The Convention on the Rights of Persons with Disabilities and its Optional Protocol was adopted on 13 December 2006 at the United Nations Headquarters in New York, and was opened for signature on 30 March 2007. There were 82 signatories to the Convention, 44 signatories to the Optional Protocol, and one ratification of the Convention. This is the highest number of signatories in history to a UN Convention on its opening day. It is the first comprehensive human rights treaty of the 21st century and is the first human rights convention to be open for signature by regional integration organizations. It marks a “paradigm shift” in attitudes and approaches to persons with disabilities.
With India signing the Convention and signalling that it will ratify it soon, laws in India will have to undergo a dramatic change. The convention describes discrimination on the basis of disability as “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.”
The Convention is intended as a human rights instrument with an explicit, social development dimension. It adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. It clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced. “The convention is a blueprint to end discrimination and exclusion of the physically and mentally disabled in education, jobs and everyday life,” says Ratnabali Ray, founder of Anjali, a Calcutta-based non governmental organisation that works for the mentally disabled.
Some of the measures that India would have to take include anti-discrimination legislation, eliminating laws and practices that discriminate against persons with disabilities, and considering persons with disabilities when adopting new policies and programmes. Other measures include making services, goods and facilities accessible to persons with disabilities. The government would have to change its local by-laws and make it compulsory for buildings to be easily accessible to the disabled. Once the convention comes into force, a committee on the rights of persons with disabilities will monitor its implementation. Countries that ratify the convention will need to report regularly on their progress to the committee.
The Convention will benefit 650 million persons with disabilities around the world. It does not establish any new rights but rather emphasizes and consolidates the existing rights and freedoms of persons with disabilities and the international commitments of States. The Convention defines disability as an element of human diversity and praises the contributions of persons with disabilities to society. It prohibits obstacles to the participation and promotes the active inclusion of persons with disabilities in society. The long-term goal of this Convention is to change the way the public perceives persons with disabilities, thus ultimately changing society as a whole.

For many years, disability related organisations and UN members have discussed and lobbied for the possibility of a convention specific to disabled people. Although existing human rights laws seem to provide equal rights for the disabled 10 per cent of the world population, the reality, in practice, is that these instruments have failed to protect the human rights and fundamental freedoms guaranteed to disabled people. Early initiatives did not receive too much attention, and it was not until April 2000 that the UN Commission on Human Rights invited the UN High Commissioner for Human Rights to examine measures to strengthen the protection and monitoring of the human rights of ‘persons with disabilities’ in its resolution 2000/51. The General Assembly then established an Ad Hoc Committee (hereafter the Committee) in its resolution 56/168, in December 2001, on a “Comprehensive and Integral International Convention on Protection and Promotion of the Rights of Dignity of Persons with Disabilities” to consider proposals for a convention to protect and promote the rights of disabled people. Discussions at its first meeting included the underlying principles and a human rights based approach was preferred for this new convention.

Underlying principles

“A human rights perspective on disability means viewing people with disability as subjects and not as objects. It entails moving away from viewing people with disabilities as problems towards viewing them as holders of rights. Importantly, it means locating problems outside the disabled person and addressing the manner in which various economic and social processes accommodate the difference of disability…disability rights is about ensuring the equal effective enjoyment of all human rights, without discrimination,…it is inspired by the values that underpin human rights: the inestimable dignity of each and every human being, the concept of autonomy or selfdetermination that demands that the person be placed at the centre of all decisions affecting him/her, the inherent equality of all regardless of difference, and the ethic of solidarity that requires society to sustain the freedom of the person with appropriate social supports. ”

- Quinn and Degener

Article 3 of the Convention has stipulated the underlying principles of this convention as:

a. Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
b. Non-discrimination;
c. Full and effective participation and inclusion in society;
d. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
e. Equality of opportunity;
f. Accessibility;
g. Equality between men and women;
h. Respect for the evolving capacities of children with disabilities, and respect for the right of children with disabilities to preserve their identities.

Key provisions

The new Convention comprises fifty articles. Under Article 10, state parties are to guarantee that persons with disabilities enjoy their inherent right to life on an equal basis with others. They would ensure the equal rights and advancement of women and girls with disabilities (article 6), and also protect children with disabilities (article 7). They need to respect their homes and families. Children with disabilities would have equal rights, would not be separated from their parents against their will, except in their best interests, and would in no case be separated from their parents on the basis of a disability of either the child or the parents (article 23). The same article also talks about the elimination of discrimination relating to marriage, family and personal relations. Accordingly, persons with disabilities would have equal opportunities to experience parenthood, marry and establish a family, decide on the number and spacing of children, have access to reproductive and family planning education and means, and to enjoy equal rights and responsibilities regarding guardianship, wardship, trusteeship and adoption of children: all flowing from the “equal protection and benefit of the law” principle.

The convention also enjoins the State parties to prohibit all discrimination on the basis of disability, and take all appropriate steps to ensure that reasonable accommodation is provided (article 5). In addition, they shall adopt appropriate measures to raise awareness throughout society, to foster respect for the rights and dignity of persons with disabilities and to combat stereotypes, prejudices and harmful practices relating to them (article 8). Similarly, on the fundamental issue of accessibility (article 9), the Convention requires State parties to identify and eliminate obstacles and barriers, and ensure that persons with disabilities can access their transportation, public facilities and services, information and communications. State parties are also obliged to ensure the equal rights of all persons with disabilities to live independently in the community, with choices equal to others, and shall take effective measures to facilitate full enjoyment by persons with disabilities of this right, and their full inclusion and participation in the community (article 19). Persons with disabilities should be able to choose their own living arrangements, and have rights to protection against involuntary institutionalisation.
According to the Convention, persons with disabilities have the rights to the highest attainable standard of health without discrimination on the basis of disability. They would receive the same range, quality and standard of free or affordable health services as provided to other persons and not be subjected to discrimination in the provision of health (article 25). Countries must also guarantee freedom from torture, cruel, inhuman or degrading treatment or punishment, and prohibit medical or scientific experiments without the consent of the person concerned (article 15) and protect the physical and mental integrity of persons with disabilities (article 16).

Optional protocol

India has not signed the optional protocol to the Convention and has even signalled its unwillingness to do so in the future. Signing the optional protocol would mean that the domestic situation of the disabled would become the responsibility of the international community. Accordingly, if all domestic avenues to enforce any of the convention rights have failed, an individual or an organization can approach the Ad Hoc Committee with an application. There is a mixed response to the decision of the Indian government. Where some have expressed satisfaction with the confidence of the government of India to redress any grievances internally, others point out that such a procedure would have been useful in the case of non-implementation of the Convention.