10 Access to Justice & Person With Disability

Dr.B.S. Patil

1. Introduction

The vital difference between human beings and animals is the element of the extent of civilization. However, reaching the pinnacle of civilization is possible only if a comprehensive Code is created to meet all the requirements of the civilized world.

Such a Code has to address the variety of needs, wherein it has to provide recognition and opportunity to all, to lead a dignified life. Ensuring a dignified life is not an easy task, as one has to consider the needs of people with different capacities; like, people with social, economic, physical, mental, cultural as well as other incapacities. All have to be given an equal opportunity to lead a normal and more importantly a dignified life through access to justice. This is necessary as “the disabilities and diseases both cause injustice by limiting a person’s normal range of opportunities”i.

It has been said that, “conditions at the edge of a society reveal more about the state and progress of a society than conditions at the middle”ii. Therefore, the study of the status of persons with disability in access to justice should be treated as a touchstone to determine the extent of civilisation of the society.

Unfortunately, the access to justice and disability has never been the area of concern in the history. The lack of development is due to the reason that until the late twentieth-century, disability was being viewed through the lens of a medical paradigm of individual pathology. The impairment was conceptualized as biomedical and genetic traits or some type of dysfunction, and medical treatment focused on the individual, with an attempt to cure the curable and eradicate the “incurable.” Therefore, disability was a disease to be contained and ultimately eradicated. For that reason, the person with disability was never treated as persons in need of rights, but as persons in need of medical help. In addition, the persons with disability are looked upon as a cursed person, providing them with any kind of rights was never thought of.

Access to justice of persons with disability needs to be studied as an area with potential for development. Under this subject matter, the concept of access to justice would gain modern meaning. Under this module, the access to justice won’t mean access to rights or implementation of rights or access to Courts; it would mean providence of facility to lead dignified rights and entitlements.

Disability a Matter for Concern

The position of persons with disability is a matter of concern in South Asia and more so for India, as they form the largest minority group in India. As the population ages, this figure is expected to increase. According to the United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP), approximately two-thirds of the world’s 600 million disabled persons live in South or South-East Asia. Nearly one third of the disabled persons live below the poverty line, and less than ten percent of youth with disabilities attend school.

The situation looks very grim when these statistics are studied in the light of poverty. According to the United Nations Development Program (UNDP), eighty per cent of persons with disabilities live in developing countries. The World Bank estimates that 20 per cent of the world’s poorest people have some kind of disability, and in some way are regarded in their own communities as the most disadvantaged. India specific data, collected during 2001 census states that there are 21.9 million or 21,906,769 disabled people in India.

The access to justice is an unachievable luxury for people with disabilities, as the above statistics reveal that the poverty, disease, disability and vulnerability are interconnected and lead to multiple disadvantages. In such situation, access to justice in traditional sense would be meaningless. When survival itself is a fight, fighting for rights would become unaffordable luxury. Therefore, as mentioned above, the access to justice would mean ensuring a person to come out of the vicious cycle depicted below. Therefore, access to justice is access to rights which would make the life meaningful, again access would mean the proactive role of the State to provide facilities and entitlements which will ensure rights to the persons with disability.

3. Learning Outcomes

After reading this unit, the reader shall be able to:

• Understand the concept disability
• Comprehend need and necessity for special treatment to disabled persons.
• Learn various authorities created for promotion of access to justice to the disabled persons.
• Learn various statutory protections in promotion of access to justice to the disabled persons.
• Explore the ways by which such protections could be availed by the disabled person.
• Disability as a concept

4.1. The Concept

‘Disability’ and the ‘person with disability’ have been referred to, by using different terminologies. ‘Impairment’ is one such initial term used to connote disability. According to the definition given by the World Health Organization in 1976, ‘Impairment generally means any loss or abnormality of psychological or anatomical structure or function’. The word generally deals with physical status of the person. Whereas, the term ‘Disability’ has been defined as ‘any restriction or lack of ability to perform an activity in the manner or within the range considered normal for a human being’. Therefore, disability is the cumulative effect of impairment. Impairment leads to abnormality; abnormality leads to lack of ability to perform certain activities which are considered to be normal is termed as disability.

