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The Rights of the Disabled

In order to understand the concept relating to the Rights of the disabled, we must first have a clear view of the term Disability and the aspects it connotes to.

Disabilities is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. Disability is thus not just a health problem. It is a complex phenomenon, reflecting the interaction between features of a person's body and features of the society in which he or she lives. Disability is a contested concept, with different meanings for different communities. It may be used to refer to physical or mental attributes that some institutions, particularly medicine, view as needing to be fixed. It may refer to limitations imposed on people by the constraints of an   "" \o "Ableism" albeit society. Or the term may serve to refer to the identity of people with disabilities. It can be said that it is an impairment that may be cognitive, developmental, intellectual, mental, physical, sensory, or some combination of these. It substantially affects a person's life activities and may be present from birth or occur during a person's lifetime.

Legal Rights of The Disabled In India:

The Constitution of India applies uniformly to every legal citizen of India, whether they are healthy or disabled in any way (physically or mentally). The Constitution of India secures to the citizens including the disabled, a right of justice, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and for the promotion of fraternity. The right to Education is available to all citizens including the disabled. The Constitution directs the State to provide free and compulsory education for all children until they attain the age of 14 years. The health laws of India have many provisions for the disabled. Some of the acts which make provision for the health of the citizens including the disabled may be seen in the Mental Act, 1987. Various laws relating to the marriage enacted by the Government for different communities apply equally to the disabled. There are certain circumstances that will disable a person from undertaking a marriage. They are:
When the either party is a lunatic;
When the parties are unable to give a valid consent because of the unsound mind;
When the parties are within the degree of prohibited relationship.
Under the Succession Act, 1956 which applies to Hindus it has been specifically provided that physical disability or physical deformity would not remove a person from inheriting ancestral property. The rights of the disabled have not been spelt out so well in the labour legislations but provisions which cater to the disabled in their relationship with the employer are contained in delegated legislations such as rules, regulations and standing orders.

Declaration on the Rights of Disabled Persons:

The Declaration on the Rights of Disabled Persons was a declaration which was formed by the   "" \o "United Nations General Assembly" General Assembly of the   "" \o "United Nations" United Nations, which was established on 9 December 1975.Prior to 1970 the UN approached disability issues from a social welfare perspective. The attention paid to obstacles created by social institutions and society was little in general. On December 11, 1969, the General Assembly adopted the Declaration on Social Progress and Development, which in Article 19 advocates the provision of free health services and the institution of measures to provide   "" social security and social welfare services for all persons. Those services include measures to rehabilitate the mentally and physically disabled to   "" facilitate their   "" integration into society. Provisions for education,   "" job training and placement, and vocational and social guidance are also included. On December 20, 1971, the General Assembly proclaimed the Declaration on the Rights of Mentally Retarded Persons, which seeks to provide proper medical care and education, economic security, and protection from exploitation, among other rights for mentally retarded people. The 1969 and 1971 declarations led to the creation of the Declaration on the Rights of Disabled Persons, which, in a sense, represents an attempt to   "" delineate that the UN’s 1948   "" Universal Declaration of Human Rights clearly applies to persons with disabilities.

Provisions of the declaration include:-
The definition of “disabled person” as anyone who cannot obtain the necessities of a normal individual or social life and as a result of any deficiency in physical or mental capabilities.
 A nondiscrimination clause applying the rights to all disabled persons regardless of race, colour, sex, language, religion, political or other opinions, national or social origin, state of wealth, birth, 
 A statement regarding disabled persons right to respect for their human dignity.

Further provisions spell out specific rights and the measures that would enable them to be exercised: civil and political rights; the right to measures to enable self-reliance; the right to medical, psychological, and rehabilitative treatment; the right to economic and social security, to a decent   "" standard of living etc.

Convention on the Rights of Persons with Disabilities:-
The Convention on the Rights of Persons with Disabilities is an   "" \o "International human rights instrument" international human rights   "" \o "Multilateral treaty" treaty of the   "" \o "United Nations" United Nations intended to protect the rights and dignity of persons with   "" \o "Disability" disabilities. This Convention was adopted by the   "" \o "United Nations General Assembly" United Nations General Assembly on 13 December 2006, and opened for signature on 30 March 2007. Parties to the Convention are required to promote, protect, and ensure the full enjoyment of   "" \o "Human rights" human rights by persons with disabilities and ensure that they enjoy full   "" \o "Equality under the law" equality under the law. The Convention has served as the major catalyst in the global movement from viewing persons with disabilities as objects of charity, medical treatment and social protection towards viewing them as full and equal members of society, with human rights. It is also the only UN human rights instrument with an explicit   "" \o "Sustainable development" sustainable development dimension. The Convention was the first human rights treaty of the third millennium.
The Convention follows the civil law  with a preamble in which the principle which says that "all human rights are universal, indivisible, interdependent and interrelated" which is followed by 50 articles. Unlike many UN covenants and conventions, it is not formally divided into parts.

