Introduction
Part A: Conceptual Foundations
Chapter 1: Disability: Definitions, Estimates and Causes
Chapter 2: Approaches to Disability
Chapter 3: The Indian Scenario
Part B: Introduction to the UN Human Rights Treaties
Chapter 4: International Human Rights Law and Its Relation to National Law
Part C: Application of Social and Cultural Rights in the Context Of Disability
Chapter 5: Evolution and Nature of Social and Cultural Rights
Chapter 6: Discussion on specific Social and Cultural Rights and their Relevance to Persons with Disabilities.
Part D: Application of Economic Rights in the Context of Disability
Chapter 7: Evolution and nature of Economic Rights
Chapter 8: International and National Law on Selected Economic Rights
Part E: Application of Civil and Political Rights in the context of Disability
Chapter 9: Evolution and Nature of Civil and Political Rights
Chapter 10: International and National Law On Selected Civil Rights
Part F: Using International Human Rights Procedures to Advance the Human Rights of Persons with Disabilities
Chapter 11: International Mechanisms and ProceduresBy all accounts, India is home to the largest number of persons with disability in the world. The 2001 census of the country estimated their number at 22 million. However, according to many observers the actual number of Indians with temporary and permanent disability could be as high as 50 million. Although the Constitution of India guarantees persons with disabilities the full range of civil, political, economic, cultural and social rights, the arrangements necessary to translate the constitutional guarantees into reality have been conspicuously absent till recently.
The dominant social attitude towards persons with disability has been one of pity, from which springs insidious forms of discrimination - the eventual source of their exclusion and extreme isolation. While many marginalized social groups have been able to project their specific social experiences of discrimination and their aspirations onto the wider social plane for discussion and debate, interventions from the disabled have been minimal as they lead dispersed social lives that make their discrimination appear as individual problems. This is exemplified in the Constitution of India that prohibits discrimination on grounds of religion, race, caste, sex or place of birth (Article 15) but does not explicitly mention persons with disability as a group to be protected against discrimination.
Notwithstanding this disappointing scenario, the past decade has also witnessed an unprecedented process of change that has positioned disability in the centre of a debate that focuses on the idea of ‘society for all’. Essentially, this is a part of the broader understanding of what a democratic society and state should be, both in terms of the ideals they espouse and the practical institutional steps they take towards realizing those ideals. This new conception of democracy asks for redefining the notion of the social ‘main-stream’ that is appreciative and accommodative of the difference, instead of expecting various inherently different minorities to fit into the so called mainstream culture.
From it follows that a democratic State must concern itself with issues of equity and justice implying that the defense of human rights is indistinguishable from the defense of democracy that is inclusive in character and respectful of difference. The widespread exclusion and extreme isolation of persons with disabilities from social institutions, on the one hand points to the imposition of physical and social barriers; on the other it exemplifies how poor has been the treatment of society to difference based on disability.
Despite many obstacles that need to be overcome, the human rights approach to disability has led to the evolution of an impressive legal framework and positive jurisprudence that has clarified the content of rights in the context of disability. It goes without saying that when the new laws and procedures are adopted the need for special inputs is created, especially for those who are vested with the duty to implement and provide remedies.
Towards this end, in the year 2003 the NHRC launched a project in partnership with the Canadian Human Rights Commission (CHRC), which possesses vast experience in the protection and promotion of the rights of persons with disabilities in Canada, and the Indira Gandhi National Open University (IGNOU), the leading distance education provider in India.
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The overarching aim of the NHRC-CHRC-IGNOU Linkage Project is to increase the capabilities and strengths of both the Commissions and their associated partners to cooperatively address major human rights issues in relation to persons with disabilities. To realize this encompassing objective, a programme to improve technical capabilities and awareness of the NHRC staff, legal practitioners, and disability and human rights advocates has been prioritized.
