25 National Legislative Framework: Disabilities Rights

Prerna Dharni

Learning Aims of the Chapter:

By the end of the chapter the reader should be able to:

•  Understand disability from a human rights-based approach,
•  Analyse the impact of disability on access to education and employment for women and girls in India
•  Identify the provisions for ensuring education and employment and provisions with a focus on rights of women and girls in the UN’s Convention on the Rights of Persons with Disability, and the Indian Persons with Disabilities Act (Equal Opportunities, Protection of Rights and Full Participation) Act (1995) and the Rights of Persons with Disability Act (2016).

Introduction

According to WHO more 15% of the global population or more than one billion people live with a disability out of which 19.2% are women. Disability rates among women are higher than among men. There is also a socio-economic difference: 22.1% of women in lower-income countries have a disability compared to 14.4% in higher income countries. In India, there are nearly 70 million persons with a disability. Disability is an outcome of multiple reasons ranging from malnutrition, disease, war, accidents and age. Developing countries have the maximum number of persons with a disability (herein PwDs) and the stigma attached to disability as an outcome of negative social and cultural norms contributes to the multi-layered discrimination PwDs experience, especially women and girls. People with a disability are more likely to be prevented from accessing their basic rights and denied the opportunities to fully participate in society. This results in their social-exclusion and marginalization.

Diverse perceptions towards PwDs in various cultures have resulted in different approaches to addressing disability. Historically, in most countries across the world, PwDs were viewed as a liability and capable of only surviving with charitable contributions, especially donations from religious institutions. Disability is often linked to an outcome of misdeeds of the disabled person, or the family and PwDs are largely considered objects of charity. In India belief in karma and the impact of sin and purity shape the way disability continues to be perceived. The Charity model of disability is an outcome of such perceptions. This approach identifies PwDs as dependents, incapable of social, economic, and political participation, surviving on the benevolence of others.

With the advancement of science and medicine in the era of industrialisation, another approach has emerged which identifies disability/impairments as a deviation which must be corrected. The Medical model or the functional limitation model of disability focuses on the impairment/limitation of the individual and the need to cure it for maximising the ability of the individual to function ‘normally’. In 1980, WHO under the International Classification of Impairments, Disabilities and Handicaps (ICIDH) defined impairment as any loss or abnormality of psychological or anatomical structure or function and disability as any restriction or lack of ability (resulting from an impairment) to perform an activity in the manner or within the range considered normal for a human being. It is through rectification of the limitation and provision of skills to overcome such restriction and assimilate with the mainstream population that this approach looks to rehabilitate the PwDs. If such rectification is not an option, then the individual is rendered dependent upon medical institutions for lifelong care. The onus of the disability is on the individual and not on society. The rehabilitation for PwDs is largely through medical services like doctors, therapists, asylums and hospitals to ‘cure’ the problem. It may thus be argued that by not accommodating difference and creating support structures within society to enable equal participation persons with disabilities or impairments are effectively ‘disabled’ by society as it is a society which increases their marginalisation.

Both the charity chapter and the medical model are criticised for locating disability as a personal tragedy or an individual limitation which requires an action on behalf of the PwD towards inclusion in society. These models perceive PwDs as dependents and incapable of self-determination by ignoring their basic rights and focusing on the deficit of the individual. Women with disability face multiple discrimination for their gender and disability. For instance, women with disability are often deprived of determining their reproductive choices and are subjected to forced sterilisation.

The marginalisation of PwDs as an outcome of social, environmental and attitudinal barriers was highlighted by the Social Model of disability. The social model takes the responsibility of disability away from the PwD and places it on society and the environment. This model understands impairment as related to the condition of body or mind and disability as the barriers created when the society and the environment respond to the impairment. Its focus is the removal of those barriers in accessing and choosing healthcare, education, employment and recreation which will lead to their full inclusion in society. In order to achieve this social change, it is a society which will have to find solutions to the barriers.

This model focuses on removing the stigma attached to disability by building the understanding that PwDs are not dependent and passive because of their incapability but that of the disabling environment. This has led to PwDs viewing themselves as individuals who do not have to depend on charity and could demand their rights. Influenced by the civil rights movements and strengthened by the participation of disability activists, this model provided a strong foundation for the human rights-based approach to disability. By the 1970s growing international awareness regarding the lived consequences of being differently-abled and pressure from activists resulted in the UN dedicating a declaration to highlight awareness of the issue.

The UN Declaration of Rights of Disabled Persons, 1975, states:

‘Disabled persons, whatever the origin, nature, seriousness of their handicaps and disabilities, have the same fundamental rights as their fellow citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and as full as possible.’

