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Introduction
More than 500 million population
in the world and around 100 million in India
are debarred from full participation in their families, communities and societies
due to their disabilities. The lack of physical access to facilities,
transportation, and information circumscribes them from enjoying equal
opportunities in housing, employment and health care (Karna, 2000). With the
shift in emphasis from providing welfare assistance to ensure the rights of
persons with disabilities, the importance of convergence of policies and
programmes in different sectors so as to provide synergy has emerged to the
forefront. The Persons with Disabilities (Equal Opportunities, Full
Participation and Protection of Rights) Act 1995 is a landmark legislation and
an appreciable attempt to alter the disabled scenario in our country.
Concept of disability
Since antiquity, society has
detected disabilities arising out of obvious deficits in
anatomical structures, sensory functions and intellectual developments amongst
its members. These
disabilities debarred the affected persons from participating in the mainstream
of social life. With the decline of feudalism and the rise of democracy, the
spirit of Zeitgeist favored the concept of equal opportunity for care,
employment, relief and empowerment for the disabled people. But the general
view about what constitutes disability remained static for a very long time.
Thanks to the recent spurt in the growth of scientific knowledge in this area
and globalization of the message of scientific activism, the concept of
disability has become an important issue for re-examination and re-definition (Banerjee,
2001).
In the past two and a half decades,
as the disability rights movement has emerged, the concept of disability has
shifted from individual impairment to a more social phenomenon. In this social
view, persons with disabilities are seen as being restricted in performing
daily activities because of a complex set of interrelating factors, some
pertaining to the person and some pertaining to the person's immediate
environment and social / political arrangements. The social concept of
disability introduces the notion that society has erected barriers, physical or
attitudinal, that affect persons with disabilities. Consequently, government
programs and policies have evolved to include fixing the environment (e.g.,
making buildings barrier-free) and providing income assistance or work-related
supports to help persons with disabilities participate more fully in the
community and the workplace.
In November 2001, the World
Health Organization (WHO) released a new framework, the International
Classification of Functioning, Disability and Health (ICF). The ICF was a
seven-year effort involving some 65 countries. The ICF has since been accepted
by 191 countries. This new framework goes beyond a medical approach to take a
much broader view of disability. The ICF looks at the body, individual
activities, social participation and social environments. Instead of a negative
description of disability, impairment and handicap, the ICF provides a neutral
description of body structure, function, activities, and participation. It also
recognizes the role of environmental factors in either facilitating functioning
(body functions, activities and participation) or raising barriers. Under the
framework, the term "disability" refers to externally imposed
impairments, activity limitations or participation restrictions (Human Resource
Development, 2003).
Defining Disability
Defining disability is not an
easy task, and it is becoming clear that no single definition can cover all
disabilities.
According to International
Classification of Impairment, Disability and Handicap (ICIDH, 1980), disability
is interference with activities of the whole person in relation to the
immediate environment. Disability Discrimination Act 1999 (DDA) defines a
disabled person as someone with "a physical or mental impairment which has
a substantial and long-term adverse effect on his ability to carry out normal
day-to-day activities."
Mental Illness and Disability
Mental illness
has often been regarded as an “illness” rather than as a disability, in
particular because it has been seen as a state that can be remedied and is of
limited duration. However, there is now increased recognition that mental
illness is a continuing condition, although often characterized by a fluctuating
pattern which limits activity on an intermittent basis, in response to crises,
rather than an ongoing basis. “Mental illness” is thus now generally accepted as
a disability, and is increasingly labeled “psychiatric disability” (Ministerial
Briefings, 2002).
DISABILITY RELATED LEGISLATIONS
AROUND THE GLOBE
People with disabilities -- one
in six of us -- must surmount workplace obstacles that those without
disabilities never even notice, everything from inaccessible work spaces to
indifferent or even intolerant colleagues. The picture is now beginning to improve,
however, spurred by the recent passage of legislations all over the world to
ensure the protection of human rights of disabled people (Disability World,
2000). Disability rights are being incorporated in international, national, and
states legislations.
