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Rights of the disabled

The American Psychiatric Association defines insanity as a psychological pattern or syndrome marked by distress and disability.

All human beings are born free and equal in dignity and rights.

People with disabilities all over the world experience human rights violations, stigma and discrimination. To have a disability means that one has fundamental difficulty accomplishing things that others take for granted. Disabilities can be physical in nature, cognitive, behavioral, or even emotional. This particular disabilities topic center contains mostly reference to physical and sensory forms of disability, as other forms are adequately covered in other topic centers. Physical and sensory disabilities can be major impediments to participating in normal society. Disabilities can take a severe psychological toll. To be disabled means to have lost a range of functioning in the first place. It can also easily mean being more isolated from others than one would like to be. There are many social factors that can affect whether or not individuals with disabilities are included or excluded from participation on various activities, which in tur can affect development or self-esteem.

Disability is thus just not 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.

Meaning of Disability:
Disability is an impairment that may be cognitive, development, intellectual, activity, limitations, 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. Disability is a contested concept, with different meanings of 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 ablest society.

The discussion over disability definition arose out of disability activism in the U.S and U.K in the 1970s, which challenged how the medical concept of disability dominated perception and discourse about disabilities. Debates about proper terminology and their implied politics continue in disability communities and the academic field of disability studies.

Rights of Disabled:
The declaration on the rights of disabled persons was a declaration of the general assembly of the United Nations, made on 9 December 1975.It is the 3447th resolution made by the Assembly. As a resolution of the Assembly, it is not binding on member nations, but it forms a framework that may be drawn on for the purposes of international and domestic law. It consists of a lengthy preamble, and thirteen proclamations that broadly promote the rights of disabilities. For the improvement of conditions of disabled persons, the General Assembly has adopted declarations and a convention.

The declaration on the rights of mentally retarded persons:
It was adopted by the general assembly on 20 December 1971.Declaration provides a frame work within which national and International actions should be imitated for the advancement of rights set forth in the declaration. The mentally retarded person has to be maximum degrees of feasibility the same rights as other human beings. The mentally retarded person has a right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential. The mentally retarded person whenever possible should live with his own family or with foster parents. The mentally retarded person has a right to qualified guardian when this is required to protect his personal well-being and interests. The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility.

The declaration on the rights of disabled persons:
This declaration was adopted by the General Assembly on 9 December 1975. The disabled person shall enjoy all rights contained in this declaration without distinction or discrimination. The disabled persons have inherent rights to respect for their human dignity and irrespective of the origin, nature and seriousness of their handicaps and disabilities, have same Fundamental Rights. Disabled persons have the same civil and political rights as other human beings. Disabled persons are entitled to the measures designed to enable them to become as self-reliant as possible. Disabled persons have the right to economic and social security, including the right, according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions. Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. Disabled persons shall be protected against all exploitation and treatment of a discriminatory, abusive or degrading nature.

The convention on the rights of persons with disabilities:
In the charter of the United Nations it is proclaimed that the inherent dignity and worth and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Similarly, the United Nations, in the universal declaration of human rights and in the International covenants on Economic, Social and cultural rights. It is supposed that the convention would make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, and social and cultural spheres with equal opportunities, in both developing and developed countries. The convention on the Rights of Persons with disabilities deals with matters such as, general principles on the basis of which the rights of the disabled persons are to be promoted and protected, the obligations that have been undertaken by the State parties to adopt measures. The protocol has been added to the present convention authorizing the Committee on the Peron with Disabilities to receive and consider communications from or on behalf of individuals or groups of individuals, who claim to be victims of a violation by a State party of the provisions of the present convention.

Human Rights of Persons With Disabilities:
Person with disabilities face discrimination and barriers that restrict them from participating in society on an equal basis with others every day. They are denied their rights to be included in the general school system, to be employed, to live independently in the community, to move freely, to vote, to participate in sport and cultural activities, to enjoy social protection, to access justice, to choose medical treatment and to enter freely into legal commitments such as buying and selling property.

