ABSTRACT: Disability is an evolving concept and is a serious human rights issue. The persons with disabilities have fought against centuries of biased assumptions, harmful stereotypes, and irrational fears and facing social and economic marginalisation for generations. The slogan of UDHR stating that all human beings are born free and equal in dignity and rights is far from being a reality for disabled individuals. At the international level, they share a common experience of discrimination, inequality, lack of facilities, barrier free environment and are denied the physical and economic opportunities that could give them a socially, economically fulfilling and mentally creative life. The provision of help and sustenance to the poor and destitute has been part and parcel of the Indian cultural heritage. However, the current system is fundamentally flawed in India; the provision of accessible environment, disability support services, job reservation and rights issues have to be contextualised within the larger picture of deprivation and marginalisation despite the fact that the State has played a very important role in taking the lead in formulating acts and policies, initiating disability prevention, rehabilitation programmes and promoting organisations affecting the lives of millions of disabled in the country. In this light, the paper proceeds to understand disability and its paradigm shift. In order to make the study richer, a brief overview of the disability laws in the United Kingdom and the United States of America will be taken as a reference point. The object is to survey the rise and influence of the rights-based approach to disability in these jurisdictions. The human rights model with its particular emphasis on non-discrimination is the key point to argue that until this model is reflected in formulating disability legislations, the promotion and protection of the rights of the disabled would be a distant dream.
Key Words: Disability, Discrimination, Inclusion, Rights
A disabling condition can be acquired at any stage of life. It may be due to a deformity or a congenital disease, but the important issue is to see how we respond to such a disabling condition both as an individual and as a member of the society. In every society the examples of stark contrasts of success, failure, optimism, pessimism, hope and despair are many. The instances of acceptance or stigmatisation or rejection are innumerable. Indeed, in a few societies there are cases of superb care and protection for disabled persons; however, in a vast amount of communities, there is evidence of little care. But the degree of social disadvantage incurred by someone who is completely paralysed from the waist down, who has not only lost the use of their legs, but also their bowels, bladder and sexual organs, and is therefore totally dependent upon others for the most basic of bodily functions, is vastly different from the degree of social disadvantage incurred by someone who suffers from a speech impediment.1
Disability has been classified as a human rights issue under international law in the 1980s. The United Nations (UN) human rights system's responsibility to take action to protect and promote the human rights of people with disabilities has got wide recognition. It is important to note that there has been a paradigm shift from the social model to the Human Rights model in relation to the way in which disability is regarded. The reforms in this latter sector have intended to provide equal opportunities for disabled people and to expose their segregation, institutionalisation and exclusion as typical forms of disability–based discrimination. With the evolution of such civil rights legislations for disabled persons via the Disability Discrimination Act2 , the American with Disabilities Act3 the Persons with Disability Act4 and Equality Act5 , national legal paradigms shifted even further from welfare law towards civil rights law. This new dimension of disability law has been welcomed as a major milestone on the path toward eventual recognition of the human rights of disabled people, a path which more and more governments seem to be willing to take.6
The non-governmental organisations focus on disability by keeping the traditional human rights norms and instruments at the central point. At the time of drafting of the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic Social and Cultural Rights (ICESCR) the approach to disability was ignored. But later, these treaties were interpreted in a way that supported the human rights approach to disability. Indeed, the General Comment No. 18 to the ICCPR, which deals with the right to equality (ICCPR, Art. 25), clearly rejects the concept of formal equality in the human rights context. The comment affirms that equal treatment does not always mean identical treatment and that States have a duty to take steps to eliminate conditions that perpetuate discrimination.7 The Committee on Economic, Social and Cultural Rights went even further and adopted a General Comment on how to interpret and implement the ICESCR with respect to persons with disabilities.8 General Comment No. 5, which the committee adopted in 1994, is the only legal UN document to date that broadly defines disability-based discrimination. The General comment has categorically focused on the human rights approach to disability and clearly demanded an anti-discrimination law. Similarly, the Committee of the Convention of Elimination of Discrimination against Women (CEDAW) has asked the States to include specific information with respect to women suffering from disability. Furthermore, the International Convention on the Rights of the Child, 1989(CRC) has also included specific provisions concerning persons with disabilities that reflect a strong human rights approach9 . Article 23 of this convention specifically mentions that children with disabilities (mental or physical) have the right to life with dignity. The focus is that the State must recognise the need to provide children with disabilities special care, family assistance, free education, health, training, etc. in accordance with the family in question’s financial situation and aim for the child's social integration. At the same time the State shall take effective measures to prevent disabilities in children. These examples of international developments highlight the growing momentum for a human rights approach to disability at the international level.
