Permanent incapacity’ is determined on a variety of service providing, technical, university
or higher education laws which carry discriminatory provisions about persons with ‘unsound
mind’, ‘deaf mute’, ‘blind’, ‘physical or mental infirmity’, ‘contagious leprosy’, etc. Those
exclusions are on a variety of professional areas, and a variety of designations, including
538
Kunal Singh vr Union of India, Appeal (civil) 1789 of 2000, Supreme Court of India.
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
serving on various academic councils, committees, and memberships to various statutory
bodies of an organisation. General exclusion of incapacity (e.g. ‘incapable of performing
duty’) is also found. Where special provisions are there for admission or employment, only
‘physically handicapped’ is mentioned. Upto 54 examples of such laws with specific
provisions is detailed below, to suggest that in each and every field of profession, vocation or
employment, including agricultural work, legal barriers exist to the full enjoyment of Rights
under Article 27. These provisions show that whether reserved post or not, a person,
whatever the disability, will not be able to occupy the higher echelons of their profession /
organization on equal basis with others.
Table: Incapacity provisions in laws depriving the right to work and employment
S No
Act
1
Aligarh
University
Section Provision
Muslim 40
Act
1940
Ground
Removing a member of Incapable of performing
the
court,
Council
or
Executive duty
Academic
Council
2
Banaras
hindu 7
Disqualification
as is of unsound mind or is
University Act of
member of any of the deaf-mute or suffers from
1915
authorities
of
the contagious leprosy
university
3
English
and 33
Disqualification
as Is of unsound mind
Foreign
member of any of the
Languages
authorities
University Act of
University
of
the
2006
4
North Eastern Hill 37
Disqualification
University
member of any of the deaf-mute or suffers from
1973
Act
authorities
as Is of unsound mind or is
of
the contagious leprosy
University
284
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
S No
Act
Section Provision
Ground
5
Visva-Bharati Act 4
Dismiss or remove from Is of unsound mind, deaf
of 1951
service without holding mute or suffers from
inquiry a teacher, any contagious leprosy
academic
staff,
‘punishment’ taking effect
from date of order
6
Tezpur University 35
Disqualification
Act of 1993
member of any of the
authorities
as Is of unsound mind
of
the
University
7
National
Council 5
Disqualification for office Is of unsound mind and
for
Teacher
of member
stands so declared by
Education Act of
competent court
1993
8
National
5
Commission
for
Chairperson
and Is of unsound mind and
members can be removed stands so declared by
Minority
from office if
competent court
Educational
Institutions
Act
2004
9
10
35
act
becomes
incapable
or
of
Disqualified for being a Is of Unsound mind
Agricultural
member of any of the
University Act of
authorities
1992
University
national
to
acting
Central
Indira
Refuses
Gandhi 35
Tribal
University Act of
of
the
Disqualified for being a Is of Unsound mind
member of any of the
authorities
of
the
285
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
S No
11
Act
Section Provision
Ground
2007
University
Airports authority 4
Disqualified as appointed Is of unsound mind and
of India Act 1994
member if
stands so declared by a
competent court
12
Air
(prevention 8
Disqualified as member of Is of unsound mind and
and
control
State Board if
of
stands so declared by a
Pollution) Act of
competent court
1981
13
International
4
Airports Authority
Disqualified from office as is of unsound mind and
member if
stands so declared by a
Act of 1971
14
Road
competent Court
Transport 6
Corporations Act
Disqualified
as if he is found to be a
Corporation member if
Lunatic or a person of
of 1950
15
unsound mind
Inland Waterways 3
Disqualified
for Is of unsound mind so
Authority of India
appointment as member declared by a competent
(Amendment Act)
if
court
of 2001
16
Coastal
5
Aquaculture
Disqualification
for Is of unsound mind and
appointment as member
Authority Act of
stands so declared by a
competent court
2005
17
Food
8
Corporations Act
Disqualification for office Is of unsound mind and
of Director
of 1964
20
Disqualification for office
stands so declared by a
competent court
as Member of Board of
286
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
S No
Act
Section Provision
Ground
Directors
18
Warehousing
8
Corporations Act
of director
of 1962
21
19
Water
6
(Prevention
and
control
Disqualification for office if he is found to be a
Lunatic or becomes of
For office of director of
unsound mind
the corporation
Disqualification
member of Board
of
as is of unsound mind and
stands so declared by a
competent court
pollution) Act of
1974
20
Spices Board Act 9
Removal of member from is of unsound mind and
of 1986
office
stands so declared by a
competent court
21
Semi-Conductor
38
Integrated
Circuits
Design
Chair, Vice Chair or any On ground of proved
other Member shall not incapacity
Layouts
Act
be removed except
of
2000
22
Telecom
7
Regulatory
Removal and suspension Has become physically or
of member from office
Authority of India
mentally
incapable
of
acting as a member
Act of 1997
23
Coffee
1942
Act
of 8
Removal of a member If he is of unsound mind
from office / Board
and stands so declared by
a competent court
287
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
S No
Act
Section Provision
24
Energy
7
Conservation Act
Ground
Removal of member in If he is of unsound mind
office
and stands so declared by
of 2001
25
a competent court
Electricity
10
(Supply) Act of
Removal or suspension of is found to be a Lunatic
members
or becomes of unsound
1948
26
Haj
mind
Committee 12
Act of 2002
Disqualification
of is of unsound mind and
nomination, continuance stands so declared by a
as member of Committee
competent court
23
27
Brahmaputra
4
Board Act of 1980
24
Disqualification
of
any If infirm or otherwise
member
incapable of carrying out
his duties
Incapable to act
28
Sikh
Gurdwaras 46
Act of 1925
member if
134
29
Disqualification to be a Of unsound mind
Dismissal of any office
holder
unsound
mind
or
physically unfit
Indian Veterinary 6
Disqualification to be a Of unsound mind and
Council
Council member if
Act
of
1984
30
Of
competent court
WildLife
2
Protection
Amendment
stands so declared by a
Removal of member
If on unsound mind and
stands so declared by a
Act
competent court
of 2006
288
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
S No
Act
Section Provision
31
Wakf Act of 1954
13
And Act of 1995
Ground
Disqualified as member of Is found to be a person of
Board
unsound mind
Removal of Mutawallis
is of unsound mind or is
suffering
from
other
mental or physical defect
or infirmity
32
Tripura
Land 2
Revenue
and
Disqualified to cultivate ‘person under disability’
land
means
‘a
person
Reforms Act of
incapable of cultivating
1960
land by reason of some
physical
or
mental
disability’
33
Cost and Works 8
Disqualification
Accountants
practicing profession
Act
from If found of unsound mind
and stands so declared by
of 1959
34
a competent court
Deposit Insurance 6
Disqualification
and
nomination as Director
Credit
from he is of unsound mind
Guarantee
Corporation
and stands so declared by
a competent court
Act
of 1961
35
Finance
5
Commission
Act
of 1951
36
The
Disqualification
from If he is of unsound mind
being member of the
Commission
Insurance 5
Regulatory
and
Disqualified from office if
Is of unsound mind and
found so declared by a
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
S No
Act
Section Provision
Ground
Development
court
of
Authority Act of
jurisdiction
competent
1999
37
The Insurance act 6
Disqualified
of 1938
practicing vocation if
from Is
of
unsound
mind
declared so by court of
competent jurisdiction
38
Industrial
11
Disqualified
from he is a
Lunatic and
Reconstruction
membership of the Board stands so declared by a
Bank of India Act
if
competent court
of 1984
39
Industrial Finance 12
Disqualified
Corporation
Directorship if
Act
from is found to be a Lunatic
or becomes of unsound
of 1948
40
mind
State
Financial 12
Corporations Act
Disqualified
from is found to be a Lunatic
Directorship if
of 1951
41
42
Small
or becomes of unsound
mind
Industries 8
Not eligible for director if
Is found to be of unsound
Development
mind
by
a
court
of
Bank of India Act
competent
of 1989
and the finding is in force
jurisdiction
State Agricultural 12
No person shall be a Is of unsound mind and
Credit
director who
Corporations Act
stands so declared by a
competent court
of 1968
43
Securities
Exchange
and 6
Board
Removal of member from Is of unsound mind and
office if
stands so declared by a
290
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
S No
Act
Section Provision
of India Act of
Ground
competent court
1992
44
State
Bank
of 120
Removal of Director
India Act of 1955
If he is declared Lunatic
or becomes of unsound
mind
45
Regional
rural 12
Removal of Director
banks Act of 1976
If he is declared Lunatic
or becomes of unsound
mind
46
State Agricultural 12
Removal of Director
If he is declared Lunatic
Credit
or becomes of unsound
Corporations Act
mind
of 1968
47
EXIM Bank Act of 9
Removal of Director
1981
If he is declared Lunatic
or becomes of unsound
mind
48
RBI Act of 1934
10
Disqualification
of If
found
Director and members of becomes
49
National housing 8
Lunatic
of
or
unsound
Local Board
mind
Removal of Director
If he is declared Lunatic
Bank Act of 1987
or becomes of unsound
mind
50
National Bank For 9
Agriculture
and
Rural
Removal of Director
If he is declared Lunatic
or becomes of unsound
mind
Development Act
of 1981
291
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
S No
Act
51
State
52
Section Provision
Bank
Removal of Director
If he is declared Lunatic
Hyderabad Act of
or becomes of unsound
1956
mind
Banking
Service 6
Commission
53
of 27
Ground
Act
Removal and suspension Unfit to continue in office
of Chairman or members by reason of infirmity of
of 1984
of office
Companies Act of 274
Disqualification
1956
Director
mind or body
as Found to be of unsound
mind
by
a
court
of
competent jurisdiction
Poor performance of schemes and programs specially created for persons with disabilities
NCPEDP along with CBGA prepared a research report on ‘Analysing the Indian Public
Financing System from the Perspectives of the Rights of Persons with Disabilities – A first
step towards CRPD Compliant Budget Advocacy’539. This section has been developed from
the report.
