chapter 6 of the constitution provides a detailed description of legal instruments regarding a selected set of social and cultural rights. It discusses international and domestic standards for these rights and considers relevant examples of jurisprudence that have breathed life into them. The rights analysed are:
* Right to Food and Clean Water
* Right to Adequate Housing and Shelter
* Right to Health
* Right to Education
* Linguistic Rights
* Access to Places of Entertainment, Sports and Culture
* Access to Media and Information Communication Technologies (ICTs)
Tables 6.1, 6.2, 6.3 and 6.4 at the end of the chapter give a synoptic view of the current state of the international and national law and policy on these rights from the perspective of the rights of the disabled.
6.1 Right to Food and Clean Water
6.1.1 International Standards for the Right to Food
The right to food is guaranteed in the International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW Convention), and the Convention on the Rights of the Child (CRC). Article 11(1) of the ICESCR includes adequate food as a component of an adequate standard of living and Article 11(2) refers to ‘the fundamental right of everyone to be free from hunger.’ The CEDAW Convention includes adequate nutrition as part of an adequate standard of living in Article 14. Article 24(2)(c) of the CRC specifically mentions rights to both food and water, requiring States Parties to:
combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious food and clean drinking water, taking into consideration the dangers and risks of environmental pollution.
Page 66
In General Comment No. 12, the CESCR confirms that the right to adequate food applies to everyone without discrimination and ‘is of crucial importance for the enjoyment of all rights.’
1
The General Comment also identifies principal issues related to the right to food. According to the CESCR the ‘core content of the right to adequate food implies:
* the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; and
* the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights.’
2
The meaning of these statements is further elaborated in the General Comment. The ‘physical access’ is explained as implying that ‘adequate food must be accessible to everyone including physically vulnerable individuals, such as infants and young children, elderly people, the physically disabled, the terminally ill and persons with persistent medical problems, including the mentally ill.’
3
The CESCR indicates that taking steps to implement the right to adequate food will require the adoption of a national strategy ‘to ensure food and nutrition security for all.’
4
The national strategy must address the need to prevent discrimination in access to food or resources to food.
5
When States Parties submit their periodic reports on the implementation of ICESCR rights, the revised reporting guidelines stipulate that reports must include detailed information on the right to food for especially vulnerable or disadvantaged groups.
6
6.1. 2 International Standards for the Right to Clean Water
In addition to adequate food, adequate water is essential to life. While the right to water is not explicitly included in the ICESCR, it falls within the right to an adequate standard of living and is inextricably linked to the right to the highest attainable standard of health, rights to adequate food and adequate housing, and the right to life and human dignity. The CEDAW Convention explicitly recognises right to water by women. According to Article 14(2) the States Parties must ‘ensure to women the right to enjoy adequate living conditions, particularly in relation to … water supply.’ As noted above, the CRC includes the right to water along with the right to food in Article 24(2)(c).
In General Comment No. 15, the CESCR confirms that ‘[t]he human right to water is indispensable for leading a life with human dignity.’
7
Paragraph 2 of the General Comment states:
The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements.
Page 67
The General Comment outlines the essential elements of the right to water: availability, quality, and accessibility.
8
Accessibility includes the concept of non-discrimination and equal access for ‘the most vulnerable or marginalised sections of the population, in law and in fact, without discrimination on any of the prohibited grounds.’
9
Paragraph 13 also refers to non-discrimination and equality including the prohibition of discrimination on the grounds of ‘physical or mental disability’ and ‘health status (including HIV/AIDS).’ The CESCR calls on States to give special attention to individuals and groups who have traditionally had difficulties exercising the right to water including ‘[g]roups facing difficulties with physical access to water, such as older persons, persons with disabilities….’
10
Further, the core obligations of the right to water include ensuring ‘the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged or marginalised groups’ and ‘equitable distribution of all available water facilities and services.’
11
National strategies for the implementation of the right to water must respect ‘the principles of non-discrimination and people’s participation.’
12
6.1.3 Domestic Standards for the Right to Food
Constitutional Position
The Directive Principles of State Policies under Articles 47, 39(a) and 39(b) of the Constitution of India expand on the nature of the obligations of the State to ensure the effective realisation of the right to food. Article 47 spells out the duty of the State to raise the level of nutrition and standard of living of its people as a primary responsibility. Article 39(a) requires the State to direct its policies towards securing the right to an adequate means to livelihood - equally for men and women. Article 39(b) further requires that the ownership and control of the material resources of the community are so distributed as to best serve the common good.
A number of judicial pronouncements in recent times have concluded that the right to food is inherent in the right to life under Article 21 of the constitution and is enforceable. The earlier commentaries on justiciability were perhaps correct because the framers of the Constitution believed that the nation needed some time to prepare for the financial burden that could result if the Directive Principles were made enforceable. However, in the last two decades the Supreme Court of India on a number of occasions has interpreted these principles in harmony with fundamental rights. This is also indicative of a perception that India has acquired the needed level of economic capacity.
The Supreme Court in M.C. Mehta vs Union of India
13
and the Consumer Education and Research vs Union of India.
14
has declared the right to a healthy and sustainable environment a fundamental right under Article 21, and the right to housing has been considered a fundamental right in Chameli Singh vs State of U.P.
Page 68
15
. Now the apex court in People’s Union for Civil Liberties vs Union of India and others
16
has also considered the right to food enforceable under Article 21. In the case of State of Maharashtra vs Manubhai Pragaji Vashi and Others
17
, the Supreme Court has said that where a Directive Principle remains unimplemented for a long time, the apex court could consider declaring it a Fundamental Right.
In its report, dated 7 February 1998, the National Human Rights Commission of India (NHRC) reiterated the positions taken by the Supreme Court. According to it, ‘the expression ‘life’ in this Article has been judicially interpreted to mean a life with human dignity and not mere survival or animal existence. In the view of the Commission, the right to food is inherent to a life with dignity, and Article 21 should be read with Articles 39(a) and 47 to understand the nature of the obligations of the State in order to ensure the effective realization of this right.’
Advancing the same principle, the Supreme Court of India in People’s Union for Civil Liberties vs Union of India and Others
18
states, ‘The citizen’s right to be free from hunger enshrined in Article 21 is to be ensured by the fulfillment of the obligations of the State set out in Articles 39(a) and 47.’ To further support this argument, the Court establishes the accord between the Constitution and International Human Rights Law in the following terms, ‘The provisions of the Covenant (ICESCR) which elucidate and go to effectuate the fundamental rights guaranteed by our constitution can certainly be relied upon by the courts as facets of those fundamental rights and hence enforceable as such.’
Article 51 of the Constitution indicates the spirit in which India approaches her international relations and obligations. It lays down that the State shall endeavor to foster respect for international law and treaty obligations in the dealings of organized people with one another. Numerous examples of the Supreme Court citing international instruments in support of its decisions are given in Part B (Section 4.5) of this manual under the title ‘The Relationship between International Law and National Law.’
Right to Food for persons with disabilities
Traditionally, the issue of nutrition in the disability law and policy is raised from the perspective of disability prevention since malnutrition in its various forms is a cause of disability as well as a contributory factor in other ailments that increase risk to disabling conditions. According to the Human Development in South Asia Report (2001), the incidence of anaemia among the expectant and nursing mothers between the age group of 15 to 19 years is highest in India in the SAARC region. As a consequence, about 30% of all infants born in India weigh less than 2,500 grams, which is the WHO cut-off level to determine low birth weight with a lower chance of survival and high risk of disability.
19
Section 25(f) of the Persons with Disabilities (Equal Opportunities, Protection Of Rights And Full Participation) Act, 1995, makes it incumbent upon the appropriate Governments and local authorities to ‘take measure for pre-natal, peri-natal and post-natal care of mother and child.’
Page 69
The NHRC has considered the problem of nutritional anaemia affecting the mental development of the foetus and the infant child to be an important human rights issue. The Commission in the year 2000 recommended that Central and State Governments undertake systematic measures to tackle this problem effectively.
20
In the history of rights of persons with disabilities in India, the right to food features for the first time in People’s Union for Civil Liberties vs Union of India and Others
21
case. In its interim order
22
dated 23rd July 2001 the Court asked the Governments to include persons with disabilities in all the schemes targeted at poorer sections of the society. In specific terms, the Court directed:
Antyodaya Anna Yojana (AAA) Cards be issued to the following groups of persons, which would entitle them to buy grains at highly subsidised rates:
1. (i) Aged, infirm, disabled, destitute men and women, pregnant and lactating women
2. (ii) Widows and other single women with no regular support
3. (iii) Old persons (aged 60 or above) with no regular support and no assured means of subsistence
4. (iv) Households with disabled adults and without assured means of subsistence
5. (v) Households where due to old age, lack of physical or mental fitness, social customs, need to care for a disabled, or other reasons, no adult member is available to engage in gainful employment outside the house
6. (vi) Primitive tribes
.
Though the right of the disabled to food is clearly enunciated in the order of the apex court, the self criticism of an activist who was a party to the petition is worth considering as it shows that the juridical autonomy for the rights of the disabled aimed by disability activists is still not reached. ‘It must be pointed out that disability comes in by a side wind, casually, almost accidentally, in this case as well. Reference to the disability sector and the special concessions sought by them for highly subsidized grains, is found in that part of the order where the disability sector is enjoined with the aged, the infirm and the sick. Once again, casualty was the disability rights, since the right to food was again viewed as a dole or charity. This is a harsh self-criticism because despite being part of the Disability Rights movement, one could not mainstream right to food for persons with disabilities in all issues that are addressed in People’s Union for Civil Liberties case.’
23
While malnutrition for sure is a sign of poverty, lack of nutritional security is also indicative of inequity, political apathy and poor governance. Expressing concern over starvation deaths and mismanagement, the NHRC in its order
24
dated 17 January, 2003 observed that ‘starvation deaths reported from some pockets of the country are now invariably the consequence of mis-governance resulting from acts of omission and commission on the part of public servants, they are of direct concern to the Commission under the provisions of the Protection of Human Rights Act, 1993.’ In People’s Union for Civil Liberties
25
case the Supreme Court notes, ‘Plenty of food is available, but
Page 70
distribution of the same amongst the very poor and the destitute is scarce and non-existent leading to malnutrition, starvation and other related problems.’
6.1.4 Domestic Standards for the Right to Clean Water
In domestic jurisprudence the right to clean water is increasingly being seen as part of the right to life. In the case of Attakoya Thangal vs Union of India,
26
the Supreme Court of India stated :
[T]he right to life is much more than animal existence and its attributes are manifold, as life itself. A prioritization of human needs and a new value system has been recognized in these areas. The right to sweet water, and the right to free air, are attributes of the right to life, for, these are the basic elements which sustain life itself.
It is evident from the manner in which right to food and clean water has evolved that a disability perspective is gradually being recognised and right to food is now not only seen important from the perspective of preventing disabilities, but it has also been recognised as an important right for those who have to live their lives with disability and in poverty. Availability and accessibility to clean water for persons with disabilities in rural areas, urban slums and difficult terrains have direct implications for the right to life, but the law has yet to sufficiently develop in this context.
6.2 Right to Adequate Housing and Shelter
Having a secure place to live is central to life with dignity. A safe and adequate living environment is essential to quality of life and it fosters physical and mental health as it enables participation in the community and the exercise of many social and cultural rights. Adequate housing not only meets the need for shelter from the elements, but also for physical security and personal privacy. Housing contributes to community life as a place for social events and for nurturing family and community relationships. Housing may also be essential to a family’s income as income-generation activities are sometimes based in the home. Emphasis on housing as an element of life related rights is particularly powerful when advocating for the rights of persons with disabilities.
6.2.1 International Standards
The Universal Declaration on Human Rights under Article 25(1) has emphasized that housing is essential to everyone as it forms part of living. It states that,
Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
The most comprehensive provision in respect of the enforceable right to adequate housing is found in Article 11(1) of the ICESCR, which states: ‘The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, to the continuous improvement of living conditions.’
Page 71
Adequate Housing
The CESCR, which monitors the implementation of the ICESCR, in its General Comment No. 4 entitled ‘the right to adequate housing’ sets out the minimum core obligations contained in Article 11(1) of the ICESCR that must be immediately fulfilled. These minimum core obligations define the concept of adequacy with respect to the right to housing. The Committee notes that ‘[a]dequate shelter means … adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at a reasonable cost.’
27
The CESCR highlights several particular housing issues that determine adequacy:
28
These are :
* legal security of tenure including legal protection against forced eviction, harassment and other threats;
* availability of services, materials, facilities and infrastructure including facilities and resources essential for health, security, comfort and nutrition;
* affordability including State housing subsidies and financing, as well as protection against unreasonable rent increases;
* habitability in terms of adequate space, protection from elements and threats to health, and physical safety of the occupants;
* accessibility to ensure that housing is available to those entitled to it, including ‘such disadvantaged groups as the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill …’ who ‘should be ensured some degree of priority consideration in the housing sphere’ and who should be taken into account in law and policy on housing;
* location which allows access to ‘employment options, health-care services, schools, child-care centres and other social facilities’; and
* cultural adequacy with attention to the way housing is constructed, building materials used, and housing policies that ‘enable the expression of cultural identity and diversity of housing.’