The protection guaranteed in other human rights treaties, and grounded in the Universal Declaration of Human rights, should apply to all. Persons with disabilities have, however, remained largely ‘invisible’, often side-lined in the rights debate and unable to enjoy full range of human rights.

Legal Rights of Persons With Disabilities:
The legal rights of people with disabilities are guaranteed in a variety of federal and state laws. State laws sometimes provide more protection over these rights and their federal counterparts. These civil rights laws are usually found in statutes, regulations, and court decisions (also known as case law). The statues are passed by Congress or state legislatures, and the details of the enforcement of those statues are usually contained in regulations drafted by the agency assigned to make sure people follow the law. When there are disputes over these rights, the decisions of the courts that decide these disputes provide further information about the meaning of these laws.

Rights Of Disabled Person In India:
Persons with disabilities are one of the most neglected sections of our nation. This is due to the sheer indifference of the society which subjects such people to disapproval and antipathy. Such people have several rights under various Indian laws as well as UN conventions that are followed in India. Under section 2(i) of Persons with Disabilities Act, 1995,"disability" includes blindness, low vision, leprosy cured, hearing impairment, locomotor disability, mental retardation and mental illness.

Disability Certificate: It is the most basic document that a disabled person should possess in order to avail certain benefits and concessions. The State Medical Boards established under the State governments can issue a disability certificate to any person with more than 40% disability.

Disability Pension: People who are above 18 years of age, suffering with more than 80% disability and are living below the poverty line are entitled to the disability pension under the Indira Gandhi National Disability Pension Scheme. Various NGOs are dedicated to this because i.e. they help such persons with disabilities to get their disability pension.
Employment: In government jobs, 3% of the seats are reserved for persons with disabilities.

Income Tax Concession: Under sections 80DD and 80U of Income Tax Act, 1961, persons with disabilities are also entitled to certain income tax concessions.

Also, there are various other rights to which persons with disabilities are entitled. These are provided under 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 Rights of persons with disabilities bill, 2014, which is an enhancement of the Persons with Disabilities Act, 1995, is still pending in the Rajya Sabha. Moreover, the Central government plans to start a scheme under which every disabled person will be provided with a unique identity card which will be valid throughout India and not just in the respective states. Hence there are numerous rights which the persons with disabilities can avail. There are multiple NGOs working for this cause. The need of the hour is to sensitize the society regarding such people and to enlighten the disabled about their rights so that they can live their lives with dignity.

In the case of Chanda Kumar v State of West Bengal, the judiciary condemned the mismanagement of mental asylums by state governments. In the mental hospital of mankind in holy district West Bengal, the patients were kept chained with iron ropes and were physically tortured and denied food and water. The Supreme Court ordered the cessation of this inhuman practice, held the state liable and recommended reforms of mental health asylums all over the country. In Legal Aid Committee v State of MP the Supreme Court highlighted the need to have stricter enforcement of laws made for the betterment of mentally ill. If any government servant now complies with the behavior necessary for the betterment of mentally ill, he will be held liable.

In Cleveland v. Policy Management Systems Corp. (1999) The Supreme Court agrees with Equal Employment Opportunity Commission's (EEOC) position that a plaintiff can go forward with his or her Americans with Disabilities Act case despite having filed an earlier claim for disability under the Social Security Act alleging he or she is unable to work. In Raytheon Co. v. Hernandez (2003) The Court finds that under the Americans with Disabilities Act (ADA), a neutral no-rehire policy is a legitimate, non-discriminatory reason for refusing to hire an employee who had a record of drug addiction.

Disabled And The Administration:
Included here is a description of the help provided by the statutory services for persons with disabilities. Watching several ministries / departments of the government of India provides various concessions and the facilities that includes :
1. Concession On Railways:
Railways allows persons with disabilities to travel at concession fares up to 75% in the first and second classes. Escorts accompanying blind, orthopedically and mentally handicapped persons are also eligible to 75% concession in the basic fare.

2. Air Travel Concession:
Indian Airlines allow 50% to blind persons on single journeys.

3. Postage:
Payment of postage, both inland and foreign, for transmission of post of blind literature packets is exempted if sent by surface route.

