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Here's why it's important:
To
His Excellency Shri Pranab Mukherjee
Hon’ble President of India
Ref: 135/dwab/2012 Dated: 4th November 2012
Respected Sir,
Sub: Right to equality for persons with disabilities — a proposal
for constitutional
Recognition — a humble submission for expeditious
action-regarding:
We, on behalf of the Development and Welfare Association of the
Blind (Andhra Pradesh), in consultation with several other organisations and
like-minded individuals, hereby submit the following few lines for your kind
enough consideration and request you with humility to do the needful in the
direction of providing constitutional remedy to the historic injustice
inflicted upon the citizens with disabilities in our land of rich heritage and
culture of co-existence:
As his Excellency might be fully aware, nearly Three Crore
Indians — 3% of our population — are officially counted as people suffering
from various disabilities, visual-impairment, hearing-impairment and other
locomotor disabilities in particular. Ironically enough, a large proportion of
this population suffers gross negligence in the hands of our public
institutions. It is now estimated that nearly Fifteen Million visually-impaired
and around Sixty-four Million other disabled have been subjected to the
cruelties of daily life, and almost all of them are living without basic
amenities such as food, decent clothing, a shelter of their own and minimum
education. At a time our policy echelons are busy ensuring human rights for
other marginalised groups, SCs, STs and Women, here are the minuscule minority
who live away in a shear silence a life that falls below the standards any
civilisation can ever think of.
We hope his Excellency would agree with us in a candid admission
that the socio-economic backwardness of persons with disabilities in our
country stems from nowhere but our own constitution that fails to make any
meaningful provision for the rights of this scattered community. While Articles
14, 15 and 16 of the Constitution took extra-care to ensure the right of
equality for all citizens in India, with enough safeguards for such
marginalised sections as SCs, STs and OBCs through affirmative policy in
education and employment, persons with disabilities have been conveniently
forsaken in this thwarted war of vote-bank politics. Look at, for example, the
speed with which Governments in the recent past have moved swiftly and brought
about 27% reservation for OBCs in education and employment through the
constitutional Amendment, and the same swiftness that can be seen in the
present regime’s attempt to provide 33% reservation for women through another
Constitutional Amendment. Persons with disabilities at times really feel let
down in the present political climate where every community with a sizeable
Vote-bank and social capital is frequently showered with all policy
concessions, whereas, persons with disabilities, who are a scattered minority
at best (with very little advantage for commanding vote-bank manoeuvring in a
given place), are never taken seriously by our majoritarian democracy.
Consequently, the real concerns of this genuinely deprived community hardly get
any attention, whatsoever.
The depiction briefly outlined above may give you an impression
that the signatories of this letter are unaware of the recent initiatives being
undertaken by the Governments in favour of persons with disabilities, which we
wish to clarify in unequivocal terms in the following lines with as much
precision as possible:
The socio-economic deprivation of persons with disabilities and a
well-found recognition that this deprivation is due largely to lack of
constitutional safeguards is neither entirely new nor has been hidden from the
ruling regimes of post-independent India. The Government of India under the
leadership of Sri Rajiv Gandhi set up a committee to consider legislation for
the physically challenged. Headed by Shri Baharul Islam, a distinguished
parliamentarian at that time, the Committee was asked inter alia to work out
the scope, objectives and general scheme of legislation for persons with
disabilities covering various aspects of prevention, rehabilitation, social
security and welfare of this section of society.
Baharul Islam Committee submitted its report to the Government in
June, 1988, with a prime recommendation, among other things, that Articles 14,
15, 16 and 46 of the Constitution be amended to include the words “persons with
disabilities” and “mentally-handicapped” so as to provide constitutional
recognition to the special circumstances under which the communities these
underlying words invariably refer to. However, we have no hesitation to state
that these path-breaking recommendations have been kept in a cold-storage by
the subsequent Governments, and hardly anyone remembers that there was such a
Committee set up to recommend the feasible framework for including persons with
disabilities in the scheme of Indian Constitution. What followed thereafter,
and still continues till date, in the discourse of Indian Disability Law is
quite disturbing and remains far short of providing any satisfactory solutions
to the problem of bringing the disabled citizens into the mainstream society.
To put succinctly, there have been nearly a half-dozen
legislations enacted by the Indian Parliament, each one to address a specific
requirement of disability. Mental Health Act 1987, Rehabilitation Council of
India Act 1992, Persons with Disabilities (equal opportunities, protection of
rights and full-participation) Act 1995, National Trust Act 1998, National
Policy for Persons with Disabilities 2006 are prominent among them. After India
signed and ratified the United Nations Convention on Rights of Persons with
Disabilities (UNCRPD) 2007, however, now there is a new, perhaps a slightly
renewed, buzz to enact an umbrella legislation for persons with disabilities.
