WHOSE LIFE IS IT ANYWAY? RECLAMING THE VALUE OF LIFE, LIBERTY AND INTEGRITY FOR PERSONS WITH DISABILITIES

Shreya Atrey

The array of civil-political rights has hitherto been understood as a set of negative guarantees. Perceptibly, this has not proved to be enough for those populations which have been denied the positive affirmation and exercise of such rights. In relation to persons with disabilities, it is clear that the regime brought forth by the United Nations Convention of the Rights of Persons with Disabilities1 focuses on real situations and effective implementation of civil-political rights through its very commanding provisions. It is opportune for India to consider the discharge of its obligations as a signatory to the UNCRPD to bring in conformity the rights which have been guaranteed to persons with disabilities on an international plane. This paper discusses three such rights—life, liberty and integrity and their possible inclusion in the new domestic legislation for persons with disabilities. The effort is to consider international, national and jurisprudential perspectives to set realisable goals for formulating the provisions of the new law.

I. Right to Life and Persons with Disabilities

The increasing sophistication in the way the right to life is articulated in relation to the experiences of the disabled people raises at present more questions than it resolves.2

The phrase ‘right to life’ cannot seamlessly be defined from a single viewpoint and it is clear that great care must be given in using the term in legislation.3 This is further complicated by the fact that reaffirming civil-political rights for persons with disabilities is an exercise which must contextualise and make meaningful the enunciation of those rights, some of which may already be guaranteed to them de jure. This would require multilateral efforts to juxtapose international obligations, national standards and legal doctrine to reach an acceptable text for the new legislation.

A.] International Instruments

The manifestation of the guarantee of right to life in most national and international instruments is as a guarantee against its breach by the state agency. Right to life appears in all the general universal and regional human rights instruments, including Article 3 of the Universal Declaration of Human Rights4 and Article 6 of the ICCPR whose first clause provides:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

The Human Rights Committee (HRC) has commented in its General Comment No 6 that the right to life is the supreme right from which no derogation is permitted and this is a right which should not be interpreted narrowly.5

Inspired by the purposive interpretation yielded to right to life, the UNCRPD incorporates this paradigm into Article 10 which states that:

The countries agree that all people with disabilities have the right to life and will take action to make sure people with disabilities can use this right. (emphasis supplied)

Keeping in line this development, many international bodies have advanced the reading of the right to life beyond the core obligation and extended State’s responsibility to ensure material conditions of existence that will permit a person a decent and dignified life.6

B.] Judicial Contours

Judicial interpretation and craft has yielded some of most throbbing developments in right to life. The Supreme Court of India adopted the epic enunciation of right to life in Munn v. Illinois7 where Field, J. explained the scope of the word “life” to proclaim:

By the term life...something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world...

Right to life has come to be understood as an all-expansive civil-political right.8 In fact, the Apex Court has included within its fold right to human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expression oneself in differ forms, freely moving about and mixing and commingling with fellow human beings.9 R.C.Cooper10 accentuated the efficacy of right to life guaranteed by Article 21 to full blossom and the fairness of the procedure to make the dignity of the person meaningful with unimpeded flow of fair justice to every person and to make each right(under Part III) in its conjoint operation an effective tool in that process. Similarly, in the landmark cases of Unni Krishnan11 and Bandhua Mukti Morcha12 it was held that Article 21 of the Constitution embodies right to free and compulsory education within the meaning of right to life. In Kharak Singh13 right to privacy was read within the mandate of Article 21. In Charles Sobraj14, the Supreme Court held that the right to life includes right to human dignity. The right to social justice and free legal aid to the poor have also been counted as belonging to Article 21.15

Thus, the jurisprudence of personhood or philosophy of the right to life envisaged under Article 21, enlarges its sweep to encompass human personality in its full blossom and to live a life with dignity and equality.16

It is worth contemplating as to what the ever-expanding jurisprudence on right to life hold for persons with disabilities. How does a declaration by the Supreme Court of India regarding quality of life being fundamental to right to life enhance the situation of persons with disabilities?17 Doesn’t an unequivocal decision on access to roads as access to life itself seem to directly inform the disability rights jurisprudence?18

It is but axiomatic that the general formulations around right to life will include its application to persons with disabilities. Thus, right to life which includes right to dignity, integrity, access to social justice, education, privacy—all of such should be equally guaranteed to persons with disabilities. However the bare enunciation of right to life cannot be emancipatory for persons of disability for whom civil-political rights have hitherto operated in oblivion.

If we appreciate this, it is clear that we need to do something which actually allows persons with disabilities to effectively enjoy the right to life. This is clear from the UNCRPD mandate that Article 10 obligates state parties to make provisions for the use of right to life by persons with disabilities. It is then exigent for India, as a signatory to UNCRPD to grapple with the issue of effective realisation of right to life by persons with disabilities by converging the international and the domestic standards discussed hereinabove.

