Open Access Research Article
RIGHTS OF AUTISTIC PERSONS: A COMPARATIVE STUDY OF INDIAN & AMERICAN LEGAL FRAMEWORK.
Published Paper
Article Details
RIGHTS OF AUTISTIC PERSONS: A COMPARATIVE STUDY OF INDIAN
& AMERICAN LEGAL FRAMEWORK.
AUTHORED BY - SHREEJA
UTKALIKA JENA[1] & LYNETTE
THABOR
Abstract:
When
people pursue their interests, especially those that are on the autism
spectrum, they have a better chance at succeeding in life. This research is
based on rights of persons with ‘autism spectrum disorder’ which implies a lack
or defect in some people with regards to mental or sensory but they have a
right to life, liberty, equality, security, & dignity by virtue of being
human but with mental illness especially Autism, cerebral palsy, down syndrome
is frequently ostracized & discriminated against due to social indifference
& psychological barriers. As a result, the rights & laws related to
mentally disabled people must be comprehended & analyzed from different
perspectives, including human rights & multiple other laws especially
disability laws between India and US to fill the gaps between able-bodied
persons & differently abled persons in their accomplishments of identity
& integrity in the real sense of terms. When it is seen through a legal
lens about the rights of Autistic one can see the major loopholes which have
managed to hide from public eye. With the help of this research, it will be
ascertained that up to what extent the numerous legal provisions &
regulations are available in our country as compared to other country & a
comparative study into how these laws have contributed to the evolution of the
legal status of Autistic persons in India & US, lacunas, and
recommendations.
Keywords:
Autism spectrum disorder, Autistic persons, Disability laws, Differently-abled
persons.
1.INTRODUCTION:
According to a report by
ET Health, over 18 million individuals in India are affected by Autism. In
India, the Constitution grants individuals with disabilities the full range of
civil, political, economic, cultural, and social rights. However, the necessary
infrastructure to implement these constitutional provisions has been lacking
until recently. Unfortunately, essential human rights are often denied,
particularly when it comes to mental or psychological disabilities. Autism
spectrum disorder (ASD) is a neurological and developmental disorder that
impacts a person's ability to interact with others, communicate, learn, and
behave. While autism can be diagnosed at any age, it is considered a
developmental disorder because symptoms typically appear within the first two
years of life. ASD can affect individuals of all genders, races, ethnicities,
and economic backgrounds. Although it is a lifelong condition, treatments and
services can help improve symptoms and daily functioning. The American Academy
of Paediatrics recommends that all children undergo screening for autism, and
caregivers should discuss ASD screening or evaluation with their child's
healthcare provider. The Americans with Disabilities Act (ADA) is a crucial law
that protects the civil rights of individuals with various disabilities,
including autism. The ADA ensures that people with autism have the same rights
and opportunities as individuals based on race, colour, sex, national origin,
age, and religion. It guarantees equal access to public accommodations,
employment, transportation, government services, and telecommunications. Unlike
the Indian Constitution, the ADA does not provide a comprehensive list of
medical conditions that qualify as disabilities. Instead, it is intentionally
broad to accommodate changing circumstances and offers flexibility under the
law. The Supreme Court ruling in the case of Indra Sawney and Ors vs. Union of
India established that while 15(1) of the Constitution covers individuals with
disabilities, 15(2), 15(3), and 8(4) do not apply. This creates an unrestricted
approach to the application of 15(1). However, there still remains an issue
regarding the right to vote for individuals with psychiatric conditions. The
Mental Health Care Act, 2017 defines "mental illness" as a
significant disorder affecting thinking, mood, perception, orientation, or
memory, which severely impairs judgment, behaviour, ability to recognize
reality, or meet the demands of daily life. It also includes mental conditions
resulting from substance abuse but excludes mental retardation. This research
will focus on both international and domestic laws concerning gaps or loopholes
in relation to Autism, as well as recommendations and suggested measures.
Additionally, the paper will explore the rights of individuals with Autism
provided by existing laws in comparison to those in the United States.
1.1. THE LEGAL FRAMEWORK
FOR MENTAL DISABILITY IN INDIA
In India, the Rights of
Persons with Disabilities Act, 2016, serves as the primary legal framework for
mental disability. This act replaced the earlier Persons with Disabilities
(Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995.
The 2016 Act recognizes various forms of disabilities, including mental
disabilities, with the aim of promoting and safeguarding the rights of
individuals with disabilities.
Key points regarding
mental disability laws in India under the Rights of Persons with Disabilities
Act, 2016 include:
- Definition: The
Act identifies various conditions as mental illnesses, encompassing disorders
such as bipolar disorder, intellectual disabilities, autism spectrum disorders,
and other mental health conditions.