The preamble includes the following among others –
Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world.

Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone should obey  all the rights and freedoms without distinction of any kind.

Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and environmental barriers that hinders their full and effective participation in society on an equal basis with others.

Article 1 defines the purpose of the Convention: to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms of all persons with disabilities, and to promote respect for their inherent dignity. Articles 2 and 3 provide definitions and general principles including communication etc.

Articles 4–32 define the rights of persons with disabilities and the obligations of states parties towards them. Articles 33–39 govern reporting and monitoring of the convention by   "" \o "National human rights institutions" national human rights institutions. Articles 40–50 govern ratification, entry into force, and amendment of the Convention. Article 49 also requires that the Convention which is to be available in accessible formats.

Optional Protocol:-
The   "" \o "Optional Protocol to the Convention on the Rights of Persons with Disabilities" Optional Protocol to the Convention on the Rights of Persons with Disabilities is a side-agreement to the Convention which allows its parties to recognize the competence of the Committee on the Rights of Persons with Disabilities to take and consider complaints from individuals. 

General comments:-
The present general comment reflects an interpretation of Article 12 which is premised on the general principles of the Convention, namely, respect for the inherent dignity, individual autonomy — including the freedom to make one’s own choices , and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity; accessibility; equality between men and women; and respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
Indian Laws:-
Constitutional Aspects:-
The Constitution of India has guaranteed full protection to the rights of disabled people. The Preamble of the Constitution contains the concept of social justice and equality of status and opportunity to all the people of India. Article 14 & 16 of the Constitution which guarantee equality of opportunity to all citizen of India. Article 38 of the Constitution which subsides within Directive Principles of State Policy, requires the State to promote the welfare of the people by securing a social order in which social, economic and political justice can inform to all institutions of national life and the State is required to make efforts to eliminate inequalities in status, facilities and opportunities amongst individuals.

Enactments In India:
Persons with disabilities (PWD) (equal opportunities, protection of rights and full participation) Act, 1995:
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” had come into enforcement on February 7, 1996. It is an important step which ensures equal opportunities for the people with disabilities and their full participation in the nation building. The Act provides for both the preventive and promotional aspects of rehabilitation like education, employment and vocational training, reservation, research and manpower development, creation of barrier- free environment, rehabilitation of persons with disability, unemployment allowance for the disabled, special insurance scheme for the disabled employees and establishment of homes for persons with severe disability etc.

Main Provisions of the Act:-
Prevention and Early Detection of Disabilities
Research and Manpower Development
Affirmative Action
Grievance Redressal
Social Security

The Mental Health Act, 1987
The Mental Health Act,1987 was enacted to regulate admissions to psychiatric hospitals and  psychiatric nursing homes of mentally ill-persons who do not have sufficient understanding to seek treatment on a voluntary basis and to protect the rights of such persons while being detained, to protect society from the presence of mentally ill persons who have become or might become a danger or nuisance to others among other provisions.

The Rehabilitation Council of India Act, 1992
It was passed to regulate the man power development programmes in the field of education of persons with special needs. The main objectives are to regulate the training policies and programmes in the field of rehabilitation of people with disabilities, to standardize training courses for rehabilitation professionals and also for ensuring the establishment of rehabilitation centres.

The Workmen’s Compensation Act, 1923 
If any injury or accident is caused to the workman in the course of work or employment then his employer has to pay compensation. As per Section 4 of the above Act, where permanent total disablement results from the injury, an amount equal to 60% of the monthly wages of the injured workman multiplied by the relevant factor or amount of twenty thousand rupees whichever is more.

Employees’ State Insurance Act, 1948
Periodical payment shall be made to an insured person suffering from disablement as a result of an employment injury sustained as an employee under this Act and certified to be eligible for such payments by an authority specified in this behalf by the regulations. In India, the disabled citizens have the same rights as other citizens to a descent standard of living and economic security, right to work, education, employment and also right to access and communication.

