The Persons with disabilities (Equal Opportunities, Protection of Right and full Participation) Act 1995
The enactment of the persons with disabilities (Equal Opportunities, Protection of Right and full Participation) Act 1995 (Disabilities Act), marked a signal achievement for the Indian disability movement, The preamble to the Disabilities Act clearly outlines its objective of promoting and ensuring equality and full participation of persons with disability. The Disability Act aims to protect and promote the economic and social right of people with disabilities, and covers seven disabilities. The criteria for each category of disability embodied in the definitions are medical and not based on social perceptions of disability.
The disabilities Act spell out the responsibilities of the various organs of the state and provides policy guidelines. It lays down specific provisions for the development of services and programmes for equalizing opportunity for the enjoyment of the right to education, work, housing, mobility and public assistance in case of severe disability and unemployment, to execute the mandated responsibilities, a Central Coordination Committee and state Coordination Committee have been envisaged in multi-sectoral mode representing major developmental ministries, members of parliament, disability NGOs and women with disability.
This historic legislation has been a cornerstone of the right if jurisprudence on the right of person with disabilities, with disability concerns coming into sharp focus. Within several years of enforcement since its weaknesses have also surfaced in the absence of powerful instrument for implementation. Without the usual indifference thought, the government soon realized these weaknesses and acceded to the demands of the disability movement for an overall review of the Disability Act. Towards this end a Committee was constituted which harmonized the views of the disability sector and relevant bodies in its comprehensive report. Unfortunately, there have been no concrete proposals in the Indian parliament for amendments to plus the loopholes in the present Disabilities Act.
National Trust Act 1999
As certain groups among the disabled are more vulnerable than others, an enactment for the protection of such persons, their property and well-being was felt necessary. The enactment of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999 (Trust Act), aims to fulfill a common demand of families that seek state provision for their severely disabled wards. The specific objectives of the Trust Act are:
The Trust Act mandates the creation of a Local Level Committee (LLC) comprising a District Magistrate along with one representative from a registered organization and one person with a disability. The LLC is vested with the authority to decide upon applications for legal guardianship. The Trust Act also lays down the duties of the guardian.
The overall supervision of this Act is vested with a national trust board appointed through a democratic process by registered organizations of parents and others providing services to this segment of the disabled population. The government has contributed Rs. 1 billion to the trust fund and the interest earned is used to support the mandated activities.
Mental Health Act 1987
The subject of health falls under the concurrent list in the Indian Constitution, empowering both the center and states to introduce measures, including the authority to legislate. The Mental Health Act 1987 is civil right legislation with a focus on regulating standards in mental health institutions. There are serious questions over the effectiveness of this Act in ensuring protection to persons, property and management of persons covered
For example, until recently many mentally ill persons were consigned to jails, and those living in mental health institutions were on better off, as the conditions both in prisons and in mental institution were far below the stipulated standards. Sheela Barse v Union of India & Anor, concerned the detention of non-criminal mentally ill persons to jails is illegal and unconstitutional.
Similarly, in Chandan Kumar Banik v State of west Bengal, the Supreme Court heard of the inhuman conditions in which mentally ill persons were held in a mental hospital at Mankundu in the District of Hooghli. The Court denounced this practice and ordered the cessation of the practice of tying up patients who were unruly or not physically controllable with iron chains and ordered medical treatment for these patients. However, in August 2001, the indifference of state and private authorities resulted in the tragic death of 26 patients in Erwadi as they were tied to their beds when fire engulfed the building. Following this tragedy the National Human Rights Commission of India (NHRC) advised all Chief Ministers to submit a certificate stating: ‘no persons with mental illness are kept chained in either government or private institutions’.
The NHRC is mandated under section 12 of the Protection of Human Rights Act 1993 to visit government run mental hospitals to ‘study the living conditions of the inmates an make recommendations thereon’. In 1997,Project Quality Assurance in Mental Health Institutions was initiated to analyze the conditions generally prevailing in 37 governments-run mental hospitals and departments. The findings of this study confirm that mental hospitals in India are still being managed and administered on a custodial model of care characterized by prison-like structures with high walls, watchtowers, fenced wards and locked cells. Mental hospitals are like detention centers where persons with mental illness are kept caged in order to protect society from the danger their existence poses.
The study further points out that despite the Mental Health Act being in effect since 1987, some admissions and discharges are still being governed by the archaic and inhuman provisions of the Indian Lunacy Act 1912. Then umber of involuntary admissions is found to be very high and the provisions of section 19- permitting admission under certain special circumstances by a relative or a friend – are widely abused. The comprehensive findings of this study, along with a set of detailed guidelines for quality assurance in mental health institutions are compiled in a report that has been circulated to all the Health Secretaries in the states. From its inception, the NHRC has proactively initiated several measures in respect of the right of people with mental disabilities and has been appointed by the Supreme Court to supervise the functioning of several mental health institutions.
Standardizing training courses for professionals dealing with people with disabilities;
Prescribing minimum standards of education and training of various categories of professionals dealing with people with disabilities;
Regulating these standards in all training institutions uniformly throughout the country;
Promoting research in rehabilitation and special education;
Maintaining a Central Rehabilitation Register for registration of professionals.
The RCI regulates training standards for 16 categories of rehabilitation workers. The Council is proactively promoting training and research initiatives utilizing the experience of specialized as well as the mainstream academic institutions.
From : LEGAL PROTECTION FOR PERSONS WITH
DISABILITIES IN INDIA
by ANURADHA MOHIT AND SANTOSH K RUNGTA
National Policy for Persons with Disabilities
The government has come out with a National Policy for Persons with Disabilities, aimed at providing social security and enhancing the dignity and self-respect of such people with a special focus on women and children.
Under the policy, there would be mechanisms for promotion and protection of rights of persons with disabilities and providing them equal opportunity to participate fully in the society.
The policy focuses on prevention of disabilities, rehabilitation measures, early detection and intervention, provision for assistive devices, development of professionals in rehabilitation of persons with disabilities, education and economic empowerment including self-employment, creation of barrier free environment and social security.
It also addresses the problems of women and children with disabilities, role of NGOs in providing services to persons with disabilities, research and data collection specific to the needs of such persons.
The policy document would provide guidance to the Central Government Ministries, State Governments, NGOs and other stakeholders for taking up programmes for persons with diabilities.