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ABSTRACT
In this research work the researchers are giving much emphasis on the
various legal provisions and Laws available in our country and make a
systematic study on how these laws have contributed towards the development
of legal status of the disabled persons in India.
The paper discusses various issues and challenges related to disability and
rehabilitation services in India and emphasize to strengthen health care and
service delivery to disabled in the community.
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INTRODUCTION
Hence, the Rights and Laws of disabled persons need to be understood and
studied from various perspectives including human rights and various other
laws in India which will ultimately fill up the differences or mitigate the gap
between the abled and the differently abled persons in their attainment of
persona and dignity in true sense of the terms.
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Declaration On The Rights of Disabled Persons:
The disabled person shall enjoy all rights contained in this declaration without
distinction or discrimination. The disabled persons have inherent rights to
respect for their human dignity and irrespective of the origin, nature and
seriousness of their handicaps and disabilities, have same Fundamental Rights.
Disabled persons have the same civil and political rights as other human beings.
Disabled persons are entitled to the measures designed to enable them to
become as self-reliant as possible. Disabled persons have the right to economic
and social security, including the right, according to their capabilities, to secure
and retain employment or to engage in a useful, productive and remunerative
occupation and to join trade unions. Disabled persons have the right to live with
their families or with foster parents and to participate in all social, creative or
recreational activities. Disabled persons shall be protected against all
exploitation and treatment of a discriminatory, abusive or degrading nature.
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Constitutional Rights of Disabled Persons:
1. Prohibition of Discrimination:
Article 15 is a manifestation of “Right to Equality” under article 14, as it
enshrines a specific dimension of the principles of equality relating to
discrimination by state or various grounds. Under article 15 the protection
extends only to citizens, unlike article 14 which protects ‘anyperson’. Thus in
application article 15 protects from discriminatory state activities but the ambit
of article 15 is narrower than that of article 14.
Article 15 of the Indian constitution deals with “prohibition of discrimination”
on the grounds of religion, race, caste, sex or place of birth.
It runs as follows:
Article 15(2) says, no citizen shall on the grounds only of religion, race, caste,
sex, place of birth or any of them, be subjected to any disabilities liability
restriction or condition with regard to:
(a) Access to shops, public restaurants, hotels and places of public
entertainment; or
(b) The use of wells, tanks, bathing Ghats, roads and places of public resort
maintained wholly or partly out of the state funds dedicated to the use of the
general public.
2. Equity in Social, Economic and Cultural Rights:
Article 25 of the CRDP recognizes the “right of a person with disabilities to
education. With a view to realizing this right without discrimination and on the
basis of equal opportunity, state parties shall ensure an inclusive education
system at all levels and lifelong learning.” They considered constitution to grant
education to children with disabilities if they explicitly guarantee the right to
education, the right to free education, or the right to compulsory education to
children with disabilities or prohibit discrimination in education on the basis of
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disability. Globally only 28% of the countries provide some type of
constitutional guarantee of educational rights or the children with disabilities.
3. Right to Work:
Article 27 of the CRDP instructs states to “recognizes the right of persons with
disabilities to work, on an equal basis with others; this includes the rights to
opportunity to gain a living by work freely chosen or accepted in a labour
market and work environment that is open, inclusive and accessible to persons
with disabilities.
4. Right to Liberty:
Article 14 of the CRPD instructs state parties to guarantee people with
disabilities the right to liberty and security of person. We considered the right to
liberty to be guaranteed to persons with disabilities if they were explicitly
granted the right to freedom or liberty. Globally, only 9% of the constitution
explicitly guarantee the right to liberty to persons with disabilities. However
19% of the constitution specifies that the right to liberty can be denied to
persons with the mental health condition.
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7. Disability Certificate:
It is the most basic document that a disabled person should possess in order to
avail certain benefits and concessions. The State Medical Boards established
under the State governments can issue a disability certificate to any person with
more than 40% disability.
9. Disability Pension:
People who are above 18 years of age, suffering with more than 80% disability
and are living below the poverty line are entitled to the disability pension under
the Indira Gandhi National Disability Pension Scheme. Various NGOs are
dedicated to this because i.e. they help such persons with disabilities to get their
disability pension.
10. Employment:
In government jobs, 3% of the seats are reserved for persons with disabilities.
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Education Law for the Disabled
Health Laws
Family Laws
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has been provided that the following circumstances will disable a person from
undertaking a marriage. These are:
Under the Hindu Succession Act, 1956 which applies to Hindus it has been
specifically provided that physical disability or physical deformity would not
disentitle a person from inheriting ancestral property. Similarly, in the Indian
Succession Act, 1925 which applies in the case of intestate and testamentary
succession, there is no provision which deprives the disabled from inheriting an
ancestral property. The position with regard to Parsis and the Muslims is the
same. In fact a disabled person can also dispose his property by writing a ‘will’
provided he understands the import and consequence of writing a will at the
time when a will is written. For example, a person of unsound mind can make a
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Will during periods of sanity. Even blind persons or those who are deaf and
dumb can make their Wills if they understand the import and consequence of
doing it.
The rights of the disabled have not been spelt out so well in the labour
legislations but provisions which cater to the disabled in their relationship with
the employer are contained in delegated legislations such as rules, regulations
and standing orders.
