What are the Rights and Privileges of Disabled People in India

Affirmative Action and People with Disabilities: Echo of the unheard

By - Abhinav Bishnoi1*

“People with disabilities are vulnerable because of the many barriers we face: attitudinal, physical, and financial. Addressing these barriers is within our reach and we have a moral duty to do so...... But most important, addressing these barriers will unlock the potential of so many people with so much to contribute to the world. Governments everywhere can no longer overlook the hundreds of millions of people with disabilities who are denied access to health, rehabilitation, support, education, and employment—and never get the chance to shine.”- Stephen Hawkin  

Introduction:

Affirmative actions is a set of positive rules that are implemented in order to promote equality and equal opportunity among the equals and to eliminate discrimination[1]. Talking of India, there is a special provision for disabled people which is called, “Equal Opportunities, Protection of Rights and Full Participation” Act or PWD Act 1995 in which the term disability is defined as ‘a person suffering from not less than 40% of any disability as certifies by a medical authority’[2]. And there are around 21 million disabled people in India itself and thus it becomes important to know the right and privileges of them granted by the Government of India[3].

Now talking of the disabled people, who belong to the minority in India of whom affirmative action measures in social work education along with another field are long and overdue. It seems very much evident the way in which the disabled people treated in India and left unattended by the government and with superficial sympathy of the public. Disabled people can be termed as the minority class in many ways; they are matter to discrimination, biases and prejudice in the society. Many of the demands which they make are of the affirmative action from the government of India. The affirmative action must stand clear conceptualization of how and why this group is going to provide with special consideration. But every coin has two sides like India had drafted a bill to safeguard the interest of the disabled people which is now an Act. Not only the PWD Act, which is the primary and the foremost one, but the paper will also be discussing many other Acts as well bills which the Indian Government has passed or is in process. Which will ultimately help the disabled people to access the resources and get a better life through education, pension, concession, employment and many more.

Disability status is often being transitory or a matter of insidious to change to an individual. The ability of disabled/abled man/woman to function properly depends upon the social as well as the physical environment around him. NSS (National Sample Survey) is the one which brings in huge impact by collecting and providing data of the same in many aspects, and not only that but also these statistics are important to formulate a farther goal for the marginalized disabled people of India. So, the following paper will be dealing with the problems related to disabled people and with the help of many case laws one would be able to get a clearer picture of contemporary India with respect to disabled people’s contemporary situation while taking into consideration the past instances of the nation.

Overview:

     While talking of the affirmative action and the people with disabilities, the only picture that comes into mind is of the rights and privileges which are available to the disabled people of the nation. But also, another thing which is important is the plight and discrimination faced by the disabled people, mental atrocities which they face on daily basis, how they overcome that all and what should society do along with the government which proves to be effective in their help and providing a better life.  The paper starts with asking the fundamental question of what disability is legally mean in India and what are the privileges available to the differently disabled people and to what age, race or gender. What is an affirmation and how is it relevant and important to in this context. Why should people with disability be included in affirmative action? And what are the components of the affirmative action.

     Before looking that the question also comes is of about the gravity of the paper and topic itself. Why is it important and to what lot section of the society is it going to affect in total, for which a lot of statistical data will be taken into consideration for the explanation of the same. For the disabled people what is the government’s responsibilities and to what extent have they been successful in achieving the same. Not only at the national level but also at the international level what are the privileges available to the disabled people, what all UN forums and conventions have India signed and implemented. These are fundamental questions to which the paper will be providing the data.  

 

Issues Discussed

      The present accord is to protect, promote and ensure equal and fair enjoyment of the fundamental rights and freedoms by all the disabled people and not only this but also to promote and respect their dignity and integrity. Persons with disabilities include those people who are suffering from permanent or long-term impairment of mental, intellectual, physical or sensory organs, which all together hinders their full potential participation in the society. The case laws covered in this section covers heart ailments being considered within the scope of the law. Hearing impairment, a dwarf person being considered for inclusion in the term locomotor disabilities, any person with the speech disability or person with dyslexia being also be included within the preview of “Persons with Disabilities Act” 1995[4]. The following act is being described below ^[5]:

      Forestalling and early perceiving of disabilities under section 25, giving fairness in education under section 26, 27, 28, 29, 30 and 31, providing fairness in the recruitment of jobs as under section 32, 33, 34, 35, 37, 38, 39, 40, 41 and 47, giving affirmative action programmes in giving aids and support to disabled people and fair allotment of land at concessional rates for setting up businesses, establishment of any research centre or factories by the entrepreneurs, setting up of special schools, housing, with disabilities under section 42 and 43, giving justice by removing any sort of physical barriers as per under section 44, 45 and 46, giving research manpower development as per under section 48, and 49, setting up of institutions for disabled people as per under section 52 and giving social security to the people with disability as per section 56, 67 and 68 of the act.

In the case of Disabled Rights Group and Ors. vs. Union of India 2017^[6], the Supreme Court said that all those institutions which are engulfed by the duties and responsibilities provided as per Section 32 of ‘Rights of Persons with Disabilities Act, 2016’ therefore they should follow the provisions of Section 32 while giving admission to the students in the educational course of every year. They should also provide the list of a number of disabled students allowed in each course every year to the Chief Commissioner and/or the State Commissioner. UGC will be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. Basically, this case bought Section 39 which says that all the government institutions and other private institutes who are funded by the government shall not make the admission of the disabled people with less than 3% every year.  Section 31 of this act a right to access to free education to the children from the age group of 6 to 18 years but suffering from the benchmark disabilities. Section 32 of the act provides provisions for reservation in higher educational institutions. Then section 34 of the act makes a reservation in employment. ‘All the government institutes and the other institutes who are government-funded shall have admission of disabled people of no less than 5%.

In another judgment of case of Rajive Raturi v. Union of India and Ors.[7], very Supreme Court bench has conferred the power for making the provisions for the people with disabilities, although the scope of this very petition was very limited as it is only confined to the people who are suffering from the visual impairment related problems.

After India signed the UNCRPD (Convention on the Rights of Persons with Disabilities) in 2007^[8], the process was of enacting the new legislation in the place of the Persons with Disabilities Act, 1995, Mental illness was defined simply as “any mental disorder other than mental retardation.” The Act also adopted the approach of the social welfare in respect of the PWD Act 1995 and the focus was to improve the PWD Act by ways of prevention and early detection of disabilities, education and employment. This Act also provided disabled people with a right of 3% reservation in all Government jobs as well as educational institutions. So basically, the objective is to make a barrier-free situation for the disabled people.

In another landmark case related to the pension is of B.R. Malhotra vs. Union of India[9]  in which the Supreme Court said that Pension is not a bounty nor an award. It is a deferred wage. The respondent cannot deprive appellant nor can make him suffer his rightful due to receive a disability pension, injury which accrued to him one year ago, while he was on duty and suffered the injury attributable to military service. Though he took voluntary retirement he still holds the right to get a pension as the court said. Hence, Rule 50 of the Pension Regulation is discriminatory, and the appellant received the pension.

Sambhavana vs. University of Delhi[10] the Supreme Court held special guidelines for the visually impaired students like different curriculum, mode of teaching, transport facilities, special tutorials arrangement and way of accessing resources of the university or schools (which are either government or government-funded).

Policy Implications

So as per the survey in 2011, out of 121 Cr population, about 2.68 Cr people were suffering from a disability, which is the 2.2% of all population of India. So, in the era of ‘Inclusive development’ is being emphasized as one of the foremost right paths toward the development which sustains and focused approach and initiative towards the welfare of the disabled people. 

Defining disability of the population with disabilities is a vital component in data collection. Though there is no one definition which could be adopted universally, of disability what constitutes to be disabled is disability itself or recognized by law. Disability is the outcome of the disabled person's health condition’s interaction with the environment created by others.

There are various other campaigns run by the Indian Government, like ‘Accessibility India Campaign’ 2015 which target at creating an infrastructure in a physical and virtual context that would actually be accessible by the disabled people and provide with inclusive growth. It is to make all the government building at least accessible to even to disabled people, by providing measures and a barrier-free environment.