The main argument is that the rights based discourse has provided the additional entitlements to the persons with disabilities but it has miserably failed to alter the way in which disability is construed. Despite the legislative changes, the lives of many people have not changed. The challenge remains to ensure that the statements and commitments have an impact on the lives of people with disabilities at the local and national level. To that end, many efforts have been made on strengthening enforcement mechanisms related to disability rights and monitoring government compliance with human rights obligations.10 It is important to highlight that in developed countries like the United Kingdom (U.K.) and the United States of America (U.S.A.), tremendous efforts have been made in the form of laws and support services; most importantly, the effective implementation of such measures are monitored properly. However, in developing countries such as India, the issue of disability needs to be treated with more diligence; for instance, in India the majority of the disabled persons live in isolated rural areas11 and consequently are sincerely neglected. Although the Constitution of India guarantees persons with disabilities the full range of civil, political, economic, cultural and social rights, the arrangements necessary to translate the constitutional guarantees into reality have been conspicuously absent until recently. Moreover, in countries like India, the problem is made more complex by the fact that physically challenged persons are usually extremely poor. Therefore, we must continue to insist on a human rights perspective and on effective monitoring mechanisms to expose government inaction and provide recourse for violations of the human rights of people with disabilities in countries like India and in general.12
Historically, the societies across the globe have attempted to describe the aspect of disability in the existing social order. In the Medieval period, derogatory and stigmatic terms such as ‘lepers’, ‘deaf’, ‘dumb’, ‘natural fools’ were extensively used to refer to differently-abled persons. The public at large had different opinions about disability. According to one approach, they were pursued by God for sinning whilst others believed that they were under the hostile influence of the planet Saturn. Few others opined that they were closer to God and would go to heaven soon.13 Gradually the network of hospitals emerged for the protection of disabled persons in religious establishments. In medieval England, the hospitals for leprosy, blindness or physical disability were constructed. In 13th century the first mental hospital ‘Bedlam’, which is known as ‘Bethlam Hospital’, was built in the city of London. The sole purpose of building this hospital was to house mentally sick people.14 This is the first formal institution for disabled people in England.15 With the same objective in mind ‘almshouses’ were also built for the disabled and elderly disabled persons.16
The period of 1485-1660 had a lasting impact on the lives of the people with disabilities. Unfortunately, during this period King Henry VIII ordered the dissolution of monasteries. Various religious houses across the U.K. were also demolished in a drive against disabled persons. At this point in time, with the aim of enhancing their reputation, certain rich benefactors started funding the buildings for the disabled.17 Thus, the duty of caring for the disabled was no longer limited to the religious sector. Consequently, in London, new hospitals were built and the old ones were reconstructed. After ‘The Great Fire of London of 1666’, rich traders and merchants founded a massive building programme which envisaged the establishment of grand new hospitals. The Royal Bethlam Asylum, Royal Chelsea and Greenwich hospitals were built exclusively for disabled soldiers and sailors18 .