- Rights and
Entitlements: The Act guarantees equal rights, opportunities, and
protection for individuals with mental disabilities. It prohibits
discrimination and mandates the government to facilitate their full
participation and integration into society.
- Capacity and
Guardianship: The Act recognizes the decision-making capacity of
individuals with mental illnesses. It upholds the principle that individuals
with disabilities, including those with mental disabilities, should have the
autonomy to make their own choices and decisions. The Act also outlines
provisions for supported decision-making.
- Education: The
Act underscores the right to education for individuals with mental disabilities
and requires educational institutions to offer inclusive education. It
advocates for reasonable accommodations and necessary support for students with
disabilities.
- Employment: The
Act advocates for equal employment opportunities for individuals with mental
disabilities. It stipulates that both the government and private sector must
implement measures to ensure that individuals with disabilities have access to
employment without facing discrimination.
- Reservation: The
Act includes provisions for reservation in education, employment, and
government schemes for individuals with disabilities.
1.2 INDIAN JURISPRUDENCE
ON MENTAL HEALTH AS COMPARED TO THAT OF USA
Both India and the United
States have legal frameworks addressing mental health, but there are
differences in their approaches. Here is a brief comparison:
In India:
Rights of Persons with
Disabilities Act, 2016:
- The Act acknowledges mental disabilities as a distinct
category, encompassing conditions such as bipolar disorder, intellectual
disabilities, autism spectrum disorders, and other mental health
conditions. Rights and Inclusion focus on ensuring equal rights,
opportunities, and protection from discrimination. The Act strives to
guarantee full participation and inclusion in society for individuals with
mental disabilities. Capacity and Guardianship recognize the
decision-making capacity of individuals with mental illnesses. The Act
promotes supported decision-making over substituted decision-making.
Education and Employment uphold the right to education and employment for
individuals with mental disabilities. The Act mandates inclusive education
and equal employment opportunities. Legal Capacity acknowledges legal
capacity for individuals with disabilities, including those with mental
disabilities. The Act advocates for supported decision-making when
necessary. Various laws and regulations in India protect the rights of
autistic individuals and efforts have been made to promote their inclusion
and well-being. Key rights and provisions relevant to autistic individuals
in India include:
- Right to Education: Autistic individuals in India are
entitled to inclusive education under the Right to Education Act, 2009,
ensuring access to mainstream schools and reasonable accommodations for
learning.
- Protection from Discrimination: The Rights of Persons
with Disabilities Act, 2016, prohibits discrimination based on disability,
including autism, aiming to promote and safeguard the rights of
individuals with disabilities for their full and equal participation in
society.
- Healthcare Access: Autistic individuals have the right
to healthcare services, encompassing assessment, diagnosis, therapy, and
medical care. The government is responsible for ensuring accessible and
affordable healthcare services for all.
These rights
are often protected by national laws and international agreements, such as the
CRPD[2].
The specific implementation of these rights may vary from one country to
another, and advocacy groups and organizations often work to promote and
protect the rights of autistic individuals in their respective regions. It is
crucial to raise awareness and promote policies and practices that respect and
uphold the rights of autistic individuals and ensure their full inclusion in
society. It is important to note that while these laws and regulations exist,
their implementation may vary from state to state in India. Additionally,
societal attitudes and awareness about autism can vary, and there is still much
work to be done to ensure the full inclusion and protection of the rights of
autistic individuals in the country. Organizations and advocacy groups often
play a significant role in advancing the rights and well-being of autistic
individuals in India.
In United States:
Americans with
Disabilities Act (ADA), 1990, and the Americans with Disabilities Amendments
Act (ADAAA), 2008:
Definition of Disability: ADA and ADAAA define
disabilities broadly and include mental health conditions. They protect
individuals with mental health disorders from discrimination in various areas,
including employment. Rights and Accommodations focuses on ensuring equal
opportunities and reasonable accommodations for individuals with disabilities.
This includes provisions for workplace accommodations and accessibility.
Mental Health Parity Act
(MHPA), 1996, and Mental Health Parity and Addiction Equity Act (MHPAEA), 2008:
- MHPA: Mandates that
annual or lifetime dollar limits on mental health benefits be no lower
than those for medical/surgical benefits.
- MHPAEA: Requires health
insurers to provide mental health and substance use disorder benefits at
parity with medical/surgical benefits.
Individuals with
Disabilities Education Act (IDEA), 1975:
·
Ensures the provision of special education services to
children with disabilities, including those with emotional or behavioural
disorders. Legal Capacity under U.S. law generally assumes legal capacity for
individuals unless proven otherwise. Guardianship is determined through state
laws, and the process may vary.
