International Disability Rights Monitor (IDRM) Publications - - IDRM - India 2005
India
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Key Factors:
Despite impressive gains in economic investment and output, fundamental concerns in India include the ongoing dispute with Pakistan over Kashmir, massive overpopulation, environmental degradation, extensive poverty, and ethnic and religious strife.1 Although India has several laws providing comprehensive rights of people with disabilities, there still is a lack of implementation and poor monitoring mechanisms resulting in a less inclusive environment. In addition, on 26 December 2004, an earthquake off the coast of Indonesia caused one of the largest tsunamis in the 20th century. In India, the tsunami hit hardest on the central coast of Tamil Nadu and the Andaman and Nicobar Islands and caused thousands of deaths and widespread destruction. The tsunami also resulted in an increased number of people with mental and psychological disabilities.2 |
Terminology
The term “people with disabilities” was first used in legislation through the enactment of the Persons With Disabilities (Equal Opportunities, Protection Of Rights And Full Participation) Act of 1995 (PDA). Prior to the passage of the Act, the terminology used for people with disabilities tended to be derogatory. For example, the 1961 Conduct of Election Rules uses the terms “infirm” and “physical infirmity.” The 1992 Rehabilitation Act uses the words “handicapped,” and “mental retardation” to describe people with intellectual disabilities. The PDA continues to use the language of “mental illness.”
In the vernacular, it is common for people to use the terms “crippled” and “lame” to describe people with physical disabilities, “deaf and dumb” to describe people with hearing impairments and “mad” to decribe people with mental and psychological disabilities.
3
Definition of Disability
In India, disability is defined according to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995, No. 1 of 1996 (PDA). According to the PDA, “person with disability” means “a person suffering from not less than forty per cent of any disability as certified by a medical authority.” The PDA identifies and defines seven categories of disability: blindness; low vision; leprosy-cured; hearing impairment; locomotor disability; intellectual disability; and mental illness. The definitions are extremely specific and medicalized. For example, the PDA states that to be considered a person who is blind, one must not possess visual acuity greater than 6/60 or 20/200 with corrective lenses, and it specifies the necessary chronic, continuing ailments that classify someone as leprosy-cured.
4 The PDA also categorizes people with disabilities according to the degree of their disability, as mild, moderate, severe, or profound. Only those belonging to the last three categories, i.e. those with over 40% disability, are covered by the PDA. The government provides no concessions to those people with less than 40% disability. The extent and degree of disability must be determined by a medical board that consists of at least three members appointed by the central/state government, at least one of whom should be a specialist of the relevant disability.
5 Guidelines for the evaluation and assessment of mental disabilities were developed in 2002,
6 but the PDA’s provisions do not apply to people with mental disabilities due to the challenges of establishing a mental disability of 40%. Limited protections of the health rights of people with mental disabilities are established in the Mental Health Act of 1987, which defines a “mentally ill person” as a person in need of treatment by reason of any “mental disorder” other than mental retardation.
7 Besides the seven categories of disability outlined by the PDA, the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act of 1999 defines a person with disability in accordance with the following categories or conditions:
Section 2(j) “ ‘person with disability’ means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability.”
8 The National Trust Act further defines each of the terms included in the definition as follows:
9
- “autism” means a condition of uneven skill development primarily affecting the communication and social abilities of a person, marked by repetitive and ritualistic behavior;
- “cerebral palsy” means a group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, perinatal or infant period of development;
- “mental retardation” means a condition of arrested or incomplete development of mind of a person which is specially characterized by sub-normality of intelligence;
- “multiple disabilities” means a combination of two or more disabilities as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996); and
- “severe disability” means disability with eighty per cent or more of one or more of multiple disabilities.
In India, a disability certificate is an important means by which a disabled person can access government benefits. Disability certificates are closely linked with the definition of the disability in question,
10 and only individuals in possession of a medical certificate are considered eligible for government benefits. Without a disability certificate, a person with a disability cannot receive preferential school admission or special travel concessions, benefit from employment quotas, or receive any other government benefits such as pensions and loans.
11 India has developed specific definitions of eligibility for disability certificates. Similar to the definitions used by the PDA, these definitions include specific medical criteria for mental retardation (mild, moderate, severe and profound), visual disability, hearing impairment and locomotor disability.
12 All government departments use these definitions and guidelines in their policy documents and as the basis for extending benefits to people with disabilities.
13 However, since the scope of a definition is restricted to a person’s medical condition, the National Human Rights Commission (NHRC) of India has proposed a broader definition of disability for government consideration and adoption.
14 The proposal defines people with disability as:
“…those who temporarily or permanently, experience physical, intellectual or psychological impairment of varying degrees and their lives are handicapped by social, cultural, attitudinal and structural barriers, which hamper their freedom of participation, access to opportunities and enjoyment of rights on equal terms.”
15
Disability Population
The second most populous country in the world, India is home to over one billion people, or 16% of the world’s population. The Office of the Registrar General of India has conducted a Population Census every 10 years since its creation in 1872. From 1872 to 1931, the Census collected some useful data on physical and intellectual disabilities, but the collection of such data was discontinued after 1931.
In 1981, an attempt was made to collect information on disability for the first time after India gained its independence from the British Empire in 1947. The United Nations’ declaration of 1981 as the International Year for Disabled Persons was one of the primary reasons for including questions on disability in this Census.
16 However, the collection of disability information was once again discontinued in 1991, due to difficulties encountered in the 1981 Census, which were mainly concerned with defining disability. The 1981 Census included only three categories of disability: “totally crippled,” “totally blind,” and “totally dumb.” Defining “totally” proved difficult and complicated, and the definitions of disabilities were deemed too complex to be understood by either the respondents or the enumerators. Moreover, since the term “totally” was very restrictive, a large section of the population was inevitably excluded, including people with mild or moderate disabilities and people with hearing and mental disabilities.