The Comment also states clearly that the right to adequate housing ‘applies to everyone.’ The enjoyment of the right to adequate housing must not be subject to any form of discrimination. The CESCR also highlights further the principle that the right to housing ‘cannot be viewed in isolation from other human rights.’ The full enjoyment of rights such as the right to freedom of expression, the right to freedom of association, the right to freedom of residence and the right to participate in public decision-making are indispensable to the realisation of the right to housing. The CESCR also states that ‘the right not to be subjected to arbitrary or unlawful interference with one's privacy, family, home or correspondence constitutes a very important dimension in defining the right to adequate housing.’
29
The CESCR’s emphasis on the inter-relatedness of the right to housing with other rights is particularly important for persons with disabilities, since adequate housing is a necessary condition to equal participation in the political, social, economic and cultural spheres of society. In cases where institutionalisation or full
Page 72
service care are the only forms of housing provided, there are barriers to participation inherent in the type of housing itself.
States Parties are required to take whatever steps are necessary to achieve the full realisation of the right to adequate housing. This ‘almost invariably require(s) the adoption of a national housing strategy’ which should ‘reflect extensive genuine consultation with, and participation by, all of those affected.’
30
Rule 5 of the Standard Rules also explicitly supports the participation of persons with disabilities in the development of policy related to access to the physical environment, including housing.
The right to housing as a component of an adequate standard of living is also included in the Article 14 of the CEDAW Convention, Article 27 of the CRC, and in the Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (Draft Convention on Disability, Article 23(2)).
The Vancouver Declaration on Human Settlements, 1976, also known as the Habitat I conference, in Section III (8) states that,
Adequate shelter and services are a basic human right which places an obligation on governments to ensure their attainment by all people, beginning with direct assistance to the least advantaged through guided program of self help and community action. Governments should endeavor to remove all impediments hindering attainment of these goals.
The Habitat Agenda, that came out of the Habitat II conference in Istanbul, Turkey in 1996 in Paragraph 61 states,
Within the overall context of an enabling approach, Governments should take appropriate action in order to promote, protect and ensure the full and progressive realization of the right to adequate housing.
Independent Living
Article 15 of the Draft Convention on Disability incorporates the ideas enshrined in other human rights instruments and says,
States Parties to this Convention shall take effective and appropriate measures to enable persons with disabilities to live independently and be fully included in the community, including by ensuring that:
1. 1) persons with disabilities have the equal opportunity to choose their place of residence and living arrangements;
2. 2) persons with disabilities are not obliged to live in an institution or in a particular living arrangement;
3. 3) persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance, necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; and
4. 4) community services for the general population are available on an equal basis to persons with disabilities and are responsive to their needs;
Integral to their right to housing is the right of persons with disabilities to live independently and be included in their communities. ‘Living independently’ does not necessarily refer to living alone or separate
Page 73
from family, but refers to independent choice about living arrangements. In many cases, persons with disabilities have been segregated from their communities and housed in institutions where they are vulnerable to human rights abuses.
This problem is also addressed in Principle 3 of the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, adopted by the UN General Assembly in 1991, which refers to independent choices related to living independently and participating in the community.
Access to Housing
Access to housing has wide range of implications, and from a disability standpoint the UN Standard Rules, Biwako Millennium Framework, and World Programme of Action concerning Disabled Persons of 1982(WPA) provide useful guidance.
Rule 5 of Standard Rules lists the range of measures that are necessary to ensure access by people with disabilities to physical infrastructure. These include development of standards and guidelines and enactment of legislation. The social institutions given priority include housing, streets and other outdoor environments.
Investments in the removal and prevention of architectural and design barriers are increasingly being justified on economic grounds, particularly in areas most critical to social and economic participation (e.g., transport, housing, education, employment, health care, government, public discourse, cultural and religious activities, leisure and recreation)
31
by persons with disabilities.
Article 23 (1) of the Draft Convention on Disability requires the States Parties to take measures to ‘ensure access by persons with disabilities to governmental housing programs, including through earmarking percentages of governmental housing for persons with disabilities.’
Accessible housing not only needs to be provided, information about it must also be made available to the disabled. Article 15(e) of the Draft Convention on Disability is relevant in this regard. It asks for ensuring that ‘persons with disabilities have access to information about available support services.’
Forced Eviction
Women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups, including persons with disabilities all suffer disproportionately from the practice of forced eviction. The CESCR has issued General Comment No. 7 on Forced Eviction, which defines ‘Forced Eviction’ as, ‘Permanent or temporary removal against the will of individuals, families or communities from their homes or land, which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.’
In the view of the Committee, forced evictions also occur in the name of development, in connection with conflict over land rights, development and infrastructure projects, land acquisition measures
Page 74
associated with urban renewal, housing renovation, city beautification programmes, unbridled speculation in land, etc.
Moreover, in view of the increasing trend in some states toward greatly reducing government responsibilities in the housing sector, the CESCR in General Comment No. 7 encourages States Parties to ensure that ‘legislative and other measures are adequate to prevent, and if appropriate punish, forced evictions carried out without appropriate safeguards by private persons or bodies.’
The UN Commission On Human Rights Resolution on Forced Evictions, to which India is a party also reaffirms that, ‘…the practice of forced eviction constitutes a gross violation of human rights, in particular the right to housing.’ It is interesting to note that the inclusion of forced evictions as one of the primary causes of international housing crises in the working paper on the right to adequate housing was done at the initiative of Mr. Rajinder Sachar, a former Chief Justice of the Delhi High Court, who chaired a UN Committee on forced evictions that drafted General Comment No. 7.
6.2.2 Domestic Standards
Constitutional Provisions
The right to residence and settlement has been pronounced as an extension of Articles 14 and 21 of the Constitution. In Chameli Singh vs State of U.P.
32
, the Supreme Court has observed that ‘the right to social and economic justice conjointly co-mingles with right to shelter as an inseparable component for meaningful right to life. In Shantistar Builders vs Narayan Khimalal Tortame
33
, the court remarked that ‘the right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in.’ In Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan
34
, the Court held that it is the duty of the State to provide housing for the urban poor, and provide adequate facilities and opportunities for settlement of life and erection of shelter over their heads to make the right to life meaningful, effective and fruitful.
Emphasising the need for a ‘suitable accommodation’, which is distinct from the concept of bare shelter, the Supreme Court
35
observes, ‘The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect - physical, mental and intellectual.’ The same conclusion is reiterated by the court in Chameli Singh vs State of U.P.
36
:
Shelter for a human being, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities.
Page 75
Indian society has viewed caring for disabled as an inseparable part of the family and community life. Examples of separate living arrangements in isolation from the mainstream are few and far between. To some extent the recent initiatives in law try to maintain this social harmony. For instance, the central object of the National Trust Act, 1999
37
is,
To enable and empower persons with disabilities to live as independently and as fully as possible within and as close to the community to which they belong.
The right to housing is one of the most troubled rights in the Indian jurisprudence; for the simple reason that though the right is well established in theory, the reality is far removed from it. Or perhaps, it may be more appropriate to say that there is a right to housing for some, it is non-existent for most. The dwelling units of about half of India’s population would be described unsuitable if assessed from the parameters set out by the Supreme Court.
Census of India 2001 Data on Housing
Although it is the duty of the State to provide housing for the urban poor
38
, the situation on ground is rather grim. According to the Census 2001 data
39
, 82 million of the total urban population of 285 million in India lives in slums and other low-income informal settlements. This means that about 30% of country’s urban population has little or no access to adequate housing and basic amenities. The situation in rural areas is even more dismal. This is a clear indication of human misery on a colossal scale.
In 1997, the housing shortage was estimated to be 13.66 million units. At present the housing shortage is estimated at 40.8 million. According to the Census 2001 data, Mumbai, the largest city in India, has a total population of 11.91 million, of which 5.83 million or 49% comprises of slum population. The capital city of New Delhi has a total population of 9.817 million, of which 18.9% or 1,854 million live in slums. Chennai, the largest city in South India has a population of 4.216 million, out of which, according to the Census 2001 data, the slum population is 0.747 million or about of 17.8%. City’s civil society organizations however counter this figure. According to them forty percent of city’s inhabitants live in slums. The population of the city of Kolkata is 4.58 million of which the official slum population is 1.49 million, which is 32.53% of the total population. The city has the highest density of population with 24,760 persons living per square km, which is an indicator of the overall degraded, overcrowded and congested living conditions within the city.
It is estimated that people with disabilities make up 15 to 20% of the poor population
40
. The WPA in Concerning Disabled Persons notes, ‘a high proportion of overburdened and impoverished families, and overcrowded and unhealthy housing and living conditions are responsible for the rising numbers of disabled persons and the relegation of disabled persons to the margins of society.’
Page 76
State Policies and Schemes on Housing
Inequitable economic and social policies have contributed to ever swelling population of people living in extreme poverty. Poor families often do not have sufficient income to meet their basic needs. Inadequate shelter, unhygienic living conditions, lack of sanitation and clean drinking water combined with poor access to health facilities characterize urban slums and dwelling units of rural poor.
The National Habitat and Housing Policy, 1998 of India in fact clearly establishes the seriousness of the problems of the poor and weaker sections. The Policy document states,
After fifty years of independence most of us still live in conditions in which even beasts would protest. … The situation is doubtless grim and calls for nothing less than a revolution – ‘A Housing Revolution’.
The Policy establishes the need for urgent action to ameliorate the housing needs of the urban poor through construction of houses for the low-income groups (LIG) and economically weaker sections (EWS). Towards this end, the policy agenda sets a target of construction of two million houses every year with emphasis on housing for the poor and deprived.
Recognising a high co-relation between disability and poverty, the Persons with Disabilities Act promotes mainstreaming disability in the poverty reduction schemes. Section 40 of the Act stipulates,
(A)ppropriate Governments and local authorities shall reserve not less than three per cent in all poverty alleviation schemes for the benefit of persons with disabilities.
As part of this strategy, the disability component is incorporated in a number of schemes. Prominent among these is the Indira Awas Yojana. The utilisation of this scheme by the rural disabled however has been insignificant. The gross under-utilisation can be attributed to procedural hurdles and lack of guidelines within the scheme regarding norms for building accessible houses. The Ministry of Urban Affairs has developed and circulated Model Building By Laws to all the State Governments and Union Territories. Barring the States of Karnataka, Rajasthan, Punjab and Delhi, others have yet to incorporate these to the existing building codes. Non-availability of accessible houses and lack of information to the rural poor may have added to the problem of under-utilisation, but the question remains how could the funds be allowed to lapse year after year, when the directions given by the Supreme Court clearly prohibit it. The apex court in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Others,
41
has held,
[W]hen the State, namely, Union of India or the appropriate State Government or the local bodies implement these schemes for housing accommodation of the Scheduled Castes and Scheduled Tribes or any other schemes, they should, in compliance with mandates of Articles 46, 39 and 38, annually provide housing accommodation to them within the allocated budget … and the budget allocation should not either be diverted or used for any other scheme meant for other weaker sections of the society.
The right to housing in Persons with Disabilities Act underscores the principle of de facto equality and allows for special measures. Whereas Section 40 promotes mainstreaming in the ongoing housing schemes for the poor, Section 43 mandates introduction of special schemes
42
. The latter section stipulates that,
The appropriate Governments and local authorities shall by notification frame schemes in favour of persons
Page 77
with disabilities, for the preferential allotment of land at concessional rates for – (a) house….
For the planning of positive measure schemes, the Persons with Disabilities Act envisages Central Coordination Committee in Government of India and State Coordination Committees at the level of States. Their functions and related matters are outlined from Sections 3 to 24. The main function of the Central Coordination Committee ‘shall be to serve as the national focal point on disability matters and facilitate the continuous evolution of a comprehensive policy towards solving the problems faced by persons with disabilities.’
43
The Committee is also required in Section 8(1)(c) to advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to disability. Similar functions are to be performed by the State Coordination Committee.
Theoretically, these mechanisms are in place and functional as well. But there are serious question marks on their efficacy. Mamta Kumari vs State of Bihar and Others
44
is a classic example illustrating the ground reality. In this case the court observes,
The lack of interest in implementing the Act, which specially takes care of disabled persons, can be seen as the inaction of the State Government in planning for the disabled. … The budget outlay, allotment and expenditure on persons with disabilities for 1993-2001 reveal that no programme in the State of Bihar ever took off.
The Indian judiciary rarely allows any concession when an entitlement is guaranteed under the law. In National Federation of Blind, U.P. vs State of U.P.,
45
the Allahabad High Court dismissed the respondents’ plea saying,
[T]he contention of the Lucknow Development Authority is that neither the State nor the Lucknow Development Authority has framed any Scheme and notified the Scheme, hence the handicapped persons cannot be given land or house on concessional rates. Such a contention cannot be accepted. It was the obligation of the State Government and all local bodies including the Development Authorities, to frame a Scheme and notify the same. If they had not done so, they cannot take advantage of their own wrong.
Although the right to adequate housing for persons with disabilities has evolved encompassing issues of availability, affordability, and accessibility, little protection against forced evictions is available to the disabled and poor segment of the population. The situation can be assessed from the following description of the demolition of a colony for persons with disabilities.
Demolition of Viklang Colony in Delhi too started with hardly any notice. Relocation was decided at Holambi Kalan, and when I visited Holambi Kalan I found it a god-forsaken dump with overflowing toilets, no electricity, no schools and mosquitoes everywhere. The eviction of the poor is truly an act of barbarism. All this despite housing being a fundamental right guaranteed under Article 21 of the Constitution, the pronouncements of the apex court, the International human rights law, and specific recommendations of treaty bodies against forced evictions.
