RIGHT TO DIGINIFIED LIFE OF INTELLECTUALLY DIFFERENTIALLY ABLED

PERSONS
NAME OF THE AUTHOR: SHEEJA J ( Assistant Professor on contract)
UNIVERSITY : KANNUR UNIVERSITY
INSTITUTION: School of Legal Studies Palayad Thalaserry
E-mail:sheejajayanth@gmail.com
MOBILE NO:9961743616

ABSTRACT

Since the dawn of human civilization, mentally challenged patients have received the scant care and
concern of the community because of their unproductive value in the socio-economic value system.
They have not only been neglected but received step motherly treatment from the health planners
especially in the developing countries. It was only after the plea of progressive incorporation of the
norms of human rights that has created the urgency and necessity of initiating appropriate steps for the
care and treatment of mentally challenged persons. It is admitted on all hands that barring few
exceptions, the mentally retarded person deserves the same privileges as enjoyed by any other human
being. They include a right to better and more accessible care, to good recovery and increased hopes of
reintegration into society. However, the Stigma, residual disability and its intolerance, and more
importantly the inability of the mentally retarded to protest against exploitation, have all made basic
human rights of the mentally challenged a major cause of growing concern. The term human rights in a
broad sense mean “those claims which every individual has or should have upon the society in which
he/she lives

The Constitution of India ensures equality, freedom, justice and dignity of all individuals and implicitly
mandates an inclusive society for all including the persons with disabilities. As per the provisions
of the Persons with Disabilities Act, 1995 , seven categories of disabilities have been identified viz.,
blindness, low vision, leprosy cured, hearing impairment, locomotors disability, mental retardation and
mental illness. Persons falling under the above categories with a minimum of 40% disability are
eligible for entitlement of all benefits provided by the Government
As Citizens of India, they are entitled to all those human and fundamental rights which are
guaranteed to each and every citizen by the Constitution of India. The Supreme Court has
also laid down the maintenance and improvement of public health is one of the obligations
that flow from Article 21of the Constitution. This means that mentally challenged have the
fundamental/human right to receive equality mental health care and to human living
conditions in the mental hospitals. The right to life in Article 21 of the Constitution means
something more than survival of animal existence. It would include within its ambit the
right to live with human dignity, right to health, right to potable water, right to pollution
free environment and right to education etc., which have been held to be part of right to
life. In the context of mentally ill person, apart from above narrated rights, it also includes
right to live, work as far as possible in the community, to privacy and to lead a normal
family life.

The policies of the government towards the welfare of persons with disabilities have been
reflected in the enactments, schemes and through institutions established for development
of manpower for rehabilitation of persons with disabilities.

In this paper I aim to analyse the topic “ Right to dignified life of intellectually differentially

abled” in the background of vast legislations enacted for the protection of mentally challenged

persons.
 INTRODUCTION
Every person is entitled to certain fundamental rights, simply by the fact of being human. Since these
rights belong to them because of their very existence, they become operative with their birth. It is
inherent in all the individual irrespective of their caste, creed, religion, sex, and nationality. These
rights are essential for all individuals as they are consonant with their freedom and dignity and are
conducive to physical,moral,social and spiritual welfare. The first use of the term human rights has
been made by Franklin Roosevelt[1] in his famous message to Congress in January 1941 calling for a
world founded on four essential freedoms. these he listed as freedom of speech, freedom of religion.
Freedom from want and freedom from fear. He declared “freedom means the supremacy of human
rights everywhere.”The phrase was again used in the Atlantic Charter and there after in the
Declaration of UN in 1942.Then it was translated in the UN Declaration of Human Rights adopted by
General Assembly on 10 December1948.
Human rights are essential for all round development of the personality of the individuals in the
society. It is the very essence of a meaningful life and to maintain human dignity. Human rights are
legal because it involves the implementation of rights and obligation mentioned in international
treaties. It is moral because human rights are a value based system to preserve human dignity and it is
political in the larger sense of the word.
Persons with disabilities face discrimination and barriers that restrict them from participating in society
on a equal basis with others everyday.Infact all disabled people are entitled to effective enjoyment of
all human rights without discrimination. Human rights provide a very important means of protection
for disabled people.
This paper examines the violation of human rights of intellectually differentially abled persons
____________________________________________________________________________
1. 32nd President of United States
 HUMAN RIGHTS OF INTELLECTUALLY DIFFERENTIALLY ABLED PERSONS