C.] Value of a Disabled Life

The right to life dimension with relation to persons with disabilities has been raised in mainly three contexts:

  • Abortion
  • Assisted Suicide
  • Denial of treatment

Looking at these closely, it is clear that all of them are actually about right to die or kill NOT about right to life (living) or to live. For the disability rights regime, it is imperative to start speaking in terms of improving lives of those here and living. As emphasised previously, right to life is centrally important. Nearly every other right whether it is education, health or rehabilitation, flows from Article 21. Thus, it is important to speak in terms of the value of a disabled life.19

C.1] ‘Life’ Deconstructed

Legal jurists have fascinatingly theorized upon the essence of life. Their diverging/converging paradigms have added myriad strands to the meaning of life. From Aristotelian value of the inviolability of existence to the Cartesian value of autonomy and self-determination, jurisprudence is thriving with conceptions of a valuable life.

According to Aristotle, the ultimate value of life depends upon awareness and the power of contemplation rather than upon mere survival. This paradigm seems to be problematic for persons with psychosocial disability since the dominant paradigm may devalue their power of contemplation and awareness. On the other hand, Nozick vehemently argues for the paramountcy of personhood and self.20 Although his ‘right to be alone’ paradigm can be construed as ‘be on your own’ and cannot work for persons with disabilities who need support and intervention to fully participate in the society. Nevertheless, apart from his liberty discourse, Nozick’s views on human life, individuality and decision-making signify that it is the person who may define such terms for oneself.

Furthermore, the conceptions of the legal guarantee of life differ from socio-economic versus civil-political standpoint. The civil political conceptualisation of life is essentially the right not to have one’s life arbitrarily terminated. From an economic standpoint, Marta Russell astutely points out that the life of disabled persons is considered economically more beneficial to the Gross Domestic Product of a country when occupying a bed in an institution than when they’re living by themselves or with families.21 This viewpoint commodifies the disabled and their living conditions and views them as a product of their disability. On the other hand, in socio-economic terms right to life invokes state responsibility for both sustaining life and for the quality of that life. Internationally, the latter has come to define the change in jurisprudence of the content and guarantee of the right to life. In Oneryildiz v. Turkey22 it was held that the relevant right to life provision had to be read in such a way as to oblige states to take ‘appropriate steps’ to safeguard the lives of those within their jurisdiction no matter what the (endangering) activity. In Osman v. U.K.23 the extent of ‘appropriate steps’ was widely deliberated in the light of effective realisation of right to life in all circumstances. Such developments are extremely crucial for persons with disabilities for contextualising this right to suit the requirements of a disabled life.

C.2] Disabled Life

Friedrich Nietzsche once remarked that difference engenders hatred.24 Others have similarly observed that difference has come to be seen not just as difference but as inferiority, disadvantage or weakness.25 In the context of persons with disabilities our medicalised lens for gazing at difference has come to view disabled life as a malfunction.26

Rosemarie Garland Thomson has argued that disability has been:

[c]onstructed as the embodiment of corporeal insufficiency and deviance, the physically disabled body becomes a repository for social anxieties about such troubling concerns as vulnerability, control, and identity.27

Leslie Fiedler similarly argues that we have succumbed to a “tyranny of the normal.” This is a tyranny “sustained by creating in those outside the norm shame and self-hatred — particularly if they happen to suffer from those ‘deformities’ that we cannot prevent or cure”.28 Thus the meaning of a disabled life is an ascribed one, imposed by the “non-disabled” on the life situations of the disabled. This imposition views the disabled life as one of misery, sufferance and burden.

Often times, our paternalistic selves set the value of a disabled life lower than our own to conclude that such a life lacks the potential for happiness and dignity because we cannot imagine how it could.29 We then throw into the oblivion not only disabled rights (of access to healthcare, education or justice) but also the need and consequence of their life itself. This takes away any attention from the value of a disabled life and the achievements of disabled persons. Viewing the disabled as less capable (or incapable) of a happy life, is deeming them as lesser persons, not necessarily in need of the same (quality) right to life as others or worth the same level of sustenance and protection.30 Thus, the violation of the most fundamental guarantee, the right to life, may not only be regarded as an understandable act from the perspective of the perpetrator but also in victim’s interest.

Thus, while the right to life is so guaranteed de jure via Article 21, the de facto realisation of this right is mediated through social perception and biases. The way in which disabled persons are seen or not seen, and the degree to which they are subject to carelessness, neglect, disregard or ignorance, all create the groundwork for and in turn, may be used for legitimate violations of their right to life.31

It has frequently been documented that despite of such paternalistic beliefs, the disabled regard their life as highly valuable and worthwhile.32 The value of a disabled life is often questioned for making interpersonal comparisons of well-being. Disabled and ill people may not value their lives any less than normal people do, but may simply value normal life more.33

In this vein, it may be worthwhile to mainstream the contributions of the disabled to provide for “mitigating narratives” of persons with disabilities who venture out into public life, or at least make the attempt to so do.34 In the dearth of such mitigating narratives it is plausible that their experiences and contributions are not fully comprehended or appreciated. In trying to imaginatively identify with the disabled life, we contrast it with the binary opposition of normal which hints toward a less than valuable appreciation of all aspects of disabled life.35 The usefulness of right to life for persons with disabilities is not only dependent upon valuing their perspectives and giving them legal capacity but also upon recognising their moral agency to appreciate and be appreciated for their live situations.36