With a pinch of apology to his Excellency, we wish to point out
that the deepest political fraud in the whole discussion on a comprehensive
legislation for persons with disabilities is that the inherent need for a
suitable Constitutional Amendment declaring unequivocally that the rights of
persons with disabilities are as worth protecting as that of any section is
completely overlooked.
We also feel it is important to clarify at the outset that our
unfailing stand for a constitutional Amendment in favour of persons with
disabilities indeed stems largely from the unpleasant experiences often
encountered in the implementation of various provisions contained in the
existing legislations with regard to the empowerment of persons with
disabilities. To take one example: a provision for the reservation of not less
than 3% vacancies in all Government and Public Sectors in favour of persons
with disabilities, clearly laid down by Section 33 of Persons with Disabilities
(equal opportunities, protection of rights and full-participation) Act 1995, is
never treated on par with the other legal provisions that otherwise prescribe
7.5%, 15% and 27% job reservation in favour of SCs, STs and OBCs respectively.
The obvious explanation is that while the reservation provisions of the later
type enjoy the Constitutional status, the former does not. The nodal
Departments/Agencies in charge of implementing these provisions often find it
extremely difficult to move forward under such extraneous legal conditions, and
persons with disabilities are the ultimate losers in this whole technocratic,
legal game. Unsurprisingly enough, the Universities’ Grants Commission (UGC),
the Union Public Service Commission (UPSC) and the whole Banking Sector in
India took more than a decade to implement 3% reservation in favour of persons
with disabilities, that too only after being sternly reminded by the Hon’ble
Supreme Court about their lackadaisical approach in dealing with the issue at
hand.
We feel quite painful to bring to the kind notice of his
Excellency that no significant provision in PWD Act of 1995 has so far been
readily implemented without a final word of interpretation from either State
High-court(s) or the Hon’ble Supreme-court.
It is our firm conviction that there is a greater justification
for the Constitutional protection for persons with disabilities than those
belonging to SC, ST and OBC, because they can always command enough
opportunities, thanks to their physical fitness and uninterrupted accessibility.
It may also be brought to the notice of his Excellency that apart
from such developed countries as Canada; even some of the African countries
like South-Africa and Eritrea have provided specific Constitutional provisions
for safeguarding the rights of persons with disabilities. We, therefore, feel
that incorporation of similar provisions in our Constitution would go a long
way in ensuring persons with disabilities the fundamental right to equality
enshrined in Part Three of our Constitution.
In the circumstances briefly outlined above, we humbly request
his Excellency to kindly examine a note of proposals enclosed herewith and
advise the union Government and the Indian Parliament for an expeditious action
to move an appropriate Constitutional Amendment for the inclusion of persons
with disabilities in the Law of the Land.
This appeal drafted and handed over to his Excellency by a School
Teacher unambiguously reflects the real hopes and aspirations of more than a
Three Crore challenged Citizens of our Country.
Thanking you in anticipation, Sir!
Sincerely Yours
K. Srinivas
The Secretary
[email protected]
PROPOSAL FOR CONSTITUTIONAL AMENDMENT
IN FAVOUR OF PERSONS WITH DISABILITIES
1. Amendment of Article 15(1) and 15(2):
“The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them
No citizen shall, on grounds only of religion, race, caste, sex,
place of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to…”
Incorporation/Alteration/Addition/Deletion: “Disabilities” after
the words place of birth” and “Disability be removed from (Subject to any
disability, liability…”.
2. Addition of new Article 15(3-A):
Nothing in this Constitution shall prevent the State from making
special provisions for persons with disabilities in general and for women and
children with disabilities in particular to ensure that they enjoy benefits on
an equal basis with others under the law.
3. Article 16(2):
“No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect or, any employment or office under the State”
Incorporation of the word “disabilities” after the word
residence.
4. Explanation to be incorporated after Article 23(1):
Traffic in human beings and beggar and other similar forms of
forced labour are prohibited and any contravention of this provision shall be
an offence punishable in accordance with law
Explanation: Causing anyone temporary or permanent disability or
mental impairment or accentuating the same shal also be an offense punishable
under the Law.
5. Insertion of Explanation to Article 29 (1):
“Any section of the citizens residing in the territory of India
or any part thereof having a distinct language, script or culture of its own
shall have the right to conserve the same.”
Explanation:
For the purposes of this article, while Braille shall also be
recognized as a distinct Script to be deployed by persons with
visual-impairment, Sign language shall be recognized as a distinct language to
be used by hearing-impaired.
6. Amendment of Article 30 (1):
“All minorities, whether based on religion or language, shall
have the right to establish and administer educational institutions of their
choice.”