United
States of America has Americans with
Disabilities Act of 1990, which took effect by July 26, 1992. According to this act, an individual with a
disability is a person who has a physical or mental impairment that
substantially limits one or more major life activities, has a record of such an
impairment or is regarded as having such an impairment (The U.S. Equal
Employment Opportunity Commission, 1997). The major aim of this act is to
provide a clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities; to provide clear, strong,
consistent, enforceable standards; addressing discrimination against
individuals with disabilities. It prohibits private employers, state and local
governments, employment agencies, and labor unions from discriminating against
qualified individuals with disabilities in job application procedures, hiring,
firing, advancement, compensation, job training, and other terms, conditions
and privileges of employment. Several states have developed complementary or
independent legislation to ensure the rights of disabled persons.
In United Kingdom of Britain, the
main enactment remains the Disability Discrimination Act 1999 (DDA),
supplemented by the Special Educational Needs & Disability Act 2001. It
works to eliminate the discrimination in the field of employment against
disabled persons and gives disabled people rights in the areas of employment,
access to goods, facilities and services, and buying or renting land or property.
Special Educational Needs & Disability Act 2001 deals with the special
educational needs of disabled children, discrimination against disabled, and
training of special teachers.
Australian
disability act is known as Disability discrimination Act, 1992. The objective of this act is to eliminate, as far as
possible, discrimination against persons on the ground of disability in the
areas of work, accommodation, education, and existing laws.
Disability in India
Officially so far India
has said that 1.9% of its population is affected by disability
(National Survey Sample Organization, NSSO Survey, 1991).
Disability related legislation in India
At present there are following
laws in our country to safeguard the rights of disabled persons-
-
The
Mental Health Act, 1987 - This is an act to
consolidate and amend the law relating to the treatment and care of mentally ill
persons, to make better provision with respect to their property and affairs,
and for matters connected therewith or incidental thereto.
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The Rehabilitation Council Act of
India (RCI, 1992) - The Act was created to provide for the constitution of the
Rehabilitation Council of India for regulating training of the Rehabilitation
Professional and maintaining of a Central Rehabilitation Register and related
issues.
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The
Persons with Disabilities (Equal Opportunities, Full Participation and
Protection of Rights) Act, 1995 – the act is being
discussed in detail.
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The
National Trust (For welfare of persons with Autism, Cerebral Palsy, Metal
Retardation and Multiple Disabilities) Act, 1999- The
trust aims to provide total care to persons with mental retardation and cerebral
palsy and also manage the properties bequeathed to the Trust . The Trust also
supports programmes that promotes independence and address the concerns of those
special persons who do not have family support. The Trust will be empowered to
receive grants, donations, benefactions, requests and transfers. (Disability
India Network, 2001).
PERSONS WITH DISABILITY ACT
Historical perspectives
Until the recent past there was
no comprehensive law for persons with disabilities. The first attempt was made
in July 1980, when a Working Group was set up. A draft legislation known as
"Disabled Persons (Security & Rehabilitation) Bill was prepared in 1981,
which was also the International Year of Disabled Persons. In the year 1987-88
a Committee was constituted under the Chairmanship of Member of Parliament Shri
Bahrul Islam who was the former Judge of Supreme Court. The Committee submitted
its report in June 1988 with wide-ranging recommendations concerning the
various aspects of rehabilitation, e.g., prevention, early intervention,
education, training, employment etc. These recommendations, however, could not
be enacted into a law. Since welfare of the disabled is a State subject, Indian
Parliament lacked jurisdiction in passing a comprehensive legislation at the
national level.
In December
1992, a conference was held in Beijing under the aegis of “Economic and Social
Commission for Asia-Pacific” (ESCAP) which launched the “Asia-Pacific Decade of
Disabled Persons, 1992-2002”. It laid emphasis on enactment of legislation aimed
at equal opportunities for people with disabilities, protection of their rights
and prohibition of abuse and neglect of these persons and discrimination against
them. Under article 253 of the Constitution of India, Parliament can enact a law
even in respect of a subject of State List in order to give effect to
international commitment. This made it possible for Indian Parliament to enact a
comprehensive law for persons with disabilities.
As a result of
the Government of India's commitment at ESCAP
Conference, recommendation of the
previous Committees and strong NGO movements in the country, the process of
discussion and consultation for drafting a comprehensive law was started in
right earnest towards the end of 1993. Initially a draft was prepared and it
was circulated to all the State Governments, eminent NGOs of the country,
professionals and the other concerned Ministries of the Government of India.