General Observations:
- Legal Capacity - While both countries
recognize the importance of legal capacity for individuals with mental
disabilities, the approach to guardianship may differ. India emphasizes
supported decision-making, while the U.S. determines guardianship through
state-specific laws.
- Anti-Discrimination - Both India's Rights
of Persons with Disabilities Act and the U.S. ADA focus on
anti-discrimination measures, promoting equal opportunities, and
protecting the rights of individuals with mental disabilities.
It's essential to note
that legal frameworks can evolve, and amendments may occur. For the latest
information, it's advisable to consult the most recent statutes and regulations
in both jurisdictions. Apart from these legislations, there is The Autism
CARES Act is a piece of legislation in the United States that provides
funding and support for research, education, and services related to autism
spectrum disorders. CARES stands for "Collaboration, Accountability,
Research, Education, and Support." The act was originally known as the
Combating Autism Act when it was first passed in 2006 and has been reauthorized
and renamed several times since then. The Autism CARES[3]
Act aims to address various aspects of autism, including research, early
detection, diagnosis, intervention, and the transition to adulthood. Some of
the key provisions and objectives of the act includes funding for research into
the causes, prevention, and treatment of autism, as well as the development of
best practices for early intervention and treatment. It requires the collection
of data on the prevalence of autism and the effectiveness of various
interventions and treatments. This data helps policymakers make informed
decisions. The act supports educational programs and outreach activities aimed
at increasing awareness and understanding of autism among healthcare
professionals, educators, and the public. It promotes training and professional
development for healthcare providers, educators, and other professionals who
work with autistic individuals. The act addresses the unique challenges faced
by autistic individuals as they transition into adulthood and aims to provide
support and services to facilitate a successful transition. It encourages
collaboration between various federal agencies to ensure a coordinated and
comprehensive approach to addressing autism-related issues.
The act establishes the
IACC[4]
to monitor and coordinate federal activities related to autism research and
services. The Autism CARES Act has been reauthorized multiple times, most
recently in 2019, ensuring continued funding and support for autism-related
programs and research in the United States. This legislation plays a crucial
role in advancing our understanding of autism and improving the quality of life
for individuals on the autism spectrum and their families.
1.3 STATEMENT OF PROBLEM:
The problem came into existence with due to lack of implementation,
structural defaults in definition, technical difficulties, ambiguity and most
importantly lack of awareness about the topic as for centuries the conventional
people who limp or who used a wheelchair, basically the ones whose illness was
physically visible, were known as disabled.
The preamble of the disability laws clearly states that it aims to
uphold the dignity of every Person with a Disability (PWD) in society and
prevent any form of discrimination. But it is crystal clear that these laws
cannot carry through its aim, as the number of incidents reported every day of
discrimination faced by disabled people is only increasing. The ground reality
remains that disabled children continue to be neglected and marginalized.
Education policy in India has gradually increased the focus on children with
disability and inclusive education in regular schools has become a primary
policy objective. However, despite its importance, educational outcomes for
children with disabilities are still not satisfactory, particularly in rural
and remote areas. Access to healthcare - Indian population is consist of 1.3
billion people, and we know that our health care system is already very
stretched. Poor people or people who do not have access to proper healthcare
and the people with disabilities are worsened.
1.4 CONCERNS &
DIFFICULTIES
The implications of mental
health laws can give rise to various concerns and difficulties. While these
laws aim to protect the rights of individuals with mental health conditions,
their implementation and impact may pose challenges. Here are some common
concerns associated with the implications of mental health laws:
Ø Stigma and Discrimination- Despite legal
protections, there may still be societal stigma and discrimination against
individuals with mental health conditions. Changing deep-seated societal
attitudes and educating the public to reduce stigma remains a challenge.
Ø Access to Quality Mental
Health Care- Limited access to quality mental health services and professionals.
Addressing shortages in mental health infrastructure, ensuring affordability,
and improving the distribution of mental health resources.
Ø Capacity and
Decision-Making- Balancing the autonomy of individuals with mental health
conditions and the need for protection in decision-making. Determining the
appropriate level of intervention or support while respecting the individual's
autonomy and rights.
Ø Involuntary Treatment and
Civil Liberties- Balancing the need for involuntary treatment in certain situations with
protecting an individual's civil liberties. Striking the right balance between
ensuring public safety and respecting individual freedoms and rights.
Ø Legal Capacity and
Guardianship- Determining the legal capacity of individuals with mental disabilities
and establishing guardianship when necessary.
Developing procedures that safeguard the rights of individuals while
providing support and protection when needed.
