On October 1, 2007, India ratified the United Nations Convention on Rights of Persons with Disabilities (“UNCRPD”/ “Convention”). The Convention, like all other international conventions, required that India implement the rights and guarantees provided in it and also change existing laws in order to bring them in conformity with the principles of the Convention.
However, for a period of two years the government took no action to implement the UNCRPD. Finally, in May of 2010, the Government constituted an Expert Committee to draft a new legislation which would replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“PWD Act”). The law which is being drafted by the Committee (“New Law”) is to implement the UNCRPD in India and attempts to create a paradigm shift from the paternalistic / discriminatory model which is prevalent in the context of the rights of persons with disabilities (“PWD”) to a model which is centered around universal legal capacity and the empowerment of PWDs.
This paper examines the legal system in India in order to determine what changes are required in order to implement the UNCRPD. I first examine Article 4 of the Convention to determine the obligations under it with respect to existing national legislation. I then discuss several legal options which are available for fulfilling these obligations and suggest a model / approach which may be adopted in order to bring the existing legal system in conformity with the Convention. Till this point of the paper the chapters are instructive in nature and seek to acquaint the reader with the system of law making prevalent in India and provide a model which is suited for the implementation of the Convention in India.
The second part of the paper, comprising three chapters, deals with the specific rights mentioned under Articles 13, 23 and 29 of the Convention respectively. In each chapter I examine the international law related to that right as it stands today. This has been done in order to exemplify the fact that India has an obligation under general international law as well as the UNCRPD to grant these particular rights to all citizens, including persons with disability. The laws which I primarily discuss are the Universal Declaration of Human Right (“UDHR”), the International Covenant on Civil Political Rights (“ICCPR”), the International Covenant on Economic Social and Cultural Right (“ICESR”), the Convention on the Elimination of all forms of Discrimination against Women (“CEDAW”) and the Convention on the Rights of the Child (“CRC”). It is important to note that India is a signatory to all these conventions and covenants. I then discuss the specific obligations emanating from the relevant Articles of the Convention in order to determine the scope of each right as per the mandate UNCRPD. Finally, in each chapter, I discuss the Indian law position on the aforementioned rights in the context of PWDs. This section of every chapter also discusses the considerations to be kept in mind while drafting the New Law, the nature of the provisions in the New Law with respect to these rights and the amendments required to bring existing law in conformity with these particular articles of the Convention. These chapters have been written while keeping in mind the substantive content of the New Law as envisioned in the Consensus Paper on Substantive Content of the New Law on Disability Rights (“Consensus Paper”) which was issued by the Committee.
The suggested provisions which may be included in the New Law in order to implement these rights have been included in Annex I based on the discussions in the paper.
It is a basic principle of international law that a State party to an international treaty must ensure that its own domestic law and practice are consistent with what is required by the treaty. In some cases, the treaty may give general guidance on the measures to be taken. In others, the treaty includes specific stipulations. The UNCRPD contains both kinds of provisions.
One of the fundamental obligations contained in the Convention is that national law should guarantee the enjoyment of the rights enumerated in the Convention. Except in the rare case that the laws in a country already conform fully to the requirements of the Convention, a State Party will normally have to amend existing laws or introduce new laws in order to put the Convention into practice. The extent of these changes is dependent on the existing legal system in a country. Certain countries (including India) have already made laws pertaining to people with disability. These laws may be inadequate to meet the mandate of the Convention or may even be discriminatory laws which refuse equal treatment to PWDs. In addition, the general legal systems across the globe have either ignored PWDs as a whole or included discriminatory provisions which disentitle PWDs from the benefits of that law.
Hence, the obligation to change existing laws in order to conform to the UNCRPD is one which is constant throughout the Convention but is specifically mentioned in Article 4, paragraphs (a) and (b) of the Convention. The relevant paragraphs state:
“1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:
(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;
(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; …”
These provisions indicate that Article 4 entails two obligations as regards domestic legislation. The first is the adoption of appropriate domestic legislation for the implementation of the rights recognized in the Convention. The second is an obligation to change or abolish existing laws which allow discrimination / discriminate against PWDs.
It has been noted that one of the methods of implementing the obligations under the UNCRPD is to employ and three – pronged approach consisting of:
A comprehensive disability law: this law should cover all aspects of the Convention or those aspects which are not covered in existing laws;
Amendments to the national constitution: these amendments may introduce disability as one of the grounds on which discrimination is prohibited or explicitly protect the rights of persons with disabilities in the national constitution, whether as part of a general guarantee of equality, or in the form of specific provisions relating to the rights of persons with disabilities; and
Changes in existing laws: this requires that those laws which are not in conformity with the UNCRPD should be amended or repealed.
In India the legal system can be broadly divided into three categories in the context of the rights of PWDs. The first category is composed of those laws which pertain specifically to PWDs. The second and third categories are general laws which (a) do not mention PWDs at all and therefore do not provide necessary entitlements and reasonable accommodation and (b) specifically mention PWDs but only in a discriminatory manner. For example, Section 13 (1) (iii) of the Hindu Marriage Act, 1955 and Section 16 (b) of the Representation of the People Act, 1951 will need to be repealed as both legislations discriminate on the basis of “unsoundness of mind” which essentially refers to mental illnesses. While the former falls foul of Article 23 of the Convention, the latter falls foul of Article 29. In addition, certain provisions of the Code of Criminal Procedure 1908, the India Penal Code 1860 and the Indian Evidence Act, 1882 have to be amended in order to include provisions for reasonable accommodation which are required in order to realize the rights under Article 13.
Hence, almost every right and entitlement under the Convention requires that, for the “full realization” of the right, certain existing domestic laws will have to be amended, repealed or supplemented in order to add entitlements.
Therefore, it may be concluded that under the UNCRPD, India has an obligation to create a new and comprehensive law which encompasses the Convention’s mandate and also overhaul its existing legal system which is currently not disable – friendly.
The mandate of the UNCRPD as regards existing legislation may be fulfilled by way of a number of legal tools which are prevalent in Indian law making. These methods will be incorporated into the New Law and shall impact existing legislations by repealing or otherwise changing them.
The New Law shall have to negate the effect of every existing law which conflicts with its operation. This may be achieved in a number of ways such as:
It should be noted that while the aforementioned methods are effective for negating the effect of existing legislations, the same is not applicable to Constitutional Amendments. This is because the special procedure for amending the Constitution can only be activated by Parliament. Hence, with respect to Constitutional Amendments, it is necessary that recommendations be made to the Central Government and brought about by way of advocacy.
Non – obstante clauses are usually appended to a section in the beginning, with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provisions of other existing Acts. These clauses usually begin with the phrase “notwithstanding anything contained…” and can be used to override specific provisions of existing legislations (by adding the name of the legislation and the section number of the conflicting provision) or every existing law which is in conflict with the enacting part of the section (by adding the phrase “any law for the time being in force”).
Thus a non – obstinate clause may be used as a legislative device to modify the ambit of the provision or law mentioned in the clause or to override it in specific circumstances of conflict.
It has been noted that, while interpreting such clauses, a wide meaning can be accorded to them and hence the enacting words following it, when the use of wide language is in accord with the object and purpose of the act.
In the context of the New Law these clauses can be very effective in negating or curtailing the adverse impact of existing laws. For example, while introducing the right to participation in political and public life which is enshrined in Article 29 of the Convention, the provision in the New Law may be phrased thus: “Notwithstanding anything contained in the Representation of the People Act, 1950 and Representation of the People Act, 1951, every person with disability shall have the right to be registered in an electoral roll and vote”. This, in effect, ensures that a person of “unsound mind” (the terminology used in Section 16 (1) (b) of the Act of 1950) would be entitled to register as a voter and vote even if the aforementioned provision was not explicitly repealed.
Hence, considering the limitations of the Schedule of Amendment (discussed subsequently) these clauses can be effectively used to override the provisions of discriminatory laws which are currently in force.