The Incentives Scheme to promote employment of persons with disabilities announced in
2007-08 was a failure. Only 457 people with disabilities as per the records from Employees
State Insurance Corporation as on 28th February, 2011, and 186 as per the Employee
Provident Fund Organisation as on 30th December 2010 were reported to have been
employed and took the benefit of the incentives.540
539
Sudha Ramamoorthy, Meenakshi Balasubramanian, with Inputs from Pooja Parvati (CBGA) and
Alexandre Cote (IDA), (2012). Analysing the Indian Public Financing System from the Perspectives of
the Rights of Persons with Disabilities – A first step towards CRPD Compliant Budget Advocacy.
NCPEDP and CBGA, New Delhi.
540
Response received for an RTI filed by NCPEDP
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India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
The total number of persons with disabilities benefited from Mahatma Gandhi National
Rural Employment Guarantee Scheme (MNREGS) was 3,36,698 in 2007-08 and 2,94,490 in
2010-11. The number of beneficiaries has decreased over the last three years.541
The total people with disabilities covered in Swarnajayanti Grameen Swarozgari Yojna
(SGSY), which is a poverty alleviation programme focusing on the rural poor, was 45,869
(4.7%) in 2009-10 and 40,838 (3.1%) in 2010-11. The percentage of beneficiaries with
disabilities has decreased, however, the committed 3% quota, which is quite inadequate in
terms of coverage, has been met.542
In the Swarna Jayanti Shahari Rozgar Yojana, which is a poverty alleviation programme
focusing on the urban poor, there is no disability reservation under ‘Urban Wage
Employment Programme’. In the other programmes, namely, Urban Self Employment
Programme (USEP), Urban Women Self-help Programme (UWSP) and Skill Training for
Employment Promotion amongst Urban Poor (STEPUP), the number of beneficiaries with
disabilities, cumulative since 1997 to March 2011, was only 26,909 (2.28%), 4836 (0.92%)
and 24,341 (1.16%) under the three programmes respectively.543
Only 64385 persons with disabilities have been provided loans since its inception in 1997 till
March 2012 by National Handicapped Finance and Development Corporation (NHFDC). In
2007-08, it was 5498 beneficiaries; in 2008-09, it was 5950; 2009-10 it was 6032; 2010-12 it
was 6356; and in 2011-12 it was 10625. 80% of the total beneficiaries were men and only
20% were women. About 89% of the beneficiaries were people with orthopaedic
impairment and ‘zero’ people with psychosocial disabilities.544
The Government has been focusing on small and micro enterprises and entrepreneurship
development in the last few Five Year Plans. Several schemes have been announced in this
regard. There are credit support schemes, entrepreneurship development programmes,
541
Table 20, Sudha Ramamoorthy, Meenakshi Balasubramanian, with Inputs from Pooja Parvati
(CBGA) and Alexandre Cote (IDA), (2012). Analysing the Indian Public Financing System from the
Perspectives of the Rights of Persons with Disabilities – A first step towards CRPD Compliant Budget
Advocacy.
542
Table 16, ibid.
543
Brief Note, Meeting of Empowerment of Persons with Disabilities and Social Welfare Groups
Schedules for 15th July, 2011.
544
Page 18, 15th Annual Report, NHFDC, 2011-12 http://www.nhfdc.nic.in/upload/nhfdc/AnnualReport-2011-12.pdf
293
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
incentives and so on. These programmes do not have specific focus on disability. As a result,
most
of
these
programmes
remain
unavailable
to
persons
with
disabilities.
Vocational Rehabilitation Centres (VRCs) for persons with disabilities, which are just 20 in
number, have not been able to scale up to meet the industry needs. According to the report
received from the Ministry of Labour and Employment, only 1077 persons with disability
were trained in VRCs and 4696 persons with disabilities trained outside VRCs during 201011. 3675 were placed in ‘wage paid’ and 3211 were placed in self employment.545
In the XI Five Year Plan (2007-12), an ambitious Skill Development Mission was initiated by
the Government with a target of creating 500 million skilled workers by 2022. Section 3.7 of
the National Policy on Skill Development, not only has 3% reservation but also mentions
accessibility and reasonable accommodation for persons with disability.546 However, four
years since its launch, there has been no visible benefit from these programmes for people
with disabilities.
The Mahatma Gandhi National Rural Employment Guarantee Act (NREGA) was enacted in
2005, which enhances livelihood security by guaranteeing 100 days of waged employment
in a financial year to a rural household. Though the Act does not mention disability, the
NREGA Operational Guidelines 2008 states quite clearly, “If a rural disabled person applies
for work, work suitable to his/her ability and qualification will have to be given. This may
also be in the form of services that are identified as integral to the programme.” 547
Budget Allocations
The expenditure incurred in the Scheme for ‘Employment of Physically Challenged’ under
the central Ministry of Social Justice and Empowerment was 7 crore in 2008-09, 1 crore in
2009-10, ‘NIL’ in 2010-11 and 1 crore in 2011-12, showing a steadily decreasing trend.548
545
Booklet, Vocational Rehabilitation Centres for the Handicapped, Ministry of Labour &
Employment; as on 1-10-2009
546
Page 39, National Policy on Skill Development, Ministry of Labour and Employment
547
NREGA Operational Guidelines 2008, 3rd Edition,, page 25, Section 5.5.10, accessed at
http://indiatoday.intoday.in/site/story/rml-hospital-head-holds-out-little-hope-for-thalassemic-iasaspirant-sukhsohit-singh/1/141823.html25 on 25th October 2011.
548
Table 24, Sudha Ramamoorthy, Meenakshi Balasubramanian, with Inputs from Pooja Parvati
(CBGA) and Alexandre Cote (IDA), (2012). Analysing the Indian Public Financing System from the
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The amount disbursed by National H F D C in 2007-08 was 28.30 crores; in 2008-09 was
30.28 crores; in 2009-10 it was 30.80 crores; in 2010-11 was 31.84 crores and in 2011-12, it
was 50.86 crores.549 The amount disbursed has been increasing each year but the rate of
increase has been slow. The overall amount of disbursement is extremely low compared
the population of persons with disabilities in the country.
The expenditure incurred by VRC in 2008-09 was 13.93 crores, in 2009-10 it was 18.14
crores, 2010-11 it was 19.58 crores, and 2011-12 it was 19.63 crores.
550
There has been
increase but very insignificant. There is a need for pumping in more resources not only
upgrading the VRCs but also in opening new VRCs across the country.
The expenditure incurred by special employment exchanges was not available.
The expenditure incurred on employment and training of people with disabilities is very low
compared to the size of the population.
RECOMMENDATIONS
1. Remove the systemic barriers, including legislations, on inclusion of persons with
disabilities within Employment sector.
2. Adopt ILO Convention ILO Convention No. 2 on Unemployment and No. 98 on the
Right to Organize and Collective Bargaining.
3. Remove reservation on CRC Article 32 on Child Labour.
4. Withdraw Guidelines for Job Identification for persons with Disabilities, for Groups A,
B, C, D and provide CRPD friendly guidelines on inclusion in Employment, safety
measures within work environments, and reasonable accommodations.
5. Mandate disaggregated data in all Employment processes, including posts,
vacancies, promotions, dismissals, retirements, etc; as well as in all schemes,
programs for enabling employment, vocation, profession or livelihood in both
private and public sector.
Perspectives of the Rights of Persons with Disabilities – A first step towards CRPD Compliant Budget
Advocacy. NCPEDP and CBGA, New Delhi.
549
Page 4, Annual Report of NHFDC , 2011-12
550
Table 6, Sudha Ramamoorthy, Meenakshi Balasubramanian, with Inputs from Pooja Parvati
(CBGA) and Alexandre Cote (IDA), (2012). Analysing the Indian Public Financing System from the
Perspectives of the Rights of Persons with Disabilities – A first step towards CRPD Compliant Budget
Advocacy. NCPEDP and CBGA, New Delhi.
