SOCIAL AND LEGAL DISABILITY: A STUDY

This article was written by Shirsh Raj, a student of Christ, Bengaluru.

INTRODUCTION:

The sheer number of disability in India is tremendous. India is home to the largest population of disabled people in the world with the widely accepted estimate of the incidence of disability lies between either of these extremes at 4 to 5 of total population i.e., 40 to 50 million disabled people in India[1].with the significant number of disability people residing in India, their presence and problems faced by them is invisible to the rest of the society. A mere example to prove the above said statement is the existence of Article 15 of the Indian Constitution which deals with the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth[2] but does not include the disabled persons. “…The disabled too are equal citizens of the country and have as much share in its resources as any other citizens. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largesse but their rights as equal citizens of the country[3]”. With this backdrop, this paper will dwell into the factors of disability, their social and legal constrains. 

FACTORS OF DISABILITY:

• Poverty and Disability

Poverty and disability are closely linked and have a detrimental impact on the level of inclusion in society and its overall development. From the social perspective, both poverty and disability are products of capitalist development in a given society. Hence, this suggests society as the focal point of action to deal with both poverty and disability having created them in the first place. This is mainly through restructuring societal policies and provisions including those of the economy.[4]

There is a high correlation between disability and poverty but very few studies have investigated how poverty and disability influence each other and with their combination create new forms of barriers. In general, people with disabilities are estimated to make up to 15% to 20% of the poor in developing countries Inequitable economic and social policies have contributed to large numbers of people living in extreme poverty. Poor families often do not have sufficient income to meet their basic needs. Inadequate shelter, unhygienic living conditions, lack of sanitation and clean drinking water combined with poor access to health facilities lead to disability.[5]

• Malnutrition and Disability

The fields of malnutrition and disability are closely interrelated with a number of points of convergence. Countries with high levels of malnutrition and nutrient deficiency also often report higher rates of disability and developmental delay.  There are several important areas of overlap and influence: malnutrition can cause or contribute to a variety of different disabilities; disabilities can cause or contribute to malnutrition.[6] According to the Human Development in South Asia report (2001), incidence of anaemia among expectant and nursing mothers between the age group of 15 to 19 years is highest in India in the SAARC region. Common micro-nutrient deficiencies that affect disability include:

• Vitamin A deficiency – blindness
• Vitamin B complex deficiency – beri-beri (inflammation or degeneration of the nerves, digestive system and heart), pellagra (central nervous system and gastro-intestinal disorders, skin inflammation) and anaemia
• Vitamin D deficiency – rickets (soft and deformed bones)
• Iodine deficiency – slow growth, learning difficulties, intellectual disabilities and goitre
• Iron deficiency – anaemia, which impedes learning and activity, and is a significant cause of maternal mortality
• Calcium deficiency – osteoporosis (fragile bones)[7]

 

• War and Disability

War has been the single largest factor responsible for causing permanent disablement not only to combatants in the battlefield but also to civilians who are forced to bear the hazards of lethal, chemical and nuclear weapons. Based on figures from a study carried out in 206 communities, including Afghanistan and Cambodia, landmine triggered disability rate among survivors is about 0.9%. About 6% of households in Afghanistan are affected by landmine accidents alone. Surveys of four countries in 1995 found that between 12% & 60% landmine victims had to sell assets to meet their medical bills.[8]

As a direct result of the more than 230 regional and civil wars that have occurred since the ending of WWII, millions have developed life-long impairments. Chemicals such as Agent Orange have had long term negative health impacts on both troops and civilians in Vietnam. In most countries there is no social protection for these disabled people, though the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) [ratified by the European Union and 145 countries in 2006] holds out the promise of a better life. Land mines left in the ground impact largely on children playing and women gathering wood or farming. Since the Land Mine Ban Treaty in 1999 (now adopted by 160 countries ) the number of people killed or injured by mines each year has fallen dramatically from around 20,000 at the end of the 1990s to below 4,000.[9]

• Crime and Disability

Crimes are also the reason of disability which takes place because of social, political and economic reasons. Many children and women’s are trafficked for the purpose of prostitution, slavery and beggary. Rather than trafficking there are other crimes which resulted in the permanent impairment and lead the people to live as disabled. There are hardly any studies which talks about or analyzed the relation between crime and disability. Custodial crimes, which include death, rape and disability, have drawn attention of public, media, legislature and human rights organization. The best example to come with on crime and disability is the case of Laxmi Agarwal which is the victim of acid attack and which resulted in the permanent disfigured of the face.