Quality of life issue has similarly sought to been raised in the disability context.37 Indeed, the term quality of life is inherently ambiguous, as it can refer both to the experience an individual has in his or her own life and to the living conditions in which people find themselves.38 Whilst some understand find the concept akin to the Aristotelian notion of ‘good life’ and others like Sen defining it in terms of capabilities. However, it is clear that people with disabilities are the ones who should judge the quality of their lives. The observer's views may be important, but not enough. Self-analysis ensures that all aspects of life in terms of support and assistance, as well as general services, are fully evidence-based.39

Within the disability rights regime, it is clear that the focus of the content of right to life is on: first, a clear ethical obligation to preserve and protect disabled life; secondly, obligation to create conditions in which people with disabilities are able to lead a meaningful and productive life.40

D.] Relevant Text

An effective enunciation of this civil-political right can be by drafting or using the evocative language that has been used by the Supreme Court of India and extending it to persons with disabilities. It is plausible to use the Francis Coralie Mullin language since it has been invoked in other disability judgements from the Supreme Court of India.41

Clause (1) : Every human being has the inherent right to life and government shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.

Clause (2) : Right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings, and it also includes the right to carry on such functions and activities as constitute the bare minimum expression of the human-self.

Breach/Penalties section: Any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, will be punishable under this Act.

II. Right to Liberty and Persons with Disabilities

Our century demonstrates that the victory of the ideals of justice and equality is always ephemeral, but also that, if we manage to preserve liberty, we can always start all over again…there is no need to despair, even in the most desperate situations.42

This statement signifies the importance of liberty in a well-meaning society. Indeed for persons with disabilities, liberty and its effective realisation is centrally important as the disability discourse grapples with issues of accessibility, consent, legal capacity, habilitation and rehabilitation etc.

A.] International Instruments

Article 9(1) of UDHR declares that no one shall be subjected to arbitrary arrest or detention or be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Article 3 of ICCPR assures everyone the right to life, liberty and security of person. UNCRPD Articles 3, 14, 19 and 25 are relevant to the liberty discourse. Specifically, Article 14 of the UNCRPD mandates that: first, state parties shall ensure that persons with disabilities enjoy the right to liberty and security of person; secondly, they are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and; lastly, that the existence of a disability shall in no case justify a deprivation of liberty.”43

B.] Liberty and the Indian Constitution

Article 21 of the Indian Constitution lays down that no person shall be deprived of the right to life and liberty except according to procedure established by law. According to this norm, it is possible to compulsorily institutionalise persons with disabilities provided it was by a fair, just and reasonable procedure incorporated in a legislature.44 For persons with psycho-social disability, the Mental Health Act is supposed to lay down this procedure. However, Article 14 of the UNCRPD clearly outlaws deprivation of liberty on the basis of disability. It is then relevant to bring in our laws and its implementation in conformity with UNCRPD. Although it is possible to argue that whilst the Apex Court has extended rights guaranteed in international instruments signed and ratified by India even without explicit legislative incorporation45, it is necessary for India to incorporate a conforming provision in the new disability law to fulfil its obligation under international law via Article 253 of the Constitution.

C.] Deprivation of Liberty and Persons with disabilities

Issues around right to liberty in relation to persons with disabilities have been raised in mainly two contexts:

Criminal justice system (preventive or punitive)

Forced institutionalisation (for providing shelter)

There is a need to closely scrutinize related domestic statutory laws which result into the loss of liberty.

C.1] Disabled Persons Charged of Crime

Under Section 328 of the Code of Criminal Procedure (CrPC) when an accused is unable to understand the trial due to unsoundness of mind it is mandatory for the magistrate to refer the accused for a medical examination. This provision has been interpreted to inordinately delay the trial until the accused regains sanity. The prison authorities are under an obligation to report the condition of accused every six months but there is no outer limit to delaying the trial.

Section 330 of the CrPC provides that during the period of postponement, the ‘undertrial of unsound mind’ should either be released on a bond of safe custody from a relative or friend; or be kept in safe custody in jail or mental hospital. There is no guidance in the statute as regards when each of these options should be utilised. Consequently, an ‘undertrial of unsound mind’ can obtain the benefit of the less restrictive alternative of being released in the community provided he or she has a relative or friend who is willing and able to offer security.

Similarly for those who are acquitted by court on grounds of unsoundness of mind acquittal does not mean discharge since under Section 335 of the CrPC, the Court must either release the insane acquittee on security of a friend or relative or order the insane acquittee to be kept in safe custody of jail or a mental hospital. Once again, release can be secured only if family support is available. The statute provides no guidelines on the periods for which ‘insane acquittees’ can be kept in place of safe custody.