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6. Have a Disability Audit of all existing schemes to identify gaps in implementation and
ensure that the barriers are plugged.
7. Establish Redress mechanism to address issues of discrimination and harassment in
the public and private sector.
8. Announce a more effective Incentives Policy.
9. Launch specific programmes for promoting livelihood for persons with disabilities
who are marginalised within the disability sector, including people with mental and
psycho-social disabilities.
10. Undertake training, sensitisation and awareness programmes for employers.
11. Include people with disabilities in all Skill Training programmes, including those
conducted by the private sector.
12. Set up a National Portal on employment of persons with disabilities.
13. Launch focused programme for beggars with disability to provide rehabilitation.
14. Last but not the least, all related issues like accessibility, assistive devices, education,
health, transport, hostels, etc. have to be addressed to ensure equal opportunities
for persons with disabilities.
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Article 31
Statistics and Data Collection
1. States Parties undertake to collect appropriate information, including statistical and
research data, to enable them to formulate and implement policies to give effect to
the present Convention. The process of collecting and maintaining this information
shall:
(a) Comply with legally established safeguards, including legislation on data
protection, to ensure confidentiality and respect for the privacy of persons with
disabilities;
(b) Comply with internationally accepted norms to protect human rights and
fundamental freedoms and ethical principles in the collection and use of
statistics.
2. The information collected in accordance with this article shall be disaggregated, as
appropriate, and used to help assess the implementation of States Parties'
obligations under the present Convention and to identify and address the barriers
faced by persons with disabilities in exercising their rights.
3. States Parties shall assume responsibility for the dissemination of these statistics and
ensure their accessibility to persons with disabilities and others.
NCPEDP & DEOC survey findings
The DEOC survey showed that 78% of people surveyed were dissatisfied with the census
efforts, 20% were satisfied, and 1% did not know much about the issue. Compared to efforts
by the government on other CRPD articles, the census effort elicited higher level of
satisfaction.
International Obligations
The UNCRPD Monitoring committee has regretted the low level of disaggregated data and
publicly report on persons with disabilities (Australia, Spain, Tunisia, other), recommending
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a nationally consistent measure for data collecting and reporting based on human rights
model (Paraguay); a comprehensive assessment and baseline of the situation of children,
girls and women with disability (Australia, Austria); violence, abuse against children; report
back on progress made (Austria); incorporate disabilities in the next census (El Salvador);
review and modify the assessment criteria in issuing the disability certificate in line with the
CRPD (Paraguay); systematize data collection, analysis and dissemination, especially of
persons with disabilities subject to multiple forms of exclusion (Argentina); capacity building
to track the intersectionality, taking into consideration the changeover from a medical to a
human rights model of disability (Argentina, Hungary); review the secrecy laws and revise to
make data accessible; provide data on numbers of women with disabilities sterilized or
number of involuntary commitments (China); nature and characteristics of indigenous
people (Roma) with disabilities (Hungary); develop indicators for monitoring and reporting
(Peru, Spain)551.
The recommendations for disaggregated data have come up not only in the case of persons
with disabilities, but also in the case of caste and gender based discrimination. For example,
a UPR recommendation from the OHCHR in 2008, was recommendation No. 5: ‘Maintain
disaggregated data on caste and related discrimination’ (Canada, Belgium, Luxembourg).
Similarly, the Committee for Economic, Social and Cultural Rights requested Indian
government to submit, in its next periodic report, ‘updated annually collected co-operative
data disaggregated by sex, age, caste, ethnicity, religion and region regarding all provisions
in the Covenant, paying particular attention to the disadvantaged and marginalized
individuals and groups’ 552.
Constitutional safeguards, disability laws and other statutory provisions
Not known whether there are such constitutional provisions or safeguards and if there is
constitutional jurisprudence in this regard.
551
http://www.internationaldisabilityalliance.org/en/compilations-made-ida, accessed 01-12-2013
Consideration of Reports submitted by states parties under articles 16 and 17 of the Convenant.
Concluding observations of the Committee on Economic, Social and Cultural Rights: India. Fortieth
Session, 28 April – 16 May 2008, E/C.12/IND/CO/5, 8th August 2008.
552
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Disability Laws do not specifically mention about data collection. However, the Mental
Health Act, 1987 has a mention regarding confidentiality of the information collected from
the patients.
The Census Act 1948 & the Collection of Statistics Act 2008 have no mention on coverage
and inclusion of persons with disabilities.
Statistics and data collection is left to a variety of institutions and commissions in public
administration, often serving the government in advisory status, making this function a part
of the administration and bureaucracy, rather than a right in itself.
The Census Commission, under the Ministry of Home Affairs, and the National Sample
Survey Organisation (NSSO) under the Ministry of Statistics and Programme
Implementation, collect data to support policy making and resource allocation, including
disability data.
Barrier to participation
Having reliable data relating to a variety of life domains covered by the CRPD is the first vital
step towards full and effective participation in Development process, political participation
and protection under the state’s parens patriae functions. However, as repeatedly
evidenced in this report, passim, in each and every article, there are gaps in reliable and
accurate information with respect to persons with disabilities.
Flagship development programs of the country, in education, health, work and employment,
social security, protective mechanisms, redressal, and monitoring functions of the state, as
discussed in this report, there are noticeable gaps in having accurate data with respect to
persons with disabilities, including women and children.
Policy based on disability segregated data is seldom available in the country. The existing
policies do not mandate data collection with respect to persons with disabilities utilising
various services – health, legal, etc.
The data is maintained by the Government for
programmes where there is reservation for persons with disabilities, like in the case of
employment or poverty alleviation schemes. Sometimes gender segregated data of
disability or data on children with disabilities is not maintained. Unless disability and gender
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segregated data of beneficiaries, allocation and utilisation of funds is collected, compiled,
maintained, updated, shared and disseminated diligently and appropriately, it would be
difficult to assess the impact of development programmes that should reach persons with
disabilities.
With respect to various civil political rights, protections and redress mechanisms, the
situation on data availability is the same.
There is no standard data collection and dissemination protocol applicable to all Ministries.
The data of persons with disabilities was available only till 2008 in the Publication of 2010
and in the Annual Report of Ministry of Labour and Employment, with respect to
employment exchanges (2011-12) 553.
In India, the disability movement was very actively involved in the Census of 2011.
The efforts put in by the Census Commission to measure and ensure better enumeration of
persons with disabilities can be considered as a progress in this area. The disability sector
approached the Census Commissioner, who gave his full support to ensure that the
disability question is given due attention and priority in the latest Census of 2011. The role
that the Ministry of Social Justice and Empowerment and Information and Broadcasting
played was however quite negligible.
The question: NCPEDP made a request to the Census Commissioner to allow the disability
sector to reframe the question on disability and to draft the guidelines of the enumerators’
manual for the same, which was agreed to by the government. A research on the disability
question was conducted by Diversity and Equal Opportunity Centre (DEOC) on NCPEDP’s
behalf. It was based on the disability question asked in 11 countries including developing
and developed countries, the question as suggested by the Washington Group and the
question based on United Nations Convention on the Rights of Persons with Disabilities.
After a day long discussion and a war of words and with options not to exceed more than
553
Page 44 and 27, Performance of Employment/Special Employment Exchanges for Physically
Handicapped 1999-2008, Employment Exchange Statistics, 2010, Ministry of Labour and
Employment, New Delhi.
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nine, the participants of the Round Table were finally able to agree to a common question
554.
There was mixed feedback from the people regarding the enumeration of persons with
disabilities. Some enumerators asked the question and many had left it out.
BOX ITEM
“Our experience was pretty good. Both the teachers took time to explain the disability
question and also the various codes associated to classify different types of disability. They
had clear knowledge about this question and how by including all members in the family at
a country wide level some policy changes could happen. I do hope the same level of
awareness and interest exists in rural India as well.”-Annice Paul
BOX ITEM
“Census enumerator came today. Incidentally I was at home. She never asked Question No.
9 which was on disability. Then I asked her about it and she said that she had just filled
Question 9 as ‘yes’. I told her to fill up 9 (b), which is on disability category! Well, looking at
my experience, I don’t think this census also we are going to have the right disability figures”
-Sowmya Simhan
NSSO conducts sample surveys on various aspects, including disability. The last survey on
disability (NSS 58th Round) was undertaken in 2002 555. The result of the NSS Survey was not
as good as than Census 2001 in terms of disability coverage, where, they used more
restricted criteria. Only 1.8% of the population was found to have disability.
554
Rohinee Singh, ‘Our Census, Our Future: Disability sector puts up a United Front’, Disability News
and Information Service (DNIS), April 01, 2010, Accessed at
http://www.dnis.org/features.php?issue_id=7&volume_id=7&features_id=173) on 21st October,
2011.
555
Punarbhava website; Accessed at
http://punarbhava.in/index.php?option=com_content&task=view&id=734&Itemid=540) on 28th
October 2011.