• Traffic Hazards

In the developing country like India, development is the most important aspect, which leads  to the unplanned cities and town with less maintenance of roads with parallel to rapid growth in number of vehicles and people disregarding traffic rules. This leads to the growth of road accidents. As accident is one of the prime causes of disability in India. According to the survey done by Ministry of Road Transport and Highways, Government of India during census in 2011, it is stated that till 2011 the statistics of accident is growing which is resulted in disability, injury and death as well.[10] If current trends continue, then accident may become the leading cause of death and disability in India. Quadriplegia, paraplegia, brain damage and behavioural disorders are some common disabilities among survivors of traffic accidents.[11]

• Occupational Hazards

India is a developing country and aprox. 90% of the workforce is in unorganized sectors which cannot able to give proper facilities to the labours like low level of technology, low level of safety and hazardous work conditions. Occupation-related health problems of workers employed in stone quarrying, leather industry, glasswork, weaving, diamond cutting, hand embroidery, and children employed in carpet, cracker and match industry have been recognised but have not received appropriate and sustained attention by those responsible for regulating work standards.[12]

Like industrial workers in the unorganized sector, poor farmers and peasants too are very vulnerable to disability as they work for long hours exposed to sunlight, dust and smoke. For example, the workers who works in the coal mines suffers from the various respiratory diseases like Coal Workers’ Pneumoconiosis, silicosis, mixed dust pneumoconiosis, dust-related diffuse fibrosis and chronic obstructive pulmonary disease which collectively termed as Coal Mine Dust Lung Disease (CMDLD).

CONSTITUTIONAL FRAMEWORK FOR DISABLED PEOPLE:

Equality, liberty, autonomy, dignity and justice are the basic principles on which the human rights law are established for the people. The fundamental law of democratic polity have sufficiently influenced the values and consisted in the constitutions of most democratic states. The Preamble of the Constitution of India clearly proclaims to, secure to all its citizens; Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation.

Equality

Under right to equality the Constitution of India guarantees to all the citizens equality before law and equal protection of law (Article 14); and it prohibits discrimination on grounds of religion, race, caste, sex, place of birth or any of them (Article 15 and 16). Further, to ensure equality in the outcome, it encourages the State, under Article 16(3) and 16(4), to frame any law to make provision for the reservation of the appointments or post in favour of any backward class of citizen.

Judiciary also intervene to prove the validity and constitutionality of the right to equality in the reservation for the disabled people and to achieve equality amongst unequal. The judiciary has had many occasions to examine not only the legality of such concept but also its consistency with the right to equality. One of the most important judgments related to the reservation for the disabled people, which turned down all the controversy, is the case of Indra Sawhney vs. Union of India[13]. In this case, apex court examined the importance and legality of reservation in the favour of the disabled who are not explicitly covered under Article 16 of the Constitution. The court held:

…mere formal declaration of the right would not make unequal equal. To enable all to compete with each other on equal plane, it is necessary to take positive measures to equip the disadvantaged and the handicapped to bring them to the level of the fortunate advantaged. Articles 14 and Article 16(1) no doubt would by themselves permit such positive measures in favour of the disadvantaged to make real the equality guaranteed by them.

In the other cases, Jagdish Saran & Ors. v. Union of India & Ors.[14], Dr. Pradeep Jain v. Union of India & Ors.[15], Preeti Srivastava v. State of M.P[16] which also provides equality and the equality was not compromised. But still there are some fields like admission in AIIMS, which said to be speciality and super-speciality subjects and admission should be given on the basis of merit. The Court had observed that there were certain services and posts where merit alone counts either on account of nature of duties attached to them or the level in the hierarchy where they stood. The court had also observed that application of the rule of reservation may not be advisable in regard to technical posts including super-specialty in medicine, engineering and other scientific and technical post.

