Rights of disabled person: An Analysis
Author: Kriti kumari Aggarwal
LL.M, Galgotias University
Co-Author: Gazal Gupta
Associate Professor, Galgotias University
ISSN: 2581-8465
Abstract
The researcher believes that the person suffering from disabilities are more prone to crimes. By the virtue of their disability, they are considered weak to protect themselves. There are numerous international conventions for the protection of rights of disabled persons but all efforts go into the vein until and unless domestic law doesn’t make an afford to protect and secure its disabled citizens. Despite all these domestic and international efforts, the disabled persons are still fighting for their rights. After all this, the judiciary came into the picture to protect and support the persons suffering from a disability. Now researcher analyses the function of Judiciary as a separate wing of the state and role of judges in reference to recognizing the rights for disabled. Researchers study judicial decisions to understand the approach adopted by the judges while deciding on an issue related to disabled persons. The further researcher concludes this paper by giving some suggestions as to what measures should be adopted by the appropriate authorities to protect the ones and in preventing victimization of disabling.
Introduction
Judiciary is a very important functionary of the state. Responsibility of the judicial wing is to interpret and apply the existing laws in pursuance to resolve the disputes that come in the light before the court. It is the primary duty of the court to adjudicate the matter impartially in a just, fair and reasonable manner to provide justice to the sufferer.[1]Honorable Courts in India are responsible for handling and passing decisions on multiple issues existing in society. Therefore the Supreme Court of India is the highest judicial body of the country and is more responsive to cure the social evils present in the society. Therefore the decision of the highest judicial authority is binding on all the subordinate judicial bodies.[2] Despite the fact that the sensitivity in the 21st century has changed from charity to rights and the acknowledgment of these rights are widely spreading. Similarly, Rights-based approach is evolved for the disabled community to grant them equality in the society.[3] The pursuit of access to justice for persons with a disability was motivated by the special enactment of the Rights of persons with disabilities equal opportunities protection of rights and full participation act 1995. The Rights were motivated and cherished through the enactment of special welfare legislation which came into force in 1996. It was the sole legislation exclusively relating to persons with disabilities.[4] Despite the fact that society is more sensitized and even change the model from charity to rights. The journey from charity to rights model was not easy at all. Unfortunately, it came into light that the implementation of the provisions under the said act was not effectively done. There have been numerous instances in which people have approached the Supreme Court of India to realize the implementation of such provisions mentioned under the Act. Even after the enactment of such law, differently-abled people have been fighting for their rights.[5] Even after that Supreme Court through judicial activism has given grave respect. Many rights were recognized in India through the judicial system.[6] To overcome the gap existed in the previous law the Parliament enacted new legislation for the protection of disabled in the name of “The Rights of Persons with Disabilities Act 2016”. The most important right for them was the right to access justice to enforce the violations of other rights given under the Constitution of India. Though access to justice.[7] In Indian legal system access to justice for disabled is there but in reality, it is nowhere to be seen. In a democratic society, the rule of law is the heart of democracy, if justice is not being accessible easily to every citizen then there can hardly be a rule of law.[8] Every citizen is equal before the law.[9] There is no exception to this principle. There are some cases in which particularly some persons are not able to access justice properly due to their condition. The traditional inherited legal system is very expensive full of complexities and moreover the time-consuming process. It is said that the poor and vulnerable class has started to look upon our system as an opponent instead of a friend.[10] In the Indian legal system, the role of the judiciary is to interpret the statute and to promote the objective of the law enacted by the Parliament.[11] Under the Constitution of India supreme court has the power to declare a law enacted by the Parliament and it shall be binding on all the other courts within the territory of India.[12] Moreover, the Constitution empowers the Supreme Court of India to pass any order or decree for doing complete justice.[13] Cardozo acknowledges in his classic book “ The nature of the judicial process” I take judgment law as one of the existing realities of life.