The Legal Arc Volume 1 Issue 1 Articles
Tushar Ranjan is currently studying in the 3rd Year of the National University of Study and Research in Law, Ranchi. He is interested in Intellectual Property Rights and Cyber laws, and also actively working for Women’s rights mainly concerned over the struggles for basic needs and requirements.
“Equality is the public recognition, effectively expressed in institutions and manners, of the principle that an equal degree of attention is due to the needs of all human beings.”–Simone Weil
Women with disabilities can have plural identity markers because they are marginalized in Indian society based on their disability and other ‘socio-cultural identities’ that divide them into various categories. That is to say that women with disabilities can be invisible or side-lined in the human rights debate, and because of this reason are unable to enjoy the rights available to them. One of the rights available to people with disabilities is the right to live independently. It ensures that they are able to make their own life decisions and are included in the society.
A cumulative analysis and understanding of the available literature points to the fact that the right to live independently is one of the most fundamental rights for the disabled. From this right, stem various other rights, which include the right to legal capacity and right against domestic violence. Differently-abled women are one of the most vulnerable groups in the society and face grave injustice. The right to live independently for women with disabilities is what the researcher intends to find in Indian disability laws through this research. It is not refuted that laws in India are in place specifically for people with disabilities but the question to which answers are being sought is whether there is any special legislative protection implemented for the improvement of the life of these women? It is particularly pointed out that implementation of the right to live independently in India is flawed and has left many concerns unaddressed. Therefore, the gap that the researcher seeks to address is the need for the right to live independently specially for women since their vulnerable conditions are overlooked.
Intersection Between Gender and Disability
There is a process rooted deep in our cultures whereby people with disabilities are perceived separate from their gender, that is to say they are seen as neither men nor women, but only disabled. This failure to recognize their gender leads to men being the prototypic members of the community which ultimately results in standards being set ignoring the needs of the women. Women are considered to be a vulnerable class of society and perceived to be a burden on the families. Disability is always viewed by people of society with unwanted sympathy. A person with a disability is seen as an individual who is suffering from an unfortunate disease and no other aspect of that human being is appreciated. Scholars are of the opinion that disability does not override gender, rather gender determines how disability is perceived, reacted to and experienced. Women with disabilities face both the oppression of being disabled in an environment designed for the abled and the oppression of being a female in a male dominated society. This means that women often bear unique form of inferiority, both of presumed weakness attached to disability, and being the member of “the weaker sex”. To take an example of such instances in India, the Ministry of Women and Child Development still does not include women with disabilities in their data collection process and there is not a single Ministry which provides gender segregated data when reporting on beneficiaries with disabilities.
Right to Live Independently and be Included in The Community
Human rights are based on the basic principle of universality and that every human being is born with equal dignity and rights. The right to live independently is one such right which becomes the core of the human rights principles which promotes enabling and inclusive environment for everybody, including people with disabilities. Article 19 of the UN Convention for Rights of People with Disabilities (“CRPD”) (of which India is a signatory) reiterates this right in order to prevent abandonment and segregation and to enable development of personalities and capabilities of persons with disabilities. Article 3 of CRPD forms the basis for this principle namely, “full and effective participation and inclusion in society”. While the CRPD does not include a specific definition of ‘independent living’, the common understanding of independent living is having choice and control as reflected in Article 19 and is one of the key principles of the CRPD. Article 19(a) requires that disabled people have the opportunity to make decisions about where and with whom they live, on an equal basis with others. Article 3(a) of the CRPD requires “respect for inherent dignity, individual autonomy, including the freedom to make own choices, and independence of persons”. There are essentially two elements of Article 19, the first being personal choice and control of the people with disabilities to make decisions regarding their own life, and the second is the link to inclusion in the community and access to services and support.
It states that “States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take viable measures to encourage full happiness by people with handicaps of this privilege and their full consideration and cooperation in the network, including by guaranteeing that:
(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-home, residential, and other community support services, including personal assistance, necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.”
This article makes it clear that the right to live independently and the opportunity to be included in the community is a human right which is offered to all people with disability.
Decisions relating to the lives of the people with disabilities who reside with their family are usually made by the family members. They are not given the freedom to make their own choices or make important life decisions. Without adequate support systems for the disabled, not only does the burden on the family increase, but it also violates the rights of the person with disabilities.