Non-Discrimination

Disability is one of the things which is not recognised or not even included in any of the provision of the Constitution. For instance, the Constitution in Article 15 and 16 prohibits the discrimination in the matter of employment and access to public facilities on grounds of religion, race, caste, sex and place of birth, but it is tacit on the issue of disability. The formal recognition of discrimination on grounds of disability is a recent development and laws enacted, even few decades ago generally did not include disability in the list of prohibited discrimination. In fact, disabled people were treated so badly earlier. As the service rules until 1995, disabled people are restricted to enter in the higher grades of services. In between, if the person is disabled then it not possible to be employed for the long time or pursue his/her career properly because they were forced for the premature retirement in public interest and if the employees who acquired disability during service were either forced to quit the job or demoted by the employer forcefully.

The case of Narendra Kumar Chandla[17] is one of the such case in which the employee got demoted in rank because of the disability as his right hand was amputated due to the cancer and he could not able to work with his right hand. On the first hand, Mr. Narendra approached the Supreme Court, but his petition was not entertained by the Supreme Court. Then he approached the Haryana & Punjab High Court, High Court rejected his petition. Again he approached the Supreme Court by filing Special Leave Petition. The Judge of the Supreme Court quoted, “Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties.”

So Supreme Court justified the appointment as Lower Division Clerk (L.D.C.) because he is not capable of doing what he was doing before the amputation. The Court also stated that since Narendra had been drawing a salary within the pay scale of Rs. 1400-2300, has last drawn pay had to be protected. The judgment of the Supreme Court did not serve injustice and also protected his livelihood. As well as there was no discrimination on the basis of disability occurred to Narendra and he was also able to continue his career.

The above case made an effect in the society and which lead to increase in awareness of disability based discrimination which finally resulted in the enactment of adequate and effective laws to protect the rights of the disabled people. For example, Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Sections 45, 46 and 47 in Chapter VII of the Act specifically talks about the Non-Discrimination. This chapter prohibits discrimination on the basis of disability in the matter of employment and in the access of public facilities. In the Case of K. Satyanandam[18], the court observed that Satyanandam was medically decategorised due to epilepsy. Since he had not been extended the same pay scale and basic pay, which he was holding on the date of his medical decategorisation, the Court held that the action of the authorities was in violation of the provisions of Section 47(1) of the PWD Act, 1995. Thus the Court allowed the appeal declaring that the impugned letter issued by Chairman Railways was illegal, arbitrary and unconstitutional. The Court held that Satyananadam would be placed in a supernumerary post and paid allowances for the claimed period at the same rate as he had been drawing prior to his medical decategorisation. Apart from the constitutional aspect involved with the rights of the disabled people there is also various legislation specially dealing with the rights of the disabled.

 

LEGAL ASPECT OF DISABLED PEOPLE:

The concept of disability did not have any legal support till the enactment of the disability Act in Britain named Disability Discrimination Act, 1995. After which was the enactment of the Persons with Disability (Equal Opportunities, protection of Rights and Full Participation) Act, 1995. It is said that the enactment of the Persons with Disability (Equal Opportunities, protection of Rights and Full Participation) Act, 1995 is remarkable because for the first time in India since 1995, social and economic rights of persons with disability have been addressed by any statute[19]. One can say that it has the potential to probably become India’s first anti-discrimination law, or in the words of Sandra Fredman, an ‘equality law’[20].Internationally, the convention on the rights of persons with disability defines disability in Article 1 as “Including 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[21]. The definition used is a broad one, which would include people with different long term diseases for example people infected by HIV or suffering from AIDS as well as infirmity due to old age[22]  The Persons with Disability (Equal Opportunities, protection of Rights and Full Participation) Act, 1995 provides an umbrella definition to Disability by recognising seven disabilities such as blindness, low vision, Leprosy, Hearing Impairment, colour blindness, Locomotors Disability, Dwarfism. Then the Act moves on to define the term Mental Illness and Mental retardation but in the process of interpretation the mental disability people are usually excluded from the protection due to the stigma and prejudice. Even though the Act covered seven types of disability it left behind hundreds of them such as epilepsy, muscular dystrophy, and cystic fibriosis. Disability law should apply to people with perceived disability such as shuttering, which are not disabling but create prejudice and discrimination[23].