[14] There is numerous cornerstones in the legal regime in the rights of disabled persons. Out of which judiciary not even recognize the rights but along with this stated that the recognition of the right is essential for them. Out of which judiciary not even recognize their rights but along with this stated that the recognition of the right is as insurance for their development and even helps to live a dignified life as stated under article 21 of the Indian Constitution in 1950. A person cannot be developed in an environment where he was deprived of their basic and fundamental rights therefore this necessity gives rise to recognize their rights and adopted a rights-based approach.[15] The honorable Supreme Court observed that disabled person is eligible to access equal opportunity in the employment,[16]As well as in educational institutions.[17] It is very significant to know before proceeding further that there are 21 types of disabilities under the Rights of persons with disabilities act 2016, and there were seven in the previous act and raised up to 21 in the existing one. furthermore, the appropriate government is empowered to amend the list of disability under the act and include certain other new types of disability under the preview of this Act.[18] One of the very important judgments in which the court recognizes the right of education of deaf and dumb persons as the government of Orissa refuses the responsibility to give financial support to the educational institution of deaf and dumb persons. The court came at the conclusion that the government cannot ignore his responsibility and this is not an unnecessary financial burden it is a necessary austerity. Merely making welfare schemes would not be sufficient unless there is a real concern for the handicapped or otherwise it would be the same as discussing the problem of famine ravishing in star hotels or discussing prohibition in a bar with drunkards sizzled with drinks.[19]
Despite of their disability is a person is still suitable to be recruit in the State Public service commission. the judge gave the right to visually impaired persons to complete their education and even competing on equal footing for job opportunities even in government services. Even though the rights were given identity but it was accompanied by some limitations as a person with disabilities is not eligible for the promotion if the service is not adequate for a disabled person.[20] The state is under the duty and obligation to promote awareness camps and sensitization programs to protect the rights provided under this act. it is the sole responsibility of the state to give advance recognition of the skills and the ability of the persons with disabilities, and even promote the inclusion approach to words the disabled persons and respect their decisions.[21] The central government is the one who formulates some rules for persons with disabilities for their easy accessibility for the physical environment like transport communication and other facilities. The disabled person must have access to public transport or other technologies through which they can communicate easily.[22] Persons suffering from physical disability shall have access to all public transport, as nowadays the metro is commonly used by a various number of passengers. There is a special facility available for such persons for their affordable mobility. Moreover, the researcher herself observes that co-passengers are also more sensitized nowadays that they voluntarily come to the fore to help disabled. In fact in any other public place, the general public takes care of their comfort. One of the major gap identified by the researcher is that their is no stringent penalties. As if any person does any act in contravention of the provisions stated under the “The Rights of Persons with Disabilities Act 2016” the said person is liable for fine only. The amount of fine may vary from case to case and maybe rise up to the amount of Rs. 50,000 to 5 lakhs.[23] The mobility of disabled persons is very much important as if a disabled person is not able to move or not able to go from one place to another Also was a judgment in which it was pointed out that there was no wheelchair available for the persons with physical disabilities. As it is considered very necessary for the disabled person to access or free mobility in the court premises.[24] This is the basic reason for noncompliance of the provisions of the Act as bearing fine is not a big deal for moreover all companies or even white-collar criminals. There is another provision in which some offenses are considerably categorized under atrocities against disabled persons. Therefore there few acts mentioned which are considered to be a serious offense and is punishable with the imprisonment for a term which shall not be less than 6 months, but may extend to 5 years and with fine. The acts which are mentioned are:
- Whoever intentionally insults or humiliates any disabled person in public.
- Whoever assaults or use force to do so, or with the intention to outrage the modesty of the disabled women.
- Whoever having charge or control over a person with disabilities denies him food of other necessary medical treatment.
- Being in a position to dominate the will of a child or women with disabilities and in furtherance exploits her.
- Termination of pregnancy of disabled women without her express consent.