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The Unique Identification Authority of India (UIDAI) is an agency of the Government
responsible for implementing the Aadhar Scheme. It was established in February 2009.
Aadhaar is a 12-digit unique number which the UIDAI will issue for all residents in India. The
number will be stored in a centralised database and linked to the basic demographics and
biometric information – photograph, ten fingerprints and iris – of each individual
556.
The
enrolment is currently going on in the country. There have been several complaints about
the Aadhar venues not being disabled-friendly, of people with disability getting turned
away, long hours of waiting to get registered and no facilities like washrooms etc.557
Resources
The analysis of the various of the budget documents of the Government reveals that there is
no allocation / mandate for maintaining budget statement on the expenditure incurred
towards ensuring and protecting the rights of persons with disabilities. Maintaining budget
statements on the expenditure incurred towards protecting and promoting the rights of
persons with disabilities is an important activity for the government in order to adhere to
the mandate of this article and will also become a check list on how much has been
allocated and spent on inclusive and specific expenditure for persons with disabilities. This
will lead to optimal utilisation of resources and allocation of resources for priorities. This is
also important in order to establish accountability on the part of the Government.
No specific allocation made towards the maintenance and reporting of disaggregated data
on the coverage of persons with disabilities in the various schemes and programmes of the
ministries and departments both at the Union and at the State Government levels558.
Recommendations
1. Disability laws should not only provide for the collection of inclusive and
comprehensive data, but also ensure the confidentiality of the information collected
by the Government, private sector, NGOs and individuals.
556
http://en.wikipedia.org/wiki/Unique_Identification_Authority_of_India) accessed on 23rd
October, 2011.
557
TV 9, 10th September, 2011.
558
Experience of the members of National Disability Network while preparing the budget analysis for
the parallel report.
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2. Comprehensive disability data (gender segregated, inclusive of children, coverage of
all disabilities) should be collected and maintained by all relevant Ministries for all
their development schemes and programmes. Aggregate data should be easily
available for people to evaluate, analyse and assess so that the impact of various
programmes can be determined and for future planning.
3. Various institutes involved in data compilations and analysis should be given the
tasks of analysing disability disaggregated data, reviews, and compilations so that
short term, medium term and longitudinal impact on lives of people with disabilities
is understood, for rational policy making and resource allocations.
4. NSSO should ensure better enumeration of disability in the upcoming Survey.
Involvement of leaders of disability is important to ensure an improved methodology
and disability question.
5. Aadhar venues should be made disabled-friendly and people with disabilities should
be given priority for registration. The officials should be sensitised to the needs of
person with disabilities.
6. Greater awareness should be ensured for the next Census to ensure better
enumeration.
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Article 29: Participation in Political and Public Life
States Parties shall guarantee to persons with disabilities political rights and the opportunity
to enjoy them on an equal basis with others, and shall undertake:
(a) To ensure that persons with disabilities can effectively and fully participate in
political and public life on an equal basis with others, directly or through freely
chosen representatives, including the right and opportunity for persons with
disabilities to vote and be elected, inter alia, by:
i. Ensuring that voting procedures, facilities and materials are appropriate, accessible
and easy to understand and use;
ii. Protecting the right of persons with disabilities to vote by secret ballot in elections
and public referendums without intimidation, and to stand for elections, to
effectively hold office and perform all public functions at all levels of government,
facilitating the use of assistive and new technologies where appropriate;
iii. Guaranteeing the free expression of the will of persons with disabilities as electors
and to this end, where necessary, at their request, allowing assistance in voting by a
person of their own choice;
(b) To promote actively an environment in which persons with disabilities can
effectively and fully participate in the conduct of public affairs, without
discrimination and on an equal basis with others, and encourage their
participation in public affairs, including:
i. Participation in non-governmental organisations and associations concerned with
the public and political life of the country, and in the activities and administration of
political parties;
ii. Forming and joining organisations of persons with disabilities to represent persons
with disabilities at international, national, regional and local levels.
NCPEDP & DEOC SURVEY FINDINGS
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Upto 85% of persons with disabilities were dissatisfied or extremely dissatisfied with the
outcomes of the right to political participation in their lives. Upto 12% were satisfied or
extremely satisfied, and 2% did not know much about the issue.
International obligations
The UNCRPD Monitoring Committee has directed different countries, that the State parties
should introduce review electoral codes and to introduce the necessary amendments to
bring it into line with the standards set forth in the Convention, particularly with respect to
legal capacity; to adopt measures to guarantee the right of universal, secret suffrage; enact
legislation restoring the the capacity of persons with disabilities to vote and exercise choice;
to ensure that all aspects of voting in an election are made accessible to all citizens with a
disability, including voting information in all accessible formats; to adopt measures to
ensure that such persons can run for public office; to increase opportunities for the political
and social participation of organizations of persons with disabilities; to ensure that
institutionalized persons, those subject to judicial interdictions, vulnerable individuals with
disabilities have access to the polls; provide trainings and supports required; repeal
provisions that allows the denial of the right to vote based on individualized decisions taken
by a judge.
Constitutional guarantees and disqualifications
The democratic system in India is based on the principle of universal adult suffrage; that any
citizen over the age of 18 can vote in an election (before 1989 the age limit was 21). The
right to vote is irrespective of caste, creed, religion or gender. “There has been a general
increase in the number of people voting in Indian elections. In 1952 61.16 per cent of the
electorate voted. By 1996 the turnout for the general election was 57.94 per cent. There
have been even more rapid increases in the turnout of women and members of the
scheduled castes and scheduled tribes, who had tended to be far less likely to participate in
elections, and voting for these groups has moved closer to the national average” 559.The
turnout has increased to 59.7% in 2009 560.
559
560
http://www.indian-elections.com/electoralsystem/electoralroll.html
http://en.wikipedia.org/wiki/Indian_general_election,_2009
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There are a variety of provisions in law and rules that protect the right to vote for people
with physical disabilities, visual impairments and / or ‘infirmity’, among others, including
Section 21(2)(g) of the Representation of the People Act of 1951; Conduct of Elections Rules
of 1961; and other. A personal assistant to a blind person will be allowed to go in to assist
the blind person to vote. An officer may help such a person to cast his or her vote. Physically
challenged electors may be given priority of entry to the polling booth. Avoidance of
inconvenience to the elderly and other persons with disabilities is also provided for.
Article 326 of the Constitution of India mentions that people with “unsoundness of mind”
cannot be registered as a voter. Articles 102 (b) and 191 (b) of the Constitution states that a
person would be disqualified for being chosen as, and for being, a member of either House
of Parliament, Legislative Assembly or Legislative Council of a State “if he is of unsound
mind”.
BOX ITEM
“The words “Unsound mind” have been adopted in several statutes, and sometimes
indiscriminately used to signify, not only lunacy, which is ‘periodical madness’, but also
‘permanent adventitious insanity’ as distinguished from ‘idiocy’. The term ‘unsound mind’
seems to have been used in those statutes in the same sense as ‘insane’; but they have been
said to import that the party was in some such state as was contra distinguished from idiocy
and from lunacy, and yet such is made him a proper subject of a commission to inquire of
‘idiocy’ and ‘lunacy’” 561.
Right to political participation in existing disability laws
The Disability Act, 1995, does not cover most civil and political rights, and does not
specifically mention ‘political participation’ of persons with disabilities. Clause 46 provides
for ‘Non-discrimination in the built environment’ which would include polling booths.
The National Trust Act, 1999 andThe Mental Health Act, 1987 has no mention of political
participation; and no provision to ensure that persons with mental illness, especially those
561
http://www.lawyersclubindia.com/forum/What-is-unsound-mind--9608.asp#.UOatVuRJOQ0
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confined in Mental Health Facilities, are allowed to vote freely 562. Both these laws however
are built on the diminishing or no legal capacity, and no conditions are set on recognizing or
restoring legal capacity. There are no review processes of restoration of those constitutional
rights. Therefore, we may infer that through these laws, when people are rendered
incapable, or institutionalised, or placed under guardianship, those persons lost their right
to political participation.
Under the new Rights of Persons with Disabilities Bill, Section 32 recognises the right of
persons with disabilities to political participation. While this section makes provision for the
right to vote, the Bill does not address the rights of persons with disabilities to stand for
elections. This needs to be addressed in light of the Representation of Peoples Act, 1950 and
1951 as well as the Mental Health Act, 1987.
Right to political participation on equal basis with others
Women, even though they have had the right to suffrage from 1930 onwards, have not
been participating in political processes due to a variety of attitudinal, social, economic and
other reasons. A Women’s Reservation Bill and Uniform Civil Code have been languishing for
years before the legislature563.
Barriers to full enjoyment of rights under Article 29 under incapacity laws
Other laws like the Representation of Peoples’ Act, 1950 and some State laws bar people
with disabilities from participating and holding public offices. The Panchayati Raj Act, 1994
of Tamil Nadu bars persons with “unsound mind” or “deaf mute” to contest in the elections.