The Suprme Court judgement in Veena Sethi v. State of Bihar has been revelatory in bringing to the fore the abysmal implementation and abuse of these provision in terms of the indefinite nature of confinement for both insane acquittees and undertrials.46

C.2] Compulsory Commitment and Persons with Psychosocial Disability

At the outset, it is pertinent to note that no force is a major inarticulate premise in Article 14 of the UNCRPD even as forced institutionalisation was not outlawed specifically. This is because the text of Article 14 does not allow for an interpretation which may validate force.47 There is an inextricable link between right to liberty and the violations suffered by persons with psychosocial disability. This is because the norm of involuntary institutionalisation or compulsory commitment to psychiatric institutions is only legislated with respect to persons living with mental illness.

Until 1993, admissions to mental hospitals were regulated by the Indian Lunacy Act of 1912. The Lunacy Act of 1912 was replaced by the Mental Health Act 1987. The Mental Health Act retained a number of procedures of admission provided in the Lunacy Act with some modifications. There are four grounds of admission: dangerousness to others, severity of illness, health and personal safety. It is clear that whilst dangerousness to self or others or the need of medical treatment does not result into the loss of liberty for non-disabled persons, disability is the only justification for deprivation of liberty and hence inconsistent with the mandate of Article 14 of the UNCRPD.

There are several strands of forced, compulsory confinement or institutionalisation under the MHA. First, medical functionaries have been accorded the power to make compulsory admissions for treatment provided the head of the psychiatric institution believes that it is in the interest of the mentally ill person. Secondly, there is no mandatory judicial oversight of these admissions; though, the mentally ill person or a relative or friend can apply to a magistrate for discharge who has the discretion to accept or reject the application.48 Thirdly, there is no evidence of safeguard procedures like free legal aid or habeas corpus petitions (well invoked by non-disabled persons) to be effectively utilised by the mentally ill.49 The MHA has thus been understood as according “unequivocal acknowledgement to the therapeutic developments in psychiatry than it does to the jurisprudence of human rights.”50

In the light of Article 14 of the UNCRPD it is clear that there is no scope left for fair procedure to be established for depriving persons with disabilities of their liberty. In fact, negotiations of Article 14 reveal that right to liberty and security cannot be subject to exceptions keeping in mind the compulsory commitment to psychiatric institutions.51 Thus, the new legislation would demand specific outlawing of forced institutionalisation to discharge India’s obligation under the UNCRPD.

Further, even if the commitment is not compulsory, the living environment cannot be violent, coercive or restrictive. In the celebrated case of Pennhurst, the United States Supreme Court commented upon the state of institutions:

Institutions, by their very structure a closed and segregated society founded on obsolete custodial models[,] can rarely normalize and habilitate the mentally retarded citizen to the extent of community programs created and modeled upon the normalization and developmental approach components of habilitation.52

It may not be wholly wrong to accept this explanation as universal especially keeping in view the mandate of UNCRPD in Article 14 read with Article 19 which provides for establishing community based alternatives for persons with disabilities. Thus, it is important to appreciate this dimension of indivisibility of human rights discourse which views rights-restrictive environment also as violative of the guarantee of liberty and security.

D.] The Core of ‘Liberty’

The first inroad into the core of right to liberty was provided by Field, J:

[B]y the term liberty...something more is meant than mere freedom from physical restraint or the bonds of a prison.53

Dicey explains the concept of personal liberty as:

The right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification.54 (emphasis supplied).

It is important to note that what is legal with respect to persons with disabilities must be construed in the light of developments in human rights. In the same vein, what is not in consonance with Article 14 of the UNCRPD cannot be legal for the purposes of restriction of liberty.

Blackstone’s definition is relevant in the disability context:

“Personal liberty” includes the power to locomotion of changing situation, or removing one's person to whatsoever place one's inclination may direct, without imprisonment or restraint, unless by due course of law.55

This explanation not only underlines the significance of liberty but also its inextricable link with accessibility because a bare right against deprivation of liberty cannot be sufficient for persons with disabilities. The state must be obligated to create a secure and accessible environment where liberty can in fact be exercised.

This jurisprudence translated into a progressive enunciation on right to liberty in the celebrated Supreme Court of India decision in Kharak Singh v. State of U.P:

The right to move about being excluded its narrowest interpretation would be that it comprehends nothing more than freedom from physical restraint or freedom from confinement within the bounds of a prison; in other works, freedom from arrest and detention, from false imprisonment or wrongful confinement. We feel unable to hold that the term was intended to bear only this narrow interpretation but on the other hand consider that "personal liberty" is used in the Article as a compendious term to include within itself all the varieties of rights which go to make up the "personal liberties" of man other than those deal with in the several clauses of Art. 19(1)...the expression is wide enough to take in a right to be free from restrictions placed on his movements. The expression "coercion" in the modern age cannot be construed in a narrow sense. In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more effective than physical ones.56 (emphasis supplied).

Similarly, in Maneka Gandhi v. Union of India, a seven judge bench held that the expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which constitute the personal liberty of citizens.57

Thus, post Maneka Gandhi and Kharak Singh as well as after the ratification of UNCRPD it is clear that the liberty guarantee would extend to both:

First, outlawing forced institutionalisation since there cannot be any exceptions to right to liberty and no deprivation of liberty is permissible on the basis of disability.58

Secondly, state is obligated to create a non-restrictive, non-coercive accessible environment to guarantee the de facto realisation of right to liberty and security for persons with disabilities.