The penalty for assault or criminal force to woman with intention to outrage the modesty of that women, irrespective of any disabilities is punishable with imprisonments for a term of 1 year or may extend to 5 years and fine.[25] The researcher contended that outraging the modesty of a disabled women is much more dreadful offense than outrage the modesty of a women without any disabilities. Researcher admits that the accused in both the cases should be punished and could not be tolerated as a lenient one. But definitely committing any sexual offense is beyond the gravity much be punished with rigorous imprisonment. Similarly, the punishment of committing a sexual offense with a woman without disabilities is punishable by life imprisonment and in severe cases like in Nirbhaya case, the punishment may extend to the death penalty. The punishment of rape is varies depending on the person who commits the offense.[26] Hence the punishment for exploiting the sexuality of any disabled women will considerably be punishable with more strident punishment that stated. The Supreme Court of India recently recognizes the right to sexual orientation in dignity rather than privacy and decriminalization of Section -377 of Indian Penal Code 1860. Therefore it proves that the quantum of people are belonging to homosexuality, and it further gives rise to the sexual offenses against men. In the judgment itself, the court argued that there is an absence of gender numeral law.[27] Similarly “The Rights of Persons with Disabilities Act 2016” is also gender-biased. As it only talked about the punishment of violating the sexuality of a woman only. These are the few drawbacks researcher identified through examination of various judgments and the Special legislation for disabled persons “The Rights of Persons with Disabilities Act 2016” itself.
Concluding Remarks
Through the examination of “The Rights of Persons with Disabilities Act 2016” special legislation governing the persons with disabilities and various judicial decisions regarding the adoption of a rights-based approach for the disabled community. there are few suggestions suggested by the researcher to overcome the gap found by the researcher under the present legislation governing the rights of the disabled community. Firstly, there should be stringent punishment for the violation of the provisions stated under the act. The punishment under the act should be amended and incorporation of some stringent punishment like imprisonment for some certain period of time must be there for the violation or for doing any act contravening the provisions of the act. secondly, The existing welfare legislation for the disabled persons it recognizes the number of disability is in a very wide perspective, but still, there is some lacuna as the legislation itself is not gender-neutral it only talks about the sexuality violations of a woman with disabilities and not of a man with disabilities. Thirdly, The accessibility of numerous facilities helping in the mobility of the persons with disability are somehow missing, there are provisions in which it was contended to facilitate the mobility of disabled persons but still, there are a few areas where such facilities are not available as it needs to be considered by the government.
[1] Constitutional Law of India, J.N Pandey, Central Law Agency, 53rd Edition, 2016
[2] Article-141 of “Constitution of India 1950”
[3] A Rights-Based Approach to Realizing the Economic and Social Rights of Poor and Marginalized Women, Aanchal Kapur, Nata Duvvury, 2006
[4] The Rights of Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995
[5] The Failure to implement, 2012, http://www.indiatogether.org
[6] The Evolution of Disability Rights Litigation, 2020, https://mn.gov 2016
[7] Section-12 of “The Rights Of Persons With Disabilities Act 2016
[8] World Justice Project, Rule of Law Index, https://worldjusticeproject.org
[9] Article-14 of “Constitution of India 1950”
[10] The long, expensive road to justice, May 2, 2016, Harish Narasappa, India Today Magazine, https://www.indiatoday.in
[11] Harish Chandra V. Rex. AIR 1949 ALL 15
[12] Article 141 of “Constitution of India 1950”
[13] Article-142 of “Constitution of India 1950”
[14] Michigan Law Review, https://www.jstor.org
[15] Rekha Murarka V. The State of West Bengal & Anr. Criminal appeal no. 1727 of 2019
[16] Article-16 of “Constitution of India 1950
[17] Article-21(A) of “Constitution of India 1950”
[18] Schedule -1 of “The Rights of Persons with Disabilities Act 2016”
[19] Ramchandra Tandi &30 Ors. V. State of Orissa & Ors. 1994
[20] National Federation of the Blind V. Union Public service commission AIR 1993 SC 1916
[21] Section -39 of “The Rights of Persons with Disabilities Act 2016”
[22] Section -40 of “The Rights of Persons with Disabilities Act 2016”
[23] Section-89 of “The Rights of Persons with Disabilities Act 2016
[24] Harish Manilal Shah V. Jayaben Manilal Shah &Ors. Suit no. 706 of 2016
[25] Section-354 of Indian Penal Code 1860
[26]Section-376 of Indian Penal Code 1860
[27] Navtej Singh Johar V. Union of India AIR 2018 SC 4321