Finally, a comprehensive Act known as Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act 1995 (Act 1 of
1996) was unanimously passed by both the houses of Parliament on 22nd December
1995, which got the assent of the President on 1st January 1996. The Government
notified the act on January 5, 1996
and it has been in effect from 7th
February, 1996 (Mohit, 2000).
Salient Features of the Act
This act consists of 14 chapters
and 74 sections. Each section is further divided into several subsections.
Chapter I
This is known as preliminary
which deals with the title of the act, its extent and relevant definitions.
Some of these definitions are being mentioned here.
-
Disability – It means blindness, low vision,
leprosy-cured, hearing impairment, locomotor disability, mental retardation and
mental illness.
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Person with disability - A person
suffering from not less than forty per cent of any disability as certified by a
medical authority.
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Medical authority - Any hospital
or institution specified for the purposes of this Act by notification by the
appropriate Government.
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Mental illness - Any mental disorder
other than mental retardation.
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Mental retardation - A condition
of arrested or incomplete development of mind of a person which is specially
characterized by subnormality of intelligence.
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Cerebral palsy – Refers to 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, peri-natal or infant period of development.
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Blindness - Total absence of
sight, or visual acuity not exceeding 6/60 or 20/200 (Snellen) in the better eye
with correcting lenses; or limitation of the field of vision subtending an
angle of 20 degree or worse;
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Hearing impairment - means loss
of 60 decibels or more in the better ear in the conversational range of
frequencies.
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Locomotor disability - Disability
of the bones, joints or muscles leading to substantial restriction of the
movement of the limbs or any form of cerebral palsy.
The act excludes the state of
Jammu & Kashmir.
Chapters II & III
Chapter II deals with the
creation of a Central Level Coordination Committee and an Executive Committee
while Chapter II is related to the creation of a State -Level Coordination
Committee and an Executive Committee. In both the chapters the description of
Central and State Level Coordination Committee includes – its composition of
members, term of office of members, disqualifications, vacation of seats by
members, and dates of meetings and functions.
Both the Central and State Level
Coordination Committees are supposed to meet at least once in every six months
while both the Central and State Executive Committee shall meet at least once
in three months.
The chapters deal with the
composition of its members, dates of its meetings and functions of the two
Executive Committees. The main functions of these committees are-
-
To review and coordinate the
activities of Government & NGOs in dealing with matters relating to persons
with disabilities.
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To develop policies, programmes,
legislation and projects with respect to disabilities.
-
To monitor and evaluate the
programmes, legislation and policies for persons with disabilities.
Chapter IV
It deals with prevention and
early detection of disabilities and makes it obligatory for Government and
local authorities to –
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Undertake surveys, investigations
and research regarding disabilities.
-
Promote various methods of
preventing them.
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Screen all the children once in a
year for the purpose of identifying "at-risk" cases.
-
Provide facilities for training
to the staff at the primary health centers.
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Encourage awareness regarding
general hygiene, health and sanitation.
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Undertake pre-natal, perinatal
and post-natal care of mother and child.
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Educate the public through the
pre-schools, primary health centers, village level workers and anganwadi
workers.
Chapter V
This chapter deals with education
of disabled persons and makes it mandatory for the concerned Governments to-
-
Provide free education to
disabled children till they attain the age of 18 years.
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Promote the integration of
students with disabilities in the normal schools.
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Promote the setting up of special
schools in Government and private sectors to impart special education with
vocational training.
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Make schemes and programmes for
non-formal education, such as:
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Conducting ‘part-time classes’
for children who have been educated upto class five and then discontinued due
to disability.
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Conducting ‘special part time
classes’ for providing functional literacy for children in the age group of 16
and above.
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Imparting ‘non-formal education’
after giving the recipients appropriate orientation.
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Imparting education through
‘interactive electronic media’.
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Undertake research for designing
and developing new assistive devices and teaching aids.
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Set up teachers’ training
institutions to develop trained manpower for schools for children with
disabilities.
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Prepare a comprehensive education
scheme which would provide the transport facilities, special books, uniforms
and equipments needed for education free of cost.
