Rights of Differently Abled in India

Everybody is not born equal in the eyes of the society but is equal in the eyes of law. The law protects minorities, women and the differently abled because they deserve to be and have the right to be. The author in this blog discusses the importance and history of the term differently abled and why it is important to get sensitized about it.

Introduction

In India, there is a significant number of differently-abled persons who are hidden, stigmatized, or barely exist in the official sense. All beings are born with certain rights and dignity but for disabled persons, the situation is not the same as their rights are brazenly violated and they get stigmatized by society. The rights of differently-abled persons in India are deprived of many aspects of their life. The government formed many policies for the welfare of the disabled persons but it is to be seen and analyzed whether these policies and enactments have been effective or not.

Differently Abled

The US Democratic National Committee in 1980s coined the word “Differently Abled” as the acceptable term instead of “handicapped”. The reason behind it was to develop a positive attitude towards the disabled persons who were earlier called as “handicapped” and it was also perceived as politically correct. In India, on February 7th, 2012, the use of the term “handicapped” was banned by the Chief Commissioner for persons with disabilities in official reports, government institutions and organisations and in all official correspondence. Supporting this move, a number of state governments like Himachal Pradesh, Haryana and others also banned the use of the term in their states.[1]

Legal Position in India

The Constitution of India ensures the freedom, dignity and rights of every person in the country including the differently abled people. Several Articles in the Indian Constitution envisages the welfare of every person in the nation.

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act in 1995 was enacted under Article 253 of the Indian Constitution. This specific part of legislation treated rehabilitation as a right and aimed at eradicating discrimination and creating opportunities for the development of people.

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Then, in 1999, the Parliament introduced National trust for welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. It contained provisions for guardianship for four different types of disabilities. It also provided for creation of environment for the independent living of disabled persons. Autism, cerebral palsy, mental retardation, persons with disability, severe disability were recognized by the act as the different disabilities.

One of the major legislations has been theRehabilitation Council of India Act, 1992. The Act facilitates for the enhancement of the training courses at different levels, establishment of institutions in the field of rehabilitation and maintenance of a Central register consisting of professionals having qualification in the field of rehabilitation.

In February 2006, A National Policy for Persons with Disabilities was announced. It considered the persons with disabilities as valuable human resources and seek to create an environment that provides equal opportunities, protection of their rights and their full participation in the society. The main focus of the policy is:

a. Prevention of disabilities.

b. Rehabilitation measures.[2]

The federal government has recently enacted The Rights of Persons with Disabilities Act, 2016 along with the Rules. The new law is a safeguard for the disabled persons from exploitation and discrimination. It also ensures the access to the equal opportunities in employment and improves the societal participation. This law replaces the previous legislation,Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act of 1995.

Under The Rights of Persons with Disabilities Act, 2016, the definition of disability has been broadened. The word ‘disability’ includes persons with disability, persons with disability having high support needs, and persons with benchmark disability. The definition is an inclusive one and categorizes disabilities of 21 types which is known as “specific disability”.[3]

Case Laws

At many instances, the Indian judiciary also gave the judgment for the welfare and well being of persons with disability. Some of the cases are stated below:

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National Federation of blind v UPSC[4]

In this case the Supreme Court directed the UPSC to facilitate the blind persons for appearing in the examination of Indian Administrative and allied services.

Government of NCT of Delhi v. Bharath Lalmeena[5]

It was held in the case by the Delhi High Court that the persons with disabilities can also be appointed as physical education teacher. The only requisite for the same is that the person has passed the qualifying exam and have undergone the appropriate training for the same.

Chandan Kumar Banik v. State of West Bengal[6]

In this case the Supreme Court gave directions to the hospital in Hooghly district to provide respite to the mentally challenged inmates who were chained by the authority of the hospital to control their violent and unruly behaviour.

Conclusion

The Rajya Sabha has recently passed the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities (Amendment) Bill, 2018. This bill also seeks to ban commercial surrogacy, and also includes the transgender bill. This gesture by Government of India has added one more feather in the cap of empowerment of disabled persons. But are they really empowered?

The persons with disability will be empowered only when the “abled” will support them. The Government has a history of passing regulations and legislations for the welfare of the differently abled personshowever the public has only recently gained a matured understanding of disabilities and its consequences. Its only when differently abled persons will enter the mainstream, like public places, schools, government offices, will the general public be able to understand their pain and struggle. This change though difficult to achieve, is not altogether impossible.

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[1]Divyashree Baxipatra, Rights of the Differently Abled in India: Law, Cases & the Reality, SSRN, (May, 19, 2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2266783.

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[2]Divyashree Baxipatra, Rights of the Differently Abled in India: Law, Cases & the Reality, SSRN, (May, 19, 2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2266783.

[3]Srinivas Raman, The Disabilities Act in India: What Employers Need To Know, India Briefing (Dec 12, 2017), https://www.india-briefing.com/news/the-disabilities-act-india-what-employers-need-to-know-15755.html/.

[4]National Federation of Blind vs Union Public Services, AIR 1993 SC 1916 (India).

[5]Government of NCT Delhi vs Bharat Lalmeena & ors. MANU/DE/1431/2002 (India).

[6]Chandan Kumar Banik vs State of Bengal (1995) Supp(4) SCC 505 (India).