Another point to be noted is that the Act does not provide an exact definition for disability. Even though there are several legislation around the world which does not define the term disability, such as the European Union Framework Employment Directive, which prohibits member states from discriminating in employment on the ground of disability[24] the situation in India is different as the disability does not alone affect the individual person but the family as a whole as in the case of Coleman v Attridge Law[25] where the mother of a  disabled child was dismissed from the law firm because she cared for the chid. The demand for a broader and unambiguous definition of disability was put forward as there was a need for overhauling the outdated definition for disability given in the PWD Act and to replace with the dentition that truly reflects the social model of disability[26]

Chapter V of the Act talks about duty of the state to provide access to education to children with disability under the age of 18, this chapter proves to be powerful regarding the education of disabled children but it also has it shortcomings such as the act did not specifically state that both public and private school has to ensure access to education for children with disability which puts in a condition where the private schools are out of bound[27]

Other than The Persons with Disability (Equal Opportunities, protection of Rights and Full Participation) Act, 1995 there are also various legislations that are enacted by the government to the protection of the rights of the disabled in India.  The mental health Act, 1987 is enacted mainly to protect the mentally ill people who are incapable to seek treatment and to understand the surrounding. This act further mentions about the establishment of the state authority and central authority for the mentally ill persons.

The rehabilitation council of India Act, 1992 is also an important legislation to be considered related to mentally ill persons. The main objective of the act is to regulate the training policies and programmes in the field of rehabilitation of persons with disabilities, to bring about standardization of training courses for professionals dealing with persons with disabilities, to prescribe minimum standards of education and training of various categories of professionals/ personnel dealing with people with disabilities[28]

 

SOCIAL ASPECTS OF DISABLED PEOPLE:

Disability, a complex, multidimensional experience, poses several challenges and one of the most severe challenges faced by the disabled people is facing society. In other words, facing society means the social issues which trouble them a lot and makes their life vulnerable. Their problems are also multidimensional like physical, psychological, social, cultural, educational and vocational. Disability is of different types and the problems faced by the disabled people in each category of disability are different. The problems faced by the blind in the society are different from the problems faced by other categories of disabled people. As the problem faced by the people who are disabled since birth is different from the problems faced by the people who got disabled due to some other reasons like accident or disease caused later in life.

The problems relating to the disabled people are in the cyclic order in order to physical, educational, economic, social and psychological aspects. The cosmos of one problem becomes the root cause for the other which further gives rise to another and hence it goes in cyclic order.[29] For example, if a child is handicapped then he will face so many problems at home and society like education, employment, access, etc. which leads him to the psychological phenomenon. The various social problems faced by the disabled people are due to the mentality and attitude of the society towards the disabled people.

The greatest challenge that disabled people have had to face has been society’s misconception that they are the “Breed Apart”. Historically they have been pitied, vilified even hidden away in institutions. But the present scenario also doesn’t change much as the society still sees the disabled people in a different way which creates issues for the disabled people. The problems encountered by the disabled people are:

• Access: Accessibility is fundamental to realization and enjoyment of any rights. The fundamental rights of persons with disabilities often require policy intervention and the implementation of measures to remove barriers and provide reasonable accommodation in order to ensure their equal access and full participation. Accessibility is best defined as the provision of flexibility to accommodate each user’s needs and preferences; when used with reference to persons with disabilities, any place, space, item or service, whether physical or virtual, that is easily approached, reached, entered, existed, interacted with, understood or otherwise used by persons of varying disabilities, is determined to be accessible. Accessibility is both a human rights issue and development concern. Accessibility bridges the gap between the special needs of persons with disabilities and the realization of social, economic, cultural and political inclusion.[30] Emanating from the Beijing Convention and the Disabilities Act, this understanding of access provides the scope for not only full personality development but also give rights to participate in social and political life.

