148 UNIT 25 RIGHTS OF PERSONS WITH DISABILITIES Structure 25.0 Introduction 25.1 Objectives 25.2 Rights of Persons with Disabilities: International Perspective 25.2.1 United Nations Convention on the Rights of the Disabled Bersons 25.2.1.1 Definition of Disability 25.2.1.2 Prevention of Piscrimination 2521.3 Right to Education 25.2.1.4 Right to Health 252.15 Panicipation Rights 25.3 Rights of Persons with Disabilities: National Perspective - Constitutional, Legal and Policy Measure: 25.3.1 Legislations for the Disabled Persons 25.3.1.1 The Mental Health Act, 1987 25.3.1.2 The Rehabilitation Council af India Act, 1992 25.3.1. The Persons with Disabilisies (Equal Opportunities, Protestion of Rights and Full Participation) Ack 1995, 28.3.1.4 The National Trust for the Welfare of Persens with Autiam, Cerebral Palsy, Mental Relardation and Multiple Disabilities Act, 1999 25.3.2 National Policy for Persons with Disability 253.21 National Policy Statement — Important Aspects 25.3.2. Role of Now-Goyernmental Organizations (NGOs) 25.3.2.4 Responsibility for Implememation 25.4 Let Us Sum Up 25.5 Answers to ‘Check Your Progress’ Questions 25.6 References 25.0 INTRODUCTION Persons with disabilities constitute the largest rminaeiy’ in the world. enconpasing over 600 million persons, of which majority live in developing countries (Helander, 1992). At least one quarter of these children suffer from physical, mental or sensory impairment. For a long time, the disabled people have experienced discrimination, prejudice, neglect and exclusion in every walk of life. In pre-moder societies, the disabled persons were elipinated through killing programmes and sterilization and were considered as nop-persons and second- class citizens. The systematic exclusion aqd discrimination of people with bilities has ng rational basis but is precisely due te prejudice, theughtlessness 4nd indifference of the society as a whole. There is no doubt that disability causes social stigma, because the condition of disability is considered as “undesired differentness” from sacially defined norm of “normality.” The core aspect of stigma occurs when the prevailing social norms treat disability as universally discrediting. The sogiety and its institutions are designed for the “normal” and not for the people with stigmatized traits. In thecontext of employment, itis seen that the persons with disabilities are disfavoured because of stereotypes, discomrifort or misconceptions and unfounded fears about increased costs and decreased productivity. In fact, the effects of disability are directly felt in the spheres of education, transport, physical access to market and recreational places, social and welfare services, income and wealth, housing, health services, and in employment. However, it must be remembered that the disabled persons are elso human beings and as such, they are entitled to enjoy all human rights, They have every right to be treated equally with others. They 100 are potentially able to perform a broad tange of activities. They only need our support, encouragement and special protection and special rights to enable them to utilize their abilities to the maximum extent. The Constitution of India ensures equality, freedom, justice and dignity of all individuals and implicitly mandates an inclusive society for all including persons with disabilities, In the recent years, there have been vast and positive changes in the perception of the society towards persons with disabilities, It has been realized that a majority of persons with disabilities can lead a better quality of life if they have equal opportunities and effective access to rehabilitation measures, 25.1 OBJECTIVES After you go through this Unit, we expect you to be able to: * Analyze the problems faced by the persons with disabilities in their day to day lifes © Appreciate the rights of the persons with disabilities; * Describe the international efforts for the protection of the rights of persons with disabilities; and © Explain the Significance of the national laws and poli and promotion of the rights of persons with disabilities. 25.2 RIGHTS OF PERSONS WITH DISABILITIES: INTERNATIONAL PERSPECTIVE -s for the protection At international level, the United Nations Charter in its Preamble reaffirms faith in the fundamental human rights, in the dignity and worth of human persons and in the equal rights of men and women, One of the purposes of the UN is 10 promote and encourage respect for human rights and fundamental freedoms for all without distinction as to race, sex, language of religion. The Universal Declaration of Human Rights (UDHR), 1948, in its preamble, clearly states that recognition of the inherent dignity and of the equal and inalienable rights of afl members of the human family is the foundation of freedom, justice and peace in the world. The Declaration emphasizes that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in the Declaration without distinction of any kind (United Nations, 1948), The disabled are also human beings and entitled to full enjoyment of all the human rights set forth in the Declaration. Rights of Persons with ‘igabilities 149Special Rights Law 150 Asa starting point in the direction of ameliorating the hardships of the disabled persons, the UN adopted a resolution in 1950 concerning rehabilitation of the physically handicapped and entrusted the responsibility on the Economic and Social Council. In 1971. the UN General Assembly adopted the “Declaration on the Rights of Mentally Retarded Persons” which states that people with mental impairments are entitled to the same rights that their fellow men enjoy in medical care and economic security, and the right to tive in family and in community. This remains the magna carta of the rights of mentally retarded persons even today. An important first step in the global recognition of equal rights of the disabled persons was the “Declaration of the Rights of Disabled Persons” adopted by the UN General Assembly