Page 78
46
6.3 Right to Health
The right to health for persons with disabilities is often infringed as they have limited access to health services they require. They also do not benefit from available medical services because of assumptions about their quality of life and the belief that the health needs of persons with disabilities are limited to cure or improvement of their impairments. The reported incidences of selective non-treatment of persons with disabilities suggest that medical standards are differentially applied infringing their right to health and rehabilitation. Persons with disabilities are also particularly vulnerable to the negative social determinants of health: poverty, poor housing, unemployment, poor access, etc.
6.3.1 International Standards
The right to health is guaranteed in Article 12(1) of the ICESCR: ‘The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ Similar provisions are in the CEDAW Convention and the CRC:
CEDAW Convention, Article 12(1): States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
CRC, Article 24(1): States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
Two Rules of the Standard Rules relate directly to health: Rule 2 on medical care and Rule 3 on rehabilitation. Rule 2 focuses on equal quality of medical services for persons with disabilities, access to treatment or medicines necessary to improve levels of functioning, and adequate training of medical professionals. Rule 3 addresses the accessibility, design and content of rehabilitation programmes to meet the actual needs of persons with disabilities.
The Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care address issues related to the right to health in Principles 6-14 and 22. These principles cover confidentiality, role of community and culture, standards of care, treatment, medication, consent to treatment, notice of rights, rights and conditions in mental health facilities, and resources for mental health facilities.
The CESCR in General Comment No. 5 on persons with disabilities quotes the Standard Rules in indicating that the same level of medical care within the same medical system for persons with disabilities and persons without disabilities is a key element of the right to health. The CESCR interprets Article 12 of the ICESCR as a guarantee ‘to have access to, and to benefit from, those medical and social services … which enable persons with disabilities to become independent, prevent further disabilities and support social integration.’
47
The paragraph continues:
Similarly, such persons should be provided with rehabilitation services which would enable them ‘to reach and sustain their optimum level of independence and functioning.’ All such services should be provided in such a way that the persons concerned are able to maintain full respect for their rights and dignity.
Page 79
The CESCR’s approach to the right to health in the context of disability is important because it recognises the social determinants of health and is premised on the fundamental principles of human rights – that is, self-determination as informed consent, autonomy and dignity, freedom to receive treatment in appropriate manner, and the principle of participation for achieving greater independence. This connection between health status and the exercise of rights has significant implications for persons with disabilities.
The CESCR’s General Comment No. 14 on the right to health discusses the core obligations and elements of the right: availability, accessibility, acceptability and quality.
48
Non-discrimination is a key element of accessibility and the CESCR highlights the accessibility needs of vulnerable groups, including persons with disabilities. The CESCR stresses ‘the need to ensure that not only the public health sector but also the private providers of health services and facilities comply with the principle of non-discrimination in relation to persons with disabilities.’ Physical or mental disability is specifically mentioned as a prohibited ground of discrimination.
49
CEDAW General Recommendation No. 24 on women and health refers to the need to give special attention to the health needs and rights of women who belong to vulnerable and disadvantaged groups, including women with physical or mental disabilities.
50
With regard to women with disability it says:
Women with disabilities, of all ages, often have difficulty with physical access to health services. Women with mental disabilities are particularly vulnerable, while there is limited understanding, in general, of the broad range of risks to mental health to which women are disproportionately susceptible as a result of gender discrimination, violence, poverty, armed conflict, dislocation and other forms of social deprivation. States parties should take appropriate measures to ensure that health services are sensitive to the needs of women with disabilities and are respectful of their human rights and dignity.
51
The Committee on the Rights of the Child has issued a General Comment on adolescent health and development, General Comment No. 4. The Committee requires States to ‘adopt special measures to ensure the physical, sexual and mental integrity of adolescents with disabilities, who are particularly vulnerable to abuse and neglect.’
52
The Committee notes that systematic collection of data is necessary to be able to monitor the right to health, including data on adolescents with disabilities.
53
The Committee reaffirms that adolescents with mental and/or physical disabilities, ‘have an equal right to the highest attainable standard of physical and mental health.’ This obligates States Parties to:
1. (a) ensure that health facilities, goods and services are available and accessible to all adolescents with disabilities and that these facilities and services promote their self-reliance and their active participation in the community;
2. (b) ensure that the necessary equipment and personal support are available to enable them to move around, participate and communicate;
Page 80
3. (c) pay specific attention to the special needs relating to the sexuality of adolescents with disabilities; and
4. (d) remove barriers that hinder adolescents with disabilities in realizing their rights.
54
The Draft Convention on Disability
55
in Article 21 identifies key human rights issues related to the health and rehabilitation of persons with disabilities. The rights in the draft article address the quality and accessibility of services as well as the availability of a range of services, particularly rights related to:
* free and informed consent;
* prevention of unwanted medical and related interventions and corrective surgeries from being imposed on persons with disabilities;
* protection of the privacy of health and rehabilitation information; and
* participation in legislative and policy development as well as in the planning, delivery and evaluation of health and rehabilitation services
.
6.3.2 Domestic Standards
Constitutional Provisions
Articles 39(e), 41 and 42 of the Constitution of India, which fall under the Directive Principles of State Policy, deal with the right to ‘health’ and are theoretically non-justiciable. However, it is well settled through several judgements of the Supreme Court of India that the fundamental right to life, guaranteed under Article 21 of the Constitution, is an overarching right under which several necessary components of life-related rights are subsumed.
In Bandhua Mukti Morcha vs Union of India,
56
the Supreme Court has held that:
Right to live with human dignity enshrined in article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of article 39 and articles 41 and 42 and at least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and conditions of freedom and dignity … .
Similarly, in Consumer Education & Research Centre and Others vsUnion of India and Others,
57
the Supreme Court of India has held, ‘The expression ‘life’ assured in article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of life, hygienic conditions in work place and leisure.’ The Court has interpreted the right to health as ‘an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour.’
Page 81
58
The jurisprudence of personhood or the philosophy of the right to life envisaged in the Indian Constitution includes within its sweep human personality in its full blossom with invigorated health, especially of the workers to secure the dignity and autonomy of the person
59
. The Supreme Court in C.E.S.C. Ltd. vs Subhash Chandra Bose
60
has given a wider meaning to the concept of health, saying ‘Health is a state of complete physical, mental and social well being and not merely the absence of disease or infirmity.’ Upholding the right to health of workers, in the light of Articles 22 to 25 of the Universal Declaration of Human Rights, the ICESCR, and socio-economic justice assured in the Constitution, the Court held, ‘right to health is a fundamental human right to workmen.’
Right to Health of Workers
Right to health assumes far greater importance in the context of workers and there are a number of specific enactments to this effect, for example the Workmen’s Compensation Act, 1923 and Employees State Insurance Act, 1948. In the Persons with Disabilities Act, 1995 too the provisions are of significant relevance for the health and safety of workers with disability. Section 38 (1)(d) stipulates:
(1) The appropriate Governments and local authorities shall by notification formulate schemes for ensuring employment of persons with disabilities, and such schemes may provide for …(d) health and safety measures and creation of non-handicapping environment in places where persons with disabilities are employed.
Section 67 enjoins:
1. (1) The appropriate Government shall by notification frame an insurance scheme for the benefit of its employees with disabilities.
2. (2) Notwithstanding anything contained in this section the appropriate Government may instead of framing an insurance scheme frame an alternative security scheme for its employees with disabilities
Right to Health of Women and Children
For women and children, the right to health came into focus after independence. The most significant enactment highlighting this trend is the Maternity Benefit Act, 1961. In addition, a wide range of programmes and schemes have been put in place including the establishment of the Department of Women and Child, which administers the Integrated Child Development Scheme (ICDS). However, the reach of these schemes remains limited for children and women with disabilities as the overarching purpose of these schemes is to prevent the causes of disability
Page 82
with virtually no regard to the health needs of women and children with disabilities. Persons with Disabilities Act, 1995 in Chapter IV, entitled Prevention and Early Detection of Disabilities, exemplifies the same perspective.
Mental Health
Since the bio-centric approach to disability equates disability with disease, abnormality and danger, the law and practice in the area of health grounded on this approach generally aim towards prevention of disability and conditions in which treatment to cure disability is to be administered. Mental Health Act of India is a classic example of this approach but a positive aspect of this enactment is that it promotes dignity, autonomy, and respect of individual receiving treatment in line with constitutional provisions.
For example, Article 47 of the Constitution inter alia prohibits ‘consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.’ Drawing from this provision of the Constitution, the Mental Health Act, 1987 in Section 81 stipulates that,
# 1) “No mentally ill person shall be subjected during treatment to any indignity (whether physical or mental) or cruelty
# . 2) No mentally ill person under treatment shall be used for purposes of research, unless-
(i) such research is of direct benefit to him for purposes of diagnosis or treatment, or
(ii)Such person, being a voluntary patient, has given his consent in writing or where such person (whether or not a voluntary patient) is incompetent, by reason of minority or otherwise, to give valid consent, the guardian or other person competent to give consent on his behalf, has given his consent in writing, for such research.”
It is a well-known fact that mental health institutions in India continue to rely on Electro-convulsive therapy (ECT), which is banned in most countries. In S.P. Sathe vs State of Maharashtra,
61
the Bombay High Court regulated the prescription of indiscriminate electric shocks to mentally ill persons.
Conditions in the mental health institutions have been the focus of several ‘soft law’ international instruments, such as the MI Principles. However, the Mental Health Act, 1987 does not lay down specific guidelines to ensure minimum standards in the mental health institutions. As a consequence, a number of public interest litigations have been filed by concerned citizens and organisations drawing attention of the Supreme Court to the appalling conditions that generally prevail in the mental health institutions.
In Rakesh Chandra Narayan vs State of Bihar,
62
the Supreme Court found the conditions in the Ranchi Mental Hospital to be shocking and inhuman and therefore appointed a committee to ensure proper functioning and management of funds. The Court also gave directions for the mental health institutions to be modeled on the lines of NIMHANS at Bangalore. Similarly, in S.R Kapoor vs Union of India
63
the Supreme Court recommended that the hospital management be taken over by Union of India from the Delhi Administration.
The NHRC is mandated under Section 12 of the Protection of Human Rights Act, 1993 to visit Government run mental hospitals and study the living conditions of the inmates and make recommendations thereon. The most notable intervention of the NHRC in mental health has been a project on Quality Assurance in Mental Health launched in 1997 to analyse the conditions generally prevailing in Government run mental hospitals in various parts of the country with reference to infrastructure, patient care, admission, discharge and appeal procedure, rehabilitation facilities, client satisfaction and morale of the staff. The project report ‘Quality Assurance in Mental Health’, with comprehensive
Page 83
recommendations was circulated by the Commission to the Health Secretaries of all the States and Union Territories.
The National Health Policy, 2002 of the Government of India also draws from the jurisprudence and guidelines established by the NHRC. The policy recognises that mental health disorders are actually much more prevalent than is apparent on the surface and mental health institutions are woefully deficient in physical infrastructure and trained manpower. The Government envisages a network of decentralized mental health services for ameliorating the more common categories of disorders
64
.
The right to health and access to medical services for persons with mental illness has evolved to some extent. However, the law is relatively underdeveloped as far as a broader right to health for persons with disabilities is concerned. For example, questions of availability, affordability, acceptability and accessibility of health services, and participation in planning of health policies by persons with disabilities have yet to form an important part of National and State health policies and programmes and related arrangements for the delivery of health services.
Prevention of Disability
The law in its present form only exemplifies a narrow understanding of the right to health with emphasis on prevention, cure, improvement or elimination of disability, which in any case are conditions that generally exist before the onset of disability and therefore, have no logical connection to the rights of those who are disabled. For example, Section 25 of the Persons with Disabilities Act, 1995, states as follows:
Within the limits of their economic capacity and development, the appropriate Governments and the local authorities, with a view to preventing the occurrence of disabilities, shall,
1. (a) undertake or cause to be undertaken surveys, investigations and research concerning the cause of occurrence of disabilities;
2. (b) promote various methods of preventing disabilities
3. ; (c) screen all the children at least once in a year for the purpose of identifying ‘at-risk’ cases;
4. (d) provide facilities for training to the staff at the primary health centres;
5. (e) sponsor or cause to be sponsored awareness campaigns and disseminate or cause to be disseminated information for general hygiene, health and sanitation; (f) take measure for pre-natal, peri-natal and post-natal care of mother and child;
6. (g) educate the public through the pre-schools, primary health centres, village level workers and anganwadi workers; and
7. (h) create awareness amongst the masses through television, radio and other mass media on the causes of disabilities and the preventive measures to be adopted.
Examples of restrictive jurisprudence reflect the tendency of viewing right to health for people with disabilities from the narrow concerns of preventing disability. In Indian Council of Legal Aid & Advice vs Union of India and others,
65
the appellant filed a writ petition before the Delhi High Court to draw up a scheme for compulsory periodic medical examination and treatment of all blind students who were
Page 84
inmates of various blind schools in the capital. Since the Ministry of Welfare, Government of India already had introduced a scheme named ‘Periodical Check-up and Treatment of Visually Handicapped Persons’, the Court directed the State Governments to adopt and implement this scheme (in the schools for blind children).
By emphasising the introduction of the scheme to the schools of the disabled rather than ensuring periodic check up of all the school children in accordance with Section 25(c) of the Persons with Disabilities Act, the court ended up compromising the intention of the legislature to some extent. .
In conclusion, one can say that the State’s concern for creating conditions in which persons can lead their lives free from disability and its life-long implications are very well provided through the legal and administrative initiatives. But the issue of the enjoyment of right to health without discrimination by the already disabled people has yet to be addressed by the lawmakers, the courts and the executive. Although sufficient guidance is available from the monitoring bodies of the international conventions and the Standard Rules in particular, the need at the moment is their creative use and application.