It is settled law that Schedules appended to statutes form part of the statute. They are added towards the end and their primary use is to avoid encumbering the sections the statute with matters of excessive details. It should be noted that the division of a statute into sections and schedules is primarily a matter of convenience and a schedule may therefore contain substantive enactments which may even go beyond the scope of the section to which the schedule is connected to. Thus it has been held that a schedule “is as much an act of the legislature as the Act itself and it must be read together with the Act for all purposes”.
The Schedule envisaged in the New Law would contain the substantive amendments which are to be introduced in existing laws and shall also contain provisions which repeal certain sections of existing laws as a whole. This would serve the dual purpose of eliminating the need to mention these laws within the sections of the New Law (thereby avoiding encumbrances arising from excessive details) and would also ensure that the New Law, on coming into force, will also explicitly change the existing legal system to provide for the rights and entitlements of PWDs.
The aforementioned Latin maxims, when read together, effectively provide that a later special law will supersede an earlier general law. These maxims are basic principles of interpretation of statutes and have been long accepted by Indian courts. The New Law would qualify as special law since it regulates the rights and entitlements of a specific group of people.
These maxims are important in the context of the UNCRPD since the Convention requires that the general law of the country needs to be in conformity with it. Hence, any right or entitlement granted under the New Law, if in conflict with existing laws, shall override the existing provisions.
The Twin – Track Approach is essentially a requirement of Article 4 of the Convention which lays down two, distinct, obligations as regards domestic laws of a State Party. The Approach recognizes the fact that a single, isolated law, no matter how comprehensive, is insufficient to put into practice the mandate of the UNCRPD. It further recognizes the fact that in order to realize the aspirations enshrined in the Convention, it is necessary to overhaul a country’s legal system as a whole and therefore a law enshrining the rights and entitlements of PWDs cannot be effective if it is independent and isolated from a supporting legal framework in the general law of a country.
The Approach seeks to combine the aforementioned legal tools in order to comprehensively fulfill the mandate of the Convention by incorporating the rights of PWDs in the existing legal framework while simultaneously eliminating the discriminatory provisions in existing legislations.
The Approach benefits from the fact that the aforementioned methods, while overlapping, are not mutually exclusive of each other. In fact, the simultaneous use of the aforementioned methods only serves to strengthen and facilitate the incorporation of New Law and the rights of PWDs into the legal system of the country. The structure proposed by this approach has been presented in Chart 1.
Chart 1 lays down the legislative measures which are required in order to fulfill the mandate of the UNCRPD. The leftmost column mentions those legislative measures which shall be included in the New Law itself and will implicitly change existing laws, i.e., these measures will not specifically mention existing laws but will have an overarching impact on all existing laws which are not in conformity with the New Law. The right-hand column mentions the method of bringing about amendments to the Constitution. The middle column deals with those amendments which will be explicitly incorporated in existing laws. These amendments are essentially of three types – amendments which repeal discriminatory provisions, amendments which add entitlements to existing laws and amendments which introduce a reference to the New Law in existing laws.
The measures suggested in the middle column shall be contained in a Schedule of Amendments which will be appended to the New Law. Hence, on the passing of the New Law into an Act, the amendments suggested in the Schedule shall become effective, thereby explicitly changing existing laws as required by the New Law.
Therefore, the Twin – Track Approach envisages a single and comprehensive legislation which simultaneously serves a dual purpose, i.e., creating a new legislation to implement the UNCRPD and overhauling the existing legal system to make it disable – friendly.
This approach has a number of benefits in the context of the Convention but is also slightly limited in scope. These issues are discussed below.
The approach is backed by precedent and this will be immensely helpful while piloting the New Law through the law ministry as well as parliament. It has been common practice in Indian law to pass single amendment acts which amend a number of existing statutes. The amendment acts are usually aimed at specific areas of law such as criminal law, personal laws, taxation etc. Similarly, the Schedule of Amendments to the New Law can be viewed as something in the nature of a Disability Laws (Amendment) Act. The fact that the approach has been employed before should prevent any undue opposition in Parliament and facilitate the passing of the law.
By adopting this approach it is ensured that the rights and entitlements are widely replicated, i.e., in the New Law as well as the general laws which have to be amended. This serves the dual purpose of avoiding future litigation regarding the New Law by providing an explicit as well as implicit repeal of discriminatory laws. In addition, the recognition of the rights and entitlements under general law provides a method of implementing them as soon as they come into force without waiting for the period of time which will be required to acquaint the judiciary, public officers and citizens with the New Law. Essentially, this method allows us to avoid the “gestation period” of the New Law. For example, if certain rights and entitlements are mentioned in the Code of Criminal Procedure (by way of amendment), it is much more probable that a policeman shall become quickly oriented with them since he has reason to consult this legislation on a regular basis. The same cannot be said for the New Law since a substantial amount of awareness raising shall have to be done before all the relevant persons are acquainted with it.
The adoption of this method shall also avoid an unwieldy legislation. This will help in teaching and informing people about the legislation (awareness raising) and also prevent unnecessary legal squabbles.
There is perhaps one single limitation to this approach – it cannot be exhaustive. The Schedule of Amendments can only incorporate amendments to a limited number of legislations; otherwise it will face resistance in parliament. These issues are not of a legal nature; theoretically speaking such a schedule can contain amendments to an infinite number of legislations. However, the more legislations one adds to the Schedule, the more toes one begins stepping on and hence attracts more political resistance.
Hence, it will become necessary to choose certain specific legislations which shall be amended by the provisions in the Schedule. It is suggested that these amendments are chosen based on the degree of adverse effect they have on a particular right.
“Access to justice” is a broad concept, encompassing people’s effective access to the systems, procedures, information, and locations used in the administration of justice. People who feel wronged or mistreated in some way usually turn to their country’s justice system. In addition, people may be called upon to participate in the justice system, for example, as witnesses or as jurors in a trial. Unfortunately people with disabilities have often been denied fair and equal treatment before courts, tribunals, and other bodies that make up the justice system in their country because they have faced barriers to their access. Such barriers not only limit the ability of people with disabilities to use the justice system, but also limit their contributions to the administration of justice.
The ability to access justice is of critical importance in the enjoyment of all other human rights. However, if the justice system fails to accommodate their physical, communication, or other disability-related needs, and/or expressly discriminates against her or him, then clearly denial of access to the justice system also results in denial of protection of the right to work.
This section of the paper examines the right under international law, the obligations under the UNCRPD and the Indian position with respect to these obligations.
The right to access to justice has its foundation in provisions in international law that address the equality of people before the law, their right to equal protection under the law, and their right to be treated fairly by a tribunal or court. These rights are addressed in Articles 6 through 11 of the UDHR and are addressed in more detail in Articles 14 – 16 of the ICCPR.
Other treaties address the need to ensure that specific groups are able to enjoy these rights on an equal basis with others. The International Convention on the Elimination of All Forms of Racial Discrimination (Article 5) and the CEDAW (Article 15) are particularly relevant for people with disabilities who may be subject to multiple discrimination, such as women with disabilities and ethnic minorities with disabilities. For example, Article 5(a) of CERD requires that States “eliminate racial discrimination in all its forms,” and guarantee the right of everyone “to equal treatment before the tribunals and all other organs administering justice”. Article 15 of CEDAW addresses these issues as they relate to women, and requires that States treat women “equally in all stages of procedure in courts and tribunals”.
Hence it is apparent that this right is protected for all persons as a basic human right and therefore is an entitlement for PWDs as well
The UNCRPD expands upon the issues addressed in earlier human rights documents and helps to clarify how States can respect, protect, and fulfill the enjoyment of access to justice by PWDs. Article 13 guarantees the right of PWDs:
to effective access to justice on an equal basis with others;
to effective access to justice at all phases of the administration of justice, including at preliminary stages, such as initial investigations;
to be both direct and indirect participants, including being witnesses;
to receive procedural and age-appropriate accommodations to facilitate their access to justice.
The Article also requires States to provide training to those working in the administration of justice in order to help ensure effective access to justice by PWDs.
