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Study of educational and employment opportunity in physically challenged people in India: on overview - by Dhanashri Ramdas Shegar - by Dhanashri Ramdas Shegar
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Article Details
Study
of educational and employment opportunity in physically challenged people in
India:
on overview
Authored by –
Dhanashri
Ramdas Shegar
CHAPTER: 1 INTRODUCTION TO RESEARCH STUDY
1.1 INTRODUCTION :-
A physically challenged person is one who suffers
from the loss of a limb or deformity in physical
or mental capability whether due to nature’s foul play or an unexpected
unfortunate accident. It is estimated
that about 12 millions Indians,
about 1.8 percent
of Indian population have at least one disability or the other.
The physically challenged who are also termed as handicapped, disabled or physically or mentally
disadvantaged are having more than one type of physical disability. The number of physically challenged person is
increasing every year because of the accidents
taking place on roads, railways, even airplanes because of mechanical or human
errors in this era of fast developing science and technology. The natural calamities caused by heavy
rains, floods and earthquakes also add to the number of
the physically challenged.
The terms ‘handicapped’ varies in meaning
and significance not only in different countries but within anyone country also according to the purpose for
which its meaning is applied or for which it is desired
to classify such persons. Secondly,
the extent to which any type of disability or deformity will be considered a ‘handicap’ or ‘impairment’ is strictly relative
to the expectations of the culture in which the person lives.
What seem to be natural and normal in one country may be viewed other-wise in another culture. Binding of feet and
thereby restricting their full natural growth,
for example is very much vogue in China but is considered uncommon in American culture.1
Throughout the world today there are millions
of men, women and children
who are facing some serious
handicap or physical disabilities. So great a toll of misery and disability
must evoke our profound
concern. The prevalence of diseases which may result
in lifelong disability is a major
health problem. From a social and economic point of view, the burden of
dependency of the physically
handicapped has contributed in no small part to a country’s poverty and
relative backwardness. Moreover, the
sheer waste or productive capacity is a matter of grave concern in modern
times. There is a growing
realization of this fact in many developing nations of the world.
1 Taylor, W. Wallace
and Taylor I, Wagner, “ Services for the Handicapped in India”
Many of these nations struggling
to develop programmer
that will convert as many as possible of their disabled into relatively active,
self dependent, productive members of their country. This
stems in part from human considerations and an effort to eliminate individual misery and distress.
The World Disabled Day is observed on the ‘third Sunday of March’ every year all
over the world to make people in different countries
aware of the problems of the physically challenged and the sympathy
and assistance they deserve and need to cope with and overcome
their disabilities to the
maximum possible extent.
The World Programme
of Action (WPA) is a global strategy
to enhance disability prevention, rehabilitation and equalization of opportunities,
which pertains to full participation of persons
with disabilities in social life and national development. The WPA also
emphasizes the need to approach disability from a human rights perspective. Its three chapters
provide an analysis
of principles, concepts and definitions relating to disabilities; an
overview of the world situation regarding
persons with disabilities; and set out recommendations for action at the national,
regional and international levels.2
A disadvantage for a given individual, resulting from
an impairment or disability, that, limits or prevents the fulfillment of a role that is normal, depending
on age, sex, social and cultural factors,
for that individual.3
The United Nations
Convention on the Rights of Persons with Disabilities and its Optional
Protocol (the Convention) entered into force in May 2008. It provides
for the full and equal enjoyment of all human
rights and freedom
for all persons with disabilities without discrimination of any kind. Although the Convention does
not explicitly define disability, it considers that disability arises from a health
condition in interaction with the environment. The policy falls under the broader framework of WHO’s diversity
management and reflects the Organization’s zero- tolerance of stigma and discrimination of any kind. The process
of mainstreaming disability into the
development agenda has evolved considerably. With more than 10 per cent of the
global population living with some
form of disability, the majority of whom live in poverty in the developing world, this mainstreaming process is directly
linked to the achievement of the Millennium Development Goals. Addressing all aspects of exclusion of persons with disabilities
is integral to the Organization's ability to achieve its global health mandate.
The policy set forth below
complements the Organization’s technical efforts and is consistent with the
mandate of the WHO Task Force on
Disability established by the Director- General in 2008 to encourage and facilitate WHO programmers and projects
Organization-wide to be designed and implemented taking into account
the needs of people with disabilities.4
2 This resolution is contained in United Nations
document A/37/51, Official
Records of the General Assembly,
Thirty-seventh Session Supplement No. 51
3 International Classification of Impairments, Disabilities and Handicaps (ICIDH),
World Health Organization, Geneva, 1980.
1.2
RATIONAL AND SIGNIFICANCE:-
The research seeks to analysis the state policy
related to disabled person affected on employment.
It is also analysis the impact among their family, growth of state economy.
Also study how our legal system, laws
are implemented for the disabled persons. Also consider the national health programs and Governmental
organization work for the disabled persons and there employment. Analysis the state Policy and other policies
related to disabled person and there employment.
The researcher also study the health issue
and background of the disabilities. The research includes also reasons and problems
which are facing by the disabled person related to the employment and
economy bases.
1.3
LITERATURE REVIEW:
a)
National Human Right
Commission Report (2005)
Reports that by 2020, road traffic accidents will be
ranked as the third leading cause of disability
in the Asian and Pacific region. Quadriplegia, paraplegia, brain damage and
behavioral disorders are some common disabilities among survivors of traffic accidents.5
b)
World Bank Report (2007)
States that disability transition rate in India
is predicted to be most rapid as is the percentage of disability years lost due to
non-communicable diseases and injuries from 1990s to 2020s. Between
1990 and 2020, there is predicted to be a halving of disability due to communicable diseases, a doubling of
disability years due to injuries/accidents, and a more than 40 percent increase
in the share of disability years due to non-communicable diseases
(e.g. cardiovascular and stroke).
Half the disability rates from non-communicable disease for South Asia are
estimated to be due to Nero-psychiatric disorders (mainly mental
illness and mental
retardation) suggesting that
percent of total years lost to disability in India by 2020 could be due to these causes alone.6
a)
H.J.M. Desai in his
book
Planning Employment Services for the Blind”
concentrated on providing employment training and other aspects
to the blind and for integrating them with the rest of the society
through the assistance of government
and other agencies. It is a source material for the organization working
for the blind welfare. In addition to this, he has contributed a few book and articles
in the UN. In his book he pointed out how the blind are getting deprived
of the employment opportunities.
The book suggests various kinds of posts that are suitable to the visual handicapped persons.7
4 WHO policy on the employment of persons with disabilities. Published by 10th may
2008
5 NHRC, National Human Rights Commission Manual, 2005.
b)
S.L. Geol. and R.K. Jain
In their two volumes on ‘Social Welfare in India’
have exhaustively dealt with various aspects
of social welfare including the one for disabled. In an exclusive section of
the book they have discussed the extent of the problems
of the disabled and the measures
adopted by the Central and State Governments for ameliorating
lot of the disabled. The role of some important voluntary agencies
in the field has also been appreciated.8
1.2
AIMS AND OBJECTIVES
1. To study
the existing policies
/ Programmers / Schemes related
to disabled persons employment.
2. To analysis
the legal perspective towards the disabled
persons.
3. To analyse
their development and educational and employment
facilities.
4. To study the
study policy and international legal frame work for
the disabled persons.
5. To assess the concern of the centre and state governments about the problems
of the physically challenged.