The final stage of disability is being ‘Handicap’. It is a disadvantage for a given individual resulting from impairment or disability which limits or prevents the fulfilment of a role that is normal, depending on age, sex, social and cultural factors, for that individualiii. Therefore disability is not a physical factor alone. It’s a combined effect of physical impairment, environmental restrictions and societal prevention to fulfil certain role which is normal for a human being.

4.2. Theories of Disability

The concept of disability has developed over a period of time and has various theories underlying it. Their study becomes relevant to understand the rationality of the legislatures behind different approaches towards the rights of persons with disability

i. Sociological Theory

Sociological approach to the problems of disability is very important as it involves unlearning as well as learning process. The disability can be a problem or it can be a mere person with some special needs, this difference in approach depends upon the economic and cultural contexts. Some countries with stable and developed economy, consider the disability as a problem to be solved, whereas, developing and developed countries give an excuse of development to ignore their needs. Further each culture has a different approach to the disability, for example, the society of United States treats blindness as a loss requiring counselling; in Sweden it is a problem requiring support services; in Britain it is a technical issue requiring aids and equipment, and in Italy, blindness requires the seeking of consolation or even salvation through the Catholic Churchiv.

A fundamental aspect of the sociological theory is ‘equality’. Equal rights are said to give empowerment and the “ability” to make decisions and the opportunity to live life to the fullest. Sociological theory attempts to clarify the fact that the same problem is viewed differently by different societies at different points of time.

ii.Positivist Theory

The positivist theory focuses on search for cures, means of reducing impairments or assessments of clinical interventions to treat disabilityv. However, a branch with in Positivists called ‘the Social Medicine’ recognizes the social context to impairment as well as disability, and examines the environment as well as the individuals. Hence public health measures concerned with sanitation, poverty, health education and the like have proved extremely effective in preventing rather than curing a range of impairments such as tuberculosis, polio, rickets, and river blindness.

Even though this theory provides an approach to treat disability by preventing it, the problem lies not with prevention but it lies with the attitude, that person with disability is a challenge to society and the problem needs to be uprooted not live with it. The problem with this approach was explained in one sentence by Begum N as, “Life and death decisions are vested in the hands of people who have very little understanding of the reality of disabled people’s lives.”

vi  Functionalist Theory

This theory emphasizes on the role of medicine to cure and maintain the “normal” functioning of individuals and of the society. In this model, the “sick role” involves being compliant and wanting to get well. Therefore here the disability is considered as a disease which needs to be cured. The inherent defect with this approach is that it does not address the needs of people with incurable conditions, and in addition it classifies disabled as sick, and seems to be deviant. Functionalism confuses impairment and disability with the sick role. The theory has failed to recognize that disabled people do not necessarily have “something wrong with them”. It has continued the discriminatory norms and values.

IV.Critical Theory

Critical theory sees problems of persons with disability as the product of an unequal society. The theory finds solutions through social action and change. This theory treats notions of disability as means of social oppression that brings in prejudice and discrimination, which results in restricting people’s lives much more than impairments do.

According to the theory, the crucial problem of the community of persons with disability is that, regardless of the type and severity of their impairment, they do not form a homogeneous group. This poses a challenge to accommodate them within a society that takes little account of their individual or collective needs.

5. Models of rehabilitation of persons with disabilityvii

Rehabilitation is a process of restoring the lost facilities to the needy persons. The process of rehabilitation mainly depends upon the mode of understanding. The study of the models of rehabilitation gives us an insight in to the understanding of the plight of the persons with disability.

The Medical Model of Disability: The Medical Model views disability as a problem of the person, which is directly caused by disease, trauma, or other health conditions. Therefore this model prescribes sustained medical care provided in the form of individual treatment by professionals. Within its framework, professionals follow a process of identifying the impairment and its limitations and taking the necessary action to improve the position of the disabled person. In the Medical Model, rehabilitation is aimed at a “cure,” or the individual’s adjustment and behavioral change that would lead to an “almost-cure” or effective cure.