States must respect the right to access to justice by ensuring that State actors (e.g., police, judges and prison staff) do not interfere with the exercise and enjoyment of access to justice by PWDs. States must also protect the right by ensuring that non-State actors (e.g., private attorneys, families) do not interfere with the exercise and enjoyment of the right.
Furthermore, States have an obligation to fulfill the right, by taking action to ensure that PWDs are able to exercise the right. The provision of disability-related training to those working in the administration of justice is just one example of the type of action required of States by Article 13 to fulfill the right to access to justice.
Guaranteeing the rights under Article 13 in India is a relatively unproblematic process due to two reason – there is no express discrimination in the law disentitling PWDs from accessing the justice system and the right is impliedly guaranteed under the Constitution. However, actually enforcing these rights in the context of PWDs is quite a different matter which revolves around issues of accessibility and reasonable accommodation.
The Constitutional guarantee lies primarily in Articles 226 and 32 which allow a person to approach the High Courts and Supreme Court directly. These Articles together provide an effective guarantee that every person has a fundamental right of access to courts. Article 32 confers power on the Supreme Court to enforce the fundamental rights. It provides a guaranteed, quick and summary remedy for enforcing the Fundamental Rights because a person can go straight to the Supreme Court without having to go undergo the dilatory process of proceeding from the lower to higher court as he has to do in other ordinary litigation. The Supreme Court is thus constitution the protector and guarantor of the fundamental rights.
The Supreme Court of India has taken imaginative measures to promote access to justice when people would otherwise be denied their fundamental rights. It has done this by the twin strategy of loosening the traditional rules of locus standi, and relaxing procedural rules in such cases. In addition, several articles of the Constitution have been interpreted in conjunction with Article 32 and 226 to extend right of access to courts and judicial redress in various matters.
These Constitutional guarantees, however, provide a citizen access to the highest courts of the land. The rights may be exercised either in cases of grave injustice at the lower levels of the judiciary or in the interests of the general public. In the context of PWDs these rights have been effectively used to bring about structural changes in society and the law as opposed to redressing the grievances of individual PWDs.
The issue with implementation of the rights under Article 13 lies at the other end of the judicial process, i.e., access to police stations, issues related to the filing of complaints, access to lower courts etc. These problems have to remedied by adding entitlements to the existing procedural laws in order to provide access and reasonable accommodation for PWDs.
The concept of access to justice has been divided into three broad categories depending on the role of the person with disability (“PWD”) in the process of justice. These roles are that of a complainant, that of a witness and that of an accused person.
The primary barriers posed by the present criminal law regime are to persons with intellectual, developmental and cognitive disabilities. Most of the amendments would require that all proceedings, starting from the filing of a F.I.R. to proceedings before the Magistrate’s Court should be carried out with the aid of a sign language interpreter provided by the state or with the aid of any person chosen by the PWD or with the aid of any assistive device required by the PWD. In addition an amendment shall be required making it mandatory for all public buildings such a police stations, court houses etc. to be accessible.
The New Law should expressly include all the rights in such a manner that it becomes necessary to read the statutes relating to criminal procedure and legal aid along with the entitlements provided in the New Law. The entitlements should primarily relate to access to public buildings and assistance required for communication with law enforcement and judicial authorities. In addition, amendments have to be made to the Code of Criminal Procedure, 1908 (“CRPC”) and the Indian Evidence Act, 1872 (“IEA”) which are the basic laws governing criminal procedure in India.
The CRPC provides a detailed procedure of a criminal trial starting from the filing of a complaint at a police station, appearance before a magistrate, examination of a complainant etc. During the course of the process it is necessary for the complainant to communicate with the law enforcement authorities as well as the judiciary in order to file his complaint, explain the same to the magistrate and argue his case in court if he chooses to do so. It is evident that the whole system is unsuited to persons with hearing and speech impairments since the CRPC does not provide any form of reasonable accommodation for PWDs.
It is suggested that every provision of the CRPC which requires a person to communicate with a public official should include a provision which allows this communication to occur through a sign language interpreter, a person who is familiar with the complainant’s home signs and is chosen by the complainant or with the help of assistive technology, as appropriate. In addition, such assistance should be provided by the state and the state should bear the cost for the same.
Hence it becomes necessary to amend certain section of the CRPC such as the section which defines “complaint” only as oral or written complaints, the section which related to First Information Reports and requires all information to be given orally or in writing as well as the section which provides for examination of a complainant by a magistrate and does not provide any reasonable accommodation as regards PWDs.
The law governing witnesses is found in the Indian Evidence Act, 1872. As per Section 118 of the Act all persons who are capable of understanding and answering questions in a coherent manner are competent to testify in court. The Court shall adjudicate whether or not a witness is capable of answering questions. The Section specifically mentions that “lunatic” is not incompetent to testify unless he is incapable of answering questions which are put to him.
In addition, Section 119 provides for “dumb witnesses” and states that their testimony, if submitted in writing or through signs, shall be accepted and deemed as oral evidence.
While both the aforementioned sections are partially in compliance with the mandate under Article 13, the problem lies in the fact that they only cater to certain groups of PWDs. Therefore, it is suggested that the sections be amended to cover all PWDs as long as they are capable of understanding and answering questions. The sections should include a further provision which states that such questions may be understood and answered by way of sign language, home signs or any technological and human assistance required for the purpose. Arranging this assistance and bearing the cost of the same should be an obligation which is on the Court.
The entitlements which need to be incorporated for a PWD accused of a crime are similar to those that have to be incorporated for PWD who is a criminal, i.e., assistance required to understand the proceedings and the allegations leveled against the offender.
In this context, Sections 164 and 240 of the CRPC are relevant. The former Section provides for the recording of confessions and statements and empowers a magistrate to “record any confession or statement”. The section should be amended to add a proviso which states clearly that such confessions and statements can be made by way of a sign language interpreter, through any person chosen by the PWD and through any assistive device which the PWD requires for this purpose. The cost and arrangement of such assistance shall be borne by the state. Similarly, when charges are framed under Section 240, it is necessary that the accused should understand the same. The section thus provides that the magistrate who frames the charges should explain the same to the accused. This explanation should be rendered with the aid of any form of assistance which is required.
Hence, the New Law shall primarily have to provide measures of access and assistance with respect to this right.
International law recognizes the fact that the family plays an essential and central role in human society. The family is perceived to be “the natural and fundamental group unit of society and is entitled to protection by society and the State.” This outlook lies at the foundation of the broad protection granted to the family by international law. The right to family life, which has been recognized as a fundamental right in international law, is enunciated in all major international instruments and conventions.
Similar to earlier international conventions, the UNCRPD has also included an obligation to respect the home and family of PWDs. This obligation is enshrined in Article 23 of the Convention and covers a number of aspects of family life related to marriage, procreation, children and family.
The right to family life is a fundamental right of the highest degree and has attained broad and comprehensive protection in international law. A first expression of the recognition of the right to family life as a basic human right, and of the protection of the family unit, may be found in Articles 12, 16, and 25 of the UDHR.
Moreover, the right to family life is enshrined in a significant number of international and regional conventions that emphasize the centrality and social importance of the family unit, and which list the right to family life as a fundamental right. First and foremost (and amongst many other international and regional conventions), the right is enunciated both in the ICESR [Article 10 (1)] and in the ICCPR (Articles 17 and 23). Specific protection for children within the family context may be found in the CRC (Article 8, 9, 16). Likewise, the CEDAW (Article 16) includes provisions that grant comprehensive protection to women in the context of the family. Among regional conventions, comprehensive protection for the family institution may be found in the European Convention for Protection of Human Rights and Fundamental Freedoms (Article 8).
The right to family life, as indicated by the provisions of the aforementioned international conventions, encompasses the following: the right to marry; the right to be a parent; equality between the sexes within the family context; protection for children within the family context; and the family's right to privacy. The right to family life also includes the right of individuals within the family not to be exposed to physical violence or verbal abuse, the right of family members to live together in the same country (“family unification”), the right of single-parent families and large families to receive state assistance, protection for working mothers and safeguards related to pregnancy and childbirth, the right to benefit from the educational and cultural resources of the state, the right to an adequate standard of living, and the right to family health services.