1.3
SCOPE AND LIMITATION
:-
The problems of disability in developing countries
need to be specially highlighted. As many as 80 per cent of all disabled
persons live in isolated rural areas in the developing countries. In some
of these countries, the percentage of the disabled population is estimated to
be as high as 20 and, thus, if families and relatives are included, 50 per cent of the population could
be adversely affected by disability. The problem is
made more complex by the fact that, for the most part, disabled persons are also usually extremely poor people. They
often live in areas where medical and
other related services are scarce, or even totally absent, and where
disabilities are not and cannot be
detected in time. When they do receive medical attention, if they receive it at
all, the impairment may have become
irreversible. In many countries, resources
are not sufficient to detect and prevent disability and to meet the
need for the rehabilitation and supportive services of the disabled population.9
The area of the state policy related with disabled
person and there unemployment is huge so
that’s why researcher limits their research to the unemployment. And also
researcher analysis the Japan
countries state policy related to the disabled persons and their employment
solution related to disability and unemployment.
6 World Bank Report, “People with disabilities in India: from to outcomes”, Washington DC: Human Development Unit,
South Asia Region, World Bank, 2007.
7 Desai, H.J.M., “United Nations Concern for the
Disabled”, World Council for the Welfare of the Blind, Paris, 1983.
8 S.L. Goel and R.K. Jain, “Social Welfare
in India (Vol I &II)”, Deep and Deep
Publications, New Delhi,
1989.
Researcher also study the schemes,
programmers’, policies
related with the disabled person and there unemployment. The limitation is only
to the state policy, rights under the
constitution, human rights, state
policy related to the Japan.
1.4
RESEARCH QUESTION
Whether the central
and state governments are genuinely concerned
about the problems
of the physically challenged as is reflected
in their approach
to solve their educational and employment problems?
1.5
RESEARCH AND METHODOLOGY
The research based upon doctrinal
research. The doctrinal research sources are primary as well as secondary also. And taken
multidisciplinary approach of state policies
which are national
and international level. Studying various regional and national impact
and particular subject matters case
laws. The source also involving various reports, articles, national and
international policies and acts
related to the same. And also refer different policies, schemes which are
related to the subject matter.
CHAPTER:2
NATIONAL AND INTERNATIONAL PERSPECTIVE RELATED TO THE DISABLED PERSONS
2.1 INDIAN STATE POLICIES FOR THE PERSON
RELATED TO THE UNEMPLOYMENT
Enhancing employment opportunities for people with
disabilities is one of the main concerns
of the disability sector in India. When one looks at the micro level,
it may seem like there has
been progress. There is increased awareness amongst Corporate and people with
disabilities. There has been pressure
on the Government to implement The Disability Act, 1995. Even though there was no law mandating the private
sector to employ disabled people, some companies have taken proactive measures to employ disabled people. The picture
seems positive. However, the following
finding of the World
Bank Report ‘People
with Disabilities in India: From Commitments to Outcomes’ released in 2007, tells a different
story.10
and implicitly mandates an inclusive society
for all including persons with disabilities. In the recent
years, there have been vast and positive changes in the perception of
the society towards persons with
disabilities.
The Constitution of India ensures equality, freedom,
justice and dignity of all individuals It
has been realized that a majority of persons with disabilities can lead a
better quality of life if they have
equal opportunities and effective access to rehabilitation measures. According
to the Census 2001, there are 2.19 crore persons
with disabilities in India who constitute
10 Employment of Disabled
People in India National Centre for Promotion of Employment for Disabled People, last seen 02/11/2018.
2.13 percent of the total
population. This includes
persons with visual,
hearing, speech, locomotors and mental disabilities. Seventy five per cent of persons with disabilities live in rural areas, 49 per cent of disabled population is literate
and only 34 per cent are employed. The earlier emphasis on medical rehabilitation has now been
replaced by an emphasis on social rehabilitation. There has been an increasing recognition of abilities
of persons with disabilities and emphasis on mainstreaming
them in the society based on their capabilities. The Government of India has enacted
three legislations for persons
with disabilities.11
There are five Composite Rehabilitation Centers, four Regional
Rehabilitation Centers and 120
District Disability Rehabilitation
Centers (DDRCs) providing various kinds of rehabilitation services to persons with disabilities. There are also several national
institutions under the Ministry of Health &
Family Welfare working
in the field of rehabilitation, like National Institute
of Mental Health
and Nero Sciences, Bangalore; All India Institute of Physical Medicine
and Rehabilitation, Mumbai; All India Institute of Speech and
Hearing, Mysore; Central Institute of Psychiatry, Ranchi, etc. In addition, certain
State Government institutions also provide rehabilitation services. Besides, 250 private institutions conduct training courses
for rehabilitation professionals. National Handicapped and Finance Development
Corporation (NHFDC) has been providing loans on concessional terms for undertaking self-employment ventures by
the persons with disabilities through
State Channelizing Agencies. Panchayati Raj Institutions at Village level,
Intermediary level and District level
have been entrusted
with the welfare
of persons with disabilities. India is a signatory
to the Declaration on the Full Participation and Equality of People with
Disabilities in the Asia Pacific Region.
India is also a signatory to the Biwako Millennium Framework
for action towards an inclusive, barrier free and
rights based society. India is currently participating in the negotiations on the UN Convention on
Protection and Promotion of the Rights and Dignity of Persons with
Disabilities.12
Considering slow pace of growth
in employment opportunities in the organized sector, self employment of persons with disabilities
will be promoted. This will be done through vocational education and management training. Further, the existing system
of providing loans
at softer terms
from the NHFDC will be improved to make it easily accessible with
transparent and efficient procedures
of processing. The Government will also encourage self employment by providing incentives, tax concessions, exemptions
from duties, preferential treatment for procurement of goods and services by the Government from the enterprises of
persons with disabilities, etc. Priority
in financial support will be given to Self Help Groups formed by the persons
with disabilities.13
11 National Policy
for Persons with Disabilities, Government of India Ministry of Social Justice and Empowerment
12 National Policy
for Persons with Disabilities, Government of India Ministry
of Social Justice
and Empowerment http://usicd.org/doc/ No.3-1/1993-DD.III
13 National
Policy for Persons with Disabilities, Government of India Ministry of
Social Justice and Empowerment http://usicd.org/doc/ No.3-1/1993-DD.III
The government shall initiate a dialogue with private
sector organizations to help persons with
disabilities in getting employment. Develop appropriate home-based income
generation programmers’ for the
persons with disabilities especially for persons with severe and multiple disabilities, who opt for such programmers’. The system of coaching for employment will also be encouraged for persons with disabilities and their caregivers. Facilitate modifications in the design
of machinery, workstation and work environment necessary for the
disabled persons to operate without
barriers in training centers / factories / industry / offices etc. Provide
assistance through appropriate
agencies like Marketing Boards, District Rural Development Agencies (DRDAs), private
agencies and Non Governmental Organizations in marketing of goods and services produced by persons with disabilities.
Coverage of persons with disabilities in poverty alleviation programmers’ will be improved so that
they get their due share of 3 percent as provided under statutory provisions.14
2.2
JAPAN STATE POLICIES FOR THE DISABLED
PERSON RELATED TO THE UNEMPLOYMENT
Unemployment of people with disability (PWD) is still
a problem in Japan and the worldwide.
The problem behind is the priority issue. Tackling unemployment for
non-disabled people is highly
prioritized than the PWD. The second problem is caused from the fact that they are divided two groups. This is work force
and non work force, because the categorization of the illness is dependent upon the severity of the disability. Those
who are classified in the non- workforce are supported by the state insurance and pension
system.