6.4 Right to Education
Education is a social right that is intimately connected to the exercise of many other human rights. For example, education is important for the enjoyment of the right to work, right to political participation, and for the exercise of right to culture. Education supports greater autonomy and freedom of participation in all aspects of society.
Failure to access education and training prevents the achievement of economic and social independence and increases vulnerability to poverty leading to what can become a self-perpetuating, inter-generational cycle.
66
6.4.1 International Standards
Right of Everyone to Education
The right of every child to education is proclaimed in the Universal Declaration of Human Rights and has been forcefully reaffirmed by the World Declaration on Education for All. This right is also recognised in Article 13(1) of the ICESCR, which says, ‘The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms.’
The CEDAW Convention also addresses the gender-based discrimination in relation to education and enjoins State Parties to ensure that the women and girls receive education on the basis of equality with men. Article 10 of the Convention says: ‘States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education…’ The CRC addresses education in two articles: Article 28, which focuses on access to education and Article 29 about the aims and content of education. In the context of children with disabilities, Article 23 places a clear
Page 85
obligation on the States Parties ‘to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.’
The Committee on the Rights of the Child in General Comment No. 1, outlines the functions of Article 29(1), in which it ‘emphasizes the indispensable interconnected nature of the Convention’s provisions.’ It establishes that ‘Article 29 (1) is much more than an inventory or listing of different objectives which education should seek to achieve.’ It makes an encompassing analysis of the right to education, which takes within its sweep the provisions listed in Article 23 for children with disabilities.
Inclusive Education
For the education of children with special needs, regular schools with inclusive orientation are perceived most effective means of combating discriminatory attitudes, creating welcoming communities, building an inclusive society, and improving the efficiency and cost-effectiveness of the entire education system
67
.
The WPA is grounded on the principle of full participation of persons with disabilities in all aspects of social and economic life, meaning that issues concerning persons with disabilities should not be treated in isolation, but within the context of normal community services. The concept of integrated or inclusive education has drawn strength from the principle set out in the WPA.
While laying down obligations of the States, the Rule 6 of Standard Rules calls for the recognition of the principle of equal primary, secondary and tertiary educational opportunities for children, youth and adults with disabilities in integrated settings.
An emphasis on education in an inclusive setting is also found in the UNESCO Salamanca Statement and Framework for Action on Special Needs in Education, which was adopted by the World Conference on Special Needs Education held in 1994. Representatives of ninety-two governments and twenty-five international organizations met to discuss the promotion of inclusive education for all. The Statement reaffirms the right to education for all and recognizes ‘the necessity and urgency of providing education for children, youth and adults with special educational needs within the regular education system.’ (para. 1) This principle of inclusive education was restated at the World Education Forum (Dakar, Senegal, 2000).
Stating the preconditions of integrated education, the Rule 6 of Standard Rules prioritizes the provisions of interpreter, adequate accessibility and support services designed to meet the needs of persons with different disabilities. It also encourages the States to adopt a clearly stated policy, understood and accepted at the school level and by the wider community, and having the provision for curriculum flexibility, addition and adaptation; availability of quality materials, ongoing teacher training and support teachers.
Reiterating the principle of integrated education laid down in Rule 6 of Standard Rules, the CESCR in its General Comment No. 5 on persons with disabilities, says, ‘in order to implement such an approach, States
Page 86
should ensure that teachers are trained to educate children with disabilities within regular schools and that the necessary equipment and support are available to bring persons with disabilities up to the same level of education as their non-disabled peers.’ The Committee also recommends that, ‘in the case of deaf children, for example, sign language should be recognized as a separate language to which the children should have access and whose importance should be acknowledged in their overall social environment.’ (para. 35)
The UNESCO Salamanca Statement also promotes the principle of ‘continuum of support and services to match the continuum of special needs encountered in every school.’ Likewise, the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region established the following target,
Inclusion, by 1997, of girls and boys and women and men with disabilities in all policies, plans and programmes to ensure Education for All, with adequate financial allocations as well as appropriate technical and human resources (including Braille textbooks, education material in audio, visual and other [e.g., large print] formats, indigenous sign language, appropriate assistive devices, physical access and support staff).
The Draft Convention on Disability in Article 17 requires that, as an element of the right to education, States ensure:
the provision of required support, including the specialised training of teachers, school counsellors and psychologists, an accessible curriculum, an accessible teaching medium and technologies, alternative and augmentative communication modes, alternative learning strategies, accessible physical environment, or other reasonable accommodations to ensure the full participation of students with disabilities.
Specialized Interventions in Separate Settings
The move towards integrated or inclusive education over the last thirty years has gained momentum. At the same time however, there is also a clear recognition that some children with disabilities may require specialised interventions in separate settings. For example, Rule 6 of Standard Rules acknowledges that in some instances special education may currently be considered the most appropriate form of education for some students with disabilities. Safeguarding the interests of those in the special schools, this rule lays down that,
The quality of such education should reflect the same standards and ambitions as general education and should be closely linked to it. At a minimum, students with disabilities should be afforded the same portion of educational resources as students without disabilities.
The Salamanca Statement also provides for separate education but with sufficient safeguards to ensure that separation from the general education system of children with disabilities is used as an exception. According to it,
Assignment of children to special schools - or special classes or sections within a school on a permanent basis - should be the exception, to be recommended only in those infrequent cases where it is clearly demonstrated that education in regular classrooms is incapable of meeting a child’s educational or social needs or when it is required for the welfare of the child or that of other children.
The CESCR has issued a General Comment on education: General Comment No. 13. The Comment makes a mention of separate education systems (para. 33), but with a word of caution that this should not detract from the overall emphasis on inclusion. Quinn and Degener
68
stress this point stating that:
Page 87
While the Committee concedes in General Comment No. 13 that ‘[i]n some circumstances, separate educational systems or institutions for groups defined by the categories in article 2 (2) shall be deemed not to constitute a breach of the Covenant,’ this concession is best interpreted in the light of the clear affirmation by the Committee in General Comment No. 5 that persons with disabilities are best educated in an integrated educational system. (p.102)
The Draft Convention on Disability, while drawing on preceding instruments and the output of treaty bodies, allows for special and alternative forms of education and provides: ‘Where the general education system does not adequately meet the needs of persons with disabilities special and alternative forms of learning should be made available. Any such special and alternative forms of learning should reflect the same standards and objectives provided in the general education system’ (Article 17)
The programmes of education are delivered in a variety of ways deploying face-to-face, distance mode, and IT mediated interactive systems. According to their preference, individual circumstances and means, members of the society opt for the one or the other model. However, freedom of choice in this regard has remained restricted for persons with disabilities. The WPA, Proclamation on the Full Participation and Equality of People With Disabilities in the Asian and Pacific Region, Standard Rules and Salamanca Statement unequivocally promote the principle of participation, autonomy and dignity in clear terms with reference to educational placement.
The WPA recognizes that persons with disabilities ‘have the same right to education as non-disabled persons and they require active intervention and specialized services.’ The Salamanca Statement and Framework for Action on Special Needs Education states, ‘every person with a disability has a right to express her/his wishes with regard to her/his education, as far as this can be ascertained. Parents have an inherent right to be consulted on the form of education best suited to the needs, circumstances and aspirations of their children.’ In this respect the Standard Rules places parent groups and organizations of persons with disabilities center stage in the education process at all levels. Similarly, Proclamation on the Full Participation and Equality of People With Disabilities in the Asian and Pacific Region lays down a target saying, ‘By 2002, at least 75 per cent of all children and adults with disabilities should be able to participate in formal and non-formal education programmes on an equal basis with their non-disabled peers and through progressive enrolment, together with the appropriate support services.’
Similar treatment of inherently different people has been found inappropriate from the perspective of equality. This notion is clearly reflected in the 2004 report of the Special Rapporteur on Education appointed by the UN Commission on Human Rights, which includes a short section titled ‘Segregation or inclusiveness, identical or preferential treatment?’ in which children with disabilities are mentioned.
The CESCR in General Comment No. 13 (para.6) elaborates on the four main elements of the right to education: availability, accessibility, acceptability and adaptability. These parameters are useful in assessing whether the education has acquired capacity to respond to the needs of learners with disability. For an inclusive society it is important that all systems, services and procedures remain within the reach of all members. The Salamanca Statement expresses it in the following terms,
Every child has unique characteristics, interests, abilities and learning needs, … education systems should be designed and educational programmes implemented to take into account the wide diversity of these characteristics and needs, and those with special educational needs must have access to regular schools
Page 88
which should accommodate them within a child centred pedagogy capable of meeting these needs.
In fact non-provision for different learning needs is now perceived discriminatory. The Committee on the Rights of the Child in General Comment No.1 (para 10) notes that ‘discrimination against children with disabilities is also pervasive in many formal educational systems and in a great many informal educational settings, including in the home.’ Prohibiting such discrimination the Committee states, in the same comment and para, ‘all such discriminatory practices are in direct contradiction with the requirements in Article 29(1)(a) that education be directed to the development of child's personality, talents and mental and physical abilities to their fullest potential.
The CESCR in General Comment No. 13 (para 57) emphasises non-discrimination as part of the minimum core obligation for the implementation of the right to education. The General Comment (para 32) also indicates that special measures may be required to realize the right to education for disadvantaged groups.
Domestic Standards
Constitutional Provisions
The Constitution of India not only recognizes right to education but also emphasises its importance for the vulnerable and weaker sections. For instance, Article 41 of the Directive Principles says,
the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
Article 46 commands that
the State shall promote with special care of the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes... .
Over the last fifty years, right to education has evolved in India, inspired by a host of factors including judicial interpretations, enactment of special laws and amendment to the Constitution. For example, with the Eighty-Sixth Amendment, the right to free and compulsory education has become a fundamental right. Originally, this right was a part of the Directive Principles under Article 45. Other noteworthy aspect of this amendment is that the fundamental right to education has been arranged as an extension of the right to life, as Article 21A, which says,
The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.
In a number of cases, the Supreme Court of India has considered the right to education as an important facet of right to life. In Mohini Jain v. State of Karnataka
69
, the Supreme Court held, ‘the right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education.’ Similarly, a five-Judge Constitutional Bench of the Supreme Court in Unnikrishnan J.P.and Others vs State of Andhra Pradesh and Others, Union of India
70
held, ‘the right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the Directive Principles in Part IV of the Constitution.’ In this case the Court had
Page 89
the occasion to also examine the extent to which claim to free education can be ascertained. The Court clarified that, ‘(a) every child/ citizen of this country has a right to free education until he completes the age of fourteen years, and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development.’
Right to Education of Children with Disabilities
Section 26 of Persons with Disabilities Act binds Indian State to provide free education to children with disability up to eighteen years of age, which is four more years than for non-disabled children. This section stipulates,
‘Appropriate Governments and local authorities shall –
Ensure that every child with a disability has access to free education in an appropriate environment till he attains the age of eighteen years’
In the case of National Federation of the Blind vs Government of NCT of Delhi and Others
71
, the Delhi High Court has held that ‘…the purposes of the act would be defeated if free education is provided only up to class 10 and not up to the age of 18 years. Since in the latter age, he/she may be able to complete the school education up to class 12.’ The Court, therefore, struck down a rule laid down by National Capital Territory of Delhi.
The Eighty Sixth Amendment has brought another important facet of education, i.e. early or pre-school education under the constitutional framework. The amended text of Article 45 reads,
The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
This provision is of particular relevance for children with disabilities. These amendments are not only important from the perspective of an individual right but they have enlarged the scope of duties both for the State and citizens. The duties of citizens outlined in Article 51A of the Constitution now also include the following:
It shall be the duty of every citizen of India-
(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.
From the standpoint of persons with disabilities the provisions outlined in Chapter V of the Persons with Disabilities Act, 1995 entitled ‘Education’ are of great significance. The Act not only guarantees free education up to the age of eighteen years in an appropriate environment but also casts a positive duty on the appropriate Governments to promote integrated education as well as special schools. Section 26 of the Persons with Disabilities Act, 1995 stipulates,
The appropriate Governments and the local authorities shall:
1. (a) ensure that every child with a disability has access to free education in an appropriate environment till he attains the age of eighteen years;
2. (b) endeavour to promote the integration of students with disabilities in the normal schools;
3. (c) promote setting up of special schools in Government and private sector for those in need of special education, in such a manner that children with disabilities living in any part of the country have access to such schools; and
Page 90
4. (d) endeavour to equip the special schools for children with disabilities with vocational training facilities.
Recognizing that persons with disabilities must have equal access to all forms of education through a variety of models, Section 27 of the Act lays down,
The appropriate Governments and the local authorities shall by notification make schemes for-
1. (a) conducting part-time classes in respect of children with disabilities who having completed education up to class fifth and could not continue their studies on a whole-time basis;
2. (b) conducting special part-time classes for providing functional literacy for children in the age group of sixteen and above;
3. (c) imparting non-formal education by utilizing the available manpower in rural areas after giving them appropriate orientation;
4. (d) imparting education through open schools or open universities;
5. (e) conducting classes and discussions through interactive electronic or other media; and
6. (f) providing every child with disability free of cost special books and equipments needed for his education.
In this respect, the Act is modeled on human rights approach and entitles persons with disabilities to all such measures that are necessary for the effective enjoyment of their right to education. First of all, the Act recognizes that trained manpower be made available for special schools and integrated schools for children with disabilities. In this respect Section 29 casts a duty on the appropriate Governments to,
(S)et up adequate number of teachers training institutions and assist the national institutes and other voluntary organisations to develop teachers' training programmes specialising in disabilities so that requisite trained manpower is available for special schools and integrated schools for children with disabilities.