in 1975, The Declaration aims to assist the disabled persons to develop their abilities in most varied fields of activities and promoting in so far as possible their integration into normal life, Itenvisages the Various rights of the disabled such as right to medical and psychological treatment, medical and social rehabilitation, education, counseling and other services to ensure their social integration. Entitlements to live with ones family, to participate in social and recreational activities and freedom from discrimination with respect to accommodation are also enumerated (United Nations, 1975). Along with these developments, the UN had also proclaimed 1981 as the International Year of Disabled Persons, 1983-1992 as the Decaule for Disabled Persons and every 3° December as the International Day of Disabled Persons. The main objective was to encourage disabled persons to organize themseives, to enable them to express their views and to secure their rights to participate in the work of policy-making bodies and in the management of the society in general (www.aifo.ivenglish/...manual_buman_rights-disability-eng07), The General Assembly, in its 37 session in December 1982, adopted the World Programme of Action concerning Disabled Persons (WPA). “Equalization of Opportunities” was the main theme of WPA which demands participation of the disabied persons in decision-making. A major event was the appointment of a special rapporteur on human rights and disability by the Sub-Comumission on Prevention of Discrimination and Protection of Disability in 1984 (http:// www.unhehr.ch/html/menu3/b/72.htm). However, in spite of all these declarations, recommendations and resolutions, the member States were not legally obliged to take specific steps to protect and rehabilitate the disabled. This lacuna made it urgent to formulate a new and comprehensive convention to promote and protect the rights and dignity of the disabled. After a series of efforts, the UN General Assembly adopted the “UN Convention on the Rights of the Disabled Persons” on December 13, 2006. This Conyention is highlighted, in brief, below. India is a signatory to the Declaration on the Full Participation and Equality of People with Disabilities in the Asia Pacific Region. india is also a signatory to the Biwake Miflennium Framework for Action towards an inclusive. barrier free and rights-based society. India signed the UN Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities on 30th March 2007, the day it opened for signature. India ratifies the UN Convention on 1” October 2008,25.2.1 United Nations Convention on the Rights of the Disabled Persons The main objective of the Convention is to guarantee effective protection of the disabled and to ensure that they can enjoy the full range of human rights — civil, political, economic, social and cultural. The Convention obligates the member- States to enact laws and take measures to protect and promote the rights of the disabled and abolish biased legislations, customs and practices which discriminate against the disabled persons, 25.2.1.1 Definition of Disability The Convention adopts a social model of disability, and defines the disabled persons as 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. 25.2.1.2 Prevention of Discrimination The Convention stresses that persons with disabilities should be able to live independently and participate fully in all aspects of life. To this end, State parties should take appropriate measures to ensure that persons with disabilities have access to the physical envionment, to transportation, to information and commusications technology, and to other facilities and servives open or provided to the public. 25.2.1.3 Right to Education ‘The Convention states that persons with disabilities should be guaranteed the right to inclusive education at all levels, regardless of age, without discrimination and on the basis of equal opportunity. State panties should ensure that: © children with disabilities are not excluded from free and compulsory primary education, or from secondary education; * adults with disabilities have access to general tertiary education, vocational training, adult education and lifelong learning; * persons with disabilities receive the necessary support, within the general education system, to facilitate their effective education; and * effective individualized support measures are put in place to maximize academic and social development. State Parties should take appropriate measures, such as: 1) endorsing the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication, and orientation and mobility skills, including facilitating peer support and mentoring: 2) supporting the learning of sign language and promoting the linguistic identity of the deaf community; Rights of Persons with Disabilities 151Special Rights Law 152 3) ativocating that education of persons, partictilarly childten, who are blind and/or deaf, is delivered in the most appropriate languages and means of communication for the individual; and 4) employing teachers, including teachers with disabilities, who are qualified in sigh language and/or Braille, and to train education professionals and staff about disability awareness, use of augmentative and alternative modes and formats of communication, and educational techniques and materials to support persons with disabilities, 25.2.1.4 Right to Health Article 17 of the Convention states that, every petson with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others. 25.2.1.5 Participation Rights ‘The Convention recognised that “disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others” and that “persons with disabilities continue to face barriers in their participation as ‘equal members of society.” The Convention makes participation of the disabled one of its principles, stating “The principles of the present Convention shall be full and effective participation and inclusion in society”, subsequently enshrining the right of disabled to participate fully and equally in the community, education, and all aspects of life including political and public life, cultural life, leisure and sports. State parties should take appropriate measures such as: 1) To enable persons with disabilities to have the opportunity to develop and utilize their creative, artistic and intellectual potential not only for their own, benefit but also for the enrichment of society. 