17 The Office of the Registrar General and Census Commissioner initially did not consider including a question on disability in the 2001 Census. However, a question was ultimately included after intense lobbying by various disability activists and NGOs, and a request from the Ministry of Social Justice & Empowerment.
18 The 2001 Census collected information on the prevalence of five types of disabilities: visual, hearing, speech, movement, and mental. To collect the information, the Census Commissioner simplified the definitions of each disability. For example, a person with visual disability was defined as “a person who cannot see at all (has no perception of light) or has blurred vision even with the help of spectacles.” Similarly, a person with hearing disability was defined as “a person who cannot hear at all (deaf) or can hear only loud sounds.”
19 To obtain better information, the Office of the Registrar General took measures to train Census Enumerators and sensitize people about disability related questions, and initiated various publicity activities.
20 According to the 2001 Census findings, India’s disability population was 21.9 million, or 2.13% of the total population. Of the total population, 1.03% are people with visual disabilities, 0.16% are people with speech disabilities, 0.12% are people with hearing disabilities, 0.59% are people with locomotor disabilities, and 0.22% are people with mental disabilities. People with visual and mental disabilities are slightly more concentrated in urban areas, while people with speech, hearing and locomotor disabilities were reported to be somewhat more concentrated in rural areas.
21 Among those reporting a disability, visual disabilities tend to be most common among those 0-9 years of age and those over 60. In addition, reports of speech disabilities tend to decline with respondent age while the prevalence of hearing disabilities tends to increase.
22 Among those people with disabilities age 15-59, people with mental disabilities report the highest rate (53.4%) of “never married,” followed by people with speech disabilities (48.9%). The highest rate of “married” is reported by people with hearing disabilities (63.4%.) People with hearing disabilities also report the highest rate of being “widowed” (8%) and people with mental disabilities report the highest rates of “divorce” (4.1%).
23 Table 1: Census of 2001-Distribution of the Disabled Population by Sex, Residence, Type of Disability and Literacy Status24 Sex Total Rural UrbanDisabled Population by sex and residence Males 12,605,635 9,410,185 3,195,45
Females 9,301,134 6,978,197 2,322,937
Total 21,906,769 16,388,382 5,518,387
Disability In Seeing Males
5,732,338
4,222,717
1,509,621
Females
4,902,543
3,650,666
1,251,877
Total
10,634,881
7,873,383
2,761,498
Disability In Speech Males
942,095
713,966
228,129
Females
698,773
529,888
168,885
Total
1,640,868
1,243,854
397,014
Disability In Hearing Males
673,797
549,002
124,795
Females
587,925
473,814
114,111
Total
1,261,722
1,022,816
238,906
Disability In MovementMales
3,902,752
2,975,127
927,625
Females
2,202,725
1,679,425
523,300
Total
6,105,477
4,654,552
1,450,925
Mental Disability
Males
1,354,653
949,373
405,280
Females
909,168
644,404
264,764
Total
2,263,821
1,593,777
670,044
Disability activists have expressed skepticism regarding the validity of the information collected by the 2001 Census. According to critics:
- The question on disability was question number 15, which Census Enumerators usually did not ask, since it was too far back on the list;25
- Because disability is a sensitive topic, the Census Enumerators needed additional and more comprehensive training for collection of information on such a topic;26
- Enumerators exhibited bias and a lack of personal interest while collecting data on disability;27
- Some of the disabilities are considered stigmatized and therefore respondents did not reply to questions honestly;28 and,
- Respondents’ lack of awareness regarding the motivation for collecting such information led to low levels of reporting.29
Besides conducting its decennial Census, the government of India conducts socio-economic sample surveys to formulate reliable estimates of requisite parameters.
30 The National Sample Survey Organization (NSSO), the governmental organization created to conduct socio-economic surveys, made its first attempt to collect information on the number of physically disabled people in its 15th round (July 1959 to June 1960,) its 16th round (July 1960 to June 1961,) its 24th round (July 1969 to June 1970,) and its 28th round (October 1973 to June 1974). The objective of these early enquiries was to devise estimates of the number of people in the country who had specific physical disabilities. The types of physical disability included in each round were not always the same, and the enquiries were not comprehensive, due to limitations of the survey methodology.
31 The NSSO conducted its first comprehensive disability survey in its 36th round, during the second half of 1981, the International Year of Disabled Persons. Ten years later, it conducted a second survey on disability in its 47th round (July to December 1991.) The objective of these surveys was to collect data on the incidence and prevalence of disability in the country. The results of the 36th round survey were released in two mimeographed reports; Report No. 305,
Report on the Survey of Disabled Persons, and Report No. 337,
Characteristics of Disabled Persons, and those of the 47th round survey were released in Report No. 393,
A Report on Disabled Persons in India.
32 In its 58th round, the NSSO conducted its third comprehensive sample survey of the disabled population (July to December 2002). The survey included persons with mental disability, visual disability, hearing disability, speech disability and locomotor disability, and gathered data on the incidence and prevalence of the different types of disability, the causes of disability, and the marital status, educational level, living arrangements, and activity status of individuals with disabilities. The random sample included 45,571 households in 4,637 villages and 24,731 households from 3,354 urban blocks.
33 According to this latest survey, the disabled population is estimated at 18.49 million, or 1.8% of the total population,
34 which is slightly less than the 2001 Census findings. In rural areas, 1.85% of the population has a disability, and in urban areas, 1.5% of the population has a disability. About 8.4% of rural households and 6.1% of urban households report having at least one member with a disability. In both rural and urban areas, the average size of these households is approximately 5.7, which is significantly higher than the national average.
The survey revealed that about 10.63% of people with disabilities have more than one type of disability and about 13% of people with disabilities are severely disabled or deemed unable to take care of themselves even with aids or appliances. As with the Census findings, the incidence of disability was found to be higher among males than females.
