Right to Know In Democracy

By
Jasper Vikas George

Traditionally, equality was denied to the disabled persons. Industrialisation made the prominence on ‘function’ as the organizational imperative contributes to perception of disability as a dysfunction; the persons with disabilities are perceived to be inadequate . These diversified groups of disabled persons were living in exclusion, because in the mainstream, every planning was made on the basis of abled persons, who are free from deformities. Modern social reconstruction approach is integrated the yoga of law and society by way of ‘Third Generation Rights’. These rights are providing, physical, vocational and Psycho-social Integration of disabled persons in a society

“The first international initiative with regard to the rehabilitation of the disabled came from the International Labour Organisation . Since the inception of the United Nations, the campaign for disability prevention and rehabilitation gained recognition. The incorporation of the human rights provisions in the Charter of the United Nations and the adoption of the Universal Declaration of Human Rights, followed by two covenants, namely the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, resolved to fight the menace of disability. The United Nations through its resolutions had laid down international norms, standards and guidelines concerning the rights of the disabled persons. A number of specialised agencies have oriented their activities towards the disability prevention and rehabilitation programme within the scope of their organisations. In addition, other international bodies associated with the rehabilitation programmes for the disabled include the United Nations Development Programme, The Food and Agricultural Organisation, The United Nations Industrial Development Organisation, and the office of the United Nations High Commission for Refugees.”

I

Paradigm Shift

Traditionally, this approach worked on two paradigms. Firstly, Rehabilitation based i.e. to try to bridge the gap between the norm and the deviation by attempting to eliminate the disability or rehabilitate the persons to the greatest extent possible given the state of medical science, or secondly, Welfare/charity based i.e. to accept the gap as given and to endeavour to compensate for it through relatively generous welfare support and payments
The first policy that focuses on rehabilitation is criticised by many persons with disabilities as evincing a lack of respect for differences . The medical welfare approach treats disability as an inherent personal characteristic rather than a characteristic that draws its meaning from social context. In such an approach disability is a matter of a personal tragedy. Such a view encourages dependence on doctors, rehabilitation professionals and charity. Apparently the medical paradigm stigmatises the persons with disabilities by describing them as not ‘normal’ . The second policy that focuses on compensation is criticised by many as amounting to an acceptance that those who cannot be made to emulate the norm have no place in the society, and so the only question is to compensate them for the loss in a way that meet their basic needs. Implicit in this is an acceptance that the society has no moral responsibility to accommodate differences-only to compensate for the lack of public freedom or the right to participate . The real cause of objection was that both the theories were unaccompanied by any thoroughgoing sense of moral responsibility of society to remove arbitrary barriers in the way of participation. In short, the two traditional policies’ responses were viewed as pale substitutes for active efforts to make space in society for human differences and to forge pathway into the mainstream . Rehabilitation, according to ‘modern social reconstruction approach’, “means the restoration of the disabled to the fullest physical, mental, social, vocational, and economic usefulness for which the person is capable. In other words, rehabilitation is a goal-oriented programme which aims at enabling an impaired person to reach an optimum mental, physical, or social functional level, which follows basically three aspects:

i. Physical Rehabilitation,

ii. Vocational Rehabilitation, and

iii. Psycho-social Integration of the disabled.

The physical and vocational rehabilitation cannot be achieved desired result, unless disabled feel himself psychologically integrated and the society is willing to accept them as productive members. A disabled person not only suffers from the agony of being physically handicapped, but also suffers from the malice of being socially handicapped. The only permanent solution of disability problem which a handicapped person faces, could be their Phsycho-social economic integration and proper placement which will enable them to stand on their own with dignity and decency.”