A key component of the Project was the ‘Training of Trainers Programme’, which has prepared a small cadre of human rights trainers in disability who are capable of serving formal and non-formal programmes of legal studies. The Programme was offered in four phases during 2004-2005. Phase I included face-to-face training in a participatory mode. In Phase II the participants undertook individual studies using desk research and field investigations. Phase III included a seminar in which participants shared findings of their studies. In Phase IV, the participants facilitated five training workshops for a group of law faculties, and disability rights and human rights advocates.
The manual can serve as reference material for universities and law schools to design curricula for undergraduate and graduate studies programmes on Disability Law, and to incorporate disability issues into courses on the Family, Criminal¸ Corporate and Labour Laws. It is also hoped that it will prove to be an effective advocacy tool for organizations of disabled persons and NGOs working in the area of disability and human rights. It is also intended to be a practical guide for legal practitioners and general administrators.
The materials compiled in the manual have been field tested during the ‘Training of Trainers Programme’. Needless to say, the inputs gained during the Programme helped immensely in systematically incorporating the education, knowledge and awareness about international and domestic human rights standards and procedures aimed at persons with disabilities.
The basic framework of this manual consists of six parts –
At the end of Part F, seven national and international legal instruments directly related to disability have been annexed for ease of reference.
This manual explores a variety of general and disability specific instruments, such as core international human rights treaties, soft law instruments - declarations, proclamations and rules - in order to establish their relevance for persons with disabilities. The Constitution of India and relevant statutes have also been analyzed. A conscious effort has also been made to document examples of positive jurisprudence, disability specific as well as general, to encourage their wide utilization by legal practitioners and activists.
Disability is an emerging area and has gained unparallel attention with the effort of the United Nations to adopt a binding instrument in the international human rights law. In response to a continued advocacy for a disability convention, in December 2001 the UN General Assembly passed a resolution establishing an Ad Hoc Committee:
[T]o consider proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, based on the holistic approach in the work done in the field of social development, human rights and non-discrimination, taking into account the recommendations of the Commission of Human Rights and the Commission for Social Development.
The effort to harmonize experience from the fields of social development and human rights into a single, comprehensive and integral treaty is in itself a unique opportunity to underpin the cultural shift. This treaty elaboration effort by the UN has also enlarged the conventional role of National Human Rights Institutions, who normally seek to translate the international human rights norms and standards into practical action at the ground level, where it matters most. The practical knowledge that NHRIs possess about the functioning of laws and their vigilant inquiry into human rights violations equip them with unique capabilities that have been found useful by the United Nations in tailoring rights to the circumstances of persons with disability.
Encouraging the active participation by National Human Rights Institutions, the United Nations High Commissioner for Human Rights mentioned ‘it will be of utmost importance that not only States but also National Human Rights Institutions are able to contribute their experience to the elaboration of the new Convention on the rights of persons with disabilities.’
Responding positively to this call, the National Human Rights Commission of India undertook a series of
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activities to mobilize support for a binding convention and to raise awareness about it.
Today the Commission has the honour of representing the Asia Pacific Forum and the International Coordinating Committee of the National Human Rights Institutions in the UN ad hoc Committee established by the General Assembly to elaborate the Disability Convention. The Office of the High Commissioner for human rights has appointed Indian Commission’s Special Rapporteur, Disability to discharge this responsibility on behalf of ICC. In this manual several references to the Draft Disability Convention would feature to illustrate the current thinking on human rights for persons with disabilities.
The legal practitioners, disability and human rights activists, academic institutions and National Human Rights Institutions of India and Canada, who are the beneficiaries of this project, are likely to play an important role in consolidating the gains of the new standard setting exercise in the field of disability and human rights. In this respect, this project is a timely step towards improving the capacity of those who could have a far more important role in spreading education and awareness and to oversee the enforcement of the new Disability Convention. It is hoped that the project would inspire the legal academia to undertake curriculum revision to ensure adequate reflection of disability experience in their courses. It is further hoped that this manual would prove to be a helpful tool in this process.
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