Lastly, keeping in view the decisions of the Supreme Court in Khatri cases:

[T]he court is not helpless to grant relief in a case of violation of the right to life and personal liberty, and it should be prepared to forge new tools and devise new remedies' for the purpose of vindicating these precious fundamental rights.

It is imperative to devise innovative methods for granting relief for the breach of civil-political rights for persons with disabilities which extend beyond the realm of compensation.59

E.] Proposed Text

In achieving the guarantee of liberty for persons with disabilities it is clear that the new legislation must (as a whole) make provisions for: first; dismantle statutory regimes which breach the right to liberty for persons with disabilities especially those with psychosocial disability (CrPC, MHA); secondly, declare that compulsory civil commitment, forced treatment, involuntary hospitalisation are all an affront to the liberty, dignity and bodily integrity of persons with disabilities; thirdly, establish community-based-alternatives instead of traditional institutions; lastly, ensure that there is a non-restrictive and non-coercive environment maintained in the community based alternatives.

Specifically, the proposed text of the provision on right to liberty can incorporate the language:

Clause (1): No person with disability shall be deprived of their personal liberty unlawfully or arbitrarily, and that any deprivation of liberty shall be in conformity with the law, and that the existence of a disability shall in no case justify any deprivation of liberty.

Clause (2): (a) Persons with disabilities shall enjoy the right to personal liberty and security on an equal basis with others. (b) If persons with disabilities are deprived of their liberty through any process, they shall, on an equal basis with others, be entitled reasonable accommodation and all such guarantees as are necessary for the effective realisation of the right to liberty and security in such circumstance.

Clause (3): (a) Right to personal liberty includes freedom from restrictions or encroachments on person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. (b) Right to personal liberty includes freedom from non-consensual civil commitment of persons with disabilities on any ground whatsoever. (c) Persons with disabilities have a right to non-coercive, non-restrictive and supportive environment which fully respects their right to personal liberty and security.

III. Right to Integrity and Persons with Disabilities

A.] International Instruments

Article 5 of the UDHR and Article 7 of the ICCPR guarantee right against torture and inhuman or degrading treatment or punishment. However, Article 17 of the UNCRPD specifically forges the integrity connection by stating that person with disabilities have a right to respect for his or her physical and mental integrity on an equal basis with others. Article 12, paragraph 1 of the UNCRPD reaffirms that persons with disabilities have the right to recognition everywhere as persons before the law.

B.] Domestic Standards

Right to integrity has found resonance in the judicial realm through right to dignity under Article 21 of the Constitution.60 Right against exploitation and torture has also provided an inroad into right to integrity.61

Section 81(1) of the MHA lays down that ‘no mentally ill person shall be subjected during treatment to any indignity (whether physical or mental) or cruelty.’ Thus, the section does not place a general embargo on indignity or cruelty to any mentally ill person; it does so only during treatment. This can clearly be seen in derogation to Articles 3, 12, 14, 17 and 25 of the UNCRPD.

Section 25 of the Mental Health Act allows for a magisterial complaint to be instituted if any ‘mentally ill person’ is not under proper care and control or is ill treated or neglected. This complaint can be lodged by the in-charge of a police station or any other private person and if such person is in charge of maintaining the ‘mentally ill person’, the magistrate can order such persons to do their duty, failing which a fine can be imposed and as a last resort the mentally ill person can be compulsorily institutionalised. Similarly, Section 17 of the National Trust Act allows a parent, relative or registered organization to move the concerned authority for removal of a guardian if s/he is abusing or neglecting the person with disability.

It is pertinent to note that MHA does not define abuse or neglect not even through illustrations for providing guidance in assessing what is abuse in the context of disabled persons. Although Rule 17 (1) (vi) for the NTA describes the various acts of commission and omission which shall constitute abuse or neglect on the part of the guardian which include: solitary confinement; chaining; beating; sexual abuse; long deprivation of food, water and clothing; no provision or non-compliance of rehabilitation or training programmes; and lack of facilities or no provision for management of needs of persons with disabilities.

C.] Integrity and Persons with disabilities

For persons with disabilities, right to bodily and physic integrity has arisen in significant contexts. It intercepts with respect, privacy, liberty, freedom of expression, freedom of choice, right to be protected from violence, torture, abuse and exploitation. Disabled people’s right to refuse treatment and being subjected to frequent medical experimentation is one such crucial area which directly violates personal integrity.62 Further, legal protection against torture has been important in protecting the dignity of persons with disabilities and ensuring respect for their physical and psychic integrity. Similarly, integrity has also found mention in the criminal justice system and persons with disabilities by reading in within Article 21 of the Constitution.63

D.] Essence of Integrity

Although right to integrity has been understood as one which is subsumed within freedom against torture, exploitation and right to dignity, it may not fairly encompass the entire wherewithal of ‘integrity’. Right to integrity allows persons with disabilities to live and affirm comfortably their personal identity, something which does not necessarily find resonance in other rights and freedoms. Right to integrity means to be able to assert or express oneself as a whole person. The guarantee of integrity undercuts notions of disabled as incomplete, abnormal, deficient, it ccommands individuality and respect for bodies dissimilar to your own.64 Integrity would thus require breaking through the prismatic vision of normal. To put simply, right to integrity would mean the right to be you as you are.