Japan already disclosed the figure of PWD’s population from the Japanese
government. According to the
government’s announcement (2015 PWD annual report based on 2011 census) PWD population is 7.88million (physical
3.94, intellectual 0.74, and mental 3.20) the ratio against
the whole population is approximately 6%. The percentage gap from the
World Bank’s estimate in the world
figure only can explain discrepancy of the definition to the disability. Japan
does not include people
with debilitating illness
such as HIV/AIDS, chronic alcoholism, epilepsy or rheumatism.
This exclusive approach to define disability results lower rate of disability.
On this thesis the further study of the PWD’s figure is not the main issue.
The Constitution of Japan stipulates on Article 27
saying “All people shall have the right and
the obligation to work.” Therefore People with disability have a right to work.
That is basic human right. Discrimination is prohibited by domestic and international law. The employer
has to give them a reasonable accommodation without discrimination
like gender, races and religion when
PWD wants to be employed. However depend on the sereneness of disability some
PWD are difficult to work.
14 National Policy for Persons with
Disabilities, Government of India Ministry of Social Justice and
Empowerment http://usicd.org/doc/ No.3-1/1993-DD.III
Economics the best scenario
is to minimize the government expenditure of welfare
cost for PWD and maximize
the labor force in domestic
labor market including
gender, elders and PWD also. PWD has a right and sometimes
responsibility to work depends on the severity of disability. In Japan at the rural area many PWD are trapped in their parent’s
home, because after graduation from the special
high school, they cannot find the opportunity to get jobs at their home
town which
means any job even in the
welfare employment.
Approaches to the employment of PWD are generally
divided into two types. One is the equality
of opportunity based on anti-discrimination laws, the other is the employment
quota approach which is based on employment quota system. The US adopted
an equality of opportunity, Japan
adopted a quota approach like many European countries. The People with
Disabilities Employment Promotion Act
of Japan aimed the stable employment of PWD. This act contained two important
policy, which is the quota system in conjunction with grant and levy
system.
Some scholars pointed out that the Quota scheme
discouraged young PWD go to higher education
because they can get assured job right after graduation of special school “The quota enacted by the government actually exacerbate the situation
since even high school graduates are pretty
much assured a job, even if it were a dead-end window-seat job.” The Ministry
of Education, Culture, Sports, Science and Technology
(MEXT) reported in 2010 about the disability students in tertiary school of Japan , they reported the percentage
increased from 0.16% at 2006 to 0.22% at 2009 in the whole students
numbers (about 3million
students in Japan).
In the U.S 9% of college students report having a disability, the number is likely much higher since many disabled
students do not report.
Based on the Convention on the Rights of Persons with
Disabilities adopted by the UN General Assembly
in 2006, Japan’s
act on Employment Promotion of PWD was amended on 13th
June, 2013. It prohibits discrimination against PWD in employment and requires
employers to make reasonable accommodation. That means
Japan now adopted
both approach above mentioned which is equality of opportunity and quota approach. The concept of “reasonable accommodation” has
an origin from US. In the US, the Civil Rights Act of 1964 banned
discrimination based on race, skin,
color, religion, gender or country of origin. Therefore courts ruled out that
employer should give reasonable
accommodation to workers for guarantee of the equal opportunity. This concept
of reasonable accommodation was
expanded to include the discrimination of disability.
2.3
PROTECTION UNDER THE HUMAN RIGHTS (UDHR)
The charter of the United
Nations of 1945 is the foundational treaty
of the United Nations, an intergovernmental organization.
Article 55 says that With a view to the creation of conditions of stability and well being which are
necessary for the peaceful and friendly relations among nations based on respect for the principle of equal rights and
self determination of people’s the United
Nations shall promote: Higher standard of living, full employment and
conditions of economic and social progress
and development; solutions of international economic,
social, health and related problems
and international cultural
and educational co operation Universal
respect for, and observance of human rights and
fundamental freedoms for all without distinction as to race, sex, language or religion.15
The Declaration of the Rights of Disabled persons was a declaration of
the General Assembly of the United Nations
made on 9 Dec 1975. It is the 3447th resolution made by the Assembly.
The disabled person shall enjoy all rights contained in this declaration without distinction or discrimination. The disabled persons
have inherent rights
to respect for their human dignity
and irrespective of the origin, nature and seriousness of their handicaps and
disabilities, have same Fundamental
Rights. Disabled persons have the same civil and political rights as other human beings. Disabled persons are
entitled to the measures designed to enable them to become as self-reliant as possible. Disabled
persons have the right to economic and social security, including the right, according to their capabilities, to secure
and retain. Employment or to engage in a
useful, productive and remunerative occupation and to join trade unions.
Disabled persons have the right to
live with their families or with foster parents and to participate in all
social, creative or recreational
activities. Disabled persons shall be protected against all exploitation and treatment of a discriminatory,
abusive or degrading nature.16
The Convention on the Rights of Disabilities is an
international human rights treaty of the United
Nations intended to protect the Rights and dignity of persons with disabilities.
Parties to the convention are
required to promote, protect and ensure the full enjoyment of human rights by persons with disabilities and ensure
that they enjoy full equality under the law. In the charter of the United Nations it is proclaimed that the inherent dignity and worth and the
equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world.
Similarly, the United
Nations, in the universal declaration of human rights
and in the International
covenants on Economic, Social and cultural rights. It is supposed that the convention would make a significant
contribution to redressing the profound social disadvantage of persons with disabilities and promote
their participation in the civil, political, economic, and social and cultural spheres with equal
opportunities, in both developing and developed countries. The convention on the Rights of Persons
with disabilities deals with matters such as, general principles on the basis of which the rights of the disabled
persons are to be promoted
and protected, the obligations that have been undertaken by the State parties to adopt measures. The protocol has been
added to the present convention authorizing the Committee on the Peron with
Disabilities to receive and
consider communications from or on behalf of individuals or groups of
individuals, who claim to be victims of a violation by a State party of the provisions of the present
convention.17
15 Praveen Rights of Disabled Persons - Legal
Service India http://www.legalserviceindia.com/legal/article-98 last seen 03/11/2018
16 Praveen Rights
of Disabled Persons - Legal Service India http://www.legalserviceindia.com/legal/article-98 last seen 03/11/2018
17 Praveen Rights
of Disabled Persons - Legal Service India http://www.legalserviceindia.com/legal/article-98 last seen 03/11/2018
Persons with disabilities face discrimination and barriers that restrict them from participating in society on an equal basis
with others every day. They are denied their rights to be included in the general
school system, to be employed, to live independently in the community, to move freely, to
vote, to participate in sport and cultural activities, to enjoy social
protection, to access justice,
to choose medical
treatment and to enter freely
into legal commitments such as buying and selling property.
A disproportionate number of
persons with disabilities live in developing countries, often marginalized
and in extreme poverty. The protection guaranteed in other human rights treaties, and grounded in the Universal
Declaration of Human Rights, should apply to all. Persons
with disabilities have, however, remained
largely ‘invisible’, often
side-lined in the rights debate and unable to enjoy the full range of human rights.18
In recent years, there has been a revolutionary
change in approach, globally, to close the protection gap and ensure
that persons with disabilities enjoy
the same standards
of equality, rights
and dignity as everyone else. The Convention on the Rights of Persons
with Disabilities, which was adopted
in 2006 and entered into force in 2008, signaled a ‘paradigm shift’ from
traditional charity-oriented, medical-based approaches to disability to one based on human rights. Former
UN High Commissioner for
Human Rights, Louise Arbor said, “The celebration of diversity and the empowerment of the individual are
essential human rights messages. The Convention embodies and clearly conveys these messages by envisaging a fully active
role in society for person with disabilities.”19
2.4
NATIONAL HEALTH
POLICY, 2002
A National Health Policy was last formulated in 1983,
and since then there have been marked
changes in the determinant factors relating to the health sector. Some of the
policy initiatives outlined in the NHP-1983
have yielded results,
while, in several
other areas, the outcome has not been as expected.