The Social Model of Disability: The Social Model of disability considers disability as a socially created problem and a matter of the full integration of individuals into society. In this model, disability is not an attribute of an individual but rather a complex collection of conditions, many of which are created by the social environment. Hence, the management of the problem requires social action and is the collective responsibility of society at large to make the environmental modifications necessary for the full participation of people with disabilities in all areas of social life. The issue is both cultural and ideological, requiring individual, community, and large-scale social change.

Charity Model of Disability: This model considers the disabled as a victim of circumstance and deserves pity. This model does not consider the person with disability as entitled to rights but only to facilities. He is expected to lead an animal existence on the charity provided by the society.

Moral Model of Disability: This model adopts an attitude that people are morally responsible for their own disability. For example, the disability may be seen as a result of bad actions of parents or as a result of practicing witchcraft. This attitude may also be viewed as a religious fundamentalist offshoot. Echoes of this can be seen in the doctrine of Karma in Indian religions.

Human Rights Model: This model looks at empowering the persons with disability by protecting rights rather than by providing charity. This model is latest model adopted in the light of latest developments in the international arena. This model prescribes not only an animal existence but life with dignity.

6. Disability and Indian Constitution

Chapter III are general rights extended to all citizens, some are even extended to all persons, and therefore fundamental rights are applicable to Persons with disability. Along with Fundamental Rights, Directive Principles also lend support to the rights of persons with disabilities. These duties of the State under chapter IV possess more meaning as it burdens the State with proactive role.

Article 41 specifically provides that the State should make effective provision to secure right to work, to education and to public assistance in cases of disablement. Article 39 A, envisages that equal justice and free Legal Aid should be provided to all citizens and justice should not be denied by reason of economic or ‘other disabilities’. Article 45 has created a duty towards providing early childhood care and providing education for all until age of six. Articles 46 and 47 also have the potential for raising the standards of living, education and development of persons with disabilities. The Directive Principles of State Policy thus attempt to cater to the rights of disabled to a certain extent.

There are certain entries under these three lists, which relate directly or indirectly to the rights of disabled. The Union List requires the Centre to conduct census periodically. The census is helpful to the Authorities to understand the position of the persons with disability. Another entry No. 55 requires the Centre to prevent disability by bringing in safety measures at dangerous workplace. The Centre is also required to include labour welfare practices at workplace including provident funds, employer’s liability, and workmen’s compensation in order to bring certain level of economic stability in case of accidents, and to protect the rights of the person with disability and their family. This attempt is expected to be done at different levels; from establishing institutions, to providing professional and vocational program and promoting special studies or research of different areas.

The concurrent list prescribes the entries, where both State as well as Union has the obligation to perform. Under this list, the treatment of lunatics and persons with mental deficiency has been mentioned. . In addition to the treatment, on a broader canvas, both State and Centre are under the duty to provide social security. This provision is broadly applicable to all the persons living in India. However, same can be extended to address the needs of the persons with disabilities. The entries also address the needs of the persons with disability specifically is regarding the provision of education, and vocational and professional training. These entries sufficiently, if not fully, cover a number of aspects regarding disability prevention as well as relief.

I.The Mental Health Act, 1987

The history of mental health legislations in India clearly demonstrates that, legislature felt the need of protection, but attempts were unsatisfactory. The Lunatic Asylums Act, 1858 was the first enactment solely governing persons with mental disabilities. It was replaced by the Indian Lunacy Act, 1912. This stayed in force for three decades after independence. Then the present Act dealing with mental health came into force.

This Act has been passed with a definite intent to consolidate the existing provisions relating to treatment and cares for mentally ill persons and has been amended in accordance with the international obligations. However, access to justice in its traditional meaning was absent completely. However, the major step taken under the Act is to provide improved provisions with respect to property of the mentally ill persons and matters connected.

The scope and the objective of the Act were altogether different from the other legislations, as the Act is restricted only to the persons suffering from mental illness. Along with this restriction, the major restriction comes in the form of objectives of the Act, as the major objective of the Act is to construct, maintain and regulate the psychiatric hospitals and nursing homes.