Whilst some of these assertions have found space in the Domestic Violence Act of CrPC of Article 21 jurisprudence, but the new law on disability must go a step beyond to highlight the fine line of distinction between abuse, neglect, torture, exploitation on the one hand and integrity on the other.

E.] Proposed Text


Clause 1: Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.

Clause 2: Right to integrity includes right to dignity of self and its appreciation in society and environment of persons with disabilities and includes:

(-list of illustrations-)

Illustrations will serve the purpose here since not everything can be categorized as abuse or exploitation. Violations of integrity are abundant and hence must be challenged, viz. communication (verbal violence) or underdog mentality. However, their specific enunciation should be carefully worded and cautiously legislated so as not to repeat the objectification problem as faced in the implementation of the SCST Atrocities Act. At the same time, the illustrations are necessary and purposeful to create an environment which respects the bodily and physic integrity of persons with disabilities.

Bibliography

Articles

  • Eric Hobsbawm, A Century of Catastrophes: Age of Extremes - The Short 20th Century, The Independent (9 October 1994) (quoting Leo Valiani, the Historian).
  • Javed Abidi, Shocking Neglect of Rights of Disabled Persons, PUCL Bulletin (2001).
  • Laura Theytaz-Bergman & Stefan Trömel, Effective Use of International Human Rights Monitoring Mechanisms to Protect the Rights of Persons with Disabilities, Guidance Document, International Disability Alliance (2010).
  • Mallika Sarabhai, Women Poor at Science & Math?, The Times of India (Jan. 29, 2005), available at http://timesofindia.indiatimes.com/articleshow/1005072.cms (last visited 2 November 2010).
  • Marta Russell, Stuck at the Nursing Home Door, Ragged Edge Magazine, available at http://www.ragged-edge-mag.com/0100/a0100ft1.htm (last visited on 3 November 2010).
  • Melinda Rosenberg, Harm, Liberty, and Disability, 29(3) Disability Studies Quarterly (2009).
  • R.A. Kane, Accomplishments, Problems, Trends, and Future Challenges, in Kane RL, Kane RA, Assessing older persons: Measures, meaning and practical applications 519-529 (2000)
  • Samuel R. Bagenstos, Disability, Life, Death, and Choice, 29 Harv. J. L. & Gender 425 (2006).
  • Samuel R. Bagenstos, The Future of Disability Law, 114 Yale L. J. 1 (2004).
  • Thorsten Afflerbach & Angela Garabagiu, Council of Europe Actions to Promote Human Rights and Full Participation of People with Disabilities: Improving the Quality of Life of People with Disabilities in Europe, 34 Syracuse J. Int’l L. & Com. 463, 468 (2007).

Books

  • 1 Blackstone, Commentaries on Laws of England 134 (1765-1769).
  • 3 Encyclopedia of Disability 1323-25 (Gary L. Albrecht ed., 2006).
  • Dicey, Constitutional Law (9th ed, 1948).
  • Friedrich Nietzsche, Beyond Good and Evil (trans. R. J. Hollingdale, 1990).
  • Leslie Fiedler, Freaks: Myths and Images of the Secret Self (1978).
  • Luke Clements & Janet Read, Disabled People and the Right to Life (2008).
  • P. Menzel, Strong Medicine 81-2 (1990).
  • Quality of Life for Persons with Disabilities. International Perspectives and Issues (David Goode ed., 1994).
  • Robert Nozick, Anarchy, State and Utopia (1974).
  • Rosemarie Garland Thomson, Extraordinary Bodies (1997).

Miscellaneous

  • Comm. of Ministers, Recommendation on the Council of Europe Action Plan to Promote the Rights and Full Participation of People with Disabilities in Society:, Doc. No. 5 (2006), available at https://wcd.coe.int/ViewDoc.jsp? Ref=Rec(2006)5&Sector=secCM (last visited on 5 November 2010).
  • General Comment No. 06: The right to life (art. 6) : 04/30/1982. CCPR General Comment No. 6. (General Comments), available at http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3 (last visited on 1 November 2010).
  • Right to Life and Persons with Disabilities, Chapter 10, p. 163, http://nhrc.nic.in/Publications/Disability/chapter10.html (last visited on 2 November 2010).

