Protection of Human Rights of People with Disabilities Through Legislative Support

S. K. Rungta
Chairperson, Working Committee
South Asian Network of Self Help Organisations of People with Disabilities

Abstract Campaign for the protection of human rights of people with disabilities is launched in various countries in the Asian and Pacific region. India has succeeded in getting a comprehensive legislation passed and brought into force on 7th February, 1996 after a long and historic struggle by the self-help organizations of people with disabilities.

Human Rights is the first universally accepted ideology. Although most observers regard the formation of the United Nations and the promulgation of the universal Declaration of Human Rights as the beginning of the modern struggle to protect human rights, one can trace the origins of human rights back to early philosophical and legal theories of the 'natural law', a law higher than positive laws of states. According to these theories, individuals were entitled to certain immutable rights as human beings. The establishment of United Nations after the Second World War is an unambigous manifestation of recognition of these rights as every government undertakes to promote 'Universal respect for and observance of, human rights and fundamental freedoms without distinction as to race, sex, language, or religion'.

No doubt universal declaration of Human Rights adopted by UN Genaral Assembly by resolution No.217A(111) of 10th December 1948, which recognised the freedom of individuals as well as their rights to equality, is a milestone in this area, but people with disabilities were not specifically covered by this important international declaration. In spite of the fact that this segment of society constitutes 10 to 12 percent of the world's population, this declaration did not include the prohibition of discrimination on the ground of disability specifically. This reflects insensitivity and apathy of policy makers towards the people with disabilities. In fact, all initial policies and programmes were focused on the institutionalisation, giving passive community care and providing some welfare measures for them. All this resulted into denial of opportunities in different spheres of life, discrimination on the ground of disability and their social and cultural isolation. They were also not allowed in the process of planning, implementation and monitoring of policies and programmes designed for them even in the organisations working for them. Gradually, people with disabilities organised themselves in almost every part of the world and undertook their struggles for ensuring their fundamental human rights of equality and life with dignity.

Probably, it was for the first time in 1958 that an international covenant included the needs of disabled persons in Article 5 of discrimination (Employment and occupation) convention adopted by ILO. Under this article, the convention declared special measures in favour of various disadvantaged groups including people with disabilities to meet the specific needs to be an acceptation to forms of discrimination envisaged and prohibited by it. Later on, UN general Assembly vide its resolutions no.2865(XXVI) of 20th December, 1971 made the first International Proclamation on the Rights of Mentally Retarded Persons, one category of disabilities. This declaration recognises that mentally retarded persons have the same rights as other citizens. In addition, it also recognised their rights to development in all spheres of life as well as medical care and physical therapy. Four years later, UN General Assembly adopted a declaration on the rights of disabled persons through resolution no. 3447(XXX) of 9th December, 1975 which might be regarded as the most important document containing international commitment on the protection of the following human rights of disabled persons:

1. Right to respect for their human dignity (Para 3 of declaration)

2. Right to enjoy some civil and political rights as other human beings (Para 4 of the declaration of human rights)

3. Their entitlements to the measures designed to enable them to become as self-reliant as possible (Para 5 of the declaration)

4. Right to medical, psychological and functional treatment, including prosthetic and orthetic applicances , to medical and social rehabilitation, education, vocational training and rehabilitation aid, counseling, placement service, and other services which will enable them to develop their capabilities and skills to the maximum and will hasten the processes of their social integration or reintegration (Para 6 of declaration)

5. Right to 'economic and social security' and to a decent level of living (Para 7 of declaration)

6. Right to get their specific needs considered at all stages of social and economic planning (Para 8 of the declaration)

7. Right to live with their families or foster parents and to participate in all social, and cultural activities (Para 9 of declaration)

8. Right to be protected against exploitation or discrimination of any form (Para 10 of declaration)

9. Right to have legal aid for the protection of their persons and properties (Para 10 of declaration)

10. Right of organisations of disabled persons to be consulted in matters concerning them (Para 12 of the declaration)

Thus, it may be noticed that rights of people with disabilities were recognised by the member government of United Nations in the year 1975. But national action was imperative to guarantee these rights to them. There are two other major UN initiatives which helped the organisations of people with disabilities to persuade their respective governments for granting of fundamental human rights to this segment of society. While UN decade for disabled persons 1983-92 created an awareness among policy makers for promoting equality and participation of disabled persons, the Asian and Pacific Decade of Disabled Persons 1993-2002 proclaimed by UN concrete actions by the Governments in the region of the achievement of these goals. Adoption of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities by UN General Assembly in December, 1993 is yet another important international instrument in support of advocacy and realisation of these rights.