The other incidental objective was to provide protection to the properties belonging to the mentally ill persons. It becomes a very important requirement on two fronts. One task is to provide financial stability to the mentally ill persons. This becomes necessary as the property of a disabled is prone to misappropriation, which definitely push the mentally ill person into economic distress. Second task was to provide medical care. Even existence of property may not ensure proper treatment to the curable mental illness. This Act ensures prevention of such misappropriation and proper usage of the profits from the property towards treatment of the mentally ill person.

I. Management of Person and Property

The District Court can intervene with the management of the property on an application under S. 50 of the Act. The locus to make application lies with the relatives, public curator appointed under the Indian Succession Act, 1925 (39 of 1925), Advocate-General of the State, or any person appointed as guardian under the Guardians and Wards Act 1890.

On receipt of the application, the District Court issues notice to the mentally ill person or to his next friend. Notice will also be sent to all the stake holders i.e. relatives etc. The Court can also take assistance of two or more assessors while dealing with inquisition. The inquisition under S. 50 is to find an answer to two basic questions;

Whether the alleged mentally ill person is in fact mentally ill or not?

Where such person is mentally ill, whether he is incapable of taking care of himself and managing his property?

Based on the findings on these questions the Court will have a follow up action. If both answers are in affirmative, then the Court will appoint a care taker. Otherwise the Court will exercise restraint and respect his right to enjoy the property.

The appointment under the Act is in two different capacities. Once the appointment is sought to take care of person, the appointee will be known as guardian and his duty to take care extends to dependents of the mentally ill person. If appointment is to take care of the property then he will be known as manager. His duty includes taking care of the property and paying allowance to the guardian if appointed, and taking care of the expenses of the mentally ill person.

The thorough study of the Act reveals that the manager, will be under the surveillance of the Court. Every action of the manager has to be approved by the Court. In addition to the supervisory role, the Court can also play a proactive role and pass any order concerning any matter connected with property of the mentally ill person.

The appointment of manager and guardian is authorised under the Act. The appointment and activity is supervised by the District Court. Therefore, both the persons can be removed from the authority on application or suo moto.

The cost of maintenance of mentally ill person detained in psychiatric hospital or nursing home is discussed under two different headings. The cost of indigent mentally ill person will be borne by the Government. In case of a mentally ill person having an estate or whose relatives are legally bound to maintain him, the duty to maintain lies on the relative and not on the government.

8. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act) viii

Among all other legislations, presently, the PWD Act of 1995 stands out as the major and comprehensive legislation to protect the rights of the persons with disability. This Act was a result of efforts by the Government of India to discharge the international obligation created by the ‘Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region’ix. The Act is comprehensive in nature and mainly deals with persons with physical disability. But also includes provisions in relation to mental retardation and other forms of disability.

Objectives of the Act

One of the major objectives of the Act was to provide full participation and equality to the people with disability. This Act has been divided into different Chapters according to the different objectives. The Act also creates Authorities at different levels to implement its objectives. The access to justice would be studied in view of the functioning of these authorities.

The major portion of the PWD Act has been implemented by the highest Authority created under the Act called the Central Coordination Committeex. The high powered Committee comprises of Chairperson, Vice-chairperson, members and member secretary. The Committee comprises of ex-officio members and other regular members who are expected to take interest in the implementation of the law. The Committee is made of representatives of various departments which has direct bearing upon the implementation of the Act. These ex-officio members are supported by the representatives of the Parliament and the States. The Non-Governmental Organizations associated with the protection of rights of disabled persons are also having fair representation in the Committee.

This high powered Committee is assisted by the Central Executive Committee constituted under S. 9 of the Actxi. These high powered committees are monitored by the appropriate Government. The Central or State Government can be treated as an appropriate government depending upon the parties involved in the dispute.

The other two important authorities involved with the implementation of Act are the Chief Commissionerxii appointed by the Central Government, and the Commissionerxiii appointed by the State Government. The Act makes provision for creating full-fledged office to implement the provisions of the Act.

Special Employment Exchangexiv: Looking into the object, the Act makes a provision for creating the Special Employment Exchange. This is formed to provide complete information under one roof. The Exchange is involved with maintaining the information of various qualified disabled persons in the locality as well as information regarding the available reserved vacancies.