Notes

  1. Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Dec. 13, 2006) [hereinafter UNCRPD].
  2. Luke Clements & Janet Read, Disabled People and the Right to Life 22 (2008).
  3. See Samuel R. Bagenstos, The Future of Disability Law, 114 Yale L. J. 1 (2004).
  4. Article 3 of the Universal Declaration of Human Rights states that: “Everyone has the right to life, liberty and security of person.”
  5. General Comment No. 06: The right to life (art. 6) : 04/30/1982. CCPR General Comment No. 6. (General Comments), available at http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3 (last visited on 1 November 2010).
  6. Right to Life and Persons with Disabilities, Chapter 10, p. 163, http://nhrc.nic.in/Publications/Disability/chapter10.html (last visited on 2 November 2010).
  7. (1876) 94 US 113 : 24 Law Ed 77.
  8. State of Maharashtra v. Chandrabhan Tale, (1983) IILLJ 256 SC.
  9. See Francis Coralie Mullin v. Administrator Union Territory of Delhi, 1981 CriLJ 306; Olga Tellis v. Bombay Municipal Corporation, AIR1986SC180 33-34; Delhi Transport Corporation v. D.T.C. Mazdoor Congress, (1991) ILLJ 395 SC, ¶¶ 223, 234 and 259.
  10. R.C. Cooper v. Union of India, [1970] 3 SCR 530.
  11. Unni Krishnan v. State of Andra Pradesh, [1993] 1 SCR 594.
  12. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.
  13. Kharak Singh v. State of U.P., 1963 CriLJ 329.
  14. Charles Sobraj v. Supdt. Central Jail Tihar, 1978 CriLJ 1534.
  15. See E.S.C. Ltd. v. Subhash Chandra Base, (1992) ILLJ 475 SC; Khatri (II) v. State of Bihar, 1981 CriLJ 597.
  16. Consumer Education & Research Center v. Union of India, (1995) IILLJ 768 SC, ¶ 22.
  17. Sunil Batra v. Delhi Administration, 1978 CriLJ 1741; Board of Trustees of the Port of Bombay v. D.R. Nadkarni, (1983) ILLJ 1 SC ; Vikram Deo Singh Tomar v. State of Bihar, AIR 1988 SC 1782.
  18. State of H.P. v. Umed Ram Shanna, [1986] 1 SCR 251.
  19. It is not to say that the other areas of intersect do not deserve attention within the right to life discourse. Disability rights/right to life connection deserves close attention by those concerned with reproductive rights, right to live and die. However, for the purposes of the draft legislation it is relevant to create a paradigm and environment which makes life thrive for the disabled and hence help create viable conditions for everyone instead of entering the slippery-slope areas which are neither directly touched upon by the UNCRPD nor is there any consensus on the same. See generally Samuel R. Bagenstos, Disability, Life, Death, and Choice, 29 Harv. J. L. & Gender 425, 426 (2006).
  20. Robert Nozick, Anarchy, State and Utopia xi (1974).
  21. Marta Russell, Stuck at the Nursing Home Door, Ragged Edge Magazine, available at http://www.ragged-edge-mag.com/0100/a0100ft1.htm (last visited on 3 November 2010).
  22. Oneryildiz v. Turkey, 48939/99, Council of Europe: European Court of Human Rights, 18 June 2002, available at http://www.unhcr.org/refworld/docid/3f2650b54.html (last visited on 7 November 2010).
  23. [1998] EHRR 101.
  24. Friedrich Nietzsche, Beyond Good and Evil (trans. R. J. Hollingdale, 1990).
  25. See Mallika Sarabhai, Women Poor at Science & Math?, The Times of India (Jan. 29, 2005), available at http://timesofindia.indiatimes.com/articleshow/1005072.cms (last visited 2 November 2010).
  26. Melinda Rosenberg, Harm, Liberty, and Disability, 29(3) Disability Studies Quarterly (2009) (“If we cleanly subsumed every problem into the domain of medical science, any apparent problem could be addressed so that differences are lessened. However, we could simply accept these differences. We need not view disability as a pathological condition. We might be better served if we turned our clinical and/or aesthetic gazes towards ourselves instead of others.”).
  27. Rosemarie Garland Thomson, Extraordinary Bodies 6 (1997).
  28. Leslie Fiedler, Freaks: Myths and Images of the Secret Self 154 (1978).
  29. Even the Indian Supreme Court has spoken of disability as burden, one which should be eliminated and prevented not realising the evolving concept of disability. See Kirloskar Bros. Ltd. v. Employees’ State Ins. Corp., 1996 S.C.A.L.E. (2)1.
  30. Clement & Read, supra n. 2, at 10.
  31. Id., at 2.
  32. R.A. Kane, Accomplishments, Problems, Trends, and Future Challenges, in Kane RL, Kane RA, Assessing older persons: Measures, meaning and practical applications 519-529 (2000) (“the well are prone to discounting the value of a disabled life, but many people with disabilities seem to cling to their lives all the same.”).
  33. P. Menzel, Strong Medicine 81-2 (1990).
  34. Thomson, supra n. 27, at p. 10.
  35. See Rosenberg, supra n. 26 (“As a sighted person, I can blindfold myself and try to convince others that I genuinely understand what blindness is like. Covering my eyes is not enough. I have already seen colors. I have already seen shapes. How could I pretend to have never seen such objects? Perfect reflexivity of non-disabled/disabled perspectives does not seem possible.”).
  36. Id.
