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Responsibility has been cast upon the appropriate governments to take effective measures to ensure that the persons with disabilities enjoy their rights equally with others.
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Submitted by: Tejashree Sen Roll No. - 201231008001 Supervised by: Prof. Riya Banerjee Department of Juridical Sciences.
Submitted In Fulfilment of the Requirements for the Subject Submitted to JIS UNIVERSITY
I feel proud to acknowledge my gratitude to Prof. Riya Banerjee of the Department of Juridical Science, JIS University for the valuable guidance and advice. It is her illuminating comments and suggestions, which have enabled me to successfully complete my work. I also express my profound sense of gratitude and sincere thanks towards her for her committed involvement and for his different outlook of the subject and its proper direction. Lastly, I would express my gratitude to my parents for taking care of me every single day whether it is ill health on my bad days.
Q1. Write down the evolution of disability rights
During the year 1985-86, the erstwhile Ministry of Welfare was bifurcated into the Department of Women and Child Development and the Department of Welfare. Simultaneously, the Scheduled Castes Development Division, Tribal Development Division and the Minorities and Backward Classes Welfare Division were moved from the Ministry of Home Affairs and also the Wakf Division from the Ministry of Law to form the then Ministry of Welfare. Concerns on the rights of the disabled in India became visible in the public domain in the 1990s when a cluster of legislations was enacted by the Parliament. These were: Rehabilitation Council of India Act, 1992, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act,
Prior to these legislative enactments the concept of disability largely fell within the ambit of mental health/disability, which was a recurrent issue across a range of legislative domains such as marriage/divorce, adoption/guardianship, property and criminology. A person of “unsound mind” could not adopt, marry, contract, vote or run for elected office. 1 (^1) The Indian Contract Act,
Underlying mental disability/health legislation was the undisputed construction of the mentally ill/mentally disabled person as essentially incapable of looking after herself and acting in her best interests. Consequently, a whole array of legal categories were generated to d escribe, justify and solidify the legal (and by extension social) incapacity of the person labelled mentally ill or deficient. Unsoundness of mind, mental infirmity or insanity, dangerousness, legal incompetence, diminished culpability, lack of autonomy and self- determination, legal representation, surrogate decision-making and guardianship became the bulwark of mental health law. Ironically, what precisely constitutes unsoundness of mind or insanity in the legal context was never defined with the judges relying on the testimony of expert witnesses (psychiatrists) in determining its existence and impact. The courts did not distinguish between imputed disability and the resulting incapacity. There was, however, no ambiguity regarding the non-person status of the mentally disabled persons: those placed under guardianship, for instance, lost all their personal/property rights, and confinement was deemed as the most suitable solution; there could be postponement of civil and criminal trial allowed on grounds of insanity. The situation of persons with physical disabilities.
The expansive ambit of ‘mental infirmity’ was also demonstrated in Ramlal vs Mt Laxmi (^2) wherein the High Court held that a plaintiff whose physique was so affected by paralysis that he could not speak except for making a few sounds, and could not stand on his feet for more than a couple of minutes, was allowed to file through next friend even though his mind was not affected and he was able to understand the questions put to him and signify answers by means of gestures. It was perhaps the multiple nature of the physical disability suffered by the plaintiff which led to him being considered ‘mentally infirm’ because, in S Muthasankara Nadar 3 a physically disabled person who was unable to walk was not permitted to take recourse to this order. In Nanak Chand vs Banarasi Das 4 it was held that while the order was applicable to totally deaf and dumb persons, the incapacity of persons who were partially deaf and dumb would require enquiry. (^2) AIR 1949 Ajmer 48 (^3) 1972 STC 242 (^4) AIR 1930: 425
fruitful dialogue on the emerging area of disability jurisprudence from a social science perspective. Subsequently, the name of the Ministry was changed to the Ministry of Social Justice & Empowerment (M/o SJ&E) in May, 1998. Further, in October, 1999, the Tribal Development Division had moved out to form a separate Ministry of Tribal Affairs. In January, 2007, the Minorities Division along with Wakf Unit have been moved out of the Ministry and formed as a separate Ministry, and the Women and Child Development Department has become Ministry of Women & Child Development.