A close look at the access related issues brings into light that in spite of international convention and domestic legislations, access is an issue of concern. Access to public transport, toilets, hospitals, government offices, public spaces like parks, educational institutions, places of worship are still in accessible to people. Still whatever interventions are made are restricted to the physical access. The area like education, teaching aids, books in Braille and interpreters for the hearing and speech impaired are still not available to large sections of the disabled.[31]

• Employment: Work and employment is one of the important aspects of the lives of individuals, especially for the persons with disabilities. Not only does it provide fulfilment, but it also serves usually as the economic foundation for our existence. It is the main income stream for most of us, and the contemporary age, the work is not only a basic source of income for most families; it is also a form of social connection and status in the community. Yet the employment rate of the persons with disabilities is extremely low. Low employment rates are the result of many factors including disability-related work limitations, lower levels of education and experience, discrimination by employers in hiring or provision of accommodations, difficulty sustaining employment after the onset of a disability, and lack of access to necessary support service.[32]

According to the Census 2002, employment rate of disabled people was only 37.6%.[33] After this, the scenario of the employment of disabled people has not made any impact in the Census of 2011. As the employment rate of persons with disability according to the Censes 2011 was only 36% out of the total disabled people. Among the male disabled persons, 47% are working and among female disabled, only 23% are working. As it shows that nearly one third of the total disabled persons are working only.[34] As per the records, employment rate of disabled person in 2011 census is even less than the employment rate was in 2002 census.

• Education: “We raise the flag for education as a universal human right — no one must be denied access because of disability. This is a UNESCO priority, and we are acting across the world to break down barriers for people with disabilities, to empower them as agents of change. This means transforming schools and learning centres. It means adapting teaching practices to cater for all.

This is why I urge all Governments and development partners, all teachers, parents and private sector providers, to remove the barriers to and in learning, to realize the full and equal participation of all persons with disabilities in society.” – Irina Bokova, Director-General of UNESCO, on the occasion of the Global Action Week 2014[35]

Disability may act as a major impediment in formal education. However, the educational attainment of disabled persons is important in improving their living conditions. In India, education to the disabled is not provided as part of the mainstream but through other isolated institutions which operate on a service and charity mode. Most of the times, these institutions are not fully integrated into the mainstream education system. More than 50,000 children with disability enrolled in the Integrated Education for Children, a government sponsored programme. Only a few schools have the special provisions like resource room, special aids and special teachers. This is restricted only in big cities. Since there are no special schools or special education services in rural India, children with special needs either have to make do with regular schools in the village or go without education.[36]

According to the Census 2011, nearly 55% out of total disabled population are literates. Out of male disabled population, 62% are literates and among the female disabled 45% are literates only. In the rural areas, 49% of the disabled are literates while in urban areas, the percentage of literates among disabled population is 67%.[37]

• Discrimination: Persons with disability suffer from both social and material disability. The society; which is caught up with uniformity, cannot see people with differences with same eyes. As the mentality of the society discriminates among the people who are normal and who are disabled. There are various ways in which the people discriminate among disabled people like employment, education, access to various things, etc… The society takes disabled person as a breed apart. This discrimination makes the life of disabled people more badly and they are not able to pursue a normal life like others, which led them to various psychological phenomenon. They suffer various jeopardy of being disabled, poor, stigmatized and breed parted. The social difficulty faced by the disabled people is discussed in various international conventions and forums.

INTERNATIONAL CONVENTION:

The Convention is an international treaty that explains the rights of people with disabilities. In particular, States that moves toward becoming gatherings to the Convention consent to advance, secure and guarantee the full and equivalent delight in every single human right and basic opportunities by all people with handicaps, and to advance regard for their natural poise.

The Convention is a change in perspective in ways to deal with disability, moving from a model where people with disabilities are dealt with as objects of medical treatment, charity and social protection to a model where people with disabilities are perceived as subjects of human rights, active in decisions that influence their lives and enabled to assert their rights. This approach sees the societal obstructions, for example, physical snags and pessimistic states of mind standing up to people with disabilities as the primary hindrances to the full enjoyment of human rights.

In spite of the fact that the greater part of the international human rights treaties stretch out to people with disabilities, this vast gathering of people keeps on anguish from separation and regularly detests regard for their human rights on an equivalent premise with others. This Convention:

• Explicitly characterizes and applies existing human rights standards to people with inabilities.
• Provides a definitive, globally concurred reason for the advancement of local law and arrangement.
• Establishes national and universal systems for more successful observing of the rights of people with disabilities, including intermittent giving an account of the Convention’s execution and Conferences of States parties.
• Recognizes the particularly powerless conditions of youngsters and ladies with disabilities.