Importance of Implementation of International Conventions in India
The Indian Parliament has exclusive powers to enact a statute or legislation for the implementation of treaties as provided under Article 253 of the Indian Constitution. Article 253 empowers the Parliament to make any law, for the whole, or any part of the territory of India, for implementing “any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” Conferment of this power on the Parliament is evidently in line with the power bestowed upon it by Entries 13 and 14 of List I under the Seventh Schedule. The Directive Principle of State Policy (“DPSP”) laid under Article 51(c) directs the government to strive to achieve objectives of international treaties which it ratifies in good faith. It provides that “the State shall endeavour to…(c) foster respect for international law and treaty obligations”.
In the case of Jolly George Vergese v. Bank of Cochin, Krishna Iyer J. observed that “the positive commitment of State Parties ignites legislative action at home but does not automatically make the covenant an enforceable part of the corpus juris of India.” The Delhi High Court also observed that in India, treaties do not have the force of law and consequently obligations arising therefrom will not be enforceable in municipal courts unless backed by legislation. It is also noteworthy to mention that Shah J. in the case of Maganbhai Ishwarbhai Patel v. Union of India observed that “making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of others or modifies the laws of the state. If the rights of citizens or others which are justiciable are not affected, no legislative measure is needed to give effect to the agreement or treaty”. Therefore, it can be clearly said that India is a State where international law and treaties do not become internal or municipal law in the sense of “Incorporation” or “Blackstonian” doctrine.
Need for Specific Protection for Women
Currently, the Rights of People with Disabilities Act, 2016 (“The Act”) is in force which replaced the Rights of People with Disabilities Act 1995 (“The erstwhile Act”). The preamble of the Act refers to Article 3 of CRPD which elaborates upon the general principles for the complete realization of rights of people with disabilities to equality and non-discrimination. In the Act, as opposed to the erstwhile Act, the legislature has made a few provisions for the protection of women and children with disabilities particularly, as they are considered to be a vulnerable group.
The right to live independently is one of the most important and fundamental rights, the realization of which is important for further realization of other rights available to the people with disabilities. As per the CRPD Report submitted by the Government of India to the National Committee for People with Disabilities “Support services for ‘living independently’ are almost non-existent in the country. There are hardly any initiatives towards in-home, residential and other community support services. There are now a few services (run by the private sector) that have been initiated for elderly people in certain cities but these do not cater to the more specific needs of people with disabilities. Moreover, the costs are exorbitant and are usually beyond reach for many disabled people. There are a few non-governmental organizations (NGOs) which run Community Based Rehabilitation (CBR) programs but their reach is very limited and their approach is also sometimes medical based (barring some exceptions).”
It can, therefore, be said that there exists a need for more targeted protection of women with disabilities and the most important aspect of it is the securing the right to live independently and to be included in the community.
There are many more guidelines which should be honoured and not jeopardized by the depiction of any such movie or scenes in a particular movie.
It can be seen that no particular provision or enactment is present in the existing laws to ensure that the right to live independently is extended to the women with disabilities. Protection to women with disabilities has to be provided and for this purpose, specific provisions are to be included in the existing laws. Right to live independently, as earlier discussed, is fundamental for growth and freedom of persons with disabilities. It ensures that they have the right to make their personal life decisions and take control over their lives and ensure that they are included in the community. This implies that the usual practice of ignoring the presence of women with disabilities must be kept in check.
After the analysis of the above discussion, some suggestions are placed for consideration for effective implementation of the right to live independently, specifically focusing on the women with disabilities in India. These suggestions include:
- There should be an explicit right to live independently and to be included in the society mentioned in the Act for its effective realization.
- The Act must give power to the state governments to formulate their own rules and procedures for the composition of disability specific support service centres, which can be easily accessed by women with disabilities. Such support service centres must include members like NGOs, medical consultants and doctors, female nurses, and persons with special knowledge and sensitization towards people with disabilities.
- Steps must be taken for collection of accurate data, regarding the number (quantitative data) of women and also the conditions and requirements (qualitative data) of women with disabilities in each district, including the women who are enrolled in special institutions.
- Any issue which relates to women with disabilities must be dealt with promptly and therefore it is suggested that guidelines are issued which state that matters in the courts which are relating to the rights of the women with disabilities must be expedited or disposed of under summary procedure.
- Committees must be established with delegated powers to monitor the current situation and ensure that the support services are provided and essential standards are maintained.
Only when the right to live independently is ensured that women with disabilities will be able to realize all the other rights that are provided to them since it is one of the basic general principles which lets women take control and lead their life without feeling like a burden.