Wednesday, January 4, 2012

Giving Real and Substantive Recognition to the Human Rights of Physically Challenged Individuals

[This article was published in CRITIQUE, Vol-1, Issue-3. Critique is a Quarterly brought out by the Delhi University Chapter of New Socialist Initiative (NSI)]

- Dr. Sanjay Jain 

“Persons with disability (Hereinafter PWD) are human beings” is a statement of breathtaking banality. Normatively this statement may not be challenged but practically speaking, it reflects an ideal to be achieved rather than a statement of facts. Till recently, PWDs were considered to be a burden on a family, civil society and the state. Social consciousness rendered them invisible, as if human civilisation did not exist for them, resulting thereby in an absolute denial of their ‘right to be human’. The focus of this paper is to highlight this denial in the legal consciousness of our polity, and the peculiar nature of legal interventions in addressing the rights of the physically challenged. 

The peculiar nature of legal interventions 

By law, disability is thought to be worthy of legislative cognisance and compensation only if it is acquired by an able-bodied person, resulting in the loss of earning capacity or utility . This is evident from a close scrutiny of legislations like the Employees’ State Insurance Act 1948. Clearly, the medical model of disability was at the foundation of the all these legislations. According to the this model, the acquisition of disability constitutes a violation of rights of able-bodied persons and therefore disability per-se is not worthy of legislative action. The medical model focuses on the medical traits of the PWD’s specific impairments. This has the effect of locating the “problem” of disability within the person. The medical model encapsulates a broader and deeper social attitude – a tendency to view the disabled as a problem and therefore, as an object for clinical intervention. 

Transforming the perception of disability – the human rights model 

In late ‘80s however, the legal scenario underwent a dramatic transformation with the passage of enactments like the Rehabilitation Council of India Act 1986, the Mental Health Act 1987, the Persons with Disability Act 1995, and the Trust Act 1999. On the strength of these legislations in India, it is at least partially true to say that PWDs are now being perceived as holders of rights and duties. The aforesaid paradigmatic shift has surfaced owing to the international emergence of the human ights model and the UN’s insistence on its adoption by all civilised States. The human rights model focuses mainly on the inherent dignity of the human being and only if necessary, on the person’s medical characteristics. It places the individual at centre stage in all decisions affecting him/her and, most importantly, locates the main “problem” outside the person and in the society. 

Human rights discourse guards against an over-emphasis on the difference/differences produced by disability. In this connection, it is worth noting that human difference is not innate but something socially constructed and applied through labels such as “the disabled”. The norm in relation to which one is evaluated and labelled (maleness, whiteness, being able-bodied) is not selected through a neutral or disinterested process, but occurs through an apparatus of power whose minimum goal is to preserve that power. 

All points of access to the structures of everyday life – the world of education, of work, of the family or of social interaction – are established largely by reference to the dominant norm, in this instance that of the able-bodied. As deviations or differences from the arbitrarily selected norm are generally not catered for, difference serves as a ground for subtle (and sometimes not so subtle) exclusion. In other words, it’s the society of ‘temporarily able-bodied persons’ which disables a person by erecting structures of discrimination. For example, the built environment is constructed for those who can walk and not for those who use wheelchairs. I am therefore against the usage of the term ‘persons with disability’, and prefer the terms ‘disabled’ or ‘physically challenged’ precisely because they accurately highlight the discriminatory and negative attitude of society. 

If the legal regime for persons with disability in India is closely scrutinised, we will stumble across stark contradictions owing to the failure of the Indian political establishment to fully appreciate the significance of the human rights model. The legislature has virtually conflated the human rights paradigm with paternalism, thereby normatively recognising the agency of physically challenged as ‘legal agents’ but practically denying them any opportunities whatsoever as active subjects with rights and duties. In other words, these enactments have merely empowered the State at the expense of the marginalised physically challenged citizens. 

The deficit in Constitutionalism 

If we are to get over this rather bleak legal scenario, then it is immensely important to critique the all-pervasive deficit in our constitutionalism. In India, constitutionalism has virtually degenerated into ‘an empty slogan’ so far as physically challenged citizens are concerned, because it has perpetuated their marginalisation by not attaching importance to the explicit recognition of physical and mental disability as one of the protected characteristics in the Constitution along with other grounds of non-discrimination like race, religion, caste, sex etc. Moreover, precious little has been done to explicitly recognise that physically challenged citizens are worthy of receiving affirmative action from the State. Adding insult to injury, political parties in India have perpetuated this insensitivity by not recognising the need for having active disability cells therein. The judiciary, meanwhile, has passed important judgments that have shamed organs of the State for failing to implement laws pertaining to the human rights of the physically challenged. At the same time, it has also been unreceptive to the needs of physically challenged citizens insofar as it has indulged in semantics and technicalities while dealing with issues like the powers of Chief Commissioners of disability. 