Institution for persons with disabilitiesxv: In the similar line, the ‘Institution for Persons with Disabilities’ has been created under the Act to provide care, protection, education and training to the persons with disabilities.

As mentioned above, the State Government also has to function parallel to Central Government. Accordingly the State Government is expected to form a State Coordination Committee, a Commissioner as well as other executive authorities, etc. The formation of the committee is in the similar line as that of Central Government with mutatis mutandis.

Central Coordination Committee xvi : The major function of the Central Coordination Committee (CCC) is to act as the national focal point on disability. Being the focal point, it has to involve in continuous evolution of a comprehensive policy towards solving the problems faced by persons with disabilities. The Central Coordination Committee has major functions like

• Reviewing and coordinating the activities of all the Departments of Government
• Reviewing and coordinating the activities other Governmental and non-Governmental Organizations
• Developing a national policy to address issues faced by persons with disabilities
• Advising the Central Government on the formulation of policies, programmes,
• Advising the Central Government on legislation and projects with respect to disability
• Take up the cause of persons with disabilities with the concerned Authorities
• Work with International Organizations and International Agencies to provide for schemes and projects for the disabled in the National Plans
• Review in consultation with the donor agencies, their funding policies from the perspective of their impact on persons with disabilities
• Take such other steps to ensure barrier free environment in public places, work places, public utilities, schools and other institutions
• To monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of persons with disabilities
• To perform such other functions as may be prescribed by the Central Government.
• Central Executive Committeexvii: As the major decision making and policy making is done by the CCC, for the other part of bringing these policies and decision into action, a Central Executive Committee (CEC) is established and is responsible to carry out the decisions of the In addition to this the CEC also performs such other functions as may be delegated to it by the CCC. To perform the duties and chalk out the future plan of action, the Committee has to meet once in three months and function as per the rules made by the Central Governmentxviii. In addition to the above functions, the CEC is also empowered to associate itself with any person whose assistance or advice is necessary to perform its functions under the Actxix.
• The Act has been drafted to create two independent Authorities to function in different spheres and implement the rights created by the Act. On the similar line, another Authority resembling CCC is created, called the State Coordination Committee (SCC), but with a far more restricted geographical area of operation.

State Coordination Committeexx: The major functions of the SCC are similar to the CCC. The major differences are found in the focal point of the Committee. The SCC is having the individual State as its focal point. Even though as per the letter of law the functions look similar, they are not so in practice. The federal set up in Republic of India has resulted in creating Union of States. This resulted in division of the functions of the State and Central Government. So CCC will be operating on the functions found in the Central list, whereas SCC will discharge the same regarding the functions enumerated in the State List.

The function of the State Coordination Committee shall be to serve as the State focal point on disability matters and to facilitate the continuous evolution of comprehensive policy towards solving the problems faced by persons with disabilities. The Committee also has to review and coordinate the activities of all the Departments of Government and non-Governmental Organizations which are dealing with matters relating to persons with disabilities as well as develop a State Policy to address issues faced by persons with disabilities; advise the State Government on the formulation of policies; review, in consultation with the donor agencies, their funding from the perspective of their impact on persons with disabilities as well as take such other steps to ensure barrier free environment in pupil’s places, work places, public utilities, schools and other institutions. The Committee has to monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of persons with disabilities as well as perform such other functions as may be prescribed by the State Governmentxxi.

The duties and the functions of the State Executive Committee are similar to the CECxxii.

The major dissimilarity is in relation to the controlling authority. The CCC will be functioning under the directions of the Central Government, whereas the SCC will be bound by both Central as well as State Government.

Another kind of access to justice is by providing rehabilitation. According to the Act, “Rehabilitation” refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels. This kind of access to justice has been made reality with the help of another legislation, which has framed rules to bring in professionalism among the trainers

9. The Rehabilitation Council of India Act 1992xxiii

Looking into the uniqueness of the task of providing access to justice, the legislatures developed a strategy of empowering the persons with disability. This is mainly concerned with economic empowerment. Therefore, this Act was enacted for the constitution of the Rehabilitation Council of India. It is created solely to regulate the training of rehabilitation professionalsxxiv. This Act addresses the other part of the rehabilitation task, i.e. the training of the trainers.