Chapter VI
This chapter deals with the
employment of the disabled persons and empowers the Government with the right
to identify posts, which can be reserved for persons with disabilities and also
update the list every three years. It creates 1% reservation for persons suffering
from-
The Act instructs the Government
to set up Special Employment Exchange to look into the vacancies and
appointments of persons with disabilities. If the job vacancy is not filled
within a year it shall be carried forward to the succeeding recruitment year.
In the absence of suitable candidates under the head, there is scope for
interchange among the categories. The Government is instructed to formulate
schemes for ensuring employment of persons with disabilities including-
-
The training and welfare of
persons with disabilities,
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The relaxation of upper age
limit,
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Regulating the employment,
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Health and safety measures and
creating a non-handicapping environment in places where persons with disabilities
are employed and
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Constituting the authority
responsible for the administration of the scheme.
All Government educational
institutions and other educational institutions receiving aid from the
Government shall reserve not less than 3% seats for persons with disabilities.
Those institutes which have at lest 5% of its work force from among persons
with disabilities will receive special incentives and facilities from the
Government.
Chapter VII
This chapter deals with
Governments policies and schemes to provide aids and appliances to persons with
disabilities. Appropriate Governments and local authorities are also instructed
for the preferential allotment of land at concessional rates for -
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House,
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Setting up business,
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Setting up of special recreation
centers,
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Establishment of special schools,
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Establishment of research
centers
and
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Establishment of factories by
entrepreneurs with disabilities.
Chapter VIII
This chapter focuses on
non-discrimination towards persons with disabilities in various areas. It
instructs the appropriate Governments to take special measures to ensure that-
-
Rail compartments, buses, vessels
and aircrafts shall be designed to permit easy access to the disabled.
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In all public places and waiting
rooms, the toilets have to be designed in such a way so as to permit wheelchair
users to use them.
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No employee can be dispensed with
or demoted for incurring disability while in service conditions.
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No promotions can be denied to a
person because of his / her disability.
Chapter IX
This chapter deals with the
provisions of research and manpower development in the field of disability. It
ensures financial incentives to universities to undertake researches in the
area of disability. It also instructs appropriate Governments to sponsor
research in the following areas:
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Prevention of disability
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Rehabilitation, including
community based rehabilitation
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Development of assistive devices,
including their psycho-social aspects
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Job identification
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On site
modifications in offices and factories
Chapter X
This chapter deals with rules and
regulations which recognize, guide, and control institutions for persons with
disabilities. No person can establish or maintain an institution for persons
with disabilities without a certificate of registration. Application for a
certificate of registration shall be made to the competent authority in such
form and in the manner prescribed by the State Government. The Act also
mentions about revocation of certificate in case of submission of incorrect or
false information or any breach of rules on the part of the certificate holder.
Chapter XI
It deals with the rules and
regulations which recognize, guide and control institutions for persons with
severe disabilities. The certificate of recognition should be displayed by the
institution in a conspicuous place.
Chapter XII
This chapter deals with
provisions regarding the appointment, benefits, functions, powers and
accountability of the Chief Commissioner for the Persons with Disabilities and
the Commissioners for Persons with Disabilities. Central Government is supposed
to appoint a person with special knowledge or practical experience in respect
of matters relating to rehabilitation as Chief Commissioner for persons with
disabilities. The chief commissioner has following functions:
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Co-ordination of the work of the
commissioners
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Monitoring the utilization of
funds
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Safeguarding the rights and
facilities of disabled persons
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Submitting progress reports of
implementation of the Act to the Central Government
Commissioners are appointed by
respective State Governments and have the powers and duties as that of the
Chief Commissioners at the state level.
Chapter XIII
This chapter deals with social
security of disabled people. It instructs the Governments to undertake
rehabilitation of the disabled. It also provides for special insurance scheme
for employees with disabilities.
For those unemployed disabled
persons who are registered with the Special Employment Exchange for more than
two years and could not be placed in any gainful occupation it assumes the
payment of an unemployment allowance.
Chapter XIV
This chapter deals with the
issues of misuse of the act and various powers given to Government agencies for
the speedy implementation of the Act. It makes it a punishable offence if
anyone fraudulently avails or attempts to avail himself / herself of any
benefits meant for the disabled.
