Beruflich Dokumente
Kultur Dokumente
Introduction
The rights of person with disabilities have been addressed more generally throughout the development of
the international human rights law. The concept of the right to equality, and all other normative standards
set out by the international human rights instruments are the foundation of the rights of disabled persons. In
order that the rights of persons with disabilities may be further realized, contemporary international law has
increasingly recognized the need for all states to incorporate human rights standards into their national
legislation. In recent years, there happened a revolutionary change in approach, globally, to ensure that
persons with disabilities enjoy the same standards of equality, rights and dignity as everyone else. i.e. to be
included in the general school system, enabling them to enjoy civil political social and economic rights.
The approach of the global community towards the rights of disabled persons has been transformed as a
fundamental human rights issue, from a mere welfare or charity measure.
2. International level initiatives
Since the inception of UN the 20th Century saw an awakening in the field of Human Rights protection
and implementation. There are a number of specific international human rights instruments, which would
contribute to the promotion of the human rights of persons with disabilities.
(i)
Keeping in mind, the provisions of UN Charter regarding Human Rights, The Declaration of Human Rights
was prepared by the Commission on Human Rights and adopted by
are:- born free, equal in dignity and rights, entitled to equal protection against discrimination everyone
has the right to life, liberty, equal before law, and freedom of thought ... and the General Assembly
proclaimed this Universal Declaration as a common standard of achievement for all people of all nations.
The rights proclaimed in the UDHR are classified into four categories.
(i) General:- Article 1 proclaims the freedom and equality in dignity and rights of all human beings and
Article 2 upholds that everyone is entitled to all rights and freedoms without any kind of discrimination.
(ii) Civil and Political Rights:- Article 3 to 21
(iii) Economic, Social and Cultural Rights Article 22 to 27(iv) Concluding Articles 28 to 30.
Article 25(1) specifically mentions the socio economic rights of persons with disabilities:- Everyone has
the right to a standard of living adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary social services, and the right to security in
the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.
(iv) Concluding Articles 28 to 30.
UDHR has exercised a powerful influence at international level and inspired international conventions
under the auspices of UN. In the words of Fawcett .......it is the mine from which other conventions as well
as national constitutions protecting these rights have been and are being quarried (Dr.SK Kapoor Human
Rights 6thEdn.P38)
(ii) International Covenant on Civil and Political Rights
Adopted by UN Gen. Assembly Resolution 2200 AXXI, 16 December 1966
The International Covenant on Civil and Political Rights came into force in 1976 is the most comprehensive
international code of binding legal provisions in the human rights area which supplement the provisions of
the Universal Declaration of Human Rights.
There is no specific reference of provisions to disability in International Covenant on Civil and
Political Rights. Indeed, the general human rights guarantees as embodied in the Convention apply to all
persons; therefore, equal attention should be given to the protection of these rights and their application to
disabled persons. Thus, the provisions of the Convention can be invoked for the protection of the rights
of persons with disabilities.
The ICCPR comprises of 53 articles divided into VI parts and classified into the following
categories.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Preamble
General (Articles 1 to 3 and 5)
Rights in Emergency (Article 4)
Substantive Rights (Articles 6 to 27)
Implementation or Enforcement Machinery (Articles 28 to 45).
Interpretation or Saving Provision (Articles 46 to 47)
Final or concluding provisions, regarding ratification of accession of the covenant, amendments
etc.
The right to life is the most fundamental of rights to the extent that it is the premier to all other
human rights guarantees. Article 6 states that the "...inherent right to life......shall be protected by law..." and
that no one can be arbitrarily deprived of his life.
The rights of disabled persons are protected by article 2 (1) which ensure to all individuals without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national, or
social origin, property, birth, or any other status."
Article 2 (3) (a) ensure the accountability of State Parties i.e. The concerned governments are
accountable not only for rights violations but also when the government has failed to provide protective
measures.
Article 9 (1) provides that everyone has the right to liberty and security of person, and that no one
shall be subject to arbitrary arrest or detention. This article is of relevance to persons with mental
disabilities.
Article 17 (1) restricts unlawful interference with ones privacy, family, home or correspondence,
and to unlawful attacks on honour or reputation.
Article 25 establishes the political right of everyone and ensures participation in the conduct of
public affairs, directly or through freely chosen representatives, to vote and be elected at periodic elections
and provides accessibility on equal terms, to public service.
Another important provision, which relates to disability, is article 26 embodying the customary
principle of equality and non-discrimination. Article 26 states: "All persons are equal before the law and are
entitled without any discrimination to the equal protection of the law. In this respect the law shall prohibit
any discrimination and guarantee to all peoples equal and effective protection against discrimination on
any such ground as (...) birth or other status." Disability is clearly another status for the purposes of this
provision.
(iii) International covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (ICESCR) was concluded in 1966. It
entered into force 10 years later in 1976. On 8th February 2002, 145 States had ratified the Covenant.