Under the Designs Act, 1911 which deals with the law relating to the protection
of designs any person having jurisdiction in respect of the property of a disabled
person (who is incapable of making any statement or doing anything required to
be done under this Act) may be appointed by the Court under Section 74, to
make such statement or do such thing in the name and on behalf of the person
subject to the disability. The disability may be lunacy or other disability.
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been amended to increase the rebate from 10% to 20% in the cases where the gross total
income does not exceed Rs.75000/- (as against a limit of Rs.50000/- specified earlier).
Education
1. Every Child with disability shall have the rights to free education till the
age of 18 years in integrated schools or special schools.
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2. Appropriate transportation, removal of architectural barriers and
restructuring of modifications in the examination system shall be ensured
for the benefit of children with disabilities.
3. Children with disabilities shall have the right to free books, scholarships,
uniform and other learning material.
4. Special Schools for children with disabilities shall be equipped with
vocational training facilities.
5. Non-formal education shall be promoted for children with disabilities.
6. Teachers’ Training Institutions shall be established to develop requisite
manpower. - Parents may move to an appropriate forum for the redressal
of grievances regarding the placement of their children with disabilities.
Employment
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1. Research in the following areas shall be sponsored and promoted:
Prevention of Disability · Rehabilitation including community based
rehabilitation
Development of Assistive Devices.
2. 2. Job Identification
On perusal of the Act, it is observed that though mental illness has been
included as a condition of disability, special needs of persons with mental
illness (PMI) and their families have not been properly addressed. PWD with
mental illness require special and different types of attention and care due to the
nature of their illnesses. Frequently, persons with severe mental illness are not
in a position to be aware of their illness because of the lack of insight. In these
circumstances, their families are great asset in providing them care and support.
In our country, where personnel resources in mental health care are extremely
scarce, family is a very important asset in the management of mental illness.
Family members need to be involved to the greatest extent in the mental
healthcare and family support should be encouraged as it provides moral,
emotional, and physical support to the PMI.
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However, the provisions of the section 7(2) of the Act may result in a situation,
in which the family members and other caregivers may be less willing to be
proactive and rather be scared to provide the required help. Anyone who steps
in and tries to do something for such a PWD having mental illness can be
reported against by any person walking on the street as violating this law and
can be held to be doing as such by the law enforcing authorities.
Thus, the Act criminalizes the service provider and the family for providing
treatment of persons with severe mental illness even though the person may be
at a clear risk to himself or to others. The section 7(2) has been inserted for a
good cause of protecting PWD from acts of abuse, violence and exploitation.
But its application to those with mental illness needs proper modification to
address this problem. The existing state of affairs of scarcity of mental health
services very appalling in our country.
The Government run mental health services are not available in most of the
districts and in about one-third of the districts in the country, there are no
mental health services at all. Vast number of PMI with high support needs have
no support available to them except that of their family members. Strong family
and social bond that exist in our country are of great help for these PMI. If the
importance of family for this purpose is discouraged, persons living with mental
illness and intellectual impairments may get abandoned and may be left to roam
on the streets.
Section 38 provides that any person with benchmark disability, who considers
himself to be in need of high support, or any person or organization on his or
her behalf, may apply to an authority to provide high support. Thus, the Act
puts the onus to seek support upon the PWD, relies excessively on the NGOs,
and fails to see the importance of the family.
Moreover, it denies the possibility that a person living with mental illness or
with intellectual disability may not be able to seek support at all or may not be
able to take a decision even when all the supports are made available. While
ignoring the role and importance of family in the care of PMI, the Act is silent
on how the vast support system would be built for such a large country with
millions of persons suffering from severe mental illness. Even if any support
system is actually built in urban and semi urban areas.
After going through all these provisions, it seems that a universal legal capacity
in all PWD has been presumed including in those with severe mental illness and
the existence of mental impairment in mental illnesses is denied. However, the
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Act itself, in some of its sections, presumes lack of legal capacity in respect of
the PMI.
Sections 62(1) and 68(1) disqualify “a person of unsound mind and stand so
declared by a competent court” from becoming the member of the Central and
State Advisory Boards respectively.
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JUDICIARY & DISBILITY
The Indian Judiciary has played a very significant role in developing the human
rights of the disabled persons. In a number of cases the Supreme Court and the
High Courts interpreted the disability legislations furthering the objectives
contained therein. The extraordinary powers vested in the Supreme Court under
Articles 32 and 142, and the High Courts under Article 226 of the Constitution
of India, have ensured that the rights of the citizens, and more specifically, that
of the disabled citizens, are not trampled upon.
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Conclusion
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REFERENCES
Books referred
Links referred
http://combatlaw.org/wp-content/uploads/Combat_Law_Jan-Feb_2008
http://planningcommission.nic.in/reports/sereport/ser/stdy_dsbty.pdf
http://vikaspedia.in/education/parents-corner/guidelines-for-parents-of-
children-with-disabilities/legal-rights-of-the-disabled-in-india
http://disabilityaffairs.gov.in/content/viewpage/notification-rights-of-persons-
with-disabilities-act--2017.php
http://www.newindianexpress.com/opinions/2018/jan/01/disability-rights-get-
a-judicial-boost-1741367.html
https://www.india-briefing.com/news/the-disabilities-act-india-what-employers-
need-to-know-15755.html/
http://www.legalserviceindia.com/legal/article-98-rights-of-disabled-
persons.html
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5419007/
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Statutes referred
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THANKYOU
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