The NHP-1983 gave a general
exposition of the policies which required recommendation in the circumstances then prevailing in the health sector. The noteworthy initiatives under that policy
were a phased, time-bound programme for setting up a well-dispersed network of comprehensive primary health care services, linked with extension
and health education, designed in the context of the
ground reality that elementary health problems can be resolved by the people themselves. Intermediation through ‘Health
volunteers’ having appropriate knowledge, simple skills and requisite
technologies. Establishment of a well worked out referral
18 Human rights of persons with disabilities United Nations human rights
https://www.ohchr.org/en/ last seen 05/11/2018
19 Human rights of persons with disabilities United Nations human rights
https://www.ohchr.org/en/ last seen 05/11/2018
system to ensure that patient load at the higher levels of the hierarchy
is not needlessly burdened by those
who can be treated at the decentralized level. An integrated net-work of evenly
spread specialist and super-specialty services,
encouragement of such facilities through
private investments for patients who can pay, so that the
draw on the Government’s facilities is limited to those
entitled to free use.20
Government initiatives in the public health sector have recorded
some noteworthy successes
over time. Smallpox
and Guinea Worm Disease have been eradicated from the country;
Polio is on the verge of being eradicated; Leprosy,
Kala Azar, and Filariasis can be expected
to be eliminated in the foreseeable future. There has been a
substantial drop in the Total Fertility Rate
and Infant Mortality
Rate. The success
of the initiatives taken in the public
health field is reflected in the progressive improvement of many demographic / epidemiological / infrastructural indicators over time.21
NHP-1983, in a spirit of optimistic empathy
for the health needs of the people,
particularly the poor and under-privileged, had hoped to provide ‘Health
for All by the year 2000 AD’, through the universal provision
of comprehensive primary
health care services.
In retrospect, it is observed
that the financial resources and public health administrative capacity
which it was possible to marshal, was
far short of that necessary to achieve such an ambitious and holistic goal.
Against this backdrop, it is felt
that it would be appropriate to pitch NHP-2002 at a level consistent with our realistic expectations about financial
resources, and about the likely increase in Public Health administrative capacity. The
recommendations of NHP-2002 will, therefore, attempt to maximize the broad-based availability of health services
to the citizenry of the country on the basis
of realistic considerations of capacity. The changed
circumstances relating to the health sector of the country since 1983 have generated a situation in
which it is now necessary to review the field, and to formulate a new policy framework
as the National Health Policy-2002. NHP-2002 will attempt
to set out a new policy
framework for the accelerated achievement of Public health goals in the socioeconomic circumstances currently prevailing in the country.22
2.5
UNITED NATIONS
CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES, 2007
The Convention on the Rights of Persons with Disabilities and its Optional
Protocol was adopted on 13 December
2006 at the United Nations
Headquarters in New York, and was opened
for signature on 30 March 2007. There were 82 signatories to the
Convention, 44 signatories to the
Optional Protocol, and one ratification of the Convention. This is the highest
number of signatories in history to a
UN Convention on its opening day.
21 Essential Medicines
and Health Products
Information Portal World Health Organization resource
http://apps.who.int/medicinedocs/en last seen 04/11/2018
It is the first comprehensive human rights treaty of the 21st century and is
the first human rights convention to be open for signature by regional integration organizations. The
Convention entered into force on 3 May 2008. The Convention follows decades of work by the United Nations to
change attitudes and approaches to persons
with disabilities. It takes to a new height the movement from viewing persons
with disabilities as “objects” of
charity, medical treatment and social protection towards viewing persons with disabilities as subjects with
rights, who are capable of claiming those rights and making decisions for their lives based on their free, and
informed consent as well as being active members
of society.23
The Convention is intended as a human rights instrument with an explicit,
social development dimension. It adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights
and fundamental freedoms.
It clarifies and qualifies how all categories of rights apply to persons
with disabilities and identifies areas where adaptations have to be made
for persons with disabilities to effectively exercise their rights and areas where their rights have
been violated, and where protection of rights must be reinforced. The Convention was negotiated during eight sessions
of an Ad Hoc Committee of the General Assembly from 2002 to 2006, making
it the fastest negotiated human rights
treaty.24
States Parties recognize that women and girls with
disabilities are subject to multiple discrimination,
and in this regard shall take measures to ensure the full and equal enjoyment
by them of all human rights and
fundamental freedoms. States Parties shall take all appropriate measures to ensure the full development,
advancement and empowerment of women, for the
purpose of guaranteeing them the exercise and enjoyment of the human
rights and fundamental freedoms set
out in the present Convention. States Parties shall take all necessary measures
to ensure the full enjoyment by
children with disabilities of all human rights and fundamental freedoms
on an equal basis with other children.
In all actions concerning children
with disabilities, the best interests of the child shall be
a primary consideration. States Parties shall ensure that children
with disabilities have the right to express
their views freely
on all matters affecting
them, their views being given
due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided
with disability and age-appropriate assistance to realize that right.25
23 Convention on the Rights of Persons with Disabilities
(CRPD) United Nation- Disability Department of economic and social affairs https://www.un.org/development/ last seen 05/11/2018
24 Convention on the Rights of Persons with Disabilities
(CRPD) United Nation- Disability Department of economic and social affairs https://www.un.org/development/ last seen 05/11/2018
25 Convention
on the Rights of Persons with Disabilities and Optional Protocol http://www.un.org/disabilities/ last seen 06/11/2018
CHAPTER: - 3 CONSTITUTIONAL PROVISIONS IN RELATION TO
DISABLED PERSON
3.1
PREAMBLE
The framers of the Constitution of India seemed
to have been aware of the problems of the weaker sections of the society and the
disabled persons. Ensuring social and economic equality and justice also would require
that some constitutional provisions should be made for the physically and mentally disabled.
We find that such provisions have indeed, been made which are found scattered in different parts of the Constitution.
Although according to Entry 9 in the List II
of Schedule 7 of the Constitution, the subject of 'Relief to the
disabled and unemployable' is the responsibility of the State Governments, in practice, the Central Government also has a major role to
play in, this field. The Ministry of Welfare has been identified as the nodal
Ministry by the Government for the welfare
of the disabled.26
A brief survey of the constitutional and legislative provisions would
enable us to have an idea of the
concern shown by the Constitution-makers and different governments towards the disabled ever since the establishment of
Indian Republic. Some such provisions which have been could have been and can be utilized for the upliftment of the disabled, are reproduced below.
The Preamble, providing the very wide ambit, promises: We, the people
of India, having solemnly resolved
to secure Justice,
social, economic and political, Equality
of status and opportunity
and fraternity assuring the dignity of the individual enact and give to
ourselves this Constitution.27
3.2
ARTICLE 14
The Constitution
of India provides for equality before the law or equal protection
within the territory of
India. The State shall not deny to any person equality before the
law or equal protection of law within
the territory of India.28
Though
the fundamental rights, in a way, do not have a specific mention of the
physically handicapped or disabled,
yet they do pertain to the socially, economically and educationally backward class of people. But the Ministry
of Social Welfare has already recommended that the disabled be treated equal to women and other weaker sections of the community.29
26 Government of India (1994): National Council
For the Handicapped Welfare, Ministry of Welfare, Vigyan
Bhavan, New Delhi, on 21st September at p.
1.