The Convention is comprehensive, and States parties are obliged to guarantee and advance the full acknowledgment of all civil, cultural, economic, political and social rights of persons with disabilities.

Civil and political rights will be rights that an individual can practice in his/her part as a national, for example, the right to vote, the right to participate in Government decision-making, the right to a free trial and the right to equal protection of the law. Cultural rights secure a person’s delight in his/her own particular culture. Social rights ensure and advance the individual in the public arena, for example, the right to instruction and the right to well being. Economic rights ensure and advance the financial security and freedom of a man, for example, the right to work.

What are the Conventions on Rights of Disabilities?

Prior to the drafting of the Disabilities Convention, there was no international treaty dealing specifically with human rights issues of person with disabilities. The equality clauses of the three central human rights instruments of the UN: the Universal Declarations of Human Rights (1948), the International Covenant for Civil and Political Rights (1966) and the International Covenant for Economic, Social and Cultural Rights (1966), do not mention disability as a protected category. If disability is addressed as human rights issues in these documents, it is only in connection with social and preventive health policy. In addition to these three universal treaties, the United Nations General Assembly has enacted four hard laws treaties protecting people based on specific identity characteristics unrelated to disability – the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention on the Rights of the Child (CRC); and the International Convention on the Protection of the Rights of All Migrants Workers and Members of their Families (ICPMW).

 In contrast of the above hard law treaties that do not enumerate specific disability protections, a number of soft laws expressly provide for persons with disabilities. These include the General Assembly designations of the International Year of the Disabled in 1981 and the International Decade of Disabled Persons from 1982-1991. The UN also passed the resolutions such as the Declaration on the Rights of Disabled Persons and the Declaration on the Rights of Mental Retarded Persons. Additionally, the General Assembly adopted a World Programme of Action concerning disabled persons (WPA) to encourage the development of national programmes directed as the achieving equality for people with disabilities, which are monitored by a special rapporteur.[38]

After all these Conventions, which is not specifically for the rights for the disabled people as the provisions did not mention about the rights of the disabled? But in December 2006, General Assembly of the United Nations unanimously adopted the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and its optional protocol. The UNCRPD was ratified by India in October 2007. It came into force all over the world with effect from 3^rd May, 2008.

This convention recognizes persons with disabilities as subjects having human rights and fundamental freedoms and not as objects needing mere medical care and social protection. It further spells out that disability is an evolving concept and the persons with disabilities are a part of human diversity and humanity. Disability, according to this international treaty results from interaction of impairments with barriers which prevents one’s participation in society on an equal basis with others.[39]

The UNCRPD is a legally binding instrument. The purpose of this convention is to protect, promote and ensure to persons with disabilities the full and effective enjoyment of all human rights and fundamental freedoms on an equal basis with others and also to promote respect for their inherent dignity.

Article 3 of the said convention envisages general principles which include:

1. Respect for dignity, autonomy, freedom to make one’s own choices,

And independence of persons

1. Non-discrimination
2. Full in effective inclusion and participation in society
3. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
4. Equality of opportunity
5. Accessibility
6. Equality between men and women
7. Respect for the evolving capacity of children and their right to preserve their own identities

Article 4 of the said convention casts some significant obligations on the states parties. Under these obligations, while the states parties have been obligated to adopt all legislative and other measures to promote, protect and ensure human rights and fundamental freedoms to persons with disabilities, they will also need to repeal all laws, policies, and customs which are inconsistent with this convention. Another significant obligation is cast on private entities rendering services which are open for or provided to the public. Such private entities will have to universally and inclusively design their programs and services etc.

Article 5 of the convention provides for non-discrimination. This can be achieved, among other things, by adopting affirmative actions and by introducing the principle of reasonable accommodation and also of universal and inclusive design of environments, facilities, etc. The convention also seeks to address the intersectional concerns of disability with gender and also of disability with age.

Article 6 and Article 7 of the convention specifically deal with women and children with disabilities respectively.