The 1980s and 1990s, were crucial periods for the disability rights movement as there was a sustained effort to use the social model to guide international legal instruments like the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1994), and the Vienna Declaration and Program of Action. However, it is the United Nations Convention on Rights of Persons with Disability (UNCRPD), adopted in 2006, which brought the biggest shift. Before this PwDs were not explicitly give protection by international human rights treaties. The UNCRPD, being a convention, is the “first international human rights instrument applicable to, and legally enforceable by, individuals on the basis of their disability status.”

Article 1 of the UNCRPD states:

“The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include 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.”

The Human Rights Based approach to disability is the recognition of each disabled persons as an individual who has fundamental rights. Human dignity and equality are at the core of human rights values. Disability is not a homogenous category, and the experience of PwDs varies with different circumstances. Thus this approach acknowledges the impact of intersectional issues on the lives of PwDs, especially women and girls in developing countries. This approach also considers impairment as part of human diversity and not something to necessarily rectify in order to access basic human rights. It is therefore, a holistic approach moving beyond the anti-discrimination to address social, economic, political, social and cultural rights.

Impact of Disability on Access to Education and Employment for Women and Girls with Disability

Access to Education and Employment as Human Rights

Globally, there are more than 131 million girls that are missing out on basic education with 32.4 million girls out of primary school age, over 29.8 million female adolescents out of lower secondary school and 64 million girls of upper secondary school age. Article 24 and 26 of the UN Declaration of Human Rights highlights the right to employment and education for all. In the Indian constitution rights to education and equal opportunity in employment are part of the fundamental rights of all citizens. Despite this, most women and girls especially those with a disability, are denied access to education and employment violating their most basic rights.

The right to education is considered a human right because literate children have more opportunities to effectively participate in society and alleviate intergenerational poverty. For this reason, education has been called a ‘multiplier right’ as with education more social opportunities are available to individuals such as improved access to employment, freedom from child labour, increased health care provision and civic participation. Education, therefore, is not only a fundamental right in itself but also the means of realising other basic rights. Better education leads to better health indicators, more income and economic growth and political stability. Unemployment is central to poverty and inequality, especially in developing countries. Decent and productive employment is essential for ensuring economic security and well-being.

Impact of Disability on Access and Choice

‘Disability causes poverty and poverty can lead to disability.’ Lack of access to basic education for children, especially girls with a disability is a barrier for them to earn, participate in society and realise their full potential. Children with a disability are ten times more likely not to attend school compared to non-disabled children. In India, 69% of the disabled population live in rural areas and have very limited access to basic healthcare, education and livelihood opportunities. Families play a crucial role in the lives of PwDs as they are largely dependent on them for survival and support. Due to the stigma around disability, families often conceal the disability or hide the PwD from society. This leads to isolation and low self-esteem for PwDs.

The World Programme of Action concerning Disabled Persons(1982) states:

“The consequences of deficiencies and disablement are particularly serious for women. There are a great many countries where women are subjected to social, cultural and economic disadvantages which impede their access to, for example, health care, education, vocational training and employment.”

According to Nilika Mehrotra gender is one of the major decisive factors in the development of a disabled child. Women and girls with a disability are either denied education or dropout of school. Their education is not prioritised as families do not view them as a productive member of society and prefer to spend their scarce resources on non-disabled members. Their need for support from their family members is therefore increased making them more dependent on a higher need to be cared for as they are less likely to be taught skills to be more independent. This then reinforces perceptions that persons with disabilities are often seen as a burden. Inaccessible transport systems, classrooms, and infrastructure like toilets restrict women’s and girls’ mobility and often prevent them from being able to leave their households with ease. This is further enforced in the name of protection especially after girls reach puberty in order to protect them from potential sexual abuse and violation. However, many women and girls with disability face both sexual and mental abuse within families especially those with mental and intellectual disabilities. Marriage is not considered an option for women and girls with a disability as they are frequently viewed as a lifelong burden on the family as they have to bear the cost of care.

Young women and girls with a disability who are able to overcome challenges to access higher education face more barriers; they have to deal with bias in selecting the subjects they want to study and are largely excluded from Science, Technology, Engineering and Mathematics (STEM) fields. Inaccessible content and libraries, lack of trained teachers and the absence of assistive technology for the inclusion of PwDs continues to marginalise them in higher education. Further higher levels of education are typically situated within urban areas. Access for differently-abled persons thus also has the difficulty of relocation and finding accessible accommodation and local support services.

In patriarchal societies, stereotypical gender roles largely restrict women and girls to household chores and child-rearing. Due to a lack of infrastructure and relevant vocational market-aligned skills training rural and semi-urban spaces in India, PwDs are largely unemployed or are paid less than their counterparts and women with a disability earn less than men with disability. Women and girls with a disability seeking employment are discriminated based on the perception regarding their capabilities as women and a PwD. There is limited awareness about the abilities of PwDs among employers, and they tend to rely on the stereotypes about PwDs as helpless, a dependent individual with a medical condition. These perceptions and lack of awareness influence the employment opportunities for PwDs. Various organisations across India are training PwDs, but the transition from training to placement is very slow especially for women and girls. This exacerbates the exclusion of ageing Women with Disability. They have very limited access to formal employment or training throughout their lives which further renders them dependent on family members for healthcare and subsistence.