This Act is made to streamline the training of trainers by creating the national authorityxxv. This Council is in the fashion of body corporate, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract and sell by the said name, and sue and be suedxxvi.

The Council is made to represent the cross section of the Government of India, to ensure that the members are chosen from different department who play an important role in training of rehabilitation experts.

The Chairman shall be the person with social work background, for which proper representation is ensured from Social Welfare, Health and Finance Department. As the role of the Council is to train the professionals, the membership is ensured from University Grants Commission and the Directorate General of Indian Council of Medical Research. To bring in representation from States, two members from Ministry or Department of the States or the Union Territories are appointed by rotation in alphabetical order. Medical practitioners and rehabilitation professionals working as volunteers are also appointed as a part of the Council. Finally, four members of Parliament are appointed to have parliamentary representation and social workers to have a representation of people working on fieldxxvii.

This Council functions by creating Executive Committeesxxviii. They are required to execute any special or general work allotted to them. The main function of the Council is to recognize the Universities and other institutions to grant qualifications for rehabilitation professionals. If any qualification is not recognized, then the Council shall be the sole authority to recognize and recommend the amendment of the schedule to add this new qualificationxxix. The Council enjoys monopoly over granting practicing certificate to the rehabilitation professionals. In addition to this work, the Council may also enter into negotiation with any foreign country to recognize their qualification in reciprocity, and issue notice to that effectxxx.

Training of the Professionals

Chapter III of the Act deals with functions of the Council. Training of the professional is one of the important functions. Council is under duty to train different professionals which include, xxxi

Council is also authorized to prescribe the minimum standards of education required for granting recognized rehabilitation qualification by Universities or institutions in Indiaxxxii. This Act brings in uniformity in qualification and compulsory registration to bring in improvement in the quality of rehabilitation professionals. Registration becomes the sole criteria to hold office as rehabilitation professional in any governmental or any institution maintained by a local or other authority. This also provides a permission to have independent practice as rehabilitation professional and to give evidence in the Court in any matter relating to the disabled. To bring in adherence to the Act, it prescribes punishment to the person violating these provisions, which may extend up to one year imprisonment or fine or bothxxxiii.

Along with these steps to improve the quality of rehabilitation professionals, the Act also provides for improvement of imparting of education to such aspiring professionals by employing inspectors and visitorsxxxiv to inspect the quality of education imparted in various Universitiesxxxv. The inspectors and visitors shall not interfere with the functioning of the University, but they send the report to the council to take appropriate actionxxxvi. The report submitted will be sent to Central Government and they may ask for clarification regarding the report. On the basis of response the appropriate action is required to be taken by the Central Government.

Rehabilitation as a Profession

The role of the Council extends beyond the controlling of the training of the professionals. It is authorized to prescribe standards of professional conduct and etiquette and a code of ethics for rehabilitation professionalsxxxvii. The standard contents of the ethics include violations such as infamous conduct or professional misconduct xxxviii . The Council becomes more powerful due to enjoyment of the power to remove names permanently or temporarily from the Registry. However this action can be taken only after following the principles of natural justice.

Effective implementation of the RCI Act and effective functioning of the Rehabilitation Council makes the right to access to justice meaningful. The effective training and high standard of professionalism will bring in more efficient persons. This increased efficiency will lead to improved economic status, which automatically ensures access to justice.

10. Rights of persons with disabilities Draft Bill, 2012

Till recently the rights of persons with disability was recognised and protected on piece meal method. As the need arose, the relevant laws were passed. However, draft bill of 2012 is a holistic law, which change the outlook of the rights of the persons with disability. This law takes care of all aspects of persons with disability. The law recognises the requirements from justice, entitlements to all material needs like, education, employments etc. This is the only legislation which recognises the concept of access to justice in its traditional sense.

a.Legal Capacity and Equal Recognition before the Law

The major achievements of the legislation is in providing equal legal capacity and right to equal recognition of the persons with disability before the law. Any express or implied disqualification on the grounds of disability prescribed which has the effect of depriving any person with disability of legal capacity are declared illegal. To make this right meaningful the Act provides for the right to access to all arrangements and support necessary for exercising legal capacity in accordance with their will and preferences.