Though the subject of "Disability" figures in the State List in the Seventh Schedule of the Constitution, the Government of India has always been proactive in the disability sector. It is not only running eight National Institutes (NIs) dealing with various types on disabilities and twenty Composite Regional Centers (CRCs), which provide rehabilitation services to Persons with Disabilities (PwDs) and run courses for rehabilitation professional but also funds a large number of NGOs for similar services and also a National Handicapped Finance & Development Corporation (NHFDC) which provides loans at concession rates of interest to PwDs for self-employment. Besides, the Union Government is a party to (i) Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and the Pacific Region - adopted at Beijing in December, 1992, and (ii) The UN Convention on the Rights of Persons with Disabilities (UNCRPD), which came into effect in May, 2008. The subject received attention in various States Governments in varying degrees. At the Central level also disability being one of the several responsibilities of the M/o SJ&E, and being looked after by just one bureau, has resulted in inadequate attention, as most of its time and energy is spent only on implementing Ministry's own schemes, meeting their expenditure and physical targets, and organize annual time-bound activities like the National Awards for empowerment of PwDs. In the above background, it was stated in the 11th Five Year Plan that "The 'Disability Division' of the Ministry of Social Justice & Empowerment will be strengthened by converting it into a separate Department, so that it can liaise effectively with all the other concerned Ministries/Departments and fulfill its responsibilities
towards the disabled". Looking to the specialise nature of the subject on "Disability", the wide ranging work to be done in the light of the UNCRPD, and the inadequacy of existing implementation structure, the time came to upgrade the existing Disability Bureau in the M/o SJ&E. The decision to create a separate Department of Disability Affairs within the M/o SJ&E was taken up by the Government, in principle on 3rd January, 2012. This was also announced by the President before both Houses of Parliament on 12th March, 2012. Two departments were created under the Ministry of Social Justice & Empowerment vide notification dated 12.5.2012, namely:- (i) Department of Social Justice a and Empowerment (Samajik Nyaya and Adhikarita Vibhag) (ii) Department of Disability Affairs (Nishaktata Karya Vibhag) Since renamed as Department of Empowerment of Persons with Disabilities (Divyangjan) (DEPwD) Initially, DEPwD functioned in the premises of Shastri Bhawan, New Delhi for some time. Owing to its expansion of human resource and activities, the Department has its new office in Antodaya Bhawan, CGO Complex, Lodi Road, New Delhi.
There is an enormous need for legal literacy on the issue of disabilthe one hand a human rights discourse drives the law, its applica-ity. It is ironic that even most literate persons with disabilities do not tion in concrete cases brings to the surface tensions emanating know about the various provisions of the PWD Act. But mere awarefrom the intersection of different conceptual categories that may ness generation is not enough. There is an urgent need to create not always be in the best interest of the individual petitioner or of mechanisms that assist clients to undertake the long and complicated the disabled in general. For instance, the overwhelming r eliance process of litigation. Otherwise, the law will remain a paper tiger.
exercise of the powers conferred by sub-section (1) and (2) of section 73 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1of 1996), authorities to give disability Certificate will be a Medical Board duly constituted by the Central and the State Government. The State government may constitute a Medical Board consisting of at least three members out of which at least one shall be a specialist in the particular field such as locomotor/Visual including low vision/hearing and speech disability, mental retardation and leprosy cured, as the case may be. Specified test should be conducted by the medical board and recorded before a certificate is given. The certificate would be valid for a period of five years for those whose disability is temporary. For those who acquire permanent disability, the validity can be shown as 'Permanent'. The Director General of Health Services Ministry of Health and Family Welfare will be the final authority, should there arise any controversy/doubt regarding the interpretation of the definitions/classifications/evaluations tests etc. A. Mental Retardation
2.2. Moderate Mental Retardation - The IQ is in the range of 35 to 49. Discrepant profiles of abilities are common in this group with some individuals achieving higher levels in visuo-spatial skills than in tasks dependent on language while others are markedly clumsy by enjoy social interaction and simple conversation. The level of development of language in variable: some of those affected can take part in simple conversations while others have only enough language to communicate their basic needs. 2.3. Severe Mental Retardation - The IQ is usually in the range of 20 to 34. In this category, most of the people suffer from a marked degree of motor impairment or other associated deficits indicating the presence of clinically significant damage to or mal- development of the central nervous system. 2.4. Profound Mental Retardation - The IQ in this category estimated to be under 20. The ability to understand or comply with requests or instructions are severally limited. Most of such individuals are immobile or severally restricted in mobility, incontinent and capable at most of only very rudimentary forms of non-verbal communication. They possess little or no ability to care for their own basic needs and require constant help and supervision.
All with correction
i. Pure tone average of learning in 500, and 2000 HZ, 4000 HZ by conduction (AC and BC) should be taken as basis for consideration as per the test recommendations. ii. When there is only as island of hearing present in one or two frequencies in better ear, it should be considered as total loss of hearing. iii. Wherever there is no response (NR) at any of the 4 frequencies (500, 1000,2000 and 4000 HZ), it should be considered as equivalent to 100 dB loss for the purpose of classification of disability and in arriving at the average.