I will conclude this short paper by attracting the attention of the so-called emerging economy like India towards constitutional developments in small countries like Eretria and Kenya where disability has been recognised as a prohibited ground of discrimination. It is also instructive to follow the constitutional designs of Sri-lanka, Canada and South Africa. 

Constitution of Kenya 

Article 27
“(4) The State shall not discriminate directly or indirectly against any person on any ground, including … disability, ….” 

Article 54 
“(1) A person with any disability is entitled–– (a) to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning; (b) to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person; (c) to reasonable access to all places, public transport and information; (d) to use Sign language, Braille or other appropriate means of communication; and (e) to access materials and devices to overcome constraints arising from the person’s disability.” 

“(2) The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.” 

Article 260 
In this Constitution, unless the context requires otherwise — “disability” includes any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day activities. 

Constitution of Sri Lanka 

Article 12 
“(4) Nothing in this Article shall prevent special provision being made, by law, subordinate legislation or executive action, for the advancement of … disabled persons.” 

Constitution of Canada 

Article 15 
“(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” 

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability. 

Constitution of South Africa 

Article 9(3)
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability… 

Constitution of Eritrea 

Article 14(2)
“No person may be discriminated against on account of race, ethnic origin, language, color, sex, religion, disability, political belief or opinion, or social or economic status or any other factors.” 

I will conclude my reflections by emphasising and reiterating the fact that the explicit recognition of the human rights of physically challenged citizens in the constitution of India would have earnest legal and political repercussions. For one, it would convey to this rather marginalised community that they are not only citizens of this country but they are also active subjects of rights and duties and productive units of the economy of India. I am enclosing with this paper a concrete proposal suggesting certain amendments in some of the Provisions of our constitution and would constructive suggestions and criticisms. 

Proposed Amendments to Constitution of India 

I. Amendment of Articles 15(1) and 15(2): 

Article 15(1) 
“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” 

Article 15(2) 
“No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to ….” 

Proposed change: incorporation of the words “physical and mental disabilities” after the word sex. 

II. Addition of new Article 15(3-A): 

“Nothing in this Constitution shall prevent the State from making special provisions for the persons with different ability in general and for women with disabilities in particular to ensure that they enjoy equal benefits under the law.” 

III. Amendment of Article 16(2): 

“No citizen shall, on grounds only of religion, race, caste, sex, 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.” 

Proposed change: incorporation of the words “physical and mental disabilities” after the word sex. 

IV. Proviso to Article 21-A: 

“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.” 

Proposed change: proviso providing that the age for differently abled-children will be between the age of six to eighteen years. 

V. Amendment to Article 23(1): 

“Traffic in human beings, beggary and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.” 

Proposed change: incorporating the explanation that forcing differently-abled persons to beg and amputating the limbs of able-bodied persons and compelling them to beg amounts to beggary. 

VI. Amendment to Article 41-A: 

“(1)State shall ensure that every differently-abled person shall enjoy all the human rights guaranteed by the UN Convention on Persons With Disabilities subject to the terms of its ratification by Government of India within a period of 20 years from the date of enactment of this Article. It shall further be obligatory for the State to evolve a visible policy framework to implement the same.” 

“(2) In particular , the State shall take appropriate steps within reasonable time to make public buildings and all public records accessible to differently-abled persons.” 

Proposed change: deletion of the word “disablement”. 

VII. Amendment of Article 46: 

“The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.” 

Proposed change: incorporation of the words “and differently-abled persons” after Scheduled Tribes. 

VIII. Amendment of Article 243-D, concerning reservation of seats: 

Proposed change: addition of sub clause(C) with the words “and differently-abled persons” after 243D (1) (b). 

IX. Amendment of Article 243T Clause (1): 

“Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality.” 

Proposed change: insertion of words “and differently-abled persons” after Scheduled Tribes in Clause (1). 

X. Proviso to Article 243T Clause (2): 

“Not less than one third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.” 

Proposed change: proviso providing that 5% seats shall be reserved for differently- abled women. 

XI. Amendment to Article 243T Clause (3): 

“Not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality” 

Proposed change: incorporation of the words “and differently-abled persons” after Scheduled Tribes. 

XII. Amendment of Fundamental Duties: 

Proposed change: addition of a new duty 51-A (L), stating “Citizens shall renounce discriminatory and derogatory practices harming the dignity of persons with disability.” 

Sanjay Jain teaches at Indian Law Society Law college, Pune India


Post a Comment