In addition to the above arrangements the appropriate governments shall establish one or more authorities to mobilize the community and create social networks to support persons with disabilities. These recognised authorities perform the following functions:

i.Institute support measures for the exercise of legal capacity by persons with disabilities living in institutions and those with high support needs, and

ii. Set up suitable support arrangements, other than limited guardianship to assist persons with disabilities, who have exited from plenary guardianship, in the exercise of their legal capacity.

As mentioned above, the major achievement of the Bill is in specifically providing right to access to justicexxxix.

Persons with disabilities and Disabled Persons’ Organizations shall have the right to move any court, tribunal, authority, commission or any other body having judicial or quasi-judicial or investigative powers. The authorities are under the duty to ensure that persons with disabilities are able to exercise the right to access and provide reasonable accommodation. In addition to accommodation all the authorities shall evaluate the testimony on an equal basis and ensure no discrimination on the basis of disability.

National and State Legal Services Authorities shall make provisions including reasonable accommodations to ensure that persons with disabilities have access to any scheme, programme, facility or service offered by them on an equal basis with others.

The authorities shall take steps to:

In addition to the above access to justice, if any specific rights of the persons with disability are violated, the persons with disability can approach an entirely different set up called Disability Rights Courts.

Disability Rights Courtsxl

To ensure speedy disposal of suits of a civil nature, where rights of the persons with disability is infringed the Bill provides for Disability Rights Courts through designation of a Court in each sub-divisionxli. These Courts are also authorised to deal with the criminal offences against persons with disability.

In addition to designation, State Government may establish exclusive Disability Rights Courts in each district or in each city with population of 10 lakh or morexlii. However, the power and jurisdiction of the Disability Rights Court is restricted by sec 105 as well as Territorial Jurisdiction provided by relevant laws.

These Disability Rights Courts are assisted by an advocate appointed by State. To be Disability Rights Counsel, the Advocate shall possess not less than five years’ standing as a Disability Rights Counsel. He shall give legal advice and plead the cases of plaintiffs with disabilities in such courtsxliii.

Equal Opportunity Policies

In addition to the facilities provided every establishment has to come up with Equal Opportunity policy providing all details as to measures proposed to pursue the provisions of this Legislation.

To ensure fulfilment of the objectives of the above sections, the law provides for establishment of Redressal of Grievances by appointing an officer as Grievance Redressal Officer. Any person is aggrieved by an establishment for not complying with the provisions of the above sections, he may file a complaint with the Grievance Redressal Officer, who will investigate it and, on being found correct, shall take up the matter with the competent authority within the establishment for corrective action. If a person with disability is not satisfied with the action taken, he may approach the District-Level Committee on Disability.

11. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (National Trust Act).

This Act came into force with entirely different objective. Its aim is to provide for the constitution of a body at the national level for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities. Along with the Trust, the Act also provides for procedure for appointment of the guardian for the disabled person. The Act is specially passed to cover severe disabilities, and it addresses the needs of the severely disabled persons. Here the object is to provide empowerment through the Trust established under the Act to lead life independently and more importantly within the community. This could be achieved if support to the person with disability is extended. To have a deeper reach in the country the Trust can associate with other registered organization and strengthen those organizations. The role of the Trust gets a serious turn in two cases, where the person with disability does not have family support, or has lost his/her parents. Here the Trust extends all types of help to such person with disability. In accordance with the object of the PWD Act, this Trust tries to facilitate the realization of equal opportunities, protection of rights and full participation of persons with disability.

Therefore, this Act plays important role is providing access to justice to the most needed people. However, the meaning justice has been improved to include access to means for dignified life.

12.   Blind and other Physically Handicapped Persons (Rehabilitation, Employment and Welfare) Bill, 2002

The Bill has been framed to provide for the rehabilitation, reservation of jobs and other welfare measures for the blind and other physically handicapped persons in the country. Many persons with disability are talented. However due to disability they are not in a position to get into jobs and have stable financial position.

