Quite recently, NGO activist Rajiv Ranjan was denied permission to board a flight from Chennai to New Delhi because he was a cerebral palsy patient. Later, the directorate general of civil aviation pulled up the guilty airline. Had there been more awareness about the rights of disabled people and had clear guidelines been issued, the incident could have been avoided, sparing Ranjan needless humiliation. This instance is not the exception. There exists a pervasive problem of discrimination against people with disabilities in our society. Despite shining examples from history and mythology, the disabled continue to be considered everywhere as dependant people incapable of major contributions to the economy or society. And this is despite the fact that they constitute 2.13 per cent of the total population. According to the 2001 census, there are 21.9 million persons with disabilities in India. Because of the dispersed nature of the disabled population and the quirks of democratic government, they form a very under-represented minority, thus failing to form a group that is capable of bringing policy changes to their advantage. The solution to this problem emanating from deep-rooted social prejudices lies in legal measures that are backed by strong political will.

One of the most accepted definitions of disability is from the WHO. A disability (resulting from an impairment) is a restriction or lack of ability to perform an activity in the manner or within the range considered normal for a human being. Other terms like ‘impairment’ and ‘handicap’ have also been used synonymously. The term impairment defined by the World Health Organisation means any loss or abnormality of psychological, physiological or anatomical structure or function. A handicap maybe defined as a disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfilment of a role that is normal (depending on age, sex and social and cultural factors) for that individual.¹

In the Indian context, according to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, a person with disability is a person suffering from not less than 40% of any disability as certified by a medical authority. The conditions included as disability are blindness, low-vision, hearing impairment, locomotor disability, mental retardation, leprosy and mental illness. Autism, cerebral palsy and multiple disabilities (e.g. mental retardation with blindness) have been listed as disabilities in the National Trust Act of 1999.

The definition of disability is important, because it is the perception of the problem that will define the solution. Disability has been seen as individual pathology and social pathology, though the latter has gained ground of late. Accordingly, the charity model, the bio-centric model, the functional model and the human rights model have developed as viable methods to address the issue. The first two arose as answers to the perception of disability as an individual pathology. As the name would suggest, the charity model considered the disabled as helpless victims. The bio-centric model, focuses on the biological origin of the disabling condition and focuses on disease, disorder, physical or mental characteristic, which can be viewed as abnormal although it is completely curable through medical intervention. In the functional model of disability the difficulties faced by a person are seen as arising from a mismatch of the individual's biological condition and functional capacity on one hand and environmental and situational factors on the other. The last type is the human rights model which positions disability as an important part of the human culture and it affirms that all human beings irrespective of their disability have certain rights, which are inalienable.²

An all-inclusive treaty covering disability has been brought into existence quite recently. Briefly, the convention aims to ensure better recognition of the rights of every person and covers rights such as equality, non-discrimination, equal recognition before the law; liberty and security of the person; accessibility, personal mobility and independent living; right to health, work and education and participation in political and cultural life. For instance, it recognises that persons with disability should have the right to participate in sporting activities with a choice between mainstream and disability-specific programmes, have equal access to sporting activities in the school system and have access to sporting and recreational venues whether as a participant or as a spectator.

The Convention was not the first international initiative in this area. The Standard Rules regarding disability from the United Nations emphasised the close connection between the limitation experienced by individuals with disabilities, the design and structure of their environments and the attitude of the general population. Adopting what could be referred to as a “social model” of disability; they set out a number of practical measures for achieving substantive equality for persons with disabilities. The areas for development listed in the Standard Rules include awareness building, education, information and research, and national monitoring and evaluation of disability programmes. The Standard Rules exemplify the ongoing shift from a charity-based approach to disability to one that is based on human rights.

This was followed by the adoption of the World Program of Action Concerning Disabled Persons in 1982, which provided an international framework to incorporate disability issues into national planning and made clear a global commitment to developing a society that fully integrates disabled and non-disabled persons. Rather than placing the burden of change on the individual person with disabilities, it called for legal, institutional, and social adaptation that would allow for the full realisation of the rights of disabled persons.

In addition to human rights treaties like the ICESCR, the Convention Against Torture, the 1989 Convention on the Rights of the Child³ and the ICCPR, certain other United Nations instruments also address the issue of disability. Article 1 of the UNESCO Convention against Discrimination in Education⁴ guarantees equal access to education of all types and levels and prohibits the limitation of any person or group of persons to education of an inferior standard. The ILO Convention concerning Vocational Rehabilitation and Employment (Disabled Persons)⁵ recognises the rights of disabled persons to appropriate training and employment, not only in specialised institutions and sheltered workshops, but also in open labour markets, and stipulates that employers’ and workers’ organisations, together with Governments and organisations of disabled persons share responsibility for helping disabled persons to realise their rights.

The disabled have traditionally struggled for opportunities and the perpetuation of this under-representation has meant that this class of people has not been able to effect change in the policy making to their benefit. So even when a political system works by the ‘vote bank’, this class of people - dispersed over significant areas - influence the political class to effect changes to their benefit. With the increased awareness about human rights among the disabled, groups and movements attempting to effecting change on behalf of this class have emerged. These groups are in addition to various systems put in place by the government to do the same. The emphasis is now on making the disabled self-sufficient rather than providing them with charity. This can only be achieved if the disabled are allowed to become educated and informed citizens capable of making their own decisions, contributing to society and demanding their rights when necessary.

(The newsletter has been prepared by Aman Singh and Aju John. Aman Singh is a student at Amity Law School, Delhi. Aju John is an editor at Indlaw Communications.)