II

Disability

The declaration on the Rights of Disabled persons defines “Disabled Persons” as any person unable to ensure himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either congenital or otherwise, in his or her physical or mental capabilities . The World Health Organization, in its International Classification of Impairments, Disabilities and Handicaps, makes a distinction between impairment, disability and handicap (International Classification of Impairment, Disabilities and Handicap—ICIDH ). The Americans with Disabilities Act defines, 1990 . The disability rights movement in India started only in the early 1990s. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize the objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view, a meeting called the “meet to Launch the Asian and Pacific Decades of Disabled Persons” was held in Beijing in the first week of December 1992 by the Asian and Pacific countries to ensure “full participation and equality of people with disabilities in the Asian and Pacific regions”. This meeting was held by the Economic and Social Commission for Asia and Pacific. A proclamation was adopted in the said meeting. India was signatory to the said proclamation and agreed to give effect to the same. Pursuant thereto, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, was enacted, and it came into force on 1st of January 1996. This Act provides some sort of succour to the disabled persons. According to Persons with Disabilities Act 1995, disabilities include blindness, low vision, leprosy, hearing impairment, locomotor disability and mental retardation and "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority . Severe disabilities mean disability with 80% or more of one or more of multiple disabilities .
National Trust Act, 1999, defines “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 .
The Rehabilitation Council of India Act, 1992 defines “handicapped” as a person who is (i) visually handicapped; (ii) hearing handicapped; (iii) suffering from locomotor disability; (iv) suffering from mental retardation and “rehabilitation professional” means (i) audiologists and speech therapists; (ii) clinical psychologists; (iii) hearing aid and ear mould technicians; (iv) rehabilitation engineers and technicians; (v) special teachers for educating and training the handicapped; (vi) vocational counsellors, employment officers and placement officers dealing with handicapped; (vii) multi-purpose rehabilitation therapists, technicians; or (viii) such other category of professionals as the Central Government may, in consultation with the Council, notify from time to time . Disability embraces “a great number of functional limitations” of individuals. “There is growing recognition, reflecting the UN Declaration on the Rights of Disabled Persons, that persons with disabilities must enjoy exactly the same rights and opportunities that are taken for granted by able members of society - the right to work, the right to enjoy a full social life, to realise their potential as individuals. But quite often, consideration remains at the level of compassion, and provisions made for disabled people are seen more as welfare and charity than as the restoration of rights that disability takes away.

III

Removal of Discrimination

Nine specific areas have been identified as target areas for elimination of discrimination so as to ensure equal participation to persons with disabilities. In all such areas, the Rules envisage a two-pronged strategy. On the one hand, existing obstacles must be removed, and on the other hand, a policy of avoidance of obstacles in all future programs must be pursued. Wherever necessary, provisions must be made for training of persons providing services. In Europe, under The European Council and Disability Rights, an important working group has been formed under the Committee to evaluate legislation on the topic of discrimination against persons with disabilities . In America, the Americans with Disabilities Act (ADA) of 1990 prohibit discrimination against individuals with disabilities in employment, housing, education, and access to public services. Equal Employment Opportunity Commission (EEOC) and the Department of Justice, has been commissioned with the purpose of handling of programmes and schemes pertaining to this Act. The ADA prohibits discrimination on the basis of disability in employment in state and local governments, public accommodations, commercial facilities, transportation, and telecommunications. It also applies to the United States Congress. In United Kingdom, under the Disabled Persons (Employment) Act 1944, an approach adopted was of creating dependency rather than of providing competitive environment to work for the disabled persons. At present there are three different Acts dealing with the disability issue at different levels. The first is Disability Discrimination Act (DDA), which was passed in 1995 in order to introduce new measures aimed at ending the discrimination which many disabled people face. Here reservations were provided at every level. DDA Act gives disabled people rights in the areas of: a) employment, b) access to goods, facilities and services, c) buying or renting land or property and d) education . Australia has Australia Disability Discrimination Act 1992 (DDA) , in order to eliminate all types of disability-based discriminations. The Australian DDA is administered through Disability Discrimination Commission under the aegis of the Human Rights and Equal Opportunities Commission. The DDC investigates allegations, encourages conciliation, conducts inquiries, can make declarations on whether discrimination has taken place and issues orders prohibiting the continuation of discrimination. An order can be endorsed through the Federal compensation .
In India, initiatives have remained urban based and welfare-oriented. Maximum efforts in the field of disability have so far been made by Health professionals and charitable organizations. Article 41 of the Constitution of India provides for rights of disabled persons pertaining to work, education and public assistance. Article 21 provides right to live with dignity. The policy of Persons with Disabilities Act, 1995 builds an environment for securing the rights through institutionalising bodies for implementing, protecting, enabling and monitoring the exercise of such rights as have been created by the present legislation and any other law . Such institutionalised bodies are the Central and State Co-ordination Committees with wide representation including that of non-government organisations or associations as also director of well-known institutions working in the interest of the handicapped . Such statutory bodies serve as national or state focal points on disability matters and facilitate the continuous evolution of a comprehensive policy and planning towards the problems faced by persons with disabilities . Being a skeletal legislation, the Act totally depends upon the administrative process for effective implementation. However, unless the process, which works through laws, regulations, rules, schemes, instructions, etc., is made transparent, hardly any information will be available. Therefore, the Act must ensure the right to information and must stress on systematic and up-to-date documentation of the measures being taken by the government. These measures must also be made public through the media. To ensure full participation of the disabled, the structure of Coordination and Executive Committees must be extended to the district level and people must be made aware of the complaint mechanism available .