Right to health is a fundamental right of every citizen in a country. Mental health is an integral and
inseparable part of health. Hence an ancient Roman proverb says
“Mens sana in corpora sano”
meaning” a healthy mind in an healthy body. But the society has always turned a blind eye and deaf ear
towards people with mental illness. The rights and needs of the vulnerable and marginalized were
either consciously suppressed or foolishly ignored.
It is estimated that approximately 500 million individuals globally are affected by mental illness.
Mental health embodies the integration of psychological, emotional and social harmony. Studies shows
that being diagnosed with symptoms of mental health issues exposes a person or community to
labeling. Such persons are branded socially inadequate and are associated with resulting shame,
humiliation and loss of face. In certain cultures, mental illness is perceived as a sign of weakness or
curse. This negative connotation results in family members distancing themselves from others. Persons
with disabilities are entitled to exercises their civil, political, social economic and cultural rights on an
equal basis with others. The full participation of persons with disabilities benefit society as their
individual contributions enrich all spheres of life and this is an integral part of individuals and societies
well being and progress for a society for all-with or without disabilities Despite improvements in recent
years people with mental illnesses regularly suffer infringements on their human rights, and state
instituted psychiatry is often used to oppress political dissidents in nations around the world.
Statutory provisions and International Instruments
Both national and international systems have addressed the human rights of person with mental
disability through treaties, declarations and thematic resolutions and laws. Some of them are cited
below.
1) Universal Declaration of Human Rights,1948(UDHR)

It enumerates the basic postulates and principles of human rights in a most comprehensive manner. It
deals not only with civil and political rights but also social and economic rights. THE GENERAL
ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a
common standard of achievement for all peoples and all nations, to the end that every individual and
every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and
education to promote respect for these rights and freedoms and by progressive measures, national and
international, to secure their universal and effective recognition and observance, both among the
peoples of Member States themselves and among the peoples of territories under their jurisdiction.
2) International convention on economical, social and cultural rights 1966(ICESCR)

The Preamble of the convention includes

1.Considering that, in accordance with the principles proclaimed in the Charter of the
United Nations, recognition of the inherent dignity and of the equal and inalienable rights
of all members of the human family is the foundation of freedom, justice and peace in the
world,

2. Recognizing that these rights derive from the inherent dignity of the human person,

3.Recognising that, in accordance with the Universal Declaration of Human Rights, the
ideal of free human beings enjoying freedom from fear and want can only be achieved if
conditions are created whereby everyone may enjoy his economic, social and cultural
rights, as well as his civil and political rights,

4. Considering the obligation of States under the Charter of the United Nations to
promote universal respect for, and observance of, human rights and freedoms,

5. Realising that the individual, having duties to other individuals and to the community
to which he belongs, is under a responsibility to strive for the promotion and observance
of the rights recognized in the present Covenant.

3) Declaration on the Rights of Mentally Retarded Person, 1971.

This enumerates the necessity of providing help to mentally retarded persons in order to enable them
to develop their abilities and promoting their integration in normal life. The declaration lays down
that the mentally retarded persons should have protection of these rights:

1. The mentally retarded person has, to the maximum degree of feasibility, the same
rights as other human beings.

2. The mentally retarded person has a right to proper medical care and physical therapy
and to such education, training, rehabilitation and guidance as will enable him to develop
his ability and maximum potential.

3. The mentally retarded person has a right to economic security and to a decent standard
of living. He has a right to perform productive work or to engage in any other meaningful
occupation to the fullest possible extent of his capabilities.