The aforementioned conventions form the basis of international human rights laws and a large portion of these conventions are currently considered to be customary international law. These conventions, read in tandem, provide a very broad set of rights related to the family.
India is a signatory to all these conventions and covenants and hence has an obligation to guarantee this right to PWDs, independent of the UNCRPD.
Article 23 provides a wide spectrum of obligations which seeks to cover all aspects of the right to home and family. Paragraph 1 of the Article requires State Parties to take measures (this would include legislative measures) in order to eliminate discrimination against PWDs in issues of marriage, family, parenthood and relationships. More specifically, the Paragraph requires that the rights of PWDs to:
Marry and found a family;
Decide freely on the number and spacing of children; and
Retain their fertility on an equal basis with others;
be recognized by State Parties. These principles are provided in very similar terms in the UDHR, the CEDAW and the ICCPR.
Paragraph 2 of the Article requires that the rights and duties of PWDs with respect to guardianship, wardship, trusteeship, adoption of children or similar institutions be recognized by the State Parties. This right is qualified by the rider that the best interests of the child shall be paramount when recognizing such rights. The Paragraph also imposes an obligation on the state to provide assistance to PWDs in the performance of their child – bearing responsibilities. Paragraph 2 is a reflection of Article 16 (1) (f) of CEDAW and adds the primary consideration of the child’s best interest in accordance with Article 3 (1) CRC. Also, it explicitly covers the issue of accessibility and self-determination in the last sentence, which highlights assistance to persons with disabilities in performing child-rearing responsibilities, at the suggestion of the International Disability Caucus (“IDC”). Note that it is one of the few provisions with an explicit reference to national legislation, as some countries do not acknowledge the concept of formal adoption.
Paragraph 3 of the Article requires that children with disabilities have equal rights within a family. Para (3) builds on Article 19 (1) CRC in parts. The terminology in CRC also differs slightly, as Article 19 (1) covers the protection from ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse.’
Paragraph 4 lays down that State Parties are to ensure that children are only separated from their parents if it is in the child’s best interests (as decided by a competent authority) and in no case can such separation occur on the basis of a disability of the child or parent(s). Paragraph 4 is basically an anti-discrimination provision. The first sentence is based on a similar provision in Article 9 (1) CRC on separating children from their parents. The IDC opposed the language fearing that what is applicable to children could also be made to apply to persons with disabilities regardless of age. The language on competent authorities was refined to ensure fair trial standards. Note again the reference to the best interest of the child, viewed as a core principle of the CRC, enshrined in Article 3 (1) thereof.
Finally, Paragraph 5 of the Article provides that, in case, the immediate family of a child with disabilities is unable to care for the child, the State Parties “shall take every effort to ensure” that the child is placed in alternative care within the wider family or within the community.
The Committee, through the Consensus Paper has limited its requirements in the new law to these particular rights.
It is worth noting that the UNCRPD draws extensively from existing human rights conventions and that the rights mentioned in these conventions (a) are applicable to all people with disabilities (including women and children with disabilities in case of the specific convention); (b) they are binding on all State Parties which have signed these conventions and (c) the rights enshrined in Article 23 of the UNCRPD are found within the ambit of the framework established by these earlier conventions.
Hence, a majority of the rights provided by Article 23 were pre – existing rights available to all PWDs. The Article primarily codifies these rights in the context of PWDs and adds certain entitlements which are necessary to enforce these rights.
The development of law in the context of family life has mostly been with reference to the right to privacy under Article 21. The limited jurisprudence available on this right is primarily derived from Supreme Court judgments which have relied on and recognized the obligations under international conventions which have been signed and ratified by India. This jurisprudence is further limited by the fact that it is fragmented, i.e., no single judgment recognizes all the elements of the right to family; each judgment recognizes a particular element such as the right to marriage, the right to adopt, the right to found a family etc.
The Supreme Court has recognized India’s obligations under a number of the aforementioned international conventions and has also held that the rights enshrined in these conventions, by virtue of India’s ratification, are enforceable in India. In Keshavananda Bharti v. State of Kerala the Court recognized that Part III of the Indian Constitution was influenced by the UDHR and held: “the Declaration (UDHR) may not be a legally binding instrument but it shows how India understood the nature of Human Rights”. Similarly, in Madhu Kishwar v. State of Bihar the Court, while recognizing the enforceability of the CEDAW, stated that “the principles embodied in CEDAW … became integral parts of the Indian Constitution and…became enforceable”. The right under the CEDAW was again recognized in Gaurav Jain v. Union of India with special emphasis on Article 16 of the CEDAW and the right to family.
Finally, in the recent judgment of Suchita Srivastava v. Chandigarh Administration the Supreme Court specifically recognized that the UNCRPD was binding on the Indian legal system and observed that “we must also bear in mind that India has ratified the Convention on the Rights of Persons with Disabilities (CRPD) on October 1, 2007 and the contents of the same are binding on our legal system”. This case is especially relevant in the context of the right to family since it held that a person living with mental illness had a right to take her own decisions regarding issues of reproduction and this right, i.e., right to choose or reject the option of abortion, is guaranteed under the Medical Termination of Pregnancy Act, 1971 and shall be equally applicable to PWDs. Hence it implicitly recognizes the right enshrined in Paragraph 2 of Article 23.
In addition, in the case of Anant Phadke v. State of Maharashtra the Bombay High Court prohibited the forced sterilization of women and children with disabilities while noting that these sterilizations were not medically necessary, were merely performed for the state of convenience and was a violation of a person’s reproductive rights. This, in effect, is a recognition of the right provided in Article 23(1) (c).
Independent of international conventions, the Supreme Court has recognized the right to marriage in the case of Mr. ‘X’ v. Hospital ‘Z’. However, the right recognized by the Supreme Court is not an absolute one. The Court ruled that a person suffering from a communicable disease (the case dealt with the issue of AIDS specifically) has a duty to inform his partner prior to marriage and this right remains a “suspended right” until the disease is cured. The importance of this judgment lies in the fact that it is perhaps one of the only judgments from the Supreme Court which explicitly recognizes the right to marriage under domestic law and independent of international law.
The following conclusions may be drawn from the aforementioned jurisprudence:
India has an obligation under international law to ensure respect for home and family (and all that the right enshrines) for all its citizens including PWDs;
Even prior to the UNCRPD PWDs in India were always entitled to these rights under international law;
These international obligations extend to and have integrated with the domestic legal system by way of Supreme Court judgments;
The domestic legal system, independent of international law, ensures these rights for all its citizens; and
In theory, these rights are protected within the constitutional framework for all PWDs, i.e., these rights are guaranteed to all citizens and there are no explicit exceptions attached to these rights, as regards PDWs.
However, despite a strong legal framework guaranteeing the right to home and family, general laws in India are extremely discriminatory against PWDs. This discrimination operates specifically in the context of people of “unsound mind” which is a broad legal term potentially encompassing any and every form of mental illness, intellectual disabilities and psychosocial disabilities.
While the Constitutional framework guarantees the right to home and family, in practice these rights are regulated by various personal laws which are only partially codified. These laws are extremely discriminatory in nature and the ground of “unsound mind” has been incorporated in all personal laws as a ground for the invalidation of marriage or divorce. While referring to PWDs in this section of the paper I am referring only to people with psychosocial disabilities and mental illnesses since the laws operate in a discriminatory manner against these particular persons with disabilities.
These laws are at odds with Paragraphs 1(a), 1(b) and 2 of Article 23 and do not interfere in any significant manner with the other rights enshrined in the Article. Hence these laws essentially deal with issues of marriage, divorce, adoption, guardianship and other similar institutions. Here I provide a general overview of these laws.