India being one of the most populous countries in ESCAP region has undergone similar challenges in the area of recognition and grant of human rights to disabled persons.

The region is experiencing rapid social and economic changes which have made marginalised groups such as disabled persons particularly vulnerable. In this changing scenario, there is a need to ensure that they have full access to their entitlements and to protect them for some of the consequences of rapid changes. Legislative support is one of the most important means of achieving this objective. We, therefore, start lobbying in India for the following three actions to get protection for the rights of people with disabilities:-

1. Inclusion of people with disabilities in the part relating to the fundamental rights of the Indian constitution guarantees fundamental rights to its citizens which include rights to equality, enjoy various forms of freedoms, rights against exploitation etc.. All these rights are justifiable but so far people with disabilities have not been specifically mentioned in this part of constitution which makes it difficult to get proper policies framed and measures adopted for the protection of these fundamental rights of people with disabilities.

So far constitutional provisions have not been suitably amended to include disabled persons in this part of the constitution. Though three committees constituted by the Government of India of legislative support to people with disabilities have made positive recommendations on this demand of organisations of people with disabilities.

2. A comprehensive legislation on the rights and measures for persons with disabilities:-

In this year, we are proud to have succeeded in getting a comprehensive legislation passed and brought into force on 7th February, 1996 after a long and historic struggles by self-help organisations of people with disabilities in general and National Federation of the Blind, and apex self-help organisation in particular. This legislation is a fine example of combination of right based legislation and service as well as welfare legislation.

During the process of its enactment, there had been wide consultations with NGOs working in the area of disability. It seeks to promote equality in all areas of life. It also prohibits discrimination on the ground of disability in every sphere. Some of the important rights guaranteed by it are as follows:

1. Right to have free education up to the age of 18 years.

2. Right to have preferential treatment in the matter of employment by reservation of 3 percent vacancies for them in Government and Public Sectors.

3. Right to have preferential treatment in allotment of land and housing.

4. Prohibition of discrimination on the ground of disability in any area of life, education, training and employment, etc..

5. Right to have access to buildings, roads and transport, and other public services.

Owing to unique federal structure of India, this central legislation has the challenging task involving provincial governments in its implementation. In order to meet this challenge, it provides the following implementing authorities:

1. Central Co-ordination Committee at central level and State Co-ordination Committees at provincial levels. NGOs working in the field of disabilities have been given adequate representation in these committees. These committees have been envisaged to serve as bodies responsible for planning and formulating policies and programmes for persons with disabilities.

2. Chief Commissioners at central level and State Commissioners at provincial levels - These Commissioners would be responsible for implementation of various schemes in different sectors of life envisaged by this law and monitor its work.

Since the violation of any provision of this law has been made. Violation of human rights of disabled persons guaranteed under this law as well as under Indian Constitution would be an offence.

3. Another important concern is in the area of identification of discriminatory provisions in the existing public laws on different subjects as well as inclusion of enabling provision in those law to enable people with disabilities to enjoy the rights guaranteed to them by the Constitution in the same manner as enjoyed by the non-disabled citizens. The self-help organisations have succeeded in getting the process initiated for such identification of legal provisions.

To conclude, campaign for the protection of human right of disabled persons is quite recent as the case in many countries in the Asia & Pacific region. Very few countries of ESCAP Region such as Australia, Hong Kong, the Peoples Republic of China, New Zealand, the Republic of Korea, Japan, Thailand, Pakistan and the Philippines have some legislations for the protection of rights of disabled persons. These legislations mark a welcome beginning for the elimination of discrimination on the ground of disability and their social, economic and cultural isolations. But there is a long journey ahead in our efforts to work for a society which is sensitive and caring for persons with disabilities. At this juncture, organisations both national and international in the area of disability should introspect and commit themselves to allow disabled persons to participate at all levels including decision making process which will have a favourable impact on the Government to promote equality and participation.

As a member of self-help organisation, may I therefore call upon the service provider to join this long struggle nationally and internationally with us on equal terms respecting the rights of self-help organisations for a new societal order for disabled persons based on equality in place of discrimination, opportunity in place of deprivation and participation in place of exclusion.

ASIA & PACIFIC JOURNAL ON DISABILITY

Vol.1, No. 1, September 1997

Published by the Asia and Pacific Regional Committee of Rehabilitation International (RI) and the Regional NGO Network (RNN)