From the point of view regarding peculiar perspective of disability, the rights can be grouped as follows:
(a) Right to non-discrimination
The right to non-discrimination (article 2)
The right to equality between men and women (article 3)
(b) Rights that facilitate participation
The right to education (articles 13-14)
The right to health (article 12)
(c) Rights to participate in the workplace
The right to work (article 6)
(d) The creation of conditions which would assure to all medical service and medical attention in
the event of sickness.
(v) &(vi)The right to work in the context of disability: (article 6&7) recognize the right of everyone to the
opportunity to gain his living by work which he freely chooses and safeguarding fundamental political and
economic freedoms to the individual.
The right to just and favourable conditions of work in the context of disability: (article 7) recognize
the right of everyone to the enjoyment of just and favourable conditions of work which ensure fair wages
and equal remuneration for equal work, A decent living for themselves and their families .Therefore, the
main theme of article 7 in the context of disability is non-discrimination with respect to pay and working
conditions in both sheltered and open employment.
(vii) The right to form and join trade unions in the context of disability (article 8) provides the right to form
TradeUnions for the promotion and protection of economic and social interests.
(viii)Right to Social Security(Article9) : recognize the right of everyone to social security, including social
insurance.
(ix) The right to protection of the family, mothers and children in the context of disability (article 10):
Considering that family as fundamental group unit of society, special care to motherhood should be
accorded. Child labour and harmful working conditions should be prohibited and should be punishable by
law.
(x) Right to an adequate standard of living (Article11): recognise the right of person to an adequate
standard of living for himself and his family, with food and shelter, and improved standard of living.
(xi)Cultural Participation (article 15) recognize the right to take part in cultural,scientific literary and
artistic actiavities and to encourage the development of international cooperation in such fields.
IV) Convention on the Rights of Person with Disabilities
The United Nations Convention on the Rights of Persons with Disabilities is the first human rights
treaty of the twenty-first century. It has an opportunity to reconfigure the structure and process of human
rights concept. The Convention entered into force on May 3, 2008. A monitoring Committee on the Rights
of Persons with Disabilities was elected during the initial Conference of States Parties to protect the rights
of the worlds largest minority, some 650 million persons with disabilities. 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.
In the first part of the conventions preamble its recognised that:(a) the inherent dignity and worth and the equal and inalienable rights of all members of human
family as the foundation of freedom, justice and peace in the world.
(e) disability is an evolving concept and that disability results frfom the interaction between persons
with impairments and attitudinal and environmental barriers that hinders their full and effective
participation in society on an equal basis with others
(q) women and girls with disabilities are often at greater risk, both within and outside the home of
Fostering respect for the rights and dignity of persons with disabilities;
Enabling persons with disabilities to live independently and participate fully in all aspects of life.
a
b
c
d
e
f
Respect for the evolving capacity of children and their right to preserve their own identities
Article 4 of the 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 4 (2) states: that the measures to be taken for the realisation of economic, social and cultural rights.
Article 5 of the convention provides for non-discrimination. This can be achieved, among other things, by
adopting appropriate actions and by introducing the principle of reasonable accommodation.
The convention also seeks to address the intersectional concerns of disability with gender and also of disability
with age.
Article 6 and Article 7 ensure the full and equal enjoyment of rights of women and girls and children with
disabilities.
Given the important role that the media play in both reflecting and influencing public opinion, the
Convention requires States to take steps to encourage all organs of the media to portray persons with
disabilities consonant with the purpose of the Convention (art. 8 (2) (c)). In this way, monitoring societal
attitudes is important to understand the human rights situation of persons with disabilities.
The accessibility of transportation, information, and communications and other facilities and also the
eliminations of obstacles and barriers to accessibility have been ensured by Article 9
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.
Dec.71)
the
Declaration
on
the
Rights
of
Disabled
The Constitution of India envisages a very positive role of the State towards its disadvantaged
citizens. Article 21 Guarentees the right to life and personal liberty. Article 39A envisages equal justice and
free legal aid to all citizens and the opportunities for securing justice are not denied to any citizenby reason
of economic or other disabilities. Article 41 enjoins that 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.
In the Seventh Schedule of the Indian Constitution vide List II(State list) clause 9, provided the
provision to Relief of the Disabled and Unemployable
comprehensive legislation having a rights based approach with special emphasis on social and economic
rights. The
government recognized the need for such a legislation in 1980. Since the legislative power
regarding disability was kept on the State List, the matter could not be pursued. However, Article 253 of the
Constitution of India enables the Parliament to override the federal distribution of powers and to give effect
to a treaty entered with foreign power or an international body even if the matter of legislation relates to
an entry in the State list. With the signing of the Proclamation of Equality and Full Participation of People
with Disabilities in Asian and Pacific region, the legislation was enacted by the Parliament in 1995.