4. Whenever possible, the mentally retarded person should live with his own family or
with foster parents and participate in different forms of community life. The family with
which he lives should receive assistance. If care in an institution becomes necessary, it
should be provided in surroundings and other circumstances as close as possible to those
of normal life.

5. The mentally retarded person has a right to a qualified guardian when this is required to
protect his personal well-being and interests.
 7. The mentally retarded person has a right to protection from exploitation, abuse and
degrading treatment. If prosecuted for any offence, he shall have a right to due process of
law with full recognition being given to his degree of mental responsibility.

8 Whenever mentally retarded persons are unable, because of the severity of their
handicap, to exercise all their rights in a meaningful way or it should become necessary to
restrict or deny some or all of these rights, the procedure used for that restriction or denial
of rights must contain proper legal safeguards against every form of abuse. This
procedure must be based on an evaluation of the social capability of the mentally retarded
person by qualified experts and must be subject to periodic review and to the right of
appeal to higher authorities.

4) Mental Health Act,1987.

The experience of the working of Indian Lunacy Act, 1912 ( 4 of 1912) has revealed that it has
become out-moded. With the rapid advance of medical science and the understanding of the nature of
malady, it has become necessary to have fresh legislation with provisions for treatment of mentally ill
persons in accordance with the new approach.

It is considered necessary -

i. To regulate admission to psychiatric hospitals or psychiatric nursing

homes of mentally ill-persons who do not have sufficient understanding to
seek treatment on a voluntary basis, and to protect the rights of such
persons while being detained;
ii. To protect society from the presence of mentally ill persons who have
become or might become a danger or nuisance to others;
iii. To protect citizens from being detained in psychiatric hospitals or
psychiatric nursing homes without sufficient cause;
iv. To regulate responsibility for maintenance charges of mentally ill persons
who are admitted to psychiatric hospitals or psychiatric nursing homes;
v. To provide facilities for establishing guardianship or custody of mentally
ill persons who are incapable of managing their own affairs;
vi. To provide for the establishment of Central Authority and State
Authorities for Mental Health Services;
vii. To regulate the powers of the Government for establishing, licensing and
controlling psychiatric hospitals and psychiatric nursing homes for
mentally ill persons;
viii. To provide for legal aid to mentally ill persons at State expense in certain
cases.

5)Persons with disabilities Act (Equal Opportunities , Protection of Rights and full
participation )1995.(PWD ACT ).
It is an important landmark and significant step in the direction of ensuring equal
opportunities to people with disabilities and their full participation in nation building.
The Persons with Disabilities Act, 1995 (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995.
This is an act to give effect to the proclamation and equality of the people with
disability in the Asian & Pacific region. This PWD act 1995 was implemented in the
State of Punjab in February 1996.

Disability:- means

a) Blindness
b) Low vision
c) Leprosy cured
d) Hearing impairment
e) Locomotors disability
f) Mental Retardation
g) Mental illness

Right to health and Constitution of India

“Health is a state of complete physical, mental and social wellbeing and not merely the
absence of disease[1].” In recent years, this statement has been amplified to include the
ability to lead a ‘socially and economically productive life’.
Right to health is not included directly in as a fundamental right in the Indian
Constitution .The Constitution maker imposed this duty on state to ensure social and
economic justice. Part four of Indian constitution which is DPSP imposed duty on States.
If we only see those provisions then we find that some provisions of them has directly or
indirectly related with public health. The Constitution of India not provides for the right
to health as a fundamental right. The Constitution directs the state to take measures to
improve the condition of health care of the people. Thus the preamble to the Constitution
of India, inter alia, seeks to secure for all its citizens justice-social and economic. It
provides a framework for the achievement of the objectives laid down in the preamble.
The preamble has been amplified and elaborated in the Directive Principles of State
policy.
Article 38[1] 39(e)[2] and 41[3] of Indian Constitution imposes the duty on the state to enforce
these rights.

