Enabling Persons with Disabilities in India: A Long Road Ahead

India became a signatory to the United Nations Convention on the Rights of Persons with Disabilities on 30th March 2007. India signed the Convention along with 89 other countries. The Convention was adopted by the United Nations General Assembly on 13 December 2006. Nearly 650 million persons, constituting nearly 10 per cent of the world population, will benefit from this Convention. However, Jamaica was the only country to ratify the Convention. The Optional Protocol to the Convention, which recognises the competence of the Committee on the Rights of Persons with Disabilities to receive individual/ group complaints and communications relating to State parties, was also adopted, by 49 countries.

The main guiding principles of the Convention are respect for inherent dignity, independence and freedom of persons, non-discrimination, full and effective participation and inclusion in society, respect for difference and acceptance of persons with disabilities (PWDs), equality of opportunity, gender equality, accessibility and respect for the evolving capacities of children with disabilities and their right to preserve their identity. The Convention also establishes a monitoring mechanism for effective enforcement, both at the international and national level. (Art. 33) The Convention places a lot of emphasis on inclusive social development of PWDs and lays down specific measures to achieve the same. (Art. 32)

The latest Census (2001) reveals that India has 2.13 per cent PWDs, which is equivalent to a population of 21.9 million but the National Sample Survey (58th Round, 2002) puts the figure at 18.5 million. In the opinion of Dr. Anuradha Mohit, Special Rapporteur on Disability, NHRC, these figures are not very convincing as a lot is dependent on the definition of disability a particular country adopts, the nature of questions related to disability that are asked to respondents in surveys and the general cultural and traditional perception of disability. Disability rights activist, Javed Abidi estimates that approximately 6 per cent of India’s population is disabled and he submits that if a broader definition of disability is adopted in India, the figures could be much higher, as is the case in Australia, United Kingdom and United States.

Although India is a signatory to the UN Convention, it is yet to ratify it. India has a domestic legal regime governing PWDs primarily through The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act (PWD Act) and more specific laws like The Mental Health Act, The Rehabilitation Council of India (RCI) Act and The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act.

The PWD Act, passed in 1995, was the first comprehensive legislation of its kind in India. The Act provides for the promotion of integrated education, medical and social rehabilitation, three per cent reservation in education in government institutions and public sector jobs, non-discrimination in employment of PWDs and training, health and safety measures and creation of an enabling work environment, improve physical accessibility in transport etc.

Yet, the Act has failed to improve the quality of lives of PWDs, even ten years after its enactment. The reason for this failure is largely attributable to poor enforcement. The Act provides for integrated education of PWDs up to the age of 18 years, ‘in an appropriate environment’ with a reference to special schools, as opposed to inclusive education. However, the reality in India is that most of India’s PWDs live in rural areas with no access to special schools and they can attend regular schools only. PWDs face deep-rooted prejudice with respect to employment. Although the PWD Act provides incentives on paper for those employers (public and private sector) who ensure 5 per cent employment to PWDs, the situation is quite different, in practice. A survey conducted by the National Center for Promotion of Employment for Disabled People (NCPEDP) among the ‘Super 100’ companies, showed that the rate of employment of PWDs in the corporate sector was a meagre 0.4 per cent of the total workforce. With respect to improving accessibility of PWDs, the Act provides that the government shall operate “within the limits of its economic capacity and development”. Such provisos serve as hurdles to effective implementation of the law and provide the government with a legitimate excuse to absolve itself from liability and accountability.

The Chief Commissioner for Persons with Disabilities and the Commissioner for Persons with Disabilities operating at the central and state levels respectively serve as monitoring mechanisms under the Act but are far from effective. They have been given the powers of a civil court yet do not have access to the framework to exercise these powers. Although, the Act provides for a number of affirmative action measures for the welfare of PWDs, in the fields of education, employment etc but does not envisage any mechanisms to ensure compliance with these measures.

The Ministry of Social Justice and Empowerment released The National Policy for Persons with Disabilities in 2006, which was aimed at improving the quality of life of PWDs. The policy recognises that PWDs are a ‘valuable human resource’ and ‘seeks to create an environment that provides them equal opportunities, protection of their rights and full participation in society’. The focus areas of the policy are prevention of disabilities, rehabilitation of PWDs, through physical, medical and assistive methods and development of rehabilitation professionals, education of PWDs, economic rehabilitation, employment in government and private sector and self-employment, women and children with disabilities, creation of a barrier free environment, issue of disability certificates, social security, promotion of NGOs to provide services to complement government initiatives, collection of information on PWDs on a regular basis, research on PWDs, sports, recreation and cultural life, amending existing laws on PWDs etc.

However, the policy fails to establish a clear plan of action for the implementation of the policy within a specific time period. The government has stressed on the community’s responsibility for the implementation of the policy. The policy has recommended that the community play a vital role in the generation of resources to provide for the infrastructure costs related to implementation. This aspect of the policy has been criticised as a move by the State to absolve itself of its duty to create an inclusive environment for PWDs.

The existence of legal mechanisms promoting rights of PWDs has not significantly changed their plight for the better. While better implementation of these laws is necessary, what is even more important is a change in attitude towards disability and full participation of PWDs in the decision making process as to their well being. The sheer insensitivity and neglect shown towards PWDs is shocking and shameful and cannot be improved without spreading education and awareness about disability. A welcome beginning would be the immediate ratification of the UN Convention on Rights of PWDs and incorporation of its obligations in domestic law along with the formulation of strong and adequate measures to implement them. Unless these positive measures are undertaken, India’s strong commitment towards mainstreaming and inclusion of PWDs shall be nothing more than an empty promise.

Rights and Development Bulletin, Vol. 1 Issue.3 , at http://www.cdhr.org.in