35 Unlike in the Census where visual disabilities predominated, the NSSO survey found locomotor disability to be the most prevalent type of disability, affecting about 1,046 in 100,000 people in rural areas and 901 in 100,000 people in urban areas. The majority of people with disabilities acquired their disability during their lifetime, with only about 69 people in 100,000 who were either born with a disability or had become disabled during the previous 365 days. About 84% of people with mental retardation and 82% of people with a speech disability were born with their disability.
36 The survey did not assess the prevalence of all disabilities, which has led disability organizations to question its accuracy and credibility.
The NSSO results suggest that the number of people with disabilities in the country has declined in the last 10 years. However, the substantial difference between the 2001 and 2002 findings suggests that methodological issues, rather than any real shift in population numbers, may account for any noticeable change in disability statistics.
In view of the unreliability of the existent data, and considering that the World Health Organization (WHO)’s estimates of the number of people with disabilities at 10% of the total population, for the last two decades disability activists and NGOs in India have accepted a middle path, and pronounced the number of people with disabilities to be 5-6% of the total population. Since the numbers obtained through the census are unreliable, the disability population and many government agencies use this estimate when formulating policies, schemes and budgets.
37
Legislation & Disability Rights
National Protections
The Constitution of India, adopted in 1950, is the country’s primary piece of legislation and the foundation of all national laws, rules, and policies. The Constitution embodies the basic concept of ‘equality in all spheres of human activity’ in its chapter on fundamental rights
38 and prohibits discrimination on the grounds of race, caste, sex, descent and place of birth. However, it does not explicitly mention disability as prohibited grounds for discrimination.
39The Constitution grants power over each legislative issue in one of three ways: solely to Parliament; solely to state legislatures; or jointly to Parliament and state legislatures.
40 However, under article 253 of the Constitution, Parliament can enact a law regarding a subject of the State in order to comply with its international obligations.
41 Article 51 of the Constitution also contains a special provision that declares that the states should “foster respect for international law and treaty obligations in the dealings of organized peoples with one another.” Based on these provisions, the courts have used international conventions and norms to construe the fundamental rights expressly guaranteed in the Constitution.
42 Legislative initiatives on disability gained momentum in India after the United Nations Economic and the Social Commission for Asia and Pacific (UNESCAP) convened a meeting to launch the Asian and Pacific Decade of Disabled Persons, 1993-2002.
43 The meeting adopted the ‘Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region’, to which India is a signatory and for which India enacted the PDA in order to fulfill its mandate.
44 Thus, one of the most important outcomes of India’s participation in the Asian and Pacific Decade of Disabled Persons was the creation of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995 (PDA).
In an attempt to promote preventive and promotional rehabilitation, the Act includes provisions for education, employment and vocational training, research and manpower development, aid for the creation of a barrier-free environment, rehabilitation of people with disabilities, unemployment allowances for persons with disabilities, special insurance schemes for employees with disabilities, and the construction of homes for people with severe disabilities.
45 The Act also establishes a Central Coordination Committee and State Coordination Committees to facilitate the continuous evolution of a comprehensive policy to address and resolve the difficulties encountered by people with disabilities. The Central Coordination Committee serves as the National focal point on disability matters while the State Coordination Committee serves as the State focal point.
46 A central Chief Commissioner and State Commissioners for people with disabilities were established to monitor the implementation of the PDA’s provisions and oversee utilization of the budget allocated to each department head. Although these quasi-judicial bodies are vested with the powers of a civil court, since the Act limits their powers, many of their recommendations are not strictly followed by the governments, and poor implementation results.
47 The low level of awareness of the Act also has resulted in slow implementation of its provisions.
48 Other pieces of disability specific legislation complement the PDA. The Rehabilitation Council of India Act of 1992 was enacted to regulate the training of professionals in the field of education for people with special needs. Additionally, in 1999, the government passed the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, No. 44 of 1999.
49 The Trust provides legal advice on guardianship issues and assists in the establishment of organizations through capacity building efforts, management and resource training, and monitoring and evaluation. The Trust’s objective is “to enable and empower people with disability to live as independently and as fully as possible within or close to the community,” and strengthen the facilities that provide support, enabling people with disabilities to live within their own family structure. The Trust also supports registered organizations providing need-based services during periods of family crisis.
50 The Mental Health Act of 1987, which went into effect on 1 April 1993, replaced the outdated and inadequate Lunacy Acts of 1912 and 1977. It was enacted to provide better social services to people with learning disabilities, and lays down improved criteria for admission into psychiatric hospitals and psychiatric nursing homes, as well as for the custody and property management of people with mental disabilities. It also mandates the establishment and maintenance of hospitals and nursing homes for persons with intellectual disabilities.
51 Due to poor implementation and weak enforcement mechanisms, the intended changes, such as improved environment and clearer guidelines on appropriate admission to institutions, have not been realized. Because of this, people with mental disabilities are still being subjected to prohibited forms of treatment without their consent, and until 1995 many of them were imprisoned. The conditions of jails and mental health institutions are far below the stipulated standards.
52 In addition to specific legislation, rules, and regulations for people with disabilities, there are special provisions for people with disabilities within other legislation. For example, Sections 80U and 80DD of the 1961 Income Tax Act establish exemptions for people with disabilities and their parents and legal guardians. Sections 80G and 80GGA of the same Act include provisions that allow deductions for individuals who make donations to registered trusts and groups doing work for people with disabilities. The Employees State Insurance Act (ESI Act) of 1948 provides health benefits to people employed in government agencies and public sector organizations, and includes certain provisions for employees with disabilities. Section 46 of the Act proclaims that every insured employee is entitled to receive disability benefits, provided at periodic intervals, in case of an employment injury that results in disability.