27 M.P. Jain (2009):
Constitutional Law of India, universal
publications, New Delhi, at p. 89.
28 Article 14 The Constitution of India,1949
29 Government of India (1994):
The Persons with Disabilities (
Security and Rehabilitation) Bill, All poverty alleviation programmes of the Central and State Governments or
any other scheme for the benefit of women or other weaker sections of the community shall be equally applicable to persons with
disabilities.", Ministry of Welfare.
3.3
ARTICLE 15
Prohibition of discrimination
on grounds of religion, race, caste,
sex or place of birth
(1)
The State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place
of birth or any of them
(2)
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
(a)
Access to shops,
public restaurants, hotels and palaces of public entertainment; or
(b)
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.30
The Preamble includes the term equality and specifies its dimensions In
respect of status and opportunity.
The equality of status is provided by the prohibition of artificial
restrictions on the grounds of
religion, race, sex, color, place of residence and the like. It is supplemented
by the prohibition of untouchability and by the abolition of titles. At the same time equality
of opportunity is provided by the guarantee of rule of
law signifying equality before law and nondiscrimination in matters of public appointments and employment. A great principle
of the "Declaration of the Rights
of Men and Citizens" as adopted by the authors
of the French Revolution is thus incorporated into the body of constitution
which says: "Men are free and remain free and equal in rights. Law is the expression of the
general will. It must be the same for all, whether it protects or punishes. All citizens, being equal in its eyes, are equally
eligible to all public dignities, places and employments, according to their
capabilities and without distinction than of their virtues and talents."31
3.4
ARTICLE 16 (4)
Equality of opportunity in matters of public employment
(4) Nothing in this article
shall prevent the State from making any provision
for the reservation of appointments or posts in favor of any backward
class of citizens
which, in the opinion of the State,
is not adequately represented
in the services under the State.32
30 Article 15 in The Constitution Of India 1949
31 J.C. Johari, at p. 148
32 Article 16 in The
Constitution Of India 1949
The slogan “equality of
opportunity” commands wide allegiance among the members of contemporary societies. Under scrutiny,
equality of opportunity divides into several different ideals, some of them being opposed rivals. It is controversial
which of these ideals, if any, are morally
acceptable, and which, if any, should be coercively enforced The ideal of a
society in which people do not suffer
disadvantage from discrimination on grounds of supposed race, ethnicity, religion, sex, sexual
orientation is widely upheld as desirable in itself. For many, the ideal is more compelling than any argument
that might be offered to support it as requirements of justice.
3.5
ARTICLE 21
“No person
shall be deprived
of his life or personal
liberty except according to a procedure
established by law.”33
According to Bhagwati,
J., Article 21 “embodies a constitutional value of supreme
importance in a democratic society.”
Iyer J., has characterized Article
21 as “the procedural magna carta protective of life and liberty. This right has been held to be the heart
of the Constitution, the most
organic and progressive
provision in our living constitution, the foundation of our laws.
The Article prohibits the deprivation of the above
rights except according to a procedure established
by law .Article 21 corresponds to the Magna
Carta of 1215, the Fifth Amendment to the American
Constitution, Article 40(4)
of the Constitution of Eire 1937, and Article XXXI of the Constitution
of Japan, 1946. Article 21 applies to natural persons. The right is available
to every person, citizen or alien.
Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner the right to reside
and settle in India, as
mentioned in Article 19 (1) (e).
‘Everyone has the right to life, liberty and the
security of person.’ The right to life is undoubtedly
the most fundamental of all rights. All other rights add quality to the life in
question and depend on the pre-existence
of life itself for their operation. As human rights can only attach to living beings,
one might expect
the right to life itself
to be in some sense primary, since none of the other
rights would have any value
or utility without
it. There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in
its original sense. This Section will examine the right to life as interpreted and
applied by the Supreme Court of India.34
In the case of Kharak
Singh v. State of Uttar Pradesh35,
the Supreme Court quoted and held
that: By the term “life” as here used something more is meant than mere animal
existence. The inhibition against its
deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits
the mutilation of the body by amputation of an arm our leg or the pulling out of an eye, or the destruction of any
other organ of the body through which the soul communicates with the outer world.
33 Article 21 of the Constitution of India – Right
to Life and Personal Liberty
34 Riya Jain, UILS Panjab
University Article 21 Of The Constitution Of India
– Right To Life And Personal Liberty
https://www.lawctopus.com/ last seen 04/11/2018
35 Kharak Singh v.
State of Uttar Pradesh AIR 1963 SC
1295
3.6
ARTICLE 37 AND
38
Application of the principles contained in this Part
the provisions contained in this Part shall
not be enforceable by any court, but the principles therein laid down are
nevertheless fundamental in the
governance of the country and it shall be the duty of the State to apply these principles in making laws.36
State to secure a social
order for the promotion of welfare
of the people
(1)
The State shall strive to promote the welfare of the
people by securing and protecting as effectively as it may a social
order in which
justice, social, economic and political, shall inform all the
institutions of the national life.
(2)
The State shall, in particular, strive to minimize the
inequalities in income, and endeavor to eliminate
inequalities in status, facilities and opportunities, not only amongst
individuals but also amongst groups of people residing in
different areas or engaged in
different vocations.37
The word "justice" has different meanings
for different disciplines. For example, the great Greek philosopher, Plato regarded justice
as principle of well- adjusted social life witnessing an ideally harmonious combination of the three elements of human personality with three corresponding classes of his perfect
stage. Different from this, in the realistic worlds of politics and law, justice is taken as a harmonious
reconciliation of the conduct of the individual with the general good of the community.38 True that man is a selfish creature,
it is required that his conduct must be in tune with the well-being of
the people as a whole. Thus the essence of justice “is the attainment of the common good as
distinguished from the good of the individuals or even the majority of them.”39 Indian
Constitution professes to secure to all its citizens justice, social, economic and political, even though the
form of government prescribed by the Constitution is a majority government,
which lies at the foundation of the representative
system.40
3.7
ARTICLE 41
Right to work, to education
and to public assistance in certain cases 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.41
36 Article 37 in The Constitution Of India 1949
37 Article 38 in The Constitution Of India 1949
38 J. C. Johari (1976): Indian
Government and Politics, Vishal Publications, New Delhi, at p. 146
39 D.D. Basu (2003): Commentary
on the Constitution of India, Vol.5, IV Ed., Prentice Hall of India Pvt. Ltd., Delhi at p.
71.
40 Ibid., at p 66
41 Article 41 in The
Constitution Of India 1949
The CRDP instructs states to “recognizes the right of
persons with disabilities to work, on an
equal basis with others; this includes the rights to opportunity to gain a
living by work freely chosen or accepted in a labour
market and work environment that is open, inclusive and accessible to persons with disabilities.42
3.8
DIRECTIVE PRINCIPLE
OF STATE POLICY
38. State to secure
a social order for the promotion of welfare of the people.
(1)
The State shall strive to promote the welfare of the
people by securing and protecting as effectively as it may a social
order in which
justice, social, economic
and political, shall inform all the institutions of the national life.
(2)
The State shall, in particular, strive to minimize the
inequalities in income, and endeavor to eliminate
inequalities in status, facilities and opportunities, not only amongst
individuals but also amongst groups of people residing in
different areas or engaged in different vocations.43
Certain principles of policy to be followed
by the State.