The term PWDs in this section of the paper has been used to refer to persons with mental disabilities only and does not cover other forms of disability.
Different personal laws govern marriages between Hindus (including Sikhs, Buddhists and Jains), Muslims, Parsees and Christians. Inter – religious marriages are covered by a special legislation. Almost every law mentioned above is discriminatory in so far as they require that a marriage may be solemnized only by people of sound mind and / or provide unsoundness of mind as a ground for divorce. The terms used to describe people with mental illnesses or psychosocial disabilities in these legislations include “unsound mind”, “insane”, “lunatic”, “idiot” and “mental disorder”. However, legal precedents show that these terms have generally been interpreted broadly and without much distinction. For the sake of convenience, I use the term “unsound mind” while dealing with the discriminatory provisions of these laws.
These laws govern two essential aspects of marriage – the conditions for a valid marriage to be solemnised and the grounds for divorce.
As regards the conditions for a valid marriage, the Hindu Marriage Act, 1955; the Indian Divorce Act, 1869 (which governs divorce and nullity of marriage between Christians) and the Special Marriage Act, 1954 all include provisions which state that a marriage is void if one of the spouses was of “unsound mind” at the time when the marriage was solemnized. Under Muslim personal laws, which are mainly uncodified, a marriage is considered to be a contract, i.e., the bride and groom have to enter into a marriage contract in order to solemnize the marriage. This, in effect means that a person must have the capacity to contract in order to enter into a valid marriage under Muslim personal laws. As per Section 11 of the Indian Contract Act, 1872 a person has to be of “sound mind” in order to enter into a contract. Hence, barring Parsees, under Indian law, every person who wants to enter into a marriage has to be of “sound mind”.
This essentially means that if a person with any of the aforementioned disabilities gets married under any of these laws, then his / her spouse always has the option of annulling the marriage solely on the basis their disability. These provisions are especially detrimental to people with those forms of mental illnesses which can be cured / controlled through medication, since it leaves them vulnerable within the family even after the condition has been cured.
Unsoundness of mind has been included as a ground for divorce under every personal law. The import of these provisions basically means that a PWD who has entered into a marriage can be divorced by the other spouse solely on the basis of his / her disability.
A joint reading of the various sections leads to the following conclusions:
A person of “unsound mind” cannot marry since the he / she will not fulfill the pre – conditions to a valid marriage; and
If a person of unsound mind does enter into a marriage or only develops a disability after marriage then the other spouse may end the marriage by divorcing the PWD.
In effect the provisions of the aforementioned laws, in contravention of the constitutional framework, deprive a person suffering from any mental illness and psychosocial disability of the very basic right under Article 23 – the right to marriage. Even if a PWD does solemnize a marriage, s/he is always vulnerable within such a marriage by virtue of these provisions. This vulnerability and uncertainty is created solely on the basis of his or her disability.
However, it is important to note that the law as it stands now seeks to protect the interests of the sane spouse. This interest will have to be balanced in the New Law along with the interests of PWDs.
Paragraph 2 of the Article required that PWDs be given equal rights as regards adoption, guardianship, wardship, trusteeship and similar institutions. The Paragraph includes the qualification “where these concepts exist in national legislation”. Guardianship and wardship in India are governed by two legislations – Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. Neither of these legislations contain any discriminatory provisions; in fact, they don’t even mention PWDs.
Trusteeship in India is governed by the Indian Trusts Act, 1882. Section 10 of the Act provides that in case a trust involves the exercise of discretion, then only a person competent to contract can become a trustee. As I have already mentioned, a person of “unsound mind” is considered incapable of contracting under the Indian Contract Act, 1872.
Adoption is an area of law which is largely uncodified. The only codified law on the subject is the Hindu Adoption and Maintenance Act, 1956 which governs Hindus as well as Sikhs, Buddhists and Jains. All other personal laws either do not recognize adoption as an institution or have uncodified laws related to adoption. The other, secular route to adoption is under Section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006. This Act provides a very broad scope for adoption and does not impose any barriers for PWDs.
While the Juvenile Justice Act provides a non – discriminatory path to adoption, the same cannot be said for the Hindu Adoption and Maintenance Act, 1956. The Act lays down that only a person (whether male or female) of “sound mind” is competent to adopt. The Act further provides that a Hindu male need not take his wife’s consent prior to adoption if his wife “has been declared by a court of competent jurisdiction to be of unsound mind”. Similarly, a Hindu woman is allowed to adopt a child if her husband has been declared to be of unsound mind (ordinarily a married Hindu woman does not have the right to adopt). As regards the right to give in adoption, a Hindu man does not require his wife’s consent while giving a child in adoption if she has been declared of unsound mind; the same applies for a Hindu woman. Furthermore, if both parents have been declared of unsound mind, then the child’s guardian is competent to give the child in adoption with the previous permission of the court but without the parents’ consent.
Hence, it is apparent that with respect to adoption in India, PWDs do not have any choice in the matter, i.e., their consent is neither required for taking in adoption nor required for giving a child in adoption. This framework of law is in blatant contravention of the first part of Paragraph 2.
However, it is important to note that the second requirement of the Paragraph relating to the interests of the child has been safeguarded in all these legislations and forms the basis of guardianship, wardship and adoption.
Therefore, is suggested that the “best interest” criterion should be the sole criterion while deciding issues of adoption, guardianship and wardship. The New Law should incorporate a provision which clearly states that a person of unsound mind is competent to adopt and give in adoption unless such action is detrimental to the best interests of the child.
While drafting the provisions corresponding to Article 23 in the New Law, the following should be considered:
The rights under Article 23 have already been accepted by the Supreme Court either directly or through the medium of international conventions. Hence these rights exist within the constitutional framework and are guaranteed therein.
The rights under Article 23 (1) (a) and Article 23(2) will have to be worded so as to negate the effect of the existing laws which are at odds with these rights. Hence these provisions will have to be drafted with non – obstante clauses and should be supplemented by provisions in the Schedule of Amendments which will repeal the discriminatory laws. In addition it must be noted that the existing laws are mostly personal laws and an amendment to these laws may well be opposed by religious groups as being derogatory of their right to religion which is also enshrined in provisions of Part III of the Constitution.
The rights under Article 23 (1) (b) are unique in this gamut of rights since the right to reproductive choice is the only right which has been expressly upheld by the Supreme Court in the context of PWDs. Hence, the provision in the New Act needs to be worded so that it draws strength from Supreme Court’s judgment in Suchita’s case as well as the Article itself.
The right under Article 23(1) (c) is not regulated by law in India and hence a provision can be added to the New Law without significant opposition as regards existing laws. In addition, the right was specifically upheld by the Bombay High Court in Anant Phadke’s case and the new provision can draw upon the same.
Indian law is partially in conformity with the rights provided under Articles 23(3), 23(4) and 23(5), i.e., the best interest (welfare) approach is the basis of all decisions related to unwilling separation of a child from his family without the parents’ consent. In addition, separation of a child from his / her family is only authorized in the best interests of the child as decided by a competent authority. Hence, these rights are not in conflict with any existing laws and are actually included in the fabric of Indian law regarding the child and family. Therefore, the provisions corresponding to these rights need only to mention these rights without referring to any of the existing law.
The right to political and public life has been enshrined most prominently in Article 25 of the ICCPR which came into force in 1976 and is the most widely subscribed treaty guaranteeing participatory rights. India ratified the Covenant in 1979. In addition, the right is also addressed by Articles 20 and 21 of the UDHR. Article 25 is the principal provision on political rights in the Covenant, and contains three principal guarantees: non-discrimination, the right to participate in public affairs, and the right to free elections.
Article 25 initially states that the rights it provides shall be enjoyed “without any of the distinctions mentioned in Article 2 of this Covenant and without unreasonable restrictions.” Article 2 forbids any restrictions that discriminate against citizens on the basis of an explicitly prohibited characteristic. The phrase “without unreasonable restrictions” implies that some restrictions on participation not based on prohibited distinctions are “reasonable” and therefore permissible. The delegates included this phrase to allow denial of suffrage to minors, convicts and those not meeting residency requirements, and to permit the existence of certain limitations on the right to hold public office, such as a requirement of professional training. The denial of suffrage was also allowed in case of people with mental illnesses. The delegates apparently did not consider such “reasonable” restrictions “discriminatory”.