53 The Workmen's Compensation Act of 1923 also contains provisions pertaining to compensation and health care in case of disability or injury while at work.
54
Legislation and government agencies also provide financial support and benefits to people with disabilities. Packages containing literature for people who are blind are exempt from postage and postal fees under prescribed conditions, and special learning and mobility aids for the personal use of a person with disability are exempt from import duties.
55 The Ministry of Railways offers a 75% discount on all fares, and a 50% discount on season tickets, for people with visual disabilities, mental retardation, or leprosy; a 75% discount on coach fares and 50% on AC class for people with locomotor disabilities; and a 50% discount on all fares for people with hearing and speech disabilities who present a valid Certificate of Disability. The concession also applies to escorts accompanying a person with disability.
56 People with visual impairments and locomotor disabilities are eligible for a 50% discount on all airlines’ airfare.
57 People with visual and locomotor disability receive preferential allotments for running STD/PCO telephone facilities, and a 7.5% reservation from oil companies for being awarded retail outlet/ kerosene/L.D.O. dealership.
58 People with physical disabilities and institutions working for such persons can obtain loans from public sector banks at reduced interest rates, and under the Integrated Rural Development Programme, people with physical disabilities receive subsidies of up to Rs 5,000
59 (approximately 135.00 US dollars).
60 The National Handicapped Finance and Development Corporation (NHFDC), established in 1997, to provide financial assistance to people with disabilities, also finances self-employment ventures and assists people with disabilities to improve their technical and entrepreneurial skills to encourage effective management of their self employment ventures.
61
International Protections
India is a party to the Convention on Civil and Political Rights; the International Convention on Economic, Social and Cultural Rights; the International Convention on the Rights of the Child; the Optional Protocols to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and on the Sale of Children; Child Prostitution and Child Pornography; the Convention on the Elimination of All Forms of Discrimination against Women; the International Convention on the Elimination of All International Forms of Racial Discrimination; and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
62
Of the disability-specific international instruments, India has adopted the World Programme of Action concerning Disabled Persons (1981); the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (1991); the Standard Rules for the Equalization of Opportunities for Persons with Disabilities (1993); and the Proclamation of the Economic and Social Commission for Asia and the Pacific on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region (1993).
63 Initially, the Indian government did not take a clear position regarding the International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities. However, the National Human Rights Commission of India played an active role in convincing the government to support the convention on disability
64 and although it has not issued a written statement on its position, the government has participated actively in the Second, Third and Fourth Ad Hoc Committee Meetings.
65
Legal Barriers
Although there are a variety of legal protections in place, some people with disabilities, particularly those with mental disabilities, continue to face legal barriers. For example, people with mental disabilities are denied the right to stand for public office, pursuant to the Representation of the People Act of 1950:
Section 102(1): "A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament (b) if he is of unsound mind and stands so declared by a competent court".
Section 191(1): "A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (b) if he is of unsound mind and stands so declared by a competent court.”
66 People with mental disabilities also face legal barriers in more private issues. India does not have a uniform civil code and each community in India has its own family law. However, in the majority of situations, people with mental disabilities or who are described as being of “unsound mind” are discriminated against in exercising their right to marry. The Hindu Marriage Act of 1955 nullifies a marriage if a spouse is of “unsound mind”, and mental disabilities are also deemed a valid reason for seeking divorce. The Act, however, does not define “unsound mind,” which is left for the doctors or the courts to interpret as they wish. Additionally, in accordance with Muslim law, a Muslim woman is granted the right to a divorce if her husband has been of “unsound mind” for more than two years.
67 Until the introduction of Persons with Disabilities Act, no legislation prohibited discrimination on the grounds of disability. As a result, people with disabilities could easily be denied jobs or admission to schools and colleges on account of their disability. The situation has since improved, because some of the discriminatory practices have been challenged on the basis of the Persons with Disabilities Act. However, ingrained negative beliefs and attitudes have a strong hold and it will take many years before there is a change in society’s attitude that will allow for the equal participation of people with disabilities.
68
Civic Participation
People with disabilities are legally entitled to the same rights and duties as other members of society with regards to voting, standing for elective office, freedom of association, marriage, and parental authority over their children. However, throughout national legislation, there are explicit violations of the rights of “people with unsound mind.” Though the right to vote is guaranteed to people with disabilities under Article 326 of the Constitution, people with mental disabilities are disqualified from voter registration. Pursuant to the 1950 Representation of the People Act (43 of 1950),
69 Section 16(1) (b), "A person shall be disqualified for registration in an electoral roll if he (b) is of unsound mind and stands so declared by a competent court". Section 16 (2) of the Act provides that if a person is declared of “unsoundness of mind” after being registered in an electoral roll his name shall be struck off. Section 16(2) states, “the name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included.”
However, the Conduct of Election Rules of 1961
70 contains special provisions to assist people with visual and physical disabilities when casting their vote. Rule 40 provides that, “the presiding officer shall permit the elector to take with him a companion of not less than eighteen years of age to the voting compartment for recording the vote on the ballot paper on his behalf and in accordance with his wishes, and, if necessary, for folding the ballot paper so as to conceal the vote and inserting it into the ballot box.” Companions are only allowed to accompany one person per polling station per day and must agree to maintain the secrecy of the vote cast. The officer providing over the polling station keeps records of votes using these provisions.
Rules 49N and 49P mandate the provision of voting machines for “blind or infirm electors” to cast their votes
71 and establish guidelines for managing “blind or infirm” voters who claim to be a particular elector after another person has already voted as such elector.
72 The Rules also provide for off-site voting alternatives for electors with “blindness or physical infirmity”. Section 25 states:
- If an elector is unable through illiteracy, blindness or other physical infirmity to record his vote on a postal ballot paper and sign the declaration, he shall take the ballot paper, together with declaration and the covers required by him to an officer competent to attest his signature under sub-rule (2) of Rule 24 ad request the officer to record his vote and sign his declaration on his behalf.