39. The State
shall, in particular, direct its policy towards
securing—
a) that the citizens, men and women
equally, have the right to an adequate means of livelihood;
b)
that the ownership and control of the material
resources of the community are so distributed as best to sub serve the common good;
c) That the
operation of the economic system does not result in the concentration of wealth
and means of production to the common
detriment;
d) That there is equal pay for equal work for both men and women;
e)
That the health and strength of workers, men and
women, and the tender age of children are not
abused and that citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength;
f)
That children are given opportunities and facilities
to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material
abandonment.44
42 Rights of Disabled
Persons - Legal Service India http://www.legalserviceindia.com/legal/article-98 last seen 05/11/2018
43 Art. 38 renumbered as cl. (1) thereof by the Constitution (Forty-fourth Amendment) Act, 1978, s. 9
(w.e.f. 20-6-
1979).
44 Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 7,
for cl. (f) (w.e.f.3-1-1977)
43. The State shall endeavor to secure, by suitable legislation or
economic organization or in any other
way, to all workers, agricultural, industrial or otherwise, work, a living
wage, conditions of work ensuring
a decent Equal justice and free legal aid. Organization of village panchayats. Right to work, to education and to public assistance in certain cases.
Provision for just and
humane conditions of work and maternity relief.
Standard of life and full enjoyment of leisure and
social and cultural opportunities and, in particular,
the State shall endeavor to promote cottage industries on an individual or co
operative basis in rural areas.45
CHAPTER:-4
NATIONAL AND INTERNATIONAL PERSPECTIVE RELATED TO THE DIABLED PERSONS
4.1 ANALYSIS OF DISABILITIES POLICY IN STATE
4.1.1 TYPES OF DISABILITIES
“Disability” is a difficulty in functioning at the
body, person, or societal levels, in one or more
life domains, as experienced by an individual with a health condition in
interaction with contextual factors.
“Persons with disabilities” include those who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various
barriers may hinder their full and effective participation in society on an equal basis with others.46
Persons with
Disability: - means a person suffering from not less than 40% of any disability as certified by a Medical
Authority. Under PWD Act 1995, the disabilities mentioned above have been included
in order to enable the persons suffering from disabilities to derive certain
benefits/ concessions provided by the State Govt. / U.T. Administration/
Central Ministries/ Department and
Local Authorities.47
You may come across many disabilities in your work
life. Some examples of common disabilities you may find are:
1)
Vision Impairment- Vision impairment refers to people
who are blind or who have partial vision.
45 Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 7, for cl. (f) (w.e.f.3-1-1977).
46 Convention on the Rights of Persons with Disabilities,
Article 1. This is consistent with the definition of disability used in WHO's technical work using the
International Classification of Functioning, Disability and Health (ICF) as endorsed
by Member States in the Fifty-fourth World Health Assembly on 22 May 2001.
47 The Persons with Disabilities Act, 1995 (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995
page no.1
2)
Deaf or hard of hearing- Hearing impairments can range
from mild to profound. People who are
hard of hearing may use a range of strategies and equipment including speech, lip-reading, writing notes, hearing
aids or sign language interpreters.
3)
Mental health conditions- Mental illness is a general
term for a group of illnesses that affect
the mind or brain. These illnesses, which include bipolar disorder, depression, schizophrenia, anxiety and personality
disorders, affect the way a person thinks, feels and acts. A person with a mental health condition may experience
difficulty concentrating, which can
sometimes be a result of medication. Try to avoid overly stressful situations wherever
possible so that their condition is not exacerbated.
4)
Intellectual disability- A person with an intellectual disability may have significant limitations in the skills needed to live and
work in the community, including difficulties
with communication, self-care, social skills, safety and self-direction.
5)
Acquired
brain injury- Acquired brain injury (ABI) refers to any type of brain damage that occurs after birth. The injury may
occur because of infection, disease, lack of oxygen or a trauma to the head. Around 160,000 Australians have some
form of acquired brain injury, with more
men affected than women.
6)
Autism spectrum disorder- Autism is an umbrella
description which includes Autistic disorder,
Asperger's syndrome and atypical autism. Autism affects the way information is taken in and stored in the brain. People
with autism typically have difficulties in verbal and non-verbal communication, social interactions and other activities. Impairments usually exist across three main areas of functioning:
a)
Social interaction
b)
Communication, and
c)
Behavior (restricted interests
and repetitive behaviors’).
Many people with
an autism spectrum disorder also have sensory sensitivities, i.e. over or under
sensitivity to sight, touch, taste, smell, sound, temperature or pain.
7)
Physical disability- The common characteristic in
physical disability is that some aspect of
a person's physical functioning, usually either their mobility, dexterity, or
stamina, is affected. People with
physical disability are usually experts in their own needs, and will understand the impact of their disability.
There are many different kinds of disability and a wide variety of
situations people experience. The disability may be permanent
or temporary. It may exist
from birth or be acquired
later in life.
People with the same disability
are as likely as anyone else
to have different abilities.
4.2 RESPONSIBLE FACTORS FOR DISABILITY
Disability can be caused by many factors. In this section, we have
grouped them into three main areas:
Genetic Causes Abnormalities
in genes and genetic inheritance can cause intellectual disability in children. In the USA, Down syndrome is
the most common genetic condition, and about 6,000 babies with Down syndrome are born each year.
Sometimes, diseases, illnesses, and over- exposure to x-rays can cause a
genetic disorder.
Environmental / Life Events-
Poverty and malnutrition in pregnant mothers
can cause a deficiency
in vital minerals and result in deformation issues in the unborn child. After
birth, poverty and malnutrition can
also cause poor development of vital organs in the child, which can eventually lead to disability. The use of
drugs, alcohol, tobacco, the exposure to certain toxic chemicals and illnesses, toxoplasmosis, cytomegalovirus, rubella
and syphilis by a pregnant mother can
cause intellectual disability to the child. Childhood diseases such as a
whooping cough, measles, and chicken
pox may lead to meningitis and encephalitis. This can cause damage to the brain of the child. Toxic material
such as lead and mercury can damage the brain too. Unfortunate life events such as drowning, automobile accidents,
falls and so on can result in people losing their sight, hearing, limbs and other vital parts of their body and cause disability.
Unknown Causes- The human body
is a phenomenal thing. Scientists have still not figured out what and how some things in the body,
cells, brain, and genes come about. Humans have still not found
all
the
answers to
all
the
defects in
the
human body.
Inaccessible environments- Sometimes society makes it difficult
for people with some impairment to function freely. When
society develops infrastructure such as houses, roads, parks and other public places without
consideration to people with impairment, the basically make it impossible for them to take care of
themselves. For example, if a school is built with a ramp in addition to stairs, it makes it easy for
people with wheelchairs to move about freely. This way, their impairment is not made worse. Lack of education, support services, health
and opportunities for people with impairment can cause
additional disability to people with disabilities and even people with no disability.
4.3
THE PERSONS WITH DISABILITIES ACT, 1995
The Persons with Disabilities (Equal opportunities, Protection of rights and full Participation) Act,1995 in 1995 to give effect to the Proclamation on the Full
Participation and Equality of the People with Disability in the Asian
& Pacific Region.
1)
To spell out the responsibility of the state towards the prevention of disabilities, protection of rights, provision of medical care, education, training,
employment and rehabilitation of persons with disabilities;
2)
To create a barrier free environment for person with disabilities in the sharing
of development benefits, visa-a –vise non disabled
persons;
3)
To counteract any situation of abuse and exploitation of persons with disabilities; and
4)
To make special provision of the
integration of persons with disabilities into the social mainstream.