Ø Resource Allocation- Limited financial and
human resources for mental health services and legal implementation. Allocating
sufficient resources to mental health services, including staff training and
support systems.
Ø Intersectionality and
Vulnerable Populations- Unique challenges faced by marginalized and vulnerable
populations with mental health conditions.
Addressing the intersectionality of mental health issues with factors
such as race, gender, socioeconomic status, and ensuring equitable access to
mental health care.
Ø Community Integration and
Inclusion- Challenges in integrating individuals with mental health conditions into
the community. Promoting community-based rehabilitation and inclusion,
overcoming societal barriers, and fostering a supportive environment.
Ø Education and Awareness- Lack of awareness and
understanding of mental health laws among the public and even professionals.
Implementing effective educational programs to raise awareness and
understanding of mental health issues, rights, and legal protections.
Ø Legal Loopholes and
Ambiguities- Potential loopholes or ambiguities in mental health laws that may lead to
inconsistent application or exploitation. Regularly reviewing and updating
legislation to address emerging challenges and ensure clarity and
effectiveness.
1.5 SUGGESTIVE MEASURES:
Ø Legal Protection: Enact comprehensive
legislation that specifically addresses the rights and needs of individuals
with autism. This should include protection against discrimination in
education, employment, health and other areas.
Ø Accessible Education: Ensure that people with
autism have access to quality education tailored to their needs. This may
include providing special training for teachers, integrating inclusive
educational practices into schools, and providing support services such as
speech therapy and occupational therapy.
Ø Employment opportunities: Promote inclusive
employment practices so that people with autism can find meaning. employment.
This may include partnering with businesses to create job opportunities,
providing vocational training programs and providing work experience and
support services.
Ø Health services: Improve access to health
services that meet the unique needs of people with autism. This may include
training health professionals to better understand autism, providing early
intervention services and providing mental health support.
Ø Community Support Services: Create community support
services to help people with autism and their families. This can include
respite care, support groups, recreational programs and help navigating social services
and resources.
Ø Support and Awareness: Raise awareness of autism
spectrum disorder (ASD) to combat stigma and promote understanding and
acceptance in society. Encourages leadership efforts by people with autism and
their allies to strengthen their voices and protect their rights.
Ø Legal capacity and
decision-making: Develop policies and practices that respect the legal capacity of people
with autism and support them in decision-making. . of his own life. This may
require implementing supported decision-making models and providing adequate
safeguards to protect their rights.
Ø Accessible communication: Ensure that information
and communication materials are accessible to autistics, including those with
communication difficulties. This may include providing alternative formats such
as easy-to-read materials or visual aids.
Ø Research and data
collection:
Invest in autism research and collect disparate data on autism to inform policy
and service delivery. This can help identify gaps in services and develop
evidence-based interventions.
Ø Family Support: Provide support services
to families of people with autism, including counselling, education, and
emergency care. Providing families with the resources and support they need can
improve the well-being of both the autistic person and their caregivers.
CONCLUSION
Several important
conclusions can be drawn from the rights of autistic people: Autistic people,
like everyone else, are entitled to all human rights and must be treated with
human dignity. This includes the right to life, liberty and security and
protection against discrimination, torture or degrading treatment. Autistic
people have the right to participate fully in society. This implies ensuring
access in education, working life, health and public space and promoting
inclusive policies and practices for diverse needs. Autistic people have the
right to quality education and work. This includes providing reasonable
accommodations in educational institutions and workplaces to facilitate their
participation and success. Autistic people should have access to health
services tailored to their unique needs. This includes mental health services,
therapies and medical care that address the specific challenges of autism.
Autistic people have the right to independence and self-determination
regardless of the support they need. They should participate in decision-making
processes and respect their preferences and choices. Autistic people should be
protected from discrimination because of their neurodivergence. Laws and
policies should be in place to prevent discrimination in various areas of life,
including education, work, and health. Autistic people have the right to
communicate in ways that meet their needs, and different communication styles
must be understood and respected. In addition, they have the right to protect
themselves and participate in decisions that affect their lives. Society should
promote awareness and acceptance of autism to reduce stigma and
misunderstanding. This includes promoting understanding of the various
strengths and challenges associated with autism. In short, it can be stated
that recognizing and protecting the rights of autistic people is essential to
building an inclusive and just society. Embracing neurodiversity contributes to
a richer, more compassionate community that values ??the unique contributions
of everyone, regardless of their neurological differences.
Article Information
RIGHTS OF AUTISTIC PERSONS: A COMPARATIVE STUDY OF INDIAN & AMERICAN LEGAL FRAMEWORK.
Authors: SHREEJA UTKALIKA JENA, LYNETTE THABOR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/10
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.