Human Rights Are Not Optional: Protection Of Disabled Persons

Introduction

Universal Declaration of Human Rights, the landmark document in the history of human rights, which talks about treating all human beings equally and with dignity. Coming to India, Article 14 of the Constitution of India, assures as it first fundamental right as the right to equality before the law and equal protection of the law.

But the question arises are we all human beings actually equal? Is everyone supposed to get the same treatment? By talking about being fair and equal, as said by Albert Einstein, never judge a fish by its ability to climb a tree. So as in animals do humans also have different abilities? Or should we all be treated equally?

I guess the question answers for itself, no two persons are truly equal, so the equals must be treated equally and the unequal must be treated unequally.

The most discriminated sect of people in the world is the one with the disabilities. According to World Health Organisation, 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.[1]

When the UDHR was created it talked very less about the persons living with disabilities. In the early years the focus was mainly on charity, welfare, and rehabilitation and later it shifted to recognition and participation in society for persons with disability.

Because of the discrimination, disability rights movement which is a global social movement to secure equal opportunities and equal rights for all people with disabilities.

History of Disability Rights

During the 1970s, disability has become a human rights issue and that is when in 1976 UN General Assembly proclaimed that 1981 would be the “International Year of Disabled Persons”. Later 1983-1992 marked the United Nations Decade of Disabled Persons.

The major step was in 2006 when UN Convention on the Rights of Persons with Disabilities (UNCRPD), viewing persons as “subjects with rights” and not “objects of charity”.

The Convention on the Rights of Persons with Disabilities and its Optional Protocol was adopted on 13 December 2006 at the United Nations Headquarters in New York and was opened for signature on 30 March 2007. There were 82 signatories to the Convention, 44 signatories to the Optional Protocol, and 1 ratification of the Convention. This is the highest number of signatories in history to a UN Convention on its opening day. It is the first comprehensive human rights treaty of the 21st century and is the first human rights convention to be open for signature by regional integration organizations. The Convention entered into force on 3 May 2008.[2]

Brief Information about the Convention

• Article 1 talks about the purpose of the convention which is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

• Article 2 gives the certain definitions.
• Article 3 lays down certain general principles which are,
• Respect for 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;
• Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
• Article 4 prescribes certain general obligations on the State parties to fulfill.
• Article 5 – 30 gives various rights such as equality, accessibility, right to life, situations of risk and Humanitarian emergencies, Equal recognition before law, Access to justice, Liberty and Security of the person, Freedom from torture or cruel, Inhuman or Degrading Treatment or Punishment, Freedom from Exploitation, Violence and Abuse, Protecting Integrity of the person, Respect for Privacy, Health, Habitation and Rehabilitation, Participation in Political and Public Life..Etc.
• Articles 31- 39 govern regarding reporting, monitoring of the Convention by National Human Rights Institutions and Committee on the Rights of Persons with Disabilities.
• Articles 40-50 are regarding Ratification, Consent, Regional Integration of organizations, Entry into force, Amendments, Reservations..Etc.

India on Rights of Disabled Persons

In India, disability has a direct correlation with poverty. Poverty leads to disability and Disability causes poverty. Caught in this, persons with disabilities have little or no access to education, vocational training, and livelihood and employment opportunities. Unable to access welfare measures and entitlements, denied social security, treated as recipients of charity and doles and ignorance on their status as rights holders they stand marginalized with most of their human rights violated. Ill-informed about the laws and unable to access the justice system completes the side-lining.

After the ratification of the UN Convention on Rights of Persons with Disabilities in 2007, to fulfil its obligation, Indian Parliament has enacted “The Rights of Persons with Disabilities Act”, 2016 which replaces the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995, and came into effect on 30^th December.

In the Act, 2016, regarding the condition of disabilities the list has been expanded from 7 to 21.

It is to be ensured that all disabled persons to enjoy legal capacity on an equal basis with others in all aspects of life and has the right to equal recognition everywhere as any other person before the law and have the right, equally with others, to own and inherit movable and immovable property as well as control their financial affairs.

It is also provided that disabled persons with benchmark disability who consider himself to be in need of high support, he/she or any other person or organization in his behalf may apply to the authority appointed by the Government for the same and the authority shall take steps to provide support accordingly.

The Act provides for the access to inclusive education, vocational training, and self-employment of without discrimination and buildings, campuses, and various facilities are to be made accessible to the disabled persons and their special needs are to be addressed.

Government to launch necessary schemes and programs to safeguard and promote the PWD for living in the community, appropriate health care measures, insurance schemes, and rehabilitation programs and also programs for cultural life, recreation, and sporting activities.

All Government institutions of higher education and those getting aid from the Government are required to reserve at least 5% of seats for persons with benchmark disabilities. 4% reservation for persons with benchmark disabilities is to be provided in posts of all Government establishments with differential quotas for different forms of disabilities. Incentives to an employer in private sector are to be given who provide 5% reservation for persons with benchmark disability.

To perform various functions assigned under the Act, Central and State Advisory Boards on disability are to be constituted and District level Committees are also to be constituted by the State Government.

Contraventions of the provisions of the Act have been made punishable by a fine of an amount up to ten thousand for first contravention and fifty thousand extendable up to five lakhs for subsequent contraventions.

Atrocities on Disabled persons is been made punishable with imprisonment of 6 months extendable to 5 years and with fine and also Fraudulently availing of the benefits meant for Disabled shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to one lakh rupees or with both.

Further on 7th April 2017, THE MENTAL HEALTHCARE ACT, 2017 has been enacted, with the aim to provide for mental health care and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during delivery of mental health care and services and for matters connected therewith or incidental thereto.

The act provides the following rights:

• Right to make an Advance Directive stating how to be treated and how not to be treated for the illness during a mental health situation.
• Right to appoint a Nominated Representative to take health-related decisions on their behalf.
• Right to access mental health care, treatment and services run or funded by the Government which is affordable, of good quality, in sufficient quantity, available nearby and without any discrimination.
• Right to free services for persons living below poverty line.
• Right to community living and be part of society and segregated from it.
• Right to protection from cruel, inhuman and degrading treatment.
• Right to live in an environment, safe and hygienic, having basic amenities.
• Right to proper and dignified clothing which prevents exposure.
• Right to protection from all forms of physical, verbal, emotional and sexual abuse.
• Right to receive free legal services to exercise his/her rights available under the Act

The Act also prohibited certain Procedures and Practices and Restrictions, such as:

• No tonsuring
• No compulsion to wear uniforms
• No discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability.
• No Electroconvulsive Therapy (ECT) shall not be performed without the use of muscle relaxants and anesthesia.
• Restriction on Electroconvulsive Therapy (ECT) for minors and allowed only in exceptional cases with the prior permission of the Board and the consent of the guardians.
• No sterilization of men or women, intended as a treatment for mental illness, shall not be done.
• No mechanical restraints such as chaining in any manner or form.
• Restriction on Psychosurgery as a treatment for mental illness without obtaining the informed consent of the patient and approval from the Board
• Restriction on physical restraints and used only when absolutely needed, and are deemed as the least restrictive method.
• Seclusion and solitary confinement are totally banned.

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– Vaishnavi Sabhapathi

Content Writer @ Legal Bites

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References

[1] http://www.who.int/topics/disabilities/en/.

[2]https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html

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