4. Conveyance Allowance:
All central government employees who are blind or orthopedically handicapped are granted conveyance at 5% of the basic pay subject to a maximum of INR 100 per month.

5. Educational Allowance:
Reimbursement of tuition fee of physically and mentally handicapped children of the central government employees has been enhanced to INR 50/-.

6. Income Tax Concession:
The amount of deduction from total income of a person with blindness, mental retardation or permanent physical disability has been increased to INR 40,000/-.

Candidates with physical handicaps, appointed on a regional basis, be given as far as possible, appointments as close to their native places as possible.

Constitutional Rights Of Disabled Persons :
1. Prohibition Of Discrimination:

Article 15 is a manifestation of “Right to Equality” under article 14, as it enshrines a specific dimension of the principles of equality relating to discrimination by state or various grounds . Under article 15 the protection extends only to citizens , unlike article 14 which protects ‘ any person’ . Thus in application article 15 protects from discriminatory state activities but the ambit of article 15 is narrower than that of article 14.
Article 15 of the Indian constitution deals with “prohibition of discrimination” on the grounds of religion, race, caste, sex or place of birth. It runs as follows :
Article 15(2) says, no no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disabilities liability restriction or condition with regard to :
(a) Access to shops, public restaurants, hotels and places of public entertainment; or
(b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of the state funds dedicated to the use of the general public.

Equity In Social, Economics And Cultural Rights:
Article 25 of the CRDP recognizes the “right of a person with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity , state parties shall ensure an inclusive education system at all levels and lifelong learning.” They considered constitution to grant education to children with disabilities if they explicitly guarantee the right to education , the right to free education, or the right to compulsory education to children with disabilities or prohibit discrimination in education on the basis if disability. Globally only 28% of the countries provide some type of constitutional guarantee of educational rights or the children with disabilities.

3. Right To Work:
Article 27 of the CRDP instructs states to “recognizes the right of persons with disabilities to work, on an equal basis with others; this includes the rights to 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.

Right To Liberty:
Article 14 of the CRPD instructs state parties to guarantee people with disabilities the right to liberty and security of person. We considered the right to liberty to be guaranteed to persons with disabilities if they were explicitly granted the right to freedom or liberty. Globally, only 9% of the constitution explicitly guarantee the right to liberty to persons with disabilities. However 19% of the constitution specifies that the right to liberty can be denied to persons with the mental health condition.

Right To Freedom of Expression:
In article 21, the CRPD states that to “take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion include the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communications of their choice.”

Rights To Hold Legislative Office:
Article 29 of the CRPD guarantees the right of a persons with disabilities “to stand for elections, to effectively hold office and perform all public functionaries at all levels of government, facilitating the use of assistive and new technologies where appropriate. 21%of the constitution guarantee this right with disabilities either through specific guarantees of political rights of person with disabilities (2%) quotas of seats reserved in legislatures for person with disabilities (4%) or guarantees to citizen of the right to hold and broad prohibition o discrimination based on disabilities (15%).

The components of this frame work documents defining human rights system that protect and guarantee fundamental rights to all, regardless of location or situation. These international and regional mechanism demonstrated concern over abuses of human rights that affect person with disabilities and awareness of the role that human rights can serve in the preventing these abuses and fostering mental health throughout the population. Persons with disabilities will benefit from the continual development of human rights system at the international and regional levels. The respective system play a different complementary roles in building and reinforcing a vibrant and enforceable human rights structure for the protection and promotion of the rights of persons with mental disabilities. The WHO mental health legislation manual will provide a useful guide for national governments attempting to accomplish law reform. The human rights of persons with mental disabilities can be effectively protected and promoted through international human rights law.

1. Dr.U.Chandra, Human Rights, 8th ed., 2010
2. K.C.Joshi, International law & Human Rights, 3rd ed., 2012
3. Paras Diwan, Human Rights & the law, 2nd ed., 2008
4. Nihal Jayawickrama, the Judicial Application of Human Rights Law, 1st ed., 2002


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