The disability rights movement in India has evolved over the years. The genesis of the movement can be traced back to 1970. Slowly but steadily, it gained momentum and culminated in the Rights of Persons with Disabilities Act, 1995. It was a historic act in the sense that for the first time, the rights of persons with disabilities were recognized and provided a legal status. Otherwise, they were viewed through the lenses of charity and sympathy. Though a landmark achievement, the Act lacked nuances and was vague in more than one way. Therefore, the Disability Rights movement kept its momentum of advocacy through various organizations and advocacy groups resulting in the Persons with Disabilities Rights Act, of 2016.
The acts that protect the rights of people with disabilities in India are the National Mental Health Act, 1987; Rehabilitation Council of India Act, 1992; the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999; and the Mental Health Care Act, 2017. Rights of Persons with Disability Act, 2016 has been landmark legislation for the disabled in India. First and foremost, it has broadened the scope of specified disabilities by increasing its number from seven to twenty-one. It includes such disabilities within its ambit as autism spectrum disorder; blindness; cerebral palsy; chronic neurological conditions; deaf, blindness; hemophilia; hearing impairment; intellectual disability; leprosy cured; locomotor disability; low vision; mental illness; muscular dystrophy; multiple sclerosis; specific learning disability; speech and language disability, thalassemia; and multiple disability.
The Act seeks to ensure that all necessary steps are taken by the government to secure for persons with disabilities individual autonomy, including the freedom to make one’s own choices, independence of persons; nondiscrimination; full and effective participation and inclusion in society; equality of opportunity and equality between men and women, among other things.
Persons with disabilities would enjoy legal capacity on an equal basis with others in all aspects of life and have the right to equal recognition everywhere as persons before the law, the draft law says. It seeks to ensure that any disqualification on the grounds of disability prescribed in any legislation, rule, notification, order, bye-law, regulation, custom, or practice that has the effect of depriving any person with disability of legal capacity shall not be legally enforceable from the date of enforcement of the proposed Act.
All persons with disabilities have the right, on an equal basis with others, to own or inherit property; control their financial affairs; obtain access to bank loans, mortgages, and other forms of financial credit, and not to be arbitrarily deprived of their property.
The legal capacity of a person with a disability shall not be questioned or denied, irrespective of the degree and extent of support, because of accessing support to exercise legal capacity. When a conflict of interest arises between a person providing support and a person with a disability in a particular financial, property, or other economic transaction, then such supporting person shall abstain from providing support to the person with a disability in that transaction, the draft says.
All persons with disabilities shall have the right to live in the community with choices equal to others. The appropriate government and local authorities shall take all appropriate administrative and other measures to protect persons with disabilities from being subjected to torture, cruel, inhuman, or degrading treatment or punishment.
Importantly, the Act bars any person with a disability to be subject to any medical procedure that leads to or could lead to infertility without their free and informed consent. All establishments will also provide medical and life insurance to their employees with disabilities on an equal basis with others. The debate around the Act pertains to the question of the “legal capacity” of persons with disabilities: whether persons with disabilities, especially intellectual, psycho-social, and multiple disabilities, can responsibly think for themselves; and whether they should be legally empowered to make decisions for themselves, or instead they should be “protected” by guardians who decide on their behalf. The current legal position in India is that on a finding of “incapacity” in a disabled person, the guardian substitutes for the person with a disability as the person before the law and takes all legally binding decisions for the disabled person. The decisions of the person with a disability have no binding force in law. The guardian is under no legal obligation to consult with the person with a disability or determine his or her will or preference whilst making decisions for him or her.
It is acknowledged even by the government that this system, called “plenary guardianship’ is fraught with possibilities of exploitation and unfair dispossession of disabled persons because guardians can oppose or distort a person’s will. However, many parent groups still believe that some kind of appropriately safeguarded guardianship is necessary to protect these categories of persons with disabilities from exploitation, abuse, and neglect.
The current official position takes a middle path in this debate, providing for “limited” guardianship, which prescribes that all guardians shall act in close consultation with the person with disabilities to arrive at legally binding decisions, in a system of joint decision making which operates on mutual understanding and trust between the guardian and the person with disabilities.
Critics, however, fear that this can, in practice, still result in legal capacity being denied. It does not protect a disabled person when there is a lack of agreement between the guardian and the person with a disability. Guardians would tend to neglect the choices of the disabled person, given the vast difference in power between them.
The Act mandates that every child with benchmark disability, of the age of 6 to 18, shall have the right to free education; and all government institutions of higher education and all higher education institutions receiving aid from the government shall reserve up to 5 per cent of the total seats in each course for persons with benchmark disabilities, which include physical, and mental disabilities and leprosy cured.
The Act also says that education should be provided to children with disabilities in an inclusive environment. They should be provided with equal opportunities for leisure, sports, and recreational activities. It says that enough support services should be made available to them in an environment where maximum social and academic development can be achieved. It recommends ensuring the education of persons who are blind, deaf, or blind deaf in the most appropriate language, mode, and means of communication. It recommends monitoring the progress and completion of education in respect of every student with disabilities. It also has included specific learning disabilities within its ambit and says to detect them at the earliest to provide them with suitable pedagogical measures. However, it is silent on its assessment and identification procedures. To date, the U.S.A. is the only country where SLD comes within the purview of law whose criteria for diagnosis is defined in law, as 13 this category of disability is most controversial there about its definition, identification, and prevention. Keeping this in view the Act does not provide clear-cut guidance on its assessment and identification procedure.
The PwD Act, of 2016, brought a long-awaited hope in the millions of lives of people suffering from various kinds of disabilities. However, its implementation process warrants the attention of policymakers as well as implementers, and concerted efforts from government agencies are needed to safeguard the rights of persons with disabilities. It appears that there is a long way to go and many battles are still to be fought. The first one is to dismantle the societal barriers to enable them to provide them equal opportunities to participate in all spheres of life with dignity and confidence. The law empowers them to make this journey a bit easier, but to break the societal barriers they have a long way to go.