UDID Project is another example where the ‘Unique ID’ for the disabled person will be provided in order to have a single national database for the marginalized group. With a proper implication of policies which would be provided directly to them. It will be a clear mechanism for the problem of disability. Certificates will be provided to the disabled people besides assisting the concerned authority to verify the authentication of them for a proper implication of their special laws and provided benefits.  

National Handicapped Finance and Development Corporation (NHFDC) and Artificial Limbs Manufacturing Corporation of India (ALIMCO) are the other two central level policies that would be beneficial in the implication of the union policies and eradicating the disabled people problems. One is by providing the finance and other is by providing the medical assistance, that too at marginalized cost.

National Fellowship for Students with Disabilities (RGMF), ‘Pre-Metric scholarship and Post Metric Scholarship’ for disabled students and ‘National Overseas Scholarship’ for students with disabilities are the schemes of Indian Central Government in order give the disabled students with the benefits of accessing the education even at higher levels. They provide the financial support to the disabled students[12]. 

 

Relation with Economic Development

The economic development is related to the development of disabled people. Disability cannot only be the dependency on the nation, they, if worked properly with them could be resourceful and help in providing the ultimate results for the society at large. The thing is that we need to look upon the disability, not as a problem but a way to enhance economic development. Taking the example of one of the great scientists of all time Stephen Hawking, who despite being affected from amyotrophic lateral sclerosis been able to make a significant impact to the world by providing very important theories in the field of physics and cosmology.

  Therefore, the important thing is that the rights must be granted to the disabled person. Right to pension is an example to it.  In Chander Kishore Joshi v. DRDO 2002, it was held that 3% reservation of the disable people must be in government jobs. Whereas, in the case of Union of India v. Jagmohan Sinha, 2008 it was held that the promotion of disabled people must also be reserved at the rate of 3%. It is also seen that the condition of the disabled people can also be seen through the growth in the economy of a nation. Therefore, greater the nations economy would be the more the better condition for the disabled people be witnessing in the country.  

 

Regulatory & Legal Environment

 As per section 2 (1) of ‘Persons with Disabilities Act’, 1995^[13], "disability" includes blindness in 2(b), low vision in 2(u), leprosy cured in 2(n), hearing impairment in 2(l), locomotor disability in 2(o), mental retardation in 2 (r) and mental illness in 2 (q) of the following Act. However, not many disabled people know about the rights they deserve and provided by the government but also, they are far behind to get them due to lack of awareness programmes. Then there are a few basic rights that a Person with Disabilities are entitled to: 

1) Disability Certificate, it is being given by the central government to any person has more than 40% disability. The concerned person can go to the nearby hospital and get a complete checkup by a certified doctor. The certificate then given by the government is valid for 5 years and then must be renewed. It is a basic certificate to avail government benefits and concessions, and it is been issued by the State Medical Boards established under the State or Union Government.  

2) Train Concession, disabled people are entitled to a certain concession on the rail ticket the only thing is that they must have a photo ID card to avail this benefit. This ID card is being issued by the Divisional Railway manager with all the required documents.  

3)Disability Pension, so the people who are above 18 years of age and are suffering from more than 80% disability and are living below the poverty line are very much entitled to the Indira Gandhi National Pension Disability Pension Scheme. And, various NGOs are dedicated to this Nobel cause. 

4)Legal Guardianship Certificate, people with certain disabilities as specified like: mental retardation, cerebral palsy etc. are in a special position and may not be able to take an important decision once they become adult. He/she should have completed 18 years of age and then can make any other normal person as his or her guardian for taking decisions on his or her behalf. 

5) Income Tax Concession, under section 80DD and 80U of the Income Tax Act 1961, disabled are entitled to claim certain concessions. 

6) Employment, in the government jobs disabled people have 3% reservation, 

7) and not only this, but also there are many rights and privileges available to disabled people; like for say “The Mental Health Act 1987”, “The Rehabilitation Council of India Act 1992” and “The National Trust for Welfare of Persons with autism, cerebral palsy, mental retardation and multiple disabilities Act 1999”. “The Right of Persons with Disabilities bill 2014, which is the enhancement of the Persons with Disability Act, 1995” is still pending in the Upper House of the Indian Parliament. The following bill proposes several sections for empowering fundamental rights of the people with disability. Like the bill is up for introducing 19 categories of disabilities instead of the contemporary 7 types[14].