  37. Encyclopedia of Disability 1323-25 (Gary L. Albrecht ed., 2006).
  38. See generally Quality of Life for Persons with Disabilities. International Perspectives and Issues (David Goode ed., 1994).
  39. Thorsten Afflerbach & Angela Garabagiu, Council of Europe Actions to Promote Human Rights and Full Participation of People with Disabilities: Improving the Quality of Life of People with Disabilities in Europe, 34 Syracuse J. Int’l L. & Com. 463, 468 (2007).
  40. Comm. of Ministers, Recommendation Rec (2006) 5 of the Committee of Ministers to Member States on the Council of Europe Action Plan to Promote the Rights and Full Participation of People with Disabilities in Society: Improving the Quality of Life of People with Disabilities in Europe 2006-2015, 961st Meeting, Doc. No. 5 (2006), available at https://wcd.coe.int/ViewDoc.jsp? Ref=Rec(2006)5&Sector=secCM (last visited on 5 November 2010).
  41. See Govt. of India through Secretary v. Ravi Prakash Gupta, Special Leave Petition (C) No. 14889 of 2009, Decided On: 07.07.2010.
  42. Eric Hobsbawm, A Century of Catastrophes: Age of Extremes - The Short 20th Century, The Independent (9 October 1994) (quoting Leo Valiani, the Historian).
  43. See Article 14, ¶ 1 of the UNCRPD. Article 14, ¶ 2 also states that: “States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.”
  44. Maneka Gandhi v. Union of India, [1978] 2 SCR 621.
  45. See PUCL v. Union of India AIR 1997 SC 568; Vishaka v. State of Rajasthan, AIR 1997 SC 3011; DK Basu v. State of West Bengal, AIR 1997 SC 610.
  46. AIR 1983 SC 339.
  47. Laura Theytaz-Bergman & Stefan Trömel, Effective Use of International Human Rights Monitoring Mechanisms to Protect the Rights of Persons with Disabilities, Guidance Document, International Disability Alliance (2010).
  48. Unlike the Lunacy Act where a person was to be discharged within twenty four hours of a discharge request, Section 16 of the MHA confers discretion on the head of the institution to retain the voluntary patient involuntarily provided a medical board certifies that such further admission is required.
  49. Cases which have gathered some attention only limit the judicial analysis to the site of confinement or its legality within the bounds of the relevant statute or fair procedure established under the statute instead of digging deeper into the fairness of the procedure in the light of human rights standards. For e.g. in Sheela Barse v. State of West Bengal, the housing of mentally ill in jails was questioned, and subsequent to a psycho-legal investigation of the matter, the Supreme Court held the housing of mentally ill in jails to be unconstitutional. Similarly, In Regarding Death of 25 chained Inmates in Asylum Fire in Tamil Nadu held that the detention of persons with mental illness in unlicensed private asylums to be in contravention of the Mental Health Act.
  50. International and National Law on Selected Civil Rights, available at http://nhrc.nic.in/Publications/Disability/chapter10.html (last visited on 3 November 2010).
  51. Daily Summaries of the Seventh Ad Hoc http://www.un.org/esa/socdev/enable/rights/ahc7sum18jan.htm; see especially the statement of the chair on the text as finally reached and his emphasis on the non discriminatory import of the article http://www.un.org/esa/socdev/enable/rights/ahc7sum19jan.htm (last visited on 7 November 2010).
  52. Halderman v. Pennhurst State School and Hospital (Pennhurst), 465 U. S. 89 (1984).
  53. Munn v. Illinios, (1876) 94 US 113 : 24 Law Ed 77.
  54. Dicey, Constitutional Law 207-208 (9th ed, 1948).
  55. 1 Blackstone, Commentaries on Laws of England 134 (1765-1769).
  56. Kharak Singh v. State of U.P., AIR 1963 SC 1295.
  57. [1978] 2 SCR 621.
  58. S.M.D. Kiran Pasha v.Government of Andhra Pradesh, 1989 (2) SCALE 1083, ¶ 14 (“When a right is so guaranteed, it has to be understood in relation to its orbit and its infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. In other words, conferring the right on a citizen involves the compulsion on the rest of the society, including the State, not to infringe that right.”).
  59. Khatri and Ors. (II) v. State of Bihar, 1981 CriLJ 597; Khatri (IV) v. Stale of Bihar, [1981] 3 SCR 145.
  60. Bandhua Mukti Morcha v. Union of India, [1984] 2 SCR 67, Maneka Gandhi v. Union of India, [1978] 2 SCR 621; Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Nadkarni, (1983) ILLJ 1 SC.
  61. Francis Coralie Mullin v. Administrator Union Territory of Delhi, 1981 CriLJ 306, ¶ 8.
  62. For this Article 12 and 25 of the UNCRPD are extremely relevant along with Article 17 which would outlaw nonconsensual treatment. See also Article 3, 14, 15 of the UNCRPD. But an elaborate discussion on this would steer away from focusing the discussion on deciphering the core of the right to integrity for persons with disabilities.
  63. Javed Abidi, Shocking Neglect of Rights of Disabled Persons, PUCL Bulletin (2001).
  64. See Leslie Fiedler, Freaks: Myths and Images of the Secret Self (1978).

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