Decided cases in India:
In Javed Abidi v. Union of India - The Supreme Court bearing in mind the discomfort and harassment suffering by a person of locomotors disability would face while travelling by train particularly to far off places, issued direction to the Indian Airlines to grant persons suffering from locomotors disability to the extent of 80%.

In Chandan Kumar Banik v. State of West Bengal - The Supreme Court has given the order to provide respite to mentally challenged inmates of a hospital in Hooghly district who were being kept chained by the hospital authority to control their unruly and violent behavior.

In National Federation of Blind v. Union Public Service commission - The Supreme Court held that, the UPSC may be directed to allow blind person for appearing the examinations for Indian Administrative and allied services.

In Govt. of NCT of Delhi v. Bharat Lal Meena - The Delhi High Court held that people with disabilities can be appointed as physical education teachers provided they have passed the qualifying examination and undergone the requisite training.

In Uppala Venkat v. Divisional Railway Manager(P) South Central Railway, Secunderabad and Others - In case of total disability which renders a person unfit for any employment in the establishment, he has the right of protection under the relevant provision of Persons with Disabilities Act,1995. Under this Act if a person is completely disabled, he should be provided with alternative employment and if such employment is not possible, he should be kept in a supernumerary post till he attains the age of retirement.

Policies in India:

National Policy For Persons with Disabilities, 2006

The Government of India formulated the National Policy for Persons with Disabilities in February 2006 which deals with Physical, Educational and Economic Rehabilitation of persons with disabilities. In addition, the policy also focuses upon rehabilitation of women and children with disabilities, barrier free environment, social security, research.

The National Policy recognizes that Persons with Disabilities are valuable human resource for the country and seeks to create an environment that provides them equal opportunities, protection of their rights and participation of the society in complete.

Some of the aspects which the Policy focuses on are:-
Prevention of Disabilities - Since disability, in a large number of cases, is preventable, the policy lays a strong emphasis on prevention of disabilities. It calls for programme for prevention and cure of the diseases which result in disability and the creation of awareness regarding measures to be taken for prevention of disabilities during the period of pregnancy and thereafter to be intensified and their coverage expanded.

Rehabilitation Measures - Rehabilitation measures can be classified into three distinct groups:
Physical rehabilitation, which includes early detection and intervention, counseling & medical interventions and provision of aids and appliances. It  also include the development of rehabilitation professionals.
Educational rehabilitation including vocational education and
Economic rehabilitation for a dignified life in society.

Women with disabilities - Women with disabilities require protection against exploitation and abuse. Special programmes will be developed for education, employment and providing of other rehabilitation services to women with disabilities keeping in view their special needs. Special educational and vocation training facilities will be setup. Programmes will be undertaken to rehabilitate abandoned disabled women, girls by encouraging their adoption in families, support to house them and impart them training for gainful employment skills. The Government will encourage the projects where representation of women with disabilities is ensured at least to the extent of twenty five percent of total beneficiaries.

Children with Disabilities - Children with disabilities are the most vulnerable group and need special attention. The Government would strive to: -
Ensure right to care, protection and security for children with disabilities;
Ensure the right to development with dignity and equality creating an enabling environment where children can exercise their rights, enjoy equal opportunities and full participation in accordance with various statutes.
Ensure inclusion and effective access to education, health, vocational training along with specialized rehabilitation services to children with disabilities.
Ensure the right to development as well as recognition of special needs, care and protection of children with severe disabilities.

Disability refers to the disadvantage or restriction of activity caused by the way society is organized which takes little or no account of people who have physical, sensory or mental impairments. As a result such people are excluded and prevented from participating effectively on equal terms in mainstream society. Disability is an unfortunate part of human life which can effect not only the natural way of living but also despair component strength and power. Persons with disability are most disadvantaged section of society, they are also neglected in their family.

With the various provisions that seek to provide Rights for the disabled, both at the international level and at the national level, the future of such disabled persons is bound to improve and various regulations are also taken. However, It is clear that the position of the disabled section will not improve unless there is an active participation among government, non-governmental organization and other members of the society. The government has done a commendable job in driving its attention towards the education and employment of the disabled section. Several schemes and benefits conferred on the disabled persons has come up as a  relief and has successfully served to provide equal opportunities to the disabled sections of the people. The government needs to launch more social security schemes for disabled sections and generate more employment opportunities for them.

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