Proposing Amendments in The Constitution of India to Ensure Right To Equality For Persons with Disabilities.
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Recently Government of India has undertaken the process to bring about the extensive amendments to the Persons with Disabilities Act. This decision is a welcome one. We also deeply appreciate the decision of the Government of India ratifying the UN Convention on Rights of Persons with Disabilities. However, the concern is much deeper.
Though The Persons with Disabilities Act was enacted in 1996, the corresponding administration and infrastructure required for its forceful implementation has been largely missing. Needless to say that in spite of the various enactments and court judgments, the position of persons with disabilities is extremely vulnerable as they do not enjoy any constitutional protection. The enforcement of rights and accrual of various benefits to persons with disabilities largely rests on the legal interpretation of the statutes and entitles them for citizenship of second status in the country reinforcing stereotypes views about the capabilities and abilities of persons with disabilities.
The struggle continues as there still seems to be a wide hiatus between the law, the perception about the law, and the attitudes of the people who have to implement the law.
Since all statutes especially those on social empowerment draw their strength from the Constitution however, it is indeed very sad and unfortunate that Constitution of India does not have a single visible provision voicing the concerns of Persons with Disabilities. We attribute this lacuna in Constitution to the malady that prevails today. For it is a settled law that while the interpretation of enactments might vary according to the understanding of courts or amendment in the statutes but the basic structure of the Constitution will remain intact.
When the NDA Government headed by then Prime Minister Shri Atal Vihari Bajpayee set up the Constitution Review Commission, Sambhavana, a voluntary, non-governmental and nonprofit making organization for persons with disabilities along with Dr Krishna Mahajan, Senior Advocate had submitted a petition to the Commission containing detailed review of the Constitution of India from the perspective of the persons with disabilities. The effort was fruitless because the Commission did not find appropriate to take cognizance of it in its report. In this context we would also like to bring to your kind notice that apart from the developed countries such as Canada, there are various developing countries like South Africa and smaller African countries like Eritrea, who have exclusively recognized the importance of persons with disabilities in their constitutions and specifically provided for constitutional guarantees safeguarding rights of persons with disabilities. We feel that incorporation of similar provisions in our Constitution would go a long way in ensuring the right to equality enshrined in Part Three for the persons with disabilities.
We would therefore urge her Excellency to convince the Government of India to introduce appropriate amendment in the Constitution of India on the following lines
1. Amendment of Article 15(1) and 15(2):
“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
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…”
Incorporation/Alteration/Addition/Deletion: “Disabilities” after the words place of birth” and “Disability be removed from (Subject to any disability, liability…”.
2. Addition of new Article 15(3-A):
Nothing in this Constitution shall prevent the State from making special provisions for the persons with disabilities in general and for women and children with disabilities in particular to ensure that they enjoy benefits on an equal basis with others under the law.
3. Article 16(2):
“No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State”
Incorporation of the word “disabilities” after the word residence.
4. Explanation to be incorporated after Article 23(1):
Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law
Explanation: turning persons into persons with disabilities and forcing the disabled to beg shall be an offence punishable in accordance with law.
5. Insertion of Explanation to Article 29 (1):
“Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”
(1) Braille to be recognized as a distinct script for people with visual impairment.
(2) Sign language to be recognized as a distinct language for the people with hearing and speech impairment.
6. Amendment of Article 30 (1):
“All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”
“Whether based on religion or language” should be replaced with “whether based on religion, language or script”. Thus, people with disabilities or groups with disabilities shall have the right to establish and administer educational institutions.
7. Article 41-A:
State shall ensure that every person with disability shall enjoy all the human rights and fundamental freedoms guaranteed by the International Treaties, Covenants and Conventions subject to their ratification by Government of India. It shall further be obligatory for the State to evolve a viable policy framework to implement the same.
8. Article 46:
“The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”
Incorporation of the words “persons with disabilities” after Scheduled Tribes.
9. Fundamental Duties:
Addition of a new duty 51-A (L): Citizens shall renounce discriminatory and derogatory practices harming the dignity of persons with disability.
10. Deletion of Article 102 (1) (b):
Article 102 (1) (b) which says that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament “if he is of unsound mind and stands so declared by a competent court”. This clause excludes people with psychosocial or intellectual disabilities from membership to either House of Parliament and should be deleted.
11. Deletion of Article 191 (1) (b):
Deletion of Article 191 (1) (b) which states that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State “if he is of unsound mind and stands so declared by a competent court”. This clause excludes people with psychosocial and intellectual disabilities from membership to the Legislative Assembly or Legislative Council of a State and should be deleted.
12. Article 243D:
Article 243D Reservation of seats
Addition of sub clause(C) with the words “and persons with disabilities” after 243D (1) (b).
13. Article 243T:
Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality
Insertion of words “and persons with disabilities” after Scheduled Tribes in Clause (1).
Not less than one third of the total number of seats reserved under clause ( 1 ) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes
Proviso to Article 243T (2): Provided that 5% seats shall be reserved for women with disabilities.
Not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality
Clause (3) addition of words “and women with disabilities” after Scheduled Tribes.
14. Addition to Article 325:
Insert “and disability” after “grounds of religion, race, caste, sex or any of them”. Then, no person with disability shall be ineligible for inclusion in, or to claim to be included in a special, electoral role.
15. Modification to Article 326:
Delete “unsoundness of mind” after “ground of non residence”. This shall stop the exclusion of people with psychosocial and intellectual disability as eligible for registration as a voter at Elections to the House of the People and to the Legislative Assemblies of States.
16. Modification to Article 343:
“The official language of the Union shall be Hindi in Devanagari script. The form of numerals to be used for the official purposes of the Union shall be the international form of Indian numerals.”
Sign language to be recognized as official language. This shall then be recognized as a language that can be used in the Legislature (Article 210).
17.Addition to Article 350:
“Language to be used in representations for redress of grievances. Every person shall be entitled to submit a representation for the redress of any grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case may be.”
Explanation: This shall include sign language for the people with hearing and speech impairment.
18. Insertion of Explanation to Article 350 A:
“It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups...”
Explanation: For the purposes of this Article, sign language to be recognized as mother tongue for the people with hearing and speech impairment.
19. Insertion of Explanation to Article 350 B:
“Special Officer for linguistic minorities”
Explanation: People with hearing and speech impairment to be recognized as a linguistic minority for purposes of this Article.
20. Schedule VII:
Insertion of Entry 25-A List III Schedule VII: Higher Education of persons with disabilities and Establishment of Institutions for their empowerment and rehabilitation.
Insertion of Entry 25-B List III – Human Rights of persons with disabilities
21. Addition to Eighth Schedule:
Sign language should be added as a scheduled language in the Eighth Schedule of the Constitution.
Introduction of Sambhavana
Sambhavana is a voluntary, nongovernmental, nonprofitmaking organization, It comprises of disabled and non-disabled teachers, students and activists. It was formed in 2000 and formally registered under the Society Registration Act (1860) in 2003. It has also involved in various advocacy programmes for the rights of persons with disabilities for almost a decade at both state and national level and has filed a few very important cases on disability. It also focuses on education, employment, accessibility, rehabilitation, awareness building programs, social inclusion of disabled in all walks of life, and bringing the disability perspective in the mainstream.
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