Laws enacted years ago generally did not include disability in the list of prohibited
heads of
discrimination. Though, Indian Constitution in its Articles 15 and 16 prohibits discrimination in the
matter of employment and access to public facilities on grounds of religion, race, caste, sex and place
of birth, it is silent on disability. In fact until 1995 the Service Rules prevented entry of persons with
disability in higher grades of service. The rule gave the employer the authority to force premature
retirement in public interest. Often employees who acquired disability during service were either forced
out of job or reduced in rank, and promotion opportunities were alienated for ever.
2. Judicial Interventions
Even in the absence of formal recognition of disability-based discrimination, the Indian judiciary has
been forthcoming in setting aside discriminatory rules. For instance, the rule prescribing physical
fitness criteria for entry in the government service disqualified candidates on account of their disability.
In Nandakumar Narayanarao Ghodmare v. State of Maharashtra and Ors.
Supreme Court directed that the candidate who was rejected because of colour blindness should be
appointed to any of the post s of the Agricultural Class II Service post, other than the 5 out of 35 posts
which required perfect vision
Rajbhir Singh v. DTC (97 2002 DLT 19) the Delhi High Court directed the respondent to take the
petitioner back into service and pay salary from the date when the respondent stopped paying salary in
termination of his service. He was reinstated with full back wages and consequential benefits.
In
(1992 Supp (3) SCC 217) the Apex Court examined the
legality of reservation in favor of the disabled who are not clearly covered under Article 16 of the
Constitution. The Court pointed out that ... mere formal declaration of the right would not make unequals
equal. To enable all to compete with each other on an equal plain, it is necessary to take positive measures
to equip the disadvantaged and the handicapped to bring them to the level of the advantaged. Article 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 Dr. Jagdish Saran & Ors. v. Union of India (1980 2 SCC 768), Justice Krishna Iyer clarified
that even apart from Articles 15 (3) and (4), equality is not degraded or neglected where special provisions
are geared to the larger goal of the disabled getting over their disablement consistently with the general
good and individual merit.
In Chandankumaar v/s State of West Bengal (1995 Supp 4 SCC 505) the Appex Court deplored
the inhuman conditions of the mentally ill in a Mental Hospital in Hoogly District. The court order for
discontinuing the practice of tying the patients with iron chains and ordered drug treatment of them.
Specific Legislations
(i) Disabilities Act, 1995
As defined in the Persons with Disabilities ( Equal Opportunities, protection of Rights, and Full
Participation) Act 1995 (PWD Act) a Person with Disability is aperson suffering from not less than 40%
of any disability as certified by a medical authority and defines disability as : Blindness; Low vision;
Leprosy-cured; Hearing impairment; Locomotor disability; Mental retardation; Mental illness
The objectives of the
Promoting and ensuring equality and full participation of persons with disabilities and
Protecting and promoting their economic and social rights.
The PWD Act is focused more on rights. The substantive provisions of the Act
early detection, education, employment, affirmative action, non-discrimination/ barrier free access, research
and manpower development, institutions for persons with severe disabilities.
The enforcement mechanisms envisaged in the Act include a Central Coordination Committee at the
national level and a State Coordination Committee at the state level. It also includes Chief Commissioner
(Persons with Disabilities) at the national level and Commissioner (Persons with Disabilities) at the state
level.
Three percent of the vacancies in case of direct rectuitment to Group ABC and D posts are reserved for
disabled persons.
The central and state level coordination committees are entrusted primarily with the task of facilitating
continuous evolution of comprehensive policy on disability in the areas of their respective jurisdiction.
Trust Act,1999
The enactment of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999 aims to fulfill a common demand of families seeking a
reliable arrangement for their severely disabled wards. The specific objectives of the Act include:
To enable and empower persons with disabilities to live as independently and as fully as possible
within and as close to the community to which they belong.
To promote measures for the care and protection of persons with disabilities in the event of death of
their parent or guardian.
To extend support to registered organizations to provide need-based services during the period of
crisis in the family of the disabled covered under this Act.
The Act mandates the creation of a Local Level Committee comprising a District Magistrate along
with one representative from a registered organization and one person with a disability. The
Committee is vested with the authority to decide upon the applications of legal guardianship and
provides for the manner in which legal guardians are to be appointed.
(iii)
To standardize training courses for professionals dealing with people with disabilities.
To regulate the standards in all training institutions uniformly throughout the country.
Conclusion
Census 2001 has revealed that over 21 million people in India are suffering from one or the other
kind of disability. This is equivalent to 2.13% of the population. Among the total disabled in the country,
12.6 million are men and 9.3 million are women. Although the number of disabled is more in rural and
urban areas. Such proportion has been reported between 57 and 58% for men and 42-43% for women. The
disability rate (number of disabled per 100,000 populations) for the country as whole works out to 2130.
This is 2,369 in the case of men and 1,874 in the case of women.
The post-independence period
disabilities.
These were, by and large, uni-disability organizations meaning that they were working
.............