- Such officer shall thereupon mark the ballot paper in accordance with the wishes of the elector in his presence, sign the declaration on his behalf and complete the appropriate certificate contained in Form 13A.
The Poll Worker Manuals contain rules for people with disabilities voting with indelible ink.
73 Although these rules exist, polling booths are not accessible to people with disabilities, who are thus largely unable to exercise their right to vote. Polling officers’ lack of sensitivity towards voters with disabilities, including people with hearing impairments, makes it more difficult for such citizens to cast their votes.
74 In the recent general elections held during March and April, 2004, noted disability activist Javed Abidi, Convener, Disabled Rights, took up this issue with the Election Commission of India, and asked the Election Commission to:
- Provide ramps in all the booths to make them accessible for voters with disabilities;
- Provide Braille numbering in the new electronic voting system to cater to the blind;
- Sensitize officials and staff in public transport to the difficulties encountered by voters with disabilities;
- Provide more written instructions outside and inside polling booths for voters who are deaf; and,
- Remove vehicle barricades, so that people with physical disabilities can take their vehicles directly to the booths.75
When the response of the Election Commission was not satisfactory, Abidi filed a petition with the Supreme Court of India.
76 On 19 April 2004
77 the Supreme Court issued directions to the State governments to provide wooden ramps as far as possible in all polling booths across the country for the second phase of elections, and without fail in the last two phases on May 5 and May 10. It also directed that in all future elections, beginning in September 2004, Braille labels of the names and numbers of candidates should be on all voting machines.
78 This was an expansion of the original request, which was for the provision of Braille numbers on Electronic Voting Machines.
79 People with disabilities, other than the exceptions noted earlier, have the right to stand for elections. However, their representation in the political arena, is very limited and there is no quota for them in political representation. Representation requirements are provided for people with disabilities in the formulation of disability policy, including in the Central and State Coordination Committees established under the Persons with Disabilities Act. However, these seats are not exclusively for people with disabilities, but are shared by representatives of non-governmental organizations and associations concerned with disability, who may be non-disabled people.
80 People with disabilities do have the right to raise children. Although there is no law that denies people with disabilities the right to adopt children, they are usually discriminated against when attempting to adopt, as they are not deemed capable of raising a child.
81
Inclusion
Communication
The national TV news channel, Doordarshan, broadcasts the news in sign language on a weekly basis, and other channels provide closed-captioning of their news programs.
82 However, communication for people with hearing disabilities is a major problem as there is no standard national sign language and every region has its separate variation. In the future, the National Human Rights Commission (NHRC) is planning to engage experts in the development of a standardized sign language.
83 Communication for people with visual disabilities is also problematic. For example, the government does not provide a Braille copy of the Constitution. The National Association for the Blind (NAB) is the main non-governmental organization for the blind. Through 18 state branches, 7 institutions, and 106 institutional members, it provides support for integrated education, Braille production talking books, and e-books through CDs and e-mails. The National Institute for the Visually Handicapped (NIVH) has a National library that provides Braille and audio materials by mail throughout India,
84 and the All India Confederation of the Blind and Blind Relief Association in Delhi also supply Braille and talking books. Although most of the Braille material and talking books are course related, these organizations also provide a few magazines, novels, and storybooks by subscription, as well as books for competitive exams. Delhi Public Library supplies novels and story books in Braille through mobile vans located in Delhi.
85 India does not have a strategy to communicate with people with disabilities in the case of a natural disaster or emergency.
86 Additionally, India does not have a national disaster plan in place and the primary responsibility for disaster management and coordination lies with the individual state or province. On 11 May 2005, the Indian government introduced a National Disaster Management Plan
87 as a direct response to the tsunami disaster, however that plan does not mention people with disabilities, despite the Indian government’s goal to include at-risk populations.
88
Education
The literacy rate in India is 65.38%, 75.85% for males and 54.16% for females,
89 but it is only approximately 45% for people with disabilities. Approximately 9% of people with disabilities have completed a ‘secondary and above’ level of education, only 15 to 35 of every 1,000 people with disabilities have completed a vocational course, and of these, 74% to 80% have completed a non-engineering course.
Article 21A of India’s Constitution establishes free and compulsory education for all children aged six to fourteen years and Article 45 of the Constitution provides for early childhood care and educa¬tion for all children until they reach age six.
90 However, the first comprehensive legislation on education for children with disabilities was only implemented in 1995, with the enactment of the Persons with Disabilities Act, which specifically establishes the right to education, in a conducive and appropriate learning environment, for children with disabilities.
91 The PDA requires that 3% of seats in all educational institutions be reserved for children with disabilities. In addition, the Ministry of Social Justice and Empowerment provides financial assistance to voluntary organizations to encourage the establishment of special schools for children with disabilities.
92 Non-governmental organizations receive over 90% of the funding.
93 Since 1974, the government has promoted integrated education for children with disabilities. The Ministry of Education’s Integrated Education for Disabled Children (IEDC) scheme seeks to integrate children with disabilities into regular schools. Schools that participate in the integrated system receive 100% financial assistance from the government for the costs related to integration which include scholarships, uniforms, books and school-related transport facilities to children with disabilities.
94 ‘Sarva Shiksha Abhyan’ or ‘Education for All,’ another government initiative that focuses on the education of children with disabilities in integrated settings, identified 1,632,228 children with disabilities in 2004.
95 According to the Ministry of Social Justice and Empowerment Country Report, 755,408 children with disabilities enrolled in schools, suggesting an enrollment rate of approximately 46%.
96 The percentage of children with disabilities aged 5 to 18 enrolled in schools is higher in rural areas, where it is 47%, than in urban areas, where it is 44%. According to the Central Coordination Committee established under the PDA, there are approximately 2,500 schools that provide integrated and inclusive education or non-formal education for children with special needs, and approximately 100,000 children with special needs attend these schools.