IV

Towards Barrier Free Environment: A Social Construction Approach

“In the opening moments of the documentary “King Gimp”, Dan Keplenger, an artist with cerebral palsy, tells the audience that [M]ost people think ‘Gimp’ means someone with a lame walk. But ‘Gimp’ also means a ‘Fighting Spirit’ . The disabled persons need an environment to work on their respective competence. They do not need charity. The Declaration on the rights of Disabled Persons, 1975, provides provisions for the disables persons which would help in providing ‘Barrier Free Environment’ to them. In America, an employer is required to make an accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources and the nature and structure of its operation. State and local governments are required to follow specific architectural standards in the new construction and alteration of their buildings. They also must relocate programs or otherwise provide access in inaccessible older buildings, and communicate effectively with people who have hearing, vision, or speech disabilities. Public entities are not required to take actions that would result in undue financial and administrative burden. They are required to make reasonable modifications to policies, practices, and procedures where necessary to avoid discrimination, unless they can demonstrate that doing so would fundamentally alter the nature of the service, program, or activity being provided. Public transportation authorities may not discriminate against people with disabilities in the provision of their services. They must comply with requirements for accessibility in newly purchased vehicles, make good-faith efforts to purchase or lease accessibly useful buses, remanufacture buses in an accessible manner, and, unless it would result in an undue burden, provide Para transit where they operate fixed-route bus or rail systems. Para transit is a service where individuals who are unable to use the regular transit system independently (because of a physical or mental impairment) are picked up and dropped off at their destinations. There are certain other statutes too, which are prohibiting discrimination against individuals with disabilities, include the Fair Housing Act, Rehabilitation Act, Air Carrier Access Act, and the Individuals with Disabilities Education Act. There is a whole gamut of rehabilitative laws in U.S.A., to provide barrier free environment. In United Kingdom, the Disability Discrimination Act (DDA), 1995, provides barrier free environment to the disabled persons. The Act enables, but does not oblige, the Government to make accessibility regulation, setting minimum standards for new public transport vehicles (buses, coaches, trains, trams and taxis) so that disabled people can use them, can travel in safety and reasonable comfort. In Archibald v. Fife Council , “The employee was employed by the defendant council as a road sweeper, which was a post graded as manual worker grade 1. As a result of a complication during minor surgery, she became virtually unable to walk and could no longer carry out the job of a road sweeper. However she could do sedentary work and was keen so to do. The council arranged for her to undertake a number of courses to equip her with appropriate skills, and she was assessed as more than capable of carrying out work in an office environment. However, office posts within the council were all on a slightly higher grade than manual worker grade 1. According to the prevailing policy competitive interviews is mandatory for redeployment at a higher grade. Employee failed in over applied 100 posts. Eventually she was dismissed on the ground of incapacity. Lord Rodger of Earlsferry held that the 1995 Act does not make it unlawful to discriminate against a disabled person in all circumstances. Rather, it outlaws that kind of discrimination in various fields, including employment, which is covered in Part II. Further, Baroness Hale of Richmond said that the 1995 Act does not apply to every one who has or has had some mental or physical impairment but only where that impairment ‘has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’. It is lawful to discriminate against a spectacle wearer but not against a visually impaired person. This indicates that the Act is concerned with addressing the special needs of those with serious handicaps. It was thus held in the case that to the extent that the duty to make reasonable adjustments required it, an employer was not only permitted but obliged to treat a disabled person more favourably than others; the part of Section 6 (7) of the 1995 Act which provided that nothing in that part of the 1995 Act was to be taken to require an employer to treat a disabled person more favourably than he treated others. The case was remitted to the employment tribunal so that it could consider whether the council had fulfilled its Section 6 (1) duty to take such steps as it was reasonable in all the circumstances for it to take.” In Australia, Disability Discrimination Act 1992 seeks to eliminate disability-based discrimination in all walks of life. India has Persons with Disabilities Act 1995, The Rehabilitation Council of India Act, 1992, and National Trust for Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1999.