Paragraph (a) of Article 25 guarantees the right to “take part in the conduct of public affairs directly or through freely chosen representatives.” Since paragraph (b) requires genuine, periodic elections, paragraph (a) must contemplate additional means of influencing public policy. However, paragraph (a) does not identify the types of public bodies to which it applies, and the delegates rejected a proposal that would have applied to “all organs of authority.” Thus, below the primary leadership level (e.g., the head of state and the legislature), Article 25(a) is satisfied if appointed officials are “in some way responsible to elected officials.”
Article 25(b) guarantees the right to vote “at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guarantee[ing] the free expression of the will of the electors.” This paragraph recognizes two pre – requisites to free elections – universal suffrage and secret ballot.
Similar rights have been replicated in a whole range of international treaties such as the CEDAW (Article 7) as well as regional treaties including the First Protocol to the European Convention on Human Rights (Article 3); American Convention on Human Rights (Article 23) and African Charter on Human and Peoples' Rights (Article 13).
In the context of PWDs, two points are noteworthy. First, the right to political participation is guaranteed to a section of PWDs, i.e., persons with disabilities other than mental illnesses and disabilities. Second, that it is accepted in general international law that the right will be denied to persons with mental illnesses.
Hence it is appropriate to say that the former section of PWDs have the formal right to vote under the ICCPR. However, as discussed below, this section does not have the substantive right to vote due to issues of accessibility. The latter section of PWDs is not even entitled to the formal right to vote, let alone the substantial right. Hence, two issues emerge – the basic right to vote (in the context of people with mental illnesses) and reasonable accommodation and access to vote (in the context of all other PWDs.
It is important to note that the drafting process for the ICCPR continued over a period of eighteen years and culminated in the 1970. Hence the drafting process began in the late 1950s. At the time when the Covenant came into force, the rights of PWDs were never particularly considered in the international forum. The movement for the same began in the early 1980s. Hence, it was not unusual to accept the existing paradigm which dictated that person with mental illnesses should not be given the right to vote. However, the UNCRPD brings about a very pronounced paradigm shift which does not entertain such discrimination.
Article 29 of the UNCRPD enshrines the right in terms which are similar to the wording used in the CEDAW and ICCPR. However, there are certain prominent differences between the ICCPR and the UNCRPD with respect to this right. The following is a general overview of the right under the UNCRPD followed by a brief comparison with the right under the ICCPR.
The first issue in Article 29 is the participation in elections dealt with in Article 29(a). Paragraph (a) is a non-exhaustive list of participation by virtue of the term “inter alia” which has been included in the opening paragraph. It enshrines both the right to vote and to be elected as well as the active and passive right to vote respectively. The principle of accessibility, assistive technologies and human assistance are explicitly mentioned. The degree of assistance was the subject of heated debates over the dangers of manipulation. Paragraph (a)(i) qualifies voting procedures as having to provide appropriate facilities and materials that are accessible and easy to understand and use. The next Paragraph qualifies the holding of office as having to be “effective” to ensure that persons with disabilities are not mere figure-heads. A crucial provision is also (a)(iii), which allows “assistance in voting by a person of choice.”
The second part of Article 29 is concerned with the full and effective participation of persons with disabilities in public affairs and recognizes that the right to join and form unions or association is an essential element of political participation.
The right under the UNCRPD differs in two significant ways from that under the ICCPR. First, the UNCRPD includes people with all forms of disabilities within its ambit. Article 29, while guaranteeing this right, uses the unqualified term “persons with disabilities”. The definition of persons with disabilities is provided in Article 1 of the Convention includes persons with mental, intellectual and psychosocial disabilities. Hence, as per the UNCRPD, persons with mental disabilities are also entitled to all rights guaranteed under Article 29. Secondly, as compared to Article 29, the rights provided under the ICCPR are limited and do not include the right in Article 29(b).
Hence Article 29 requires that all PWDs be given the formal and substantive right to vote, stand for public office and otherwise participate in the political process. It further provides that all assistance and accommodation which are required to exercise these rights should be provided by the State.
The rights under Article 29 can be divided into three categories based on existing Indian laws: (a) the right to vote and be elected for public office; (b) the right to assistance and accommodation required to access and exercise these rights and (c) the right to join and form associations and other bodies required for the full exercise of the right to political participation.
Category (a) contains a set of rights which are legislatively denied to persons with mental illnesses but are available to all other PWDs. Categories (b) and (c) contain rights which have some support in the present legal system. The former category is supported by judicial decisions in the specific context of PWDs and accessible voting while the rights in the latter category are generally protected by the Constitution and hence are available to PWDs as well.
The rights included in category (c) are explicitly protected under Article 19(1)(c) of the Constitution and is further supported by ample case law. Hence, the New Law merely needs to draw on this jurisprudence and apply it to the context of PWDs. It should be noted that no discriminations against PWDs exist in the context of these rights.
This section of the paper discusses existing domestic laws related to categories (a) and (b) and notes points of consideration which have to be kept in mind while drafting the corresponding provisions in the new law. The section also discusses the issue of home bound PWDs and institutionalized PWDs in order to address concerns raised in the Consensus Paper.
The Preamble to the Indian Constitution declares India to be a sovereign democratic republic. This essentially means that every citizen has the right to vote and to stand for election. This principle of adult suffrage has been further enunciated in Article 326 of the Constitution which states:
“The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.”
A close reading of the Article shows that it does not disenfranchise people of “unsound mind” but states that legislation passed to this affect can disenfranchise them. Essentially it provides an exception to the general principle of adult suffrage which can only be implemented by legislation.
This sanction has been executed by way of Sections 16(1)(b) and 16(2) of the Representation of the People Act, 1950 (“RPA 1950”). The former section provides that a person shall be disqualified from registration in an electoral roll if he “is of unsound mind and stands so declared by a competent court”. Section 16(2) makes provisions for striking a person’s name from an electoral roll if he is declared to be of unsound mind after he has been registered on such roll. In addition, Section 62(2) of the Representation of the People Act, 1951 (“RPA 1951”) expressly provides that any person subject to the disqualifications under Section 16 of the RPA 1950 shall be disentitled to vote.
However, the legislature has failed to designate a “competent court” under this law. Hence there is no certainty as regards: (a) which court can grant such a declaration and (b) whether a declaration under another statute is enough to disenfranchise a person.
In addition, the legislation fails to define unsoundness of mind. As discussed above, this legal term has been very broadly interpreted which means that a person who has a mental illness but has the capacity to vote, i.e., identify and choose parties and candidates and press the correct button / mark the ballot paper, can also be disqualified under Section 16 of the RPA 1950. It is important to note that a person who is able to do the aforementioned acts is a person who has the capacity to vote and his or her political knowledge is immaterial to the exercise of this right.
Hence this disqualification is without any rational basis as required by the test under Article 14 and serves no particular purpose other than to add to the vulnerability and uncertainty of voters who have or have had mental disorders. Therefore, the New Law should guarantee every person with disability the right to be registered as a voter as well as the right to vote. In addition, the aforementioned sections of the RPA 1950 and RPA 1951 should be repealed.
An amendment to Article 326 is not strictly necessary in order to enforce this right. However, this sanction in Article 326 only serves to stigmatize persons with mental disorders and also provides justification to Parliament and state legislatures in case they want to introduce this sanction once again, at a later date. Hence the deletion of the phrase “unsoundness of mind” from Article 326 should be recommended.
The right to stand for elections in India is very closely connected to the right to vote. As per Sections 3, 4(d), 5(c) and 6(1) of the RPA 1951, only a person who is an elector (voter) for a parliamentary constituency shall be qualified to be a representative in the Council of States, House of People, Legislative Assemblies and Legislative Councils respectively.