Article 12 of the convention recognizes the legal capacity of persons with disabilities on an equal basis with others and also obligates for the states parties to make support available to those persons with disabilities who may need support to exercise their legal capacity. Unlike its predecessors the soft law instruments, this convention comprehensively deals with civil and political rights of persons with disabilities as well in addition to dealing with bare economic, social and cultural rights.[40]

It goes without saying that the UNCRPD makes it obligatory for the states parties to actively consult with and involve persons with disabilities in the decision-making processes, especially in respect of matters which affect their lives.

The convention itself is informed and influenced by the expertise of lived experience of persons with disabilities. It comprises 50 articles.

CONCLUSION AND SUGGESTION:

The various legislation relating to the disability and the international treaty prove the point that the disability and their rights have been recognised. But the mere recognition does not help to solve the various issues that the disability faces in their everyday life. While it appears to be sensible and commonsensical that centre issues of employment, education and access ought to command disability enactment in the early times, there is no precluding that a number of provisions in the existing legislation, for example, social security and reservation in the private segment, should be initiated. The law additionally should be altered to make space for other centre life concerns, for example, be amended to make space for other core life concerns such as health, sexuality and reproductive health, family life, old age in the context of disability. There is a huge requirement for legitimate proficiency on the issue of disability. Ironically even the most educated people with inabilities don’t think about the different arrangements of the PWD Act. In any case, mere awareness isn’t sufficient. There is a critical need to make components that help clients to attempt the long and convoluted procedure of prosecution. Else, the law will remain a paper tiger. Irrespective of the legal provisions that are laid down for the upliftment of the disabled people, their social life is still a hindrance to enjoy those rights. They are prejudiced and looked differently which naturally leads to discrimination. This discrimination makes the life of disabled people worse and they are not able to pursue a normal life like others, which led them to various psychological phenomenon. They suffer various jeopardy of being disabled, poor, stigmatized and breed a parted.

The purpose of this paper is to present an overview of the discrimination that the disabled people face in their life and the steps that are taken in both human rights aspect and legal perspective to recognise the rights that they hold. Also there is a critical analysis of the ambiguity of the Acts. Given the wide overview of the legal, cultural and the social aspect of the disability rights in India it is suggested that the concept of “Equalisation of  Opportunity” where there is no discrimination amongst the various human rights that everyone is entitled to, should be recognised and incorporated. The only way to incorporate such positive approach towards human rights of disabled people is by the society’s evolution towards an inclusive one where there is minimal role of discrimination and maximum participation of people in working together regardless of their differences.

[1]Insa klasing, disability and social exclusion in rural India, rawat publications

[2] Article 15 of the Indian constitution

[3] Bhagwan Dass and Anr v. Punjab State Electricity Board, (Supreme court) Civil Appeal No.8 of 2008, judgment dated 4^th January 2008.

[4] Ambati Nageswara Rao, Poverty and disability in India, Vol. 39 No. 1, p29-45 (2009)

[5] Prashant Srivastava & Pradeep Kumar, Disability, Its Issues and Challenges: Psychosocial and Legal Aspects in Indian Scenario, DELHI PSYCHIATRY JOURNAL, p195-205 (2015)

[6] N Groce, E Challenger, R Berman-Bieler, A Farkas, N Yilmaz, W Schultink, D Clark, C Kaplan, and M Kerac, Malnutrition and disability: unexplored opportunities for collaboration, National Center for Biotechnology Information (Apr, 2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4232244/

[7] Marcia Rioux, Disability Manual 2005, p12 (2005)

[8] Prashant Srivastava & Pradeep Kumar, Disability, Its Issues and Challenges: Psychosocial and Legal Aspects in Indian Scenario, DELHI PSYCHIATRY JOURNAL, p195-205 (2015)

[9] UK Disability History Month and Unite the Union, War and Impairment: The Social Consequences of Disablement, UK Disability History Month (Nov/Dec, 2014), http://ukdhm.org/v2/wp-content/uploads/2014/09/UK-Disability-history-month-2014-Broadsheet.pdf

[10] Ministry of Road Transport & Highways, Government of India, Road Accident in India: Issues and Dimensions, United Nations Economic and Social Commission for Asia and the Pacific, http://www.unescap.org/sites/default/files/2.12.India_.pdf