In the 18th century, the disabled people only had their homes and communities to resort to. However, in 19th century, the industrial revolution had a dramatic impact on the buildings designed and built for disabled persons. Moreover, at this time a new class of medical professionals, referred to as ‘alienist’ (later known as psychiatrists), emerged. At first, alienists believed asylums were peaceful places where patients could be restored by 'moral treatment'. But by the end of the century, they had lost their 'therapeutic optimism' and believed that most patients were 'incurable'. They believed that keeping disabled persons in asylums was safe as some of them suffered from chronic cases which would require them to stay in the asylums throughout their entire lives.19
Whilst there were mass killings of the disabled persons in Germany in 1945, post Second World War, in the U.K in 1944, the Disability Employment Act was enacted and national health services extended rehabilitation services to the disabled workers of industrial accidents. Soon the social model of disability gained momentum across the U.K. whereby the buildings and other structures were built in a way to be accessible to all sections of the society because the societal barriers, not individual characteristics, presented the greatest challenge to full participation and inclusion of people with disabilities in the mainstream.20
In the U.S.A., disability was made visible in American life as an outcome of military engagement after World War 1. It was managed by the federal government in the War Department and, later, at the Veterans Administration. Civilians with disabilities were largely invisible and unaccounted for by the government until the latter half of 20th century when the social and physical isolation of people with physical and mental disability became the focus of the civil rights legislation. Until that time, society managed to keep people who were different out of sight by building institutions, such as, nursing homes, asylums, and homeless shelters and using statutes, such as, ‘ugly laws’ to prohibit from public places people whose different appearance might offend the citizenry.21
It is apparent that the Smith-Fess Vocational Rehabilitation Act22 and each of its amendments brought additional recognition and benefits for disabled civilians. In 1943, people with mental retardation were included in the legislation, making vocational training available to them for the first time. The polio epidemics of the early 1950s also brought new attention to the needs of civilians. In 1954, rehabilitation was moved from the Veterans Administration into the new federal Department of Health, Education, and Welfare and funds were allocated for research and demonstration grants. However, none of this legislation included any consideration of building accessibility for the disabled?. Its entire focus was on the clinical impairments of people with disabilities and their management.23 In 1958, the serious effort to address building design with respect to disabled people was sponsored in a conference by the President's Commission on Employment of the Handicapped, the National Easter Seal Society, and the American National Standards Institute (ANSI), a private standard-setting body that called for the development of voluntary standards for the design of accessible buildings.24
Interestingly, by the 1960s, the civil rights movement began to take shape, and disability advocates saw the opportunity to join forces alongside other minority groups, to demand equal treatment, equal access and equal opportunity for people with disabilities.25 In 1973, the Rehabilitation Act was passed, and for the first time in history, civil rights of people with disabilities were protected by law. The Rehabilitation Act of 197326 provided equal opportunity for employment within the federal government and in federally funded programmes, prohibiting discrimination on the basis of either physical or mental disability.
In ancient India there is not much evidence of inhumane and barbaric exposure of children and adults with disabilities. However, Manu27 was never in favour of such equality. In his much publicised Civil and Criminal Codes28 , he mentioned that, with whatever limb a man of lower caste hurt a man of higher caste, that limb should be cut off.29 Thus, it is clear that despite the compassion and pity showered on the physically challenged persons in the ancient Indian system, the equal status was never given to them.
When India was made a colony by the British rule, a number of missionary or charitable activities were initiated under official patronage for disabled persons. The concept of charity was introduced in India by the British rule. At that time disability was not considered to be a serious issue and there was not much improvement with regards to the assistance offered to disabled persons. In the colonial era, the indigenous culture and its belief systems were completely ignored.30
In independent India too, certain charitable institutions were established in order to provide basic services to disabled persons. In the first three Five Year Plans (1951-1966), grants in aids were given to non-governmental organisations. National institutions were established to provide training to those who were going to serve in the charitable organisations. The Central Social Welfare Board was also set up by the Government of India to organise welfare programmes for vulnerable sections, such as differently-abled persons. This approach of the government continued to mark the policy approach and therefore the Steering Committee for Social Welfare in the tenth Five year plan concentrated on activating both the community and the voluntary sectors, in case India really wanted to help its physically challenged citizens.31
After India’s independence from the British rule, the policy for the welfare of the physically challenged persons was framed in India and the National Council for the Welfare of the Disabled Persons was set up to prioritise disability programmes, as well as to frame policy guidelines for the entire country. 32
Models of Disability:
In recent times, the programmes aimed at rehabilitating the disabled persons depend upon the models of disability. These models are influenced by two fundamental philosophies:
• Physically challenged persons as dependent upon society
• Physically challenged persons as equal members of the society
The first philosophy results in segregation and discrimination of disabled persons and the second leads to choice, empowerment, equality of human rights and integration.