A simple reading of Sections 30 and 31 of the Persons with Disability Act affirms the faith of Indian legislature on the introduction of positive special measures to overcome inequalities and discrimination which persons with disability encounter when the education system and related mechanisms fail to recognize and provide for special needs of children with disabilities. On a number of occasions the Supreme of Court of India has justified introduction of special measures to guarantee de facto equality. Elaborating on this principle, Hon’ble Justice Krishna Iyer in Dr. Jagadish Saran and others vs Union of India
72
has held, ‘even apart from Article 15(3) and (4), equality is not degraded or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit.’
Sections 30 and 31 outline the special measures to create the concept of appropriate educational environment guaranteed in Section 26.
Section 30 states,
Without prejudice to the foregoing provisions, the appropriate Governments shall by notification prepare a comprehensive education scheme which shall make provision for :
1. (a) transport facilities to the children with disabilities or in the alternative financial incentives to parents or guardians to enable their children with disabilities to attend schools;
Page 91
2. (b) the removal of architectural barriers from schools, colleges or other institutions imparting vocational and professional training;
3. (c) the supply of books, uniforms and other materials to children with disabilities attending school;
4. (d) the grant of scholarship to students with disabilities;
5. (e) suitable modification in the examination system to climate purely mathematical questions for the benefit of blind students and students with low vision
6. ; (f) restructuring of curriculum for the benefit of children with disabilities; and
7. (g)restructuring the curriculum for the benefit of students with hearing impairment to facilitate them to take only one language as part of their curriculum.
Section 31 states,
All educational institutions shall provide or cause to be provided amanuensis to blind students and students with low vision.
Although the Act catalogues a comprehensive range of measures necessary to allow equal participation in all aspects of an educational pursuit, the disabled continue to face numerous obstacles on account of a negative mindset and poor information about the Act itself. For example, one Anka Toppo
73
, aggrieved on being denied the right to take the examinations for MBBS final year on losing sight by the All India Institute of Medical Sciences (AIIMS), approached the NHRC. The Respondent was of the opinion that ‘in view of the severe visual loss suffered by Shri Toppo, it would not be possible for him to work in the medical profession.’ After great persuasion by the NHRC and on exposing the Respondent to numerous examples of blind people successfully pursuing medical profession, the Respondent finally agreed to take steps to examine the petitioner for the MBBS course by offering a modified methodology of examination. In the light of the experience of this case the NHRC at its sitting on 28 May 2001 expressed the view that the Medical Council of India should perform a similar exercise so that the same facility and system is available in other medical institutions of the country as well.
National Association for the Blind & Others vs Central Board of Secondary Education & Others
74
is another landmark case in which the Delhi High Court directed to ‘grant an extra hour to blind students (appearing for a written examination): meaning thereby that they shall be given 4 hours instead of 3 hours given to normal students.’ Respondent No.1 was also directed to permit the school from which a blind candidate is to appear to choose amanuensis, subject to observance of the relevant rules. Due to paucity of time, the Court did not allow the prayer in respect of modification of the mathematics paper and supply of question papers in Braille. However, it directed that ‘so far as the future examinations are concerned, proper curriculum and examination system shall be fixed keeping in view the objectives of the Act.’
In keeping with the idea that placement of children in schools should be decided by the parents in the best interests of the child the Persons with Disabilities Act in Section 30(e) requires that the appropriate governments and authorities shall inter alia set up
appropriate fora for the redressal of grievances of parents regarding the placement of their children with disabilities.
Page 92
Section 39 of the Persons with Disabilities Act imposes yet another positive obligation on the State by mandating ‘all Government educational institutions and other educational institutions receiving aid from the Government,’ to ‘reserve not less than three per cent seats for persons with disabilities.’ This section of Persons with Disabilities Act remained under controversy for sometime by its placement under the Chapter on Employment, instead of Education. Finally, the Supreme Court in All Kerala Parents Association vs State of Kerala
75
, while settling this issue said that the inclusion of the Section 39 under the chapter on employment is due to an error in drafting and affirmed that reservation of 3% of available seats in government educational institutions for students with disabilities should be applied.
There has been some confusion about who would constitute an ‘educational institution receiving aid’ from the government within the context of reserving 3% seats for persons with disabilities. In Social Jurist v. Government of National Capital Territory of Delhi & Others
76
, the High Court of Delhi has taken a broad view while defining ‘aid’ and has held that the land received on concessional rate to establish a social institution would constitute aid by the Government. The court directed the Delhi Development Authority (DDA) to take ‘appropriate action’ against 265 ‘recognized, private unaided’ schools in the Delhi region, which had been allotted land by the DDA at concessional rates on condition they reserve a 25% freeships quota for disadvantaged children, for breach of that condition.
Undoubtedly, the right to education has been elaborated from a human rights perspective in the Persons with Disabilities Act. There are numerous examples of positive jurisprudence as well. One of the difficulties that could be attributed to the full realization of the right to education is the stringent criteria by which access to an entitlement is subject to a disability certificate awarded by a medical board. In that respect, the Persons with Disabilities Act is obsolete and reflects a bio-centric approach.
Similar criteria also disadvantage many other members of the weaker sections. In a PIL Social Jurist vs Union of India and others
77
, the petitioner pointed out that admissions were denied on irrelevant grounds like non-availability of birth certificate, non-availability of ration card, non-availability of affidavit of date of birth duly attested by the executive magistrate, non-availability of disability certificate in the case of disabled child, etc. The view taken by the Respondent, i.e. the Government and the Court only reflects the entrenched understanding based on a bio-centric model, which tends to see disability within the confines of the body of an individual. The medical criteria are used for gate keeping and as a means to check corruption. The following reference from the Social Jurist vs Union of India
78
case presents a graphic description of such an approach.
An affidavit has been filed by Shri S.C. Poddar, District Education Officer, Govt. of NCTD in which it is pointed out that it is proposed to amend the Delhi School Education Rules, in cases where it is not possible to get an affidavit regarding age of a child, the head of the school shall refer the child to the nearest Civil Hospital having facilities for determination of age and in the admission form of the child the midpoint of the suggested age on the basis of the test will be recorded. … We are of the view that in the given circumstance, the amendments to the rules as suggested by the respondents is the best solution of the problem highlighted by the petitioner in this writ petition.
Page 93
The right to education for persons with disabilities has evolved incorporating new approaches to disability. The instruments adopted by the UN and its bodies, and the Government of India have elaborated the content of this right from the perspective of human rights and the lived experience of disability. For better appreciation of the right to education and its ramifications, a reading of WPA, Standard Rules, Salamanca Statement, Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region including its targets and recommendations may prove fruitful. These instruments can be relied upon in ensuring full and effective realization of the right to education by persons with disabilities. They offer useful guidance both for the holders of rights and those who have co-related duties.
6.5 Linguistic Rights
6.5.1 International Standards
Language is an important element of the right to culture. While linguistic rights are not mentioned in the ICESCR, Article 27 of the International Covenant on Civil and Political Rights states that where ethnic, religious or linguistic minorities exist, ‘persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.’
Freedom to express oneself in one’s own language or communication system is an important component of linguistic rights. Protection and promotion of linguistic rights involves recognition of distinct languages and scripts, including those used by the members of minority communities.
The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities enjoins in Article 1(1) that, ‘States shall protect the existence of the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.’
For persons with disabilities it means recognition of sign language for the deaf, Braille for the blind, finger Braille for deaf blind, and so on. The Biwako Millennium Framework has identified access to information and communication as one of the seven priority policy areas for action. The framework encourages that
Governments should develop and coordinate a standardized sign language, finger Braille, tactile sign language, in each country and to disseminate and teach the results through all means, i.e. publications, CD-ROMs, etc.
Rule 5 of the Standard Rules addresses accessibility of information and communication by emphasizing, ‘Braille, tape services, large print and other appropriate technologies should be used to provide access to written information and documentation for persons with visual impairments.’ It also calls for the consideration of sign language in the education of deaf children and encourages sign language interpretation services for facilitating communication between deaf persons and others. Similarly, for persons with auditory impairments or comprehension difficulties, it recommends use of appropriate technologies. The Salamanca Statement and Framework for Action on Special Needs Education underlines the importance of sign language as the medium of education for the deaf and encourages the States to ensure that all deaf persons have access to education in their National Sign Language.
The Draft Convention on Disability suggests a stronger commitment to the rights of persons who are deaf and
Page 94
clearly situates their communication issues in terms of linguistic rights. Article 24 as drafted by the Working Group states: ‘Persons who are deaf shall be entitled, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity.’
Linguistic rights assume importance not only in the context of culture; their intrinsic connection with other rights is significant as well. This also demonstrates the interdependence of rights; and several references to sign language, Braille, and other alternative modes of communication in the draft text of the Convention highlight this fact. For instance, it says the following:
Article 13: States Parties shall take appropriate measures to ensure that persons with disabilities can exercise their right to freedom of expression and opinion through Braille, sign language, and other modes of communication.
Article 17(4): States Parties shall ensure that children with sensory disabilities may choose to be taught sign language or Braille, as appropriate, and to receive the curriculum in sign language or Braille.
Article 19(2): States Parties shall also take appropriate measures to
* provide in public buildings and facilities signage in Braille and easy to read and understand forms; and
* provide other forms of live assistance and intermediaries, including guides, readers and sign language interpreters, to facilitate accessibility to public buildings and facilities.
Article 10(2): States Parties shall ensure that if persons with disabilities are deprived of their liberty, they are, … (b) provided with adequate information in accessible formats as to the reasons for their deprivation of liberty.
6.5.2 Domestic Standards
The Constitution of India in Article 29(1) recognizes ‘Any section of the citizens residing in the territory of India or any part thereof, having distinct language, script or culture of its own shall have the right to conserve the same.’
Braille
In recognition of Braille as a popular script used by blind persons, the Government of India standardized the Bharatiya Braille Code enabling transcription of all Indian languages in Braille script. The standardization of Braille has also proved useful in facilitating communication among blind persons residing in various parts of India, which was not possible earlier.
The Persons with Disabilities Act, 1995 under the chapter on education provides the availability of all educational materials in Braille, etc. It is another matter that Braille books are not available on the shelf and they often reach the blind students quite late through a cumbersome procedure. Any revision in the curriculum and textbooks further complicates the problem. In 1998, the All India Confederation of the Blind filed a writ petition
79
in the Supreme Court seeking direction to ensure availability, in Braille, of all textbooks according to the revised syllabus of NCERT to the visually impaired students without delay.
Page 95
In its interim order dated 28.10.2003, the Court directed ‘considering the fact that schools will reopen in May, 2004 it would be appropriate that text-books be made available latest by 31st March, 2004 and not later.’
Sign language
Unlike Braille, the Persons with Disabilities Act does not recognise sign language as a medium of education for the deaf. In this respect, the Act falls short of International norms in the education of deaf children, as provided under Standard Rules and Salamanca Statement.
Linguistic research during the past thirty years has demonstrated that existing sign languages meet all the requirements of human communication. Sign languages have been defined from a linguistic viewpoint as languages, and those using sign languages have been defined as a linguistic minority. The Ethnologue – world’s most comprehensive database of the world’s languages – has catalogued some 6,700 spoken languages and 114 sign languages. Sixty-three sign languages, systems and dialects, and references have been catalogued by Thomas R. Harrington of the Gallaudet University Library
80
. Some, 177 sign languages, dialects, and other sign systems are in use currently. It’s interesting to note that sign languages are listed at par with spoken languages. The importance of Sign Language for the deaf has gained momentum across the globe. Some thirty countries have accorded Sign Language the status of an official language of the deaf and some sixty countries are in the process of standardizing National Sign Language.
81
The Indian deaf community has also asserted their right to a standard sign language. The Delhi Association of the Deaf has filed an application before the NHRC
82
, alleging that in India there are a number of sign languages in use and these languages differ from place to place and are quite inadequate in meeting the educational requirements of the deaf children. Therefore, it is important to develop a Standard Sign language to meet the educational, training and employment needs of the deaf people. After investigating the status of sign languages for deaf children in India, the NHRC is convinced that a child-centered sign language is an important element of the right to education. For its development and popularization, the Commission believes collaborative action by the Government, linguists, deaf persons and their families, and interpreters is essential.
India is a signatory to the Biwako Millennium Framework, which encourages development of a standard sign language by the year 2005, therefore, the Commission perceives this as a Constitutional obligation under Article 51 as well. It is hoped that the move towards the new international convention on the theme of disability would provide a fresh impetus towards the protection of unique linguistic rights of persons with disabilities.
6.6 Access to Places of Entertainment, Sports and Culture
6.6.1 International Standards
Equal participation in the cultural life of one’s own community promotes an inclusive society that encourages full participation of persons with disabilities. Participation in entertainment, sports and cultural activities
Page 96
is an aspect of the right to take part in cultural life, guaranteed in Article 15 of the ICESCR which reads:
# 1. The States Parties to the present Covenant recognize the right of everyone:
a. To take part in cultural life;
b. To enjoy the benefits of scientific progress and its applications; and
c. To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
In relation to this right, the Covenant further outlines specific duties of the State Parties in Articles 15(2), 15(3), and 15(4).