Explanation: the words “visually-impairment” and
“hearing-impairment” should be added after “language”, with a proviso that
persons with visual-impairment and hearing-impairment shall have the right to
establish and administer the educational institutions of their choice.
7. Article 41-A:
State shall ensure that every person with disability shall enjoy
all the human rights and fundamental freedoms guaranteed by the International
Treaties, Covenants and Conventions subject to their ratification by Government
of India. It shall further be obligatory for the State to evolve a viable
policy framework to implement the same.
8. Article 46:
“The State shall promote with special care the educational and
economic interests of the weaker sections of the people, and, in particular, of
the Scheduled Castes and the Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation”
Incorporation of the words “persons with disabilities” after
Scheduled Tribes.
9. Fundamental Duties:
Addition of a new duty 51-A (L): Citizens shall renounce
discriminatory and derogatory practices harming the dignity of persons with
disabilities.
10. Deletion of Article 102 (1) (b):
Article 102 (1) (b) which says that a person shall be
disqualified for being chosen as, and for being, a member of either House of
Parliament “if he is of unsound mind and stands so declared by a competent
court”. This clause excludes people with psychosocial or intellectual
disabilities from membership to either House of Parliament and should be
deleted.
11. Deletion of Article 191 (1) (b): which states that a person
shall be disqualified for being chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a State “if he is of unsound
mind and stands so declared by a competent court”. This clause excludes people
with psychosocial and intellectual disabilities from membership to the
Legislative Assembly or Legislative Council of a State and should be deleted.
12. Article 243D: Reservation of seats
Addition of sub clause(C) with the words “and persons with
disabilities” after 243D (1) (b) is prayed for.
13. Article 243T:
Clause 1
Seats shall be reserved for the Scheduled Castes and the
Scheduled Tribes in every Municipality and the number of seats so reserved
shall bear, as nearly as may be, the same proportion to the total number of
seats to be filled by direct election in that Municipality as the population of
the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the
Municipal area bears to the total population of that area and such seats may be
allotted by rotation to different constituencies in a Municipality
Insertion of words “and persons with disabilities” after
Scheduled Tribes in Clause (1).
Clause 2
Not less than one third of the total number of seats reserved
under clause ( 1 ) shall be reserved for women belonging to the Scheduled
Castes or, as the case may be, the Scheduled Tribes
Proviso to Article 243T (2): Provided that 5% seats shall be
reserved for women with disabilities.
Clause 3
Not less than one third (including the number of seats reserved
for women belonging to the Scheduled Castes and the Scheduled Tribes) of the
total number of seats to be filled by direct election in every Municipality
shall be reserved for women and such seats may be allotted by rotation to
different constituencies in a Municipality
Clause (3) addition of words “and women with disabilities” after
Scheduled Tribes.
14. Addition to Article 325:
Insert “and disability” after “grounds of religion, race, caste,
sex or any of them”. Then, no person with disability shall be ineligible for
inclusion in, or to claim to be included in a special, electoral role.
15. Modification to Article 326:
Delete “unsoundness of mind” after “ground of non residence”.
This shall stop the exclusion of people with psychosocial and intellectual
disability as eligible for registration as a voter at Elections to the House of
the People and to the Legislative Assemblies of States.
16. Modification to Article 343:
“The official language of the Union shall be Hindi in Devanagari
script. The form of numerals to be used for the official purposes of the Union
shall be the international form of Indian numerals.”
Sign language to be recognized as official language. This shall
then be recognized as a language that can be used in the Legislature (Article
210).
17. Addition to Article 350:
“Language to be used in representations for redress of
grievances. Every person shall be entitled to submit a representation for the
redress of any grievance to any officer or authority of the Union or a State in
any of the languages used in the Union or in the State, as the case may be.”
Explanation: This shall include sign language for the people with
hearing and speech impairment.
18. Insertion of Explanation to Article 350 A:
“It shall be the endeavour of every State and of every local
authority within the State to provide adequate facilities for instruction in
the mother tongue at the primary stage of education to children belonging to
linguistic minority groups...”
Explanation: For the purposes of this Article, sign language to
be recognized as mother tongue for the people with hearing and speech
impairment.
19. Insertion of Explanation to Article 350 B:
“Special Officer for linguistic minorities”
Explanation: People with hearing and speech impairment to be
recognized as a linguistic minority for purposes of this Article.
20. Schedule VII:
Insertion of Entry 25-A List III Schedule VII: Higher Education
of persons with disabilities and Establishment of Institutions for their
empowerment and rehabilitation.
Insertion of Entry 25-B List III – Human Rights of persons with
disabilities
21. Addition to Eighth Schedule:
Sign language should be added as a scheduled language in the
Eighth Schedule of the Constitution.
With regards
Yours sincerely,
(K. SRINIVAS)
SECRETARY
Email [email protected]
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