Reserved government jobs are the preferred option for most PwDs in India as they provide job security, however, even in these jobs, they face the barriers of low expectation and scarcity of productive work assigned to them. In both public and private sector PwDs wait to be recognised as productive employees capable of performing their tasks without help or support if proper infrastructure is provided. Women with disability are also less likely to access loans and engage in self-employment in comparison to men. This lack of access to employment and livelihood opportunities perpetuates the cycle of disability and poverty as PwDs have to incur more health care related costs.

It is also important to understand that women and girls with disability are not a homogeneous group, i.e. women and girls with different impairments and across socio-economic, religious and caste status face different challenges. The challenges of a hearing impaired woman in accessing public transport could be very different from the experience of a visually impaired woman. Not only are challenges different across disability but within the same disability as well. A woman with late blindness (an individual who becomes blind later in life) may face a different set of barriers in comparison to a woman born blind at birth. Similarly, the challenges of a young woman with a disability in accessing education may differ from that of an ageing woman.

Provisions for Protecting the Right to Education and Employment of Women and Girls in International and National Law It is in recognition of the multiple discrimination faced by women and girls with disability in accessing their basic human rights like access to basic health care, education and employment that various UN conventions and international law instruments have focussed on the need to protect the rights of women and girls with disability and enable them to access these rights. In this segment, we will discuss the provisions for women and girls to access education and employment at international and national level.

Affirming support to the World Programme of Action concerning Disabled Persons (1982), UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) recommends in its general recommendation No. 18 “that States parties provide information on disabled women in their periodic reports, and on measures taken to deal with their particular situation, including special measures to ensure that they have equal access to education and employment, health services and social security, and to ensure that they can participate in all areas of social and cultural life.”

United Nations Convention on Rights of Persons with Disability (UNCRPD)

The UNCRPD is the first comprehensive international legal instrument exclusively for Persons with Disability. It aims to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedom by all persons with disability. It consists of 50 articles addressing the social, economic, political and cultural rights of PwDs. The UNCRPD, which came into force May 3, 2008, was ratified by India in October 2007.

This convention acknowledges the neglect, abuse and multiple discrimination faced by women and girls with disability in accessing basic rights. All provisions below relate to education and employment are applicable to women and girls.

Article 24

Recognises the right of persons with disabilities to inclusive education and lifelong learning for the full development of human potential, sense of dignity, respect for human rights and diversity and participation in a free society.

Article 27

Recognises the right of PwDs to work on an equal basis with others and in an environment inclusive and accessible to PwDs and places the obligation on the states to make legislation to safeguard and promote the right to work even for those who acquire a disability during the course of employment. It prohibits discrimination on the basis of disability in employment, protects the rights of PwDs of equal opportunity and remuneration, healthy working conditions and protection from harassment and forced labour. It promotes labour and trade union rights, continued vocational training and career advancement options, self-employment and entrepreneurship and employment in the public and private sector.

It is the Article 6 of the UNCRPD which specifically focuses on women and girls and highlights the importance of recognising the discrimination against them and ensuring them access to basic human rights in all provisions of the convention.

The UNC RPDis ratified by 174 countries including India, which means these countries agree to be legally bound by the treaty and will align their domestic laws to fulfil the requirements of the convention.

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 & Rights of Persons with Disability Act 2016

Part III of the constitution of India contain the fundamental rights which guarantee certain basic rights to the citizens of India. The right to education and the right to equal opportunities in employment under the right to equality focus on providing the basic human rights of access to education and equality of opportunity. These are applicable to all citizens of India including Persons with Disability Also, Article 41 of the constitution notes:

‘The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.’

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act (1995).  Also known as the PwD Act, was an outcome of lobbying by disability groups and mounting international pressure towards disability rights. Prior to this, The Mental Health Act 1987 focussed on laws relating to the treatment and care of mentally ill persons, The Rehabilitation Council of India Act, 1992 for regulating rehabilitation education and professionals and The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act in 1999 provided for constituting boards of national and local trusts and provisions for legal guardianship. The PwD Act 1995 was very significant as it contains rights for PwDs for equal opportunities and full participation.

Under PwD Act 1995 Chapter V and VI were comprehensive chapters dedicated to the education and employment of PwDs in India.

Chapter V

Recognised the need to ensure free education to children with disability till the age of 18, to set up special schools, identify schemes and programs for non-formal education like open schools and universities, promote inclusion in mainstream schools, research for designing assistive devices and teaching aid, develop skills and manpower of teacher and comprehensive education scheme to remove barriers for children in infrastructure, transport, curriculum etc.