The right to accessible and available cultural and recreational activities was upheld by the CESCR in General Comment No. 5 (para 36), which also included access to places for recreation, sports and tourism. The CESCR also encourages the States to eliminate communication barriers to the greatest extent possible to facilitate full participation in cultural and recreational life by persons with disabilities (para 37). The Standard Rules refers to cultural life in Rule 10 and to recreation and sports in Rule 11. The Rules clearly emphasise the principle of equal access, participation and envisage a positive role for the States. The Rule 10 lays down:
1. 1) States will ensure that persons with disabilities are integrated into and can participate in cultural activities on an equal basis.
2. 2) States should ensure that persons with disabilities have the opportunity to utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of their community, be they in urban or rural areas. Examples of such activities are dance, music, literature, theatre, plastic arts, painting and sculpture. Particularly in developing countries, emphasis should be placed on traditional and contemporary art forms, such as puppetry, recitation and story-telling.
3. 3) States should promote the accessibility to and availability of places for cultural performances and services, such as theatres, museums, cinemas and libraries, to persons with disabilities
4. . 4) States should initiate the development and use of special technical arrangements to make literature, films and theatre accessible to persons with disabilities.
It is noteworthy that the Rule 10 of Standard Rules call for the ‘development and use of special technical arrangements to make literature, films and theatre accessible to persons with disabilities.’ In keeping with these provisions, the CESCR in General Comment No.5 specifies accessible formats such as talking books and adapted television and theatre for deaf persons. The CESCR also enjoins the State Parties to promote accessibility of private places for persons with disabilities such as restaurants, hotels, recreation centres and cultural venues. (para 38)
Article 31 of the CRC recognizes the rights of children to rest, leisure, play and recreational activities, as well as full participation in cultural and artistic life. Recognizing the special circumstances of children with disabilities, CRC in Article 23(3) provides,
… that the disabled child has effective access to … recreation opportunities in a manner conducive to the
Page 97
child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.
Likewise, a provision in Article 13(c) of the CEDAW Convention emphasises equal participation of women in recreational activities, sports and all aspects of cultural life.
The Working Group that drafted the text of the Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities took an approach that on the one hand promotes access and participation by people with disabilities in the mainstream sports, culture and media, and on the other seeks to afford an environment in which unique talents and cultural identity of the disabled are recognised. Article 24 of the Convention stipulates,
States Parties recognize the right of all persons with disabilities to take part in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:
1. a) have the opportunity to develop and utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of their community;
2. b) enjoy access to literature and other cultural materials in all accessible formats, including in electronic text, sign language and Braille, and in audio and multi-media formats;
3. c) enjoy access to television programs, films, theatre, and other cultural activities, in all accessible formats, including captioning and sign language; and
4. d) enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and the hospitality industry, and, as far as possible, enjoy access to monuments and sites of national cultural importance.
# 4. States Parties recognize the right of persons with disabilities, on an equal basis with others, to participate in recreational, leisure and sporting activities and shall take appropriate measures to:
a) encourage and promote the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at regional, national and international levels;
b) ensure that persons with disabilities have an opportunity to organize and participate in sporting activities and to receive the same instruction, training and resources in support that is available to other participants;
c) ensure that persons with disabilities have access to sporting and recreational venues, and that children with disabilities have equal access to participating in sporting activities with the education system;
(d)ensure that persons with disabilities have access to services from those involved in the organization of recreational, leisure and sporting activities.
The Biwako Millennium Framework conceives a very positive role for the Asian and Pacific States in the promotion of sport and leisure activities for persons with disabilities. It states,
Governments, in collaboration with other stakeholders, need to provide sport, leisure and recreational activities and facilities for persons with disabilities, as the fulfillment of their basic rights to the improvement of life.
Page 98
6.6.2 Domestic Standards
The Constitution of India in Article 15(2) says,
No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
access to shops, public restaurants, hotels and places of public entertainment; or
the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
The overarching object of this Article is to guarantee access without discrimination. Articles 15(3) and 15(4) of the Constitution establish a very positive role for the State. They encourage introduction of special measures in favour of women, children, Scheduled castes and Scheduled tribes, and other members of socially and educationally backward classes. Upholding access as an indispensable condition for a meaningful right to life, the Supreme Court of India, in State of Himachal Pradesh vs Umed Ram Sharma
83
said,
every person has right … under article 21 to his life and that right under article 21 embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself.
However, access without discrimination to public facilities, roads, places of culture and entertainment for persons with disabilities came into focus only with the enactment of Persons with Disabilities Act, 1995, which lays down duties of various Government authorities in very clear terms for the creation of barrier free facilities. For instance, Section 44 states,
Establishments in the transport sector shall, within the limits of their economic capacity and development for the benefit of persons with disabilities, take special measures to-
1. (a) adapt rail compartments, buses, vessels and aircrafts in such a way as to permit easy access to such persons;
2. (b) adapt toilets in rail compartments, vessels, aircrafts and waiting rooms in such a way as to permit the wheel chair users to use them conveniently.
As per Section 45,
The appropriate Governments and the local authorities shall, within the limits of their economy capacity and development, provide for-
1. (a) installation of auditory signals at red lights in the public roads for the benefit of persons with visually handicap;
2. (b) causing curb cuts and slopes to be made in pavements for the easy access of wheel chairs users;
3. (c) engraving on the surface of the zebra crossing for the blind or for persons with low vision
4. ; (d) engraving on the edges of railway platforms for the blind or for persons with low vision
5. ; (e) devising appropriate symbols of disability; and
6. (f) warning signals at appropriate places.
Section 46 says,
The appropriate Governments and the local authorities shall, within the limits of their economics capacity and development provide for-
1. (a) ramps in public buildings;
Page 99
2. (b) adaptation of toilets for wheel chair users;
3. (c) Braille symbols and auditory signals in elevators or lifts;
4. (d) ramps in hospitals, primary health centres and other medical care and rehabilitation institutions.
Precious little has been done by the governments to translate these provisions into reality, so much so, that even necessary amendments in the light of the Persons with Disabilities Act, 1995 have not been carried out in building by-laws, fabrication standards for buses, rail coaches, vessels, etc.
84
As a result, persons with disabilities have resorted to judicial recourse. For instance, during the visit of Mr. Stephen Hawking, a renowned physicist and a wheelchair user, to New Delhi, the Department of Archaeological Survey of India with the help of Ministry of Social Justice and Empowerment had put up temporary ramps in important monuments, which were later removed. Aggrieved by this action, one Mr. Javed Abidi, a well known disability activist filed a Civil Writ petition
85
before the High Court of Delhi seeking direction to not to remove the wooden ramps and to erect permanent ramps for ensuring barrier free access by persons with disabilities as per the provisions under Section 46 of the Persons with Disability Act, 1995.
Another complaint filed before the Chief Commissioner for Persons with Disabilities relates to denial of entry to the Nahar Singh Stadium at Faridabad, to one Mr. Ajay Hans
86
, a wheel chair user, even though he possessed a valid ticket. The administration tried to conceal the inaccessibility of the stadium under the pretext of heavy rush but on finding the actual facts, the Chief Commissioner directed the authorities,
In order to ensure that persons with disabilities benefit equally from the scientific and technical advancement, the Persons with Disabilities Act in Section 48 encourages appropriate Governments and local authorities to promote and sponsor research in the following areas: -
Page 100
* prevention of disability;
* rehabilitation, including community based rehabilitation;
* development of assistive devices including their psycho-social aspects; job identification; and
* on-site modifications in offices and factories.
It is pertinent to note that the Government of India has established ‘Science & Technology Project’ in Mission Mode to exclusively sponsor research in the field of assistive technology for persons with disabilities. Furthermore, to encourage eminent scientists and professionals to undertake research in this area, a National Technology Award is conferred each year on the World Disabled Day in recognition of outstanding technological development in the field of disability.
6.7 Access To Media & Information Communication Technologies (ICTs)
6.7.1 International Standards
Article 19 of the Universal Declaration of Human Rights 1948, states that everyone has a right to, ‘… seek, receive and impart information and ideas through any media and regardless of frontiers.’
The ICCPR in Article 19 further expands this right recognising that information can be received and imparted, ‘orally, in writing or in print, in the form of art or through any media of [her/his] choice.’
The UN Special Rapporteur on Freedom of Opinion and Expression in his Annual Report, 1998 noted, ‘[T]he right to seek, receive and impart information imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems… .’
Studies carried out in Asia, Europe and America suggest that disabled and non-disabled have similar media habits. Relevance of television, radio and newspapers is as significant in the lives of persons with disabilities as it is for the non-disabled population.
87
Rule 5 of the Standard Rules also calls on States to ‘encourage the media, especially television, radio and newspapers, to make their services accessible’ to persons with disabilities.
There is now a political will in many countries to ensure access to various forms of media and culture by persons with disabilities. New legal frameworks and standards are being developed to promote the concept of universal design and universal service. The telecommunication, broadcasting and information laws and regulations falling short of accessibility standards are being repealed or amended. The effort is towards creating systems independent of individual bias as a means to overcome the digital divide.
Page 101
Telecommunication
The international efforts for setting universal standards in telecom, media and information processing in last ten years have gone a long way in ensuring access to media, information and culture by persons with disabilities. For instance, six different text telephone systems for the deaf and deaf blind came in use but with serious problems of compatibility, interoperability and limitations in international calling. Therefore, in 1997/98 the International Telecommunications Union (ITU) through Study Group T 16 released three major recommendations:
88
* V.18 describes a multi-function text telephone, which can communicate with the wide variety of text telephones in use today;
* T.140 adds new facilities, which allow text communication using a very wide variety of alphabets such as Arabic, Cyrillic, Kanji etc. as well as Latin-based characters; and
* T.134 describes how these facilities are used in the multi-media communications systems defined by the ITU-T. (Gunnar Hellstrom, 1998)
89
After having completed work on V.18, T.140 and T.134, the ITU focused its attention on three new targets with the objective to:
90
* Establish an interoperability test for text telephones;
* To establish interworking between text conversation in different environments by adding to Recommendation H.246 on interworking between the different multimedia systems; and
* To establish a service description for multimedia conversation services, including text conversation and video with motion reproduction sufficient for sign language and lip reading.
The European Telecommunications Standards Institute (ETSI) has also produced three very significant deliverables that provide guidance to the designers of communication products and services. These include,
91
* ETR 029: Human Factors (HF); Access to telecommunications for people with special needs; Recommendations for improving and adapting telecommunication terminals and services for people with impairments (1991);
* ETR 116: Human Factors (HF); Human factors guidelines for ISDN Terminal equipment design; (1994); and
* ETR 166: Human Factors (HF); Evaluation of telephones for people with special needs; An evaluation method (1995).
Page 102
Web Accessibility
In the last decade or so, Internet has brought about a radical shift in the paradigm of information dissemination, sharing and processing. Using Internet in a variety of information forms like plain/formatted text, pictures, audio and video can be presented to the users across the globe at a fast, reliable and extremely cost effective manner. While the variety in the forms of information makes the content aesthetically very appealing and easy to use, it also poses new challenges for people with disabilities
92
.
Shapiro and Varian, authors of Information Rules: A Strategic Guide to the Network Economy, point out that ‘today more than 60 percent of Internet traffic is to Web Sites, and of the Web traffic, almost three-fourths is images.’ Therefore, information on the web loaded with graphics and images cause a serious threat to the freedom of information for those with sight impairment. Similarly, Web pages with a long list of hyperlinks crowded together could confuse a person with learning disabilities. Even people with hearing disabilities find it difficult to access the content of audio streaming and video clips posted on the Internet in the absence of captioning.
93
It is worth noting that Rule 5 of the Standard Rules also refers to ‘new computerized information and service systems offered to the general public’ and urges governments to ensure that they are ‘made initially accessible or are adapted to be made accessible to persons with disabilities.’
In consonance with this requirement in the Standard Rules, a development worth noticing is the release of the ‘Web Content Accessibility Guidelines 1.0’ specification issued by World Wide Web Consortium (W3C) on May 5, 1999. This significant development provides a stable specification that has been reviewed and recommended by the W3C Membership as a tool for making web sites accessible. The specification contains fourteen guidelines which are general principles of accessible design. Each guideline is associated with one or more checkpoints describing how to apply that guideline to particular features of Web pages. An appendix to the guidelines, ‘Checklist of Checkpoints for the Web Content Accessibility Guidelines 1.0’ presents the checkpoints sorted by priority for easy reference.
94
Several worthwhile initiatives have been reported by the UN Secretary-General on the action taken to promote awareness and build national capacities for Internet accessibility. These efforts have been carried out in co-operation with Government, non-government and private bodies in various parts of the world. They are reflected in the Secretary General’s Progress Report on implementation of the WPA to the fifty-fourth session of the General Assembly (1999; document A/54/388/Add.1) and the fifty-sixth session of the General Assembly (2001; document A/56/169) and to the thirty-ninth session of the Commission for Social Development (2001).
95
The Biwako Millennium Framework sets out specific targets under the priority action, which says,
By 2005, persons with disabilities should have at least the same rate of access to the Internet and related services as the rest of the citizens in a country of the region.
International organizations (e.g., International Telecommunication Union, International Organization for Standardization, World Trade Organization, World Wide Web Consortium, Motion Picture Engineering
Page 103
Group) responsible for international ICT standards should, by 2004, incorporate accessibility standards for persons with disabilities in their international ICT standards.
overnments should adopt, by 2005, ICT accessibility guidelines for persons with disabilities in their national ICT policies and specifically include persons with disabilities as their target beneficiary group with appropriate measures.