VIOLATION OF HUMAN RIGHTS OF INTELECTUALLY DISABLED

Despite progressive legislation and zealous spread of awareness, conflicts and vagaries
arise when human rights of mentally ill are under question not just in India but
universally. The gray areas of mentally disability law have allowed for abuse of the most
vulnerable. Major cause of concern for human rights in India has been the conditions of
person in mental institutions .For eg in Gwalior Mental Hospital it was found that persons
with mental illness were kept naked .The explanation given by the authorities was that
the patients used to tear their clothes if and when given. This clearly shows how the
mentally ill persons are treated.

In 1999 NHRC prepared report based on an empirical study of mental hospitals.

This revealing report made several Imprecating remarks on the state of India`s mental
health institution. This quote has been taken from the report.

The findings reveal that there are two type of hospitals. The first type do not deserve to be
called hospitals or mental health centers. They are dumping grounds for families to
abandon their mentally ill members. The living conditions in many of these centre are
deplorable and violate an individual’s right to be treated humanely and live a life of
dignity. The second type provides only basic living amenities. Their role is predominantly
custodial and provides food and shelter. But very little effort is made to preserve or
enhance their daily living skills. These hospitals are violating the rights of the mentally ill
persons to appropriate treatment and rehabilitation and right to community and family
life. In Chandan kumar v State of West Bengal[4], the Supreme court heard of the human
conditions in which mentally ill persons were held in mental hospital at the Mankundu
Hospitals in the Hooghli district. Court denounced this practice and ordered the cessation
of practice of tying up the patients who were unruly and not physically controllable with
iron chains and ordered medical treatment for these patients. Despite these directives the
tragedy of Erwady occurred. On Aug.6,2001,in Erwady in the Ramnathapuram district of
Tamilnadu, 26 mentally ill persons kept chained in a thatched shed in a dargah were
charred to death in a fire. It was said that many of the inmates were not unmanageable
psychotics.
_______________________________________________________________________
1 State to secure a social order for the promotion of welfare of the people
2. 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
3. Provision for just and humane conditions of work and maternity relief The State shall make provision
for securing just and humane conditions of work and for maternity relief
4. 1995 supp.4.SCC 505
Treated worse than animals:
Human rights watch[1] which defends the rights of people worldwide found that there is
severe shortage of accessible and appropriate government services for mentally disabled.
Based on research in Delhi, Mumbai, Pune, Kolkata, Bengaluru, and Mysore, this report
focuses on abuses against women and girls with psychosocial or intellectual disabilities in
India. Between December 2012 and November 2014, Human Rights Watch visited 24
mental hospitals and state residential care facilities and interviewed over 200 women and
girls with psychosocial or intellectual disabilities, their families, caretakers, mental health
professionals, service providers, government officials, and members of the police.
The prevalent mindset is that people with disabilities, are incapable, weak, and lack the
capacity to make any meaningful decisions about their lives. Institutions to which they
are sent are overcrowded and poorly managed: all women and girls with psychosocial or
intellectual disabilities currently or formerly living in institutions interviewed by Human
Rights Watch experienced forced institutionalization; most faced a range of abuses in
institutional care, including neglect, physical or verbal abuse, and involuntary treatment
While physical and verbal abuse is an everyday occurrence in every state-run institution
and mental hospital Human Rights Watch visited, sexual violence remains hidden as
victims are less likely to talk about it. A welfare officer at a residential care institution for
women told Human Rights Watch women have gone to [a hospital] for three months
and have come back one month pregnant. It’s happened in a lot of cases but when the
woman can’t say who got her pregnant, what can we do? We found out this because…the
women undergo a check-up and mandatory urine pregnancy test when they are
re-admitted into the residential care facility. As of November 2014, Asha Kiran or
Avantika, a government institution for persons with intellectual disabilities in Delhi, is
home to just under 900 people, nearly three times its capacity. At Pune Mental Hospital,
Dr.Vilas Bhailume, the hospital’s superintendent, agrees that there were just 25 working
toilets for more than 1,850 patients. “Open defecation is the norm,” he said. Researchers
found that lice were rampant in most state-run institutions visited: during interviews at 10
government institutions, women and girls constantly pulled lice from their hair. Instead of
providing medicated shampoos and improving hygiene, many women were forcibly
shaved.
According to Dr. Sanjeev Jain[2]Most government hospitals refuse to admit ‘mentally
ill’ people in ICU [Intensive Care Unit] care. They ask: ‘Why are you blocking a bed that
could be put to better use?’ This year, one of our patients died.