Persons with “unsound mind” are not allowed to form organisations/associations as per the
Contract Act, 1872. And, according to The Indian Trusts Act, 1882, a trust may be created by
every person “competent to contract”. In addition, it says, “every person capable of holding
562
‘Analysis of the Mental health care Bill of 2010 in the light of the CRPD’. Prepared by Rahul
Cherian, Inclusive Planet and Center for Law and Society, Chennai, for purpose of the UN CRPD
Monitoring Report, supported by NCPEDP / NDN.
563
http://blogs.reuters.com/india/2013/01/21/women-voters-in-india-want-to-stand-up-and-becounted/, accessed 04-12-2013
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property may be a trustee; but, where the trust involves the exercise of discretion, he
cannot execute it unless he is competent to contract.”
Several provisions in laws prevent the full political participation of persons with disabilities
in public office, including, Sikh Gurdwaras Act of 1925; Indian Veterinary Council Act of
1984; National Bank for Agriculture and Rural Development Act of 1981; The Assam
Reorganisation (Meghalaya) Act of 1969; Representation of the People Act of 1950; The
Indian Council of World Affairs Act of 2001 and other. Legislations relating to
disqualifications at higher level of employment such as Directorship, Board Membership,
etc. are discussed in Article 27. These laws have to be reviewed and amended to ensure its
compliance with the CRPD.
Barriers to full enjoyment of right under Article 29
A major movement led by the Disabled Right Group (DRG) in 2004 led to a Supreme Court
Order for making voting accessible for persons with disabilities which led to the creation of
ramps, Braille in Electronic Voting Machines (EVMs), separate queue for persons with
disabilities etc. However, 85% of the respondents are still dissatisfied, which indicates there
are still many issues with respect to participation in political and public life for persons with
disabilities. At the ground level, these changes have not been implemented in many of the
polling booths.
BOX ITEM
The voting procedures have been made accessible to an extent in India because of
continuous advocacy by the disabled rights activists in the country. A sustained campaign
was initiated by NCPEDP and the Disabled Rights Group (DRG) in 2004 before the General
Elections. Several letters and faxes were sent to the Election Commissioner; rallies and
protests were organised; the media was mobilised; petitions were sent to policy makers
including the President of India. When these efforts didn't yield the desired result, Mr. Javed
Abidi, Convenor, DRG, sat on a fast-unto-death. The then Chief Justice of India took suo
moto notice and converted a letter sent to him by DRG as a writ petition and issued a
favourable Order to make voting accessible for persons with disabilities.
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On 19th April 2004, the Supreme Court (SC) passed an Interim Order for the State
Governments to provide wooden ramps in all polling booths across the country for the
second phase of elections, and without fail in the last two phases on 5th May and 10th May.
The SC took into account the difficulties faced by the physically challenged in approaching
the polling booths to cast their votes. The Supreme Court also ordered that, for all future
elections starting from September 2004, Braille labels giving the names and numbers of
candidates should be on all Electronic Voting Machines (EVMs).564
BOX ITEM
I wish to share with you all, the fabulous experience I had yesterday while casting my vote,
right from the entrance, the polling staff including the security personnel were very much
cooperative and well trained, they all helped me a lot, the security personnel allowed me to
enter in the booth and cast my vote out of turn despite there was a long queue outside. The
presiding officer has offered me a seat and then gave me a dummy ballet paper in Braille to
read, it was in both Hindi and English, then he himself took me to the other poll officials for
another formalities and lastly he left me alone in the chamber where the EVMs were placed.
As there were 40 candidates from my New Delhi constituency, there were 3 machines
labelled with serial numbers in Braille, after casting my vote successfully, the presiding
officer took me to my friend, accompanying me who was waiting outside.
In short, I can say that it was a very nice experience, which I did never imagine, it was my
first independent voting in the last 10 years since I became blind, thanks to the Election
Commission, Supreme Court and disability rights activists who have made it possible. Thanks
and regards. –Manoj from Karnataka
Nandini (35) was one among scores of visually impaired persons, who had been looking
forward to this “historic election”, ever since the Supreme Court ordered in 2007 making it
mandatory to make elections disabled-friendly. However, she was disappointed to find that
at her polling booth in Laxmi Memorial School at Lingarajpuram there was no Braille564
Accessible General Elections in India Website, NCPEDP and DEOC, Supreme Court Order, accessed
at
http://sites.google.com/site/accessibleelections/facilities-for/supreme-court-order on 7th
September 2011.
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enabled stickers or dummy ballot papers. A dejected yet angry Ms. Nandini was forced to
request her relative to vote on her behalf, as she had done in the past. -‘Visually Challenged
Person finds it tough’, The Hindu, Bangalore 24th April 2009.565
Madhya Pradesh
Booths in Bhopal were completely accessible for blind people. All the 1078 booths of Bhopal
had Braille stickers in the EVMs. The staff was thoroughly trained and were very polite. The
list of all the candidates in Braille was also available. There was adequate coverage in
television, radio and newspapers regarding the facilities for the blind in the election. - Rohit
Trivedi, ‘Accessible General Elections in India’, NCPEDP and DEOC.566
Disability continues to remain a ‘special’ issue in the election manifestos of the political
parties. It is not included in other development issues and programmes meant for people
from under-privileged, disadvantaged and minorities backgrounds. It is also to be note that
the websites of the political parties are accessible and adhere to the webaccessibility
standards. The process of campaigning was never accessible.
While there is 33% reservation for women in the Gram Panchayat and Municipal Elections,
there is no reservation for people with disabilities in the local bodies or in Assemblies and in
the lower and upper houses of Parliament. There are no mandates for nominating members
for representing persons with disabilities, like it is in the case of Anglo Indian Community in
the Lower House.567 Twelve people are nominated by the President of India in the Upper
House of Parliament, none of whom have been from the disability sector. In short, there has
not been any proactive effort on the part of the Government to ensure representation of
persons with disabilities in the Parliament or local bodies.
BOX ITEM
565
Accessed at
http://www.hindu.com/2009/04/24/stories/2009042456920400.htmon 7th September
2009.
566
Accessed at http://sites.google.com/site/accessibleelections/experience on 7th
September 2011.
567
In Lower House, no more than two members from Anglo-Indian community can be nominated by
the President of India if he or she feels that the community is not adequately represented.
Parliament of India, Wikipedia,
http://en.wikipedia.org/wiki/Parliament_of_India accessed on 8th September 2011.
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“Persons with disabilities do not have equal access in society to services, including
education, employment, health care, transportation, political participation or at times
justice. This is an occasion to acknowledge the dignity and rights of Persons with Disabilities
and to re-dedicate ourselves to their empowerment” 568.
While laws and provisions may be changed, the ground level reality within legal practice and
societal attitudes continue to pose major problems to political participation, as illustrated
below:
BOX ITEM
In a High court case569 which will have far reaching implications for the right to stand in
election, be elected and hold office. The Writ Petition prayed that Section 34(i) of the Tamil
Nadu Cooperative Societies Act of 1983 be declared null and void as far as visually impaired
persons are concerned; and consequently quash the election held in April 2013 as invalid;
and further prayers regarding the validity of the election. In this instance, the provision in
question relates the qualification that, any elected member to the Board must be able to
read and write in Tamil.
In an earlier case, the Supreme court had directed thus, in the context of Panchayat
elections:
Right to contest an election is neither a fundamental right nor a common law right. It is a
right conferred by a statute. At the most, in view of Part IX having been added in the
Constitution, a right to contest election for an office in Panchayat may be said to be a
constitutional right _ a right originating in the Constitution and given shape by a statute. But
even so, it cannot be equated with a fundamental right. There is nothing wrong in the same
statute which confers the right to contest an election also to provide for the necessary
qualifications without which a person cannot offer his candidature for an elective office and
568
http://www.indiatvnews.com/news/india/expedite-law-to-empower-disabled-president20079.html
569
Saravanan vs The Secretary To Government on 25 June, 2013, W.P.Nos.9391 &amp; 9723 of 2013,
Madras High Court, Judgment on 25-06-2013.
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also to provide for disqualifications which would disable a person from contesting for, or
holding, an elective statutory office.
The Madras High Court, reiterating a supreme court judgment on the issue, clarified:
Right to stand in election and hold office has been pronounced as not a right granted by the
Constitution, rather by statute. Further, if qualification is prescribed in a statute for a
particular office, then a disqualification can be contested in court. “A right to elect,
fundamental though it is to democracy, is, anomalously enough, neither a fundamental right
nor a common law right. It is pure and simple, a statutory right. So is the right to be elected.
So is the right to dispute an election. Outside of statute, there is no right to elect, no right to
be elected and no right to dispute an election. Statutory creations they are, and therefore,
subject to statutory limitation”.