The different models of disability are:
1. Religious Model
2. Moral Model
3. Charity Model
4. Social Model
5. Economic Model
6. Human Rights Model33
Disability is positioned at an important pedestal of human culture by the Human Rights Model. According to the Human Rights Model, all human beings are entitled to certain rights which are inalienable by virtue of being human irrespective of their disabilities. By emphasising that the disabled are equally entitled to rights as others, this model mirrors the spirit of the Universal Declaration of Human Rights (1948) according to which, ‘all human beings are born free and equal in rights and dignity’. 34
The Human Rights Model aims at the inherent dignity of human beings. It places the individual at the centre of all decisions affecting him/her and, most importantly, locates the main problem outside the person and in society. The problem of disability under this model stems from a lack of responsiveness by the State and civil society to the difference that disability represents. It follows that the State has a responsibility to tackle socially created obstacles in order to ensure full respect for the dignity and equal rights of all persons.
Undoubtedly, the Human Rights Model of thinking is breaking grounds where disability is seen as an integral part of the society. International and national policies35 are based ideologically on the Human Rights Model and they are identifying the barriers in society that restrict the participation of disabled persons. Earlier the emphasis was on correcting the impairment and rehabilitating the individual so they can fit in society; now, there is recognition that disability is not a deviation, therefore all systems and structures in society must be improved so as to allow equal access and full participation. Moreover, States are duty bound to protect all the rights holders from political, economic and social interference, as well as to ensure that conditions for equal enjoyment of rights are created with the introduction of positive and special measures. In fact, the human rights perspective means viewing people with disabilities as subjects and not as objects. It entails moving away from viewing people with disabilities as problems towards viewing them as rights holders.36 For instance, this can be achieved by enhancing the capacity of the basic systems of the society and its functionaries; it necessitates the introduction of legislation and provisions for effective preventive and penal remedies.
Meaning and Definition:
The prefix dis- has meanings such as; ‘no,’ ‘not any,’ and ‘apart from.’ Able means competent or capable. Hence the term ‘disabled’ literally means a person without capability or competence.
In general connotation, disability is of two kinds.
• Legal Disability
• Physical Disability
Legal disability can be defined as an absence of legal capacity to do certain acts or enjoy certain legal rights.
In the Indian context, ‘Physical Disability’ under the Persons with Disability Act 199537 is of different kinds:
• Leprosy cured persons
• Hearing Impairment
• Locomotor Disability
• Mental Illness and Mental Retardation
• Autism, Cerebral Palsy
• Learning Disabilities (Dyslexia), Writing Disabilities (Dysgraphia) etc.
In the American context, Americans with Disability Act 199038 (ADA) has defined a person as disabled if he/she is suffering from:
a) A physical or mental impairment that substantially limits one or more of the major life activities of such individual.
b) A record of such impairment
c) Being regarded as having such an impairment
Thus, it has given a three-pronged definition to disability, making it very broad and not restricting it to a particular medical condition, but even extending it to past impairment and being regarded as handicapped or disabled39 .
The U.K. Disability Discrimination Act 1995 (DDA)40 states that a person has a disability if he/she has a physical or mental impairment, which has a substantial and long term effect on the ability to carry out normal day to day activities and includes persons who have had a disability.
According to the Declaration on the Rights of Disabled Persons41 , the term disabled person refers to ‘any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and or social life, as a result of a deficiency, either congenital or not, in his or her physical or mental capabilities.’ ‘The UN Convention on Disabled people42 defined it as ‘Persons with disabilities include those who have long-term physical, mental, or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’ This latter definition is used in a broader sense and it includes people with different long term diseases; for example, infirmity due to old age, people infected with HIV or suffering from AIDS. The term include implies that this definition is non-exhaustive.
According to the Human Rights Model, disability ‘… is the disadvantage or restriction of activity caused by a society which takes little or no account of people who have impairments and thus excludes them from mainstream activities’43 .
Quite understandably, the definition of disability given in ADA, the DDA and the UN Convention on Disabled People (2006) is wide and open ended as it is used in a broader sense. On the other hand, the definition of the term disability given in the Indian Persons with Disabilities Act 1995 is very narrow and concise as it is more of a medical definition of persons with disabilities.
Rights at Stake44 :
In general, persons with disabilities suffer from discrimination based on society's prejudice and ignorance. In addition, they often do not enjoy the same opportunities as other people because of the lack of access to essential services.