In compliance with the provisions of the Act, the Ministry of Urban Affairs and Employment, Government of India, has developed a set of Model Building By-Laws. These By-Laws have been circulated to State Governments for adoption. However, barring the States of Rajasthan, Gujarat and Delhi, others are yet to adopt Model Building Bye Laws. Ministry of Human Resource Development, Government of India has incorporated a budget head in its scheme of Integrated Education of the disabled children, for creation of accessible school environment. The results of this scheme are quite satisfactory, as over 1, 00,000 children with disabilities have been able to study in the mainstream schools. Separate schemes have been launched for inclusion of children with disabilities in primary schools, resulting in Integration of another 1, 50,000 children. Recently, the Ministry of Human Resource Development set aside Rupees 360 million for making 50 technical institutions barrier free. In the Year 2001, Ministry of Railways, drew up a plan with specific budget allocation for making railway stations barrier free. As per this scheme, short, medium and long-term targets have been fixed. The short-term target aims at creating A-class railway stations barrier free. The mid-term target will take care of B & C class stations and long-term would cover D and E class railway stations. The gradation criterion for Railway Stations is based on the number of passengers using a particular railway station. For example, the A-class stations are used by an average of 100, 000 passengers every day. Therefore, it was felt appropriate to first make those railway stations barrier-free that are used most. Ministry of Railways has already completed the design of an accessible Rail Coach. Twenty prototype Rail Coaches would start plying in the near future. Based on the experience, alterations, if required, will be carried out in the coach design. In order to develop the cost effective but accessible design of a bus, the Science and Technology Mission Mode has commissioned a research project that would provide multi-optional solutions to the Surface Transport Ministry, who in turn would select the most appropriate design for an accessible bus. Subsequent to the adoption of accessible bus design Government plans to amend the Motor Vehicle Act. This would ensure fabrication of public buses on accessible norms and standards. National Trust for Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1999, has very progressive objects. The idea is not to push people out of the society and keep them in residential institutions such as what happened in West, but to encourage them to live within their families. The main objective is to provide need-based services during the period of crisis in the family of a person with disability. Crisis may come very frequently when we have nuclear families. Thus, there is a need to recognise the diverse needs of the families to retain a person with disability within the family system. The Rehabilitation Council of India Act, 1992 provides for the constitution of the Rehabilitation Council of India for:
A. Regulating the training of rehabilitation professionals,
B. Prescribe minimum standards of education and training of various categories of professionals dealing with people with disabilities, and
C. Maintenance of a Central Rehabilitation Register.
The professionals who come under the purview of the Act are:
Ø Audiologists and Speech therapists
Ø Clinical Psychologists
Ø Hearing aid and Ear mould technicians
Ø Rehabilitation engineers and technicians
Ø Special educators for teaching and training the handicapped
Ø Vocational counselors, Employment officers, and Placement officers
Ø Multi-purpose rehabilitation therapists and technicians
Ø Speech pathologists
Ø Rehabilitation psychologists
Ø Rehabilitation social workers
Ø Rehabilitation practitioners in mental retardation
Ø Orientation and mobility specialist
Ø Community based rehabilitation professionals
Ø Rehabilitation counselors/administrators
Ø Prosthetists and Orthotists
Ø Rehabilitation workshop managers