The issue at hand, ‘qualification to read and write Tamil’ to be elected to the Board, the Hon
Bench noted that the petitioners had placed a thumb impression on the nomination forms,
even though they claimed to be able to read and write Tamil. The court noted their visual
impairment, however, did not provide condition of reasonable accommodations in this
regard, reading the above qualification literally. Even though being visually impaired is not a
disqualification, not providing reasonable accommodation in the matter of language, proved
to be a barrier to the enjoyment of the right to political participation.
Resources
No disaggregated data available on the allocations made for ensuring the process of
elections accessible for all persons with disabilities.
Recommendations
1. Amend the Representation of People’s Act, the Panchayat Raj Act, Co-operative
societies’ Acts and other legislations so that there are no further barriers to the
political participation of persons with disabilities in Lok Sabha, Rajya Sabha,State
Legislature and the Local Self Governance / Local Body Elections, and other statutory
body elections. Amendment should also include reservation of constituencies for
persons with disabilities.
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2. Accessibility and Universal Design must be ensured during the sessions of the
parliament, political meetings, campaigns including the provision of sign language
interpreters.
3. Disability laws should explicitly mention the right to participation in political and
public life for persons with disabilities.
4. The laws that discriminate against persons with disabilities vis-a-vis political and
public participation - for casting vote, standing for elections and holding public
offices, forming associations should be suitably amended as per the CRPD.
5. All related laws (Contract Laws, Partnership Laws, Trust Laws, Representation of
Peoples’ Act, etc.) should be reviewed and amended.
6. There should be a continuous effort on the part of the Election Commission to
improve accessibility of voting procedures and close monitoring should be done.
Postal voting, mobile booths, online voting, talking EVMs are some of the
suggestions received from voters with disabilities.570
7. Materials and information regarding election campaigns of various political parties
should be available in accessible formats.
570
Accessible Elections Website , NCPEDP and DNIS , accessed at
http://sites.google.com/site/accessibleelections/suggestions/suggestions-received on 8th
September 2011.
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Article 30
1. States Parties recognize the right of persons with disabilities to take part on an equal
basis with others in cultural life, and shall take all appropriate measures to ensure
that persons with disabilities:
a) Enjoy access to cultural materials in accessible formats;
b) Enjoy access to television programmes, films, theatre and other cultural
activities, in accessible formats;
c) Enjoy access to places for cultural performances or services, such as theatres,
museums, cinemas, libraries and tourism services, and, as far as possible, enjoy
access to monuments and sites of national cultural importance.
2. States Parties shall take appropriate measures to enable persons with disabilities to
have the opportunity to develop and utilize their creative, artistic and intellectual
potential, not only for their own benefit, but also for the enrichment of society.
3. States Parties shall take all appropriate steps, in accordance with international law,
to ensure that laws protecting intellectual property rights do not constitute an
unreasonable or discriminatory barrier to access by persons with disabilities to
cultural materials.
4. Persons with disabilities shall be entitled, on an equal basis with others, to
recognition and support of their specific cultural and linguistic identity, including sign
languages and deaf culture.
5. With a view to enabling persons with disabilities to participate on an equal basis with
others in recreational, leisure and sporting activities, States Parties shall take
appropriate measures:
a) To encourage and promote the participation, to the fullest extent possible, of
persons with disabilities in mainstream sporting activities at all levels;
b) To ensure that persons with disabilities have an opportunity to organise, develop
and participate in disability-specific sporting and recreational activities and, to
this end, encourage the provision, on an equal basis with others, of appropriate
instruction, training and resources;
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c) To ensure that persons with disabilities have access to sporting, recreational and
tourism venues;
d) To ensure that children with disabilities have equal access with other children to
participation in play, recreation and leisure and sporting activities, including
those activities in the school system;
e) To ensure that persons with disabilities have access to services from those
involved in the organisation of recreational, tourism, leisure and sporting
activities.
NCPEDP & DEOC SURVEY FINDINGS
As per the survey findings 83% were dissatisfied with the Governments efforts towards
promoting, protecting and ensuring participation of persons with disabilities in cultural life,
recreation, leisure and sports.
Constitutional and other legal safeguards
The Constitution of India in Article 29(1) recognizes that Any section of the citizens residing
in the territory of India or any part thereof having a distinct language, script or culture of its
own shall have the right to conserve the same.
The amendment to the Copyright Act 1957 allowing conversion of material into accessible
format. The text of the amendment is given below:
Section 52 (1)The following act shall not be an infringement of copyright, namely:
(zb) the adaptation, reproduction, issue of copies or communication to the public of any
work in any accessible format, by —
i. any person to facilitate persons with disability to access to works including sharing with
any person with disability of such accessible format for private or personal use,
educational purpose or research; or
ii. any organisation working for the benefit of the persons with disabilities in case the
normal format prevents the enjoyment of such works by such persons:
Provided that the copies of the works in such accessible format are made available to
the persons with disabilities on a nonprofit basis but to recover only the cost of
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production:
Provided further that the organisation shall ensure that the copies of works in such
accessible format are used by persons with disabilities and takes reasonable steps to
prevent its entry into ordinary channels of business.
Explanation: For the purposes of the sub-clause, “any organisation” includes an organization
registered under section 12A of the Income Tax Act, 1961 and working for the benefit of
persons with disability or recognized under Chapter X of the Persons with Disabilities (Equal
Opportunities Protection of Rights and Full Participation) Act, 1995 or receiving grants from
the Government for facilitating access to persons with disabilities or an educational
institution or library or archives recognized by the Government.571
Protection of right in disability legislations
The Disability Act, 1995, Clauses 44, 45 and 46 provides for ‘non-discrimination’ by removing
physical barriers. It mentions making adaptations in rail, buses, and aircraft and in all public
buildings to make them accessible to persons with disabilities. The Clause 43(c) on
Affirmative Action mentions preferential allotment of land at concessional rates for setting
up of “special recreation centres”.
The objectives of the National Trust Act, 1999, mentions, ‘to facilitate the realisation of
equal opportunities, protection of right and full participation of persons with disability’.
However, there is no specific provision in the Act related to participation in cultural life,
recreation, leisure and sport to ensure this objective.
The Mental Health Act, 1987, does not make any mention of right to culture, leisure,
recreation or sports; nor its proposed successor, the Mental Health Care Bill of 2013.
The National Sports Development Board of India, 2011 makes a cursory mention of
disability in terms of developing coaches for persons with disabilities and for increasing
participation of people with disabilities (Sections 1.4.2 and 1.4.4).
The National Policy for Persons with disabilities 2006 specifically mentions, ”Persons with
disabilities have right to access sports, recreation and cultural facilities. The Government will
571
http://inclusiveplanet.org.in/content/lok-sabha-passes-copyright-amendment-bill accessed on
10th January 2012
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take necessary steps to provide them opportunity for participation in various sports,
recreation and cultural activities.” The following steps will be taken to ensure equal
opportunities for sports, recreation and cultural activities: i.
Make places for recreation, cultural activities and sports, hotels, beaches, sports
arenas, auditoriums, gym halls, etc. accessible.
ii.
Travel agencies, hotels, voluntary organizations and others involved in organizing
recreational activities or travel opportunities should offer their services to all, taking
into account the special needs of persons with disabilities.
iii.
Identification of talent amongst persons with disabilities in different sports shall be
made with the assistance of local NGOs.
iv.
Formation of Sports organizations and Cultural societies for persons with disabilities
will be encouraged. There will be mechanism to support the participation of persons
with disabilities in national and international events.
v.
A national award for excellence in sports for persons with disabilities shall be
instituted.
The Deendayal Disability Rehabilitation Scheme as one of its approach and strategy has
establishing and supporting facilities for sport, recreation, leisure-time activities, excursions,
creative and performing arts, cultural and socially inclusive activities572.
The National Tourism Policy, 2002 does not include the concerns of persons with
disabilities. However, the Strategic Action Plan as of February 2011, Ministry of Tourism,
includes disabled friendliness of architectural sites and museums as the responsibility of
Archaeological Survey of India (ASI) and the State Governments. There are a few legislations
like The Ancient Monuments and Archaeological Sites and Remains Act, 1958.573
As per the Guidelines of Classification of Hotels under Ministry of Tourism it is necessary to
have specific accessible facilities, like at least one accessible room, for persons with
disabilities.574
572
http://socialjustice.nic.in/ddrs.php?pageid=8
Archaeological Survey of India website accessed at http://asi.nic.in/asi_legislations.asp on 15th
August, 2011.
574
http://tourism.gov.in/writereaddata/Uploaded/Guideline/070420120223855.pdf
573
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A new scheme was introduced during the XIth Plan Period called’ Scheme for sports and
Games for Persons with Disabilities’. The objective of the scheme is the following:

Grant for sports coaching and purchase of consumables & non-consumable sports
equipment for Schools

Grant for Training of Coaches

Grant for holding District, State & National level competitions for the disabled.