AMENDMENTS RECOMMENDED BY
AMENDMENT COMMITTEE IN PWD ACT
Taking into consideration the
lacunae in the Persons with Disability Act and the practical limitations in its
implementation, an amendment committee was formed with the aim of review and
modification in the current form of the act. Focusing upon the present
limitations, “Persons with disabilities act amendment committee” proposed some
amendments in their final report submitted in March 1999. Some of the relevant
amendments are being discussed in chapter-wise manner:
Chapter I
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Inclusion of Cerebral palsy as a
group separate from locomotor disability
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Amendment to the definition of
blindness, locomotor disability, low vision, mental retardation and mental
illness
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Inclusion of definition of
Disability NGOs
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Extension of the Act to
Jammu& Kashmir
Chapters II & III
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To reduce government
representation from CCC / CEC / SCC / SEC
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To increase representation of
disability NGOs
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To constitute District Execution
Committee
Chapter IV
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Universal immunization plan as a
duty of the appropriate Governments
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To make the defaulting person
responsible for causing disability by omission or commission
statutorily liable for civil and criminal action
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Inclusion of children with
disabilities in local community and pre-school programmes
Chapter V
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Reservation of 4% to be equally
shared by eight specific disabilities in admission at different levels of
education, in technical and professional courses
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Inclusion of specific learning
disabilities in this chapter
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To make it mandatory for all teacher
training programmes to include disability education as an integral component
Chapter VI
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Increasing reservations from 3%
to 5%, making 1% reservation in favour of persons with autism and mental
retardation; and 1% in favour of persons with cerebral palsy
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Provision for addenda 5 years to
actual service rendered by an employee with disability to decide eligibility
for pensionary benefits
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Reservation to the extent of 5%
in vocational training institutions / programmes
Chapter VII
Chapter VIII
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Prohibit discrimination on
grounds of physical, mental or sensory impairments
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Persons with sensory difficulties
to be provided assistance of escort and/or interpretation devices
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Free medical care and treatment
to be provided
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Reimbursement
to be made in case of unavailability of appropriate medicines in Govt. hospitals
Chapter IX
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Notification of standards by
central coordination committee to be complied with by institutions for persons
with disabilities
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Monitoring by district executive
committee to ensure compliance of notified standards
Chapter X
Chapter XI
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Provision of right to avail
residential facilities to the spouse and carer of the person with severe
disabilities
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Grants for persons with severe disability,
adequate nutrition, assistive devices and home adoptions
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Income tax deduction and
contribution to funds
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Establishment of boards for social
security funds in centre and states
Chapter XII
Chapter XIII
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Insurance and other social
security schemes
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Contributory pension scheme
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Making punishable infringement of
the non discrimination clauses, failure to notify schemes or implement them,
failure to follow directives of the Chief Commissioner and Commissioners
Chapter XIV
MENTAL ILLNESS IN DISABILITY ACT
Examination of the legislations
shows that while an elaborate framework on mental disorders subsists, its
construction has primarily been actuated by the need to protect society from
the dysfunctional and dangerous manifestations of mental illness. Thus, while
legislative arrangements have been made to manage the dysfunctional
consequences of unsoundness of mind on every legal transaction, the effect of
the legal management on the life, liberty and civil status of the person with
mental illness has been left unaddressed. A welcome development here is the
inclusion of mental illness within the definition of disability (Dhanda, 1999).
The “seventh
disability” as it is called now was first included in the Persons with
Disability Act in 1995. Unfortunately, as soon as the Act came into force, many
people challenged the very basis of inclusion of mental illness in a statute on
disability. They believed that illness and disability are two different
entities. Another set of objections pointed out that mental illness, as defined
in the statute, includes mental conditions which may be either transient or
chronic. They argued that a wide canvas of mental illness will accommodate
heterogeneous persons and will encourage inequity. The Amendment Committee examined the
status of psychiatric disability in great detail and from various perspectives
before concluding that it must be retained in the Act.
The Act defines mental illness as
“disorder of the mind that results in partial or complete disturbance in the
person’s thinking, feeling and behaviour which may often result in recurrent or
persistent inability or reduced ability to carry out activities of daily
living, self care, education, employment and participation in social life”.
These disorders would include schizophrenia, obsessive compulsive disorder,
bipolar disorder and moderate or severe depression of at least three years
duration with proof of common treatment. Since mental illness is also included
in the list of the disabilities in the act, the various facilities mentioned
therein are equally applicable to mentally ill patients also.