Similar to Article 326, Articles 102(b) and 191(b) of the Constitution provide that the seat of a Member of Parliament and Legislative Assembly shall become vacant if s/he becomes of unsound mind as declared by a competent court. These disqualifications are different from Article 326 since they do not require legislations to put them into force – they operate as absolute bars against the right of people with mental disorders to occupy public office.
It is necessary to acknowledge that certain forms of “unsoundness of mind” may hamper a person from performing the duties of a legislator. Therefore, there needs to be a provision in the law to deal with this issue. However, this provision should require that a competent court declare that a person, by virtue of his/her unsoundness of mind, is rendered incapable of fulfilling the duties of a legislator. The law should further provide that if a person of unsound mind is capable of performing the duties of a legislator with assistance (whether human or technological assistance) then s/he is not to be disqualified.
The assumption that a person who is of unsound mind / suffers from mental disabilities automatically becomes unable to fulfill the duties of a legislator is an unwarranted, unscientific and irrational assumption. The current law gives force to this assumption and hence must be changed.
Amendments to Sections 16(1)(b) and 16(2) shall ensure that all PWDs are entitled to stand for public office since the sanctions against this entitlement hinges on one’s registration as a voter.
However, it is important that amendments be recommended to Articles 102(b) and 191(b) in order to incorporate the requirement of incapability as a requirement for the disqualification of “unsoundness of mind” to operate.
The issue of voting rights of home bound PWDs has been raised by the Committee in the Consensus Paper. The framework of election laws in India already provides a solution for such voters who are unable to be present at the polling booth - the postal ballot. Currently, only certain specified groups of people are entitled to vote by postal ballot. These are the members of the armed forces, members of the police force who are posted outside the state at the time of elections, persons employed by the Government of India and serving outside the country at the time of elections and any public officer who is unable to vote at the polling station where he is supposed to vote due to election duty. In addition, as per Section 60(a) of the RPA 1951, members of the armed forces can vote through “proxy”, i.e., a person appointed by the voter to cast his ballot on his behalf and his name.
The procedure for voting by postal ballot has been detailed in Part III of the Election Rules. It procedure has to be initiated by the voter by filling a prescribed form and sending it to the returning officer. The officer shall send a ballot to the voter by post and voter may then fill out the ballot and return it within the specified time frame. The procedure is suitable for home bound PWDs.
Similarly, the procedure for proxy voting provided under Part IIIB of the Election Rules and requires a voter to initiate the process by sending in a duly completed prescribed form.
The rationale behind proxy or postal voting is that a person is unable to appear in person and cast his or her vote at the polling booth. However, this has been qualified by the requirement of “service qualification”. This essentially means that the person’s inability should stem from the fact that s/he is serving the country on the date of election.
It is suggested that both options, i.e., postal as well as proxy voting be provided to home bound PWDs. While there might be some reservations regarding the misuse of proxy voting, this is remedied by providing an option. If the person trusts someone enough to authorize him / her as a proxy voter then it may be done. However, if voter does not wish to trust anyone to vote on his behalf, then he can exercise the option of the postal ballot.
Hence it is suggested that a new sub – section be added after Section 60(a) of the RPA 1951 which shall state that a person with disabilities who is prevented from leaving his house due to the disability is entitled to vote either by proxy or by postal ballot. This should be supplemented by an amended to Rules 17, 18, 27M and 27N of the Election Rules.
The issue of “resident” status becomes a barrier to the enjoyment of voting rights by institutionalized PWDs. Section 19 of the RPA 1950, which lays down the conditions for registration on electoral rolls requires that a person is “ordinarily resident in a constituency” in order to register as a voter in that constituency. Section 20(2) of the RPA 1950, which deals with the meaning of the phrase “ordinarily resident” states:
“A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall not by reason thereof be deemed to be ordinarily resident therein.”
The problem with the term “ordinarily resident” lies in the fact that it is difficult to interpret it in the context of institutionalized PWDs. Institutionalisation may happen for a short period of time, in which case the person will remain a resident of the constituency where s/he lived prior to admission to the institution. However, in the case of persons who have been institutionalized for long periods of time it would be incorrect to say that they remain residents of their earlier constituencies unless the institution itself was within the same constituency.
In the case of short term institutionalisation (and if the voter is in the institution at the time of polling) or when the institution is situated within the original constituency of the PWD, the right to vote can be implemented by allowing such persons to vote by the process of postal ballot or proxy.
The issue of long term institutionalisation outside a person’s constituency is slightly more complicated. One way of combating this issue is by creating legal fiction which deems that the person remains a resident of his or her original constituency even after admission to the institution. However, this approach is not very beneficial to the voter since s/he does not actually select a person to represent the constituency where s/he is residing at the time and hence does not enjoy the benefits which accrue from such election. Instead s/he ends up voting for a representative from a constituency where she does not live and hence does not particularly care about. This issue is especially relevant in the context of local and municipal elections. Hence it is suggested that a time period be adopted post which the voter shall be deemed to become a resident of the constituency in which the institution is situated.
Thus, I am suggesting that a two – pronged approach be adopted by which:
For a period of X years after commitment the voter is deemed to be a resident of his or her earlier constituency; and
After the expiry of X years, if the voter is still a patient in the institution, then he or she shall be deemed to be a resident of the constituency in which the institution is situated.
Since there are no provisions under the Mental Health Act or the Indian Lunacy Act which grant a patient leave of absence to exercise his franchise, it becomes necessary for institutionalised PWDs (who are institutionalised at the time of polling) to vote either by postal ballot or by proxy.
In order to implement the aforementioned procedure, it will be necessary to a amend Section 60(a) of the RPA 1951 as well as the aforementioned Election Rules to allow institutionalised PWDs to vote by proxy or postal ballot. In addition, Section 20(2) of the RPA 1950 shall have to repealed and replaced with a provision which shall inculcate the two – pronged approach suggested above.
These rights are enshrined in Articles 29(a)(i) and 29(a)(ii) of the Convention. The Article basically provides the right to accessible and understandable voting procedures and materials and the right to human assistance if desired by the PWD.
These rights find substantial support in the existing laws and case law in India. Various Rules in the Election Rules allow persons who are “blind or otherwise infirm” to take an adult companion with him in order to help cast his vote. While other Rules pertain to specific types of elections, Rule 49N is a general provision which is in the chapter pertaining to voting by Electronic Voting Machines (“EVM”). The Rules allow the companion to enter the polling booth only if requested by the voter and also provides that the companion is not to divulge the voter’s choice to anyone else in order to maintain the secrecy of the vote.
The term “blind and infirm” has not been defined and hasn’t been interpreted by the court but it may be interpreted to cover all PWDs. However, in order to bring the existing law into conformity with the New Law, the Election Rules may be amended to delete the phrase “blind and infirm” and replace it with “persons with disabilities”.
Moreover, the Supreme Court has delivered a judgment on the issue of accessible elections for PWDs which imposes a number of obligations on the Election Commission in order to make the vote accessible and the procedure understandable. In the case if Disabled Rights Group v. Chief Election Commissioner the Supreme Court ordered that the Election Commission needs to:
Provide ramps at all polling booths;
Have separate queues for persons with physical disabilities;
Sensitise polling officers about the special needs of PWDs; and
Print serial numbers in Braille beside the ballot buttons.
It was noted by the Court that the first three obligations had already been undertaken by the Commission by way of notifications in 2004 and 2005. However, the Supreme Court noted that these notifications were not being followed on the ground and ordered that fresh instructions be issues by the Commission to officials manning the polling stations. In response, the Commission issued Notification No.509/110/2004-JS-I which laid down the duties and obligations of the Commission towards PWDs as per the Supreme Court’s order.
As a result of these measures, the 2009 General Elections held in India have been widely acknowledged to have been one of the first accessible elections in India.
Hence it is suggested that the provision in the New Law draw from the Supreme Court’s order and reinforce the right to accessible elections. In addition, the aforementioned amendments to Election Rules should be made.