There is scheme of sports fund for pension to meritorious sports persons. Under this
scheme gold, silver and bronze medallists in the Para-Olympic Games are eligible for
monthly pension. This scheme does not ensure non-discrimination as the amount as
pension to Olympic, Commonwealth and Asian medallists is double what is awarded to
para-olympic game medallists.
There is also a scheme for awarding pensions for meritorious sportspersons by the Ministry
of Youth Affairs & Sports. This pension has been awarded to 525 sportspersons so far.
Disability disaggregated data could not be traced from the Ministry’s website. Table
presents the discriminatory practice of the Ministry under this scheme.
Particulars
Pension:
Olympic Pension:
games
Para-
Olympic games
In Rs
Gold medallists
10000/ month
5000/ month
Silver medallists
10000/ month
4000/ month
Bronze medallists
10000/ month
3000/ month
There are 19 schemes under the Ministry of Youth Affairs and Sports out of which only 2
schemes include persons with disabilities.
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Enjoyment of and barriers to Article 30
The Annual Report of Ministry of Culture has mentioned that “Arrangements for disabled
persons have been made in some of the Archaeological Site Museums. The facilities that are
being introduced are Braille plaques, wheelchairs, specially designed toilet facilities at some
Archaeological Site Museums, for example, Hazarduari Palace Museum.”575
In the Nehru Memorial Museum & Library, 200 copies of Nehru’s Letter from a Father to his
Daughter, in Braille have been printed. The Museum, Planetarium, Library and Annexe
buildings have also been made accessible to persons with disabilities through suitable
ramps. Disabled-friendly toilets have been constructed in the Planetarium and Library
buildings and a Cyber room for persons with disabilities in the Library has been made
functional for Academic Activities.576
In Khuda Bakhsh Oriental Public Library, the Library has established a separate Braille
Section.and the Library is also getting constructed a ramp for readers on wheel chairs.577
The National Museum Institute has installed monograms, signs and Braille inscriptions to
make objects in the museum blind-friendly. The main passages, ramps, and galleries have
also been reworked so that they are barrier-free. They also held an art workshop for
mentally challenged children.578
There have been numerous programmes such as workshops, exhibitions, competitions etc.
for children with disabilities in the Science Centres of the National Council of Science
Museums. It has also been reported that 20,146 visitors with disabilities visited the Science
Centres during 2010-2011 (up to February26, 2011)
575
Source:Annual Report, Ministry of Culture, 2010-11.
Source page 309, Annual Report, Ministry of Culture, 2010-11.
577
Source page 310, Annual Report, Ministry of Culture, 2010-11.
578
National Museum Turns “disabled-friendly”, Neha Alawadhi, The Hindu, 1st March 2011, accessed
at http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/article1499536.ece on 19th
October, 2011
576
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The national broadcaster, Doordarshan has a weekly sign language bulletin.579 Private
channels do not have either captioning or sign- language interpretation. And the same is the
case with movies shown in theatres.
Most places of worship are not accessible for persons with disabilities. Wheelchairs,
callipers, crutches are all not allowed in places of worship in India. A handful of places,
however, keep their own wheelchairs and attendants.
Sports competitions at district level were conducted in 152 districts and at State level in 31
States during 2011-12. Further, National Level Games for Persons with Disabilities for 201011 were held at Chennai from 17-22 February 2012.580
BOX ITEM
In lieu of an upcoming international workshop on the CRPD and persons with psychosocial
disabilities, we visited a dozen hotels of international quality in the vicinity of Pune city. Only
one had a single mandatory ‘accessible’ room, as well as accessible lift and passageway to
reach the room. Another had an ‘accessible room’ but the passageway to the lift and the lift
itself was inaccessible. In a third, we could not even enter the hotel entrance, as they had
only a stairway to the lobby. Most others were inaccessible, other than having a ramp into
the entrance. - Bhargavi Davar and Shivani Gupta
Resources
Under the scheme for Sports and Games for Persons with Disabilities, the Ministry of Youth
Affairs & Sports provides assistance to National Sports Federations dealing with persons
with disabilities such as Paralympics Committee of India (PCI), Special Olympics Bharat
(SOB) and All India Sports Council for Deaf (AISCD), under the Scheme of Assistance to NSFs
for conducting National Championships and international tournaments abroad, organizing
579
580
http://uncrpdindia.org/achievements/captioned-news/ accessed on 14 February 2013
http://pib.nic.in/newsite/erelease.aspx?relid=87517 accessed on 5th January 2013
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national coaching camps, procurement of sports equipment, engagement of foreign coaches
etc.581
The Table below indicates the funds released to the various National Sports Federations
Name of Federation
2009-10 in lakhs
All India Sports Council for 24.0
2010-11 in lakhs
2011-12 in lakhs
47.65
75.83
221.39
77.77
12.00
285.89
the Deaf
Paralympics Committee of 142.83
India
Special Olympic Bharat
3.81
The financial performance under the Scheme during the XIth Plan is as in the in the
following table:
Year (Rs in crore)
Allocation
for
sports Total
outlay
of
the %
among disabled persons Ministry
In crores
In crores
2009 -10
0.74
3670.13
.02
2010-11
5.96
2841
0.2
2011 – 12 (RE)
3.85
999.0
0.38
2012 – 13 (BE)
5.00
1152
0.4
Clearly the funds allocated are less than the mandated 3% .
Recommendations
1. The Disability laws should clearly mention cultural rights for persons with disabilities
as per CRPD.
581
Source: http://pib.nic.in/newsite/erelease.aspx?relid=87517 accessed on 5th January 2013
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2. The Sports Bill which is being formulated should ensure disability sports is given due
recognition and should ensure accessibility of sporting venues and services.
3. The other laws relating to media, copyright, etc. should be reviewed to ensure that
they are compliant with the CRPD.
4. Measures should be taken to ensure sustained development of artistic and
intellectual potential of persons with disabilities by having separate cells in the
Ministries of Sports, Culture and Tourism with adequate human and financial
resources.
5. Sports Infrastructure - venues, gymnasiums, swimming pools etc.- should be made
disabled friendly so that sports persons with disabilities can also use them. Separate
infrastructure should also be made, if required.
6. Cinema halls, theatres, galleries, exhibition grounds, parks, playgrounds, places of
worship etc. including the ones owned by private and non-profit organisations
should be made accessible.
7. Captions and audio descriptions should be mandated for all films produced in the
country.
8. All television channels, including those privately owned should provide captions and
audio descriptions.
9. News channels should have sign language interpretation throughout the day.
10. Scholarships to be provided to people with disabilities who want to pursue arts or
sports as careers.
11. Government funding should be provided for sportsperson and artists to participate
in national and international events.
12. Exchange programmes should be organised for promoting disability sports and arts.
13. Sports persons and artists who have achieved success should be rewarded and
recognised on an equal basis with others and the discriminatory policy of giving
lesser pension to award winning para-olympians should revoked immediately.
14. Bring in transparency and involvement of people with disabilities in sports
organisations.
15. Sign language should be recognised as an official language in the country.
16. Concerted effort should be made to develop the Indian Sign Language and to
promote it widely so that even non-disabled people also learn and use the language
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17. Research on disability theatre, art, literature and culture
18. Making all the policies and schemes of all the concerned Ministries inclusive with
required measures and affirmative action to promote rights of persons with
disabilities on an equal basis with others.
19. Adequate funds should be allocated by the respective Ministries for all the above.
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Article 31
Statistics and Data Collection
1. States Parties undertake to collect appropriate information, including statistical and
research data, to enable them to formulate and implement policies to give effect to
the present Convention. The process of collecting and maintaining this information
shall:
a) Comply with legally established safeguards, including legislation on data
protection, to ensure confidentiality and respect for the privacy of persons with
disabilities;
b) Comply with internationally accepted norms to protect human rights and
fundamental freedoms and ethical principles in the collection and use of
statistics.
2. The information collected in accordance with this article shall be disaggregated, as
appropriate, and used to help assess the implementation of States Parties'
obligations under the present Convention and to identify and address the barriers
faced by persons with disabilities in exercising their rights.
3. States Parties shall assume responsibility for the dissemination of these statistics and
ensure their accessibility to persons with disabilities and others.
NCPEDP & DEOC survey findings
The DEOC survey showed that 78% of people surveyed were dissatisfied with the census
efforts, 20% were satisfied, and 1% did not know much about the issue. Compared to efforts
by the government on other CRPD articles, the census effort elicited higher level of
satisfaction.
International Obligations
The UNCRPD Monitoring committee has regretted the low level of disaggregated data and
publicly report on persons with disabilities (Australia, Spain, Tunisia, other), recommending
a nationally consistent measure for data collecting and reporting based on human rights
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model (Paraguay); a comprehensive assessment and baseline of the situation of children,
girls and women with disability (Australia, Austria); violence, abuse against children; report
back on progress made (Austria); incorporate disabilities in the next census (El Salvador);
review and modify the assessment criteria in issuing the disability certificate in line with the
CRPD (Paraguay); systematize data collection, analysis and dissemination, especially of
persons with disabilities subject to multiple forms of exclusion (Argentina); capacity building
to track the intersectionality, taking into consideration the changeover from a medical to a
human rights model of disability (Argentina, Hungary); review the secrecy laws and revise to
make data accessible; provide data on numbers of women with disabilities sterilized or
number of involuntary commitments (China); nature and characteristics of indigenous
people (Roma) with disabilities (Hungary); develop indicators for monitoring and reporting
(Peru, Spain)582.