International human rights law ensures that every person, irrespective to his bodily status, is entitled to the following rights:
1. The right of equality before law
2. The right to non-discrimination
3. The right to equal opportunity
4. The right to independent living
5. The right to full integration
6. The right to security
Unfortunately, in context of disabled persons, these rights are at stake and are extensively violated. Even though the policies regarding disabilities are often dominated by the notion of ‘equalisation of opportunities’,45 disabled persons still tend to share one common experience; discrimination. Arguably, the living conditions of the physically challenged persons are worse than those of other citizens. They are isolated and socially marginalised and are facing discrimination in virtually all aspects of life.46
Major Legislations on Disability in the U.S. A., the U.K. and India:
The predominant source of disability laws in the U.S.A., the U.K. and India are the equality laws. In India and the U.S.A., equality guarantees are enshrined in their constitutions. The fourteenth amendment in the U.S. constitution, adopted in the year 1870, has been directly incorporated into Article 14 of the Indian Constitution.47 It has also been emulated in Article 15 and 16 of the Constitution of India. However, in the U.K., there is no written constitution.48
Apart from constitutional protections, these jurisdictions have given statutory protections to the persons suffering from disability. The U.S.A. has specific statutes with stringent actions to prohibit discrimination against people with disabilities. Also, in India, there are laws such as, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, that address particular aspects of disability; furthermore, there are ongoing efforts to create new legislation on disability.49
In contrast, in the U.K., there are comprehensive statutes. The U.K. law has drawn a distinction between Equality of Provision and Equality of Outcome, particularly in respect to disability rights. For instance, the Disability Discrimination Act 1995 and the Equality Act 2010 both imply that treating two people in an identical manner may not be sufficient enough to guarantee that they have been treated equally in law if the task, physical environment or service does not offer them equality of outcome.50 The law provides for disabled people to request the provision of 'reasonable adjustments' to ensure that they are able to access employment, services and the built environment, with the same potential as non-disabled people.51 The major disability related legislations in the UK are; Disability Employment Act 1944, National Health Service Act 1946, Chronically Sick and Disabled Persons Act 1970, Disabled Persons Act 1986, Disability Discrimination Act 1995 and Equality Act 2010.
In India there is no specific anti-discrimination statute; however, in order to deal with specific aspects of disability, national legislations have given them extensive rights. The predominant Acts which address the disabled in one way or another are; the Workmen’s Compensation Act 1923,Employees’State Insurance Act 1948, the Payment of Gratuity Act 1972,National Policy on Education 1986,the Mental Health Act 1987,the Rehabilitation Council of India Act 1992,the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995,the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999 and National Policy Statement 2006. The legislations, such as the Persons with Disability Act 1995, place a wide range of responsibilities on states and public bodies. It should be noted that this aforementioned Act does not provide individual rights; it requires the government or individual states to provide various schemes and actions for the protection and promotion of the rights of disabled persons.
In the U.S.A. the disability related laws are the Smith-Fess Act 1920, Architectural Barriers Act 1968, Fair Housing Act 1968, The Rehabilitation Act 1973, and the Individuals with Disabilities Education Act (IDEA) 1990, the ADA and Telecommunications Act 1996. In the early decades of the 20th century, federal governments initiated programmes to assist people with disabilities and the idea of vocational rehabilitation of disabled persons, so that those who have been injured in the military or in the workplace, return to the work force by overcoming such injuries. Several other programmes were developed to provide income assistance to those workers who were temporarily or permanently disabled and were thus unable to earn an income.52 The last decades of 20th century witnessed a tremendous increase in the magnitude of federal programmes aimed at protecting the rights of people with disabilities in the areas of employment, education, public transportation and building accessibility.53
A Shift from Welfare Approach to Rights Approach:
In the 1970s and 1980s there was a strong wave of disability rights movements across the globe. Under the aegis of the UN and its agencies, a range of national level disability related initiatives were taken up in developed and developing countries (including India).The objective was to ensure equalisation of opportunities and full participation of persons with disabilities through specially enacted disability related legislations. In the 1990s the voices of physically challenged persons which were arguably muted up until then, had started getting collective expression. The disability movement cut across race, caste, class and divisions and it started framing groups to promote and protect the rights of physically challenged persons at the national level.54