97 Despite these efforts, integrated schools remain under-funded and under-staffed, lack appropriate resources, facilities, and materials, and are staffed by teachers that possess inadequate training and knowledge.
98 Disability organizations have expressed concern regarding the poor services that some students receive under the integrated and inclusive education program and many would prefer the continuation of special schools that may provide a better education to children with disabilities. In most of the schools running these schemes in Andaman and Nicobar, children with all types of disabilities and of different age groups are placed in a single room, as the schools lack the facilities and the infrastructure to accommodate these children.
99 Inaccessible environments are another primary barrier to children’s integration into school settings.
There are approximately 37 programs that provide diplomas in special education and about three that offer a Bachelor of Education Degree.
100 The Rehabilitation Council of India (RCI) regulates courses on the education, training and management of people with disabilities, and has also introduced a short term course for training teachers in inclusive education.
101 To improve the enrollment rate, retention, and achievement of learners with disabilities in general education and regular schools, 1,191,856 teachers received short-term teacher training in inclusive education in 2004.
102 The Rehabilitation Council of India Act of 1992, amended in 2000, was enacted with the intention of providing minimum standards for professionals working with people with disabilities, and requires the Rehabilitation Council to approve the establishment of special education programs or teacher training programs.
103 In order to improve and ensure quality training, the RCI is attempting to streamline the syllabus, infrastructure, and staffing pattern of teacher training programs.
104 The Ministry of Social Justice and Empowerment
105 offers approximately 500 educational scholarships to people with disabilities to pursue higher education.
106 The scholarships are approximately equivalent to Rs.5000 per year.
107 However, university enrollment of students with disabilities is still very low, and according to a 2004 Disabled Peoples International (DPI) survey, only 1,635 students with disabilities were enrolled in the 119 universities that responded.
108 The reasons for such low enrollment numbers include inaccessible infrastructure, poor availability of resource materials, non-implementation of the 3% reservation by various educational institutes, and attitudinal barriers of society.
Employment
The Persons with Disabilities Act requires that 3% of public sector jobs be reserved for people with physical, hearing and visual disabilities. It also provides a list of jobs that have been identified for people with these disabilities. In 2004, there were 1,075 jobs for people with disabilities identified in the private sector and 1,900 in the public sector.
109 At present more than 40,000 people with disabilities hold government jobs. The PDA mandates that benefits be provided to private companies at which people with disabilities constitute more than 5% of the workforce. However, until now the government of India has not implemented any such benefits, and private sector employment of people with disabilities is very low.
110 Although India has a strong legislative framework, people with disabilities are still under-employed when compared to the general public. According to the NSSO survey approximately 74% of people with disabilities are unemployed,
111 and people with mental retardation have the highest rate of unemployment of all groups of people with disabilities, at 94%. In contrast, in 2004, the estimated general unemployment rate for India was 9.2%.
112 Although people with disabilities are employed in many sectors, only about 0.1 million are employed in the industrial sector.
113 Furthermore, according to a survey conducted by National Centre for Promotion of Employment for Disabled People in 2000, of the 100 major companies surveyed, the percentage of employees with a disability was only 0.40%, and 20 of the companies surveyed did not employ any individuals with disabilities.
114 Approximately 37% of people with disabilities were working before the onset of their disability.
The primary factors contributing to the low employment rates of people with disabilities include inaccessible work environments, inaccessible transportation facilities, and low employer awareness of the capabilities and special needs of people with disabilities.
115 Attitudes also play a significant role,
116 and although the introduction of the PDA and the many suits filed against non-compliant companies has led to some improvement in the last few years, there is a need for more awareness raising measures.
The Ministry of Labor is responsible for vocational centers and for ensuring economic opportunities for people with disabilities.
117 The Ministry has developed a number of strategies for promoting the inclusion of people with disabilities in the workforce including development of the Apprentice Training Scheme, the District Rehabilitation Scheme, and the National Program for the Rehabilitation of Persons with Disabilities.
118 The Ministry has also established 17 vocational rehabilitation centers (VRCs) that provide in-factory training facilities for people with disabilities living in remote areas, in order to encourage their vocational rehabilitation.
119 There are 40 Employment Exchanges for people with disabilities in India, which have secured employment for 11,400 people with disabilities.
120 These employment exchanges provide registration for job seekers, collection of public and private sector vacancies, placement services, and guidance for small business initiatives.
121 Pursuant to the PDA, people with disabilities who are registered with special employment exchange for more than two years and have not found employment are entitled to an unemployment allowance.
In 1997, the Ministry of Social Justice and Empowerment established the National Handicapped Finance and Development Corporation (NHFDC), which provides loans to self-employed individuals with 40% or more disability and an annual income less than Rs. 100,000 in urban areas, or Rs. 80,000 in rural areas.
122 In 2004, the NHFDC provided Rs. 5806.26 lakhs (approximately 13,500 USD) in self-employment loans to 12,941 people with disabilities.
123 Non-governmental organizations have also played an important role in providing employment opportunities for people with disabilities. One of the largest and most active organizations is the National Centre for Promotion of Employment for Disabled People (NCPEDP), which has as one of its goals the provision of pre-vocational training, and focuses on the provision of economic opportunities to women with disabilities and people with disabilities living in rural areas.
124
Health Services
In order to provide the services mandated by various policies regarding people with mental and physical disabilities, the government has established institutes for each major area of disability. The primary goals of the Institutes are development of human resources and service-delivery program models for rehabilitation, outreach activities, and research and development.
125 The institutes provide outreach and extension services and multi-professional rehabilitation services to various areas through community awareness programs and community-based rehabilitation facilities and services, including diagnostic, fitting and rehabilitation camps,
126 and the distribution of assistive devices to people with disabilities.