The most recent development in this area is the World Summit on the Information Society (WSIS), which recognizes the need to ensure that developments in information technology address the needs of persons with disabilities. The Declaration from the World Summit acknowledges the ‘special needs of older persons and persons with disabilities’ (para 13). The WSIS Platform (in paras 9, 19 and 23) mentions these needs in relation to information and communication technology training, access to technology, appropriate design and production, opportunities for teleworking, and use of computer software for alternative forms of communication.
Media
The mass media has undergone rapid transformation by simulating major technological innovations such as electronics editing, publishing and through animated images and digitised production of TV programming. The computerised and communication-assisted publishing of the printed press has also contributed to this revolution. Interactive television and multimedia has opened up unprecedented opportunities for entertainment, education and commerce. If the rapidly developing media technologies are made available based on the principle of universal design, the media’s capacity to break down traditional barriers to participation by disadvantaged groups such as the people with disabilities are enormous.
Towards this end, Biwako Millennium Framework encourages international organizations (e.g., International Telecommunication Union, International Organization for Standardization, World Trade Organization, World Wide Web Consortium, Motion Picture Engineering Group) responsible for international ICT standards to incorporate by 2004 accessibility standards for persons with disabilities in their international ICT standards.
6.7.2 Domestic Standards
The recognition of a distinct disability culture in countries of Europe and North America has been instrumental in promoting accessible media there. The situation in countries in Asia, Latin America and Africa is not so encouraging. There is a persistent indifference to the cultural identity of persons with disabilities and not much has been done to promote their participation in the mainstream cultural life. As a consequence the related laws in India, such as Information Technology Act, Prasar Bharati (Broadcasting Corporation Of India) Act, 1990, and Telecom Regulatory Authority of India Act lack disability perspective.
The NHRC is alive to the fact that telecommunications, broadcasting and other systems of information are out of the reach of a vast majority of persons with disabilities due to their cost and standards of design and delivery. Hence, in January 2003 it recommended that Government of India and State Governments should elaborate and adopt a National/State policy on accessible infrastructure for persons with disabilities in order to ensure barrier free access to built environment, transport system, telecommunication, information
Page 104
and broadcasting and electronic public information facilities.
96
Broadcasting Norms
Prasar Bharati (Broadcasting Corporation of India) is the State supported broadcaster in India. This autonomous entity is regulated by the Prasar Bharati (Broadcasting Corporation Of India) Act, 1990. While specifying the functions of Prasar Bharati the Act focuses on the interests of minority and weaker sections. Section 12(1) states the primary duty of the Corporation and Section 12(2) outlines the functions as follows:
1. (a) upholding the unity and integrity of the country and the values enshrined in the Constitution;
2. (b) safeguarding the citizen's right to be informed freely, truthfully and objectively on all matters of public interest, national or international, and presenting a fair and balanced flow of information including contrasting views without advocating any opinion or ideology of its own;
3. (c) paying special attention to the fields of education and spread of literacy, agriculture, rural development, environment, health and family welfare and science and technology;
4. (d) providing adequate coverage to the diverse cultures and languages of the various regions of the country by broadcasting appropriate programmes;
5. (e) providing appropriate coverage to sports and games so as to encourage healthy competition and the spirit of sportsmanship;
6. (f) providing appropriate programmes keeping in view the special needs of the youth;
7. (g) informing and stimulating the national consciousness in regard to the status and problems of women and paying special attention to the upliftment of women;
8. (h) promoting social justice and combating exploitation, inequality and such evils as untouchability and advancing the welfare of the weaker sections of the society;
9. (i) safeguarding the rights of the working classes and advancing their welfare;
10. (j) serving the rural and weaker sections of the people and those residing in border regions, backward or remote areas
11. ; (k) providing suitable programmes keeping in view the special needs of the minorities and tribal communities; and
12. (i) taking special steps to protect the interests of the children, the blind, the aged, the handicapped and other vulnerable Sections of the people (emphasis added).
Despite such a clear mandate, as indicated in clause l above, there are numerous constraints to access television programming by persons with disabilities. User Interface Standards, User Presentation Standards and Terminal Equipment Standards need to be developed and redefined so that all analogue and digital broadcasting services are delivered on the principle of universal design and accessibility norms. Towards this end, the NHRC has recommended formation of a multisectoral task force comprising various
Page 105
Ministries and autonomous bodies in the Government of India and including people with disabilities and universal design experts. Such a task force has been advised to identify areas of review, assessment, research and finally to come up with a National Accessible Infrastructure Policy and Plan.
It is interesting to note that in Section 12(2)(o) the Prasar Bharati Act provides for ‘promoting research and development activities in order to ensure that radio and television broadcast technology are constantly updated.’
In Europe, Governments plan to provide much of their information and services via digital television. Therefore, incorporation of accessible features in the design of digital broadcasting and its delivery system has received considerable attention.
97
Rigorous media research initiatives from a disability perspective have been undertaken through a multidisciplinary approach with broadcasters, ICT companies, and academic and disability organisations working together. The studies of this nature generally analyse user’s concerns, information and broadcasting laws, design of existing media products and their delivery mechanism and most often these researches offer design solution based on universal design principles and accessibility norms.
98
For example, the Netherlands Federation of the Blind and Partially Sighted, the Public Broadcasting Corporation, and the Dutch Federation of Libraries for the Blind jointly worked on a comprehensive research project for a period of four years between 1998 and 2001. The research investigated barriers to television viewing, its causes, and its demographic implications with reference to disabilities. It was found that 30% programmes on Dutch television are in foreign languages. They are broadcast with text subtitles. Consequently, blind, print impaired and elderly persons with visual impairment were unable to access the content of these programmes due to inflexible user presentation standard. The study provided a design solution which involves the integration of speech synthesis and broadcasting software. To encourage the uptake of this new approach, a decoder has been developed which unpacks the sound signal without interfering with the programme. All the three public broadcasting networks in the Netherlands now offer audio caption service with foreign language programming.
99
In a rapidly changing era of media technology, it becomes all the more important to encourage universal design principles. To accommodate the challenge of technology switchover, parallel changes in the related laws become imperative. UK presents a good case study in this regard where, in the year 1996, the government adopted a new Broadcasting Act. This coincided with broadcast technology switch from analogue to digital. The Act mandates broadcast of at least 10% programmes with narration or verbal description of key visual elements of a programme. However, the Act does not contain any provision for audio description transmission and reception standards. Therefore, when digital terrestrial television started in the UK in November 1999, no provision was made for transmission of verbal description of visual elements because the digital terrestrial set top boxes were not configured to download audio description feature
100
. As a result, the blind and elderly persons got deprived of the narrative video service, which would have allowed them full access to television.
Page 106
Since, digital broadcasting can open up a world of interactive services beyond broadcasting, it will increasingly be used to do on-line Internet browsing, shopping, banking and e-mailing. Therefore, incorporating accessible features in the design of digital broadcasting and its delivery system is important; otherwise the disabled people would be forced further away from enjoying full benefits of this latest technology..
Telecommunications
Like television, telephones play an equally important role in the lives of people with disabilities. When Alexander Graham Bell invented the telephone, he was attempting to convert speech into a visual representation to accommodate a greater choice of information modality for his wife who had a hearing loss. Unfortunately, Bell’s invention failed to accommodate conversion of information from auditory to visual mode as intended. Instead, the long distance communication scenario got transformed completely, allowing communication in real time for persons who could hear. The intended benefits of telecommunication for the hearing impaired and deaf came about much later. The Teletypewriter (TTY) service that enabled communication for the deaf with other TTY users became available in the United States during the mid 70s.
101
The Tele-relay service became the second milestone that widened the communication choice as through a relay centre the deaf callers could communicate with hearing persons
102
. These technologies had their own limitations in terms of compatibility, interoperability and long distance calling. The International Telecommunications Union (ITU) has addressed all these issues and now norms for accessible telecom are available.
The development of videophones has benefited deaf and hard of hearing people beyond estimation. This means that deaf people now can use videophones to communicate in sign language in the same way as hearing people use telephones
103
. In fact, recent improvements in the quality of pictures in the videophone are also an outcome of a disability concern, as sign language users demanded a faster and clearer image processing. After having completed its work on V.18, T.140 and T.134, the ITU focused on establishing a service description for multimedia conversation services, including text conversation and video with motion reproduction sufficient for sign language and lip reading.
104
The Finnish Association of the Deaf (FAD) launched a Multimedia Project between years 1998-2001 to study whether videophone links and distance interpretation would improve the use of interpreting services, intensify use of the interpreter’s working time and reduce expenses by cutting down interpreter’s total travel cost. The findings of the study confirmed that videophone enhances the freedom of socialisation of deaf people and also reduces the cost of interpreter’s services and travel. In addition, the quality of life improved as many services such as medical consultation, family counseling, distance education and legal advice became possible using videophones linked to interpreter’s service.
105
Page 107
Access to telecom services by people with disabilities is also determined by the policy and legal frameworks, as they can always ensure access. For example, Americans with Disabilities Act (ADA) mandates, ‘one text telephone must be provided inside any building that has four or more public pay phones. In addition, one text telephone must be provided wherever there is an interior public pay phone in a stadium, hotel, convention centre ….. etc.’
106
Similarly in Sweden and Finland, some local Governments have included videophones in the list of assistive devices for persons with disabilities.
Indian telecom laws and regulation do not address the issue of accessibility from the perspective of universal design. This could be attributed to lack of awareness on the part of the Government, telecom authorities, and the disability rights movement. We have touched upon some aspects of telecommunication using examples from other jurisdictions of law and research in related area. These are merely illustrative. Our aim is to encourage critical thinking and review of related laws.
Web Accessibility
In the last few years judicial, quasi-judicial and several administrative authorities have interpreted the anti discrimination provisions to uphold the right to access technology mediated information. The concept of access is very dynamic and disability has contributed to its further evolution. The following examples from the USA, Australia and the UK demonstrate how access is interpreted as a means to achieving non-discrimination in the information society.
In November 1999, the National Federation of the Blind filed a suit against America Online, Inc., charging that AOL’s proprietary browser and Internet web site was inaccessible to consumers who are blind. In March 2000, a settlement was reached under Americans with Disabilities Act (ADA) between the Bank of America and the California Council of the Blind requiring to not only install 2500 talking ATMs in Florida and California, but also to ensure that its website and online banking services were accessible to people using screenreaders.
107
The Attorney General of Connecticut, USA settled a complaint filed by National Federation of the Blind v/s four online tax filing services. As per this settlement, four online tax filing services listed on the web site of Revenue Department were modified to ensure that people who are blind can access the sites with effect from tax filing year 2000 in accordance with Americans with Disabilities Act.
108
It is pertinent to mention here that Americans with Disabilities Act is a non-discrimination legislation.
By a reference dated 26 August 1999, the Attorney-General (Australia), inter alia, advised the Human Rights and Equal Opportunity Commission to examine the difficulties and restrictions faced by older Australians and those with a disability in achieving full and equal access to services utilizing new technologies and deriving full benefit from such technologies.
Page 108
The Commission was further advised to conduct an audit of the accessibility of Australian government and business Internet sites, with reference to the Disability Discrimination Act and relevant Australian and International guidelines.
109
The part three of the Disability Discrimination Act 1995 of the UKrequires providers of goods, facilities and services to make them accessible to people with impairments. This provision has been interpreted to emphasise that ‘Unlawful discrimination occurs when a service provider discriminates, by doing one of the following:
Refusing to serve a disabled person;
Offering a disabled person a lower standard of service;
Offering a disabled person less favourable terms; and
Failing to make alterations to a service or facility, which makes it impossible, or unreasonably difficult, for a disabled person to use.’
110
With the exception of intervention by the NHRC recommending the Government to constitute a multi-sectoral taskforce to ensure access on equal basis to people with disabilities, no other example of a legally mandated entity taking initiative to modify ICT related laws can be found in India. It is ironical that India is an IT leader but its IT laws remain limited in their purpose and scope with no concern for access to public or private sites for persons with disabilities; and all this when the World Summit of Information Society (WSIS) is galvanizing a dynamic set of principles that would set the stage for a knowledge based information society in which access without discrimination would be ensured for all.
Whether nurturing of cultures, popularization of science or influencing public opinion, the media is likely to play a more significant role than ever before. Therefore, media’s importance in mainstreaming disability has increased manifold. The academics, researchers, and the disability rights’ activists need to take a hard look on the laws and regulations that govern media, and information technology services with a view to suggesting improvements from a disability standpoint.