From the 1980s onwards, parallel tendencies were growing pertaining to disability rights movements. On the one hand, there were educated disabled professionals who were in favour of provision of services and dissemination of information relating to disability programmes and policies of the government. They played a key role in influencing the policies of the government by networking. Equal partnerships were also claimed by them in various development programmes for disabled persons in India. On the other hand, there was another group of disabled and regular activists in community rehabilitation programmes (in rural and urban areas) that aimed to promote the rights of physically challenged persons. The third group was made up of scholars from disability studies and they were engaged in knowledge production within universities and research institutions. These disability rights groups worked hand in hand and lobbied for disabled friendly legislation in India. The launch of the Asian and Pacific Decade of Disabled Persons in 199355 drastically boosted the movement in India. In that year, the Indian government organised a national seminar in New Delhi to discuss the issues concerning disabled citizens. The seminar highlighted the importance of having comprehensive legislation aimed at protecting the rights of persons with disabilities. However, it was only after intense lobbying of the Disabled Rights Group (DRG) that the crucial legislation was passed in 1995 in India.56
In U.K. Disabled people have been using the Human Rights Act, to change things in their daily lives. For example, a disabled woman who needed a particular type of bed (so she could get up easily) was told by her local occupational therapy department they would only pay for a single bed. But this would mean she could not sleep next to her husband. Eighteen months later, following legal advice, she reminded the authority that they must respect her right to private and family life. Within three hours, the occupational therapy department had secured funding to buy her the double bed.57
It is important to note that in India, until the 1990s, physically challenged persons constituted a major part of the disability rights movements and the majority of those suffering from mental and development disabilities were left out. Therefore, the families of those suffering from intellectual disabilities pushed for the passing of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act.58 This Act was enacted in 1999 and it deals with the issues relating to developmental disabilities.
Furthermore, from the Ninth Five year Plan (1997-2002) onwards there was a slight shift from a welfare-based approach for the disabled to a rights-based approach. A comprehensive legislation i.e. the Persons with Disabilities Act was enacted in 1995 and in 1999 the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act came into existence. These legislations covered a wide range of activities, such as; issuance of disability certificates, prevention and early detection of disabilities. The focus is on integration of disabled students in mainstream schools and removal of architectural barriers from schools, colleges, and universities, as well as providing incentives to private sector employers to ensure that persons with disabilities constitute at least 5% of their workforce.
Sadly, in spite of legislations to promote and protect the rights of disabled persons, there is still a need to frame schemes for payment of an unemployment allowance to those disabled people who have been registered with a Special Employment Exchange59 for over two years and have not been placed in any paid employment. A serious note of the slow pace of implementation of the enabling legislations was taken in the Tenth Five year Plan(2002-2007) It was agreed that a multi-sectoral and multi-collaborative approach was needed to make the provisions of the Persons with Disabilities Act more effective. It was recognised that the Ministry of Social Justice and Empowerment, being the nodal Ministry, should play a lead role in ensuring the objectives of the Act. To ensure adequate financial support for disabled persons, the Tenth five year plan advocated the introduction of a ‘Component Plan for the Disabled’ in the budget of various Ministries/Departments. In the Eleventh Five year Plan (2007-2012) it was observed that despite enabling legislations and various provisions contained in the earlier plans, the commitments towards disabled remained unfulfilled. Therefore, in this Plan, the approach was more pragmatic and serious efforts were made to empower the disabled and special attention was placed on the monitoring mechanisms.60
The Persons with Disability Act 1995 has been the most comprehensive legislation for physically disabled persons in India and it is a convenient tool for the disability activists to push their rights-based demands. The movement was further strengthened by the National Centre for Promotion of Employment for Disabled People (NCPEDP), which launched ‘Disability 2000’, a national campaign in collaboration with disability rights organisations.
Indian Disability Law and UN Convention on Rights of Persons with Disabilities (CRPD):
Rights of physically challenged persons have not been at the forefront of human rights advocacy and scholarship.61 However, there has been a flurry of activity in the recent years with India’s ratification of the UN Convention on the Rights of Persons with Disabilities. The UN Convention on the Rights of Persons with Disabilities, the first Human Rights Treaty of this millennium, was opened for signature on 30th March 2007 and came into force in May 2008. India signed this Convention on the very first day and ratified it without any reservation in October 2007.It was obligatory on the part of the government to synchronise its laws or legal provisions with the terms of the Convention. However, by not signing the optional protocol, India has managed to safeguard itself in case of not fulfilling the commitments it made under CRPD.62
Prior to the UN Convention on the Rights of Persons with Disabilities, rights of physically challenged persons were seen as a welfare or social policy issue. The UN Convention on the Rights of Persons with Disabilities introduced a paradigm shift in the realm of disability rights from the welfare approach to a rights based approach.