CURRENT INDIAN SCENARIO
India has the largest number of
disabled in the world, constituting 6 per cent of the population, yet they are
the most neglected lot. The 1981 census had covered only the totally crippled,
the deaf and the dumb, putting the figure of the disabled at 0.16 per cent,
excluding those with partial disability (Menon, 2000). The most grievous
mistake our policy makers and decision makers have made is to have looked at
disability as a charity issue and a welfare issue whereas it was, it is and it
should rightly be a development issue and a progress issue. The Government’s
attitude towards this population and related issues becomes clear from the fact
that the country has done precious little about the two Bills which could transform
their pathetic lives. The report of the Amendment Committee of Persons with Disabilities
(Equal Opportunities Protection of Rights and Full Participation) Act 1995 has
been cold storaged.
The Central Coordination
Committee is the highest policy making body for the welfare and well being of
India's disabled citizens. The law mandates that it must meet at least once
every six months. Since the notification of The Disability Act on 7th February
1996, it should have at least met 11 times by now. However, according to the
affidavit filed by the Ministry of Social Justice and Empowerment in January
2001 before the Honorable Supreme Court of India, only two meetings of the
Committee were held till 2002 (Abidi, 2002).
Each State should have a Mental
Health Authority but most have not bothered to set this up. Eighty percent of
our districts do not even have a psychiatrist in public service. The World
Health Organization defines health as "a state of complete physical,
mental and social well-being." However, in our country, mental health care
is not perceived as an important aspect of public health care. Our policy
makers remain blinkered to WHO's well-rounded definition where a human being's
physical and more importantly, social well-being is directly linked to her/his
mental well-being (Abidi, 2002).
The findings of a study on
employment practices of the corporate sector (conducted on a sample of super
100 companies) with reference to people with disabilities conducted by the
National Centre for Promotion of Employment for Disabled People is shocking. It
is surprising to note the extremely low percentage of disabled employees in the
multinational companies since most of them are from countries that have strict
laws for employing people with disabilities. The average percentage of
employees with disabilities in the respondent companies was found to be 0.40
per cent. The study also found that out of the 70 respondent companies, 20 companies
do not employ any disabled person at all. The average percentage of employment
of people with disabilities in the public sector is 0.54, in the private sector
0.28 per cent, and in multinationals just 0.05 per cent. The government's
attitude is also reflected in the miniscule percentage of disabled employees
even in public sector organizations that have a larger workforce and for whom
it is mandatory to have three per cent reservation for disabled persons (UNI,
2000).
After a massive public campaign,
the Government of India finally yielded and has included disability as a
category in Census 2001. Describing this development as a "major victory
for the disabled sector in India", Javed Abidi, executive director of
National Center for Promotion of Employment for Disabled People (NCPEDP), said,
"It's like winning a major battle. The damage that the non-availability of
authentic statistics has done to the disability sector could now be undone and
changed" (Bajeli-Datt, 2000).
Two studies conducted to assess
public awareness about Disability Act and other government benefits among
mentally ill patients are worth mentioning here. The first study conducted at
RINPAS, Ranchi on awareness in guardians of mentally retarded individuals shows
that only 6% of them were aware of the act (Jahan and Singh, 2002). A study conducted
by the authors among adult psychiatric patients and guardians attending their
Institute showed almost similar results - out of 20 participants, 12 were not
aware of any kind of government policy that provides some kind of concession to
mentally ill patients. None of those who were aware was availing any facilities
provided for disabled. Out of eight, three tried to acquire a disability
certificate but failed due to lack of proper guidance and support. The major
areas in which they faced difficulty due to their/ their relative’s disability
were finance and discrimination in society and at work place. 80% of the
participants felt the need for employment in a supported environment and medication
at concessional rates or reimbursement. Their major area of concern was the care
of the disabled after the death of present guardian.
CONCLUSION
Persons with disabilities are
amongst the most marginalized sections of society cutting across caste, creed and
community. In the last two decades there has been growing awareness about the
issues relating to this sector and there were several significant landmarks
both at national and international levels. The Persons with Disabilities (Equal
Opportunities, Full Participation and Protection of Rights) Act, 1995, is an
appreciable step in this direction.
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