The recommendations for disaggregated data have come up not only in the case of persons
with disabilities, but also in the case of caste and gender based discrimination. For example,
a UPR recommendation from the OHCHR in 2008, was recommendation No. 5: ‘Maintain
disaggregated data on caste and related discrimination’ (Canada, Belgium, Luxembourg).
Similarly, the Committee for Economic, Social and Cultural Rights requested Indian
government to submit, in its next periodic report, ‘updated annually collected co-operative
data disaggregated by sex, age, caste, ethnicity, religion and region regarding all provisions
in the Covenant, paying particular attention to the disadvantaged and marginalized
individuals and groups’ 583.
Constitutional safeguards, disability laws and other statutory provisions
Not known whether there are such constitutional provisions or safeguards and if there is
constitutional jurisprudence in this regard.
582
http://www.internationaldisabilityalliance.org/en/compilations-made-ida, accessed 01-12-2013
Consideration of Reports submitted by states parties under articles 16 and 17 of the Convenant.
Concluding observations of the Committee on Economic, Social and Cultural Rights: India. Fortieth
Session, 28 April – 16 May 2008, E/C.12/IND/CO/5, 8th August 2008.
583
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Disability Laws do not specifically mention about data collection. However, the Mental
Health Act, 1987 has a mention regarding confidentiality of the information collected from
the patients.
The Census Act 1948 & the Collection of Statistics Act 2008 have no mention on coverage
and inclusion of persons with disabilities.
Statistics and data collection is left to a variety of institutions and commissions in public
administration, often serving the government in advisory status, making this function a part
of the administration and bureaucracy, rather than a right in itself.
The Census Commission, under the Ministry of Home Affairs, and the National Sample
Survey Organisation (NSSO) under the Ministry of Statistics and Programme
Implementation, collect data to support policy making and resource allocation, including
disability data.
Barrier to participation
Having reliable data relating to a variety of life domains covered by the CRPD is the first vital
step towards full and effective participation in Development process, political participation
and protection under the state’s parens patriae functions. However, as repeatedly
evidenced in this report, passim, in each and every article, there are gaps in reliable and
accurate information with respect to persons with disabilities.
Flagship development programs of the country, in education, health, work and employment,
social security, protective mechanisms, redressal, and monitoring functions of the state, as
discussed in this report, there are noticeable gaps in having accurate data with respect to
persons with disabilities, including women and children.
Policy based on disability segregated data is seldom available in the country. The existing
policies do not mandate data collection with respect to persons with disabilities utilising
various services – health, legal, etc.
The data is maintained by the Government for
programmes where there is reservation for persons with disabilities, like in the case of
employment or poverty alleviation schemes. Sometimes gender segregated data of
disability or data on children with disabilities is not maintained. Unless disability and gender
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segregated data of beneficiaries, allocation and utilisation of funds is collected, compiled,
maintained, updated, shared and disseminated diligently and appropriately, it would be
difficult to assess the impact of development programmes that should reach persons with
disabilities.
With respect to various civil political rights, protections and redress mechanisms, the
situation on data availability is the same.
There is no standard data collection and dissemination protocol applicable to all Ministries.
The data of persons with disabilities was available only till 2008 in the Publication of 2010
and in the Annual Report of Ministry of Labour and Employment, with respect to
employment exchanges (2011-12) 584.
In India, the disability movement was very actively involved in the Census of 2011.
The efforts put in by the Census Commission to measure and ensure better enumeration of
persons with disabilities can be considered as a progress in this area. The disability sector
approached the Census Commissioner, who gave his full support to ensure that the
disability question is given due attention and priority in the latest Census of 2011. The role
that the Ministry of Social Justice and Empowerment and Information and Broadcasting
played was however quite negligible.
The question: NCPEDP made a request to the Census Commissioner to allow the disability
sector to reframe the question on disability and to draft the guidelines of the enumerators’
manual for the same, which was agreed to by the government. A research on the disability
question was conducted by Diversity and Equal Opportunity Centre (DEOC) on NCPEDP’s
behalf. It was based on the disability question asked in 11 countries including developing
and developed countries, the question as suggested by the Washington Group and the
question based on United Nations Convention on the Rights of Persons with Disabilities.
After a day long discussion and a war of words and with options not to exceed more than
584
Page 44 and 27, Performance of Employment/Special Employment Exchanges for Physically
Handicapped 1999-2008, Employment Exchange Statistics, 2010, Ministry of Labour and
Employment, New Delhi.
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nine, the participants of the Round Table were finally able to agree to a common question
585.
There was mixed feedback from the people regarding the enumeration of persons with
disabilities. Some enumerators asked the question and many had left it out.
BOX ITEM
“Our experience was pretty good. Both the teachers took time to explain the disability
question and also the various codes associated to classify different types of disability. They
had clear knowledge about this question and how by including all members in the family at
a country wide level some policy changes could happen. I do hope the same level of
awareness and interest exists in rural India as well.”-Annice Paul
BOX ITEM
“Census enumerator came today. Incidentally I was at home. She never asked Question No.
9 which was on disability. Then I asked her about it and she said that she had just filled
Question 9 as ‘yes’. I told her to fill up 9 (b), which is on disability category! Well, looking at
my experience, I don’t think this census also we are going to have the right disability figures”
-Sowmya Simhan
NSSO conducts sample surveys on various aspects, including disability. The last survey on
disability (NSS 58th Round) was undertaken in 2002 586. The result of the NSS Survey was not
as good as than Census 2001 in terms of disability coverage, where, they used more
restricted criteria. Only 1.8% of the population was found to have disability.
585
Rohinee Singh, ‘Our Census, Our Future: Disability sector puts up a United Front’, Disability News
and Information Service (DNIS), April 01, 2010, Accessed at
http://www.dnis.org/features.php?issue_id=7&volume_id=7&features_id=173) on 21st October,
2011.
586
Punarbhava website; Accessed at
http://punarbhava.in/index.php?option=com_content&task=view&id=734&Itemid=540) on 28th
October 2011.
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The Unique Identification Authority of India (UIDAI) is an agency of the Government
responsible for implementing the Aadhar Scheme. It was established in February 2009.
Aadhaar is a 12-digit unique number which the UIDAI will issue for all residents in India. The
number will be stored in a centralised database and linked to the basic demographics and
biometric information – photograph, ten fingerprints and iris – of each individual
587.
The
enrolment is currently going on in the country. There have been several complaints about
the Aadhar venues not being disabled-friendly, of people with disability getting turned
away, long hours of waiting to get registered and no facilities like washrooms etc.588
Resources
The analysis of the various of the budget documents of the Government reveals that there is
no allocation / mandate for maintaining budget statement on the expenditure incurred
towards ensuring and protecting the rights of persons with disabilities. Maintaining budget
statements on the expenditure incurred towards protecting and promoting the rights of
persons with disabilities is an important activity for the government in order to adhere to
the mandate of this article and will also become a check list on how much has been
allocated and spent on inclusive and specific expenditure for persons with disabilities. This
will lead to optimal utilisation of resources and allocation of resources for priorities. This is
also important in order to establish accountability on the part of the Government.
No specific allocation made towards the maintenance and reporting of disaggregated data
on the coverage of persons with disabilities in the various schemes and programmes of the
ministries and departments both at the Union and at the State Government levels589.
Recommendations
1. Disability laws should not only provide for the collection of inclusive and
comprehensive data, but also ensure the confidentiality of the information collected
by the Government, private sector, NGOs and individuals.
587
http://en.wikipedia.org/wiki/Unique_Identification_Authority_of_India) accessed on 23rd
October, 2011.
588
TV 9, 10th September, 2011.
589
Experience of the members of National Disability Network while preparing the budget analysis for
the parallel report.
329
India - CRPD Monitoring Report, Civil Society’s Zero Draft, 2013
2. Comprehensive disability data (gender segregated, inclusive of children, coverage of
all disabilities) should be collected and maintained by all relevant Ministries for all
their development schemes and programmes. Aggregate data should be easily
available for people to evaluate, analyse and assess so that the impact of various
programmes can be determined and for future planning.
3. NSSO should ensure better enumeration of disability in the upcoming Survey.
Involvement of leaders of disability is important to ensure an improved methodology
and disability question.
4. Aadhar venues should be made disabled-friendly and people with disabilities should
be given priority for registration. The officials should be sensitised to the needs of
person with disabilities.
5. Greater awareness should be ensured for the next Census to ensure better
enumeration.
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