2) To ensure, in accordance with international law, that law protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials. 3) Toensure that persons with disabilities should be entitled, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture. One of the fundamental obligations contained in the Convention is that national law should guarantee the enjoyment of the rights enumerated in the Convention. State parties should, thus, consider the best ways of giving effect to the rights guaranteed by the Convention in domestic law. Implementing legislation should include the terms of the Convention or a specific reference to them, in order to indicate clearly that the laws should be interpreted in accordance with the letter and spirit of the Convention. The first meeting of the Conference of State parties was held on 31 October and 3 November 2008 (United Nations, See ww.un.org/ disabilities/default.asp?id).Check Your Progress Notes: a) Space given below the question is for writing your answer. b) Check your answer with the one given at the end of this unit under “Answers to ‘Check Your Progress’ Questions”, 1) Whatare the important rights provided for in the International Convention on the Rights of Disabled Persons, 20067 25.3. RIGHTS OF PERSONS WITH DISABILITIE: NATIONAL PERSPECTIVE-CONSTITUTIONAL, LEGALAND POLICY MEASURES In India approximately 5 to 6% of the total populations are disabled (Evance Kalula, 2006). The Constitution of India expressly recognizes the duty of the State to protect the rights of the disabled. To ensure social justice is one of the prime objectives of the Constitution of India. The Constitution envisages the concept of Welfare State and itis the duty of the State to raise the level of nutrition and standard of living and to improve public health. The State is also duty-bound to make effective provisions for securing the right to work, education and public assistance in cases of unemployment, oid age, sickness and disablement. Besides these, entry 9 of the List II to the Seventh Schedule of the Constitution is specifically titled “Relief of the Disabled and Unemployable.” In furtherance of the constitutional provisions, the Indian parliament passed a number of legislations to protect and promote the rights of the persons with disabilities. These legislations are briefly discussed below. 25.3.1 Legislations for the Disabled Persons ‘The Constitution of India ensures equality, freedom, justice and dignity of all individuals and implicitly mandates an inclusive society for all including the persons with disabilities. The Constitution in the schedule of subjects lays direct responsibility of the empowerment of the persons with disabilities on the State Governments. Therefore, the primary responsibility to empower the persons with disabilities rests with the State Governments. Under Article 253 of the Constitution read with item No.13 of the Union List of the Seventh Schedule, the Government of India enacted “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995”, in the effort to ensure equal opportunities for persons with disabilities and their full participation in nation-building. The Act extends to whole of India except the State of Jammu and Kashmir (Note: The State of Jammu & Kashmir Rights of Persons with Disabilities 153Special Rights Law 154 has enacted its own Act — The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998). A multi-sectoral collaborative approach, involving all the appropriate Governments and authorities (i.e. Ministries of the Central Government, the State Governments/UTs as well as Central/State undertakings, local authorities and others), is being followed in implementation of various provisions of the Act. Following are the Acts specially related to the disabled people, in addition to common laws equally applicable to them, in our country: 25.3.1.1 The Mental Health Act, 1987 This is an Act which consolidates and amends the law relating to the treatment, and care of mentally-ill persons, and to make better provision with respect to their property and affairs and for matters connected therewith or incidental thereto. 25.3.1.2 The Rehabilitation Council of India Act, 1992 The Act was created to provide for the constitution of the Rehabilitation Council of India for regulating training of the Rehabilitation Professionals and maintaining, of a Central Rehabilitation Register and for matters related to these issues. The professionals who come under the purview of the Act include the following. © Audiologists and speech therapists. * Clinical psychologists. © Hearing aid and ear mould technicians. © Rehabilitation engineers and technicians. © Special educators for teaching and training the handicapped. © Vocational counsellors, employment officers, and placement officers. © — Multi-purpose rehabilitation therapists and technicians, © Speech pathologists. © Rehabilitation psychologists. © Rehabilitation social workers. © Rehabilitation practitioners in mental retardation. © Orientation and mobility specialists. * Community based rehabilitation professionals. © Rehabilitation counsellors/administrators. © Prosthetists and orthodontists, © Rehabilitation workshop managers. 25.3.1.3 The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 The Act is guided by the philosophy of empowering persons with disabilities and their associates. The Act requires the appropriate government to endeavor, ensure and promote equality for people with disabilities. The government is also required to frame schemes for the rehabilitation of the disabled people.