Page 109
Table 6.1 International Standards on Specific Social and Cultural Rights
General Specific to Disabled
Right to Food and Water ICESCR : Article 11 CEDAW : Article 14 CRC : Article 24 (2) (C) CESCR * General Comment nos. 12, para 1 & 15
Right to Adequate Housing & Shelter UDHR : Article 25 (1) ICESCR : Article 11 (1) CESCR :General comment no. 4, para 7 Vancouver Declaration on Human Right Settlement 1976, Section III (8) Habitat Agenda, Istanbul, Turkey, 1996, para 61 UN Commission on Human Rights Resolution on forced evictions WPA Standard Rules : Rule 5 CEDAW : Article 14 CRC : Article 27 Draft Convention on Disability Principle for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (MI Principles): Principle 3 Standard Rules : Rule 5
Right to Health ICESCR : Article 12 (1) CEDAW : Article 12 (1) CRC : Article 24 (1) Standard Rules * Rule 2 * Rule 3 MI Principles: Principles 6 – 14 & 22 CESCR * General Comment No. 5 * General comment no. 14, para 12 * General comment no. 14, para 14 CEDAW: General Recommendations, no. 24, para 6 CRC : General Comment no. 4 Draft Convention on Disability : Article 21
Right to Education UDHR & World Declaration on Education for All ICESCR : Article13 CEDAW : Article 10 CRC : Article28 & Article29 CESCR : General Comment No. 13 CRC : Article 23 WPA Standard Rules : Rule 6 UNESCO Salamanca Statement, 1994- World Education Forum (Daker,2000)- General Comment Nos.5&13 CESCR Article17 Draft Convention on Disability Proclamation on the Full Participation &Equality of People with Disabilities in the Asia Pacific Region CRC : Comment No.1
Page 110
Table 6.1 contd. Linguistic Rights ICCPR : Articles 27 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities: Article 1(1) Biwako Millennium Framework Standard Rules : Rule 5 Draft Convention on Disability Right to Access to Places of EntertainmentSports and Culture ICESCR : Article-15 CESCR : General comment No.5, para 36 CRC : Article-31 CESCR : General comment No.5 paras 37&38 Standard Rule : Rules 10 & 11 CRC : Article 23 (3) Draft Convention on Disability : Article-24 Biwako Millennium Framework Right to Access to Media and ICTs UDHR : Article19 ICCPR ITU ETSI W3C Secretary General's Progress - Report on Implementation of WPA Disability Discrimination Act 1995 WSIR Standard Rules : Rule-5 Biwako Millennium Framework WSIS
Page 111
Table 6.2 Domestic Standards (Constitution and Acts of Parliament) on Specific Social and Cultural Rights
Right General Specific to Disabled
Right to Food and Water Constitution : Articles 47&39 Persons with Disability Act, 1995 * Section 25 (f)
Right to Adequate Housing & Shelter National Trust Act, 1999 Persons with Disability Act, 1995 Section 8 (1) (C), Central Coordination Committee
Right to Health Constitution : Articles 39 (e), 4 &, 42 of Workmen’s Compensation Act, 1923 Employees State Insurance Act, 1948 Maternity Benefit Act, 1961 : Article 47 Persons with Disability Act, 1995 Mental Health Act 1987: Section 81 Protection of Human Rights Act, 1993 : Section 12
Right to Education Constitution : Articles 41, 46 & 51(A) 86th Amendment Art.21(A) Persons with Disability Act * Sections 26,27,29-31& 39
Linguistic Rights Constitution : Article 29 (1) Persons with Disability Act, 1995
Right to Access to Places of Entertainment, Sports and Culture Constitution : Article-15(2), 15 (3) &15 (4) Persons with Disability Act, 1995 * Sections 44-46 & 48
Page 112
Table 6.3 Domestic Standards (Court Cases and NHRC Orders & Reports) on Specific Social and Cultural Rights
Page 114
General Specific to Disabled
Right to Food and Water PUCL vs Union of India and others - NHRC order, 17 Jan 2002 Attakoya Thangal vs Union of India South Asia Human Development Report 2001 PUCL vs union of India and others
Right to Adequate Housing & Shelter Chameli Singh vs State of UP Shantistar Builder vs Narayan Khimalal Tortame Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan Mamta Kumari vs, the State of Bihar and others National Federation of the Blind, UP vs State of UP
Right to Health Bandhua Mukti Morcha vs Union of India Consumer Education & Research Centre and others vs Union of India and others CESC Ltd vs Subhash Chandra Bose SP Sathe vs State of Maharasthra Rakesh Chandra Narayan vs State of Bihar S. R. Kapur vs Union of India Quality Assurance in mental health, 1997, NHRC report Indian Council of Legal Aid & Advsice vs Union of India and others
Right to Education Mohini Jain vs State of Karnataka Unni Krishnan J.P & Others vs State of A.P National Association for the Blind and Others vs CBSE & Others Supreme Court All Kerala Parents Association vs state of Kerala Social Jurist vs Govst. of Delhi & Social Jurist vs Union of India
Linguistic Rights All India Confederation of the Blind and Anr.vs Union of India & Anr
Page 113
Right to Access to Places of Entertainment, Sports and Culture State of H.P. vs Umed Ram Sharma Notice and Orders of the Chief Commission for Persons with Disability
Table 6.4 Executive Policies on Specific Social and Cultural Rights of the Disabled
Page 115
Executive policies for Disabled
Right to Food and Water Antyodaya Anna Yojana (AAA) Cards
Right to Adequate Husing & Shelter National Habitat and Housing Policy, 1998 Indira Awas Yojana – norms for building accessible houses Model Building Bye Laws – availability of accessible houses
Right to Health Integrated Child Development Scheme of the Department of Women and Child National Health Policy, 2002
Right to Education Integrated Education Scheme for Disabled Children (IEDC) Sarv Shiksha Abhiyaan
1 www.unhchr.ch/tbs/doc.nsf
2 CESCR, General Comment No. 12, para. 8.
3 Ibid. para. 13.
4 Ibid. para. 21.
5 Ibid. para. 26.
6 www.ohchr.org/english/bodies/cescr/cescrs35.htm - 26k - 1 Jun 2005.
7 CESCR, General Comment No. 15, para. 1.
8 Ibid. para. 12.
9 Ibid., para. 12(c)(iii).
10 Ibid., para. 16(h).
11 Ibid., para. 37.
12 Ibid., para. 48.
13 M.C. Mehta vs Union of India [(1987) 1 SCC 395].
14 Consumer Education and Research vs Union of India [(1995) 3 SCC 42].
15 Chameli Singh vs State of U.P [(1996) 2 SCC 549].
16 People’s Union for Civil Liberties vs Union of India and others [(1997) 3 SCC 433].
17 State of Maharashtra vs Manubhai Pragaji Vashi and Others [(1995) 5 SCC 730]
18 Op. Cit.
19 Report of ‘Independent Commission on Health in India’, (1997).
20 NHRC Annual Reprot 2000-2001, Annexure 4 (page 228).
21 People’s Union for Civil Liberties vs Union of India and others Civil Writ Petition No. 196 of 2001.
22Ibid. Order dated 23 July 2001.
23 Gonsalves, Colin 2005, unpublished paper, Right to Food.
24 NHRC order dated 17 January, 2003 in case no. 37/3/97-LD, complaint of Shri Chaturanan Mishra
25 Supra note 21.
26Attakoya Thangal vs Union of India [1990 (1) KLT 580].
27 CESCR, General Comment No. 4, para. 7.
28 Ibid. para. 8.
29 Ibid., para. 9.
30 Ibid., para. 12.
31Biwako Millennium Framework for Action Towards an Inclusive, Barrier-Free and Rights-Based Society for Persons With Disabilities in Asia and the Pacific, available at www.unescap.org/esid/psis/disability/bmf/bmf.html .
32Supra note 15.
33Shantistar Builders vs Narayan Khimalal Tortame, [(1990) 1 SCC 520].
34 Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan[(1997) 11 SCC 121].
35 Shantistar Builders vs Narayan Khimalal Tortame [(1990) 1 SCC 520].
36 Supra note 15.
37 www.nationaltrust.org.in
38 Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan & Others [(1997) 11 SCC 121]
39 Report by National Forum for Housing Rights, Eviction Watch India, (Combat Law Publication, Jan, 2003).
40 ESCAP, 2002 www.unescap.org/esid/psis/disability/bmf/bmf.html .
41 Supra note 34.
42 An example of a special scheme is the scheme adopted in the year 1980 to make out of turn allotments of residential accommodation to physically disabled employees. See Directorate of Estate’s Office, Government of India, Memorandum No. 12029 (2)/ 80-Pol.II).
43 Section 8(1) of Persons with Disabilities Act, 1995.
44 Mamta Kumari vs The State of Bihar and others, Case No. 2894/4/2002-2003/FC, High Court of Patna.
45 National Federation of the Blind, U.P. vs State of U.P. [AIR 2000 All 258].
46 Gonsalves, Colin unpublished paper on Right to Housing, 2005.
47 CESCR General Comment No. 5, para. 34.
48 CESCR General Comment No. 14, para. 12.
49 Ibid. para. 14.
50 CEDAW General Recommendation 24, para. 6.
51 Ibid., para. 14.
52 CRC General Comment 4, para. 12.
53 Ibid., para. 13.
54 Ibid., para. 35.
55 Report of the Working Group to the Ad Hoc Committee for Draft articles for a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, www.un.org
56 Bandhua Mukti Morcha vs Union of India [1984 3 SCC 161].
57 Consumer Education and Research Centre and Others vs Union of India and Others, [(1995) 3 SCC 42].
58 Ibid.
59 Bhatia, Sita Right to Health, unpublished paper, NHRC.
60 C.E.S.C. Ltd. vs Subhash Chandra Bose [(1992) 1 SCC 441].
61 S.P. Sathe vs State of Maharashtra [1987, Bombay High Court].
62 Rakesh Chandra Narayan vs State of Bihar [AIR 1995 SC 208].
63 S.R Kapoor vs Union of India [AIR 1990 SC 752].
64 Supra note 59.
65 Indian Council of Legal Aid & Advice vs Union of India and others [(2000) 10 SCC 542].
66 Supra note 31, Part IV(C) para. 25.
67 UNESCO Salamanca Statement and Framework for Action on Special Needs Education, available at www.unesco.org/education/pdf/SALAMA_E.PDF .
68 Quinn, Gerard and Theresia Degener, Human Rights and Disability: The current use and future potential of United Nations human rights instruments in the context of disability (United Nations, 2002).
69 Mohini Jain vs State of Karnataka[(1992) 3 SCC 666].
70 Unnikrishnan J.P.and Others vs State of Andhra Pradesh and others, Union of India [(1993 1 SCC 645)].
71 National Federation of the Blind vs Government of NCT of Delhi and others [(CW 6456/ 2002, decided on 06.11.2003)].
72Dr. Jagadish Saran and others vs Union of India [(1980) 2 SCC 768].
73 Anka Toppo vs AIIMS, No.1754/30/2000-2001, available at nhrc.nic.in/disparchive.asp .
74 NAB & Others vs CBSE & Others, CWP No 1015/2001 & CM No. 1712/2001.
75 All Kerala Parents Association vs State of Kerala CA No. 6120 of 2001, decided on 11.09.2001
76 Social Jurist v. Government of National Capital Territory of Delhi & Others, CW No. 3156 of 2002.
77 Social Jurist vs Union of India and Others, C.M.6736/2000 in C.W. 3956 of 2000 (Delhi H.C.). The case related material is available at www.socialjurist.com .
78 Ibid.
79 All India Confederation of the Blind and Anr. vs Union of India and Anr., CWP No. 115/1998 with I.A. No.3 in C.W.P. No. 116/1998, C.A. No. 6442/1998, C.A. No. 6443/1998.
80 http://library.gallaudet.edu/dr/faq-world-sl-name.html, www.ethnologue.com
81 World Federation of the Deaf, 2004.
82 NHRC Annual Report, 2003-2004.
83 State of Himachal Pradesh vs Umed Ram Sharma [(1986) 2 SCC 68)].
84 Approach to Disability, 2002 (NHRC), available at www.nhrc.nic.in .
85 See www.ncpedp.org for case details.
86 Chief Commissioner for Persons with Disabilities, Annual Report - 2000-2001(selected cases).
87 Mohit, Anuradha Information Communication Technologies (ICTs) and Persons with Disabilities (A Desk Research) (UNESCO, 2002).
88 Mohit, Anuradha Information and Communication Technologies (ICTs) for People with Disabilities, (Position Paper for UNESCO, 2003) portal.unesco.org/ci/en/file_download.php
89 Hellström, Gunnar Equal Opportunities to Telecommunications, available at www.omnitor.se .
90 Ibid.
91 Ibid.
92 Ibid.
93 Ibid.
94 Ibid.
95 http:/www.un.org/esa/socdev/enable/disa56169e1.htm .
96 Approach to Disability (NHRC, 2002), available at www. nhrc.nic.in .
97 Mohit, Anuradha Information Communication Technologies (ICTs) and Persons with Disabilities (A Desk Research) (UNESCO, 2002).
98 Ibid.
99 Ibid.
100 Wall, Sir John ‘Audio description and its potential’, Joint CEN, CENELEC and ETSI workshop: TV Broadcasting for all (Seville: 13th and 14th June 2002).
101 Mohit, Anuradha Information Communication Technologies (ICTs) and Persons with Disabilities (A Desk Research) (UNESCO, 2002).
102 Lazzaro, Joseph J. Adaptive Technologies for Learning & Work Environments, 2nd ed. (Chicago: ALA (ALA Editions), 2001).
103 Kauppinen, Liisa ‘Municipalities taking on responsibility for videophone services’ 2001.
104 Ibid.
105 Mohit, Anuradha, Information Communication Technologies (ICTs) and Persons with Disabilities (A Desk Research) (UNESCO, 2002).
106 Lazzaro, Joseph J., Adaptive Technologies for Learning & Work Environments, 2nd ed. (Chicago: ALA (ALA Editions), 2001,
107 www.isp-planet.com/news/aol_settles.html
108Waddell, Cynthia D. and others, Design for All - The Need for Legislation, 2001, www.icdri.org/Europe/european_ day_of_disabled_people_.htm
109 Accessibility Of Electronic Commerce And New Service And Information Technologies For Older Australians And People With A Disability, Report of the Human Rights and Equal Opportunity Commission of Australia on a reference from the Attorney-General, 31 March 2000.
110 Busby, Geoff Social Opportunities, Barriers and Dangers in the 21st Century (2000).
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
Tags :Constitutional Law
