Towards a more (dis) inclusive world?

By Radhika Agarwal (NALSAR University of Law)

The first part of the paper highlights the fact that despite their objective of helping the world’s poorest and most marginalized people, the Millenium Development Goals overlook the needs of the disabled people as an impoverished group. The second part of the paper studies the initiatives taken by the United Nations to eradicate poverty among the disabled population. Since India ratified the recent United Nations Convention on the Rights of Persons with Disabilities, it is under an obligation to respect the rights of the disabled persons and to protect them under its national laws. In the third part of the paper, the researcher has given her own analysis of the extent to which the present Persons with Disabilities Act (PWDA) in India respects the rights of the persons as laid down in the United Nations Convention.

PART I- MILLENIUM DEVELOPMENT GOALS AND DISABILITY

“The rights of disabled people need to be better incorporated into our poverty reduction work and the achievement of the Millennium Development Goals”- Gareth Thomas, Parliamentary under Secretary of State, DFID (DFID Spotlight 29 September 2004)

According to a study conducted by the World Bank, twenty percent of the world’s poor population is afflicted by disability, with ten percent of the world’s population comprising persons with disabilities. The Millenium Development Goals (MDGs) were set to specifically overcome the problem of poverty^[1].  In light of the aforementioned facts, it is ironical that there is no mention of persons with disabilities in the Millenium Development Goals.^[2] Even the vast body of guidelines, policies and programmes that forms an integral part of the MDGs lacks any reference to the persons with disabilities. Hence, the rhetorical question: If the MDGs indeed aim to help the poorest and most marginalized section of the world, can it be done by neglecting this twenty percent of the population? ^[3]

There is evidently a strong correlation that exists between disability and poverty. This argument can be made in two ways, the first being that poverty leads to disability. Malnutrition among pregnant women is seen to be a direct cause of physical deformities leading to disabilities in new-born children. Secondly, poverty can be a consequence of disability.^[4] While elucidating his ‘capabilities’ approach, the well-known economist, Amartya Sen, argued that persons with disabilities suffer from something known as a “conversion handicap”. “.. In the developing world, the disabled are quite often the poorest of the poor in terms of income, but in addition, their need for income is greater than that of able-bodied people, since they require money and assistance to try to live normal lives and to attempt to alleviate their handicaps. The impairment of income-earning ability, which can be called the ‘earning handicap’, tends to be reinforced and much magnified in its effect by ‘the conversion handicap’: the difficulty in converting incomes and resources into good living, precisely because of disability.” Owing to the greater

care that a disabled person requires when compared to a “non-disabled” person, more resources are required to be spent while fulfilling the needs of a person with disability. This may lead to poverty in a family that has to support a disabled member.^[5]

PART II- UNITED NATIONS AND DISABILITY

"Together, let us travel this road toward a more caring and inclusive world." –Ban Ki-Moon (Secretary-General, United Nations)

The United Nations has been proactively involved in advocating rights of persons with disabilities. The UN Convention on the Rights of Persons with Disabilities (2006) was not only this century’s first comprehensive human rights treaty, but was also the first treaty in the history of United Nations to have 82 signatories on the day it was opened for signature.

The treaty identifies and lists the rights of persons with disabilities which the parties to the treaty must ensure. These rights such as equality before the law without discrimination, right to education, right to work and right to health have to be respected and protected.

The rights of disabled people were also recognised by the United Nations in its earlier declarations of 1970s- The Declaration on the Rights of Mentally Retarded Persons (1971) and The Declaration on the Rights of Disabled Persons (1975). Both the declarations aimed to ensure the inclusion of such persons in society. Among the many rights, both declarations recognized that persons with disabilities have the right to be protected against exploitation, the right to have access to legal aid and the right to live with their families.

The year 1981 was observed as the International Year of Disabled Persons. This led to the adoption of the World Programme of Action concerning Disabled Persons in 1982. The programme seeks to promote a human rights approach through “equalization of opportunities”. Also, the Decade of Disabled Persons (1980-1990) resulted in the 1993 General Assembly Resolution adopting the Standard Rules on the Equalization of Opportunities for Persons with Disabilities. The twenty two standard rules summarize the objective of the World Programme of Action.

Apart from the treaties and declarations that focus specifically on the rights of persons with disabilities, other international conventions such as the Convention on the Rights of the Child seek to prevent disability as a ground for discrimination. While conventions such as The International Covenant on Economic, Social and Cultural Rights, The International Covenant on Civil and Political Rights and The International Convention on the Elimination of All Forms of Racial Discrimination do not specifically refer to disability as a basis of discrimination, they are understood to implicitly mean so.

The Secretariat for the Convention on the Rights of Persons with Disabilities (SCRPD) is a part of the United Nations Secretariat that works to promote the basic human rights of persons with disabilities through the implementation of the various human rights treaties, especially the Convention on the Rights of Persons with Disabilities.

The work of the United Nations in the field of disability rights seems promising as its most recent Convention has 153 signatories and has been ratified by 110 parties. The Convention is also legally binding on the parties. The Committee on the Rights of Persons with Disabilities and the Inter Agency Support Group for the Convention work together to ensure compliance with the principles of the

Convention. India is among the 110 State parties to ratify the Convention which thus places it under an international obligation to respect the rights of persons with disabilities. Moreover, the national laws of the land should be reflective of such an obligation.

PART III- DISABILITY LAW IN INDIA

The most important legislation in India that deals with disability is the  Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWDA). The Act was enacted on January 1, 1996 after the signing of the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region.

The UN Convention on the Rights of Persons with Disabilities aims to ensure the right to education, the right to health and the right to work for persons with disabilities. Section 26^[6] of the Act lays down that the local authorities and appropriate governments shall secure free education for disabled children till they attain the age of eighteen years. Chapter VI of the Act aims to ensure employment for people with disabilities. The provisions of the Act thus seem to protect the rights of the disabled. However, there is very less implementation of the provisions. According to a study by Pamela Koehler on ‘Using Disability Law to Protect Persons living With HIV/Aids: The Indian and American Approach’^[7], there is widespread discrimination against the persons disabled by HIV/AIDs. This can be observed in educational institutions, workplaces and even in hospitals. The disabled are denied their basic rights to education, employment and health-care on account of their disability. The children of people suffering from HIV are often denied admission in schools.

It is safely inferred from such data that much of the disability law exists only on paper.  Moreover, most of the drafting of the current disability law in India has been done without the participation of the disabled people. This is the ‘satya’ that lawmakers need to reconcile. The law hence needs to be amended keeping in view the needs of the people with disabilities. It is imperative to consult the disabled for whom the law is being made. To comply with its international obligations towards people with disabilities as laid down in the UN Disability Convention, India needs to revise its law and to make provisions for better implementation of the same.

“You and I and millions of others know, that when we respect the inherent dignity of persons with disabilities, we enrich our human family,” – Asha Rose-Migiro (Deputy Secretary General, United Nations)

Radhika Agarwal is a second year student pursuing B.A. LL.B. (H) at NALSAR University of Law, Hyderabad.

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[1]  “The MDGs are specifically designed to address the needs of the world’s poorest citizens and the world’s most marginalized populations.”

See generally  http://www.un.org/disabilities/default.asp?id=1470 (last visited March 3, 2012)

[2]  “The relevance of disability in the understanding of deprivation in the world is often underestimated, and this can be one of the most important arguments for paying attention to the capability perspective. People with physical or mental disability are not only among the most deprived human beings in the world, they are also, frequently enough, the most neglected.”- Amartya Sen

See generally Amartya Sen, The Idea of Justice (Penguin 2009)

[3] The United Nations concluded with its Expert Group meeting on MDGs that “The Millennium Development Goals cannot be achieved without the full and effective inclusion of persons with disabilities and their participation in all stages of the MDGs processes.”    

“The entire gamut of social policies needs to be monitored in terms of their impact on the most marginalized sections, if inclusive growth is to become a real policy, instead of remaining a mere slogan”- Ashwini Deshpande(Professor of economics at the Delhi School of Economics), Why Do We Need Inclusive Growth ?, UNews MDG Supplement.

[4] I am grateful to Mr. Gabor Gombos (member, UN Committee on the Rights of Persons with Disabilities) for his valuable insights on people with disabilities.

[5]  See generally ‘Disability, Poverty and the Millenium Development Goals: Relevances, Challenges and Opportunities for DFID’

available at http://digitalcommons.ilr.cornell.edu/

[6] Section 26 of the PWDA: The appropriate Governments and the local authorities shall- 

(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;

(b) Endeavor to promote the integration of students with disabilities in the normal schools;

(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;

(d) Endeavor to equip the special schools for children with disabilities with vocational training facilities.

[7] available at http://www.law.fsu.edu/journals/transnational/vol19_2/koehler.pdf (last visited March 5, 2012)