____________________________________________________________________
1. Human Rights Watch is an independent, international organization that works as part of a vibrant
movement to uphold human dignity and advance the cause of
human rights for all.
2. Professor of psychiatry and former head of the department of psychiatry at the National Institute of
Mental Health and Neurosciences (NIMHANS):
In a government hospital, a psychiatric nurse admitted that ECT was commonly used not
only on violent and suicidal patients but also on new admissions who tend to be
unmanageable. ECT is even used as a threat to coerce people to take their medicines or to
scare them if they do not listen to staff In a government hospital, a psychiatric nurse
admitted that ECT was commonly used not only on violent and suicidal patients but also
on new admissions who tend to be unmanageable. ECT is even used as a threat to coerce
people to take their medicines or to scare them if they do not listen to staff.
In this context it may be noted that in Dr. Upendra Baxi Vs State of UttraPradesh[1] the
court ordered to ensure that the inmates of the protective home at Agra do not continue to
live in inhuman and degrading condition and the right to live with dignity enshrined in
Article 21 of the constitution is made real and meaningful for them.
In another case Death of 25 chained inmates in asylum fire in Tamilnadu In re V UOI[2]
The Supreme Court on being informed about the death of 25 chained inmates in an
asylum fire,took suo motu action by directing the cabinet Secretary to frame a national
policy to address issues faced by persons with disabilities. The above mentioned incident
clearly throws light on the inhuman treatment given to intellectually disabled persons.

RECOMMENDATIONS

Human rights affords to all persons fundamental rights and place duty on the government
to respect them . The condition of mentally disabled persons can be improved by
government taking some measures. The following are some suggestions for improving
the same.
1) Reduce overcrowding of mental institutions .
2) Promote community based rehabilitation (CBR) which improves self esteem
,empowerment ,self reliance and thereby improving the quality of life of the disabled
person.
3) Change attitude of the society and raise awareness by education.
4) Mechanisms to monitor human rights should be established to protect against in
human and degrading treatment.
5) Government need to dedicate more of their health budget for purpose of mental health
care.
6) A separate commission like the Women’s Commission should be set up for hearing
the grievance of mentally disabled
7) Passing of Mental health care bill with consultation with disabled persons
organizations
8) Develop guidelines for sanitation hygiene and living conditions

________________________________________________________________
1. (1983) 2 SCC308
2. (2002) 3SCC 31
 CONCLUSION

To sum up human rights are not to the exclusive preserve of any individual or
group. They are neither owned by anyone nor can be doled out as a gift by one to
another. They belong to all of us - individually and collectively. Availability,
accessibility, acceptability and quality are the core obligations and elements of
right to health and dignified life. A intellectually disabled person is in need of
special care and attention both at home and in hospitals for the simple reason that
they re unable to look after themselves. Mentally Disabled people should receive
help as much as possible , not forgetting the fact that they are human beings. It is
the duty of the state regardless of the political economic and cultural system to
promote and protect all human rights and fundamental freedoms of differently
abled. Countries should adopt appropriate mental health policies, laws and
services that promote the rights of people with mental disabilities and empower
them to make choices about their lives, provide them with legal protection and
ensure their full integration and participation into the community.
 List of Abbreviations

1. ICCPR- International Covenant on Civil and Political Rights

2. ICESCR- International Covenant on Economic Social and Cultural Rights

3. UDHR- Universal Declaration on Human Rights

4. WHO-World Health Organisation

5. ECT- Electro Convulsive Therapy

 BIBLIOGRAPHY

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9th Edition

U.N.Gupta :The Human Rights-Convention and Indian Law

Bindumol.V.C : Medical Law -Allahabad law agency

Dr J.N Pandey :Constitution of India