Prevention and early detection of disabilities
1)
In order to prevent the occurrence of disabilities, the appropriate government authorities have to (within their economic capacity and development):
2)
undertake surveys, investigations and research concerning the cause of occurrence of disabilities
3)
promote
various methods of preventing disabilities
4)
screen all the children at least once in a year for the purpose
of identifying “at risk” cases
5)
provide
facilities for training
to the staff at the primary health
centres
6)
sponsor
awareness campaigns and disseminate information on general hygiene,
health and sanitation,
7)
take
measures for pre-natal and post-natal care of mother and child;
8)
educate the public through the pre-schools, schools,
primary health centre’s,
village level workers and anganwadi workers;
9)
Create awareness amongst
the masses through television, radio and other mass media on the causes
of disabilities and the preventive measures
to be adopted. (Section
25)
Employment
The appropriate governments are to identify posts in
government establishments, which can be reserved for disabled persons
and review the list of posts at periodic intervals. (Section 32)
At least 3 percent of vacancies in every government
establishment are to be reserved for persons with disabilities. Out of which 1 per cent each shall be reserved for persons suffering from blindness
or low vision and the other 2 percent for persons with hearing impairment and loco motor
disability or cerebral palsy. But the central government may exempt any
establishment from the above
requirements if the nature of work in such establishments is such that disabled
persons are unable to work in such establishments. (Section
33)
If a vacancy cannot be filled up due to
non-availability of a suitable disabled person, the vacancy is to be carried
forward to the next recruitment year and if in that next recruitment year, a suitable person with disability is not
found, the post is to be filled by an interchange of categories of disabled persons. Only if there is no
suitable disabled person available for the job, can an able person be
employed. (Section 37)48
V.D.BHANOT VS.SAVITA BHANOT The situation comes squarely within
the ambit of Section 3 of the PWD
Act, 2005, which defines
"domestic violence" in wide terms, and, accordingly, no interference is called for
with the impugned order of the High Court. However, considering the fact that the couple is childless and the Respondent has herself expressed
apprehension of her safety if she were to live alone in a rented
accommodation, we are of the view that keeping in mind the object of the Act to provide
effective protection of the rights of women guaranteed under the Constitution,
who are victims of violence of any kind occurring within the family,
the order of the High Court requires
to be modified. We, therefore, modify the order passed by the High Court and direct that the
Respondent be provided with a right of residence where the Petitioner is residing, by way of relief
under Section 19 of the PWD Act, and
we also pass protection orders under Section 18 thereof. As far
as any monetary relief is concerned, the same
has already been provided by the learned
Magistrate and in terms of the said order; the Respondent is receiving a sum of Rs.6, 000/- per
month towards her expenses.49
4.4 RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016 (RPWD)
(1)
No Government establishment shall discriminate against
any person with disability in any matter
relating to employment: Provided that the appropriate Government may, having
regard to the type of work carried
on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions
of this section.
(2)
Every Government establishment shall provide
reasonable accommodation and appropriate barrier free and conducive
environment to employees with
disability.
(3)
No promotion
shall be denied to a person
merely on the ground of disability.
48 The persons with disabilities act, 1995 government of India http://www.eyeway.org/ last seen 07/11/2018
49 V.D. Bhanot vs. Savita Bhanot
(2012) 3 SCC 183
(4)
No Government establishment shall dispense with or reduce
in rank, an employee who acquires a disability during his or her service:
Adult education. Vocational training and self employment. Nondiscrimination in employment. Provided
that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some
other post with the same pay scale and
service benefits: Provided further that if it is not possible to adjust the employee
against any post, he may be kept on a supernumerary post until a suitable post is available
or he attains the age of superannuation, whichever is earlier.
(5)
The appropriate Government may frame policies for posting and transfer
of employees with disabilities.
(6) Every establishment shall
notify equal opportunity policy detailing measures proposed to be taken by it in pursuance of the provisions
of this Chapter in the manner as may be prescribed by the Central
Government.
(7)
Every establishment shall register a copy of the said policy with the
Chief Commissioner or the State Commissioner, as the case may be.
(8)
Every establishment shall maintain records of the persons with
disabilities in relation to the matter of employment, facilities provided and other necessary information in compliance with the provisions of this Chapter
in such form and manner as may be prescribed by the Central
Government.
(9)
Every employment exchange
shall maintain records of persons
with disabilities seeking employment.
(10)
The records maintained under sub-section (1) shall be open to
inspection at all reasonable hours by such
persons as may be authorized in their behalf by the appropriate Government.50
RAJIVE RTURI VS. UNION OF INDIA as per
the
provisions of
Sections 60 The Central Government has
It is pertinent to
note that under
and 66 of the Disabilities Act, 2016, all constituted Central
Advisory Board Sec.65 (2)
(e) and (f)
and Sec 71 (2)
(e) States and
Union Territories are on
Disability as mandated by Section
and (f) of
the
RPWD Act, 2016 the
required to constitute the Central and 60
of the RPWD Act, 2016. The first monitoring and implementation of state Advisory Boards.
In order to meeting of the Advisory Board was accessibility in all aspects
would be the effectively implement
the provisions of held in new Delhi on 13.02.2018. Responsibility of the Advisory Board.
The said Act, it becomes
the duty of the states have been requested to set
up states and union Territories to state Boards.51
50 Rights of persons
with disabilities act,2016
Government of India www.indianjpsychiatry.org/ last seen 07/11/2018
51 Rajive Rturi vs. Union
of India (2018) 2 SCC 413
4.5 THE WORKMEN’S COMPENSATION ACT, 1923
The Workmen's Compensation Act, 1923 imposes an obligation
upon employers to pay compensation
to workers for accidents (resulting into death or disablement) arising out of
and in the course of employment. Compensation is provided
for temporary as well as permanent disablement and also for partia1or tota1 disablement. The liability of the employer
to pay compensation is
dependent upon the following four conditions:
(1) Personal injury
to the workman;
(2) such injury must have been
caused by an accident;
(3) The accident must have arisen
out of and in the course of employment; and
(4) The injury must have resulted either
in death of the workman
or in his total or partial disablement for a period exceeding three days.
However, the employer shall not be
liable to pay compensation
in the following cases:
(1) If the injury did not
result in total, or partial
disablement for a period
exceeding three days;
(2) if injury does not result in death of the workman39 but causes him disablement, partial
or total, and the
employer can prove:
The workman was at the time of accident under the influence of drinks or drug;
That the workman willfully disobeyed an order
expressly given by the employer or a rule expressly
framed for the purpose of safety of workmen; and The workman having known that certain safety- grounds or safety devices
are specifically provided for the purpose of securing the safety
of workman, willfully disregarded or removed the same.
BHURANGYA COAL CO. LTD. VS SAHEBJAN
MIAN AND ANR. This is an appeal
under Section 30, Workmen's
Compensation Act, 1923, by the employer
Bhurangya Coal Company Limited against the order dated
27-8-1951 of Mr. R. S. Pandey, Commissioner for Workmen's Compensation, Bihar, awarding a sum of Rs. 2,000/- to
the claimant Sahebjan Mian as a compensation for the fatal
injury caused to his son Kasim Ali on 20-6-1949, while the deceased
worker was working as a Munshi
in the premises of the aforesaid Company
(to be referred hereafter as Company). There is no dispute on the point that on the date of the accident Kasim Ali was in
the employment of Bhurangya Colliery as a Munshi on a salary of Rs. 65/- per
month and that on 20-6-1949, he died as a result
of an accident which occurred
within the premises
of the colliery on or near the haulage road between
inclines 24 and 25 and further that the accident was due to a collision
between the deceased
and a rake of tubs while they were moving up on that haulage
road.