This issue has been raised by the Committee in Consensus Paper. The law relating to establishment of Panchayats and Municipal bodies is provided in Article 243F and 243R respectively. “Local Government” is a State subject and hence Parliament cannot legislate on issues related to local government. Moreover, the State Legislatures have the explicit power to pass laws which decide about disqualification for membership to Panchayats as per Article 243F(b) of the Constitution. Many states have passed laws which prevent persons of unsound mind from voting or standing in Panchayat elections. Since the power of the State Legislatures is expressly protected under the Constitution, the same would fall within the domain of the states and Parliament would not have the power to interfere with these laws. Hence the New Law cannot abrogate the existing state laws since Parliament does have the power to legislate in that area of law. Similar problems exist with respect to Municipal bodies.
Hence, it is submitted that the New Law cannot remove any discriminations included in state laws related to elections to Panchayat and Municipal bodies.
Through the course of this paper I have tried to explain the technical process of law making in India and then tried to tailor it for the implementation of the UNCRPD by suggesting an appropriate model for the New Law. Subsequently, I have tried to apply this model to the mandate of Article 13, 23 and 29 of the Convention.
The rights under Articles 23 and 29 and the right under Article 13 are different when viewed from the lens of domestic legislation, i.e., they pose different challenges in Indian context.
Article 13 enshrines a right which is not in conflict with existing Indian law. However, the law as it stands does not provide the necessary entitlements for PWDs to enjoy this right. Hence the New Law will have to include these entitlements, by way of amendments to the existing procedure codes. In addition, a massive awareness raising and training exercise shall have to be conducted for the judiciary as well as law enforcement bodies. While this right is legally unproblematic, the real challenge to this right shall be in its implementation.
The rights under Articles 23 and 29 have been recognized quite widely in India and have generally been guaranteed to all citizens except a specific set of PWDs, i.e., those with mental disabilities and illnesses.
Indian laws as regards the right to family and home explicitly exclude persons with mental illnesses and create a situation where, even if a person with mental illness has solemnized a marriage, he or she is thereafter in a vulnerable and unequal position as compared to the other spouse. In the context of this right, the New Law shall have to combat a deep seated prejudice against “people of unsound mind”. The problem is further compounded by the fact that the laws governing this right in India are all personal laws which seemingly draw their lineage from religious texts and scriptures. The New Law shall attempt to dismantle this religious set – up by employing a secular model; this is bound to draw extreme resistance from many quarters of society.
The implementation of the right under Article 29 has two distinct aspects – one relating to persons with mental disability and one related to accessibility. Persons with mental disability have been expressly excluded from the democratic process. The reason for this exclusion seems unclear. This disqualification was unquestioningly accepted by the framers of the Indian Constitution based simply on the fact that it was included in the Government of India Act, 1935. However, the fact that the disqualification exists in the Constitution raises a very difficult problem which cannot be fully remedied by the New Law. While amending the RPA 1950 and RPA 1951 shall give persons with mental disabilities the right to vote, it cannot ensure them the right to hold public office. The provisions in Article 102 and 191 create a situation wherein, even if a person with mental disability becomes a legislator, he or she will always be vulnerable as regards his “sanity” and therefore his right to occupy the office. The potential for political misuse of these Articles is immense and will hamper the rights of persons with mental disability to occupy office.
The second aspect of the right lies in the issue of accessibility. This is perhaps a simpler legal issue since a PWD’s right to access the vote has been recognized in India. The enjoyment and realization of this aspect of the right shall hinge on the Election Commission’s implementation of the access norms provided by the Supreme Court and those that will be provided by the New Law.
It is, perhaps, appropriate to conclude with a caveat intended for the makers of the New Law – the law can only fulfill a limited part of the Convention’s mandate, the rest shall have to be fulfilled by advocacy, awareness raising, and constant petitions to the courts. The New Law and the Convention only provide a stronger platform from which one can advocate for disability rights and not a comprehensive solution to discrimination against persons with disabilities.
1. (1) All persons with disabilities shall be entitled to communicate with the help of sign language, other human assistance and assistive devices while appearing in any court whether as a complainant, an accused, a witness or in any other capacity.
(2) All communication under sub – section (1) shall be deemed to be oral communication for the purposes of the Code of Criminal Procedure (Act No. 8 of 1908) and the Indian Evidence Act (No. 1 of 1872).
2. All persons with disabilities shall be competent to give testimony in a court of law unless the presiding judge is of the opinion that the person is unable to understand or answer questions.
3. Every police station and court shall be made accessible to all persons with disability.
4. The Appropriate Government shall conduct sensitisation programmes to train the judiciary, policemen and prison officials about the special requirements of PWDs.
Right to Home and Family
1. Notwithstanding anything contained in the law for the time being in force, every person with disability shall be entitled to solemnise a marriage with a spouse of his or her choice.
2. A marriage under Section 1 may be solemnised if the following conditions are fulfilled:
Neither party has a spouse living at the time of the marriage;
The bridegroom has completed the age of twenty – one years and the bride has completed the age of eighteen years at the time of marriage;
That the other spouse was aware of the disabilities of the person with disabilities at the time of marriage;
Both spouses consent to the marriage.
3. (1) A marriage under Section 1 shall be void if the conditions under Section 2(i), 2(ii) and 2(iv) were not fulfilled at the time of marriage.
(2) A marriage under Section 1 shall be voidable if the conditions under Section 2(iii) were not fulfilled at the time of marriage.
Provided that a marriage under Section 1 shall not be void or voidable solely because one or both of the spouses were people with disabilities at the time of the marriage.
4. Notwithstanding anything contained in the law for the time being in force, neither party to a marriage shall be granted a decree of divorce based solely on the ground that the other party is a person with disability.
5. (1) All persons with disabilities shall have the right to decide:
(i) The number of children they have;
(ii) The time period between each child.
(2) The Appropriate Government shall ensure that persons with disabilities have access to information regarding family and reproductive planning in order to enable them to take the decisions mentioned in Section 5 (1).
6. (1) All persons with disabilities, including children with disabilities, have a right to retain their fertility.
(2) No person with disabilities shall be subject to any medical procedure which leads to or could lead to infertility without his express consent.
Provided that in cases of medical necessity such medical procedure may be performed on a minor with his parent or guardian’s consent.
Provided further that such medical necessity has to be declared by a qualified medical practitioner.
7. Subject to the provisions of the Guardians and Wards Act (No. 8 of 1890) every person with disabilities is entitled to apply for an order of guardianship.
Provided that such application shall not be rejected solely on the basis of the person’s disability.
8. (1) Notwithstanding anything contained in the law for the time being in force, all persons with disabilities are entitled to adopt a child unless such adoption is not in the best interests of the child.
(2) Notwithstanding anything contained in the law for the time being in force, all persons with disabilities are entitled to give a child in adoption unless such adoption is not in the best interests of the child.
Provided that sub – sections (1) and (2) are inapplicable to a married female Hindu except when her husband has completely and finally renounced the world or has ceased to be a Hindu.
9. (1) Notwithstanding anything contained in the Hindu Adoption and Maintenance Act (No. 78 of 1956):
(i) A Hindu male may adopt or give a child in adoption without the consent of his wife only when one or both of the following conditions are fulfilled:
(a) His wife has completely and finally renounced the world; or
(b) His wife has ceased to be a Hindu.
(ii) A Hindu female may adopt or give a child in adoption only when one or more of the following conditions are fulfilled:
(a) Her marriage has been dissolved;
(b) Her husband is dead;
(c) Her husband has completely and finally renounced the world;
(d) Her husband has completely and finally renounced the world
10. (1) No child with disabilities shall be separated from his parents without at least one parent’s consent unless such separation is declared to be in the best interests of the child by a court of competent authority.
(2) No child shall be separated from his parents solely on the basis of his disability or on the basis of the disability of one or both of the parents.
11. The Appropriate Government shall initiate programs to provide information, services and support to children with disability and their families.