June 21, 2012, The Hindu
ABOUT EQUALITY : Mere non-discrimination will not bring the disabled into the mainstream as they require further affirmative action in almost every sphere of life
The Constitution must be amended to prohibit discrimination against the disabled and to bring them into the mainstream
In his column in The Hindu on June 11, 2012 titled “One Simple Step to Increase our GDP,” Aamir Khan makes an important observation — how we behave with the disabled among us tells us what kind of a people we are. And by that standard, India is not the kid you would want to be best friends with in school. Mr. Khan argues that the lack of education of the disabled is the problem and that education is the solution to the problem, which will also possibly lead to an increase in the GDP of the nation. We however believe that the problem is much more fundamental than that, and that the main barrier to a progressive and inclusive approach to persons with disabilities is the current framework of the Constitution itself.
Rights and Acts
The rights of persons with disabilities are sketchily enshrined in various Acts of Parliament — the Mental Health Act, 1987 (to regulate mental health services), the National Trust Act, 1999 (for creation and monitoring of a trust for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities), the Rehabilitation Council of India Act, 1992 (to regulate rehabilitation services), and the Persons with Disabilities Act, 1995 (for everything else). All of these Acts do, in fact, achieve the objective of treating the disabled as a different class altogether — which is the premise of the law on disability in India.
India is a signatory to the United Nations Convention on the Rights of Persons with Disabilities which specifically states that persons with disabilities are to be treated as equals to persons without disabilities. In his column, Mr. Khan cites instances where persons with disabilities have been looked upon as those unloved by god — and we would venture to state that this is eerily reminiscent of the treatment meted out for centuries against those classified as “untouchables.” It took years of campaigning and awareness to eradicate, to some extent, such approaches, but what is undeniable is that Article 17 of the Constitution, which prohibits the practice of untouchability, has helped eradicate it to a great extent. The historic experience of untouchability in India meant that the Constitution was designed to respond to such discrimination.
In a sense, having a disability forces the person to be excluded from all aspects of society, including with respect to education, workplace, transportation, access to public places and everywhere else for that matter. It is not far from the truth to say that the denial of access makes persons with disabilities outcastes. And the fault begins with the Constitution. Disabled people will be able to articulate their moral and political citizenship only when they move away from a benign charity model to a constitutional framework of equal rights. The Constitution in Articles 15 (1) and (2) — which are in Chapter III relating to Fundamental Rights — has an extremely robust provision relating to prohibition of discrimination on the basis of religion, race, caste, sex or place of birth. This provision prohibits discrimination not only by the State but also by citizens with respect to access to shops, hotels, public restaurants and places of public entertainment, among others. Moreover, the Constitution also permits the State to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Amendment of Articles
However, persons with disabilities have no similar protection from discrimination under the Constitution. Nor does the Constitution prescribe that special provisions can be taken to ensure that persons with disabilities are included in society. Given this Constitutional framework, all downstream law-making relating to persons with disabilities is based on sympathy and the mood of the law makers at the given time and not based on the recognition of the fundamental rights of persons with disabilities. No wonder then that the 100 million people with disabilities remain outside the ambit of what is considered “society.”
Makes political sense
Thus we come to the Holy Grail for the disability movement in India — the amendment of Articles 15 (1) and (2) to include the word “disability” as one of the grounds on which discrimination shall be prohibited. But adding this word may not be enough and we must go further. Unlike other classes of citizens, mere non-discrimination will not bring the disabled population into the mainstream since persons with disabilities require further affirmative action in terms of removal of barriers, customisation of products and services and accommodation in almost every sphere of life. Therefore, coupled with the amendments mentioned above, a new Article 15 (6) should be added to the effect that nothing in the Constitution shall prevent the State from making any special provision for the advancement of persons with disabilities including to ensure that the State and citizens remove barriers and provide accommodation to persons with disabilities.
These amendments to the Constitution will ensure that each and every law can then be viewed through the lens of the fundamental rights of persons with disabilities, whether it is the laws relating to banking, to insurance, to food security or any other. And if the law is found wanting, then it can be struck down as unconstitutional. Canada, South Africa and Sri Lanka have explicitly recognised the fundamental rights of persons with disabilities. Now is the time for India to do the same. It even makes sense politically, since persons with disabilities constitute a significant vote bank.
Is this an ambitious dream? Yes. Much like the legalities relating to the Right to Education and the ensuing controversy, this will place a burden on establishments, both public and private, to make themselves accessible. Is this an impossible task? Not really. With political will backed by innovative funding methods and judicious public spending it is possible for India to be completely inclusive by 2022. This will be the perfect way to celebrate India’s 75th Independence Day. After all, equality is the Holy Grail to becoming truly independent.
(Rahul Cherian and Amba Salelkar are lawyers with Inclusive Planet Centre for Disability Law and Policy.)