The following disability related departments and agencies operate under the Ministry of Social Justice and Empowerment:
- The National Institute for Visually Handicapped;
- The National Institute for Orthopaedically Handicapped;
- The National Institute for Hearing Handicapped;
- The National Institute for Rehabilitation Research and Training;
- The Institute for Physically Handicapped;
- The National Institute for Multiple Handicapped;
- The Rehabilitation Council of India; and
- The Office of the Chief Commissioner for Persons with Disabilities127
The Ministry of Health and Family Welfare conducts and coordinates programs for the prevention of disabilities throughout the country. These programs include tetanus immunization for expectant mothers, diphtheria toxoid immunizations for children, prophylaxis against nutritional anemia, provision of Vitamin A to prevent blindness, and nutrition education.
128 National prevention programs also include measures for early intervention.
Through a program of the Rehabilitation Council of India, doctors can receive training on prevention, early identification of disability, and referral of people with disabilities. In 2004, there were 183 institutions offering rehabilitation training,
129 18,422 physicians trained in early detection and intervention, 25,000 rehabilitation professionals registered by the Rehabilitation Center of India (RCI). Approximately 5,600 graduate and post-graduate professionals were pursuing degrees in rehabilitation. On average, 1,500 individuals receive B.Ed degrees in rehabilitation each year.
130 However, there is still a significant gap between the number of medical professionals available and the demand for rehabilitation services. Furthermore, doctors do not receive training for the rehabilitation of acquired disabilities, and as a result people with disabilities waste considerable years trying to find suitable rehabilitation resources.
131 Although the population of people with disabilities in rural areas is greater than that in urban areas, early identification and rehabilitation services in rural areas are not able to meet the demand. Services in rural areas have been provided through a rural rehabilitation center plan started in 1985, and rehabilitation at the community level, where access was previously limited, is being promoted through Community Based Rehabilitation (CBR). India has had some form of CBR programs since the early 1980s. Programs were initially designed to provide health care to people with disabilities, but have expanded to include worker skills and education.
132 The government also has developed a scheme called the National Programme for Rehabilitation of Persons with Disabilities (NPRPD), which provides CBR through the Gram Panchayat (GP), Block, District, and State levels.
133 CBR programs are mainly conducted door-to-door in rural areas where organized infrastructure is lacking and professionals visit the areas to provide services, basic education, and skill development to the local population. The RCI provides introductory CBR courses to rehabilitation professionals.
134 However, as limited resources and high illiteracy rates continue to hinder effective and sufficient service provision, new facilities, CBR promotion, and rural-centered human resource development remain necessary.
135 With regard to technical aids, there are a limited number of formal assistive-device manufacturers in India, which can provide only about 5% to 7% of demand. In 2001, the Artificial Limb Manufacturing Corporation produced more than 913,000 assistive devices and components, which were distributed to approximately 45,000 people with disabilities.
136 Informal manufacturers may fulfill an additional 2% to 3% of demand.
137 The government provides free aids or 50% subsidies for aids to eligible low-income people with disabilities.
138 According to the Ministry of Social Justice and Empowerment, in 2001, more then 150,000 citizens received assistive devices from the government.
139 Schools are another source for assistive aids, and in 2004 provided 191,113.
140 Wheelchairs, Braille readers, hearing aids, prostheses, and products manufactured by institutions of people with disabilities are exempt from excise and sales taxes and customs duties.
141
Housing
People with disabilities receive housing loans at favorable rates and the government has introduced a public housing quota scheme to give allotment priority to people with disabilities who apply for housing. However, people with disabilities must pay the actual cost of the house and there are no provisions for accessible housing. Although people with disabilities can request a ground floor house, the design of the house is the same as all other houses.
142 The government’s Indira Awas Yojana scheme, which provides free housing to people living below poverty line, reserves 3% of its funds for people with disabilities who are living below the poverty line in rural areas, including those who belong to Scheduled Castes/Tribes, are freed bonded laborers, or are non-SC/ST categories.
143 This scheme also fails to provide housing that is accessible for people with disabilities.
India does not have Independent Living Centers as there are strong family and community ties and people with disabilities are therefore rarely expected to live on their own.
144 Accommodation for children with disabilities is provided in special schools and vocational training centers while they receive their education. Very few hostels or other facilities exist for children with disabilities to live independently after completing their education. Some charity groups provide hostel facilities for boys with disabilities, but these are in very poor condition.
145 The problem is more acute for girls with disabilities.
The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act of 1999 contains provisions for day care, respite, and residential services for people with severe disabilities, such as autism, cerebral palsy and multiple disabilities. Currently, 4718 people live in 113 institutions supported by The Trust. Since many parents of children with these disabilities are very poor and unemployed, there is high demand for such government supported institutions where parents or guardians can send their children.
146
Institutionalization
Currently there are 37 institutions aimed at providing comprehensive mental health care, which are run by the State governments of India.