Chapter VI

Recognised the need for identification and reservation of 3% of posts for PwDs in public sector jobs and incentivising the private sector employer to ensure 5% of their workforce comprises of PwDs, establishment of special employment exchanges, maintenance and inspection of records of PwD’s employment, formulating schemes for ensuring employment, reserving 3% seat in educational and poverty alleviation program.

The PwD Act 1995 was a significant step in ensuring rights of PwDs in India. However, in the context of women and girls, it does not provide a specific focus on rights of women and girls with disability and the need to recognise and respond to the discrimination faced by them on multiple levels. After much deliberation and lobbying to strengthen the existing act, The Persons with Disability Act 2016 came into force in December 2016. The number of disabilities listed have increased from 7 in the PwD Act 1995 to 21 disabilities including acid attack and Parkinson’s disease. This Act, in addition to the amendment in reservation by increasing the reserved seats in educational institutions from 3% to 5% and for jobs in public sector from 3% to 4%(Under chapter III & IV) and more focus on accessibility, stresses on rights of women and children specifying: “The appropriate Government and the local authorities shall take measures to ensure that the women and children with disabilities enjoy their rights equally with others.

The PwD Act 2016 is a step forward for disability rights in India as it identifies more types of disabilities, focuses on accessibility, and spells out the importance of ensuring women and girls their basic human rights. The work now is to ensure that the rights contained in the Act do not remain in existence only on paper and are accessed by every person with a disability, especially women and girls, across India as quickly as possibly.

Conclusion

Disability is perceived in different ways across cultures, and these perceptions inform the various approaches to disability and vice-versa. The charity and medical model focus on the deficit of the individual and the need to rectify the deviance, while the social model located the disability in the barriers created by society and the environment and the human rights approach moves beyond the anti-discrimination aspect to provide full economic, social, political and cultural rights. Irrespective of the model, realising the basic human rights of women and girls with a disability is a challenge faced by nations across the world.

Access to education and employment promise to provide opportunities towards economic and social independence, security and development. Women and girls with disability are among the most deprived of these human rights. Stereotypes, inaccessible infrastructure, patriarchal mindsets aggravate the situation, excluding and isolating them from society.

There are efforts being made on the international and national level to strengthen the rights of PwDs especially women and girls. Aligning with the UNCRPD Article 6 on the rights of women and girls, the recent PwD Act 2016 through its chapter II focuses on the rights of women and girls and widening the definition of disability to include victims of acid attacks. These instruments are important as they recognise the hardships faced by women and girls due to the intersection of gender and disability. However, the change in status is possible with the effective implementation of these laws and regular monitoring to ensure women and girls with a disability can exercise their rights to realise their full potential.

Reference

1. Addlakha, Renu, and Saptarshi Mandal. “Disability law in India: Paradigm shift or evolving discourse?.” Economic and Political Weekly (2009): 62-68.
2. Ghai, Anita. “Marginalisation and disability: Experiences from the third world.” Disability and the life course: Global perspectives 26 (2001).
3. Mehrotra, Nilika. “Disability, gender and caste intersections in Indian economy.” Disability and Intersecting Statuses. Emerald Group Publishing Limited, 2013. 295-324.
4. Agnihotri, SB. “A Multi State Socio Economic Study of Women with Disabilities in India”.Govt. of India,UNDP,Shanta Memorial Rehabilitation Centre Study.(2007)
5. Abidi, Javed, and Dorodi Sharma. “Disability as a Human Rights Issue: India’s Invisible Minority in the Policy Realm‘.” Yojana, April (2013): 9-11.
6. “First Country Report on Status of Disability in India”,Ministry of Social Justice and Empowerment, Government of India.(2015)
7. “Livelihoods opportunities for Persons with Disabilities”. UNDP. (2012)
8. Parallel Report of India on the Conventions on the Rights of Persons with Disabilities. National Disability Network & National Committee on Rights of Persons with Disabilities. (2017)
9. Oliver,Mike. Joint Workshop of the Living Options Group and the Research Unit of the Royal College of Physicians.” The Individual And Social Models of Disability.”(1990)
10. Shenoy, Meera. “Persons With Disability & The India Labour Market: Challenges And Opportunities.” ILO 13 (2011)
11. Menon, Nidhiya, Susan L. Parish, and Roderick A. Rose. “The “state” of persons with disabilities in India.” Journal of Human Development and Capabilities 15.4 (2014): 391-412.
12. Narayan, Choudhary Laxmi, and Thomas John. “The Rights of Persons with Disabilities Act, 2016: Does it address the needs of the persons with mental illness and their families.” Indian journal of psychiatry 59.1 (2017): 17.