"It has been recognized time and again that the
sphere of a workman's employment is not necessarily
limited to the actual place where he does his work. If in going to or coming
from his work he has to use an access
which is part of his employer's premises or which he is only entitled to traverse because
he is going to or coming from his work, he is held to be on his master's
business while he is using
that access. In this case it is not challenged that the injury caused to Kasim
Ali did result in his death and that,
as found above that accident happened while he was within the premises of the company distributing empty
wagons to the coal cutters, which was a part of his job. Therefore, on these facts alone the question of willful disobedience as laid down in proviso
(b) (ii) cannot
exonerate the company
from the liability
as specified in the substantive part of Section 3(1) of the Act.
Further, as stated in item six of the elements specified above to come within Section 3 (1) (b) (ii) of
the Act, the workman must be in willful disobedience of an order. That means mere disobedience is not
sufficient.52
4.6
THE EMPLOYEES' STATE INSURANCE ACT, 1948
The need for social security schemes was felt badly
after World War II. Social security to the workers of an industry
can be provided by a self-balancing scheme
of Social assistance and social insurance
or a combination of the two methods. The Workmen's Compensation Act, 1923 is the first
legislation of this type towards
social security, which depends upon a number
of factors viz., population, economic resources,
standard of living, and availability of technical experts and development of industry. The Act of 1923 though
designed to ameliorate the condition of the labor
was in nature of social assistance and not social insurance. The
Employees' State Insurance Act, 1948
was the first piece of social security enactment adopted in India. It aims at
bringing about social and economic justice to the poor and weaker class
of the land.
Union of India v. Hira Devi from the facts stated
in the petition filed by the Union of India
before the High Court, it appears that a sum of Rs. 1,394-13-1
represents arrears of pay and allowances
.due to the judgment-debtor and a sum Of Rs. 1,563, is the compulsory deposit
in his Provident Fund account.
Different considerations will apply to the two sums, though in the lower court the parties seem to have proceeded
on the footing that the entire sum was a "compulsory deposit" within the meaning of the
provident Funds Act,
1925. However, apply to the arrears of salary
and allowance due to the judgment-debtor as they stand upon a different legal footing. Salary
is not attach- able to the extent provided in Section 60, clause (1), Civil Procedure Code, but there
is no such exemption as regards arrears
of salary. The learned Attorney-General conceded that this portion of the amount
can be proceeded against in execution. The Provident Fund amount was not paid to the subscriber after the date of
his retirement in January 1947. This, however, does not make it any the less a compulsory deposit within the meaning of the Act.53
52 Bhurangya Coal co. ltd. VS Sahebjan
Mian and anr. AIR 1956 Pat 299, (1957) IILLJ 522 Pat
53 Union of India v. Hira Devi A.I.R. 1952 SC 227
34
CHAPTER 5:- CONCLUSION
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34
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That the law-makers have perceived the problems of
the disabled to a very large extent becomes
evident from the way they have studied their problems in minute details and
sought to provide appropriate
solutions. There is also talk of developing appropriate symbols for disability, and warning signals
at appropriate places,
ramps in public
buildings, adaption of toilets for wheel- chair users, Braille
symbols and auditory
signals in elevators and lifts, ramps in hospitals, primary health
centers, and other medical care and other rehabilitation institutions. One must
appreciate the legislators of India
who have shown enormous insight and political will in enacting this piece of legislation. There
is hardly any aspect of disability and the disabled
persons which has not been foreseen
by them. When, how and what use the government agencies make of the provisions
of this Act would be known in
'the times to come.
One only wishes that, as has become the fate of most
of the promises made in the past, there
are no more bureaucratic bottlenecks, red-tapes, misappropriation of funds
allotted for the welfare of the
disabled and lack of awareness at all levels. And then there is no greater sin
than giving a false hope to someone,
especially the disabled. If the programmes and welfare schemes to be launched within the framework of
this legislation are delayed, it would be yet another case of 'justice delayed is justice denied'. At
the moment, the expectations of the disabled have risen high and they shall feel uneasy and cheated if their hopes fall to the ground
with a thud. One prays
that it does not happen and
the Act is implemented in letter and spirit.
Disability refers to the disadvantage or restrictions of activity caused by the way society
is organized which takes little
or no account if people who have physical, sensory
or mental impairment . Disability is
an unfortunate part do human life which can affect not only the natural way of a living but also despair
component strength and power. The Government needs to launch more social security schemes for
disabled sections and generate more employment opportunities for them. Several schemes and benefits
conference on the disabled persons has come up as relief and has successfully
served to provide equal opportunities
to the disabled section.
CHAPTER: 6 BIBLIOGRAPHY
A)
Articles:
1. Disabled people protect seeking
jobs, higher pensions,
Times of India, 3rd September
2018, http://m.timesofindia.com last seen:
15/09/2018
2. Employment of Disabled People
in India National Centre for Promotion of Employment for Disabled People, last seen 02/11/2018.
3. National Policy for Persons with Disabilities,
Government of India Ministry of Social Justice and Empowerment http://usicd.org/doc/
4. National Policy for Persons with Disabilities,
Government of India Ministry of Social Justice and Empowerment http://usicd.org/doc/ No.3-1/1993-DD.III
5.
Praveen Rights of Disabled Persons Legal Service India
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05/11/2018
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benefit of women or other weaker sections of the community shall be equally
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with disabilities.", Ministry
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10.
Riya Jain,
UILS Panjab University Article 21 Of The Constitution Of India – Right To Life And Personal
Liberty https://www.lawctopus.com/ last seen 04/11/2018
11. Rights of Disabled persons- Legal Service India http://www.legalserviceindia.com/legal/article-98 last seen 05/11/2018
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The persons with disabilities act, 1995 government of
India http://www.eyeway.org/ last seen
07/11/2018
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Rights of persons with disabilities act,2016 Government of India
www.indianjpsychiatry.org/ last seen 07/11/2018
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World Bank Report,
“ People with disabilities in India: from to outcomes”, Washington DC: Human Development Unit, South Asia Region,
World Bank, 2007.
B) Acts, Rules
and Regulations:
1. Human Rights Commission (UDHR)
2. Health law related to disabled persons
3. Constitutional Provisions
4. Rights of Persons with Disabilities Act,2016
(RPWD)
5. Ministry of Social
Justice and Empowerment (scheme)
6. Fundamental Rights
7. Rehabilitation Council
of India Act,1992
C) Policy:-
1. Japan policy
related to the disabled person
2. WHO policy on the employment of persons with disabilities. Published
by 10th may 2008
D) Books :-
1.
Taylor, W. Wallace
and Taylor I, Wagner, “ Services for the Handicapped in India”
2.
S.L. Goel and R.K. Jain, “Social Welfare
in India (Vol I &II)”, Deep and Deep
Publications, New Delhi,
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3.
J.C. Johari, at p.
148
4.
M.P. Jain (2009):
Constitutional Law of India, universal
publications, New Delhi, at p. 89.
E)
Case laws :-
1.
Kharak
Singh vs. State
of Uttar Pradesh
AIR 1963 SC 1295
2. V.D. Bhanot
vs. Savita Bhanot (2012) 3 SCC 183
3. Rajive Rturi vs.
Union of India (2018) 2 SCC 413
4.
Bhurangya Coal co. ltd. vs. Sahebjan Mian and anr. AIR 1956 Pat 299, (1957) IILLJ
522 Pat
5. Union of India
vs. Hira Devi A.I.R.
1952 SC 227
F) E-Resources:
Article Information
Study of educational and employment opportunity in physically challenged people in India: on overview - by Dhanashri Ramdas Shegar - by Dhanashri Ramdas Shegar
Authors: Dhanashri Ramdas Shegar
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/11/19
- Volume 2
- Issue 7
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