147 In an attempt to survey the functioning
of mental health institutions, the superintendents of these institutions organized a series of conferences and workshops, which took place in Agra (1960), Ranchi (1986), Bangalore (1988), Delhi (1995) and Bangalore (1999).148
The most recent effort to assess the state of mental health institutions was made by the National Human Rights Commission in 1997. According to the project report compiled in June 1999, after visiting 33 of the 37 institutions, the Commission found that institutions were being managed and administered based on the custodial model of care, using prison-like structures with high walls, watchtowers, fenced wards, and locked cells. In almost all of the mental hospitals, a number of patients who no longer required mental counseling were still living in the institutions because their families either could not be located or were unwilling to take them back. The Commission found very little NGO and civil society group involvement in improving the conditions of mental hospitals and helping with the rehabilitation of the patients no longer requiring counseling.149
Most institutions were practicing old and archaic diagnosis and treatment methods and lacked psychological, psycho-socio, and behavioral therapy facilities. Because of the absence of psychological and psycho-social facilities, violent patients were being controlled by a combination of drug therapy, physical restraint, and seclusion. The re-admission rate was found to be very high, and largely due to medication complications and lack of family support. Kitchen facilities were primitive at most places and the hygiene and sanitation services poor. Maintenance of institutions’ infrastructure received little attention.150
It was also reported that although the Mental Health Act had been in effect since 1987, admissions and discharges were still being governed by the archaic and inhumane provisions of the Indian Lunacy Act, 1912. The report stated that in NIMHANS (Karnataka) “some referrals from the magistracy still come under the Indian Lunacy Act.” The percentage of involuntary admissions was reported to be very high and the provisions of Section 19 of the Mental Health Act, 1987, permitting admission under certain special circumstances by a relative or a friend, widely abused.151
The NHRC, pursuant to its mandate under Section 12 of the Protection of Human Rights Act, 1993, to visit government run mental hospitals to “study the living conditions of the inmates and make recommendations thereon,” has been making recommendations for improvement of the living conditions, and monitoring the overall conditions, of these hospitals.
The atrocious conditions of many mental health institutions were further highlighted in 2002 when 25 patients with mental disabilities died in an institution when a fire broke out and they were unable to escape because they were chained to their beds. Following this incident, commonly referred to as the “Erawadi tragedy,” the Supreme Court issued instructions to “the central and state government to undertake a comprehensive awareness campaign with a special rural focus to educate people as to provisions of law relating to mental health, rights of people with mental disabilities, the fact that chaining of people with mental disabilities is illegal and that patients seeking treatment should be sent to doctors and not to religious places such as temples or dargahs."152 Although due to these efforts some improvement in these mental health institutions has been observed, the overall situation is still far from satisfactory.
Accessibility
As part of the Asian and Pacific Decade of Disabled Persons, the Ministry of Health and Family Welfare and the National Coordination Committee of Disability (NCCD) are responsible for ensuring the accessibility of public facilities, places of employment, schools, and public institutions.153
The Persons with Disabilities Act includes stipulations to encourage accessibility of new and existing public transportation and physical infrastructure; traffic signals and signs; restrooms; and hospital, health, rehabilitation and other health centers. According to the Ministry of Social Justice and Empowerment, as a result of these stipulations, 150 Indian Railways railway stations have made their facilities accessible to people with physical and visual disabilities, and the Delhi Metro system is designed to comply with accessibility standards. The Ministry of Urban Development and the Central Public Works Department have disseminated building by-laws and designs for accessibility to encourage States’ adoption of accessibility standards. However, overall implementation of these standards is poor, even in newly constructed buildings and facilities. Architecture schools do not train their architects to include accessible features in their course curriculum.
The Department of Tourism has made efforts to improve the accessibility of hotels and other tourist facilities and created guidelines for hotels on the potential special needs of guests with physical disabilities. The Indian Hotel Association was very receptive to the guidelines and developed additional guidelines for lobby areas, parking, elevators, rooms, bathrooms, and emergency evacuation plans.154 However, there is a lack of information and reporting on the level and progress of their implementation.
Culture, Sports and Recreation
People with disabilities participate in various athletic activities and competitions through several sports clubs and associations that promote and support such activities. In addition, the government has sponsored Indian athletes’ participation in a number of international competitions. The first Petro World Cup Cricket for the Blind was held in New Delhi in 1998.155
Samarthya-Yatra, a non-governmental organization, works to promote travel and tourism for people with disabilities in . The organization has organized 29 awareness trips to historical and cultural attractions in various cities of , “to promote travel therapy, inclusion, socialization of children with disabilities, socialization among people with disabilities, and societal and government sensitization.”156
In general, very few groups provide recreational opportunities for people with disabilities, and according to the National and Program Directors of Disability India, “recreational activities and entertainment receive the lowest attention in the agenda for People with Disabilities…”157
Disability Action & Awareness
The Central Coordinating Committee serves as the focal point for all disability issues in and coordinates all activities between governmental and non-governmental organizations. It works to ensure a barrier-free environment in employment, education, and other areas of life. The Committee is composed of 12 representatives from different departments of the Ministry of Welfare and, when possible, representatives of various disability groups.158
Disability issues have received increasing attention and consideration since ’s first Five Year Plan (1951/52-1955/56). In its 9th Five Year Plan (1997/98-2001/02), the government mentioned “the adaptation of an integrative approach to empowering people with disabilities,” including the convergence of “existing services including health, nutrition, education, science and technology, rural development, urban development, women and child development, information and broadcasting.”159 The Ministry of Social Justice and Empowerment and various other governmental entities provide informational and publicity materials that can be used by people and organizations concerned with prevention and rehabilitation. The government also funds programs that disseminate information on prevention, early detection, and rehabilitation.160
Despite the Central Ministry’s existence, there is a lack of coordinated effort by various NGOs to collaborate on advocacy for cross disability issues, and as a result the demand of less strong groups are not met.
6 Guidelines for evaluation and assessment of mental illness and procedure for certification, Notification no. 16-18/97-NI.I dated 18 February 2002, http://socialjustice.nic.in/disabled/mentguide.htm
51 Anuradha Mohit, NHRC International Journal of Human Rights 1st Edition
58 Ibid
104 Vijayalakshmi Myreddi and Jayanthi Narayan “Preparation of Special Education Teachers: Present Status and future trends” Asia Pacific Disability Rehabilitation Journal Vol. 10 No. 1 2000
133 Rakesh Arora, Ministry of Social Justice & Empowerment “National Programme for Rehabilitation of Persons with Disabilities-A blend of CBR and IBR”
143 ndira Awas Yojana http://kar.nic.in/raichur/iay.htm