Conclusion

At the end of the paper, I would like to conclude that the condition of the disabled people is still not up to the mark which a 6^th largest economy of the world should be making. But still, in developed cities, we could see the assistance for the disabled people is well good enough but cannot be said the same for the far located areas. Central government as we could see through many instances of the paper is doing its best to curtail the problems faced by the disabled people and by making them access every other thing as a general man could do. National Awards for the Empowerment of Persons with Disabilities, 2014 is a centre level occasion at which the central government’s Ministry of Social Justice and Empowerment of Persons with Disabilities on individuals, district, state etc, for their outstanding work on providing assistance and help to the disabled people, through which they could empower them. These national awards are given in 14 categories.

It becomes important to realize that the problems like political, economical issues need to remove as disability is connected to it in many ways. It is an important way left for us to make ‘Disability Right’ a reality in the contemporary world[15]. There must also be the active participation of the disabled people in making policies and process related to their lives. It becomes vital to involve and create a sense of importance to them as well. As a human it becomes not merely a responsibility for the government but also for each individual to make a change in the society by providing the disables with the basic human rights. The time is to change our attitude towards them and make the world a better place for them to live as well. Let us take care of all human being as a human being and treat everyone equally irrespective of the differences and also let them all participate in the mainstream of society. 

Also read - Violence Against Women: Introduction

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1* III Year, B.A.LL.B(Hons), Institute of Law, Nirma University.

[1] https://www.disabledperson.com/affirmative-action-pwd  28-10-18, 7 pm

[2] Disability and the Law, Rajiv Raturi and Mallika Iyer, Universal Law Publishing Co. 28-10-18, 7:30 pm

[3] http://censusindia.gov.in/Census_And_You/disabled_population.aspx  28-10-18, 8:30 pm

[4] http://www.disabilityaffairs.gov.in/upload/uploadfiles/files/PWD_Act.pdf Persons with Disabilities Act  29-10-18, 7pm

[5] “India Moves Towards Equal Rights for Disabled People.” BMJ: British Medical Journal, vol. 310, no. 6994, 1995, pp. 1556–1556. JSTOR, JSTOR, www.jstor.org/stable/29727610.  29-10-18, 4pm

[6] Disabled Rights Group and Ors. vs. Union of India (UOI) and Ors. (15.12.2017 - SC) 29-10-18, 10pm

[7] Rajive Raturi v. Union of India and Ors. (Writ Petition (C) 243 of 2005 with Anr.) 30-10-18, 5pm

[8] Hutchins, Trova K. “Affirmative Action for the Physically Disabled In Social Work Education.” Journal of Education for Social Work, vol. 14, no. 3, 1978, pp. 64–70. JSTOR, JSTOR, www.jstor.org/stable/23038832. 30-10-18, 6pm

[9] B.R. Malhotra vs. Union of India (12.11.1997 - DELHC) 30-10-18, 8pm

[10] Sambhavana vs. University of Delhi (29.05.2013 - SC) 30-10-18, 9 pm

[11] http://mospi.nic.in/sites/default/files/publication_reports/Disabled_persons_in_India_2016.pdf ministry of Statistics and Programme Implimentation. 30-10-18, 10pm

[12]  http://mospi.nic.in/sites/default/files/publication_reports/Disabled_persons_in_India_2016.pdf ministry of Statistics and Programme Implimentation. 30-10-18, 10pm

[13] Jeffery, Roger, and Nidhi Singal. “Measuring Disability in India.” Economic and Political Weekly, vol. 43, no. 12/13, 2008, pp. 22–24. JSTOR, JSTOR, www.jstor.org/stable/40277275. 31-10-18, 6pm

[14] https://www.lawfarm.in/blogs/rights-of-disabled-persons-in-india   31-10-2018, 7pm

[15] Disability Laws in India: A Study, Rajib Bhattacharyya, International Journal of Research (IJR) Vol-1, Issue-4, May 2014, 31-10-18, 8pm