V
Judicial Response towards the Jurisprudence of Disabled Persons

In Francis Coralie Mullin v. U. T. of Delhi , the concept of life was broadened and it was observed that right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as facilities for reading, writing and expressing oneself in diverse forms, in addition to the bare necessities of life such as adequate nutrition, clothing and shelter over head. In Jai Shankar Prasad v. State of Bihar , the appointment of the respondent was challenged because he was blind. Supreme Court thwarted the challenge because the respondent was performing tremendously well and faring better than others. However, in S.B.I. v. G.K. Deshak the Supreme Court did not approve of the High Court, overruling the opinion of the medical specialist and ordering the absorption of the respondent on humanitarian grounds. In National Federation of Blind v. U.P.S.C the petitioners filed the writ to direct the Union of India and U.P.S.C. to permit the blind candidates to compete for the IAS and allied services and further to provide them the facility of writing the exam, either in Braille script with the help of a scribe. Further, preferential allotment in Group A & B posts was asked. It was observed that the Ministry of Welfare has appointed a standing committee for identification of jobs in various ministries, departments and PSUs for physically handicapped persons. It prepared a list of 416 categories in Group A&B posts in government offices and PSUs with their job descriptions, the physical requirement of each group of jobs matched them with various categories of disabilities. Committee devoted special attention to visually handicapped and recommended the reading allowance, requirement of typing knowledge and further specified the categories suitable for visually handicapped persons. The government of India thereafter took a policy decision of giving preference to handicapped persons in the matter of recruitment to the identified posts. But there was no implementation of the policy even after 7 years. In the view of the above-mentioned facts the court found the claim to be legally justified and felt that some jobs identified are to be filled through civil service exams. The court remarked that if some of the posts in IAS and other allied services as identified by the committee can be filled from amongst the visually handicapped persons, then it sees no reason why they should not be permitted to sit and write civil services exams. The Supreme Court thus gave directions to U.P.S.C. to permit visually handicapped, eligible candidates to compete and write the civil service examinations. The court further directed that they should be permitted to write the exam in Braille script or with the help of a scribe. It is a result, which was in no small measures dictated by the fact that a dynamic young blind advocate argued the case before the court . In Ramachandra Tandi v. State of Orissa , court said that it was perplexed and pained that the State has taken absolutely untenable stand of its financial instability and need for financial austerity. It is common knowledge that large sums of money are spent in festivals and for celebrations. What do we celebrate if we cannot provide financial assistance to 62 helpless deaf and dumb children? Article 39 of the Constitution amplifies the concept of justice by providing that the State shall in particular direct its policy towards ensuring the objects set out at clause (a) to (f) of that Article. It provides amongst others that States should direct its policy towards securing that the health and strength of workers, men and women and the tender age of children are not abused, and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength, and that, children are given opportunities and facilities to develop in a healthy manner and in a condition of freedom and dignity, and that childhood and youth are protected against exploitation and against moral and material abandonment. In Javed Abidi v. Union of India , the question of the absence of ambulifts at airports and aisle chairs in aeroplanes came before the court. These lapses, the petitioner contended, caused him to be physically lifted up first to the aeroplane and then to his particular seat, an exercise, which was an affront to his dignity and an infringement of the right, granted to him under Section 44 of the Persons with Disabilities Act. Section 44 requires establishment in the transport sector to adapt rail compartments, buses, vessels, and aircrafts in such a way as to permit easy access to persons with disabilities. This obligation, however, has to be fulfilled by the authorities within the limits of their economic capacity and development. The Supreme Court made its ruling in this case in continuous awareness of this limitation. Consequently, it was not willing to enunciate the right to access in the absolute terms. At the same time, it did not agree to the government using financial constraint as a shield against all disability related duties. In a kind of compromise between the State and the petitioner, ambulifts were acquired for all major airports. It also agreed to provide aisle chairs in the aeroplanes .The petition also asked for extending the facility of concessional air tickets already granted to blind persons, to persons with locomotor disability. This issue in the petition raised dangers of breaching disability solidarity. The Attorney General in reply argued that since the State could not provide this concession to all the persons with disabilities in fulfilment of the equality mandate, it could withdraw it from persons with blindness. This consequence was, however, averted and the court settled the matter by asking the government to provide concession to persons with 80% locomotor’s disability . In Shruti Calra v. Delhi University , the court observed that the Selection Committee did not adhere to the reservation norms. It also did not consider the case of the petitioner in the manner suggested in the brochure and did not act fairly both the times. The court quashed both the selections made by the respondent and set them aside. The court directed the respondent that if the respondent authorities decide to fill the said post, they shall keep in view the Disability Act and the Resolution no. 193/3 dated 16th July 1994, which provide for appointment of disabled persons in each college during the academic year 1994-95. The court further directed the respondent authorities to fill up the posts keeping in view the reservation policy contained in the Circular and Disability Act. Recently Supreme Court in Union of India v. Sanjay Kumar Jain , held that sub-section (1) of section 47 of the Persons with Disabilities Act 1995 in clear terms provides that there cannot be any discrimination in government employments and no establishment shall dispense with or reduce in rank an employee, whatsoever, during his service. Further sub-section (2) in crystal-clear terms, provides that no promotion shall be denied to a person merely on the ground of his disability. So far the number of judicial decisions in the field of the disability is too few to make a satisfactory evaluation of the judicial approach, but the trend definitely favours the disability sector.

VI

Conclusions

The 21st century will be a new age of social welfare and infrastructure including transportation. The International Conference on Mobility and Transport for Elderly and Disabled People (TRANSED) is held every three years under the auspices of Transportation Research Board (USA). The 10th TRANSED conference Universal Transportation and Road Design: Strategies for Success, as its theme, was held from May 23-26, 2004, at Hamamatsu, Japan. The conference, first ever in Asia, saw convergence of experts from all the continents to develop a strategy, share best practices available in developed and developing countries to promote ‘mobility for All’ which includes families with young children, children with special needs, senior citizens, people with temporary ailments, pregnant women, people with heavy luggage and people with disabilities (PwDs). Disabled persons do not need sympathy; they want to have a healthy harmonised competitive environment, to live with human dignity. This work is not going to be completed only with the help of legislative or judicial efforts. Citizens’ positive and encouraging response is the need of the hour.