The Bill is designed to provide basic financial stability to the persons with disability by providing reservation in jobs. For this purpose, the Bill proposes to establish National Council for the Blind and Handicapped.

National Council for the Blind and Handicapped

The Council is required to have persons from different areas of work, including the Union Minister for Social Welfare as its Chairman, and Union Ministers of Health and Family Welfare, Labour Welfare, Finance and Deputy Chairman of the Planning Commission as its members. This Commission is formed with a specific object to evolve a national policy for the rehabilitation of blind and other handicapped persons; start a new programme, services and pilot projects for the rehabilitation of handicapped and blind persons and review and suggest amendments to the existing laws or suggest new legislation for the welfare of blind and other handicapped persons; review the facilities available to the blind and other handicapped persons from time to time.

Registering Authority

The Bill also provides for a Registering Authority. Its duty is to register all the blind and the persons with other disabilities residing within the defined area.

This list has to be circulated among the employers and they shall employ such registered persons with disability. It is mandatory that every employer shall provide not less than six per cent of reservation.

Once the person with disability is registered he is eligible for a job. In lieu of job, he is entitled to unemployment compensation. In case of violation of any provisions of the Bill by any employer, the punishment is fine of Rs. 10000.

13. Summary

Access to justice gains entirely different meaning, when it is understood in the light of persons with disability. When his fighting for recognition as a human being, for him/her going to court to exercise their substantive rights is a distant dream,. Therefore, understanding the concept of disability, different models of rehabilitation becomes necessary to understand the need for access to justice.

As per new meaning of access to justice, the law relating to person with disability is studied with a view of understanding the law creating rights as well as providing mechanism for protecting the rights.

Law is different for persons with mental disability and person with physical disability as a result this module makes the same distinction. Hence right to property and treatment of person with mental disability is discussed separately.

The law of rehabilitation provides for empowerment of person with disability. It brings in professionalism in training of trainers. Similarly, right to education and right to employment is also important part of the study.

The new legislations in pipeline, provides for access to justice through special courts as well as through special provisions in ordinary courts.

REFERENCES:-

1. Collins H., ‘Discrimination, Equality and Social Inclusion’,( Modern Law Review, Vol.66, January 2003)

2. David B. Resnik, East Carolina University, ‘The Concept of Disability in Bioethics: Theoretical and Clinical Issues, A Job’, (Summer 2001, Volume 1, Number 3)

3. Disability Manual, 2005, National Human Rights Commission, New Delhi, 2005

4. Marcia H. Rioux, ‘Second Thought: Constructing Knowledge, Law, Disability and Inequality. The Human Rights of Persons with Intellectual Disabilities: Different But Equal’ viii (Stanley S. Herr et al. eds., 2003)

5. Ministry of Information and Broadcasting. (2000). India 2000: A Reference Manual.(New Delhi: Publication Division).

6. ‘Rights of Persons with Disabilities’, (The Indian Law Institute, 2002 Edition, New Delhi).

7. ShrutiPandey, Priyanka Chirimar, Deepika D’souza, “Disability and the Law” , (Human Rights Law Network, New Delhi, June 2005)

8. Bivitrisusanti, “The Implementation of the Rights to Heath Care and Education in Indonesia”, Cambridge University Press Cambridge, 2008. In Courting Social Justice-Judicial Enforcement of Social and Economic Rights in the Developing World, Edited by Varun Gauri, Daniel M. Brinks,

9. Courting Social Justice- Judicial Enforcement of Social and Economic Rights in the Developing World, Edited by Varun Gauri, Daniel M. Brinks, in Article written by Bivitrisusanti, “The Implementation of the Rights to Heath Care and Education in Indonesia”, Cambridge University Press Cambridge, 2008.

10. Pramila Balasundaram, ‘Inclusive Education – The Road Ahead’,

11. http://hdr.undp.org

12. http://hpod.pmhclients.com

13. http://siteresources.worldbank.org

14. http://www.disabilityindia.org

15. http://www.rehabcouncil.nic.in