Besides the existing rights mentioned in the aforementioned Acts, there are certain rights under the major themes of life and liberty rights such as; equality of respect and opportunity, right to association and social participation, right to political participation, right to health and rights of children and women suffering from disability, that are referred to in the UN Convention on the Rights of Persons with Disabilities, but not appropriately incorporated within Indian disability laws and not mentioned in the Acts. Interestingly, a number of these rights are included in the fundamental rights of the citizens by the Constitution of India, but without mentioning reasonable accommodation for physically challenged persons63 .
The Status of Disability Laws in India
Presently, India awaits a new law to empower its disabled people. Arguably, the existing law, the Persons with Disabilities Act 1995, has failed to provide them with a better quality of life. It is apparent that the new proposed law with teeth alone can change the system and approach towards disabled persons.64
This Bill which seeks to replace the Persons with Disabilities Act 1995, attempts to bring India in line with 21st century understanding of the rights of persons with disabilities, as captured in the UN Convention on the Rights of Persons with Disabilities, ratified by India.
What conclusions can one draw from the analysis of understanding disability? The war of ideas is almost over. The understanding of disability has and continues to change in response to increasing appreciation and assertion of rights of the disabled. It is moving away from being a matter of charity to one of human rights and equal opportunities for all. Universal access, education for all, equal opportunities and anti-discrimination laws are all examples of the new approaches to disability. However, the pace of transformation is extremely slow. On the brighter side, the human rights approach has been embraced very warmly by the disability movement and human rights institutions. Thus, the paradigm shift to human rights approach is universal. The majority of the countries across the globe are viewing disability as a human rights issue. The UN standard rules have helped legitimise this shift and the enactment of the UN Convention on Persons with Disabilities 2006 demonstrates that this shift is possible; undeniably, it is beneficial for both individuals and the communities. Quite understandably, the recognition of a paradigm shift at the level of approach is one thing and making it a reality is another thing. At the same time, we must also understand that strictly identical treatment would further aggravate inequality. Therefore, the concept of ‘reasonable accommodation’65 must be taken into consideration.
It is sad to remark that in India the current system is fundamentally flawed. Despite having a progressive constitution, an enlightened and alert judiciary, and a fast evolving legal regime with a clear disability focus, the ground level situation in the country leaves much to be desired. There is little impact of recent changes in law and policy, and that too is limited to small pockets of urban India. The slow pace of process of change can be attributed to the social construction of disability in a society that views it as an individual issue and considers family as the primary institution responsible for dealing with it. Perhaps, the continued faith in charities and a welfarist mindset are the major stumbling blocks in the process of mainstreaming disability in the development agenda.66
It is anticipated that the monitoring mechanisms have to be strengthened to achieve desired results and will have to focus on individual cases of human rights violations, legal cases, legislation, media portrayal of people with disabilities, and government programmes, services and practices. An effective monitoring in these five areas will expose the extent of discrimination faced by people with disabilities, provide the necessary documentation for various advocacy activities by disability organisations and help governments develop policy and plans to ensure the inclusion of people with disabilities in their societies.67
The need of an hour is to do significant work by educating people across different cultures and notions to expose government inaction and provide recourse for violations of the human rights of people with disabilities. Lastly, anti-discrimination laws are indispensable tools, as the importance of achieving actual economic, social and cultural rights for persons with disabilities should not be forgotten. By this we mean such social policy needs to be adopted to put positive support in place that will truly enable people to maximise the enjoyment of their rights.
Justice A.K.Sikri has remarked:
*Amratpal Kaur holds an LLM degree in Human Rights Law from Panjab University, Chandigarh, India and Post Graduate Certificate in International Human Rights Law from Nottingham University, UK.She is a PhD candidate and doing research on the topic of ‘Rights of Physically Challenged Persons: A Comparative study of UK, USA and Indian Laws’. She is a crusader of human rights of differently abled persons. She has authored books on “Promotion of Human Rights: Law and Implementation” and ‘Lectures on Human rights’ She has presented various articles at the national level seminars related to different aspects of human rights.