[11] National Human Rights Commission, Know Your Rights: Rights of Persons with Disabilities, National Human Rights Commission, http://nhrc.nic.in/Documents/Publications/KYR%20Disabilities%20English.pdf

[12] Prashant Srivastava & Pradeep Kumar, Disability, Its Issues and Challenges: Psychosocial and Legal Aspects in Indian Scenario, DELHI PSYCHIATRY JOURNAL, p195-205 (2015)

[13] Indra Sawhney vs. Union of India., AIR 1993 S.C. 477

[14] Jagdish Saran & Ors. v. Union of India & Ors. [(1980) 2 SCR 831]

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[16] Preeti Srivastava v. State of M.P. [(1999) 7 SCC 120]

[17] Narendra Kumar Chandla vs State of Haryana & Ors. [(1995) AIR(SC) 519]

[18] K. Satyanandam, Peon vs. Chairman, Ministry of Railways and Ors. [2005(3) SLJ 79 (CAT)]

[19] The future of disability law in India , Jayna Kothari ,pxxi

[20] Sandra Fredman, (2001), ‘ Equality: A New Generation?’, Industrial Law Journal, 30, p145

[21] United nation convention on rights of persons with disability, 46 ILM 443,Art.1

[22] Davio por Bjorgvinsson,(2009),’The protection of the rights of persons with disabilities in the case law’

[23] J.P.Shapiro, (1994), No pity: People with disabilities Forging a New Civil Rights Movement, Delhi: Universal book Traders,p5

[24]  The future of disability law in India , Jayna Kothari ,p56

[25] Case C-303/06,[2007]IRLR 88

[26] The future of disability law in India , Jayna Kothari ,p59

[27] The future of disability law in India , Jayna Kothari,p67

[28] http://www.rehabcouncil.nic.in/forms/Sublink1.aspx?lid=798, retrieved on 1^st October

[29] Identification of the Problems of the Disabled, http://shodhganga.inflibnet.ac.in/bitstream/10603/5117/8/08_chapter%203.pdf

[30] United Nations: Department of Economic and Social Affairs, Accessibility and Development: Mainstreaming disability in the post-2015 development agenda, http://www.un.org/disabilities/documents/accessibility_and_development.pdf

[31] Leni Chaudhuri, Disability in India: Issues and Concerns, May 2006, p14-15

[32] Society for Disability and Rehabilitation Studies, Employment of Persons with Disabilities in Public Sectors in India: Emerging Issues and Trend, p.i-xiv (2008)

[33] American Indian Foundation, Best Practices in Employment of People with Disabilities in the Private Sector in India: An Employer Survey, p8 (2015)

[34] Social Statistics Division, Ministry of Statistics and Programme Implementation, Disabled Persons in India: A Statistical Profile 2016, Ministry of Statistics and Programme Implementation (2016), http://mospi.nic.in/sites/default/files/publication_reports/Disabled_persons_in_India_2016.pdf

[35] United Nations Educational, Scientific and Cultural Organization, The Right to Education for Persons with Disabilities, United Nations Educational, Scientific and Cultural Organization, http://unesdoc.unesco.org/images/0023/002325/232592E.pdf

[36] Leni Chaudhuri, Disability in India: Issues and Concerns, May 2006, p14-15

[37] Social Statistics Division, Ministry of Statistics and Programme Implementation, Disabled Persons in India: A Statistical Profile 2016, Ministry of Statistics and Programme Implementation (2016),  http://mospi.nic.in/sites/default/files/publication_reports/Disabled_persons_in_India_2016.pdf

[38] Jayna Kothari, The UN Convention on Rights of Persons with Disabilities: An Engine for Law Reform in India, Vol. 45, No. 18, Economic and Political Weekly, p.65, 65-66 (2010)

[39] National Human Rights Commission, Know Your Rights: Rights of Persons with Disabilities, National Human Rights Commission, http://nhrc.nic.in/Documents/Publications/KYR%20Disabilities%20English.pdf

[40] Convention on the Rights of Persons with Disabilities and Optional Protocol, p.5-11 http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf