Concept of Disability:
Disabilities is an umbrella term, covering impairments, activity limitations,
and participation restrictions. An impairment is a problem in body function or
structure; an activity limitation is a difficulty encountered by an individual
in executing a task or action; while a participation restriction is a problem
experienced by an individual in involvement in life situations. Disability is
thus not just a health problem. It is a complex phenomenon, reflecting the
interaction between features of a person's body and features of the society in
which he or she lives.
Disability is a contested
concept, with different meanings for different communities. It may be used to
refer to physical or mental attributes that some institutions, particularly
medicine, view as needing to be fixed. It may refer to limitations imposed on
people by the constraints of an albeit society. Or the term may serve to refer
to the identity of people with disabilities. It can be said that it is an
impairment that may be cognitive, developmental, intellectual, mental,
physical, sensory, or some combination of these. It substantially affects a
person's life activities and may be present from birth or occur during a
person's lifetime.
Legal Rights of The
Disabled In India:
The
Constitution of India applies uniformly to every legal citizen of India,
whether they are healthy or disabled in any way (physically or mentally). The
Constitution of India secures to the citizens including the disabled, a right
of justice, liberty of thought, expression, belief, faith and worship, equality
of status and of opportunity and for the promotion of fraternity. The right to
Education is available to all citizens including the disabled. The Constitution
directs the State to provide free and compulsory education for all children
until they attain the age of 14 years. The health laws of India have many
provisions for the disabled. Some of the acts which make provision for the
health of the citizens including the disabled may be seen in the Mental Act,
1987. Various laws relating to the marriage enacted by the Government for
different communities apply equally to the disabled. There are certain
circumstances that will disable a person from undertaking a marriage.
They are:
· When
the either party is a lunatic;
· When
the parties are unable to give a valid consent because of the unsound mind;
· When
the parties are within the degree of prohibited relationship.
Under the Succession Act,
1956 which applies to Hindus it has been specifically provided that physical
disability or physical deformity would not remove a person from inheriting
ancestral property. The rights of the disabled have not been spelt out so well
in the labour legislations but provisions which cater to the disabled in their
relationship with the employer are contained in delegated legislations such as
rules, regulations and standing orders.
Constitutional aspects:-
The Constitution of India has guaranteed full protection to the rights of
disabled people. The Preamble of the Constitution contains the concept of
social justice and equality of status and opportunity to all the people of
India. Article 14 & 16 of the Constitution which guarantee equality of
opportunity to all citizen of India. Article 38 of the Constitution which
subsides within Directive Principles of State Policy, requires the State to
promote the welfare of the people by securing a social order in which social,
economic and political justice can inform to all institutions of national life
and the State is required to make efforts to eliminate inequalities in status,
facilities and opportunities amongst individuals.
Various Statutory legislations In India:
1) Persons
with disabilities (PWD) (equal opportunities, protection of rights and full
participation) Act, 1995: The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 had come
into enforcement on February 7, 1996. It is an important step which ensures
equal opportunities for the people with disabilities and their full
participation in the nation building. The Act provides for both the preventive
and promotional aspects of rehabilitation like education, employment and
vocational training, reservation, research and manpower development, creation
of barrier- free environment, rehabilitation of persons with disability,
unemployment allowance for the disabled, special insurance scheme for the
disabled employees and establishment of homes for persons with severe
disability etc.
2) The Mental Health Act, 1987: The Mental Health Act,1987 was
enacted to regulate admissions to psychiatric hospitals and  psychiatric
nursing homes of mentally ill-persons who do not have sufficient understanding
to seek treatment on a voluntary basis and to protect the rights of such
persons while being detained, to protect society from the presence of mentally
ill persons who have become or might become a danger or nuisance to others
among other provisions.
3) The Rehabilitation Council of India Act, 1992:
It was passed to regulate the man power development programmes in the field of
education of persons with special needs. The main objectives are to regulate
the training policies and programmes in the field of rehabilitation of people
with disabilities, to standardize training courses for rehabilitation
professionals and also for ensuring the establishment of rehabilitation
centres.
4) The Workmen’s Compensation Act, 1923:
If any injury or accident is caused to the workman in the course of work or
employment then his employer has to pay compensation. As per Section 4 of the
above Act, where permanent total disablement results from the injury, an amount
equal to 60% of the monthly wages of the injured workman multiplied by the
relevant factor or amount of twenty thousand rupees whichever is more.
5) Employee’s State Insurance Act, 1948:
Periodical payment shall be made to an insured person suffering from
disablement as a result of an employment injury sustained as an employee under
this Act and certified to be eligible for such payments by an authority
specified in this behalf by the regulations. In India, the disabled citizens
have the same rights as other citizens to a descent standard of living and
economic security, right to work, education, employment and also right to
access and communication.
Decided cases in India:
In Javed Abidi v. Union of India - The Supreme Court bearing
in mind the discomfort and harassment suffering by a person of locomotors
disability would face while travelling by train particularly to far off places,
issued direction to the Indian Airlines to grant persons suffering from
locomotors disability to the extent of 80%.
In Chandan Kumar Banik v. State of West Bengal -
The Supreme Court has given the order to provide respite to mentally challenged
inmates of a hospital in Hooghly district who were being kept chained by the
hospital authority to control their unruly and violent behavior.
In National Federation of Blind v. Union Public
Service commission - The Supreme Court held that, the UPSC may be
directed to allow blind person for appearing the examinations for Indian
Administrative and allied services.
In Govt. of NCT of Delhi v. Bharat Lal Meena -
The Delhi High Court held that people with disabilities can be appointed as
physical education teachers provided they have passed the qualifying
examination and undergone the requisite training.
Conclusion:
Disability refers to the
disadvantage or restriction of activity caused by the way society is organized
which takes little or no account of people who have physical, sensory or mental
impairments. As a result such people are excluded and prevented from
participating effectively on equal terms in mainstream society. Disability is
an unfortunate part of human life which can effect not only the natural way of
living but also despair component strength and power.