1 Colin Barnes, Disabled People in Britain and Discrimination: A Case for Anti-Discrimination Legislation, (Hurst & Co Ltd. in association with the British Council of Organizations of Disabled People 1991)
2 Disability Discrimination Act 1990 (U.K.)
3 Americans with Disabilities Act 1995
4 The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (India)
5 Equality Act 2010 (U.K.)
6 United Nations, General Assembly, Implementation of the World Programme of Action Concerning Disabled Persons. Report of the Secretary-General, U.N. Doc. A/54/388/Add.1 (1999).
7 General Comment No. 18, Report of the Human Rights Committee, U.N. GAOR, 45th Sess., Supp.No. 40, at 175, U.N. Doc. A/45/40 (1990).
8 Gerard Quinn, The Human Rights of People with Disabilities Under EU Law, in The EU and Human Rights (OUP 1999)281,290
9 United Nations Convention on the Rights of the Child, Article 23
10 Marcia Rioux and Anne Carbert, ‘Human Rights and Disability: The International Context’(2003)10(2) JDD
11 Nilika Malhotra, ‘Disability Rights Movements in India: Politics and Practice’, (2011) 6 EPW
13 Disability in the medieval period 1050-1485,
14 Melanie Close, ‘Timeline History of the Disabled People’s Movement’
15 Melanie Close, Timeline History of the Disabled People’s Movement,
17 Disability from 1485-1660,Historic England Archive
18 Disability from 1660-1832, Historic England Archive,
19 Disability in the 19th century, Historic England Archive,
20 Jayne Clapton and Jennifer Fitzgerald, ‘The History of Disability: A History of Otherness’,
21 Polly Welch, ‘A Brief History of Disability Rights Legislation in the United States’
22 Smith-Fess Act 1920, enacted after World War I, it was amended in 1943, 1954, and 1965, after World War II, the Korean War, and the Vietnam War respectively, to reflect changes in how people with disabilities were perceived and the availability of new treatment and rehabilitation protocols.
23 Polly Welch, ‘A Brief History of Disability Rights Legislation in the United States’ (n 21)
24 Raymond Lifchez, ‘Rethinking Architecture: Design Students and Physically Disabled People’( University of California Press 1987)
26 The Rehabilitation Act of 1973, s 504
27 Manu, in the mythology of India, the first man, and the legendary author of an important Sanskrit law code, the Manu-Smriti (Laws of Manu). The name is cognate with the Indo-European ‘man’ and also has an etymological connection with the Sanskrit verb man, ‘to think.’ Manu appears in the Vedas, the sacred literature of Hinduism, as the performer of the first sacrifice. He is also known as the first king, and most rulers of medieval India traced their genealogy back to him, either through his son (the solar line) or his daughter (the lunar line). Manu is considered as the first lawgiver of India.
28 Manu cited in Usha Bhatt, The physically Handicapped in India: A growing National Problem(Popular Book Depot 1963)
29 Manusmirit, Chapter VIII 267
30 Rubina Lal, ‘Disabilities: Background and Perspective’
32 cf Lal (n 30)
33 ‘Disability: Human Rights based model versus the Social, Medical and Charity models’ CUTS Centre for Consumer Action, Research & Training (CART),India(2011)< www.cuts-international.org/CART/pdf/Dis- Ability_Junction_03-2011.pdf >accessed 17 February 2015
35 National policies of countries such as the U.K., the USA and India.
36 Gerard Quinn and T Degener (eds) Human rights and disability: The current use and future potential of United Nations human rights instruments in the context of disability (OHCHR 2002)
37 The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)1995,s 2(i)
> 38 Americans with Disabilities Act of 1990, 42 U.S. Code,s 12102(2)
39 Jayna Kothari, Future of Disability in India, (Ist edn, OUP 2012)33
40 Disability Discrimination Act 1995,Part 1,s 1
41 Declaration on Rights of Disabled Persons 1975, General Assembly resolution 3447 (XXX) of 9 December 1975
42 UN Convention on Rights of Persons with Disabilities 2006,Art 2
43 Disability Manual (2005) NHRC