Tuesday, 31 December 2013

Matrimonial law is heavily stacked against persons with disabilities

An unsound framework

Matrimonial law is heavily stacked against persons with disabilities

Mental health activists were pleased with the Supreme Court's recent observation that the mere fact of a spouse having "schizophrenia" was not enough ground for divorce under section 13 of the Hindu Marriage Act. The act allows for divorce if a spouse "has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent". The provision itself is controversial, because it includes both diagnosed and undiagnosed conditions, which effectively makes a judge the sole authority on whether a person is of "unsound mind" or not. Celebrations were more subdued after a closer examination of the judgment.

The judgment laid undue stress on patronising the institution of marriage, although that is not the focus of this article. It also showed that the Supreme Court has done nothing but uphold an earlier position, laid down in 1988 in a remarkably well-thought-out ruling by Justice Venkatachaliah in Ram Narain Gupta vs Rameshwari Gupta. The ruling took into account literature on psychiatry and jurisprudence to reach its conclusions. One particular section stands out: "Undoubtedly, mental illness is so disvalued because it strikes at the very roots of our personhood. This is captured in part by the language we use in describing the mentally ill. One is a hysteric, is a neurotic, is an obsessive, is a schizophrenic, is a manic- depressive. On the other hand, one has heart disease, has cancer, has the flu, has malaria, has smallpox".

The grounds for divorce are heavily stacked against persons with disabilities. Besides "unsoundness of mind", leprosy, which results in disability, still remains a ground — despite being completely curable. Till 1976, epilepsy was also included in this list. The only other "health" concern that the law recognises is venereal disease, which strikes at the very heart of "conjugal bliss" and may accompany ground one: adultery.

The legislature, however, did not intend to make "unsoundness of mind" an easy escape route. As Venkatachaliah points out, "If the mere existence of any degree of mental abnormality could justify dissolution of a marriage, few marriages would, indeed, survive in law". The qualification that the petitioner could not "reasonably be expected to live with the respondent" was in the statute books. Then why did the Supreme Court have to reiterate its own position, in a case with identical facts? It does seem to repeat itself quite often, of course, but this instance is significant. Just two years ago, the principal judge of the family court at Chennai stated that 40 per cent of divorce cases before the Chennai court involved allegations of unsoundness of mind.

The experiences of persons with disabilities show that labels, bad enough in themselves, come with a whole set of repercussions. For example, the Reserve Bank of India specifies that persons covered under the National Trust Act, that is, those with cerebral palsy, "mental retardation", autism or multiple disabilities, require a guardian, appointed under the act, to open a bank account. That they may be competent to exercise legal capacity is not even a remote possibility. Every single day, persons with psychosocial disabilities are held incapable of being a spouse, or a parent, by trial courts across the country. Few of them have the facility to move the high courts in appeal, fewer still can knock the on doors of the Supreme Court for justice.

No matter how well intentioned and well drafted the relevant legislation is, its poor and misguided implementation has resulted in discrimination. This should be a cause for concern and reconsideration among policymakers. As a signatory to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), India is obliged to implement Article 23 of the convention — the right to family of persons with disabilities, as well as Article 12 — recognition of legal capacity. In a UNCRPD-compliant framework, the ipso facto granting of divorce on grounds of "unsoundness of mind" would not even be possible. In fact, a person with a psychosocial disability should be allowed to file a petition for divorce on grounds of insufficient care by their spouse — this may come under the purview of the recognised "mental cruelty".

As long as there is a discriminatory provision against persons with psychosocial disabilities, there will be the possibility of misuse. This week's ruling, as well as contemporary records of the experiences of persons with disabilities, underline the fact that things have not changed in the decades between the two judgments. Matrimonial law in the context of persons with disabilities — whether it is the law itself, procedural aspects, the training and sensitivity of judges — needs to be scrutinised and reconsidered, but only after all preconceived notions are left at the door.

The writer is an advocate and fellow, Inclusive Planet Centre for Disability Law and Policy, Chennai

An Editorial dealing with the Newly released data of PWDs in Census 2011

Monday, 30 December 2013

'Give avenues to kids with disabilities'

'Give avenues to kids with disabilities'

Children with disabilities and their communities would both benefit if the society focuses on their potential and not their limitations, according to UNICEF’s annual ‘State of the World’s Children’ report.
The theme of the report, which was released here by Social Welfare Minister M K Muneer, is ‘Children with Disabilities’.

“Children with disabilities have the same rights as all other children, and should be provided with the same opportunities,” the Minister said. He mentioned Kerala’s ‘Special Initiative on Disability’(SID), an integrated project with the Departments of Health and Education which focuses on neuro developmental disabilities, as a model for others.

The State of the World’s Children 2013 report explains, with case studies and individual stories, on how exclusion affects such children from their first days itself. It states that they are least likely to receive health care or go to school, making them the most vulnerable and marginalised group.

Kerala, according to N Ahmed Pillai, State Commissioner for Persons with Disabilities, has around 8.6 lakh persons with disabilities. Of this, around 2 lakh are children, a majority of them living in rural areas.
He stated that while Kerala succeeded in bringing down infant mortality, there is still a long way to go in bringing down high-risk pregnancies, which increases the chances of giving birth to children with disabilities. K M Abraham, Principal Secretary, Social Welfare, emphasised the importance of consulting children with disabilities in formulating the programmes related to them.

Also present at the function were Neela Gangadharan, Chairperson of the State Commission for the Protection of Child Rights and Satish Kumar, Chief of UNICEF state office for Tamil Nadu and Kerala.

Disabled Left Behind in the Race of Cars

Disabled Left Behind in the Race of Cars

If wishes were cars, most of us would have a fleet of the most desirable cars of the world in our garage—Rolls Royce, Lamborghini, Ferrari and Bugatti Veyron. Sadly, wishes are not cars and most of us have to do with lesser cars or no cars at all.

The automotive market in India has opened up and we have various types of cars now. If one studies the market, it shows more than just cars or two-wheelers. It tells the story of a country changing so quickly through the kinds of cars available that one could actually tell where its people stand and where India is headed for?

The cheapest car in the country, or anywhere in the world, is Tata Nano. Ratan Tata has single-handedly made the dreams of millions of lower class and rural Indians of owning a car possible. Aimed at the aam aadmi, it is nano-sized and nano-priced.

However, contrary to expectations, its positioning as a cheap car proved to be its undoing, and it is struggling to find a foothold in the auto sector. It goes to show the rising aspirations of the common person for whom a car is not just a vehicle of mobility, but also a statement of one’s position in society.

At the other end of the spectrum are designer cars that have been added flourishes by people like Dilip Chhabria, to make them stand apart. The cost is no bar, one boasting a `4-crore price tag. They are for ones who go for the snob value of a product, and want something exclusive.

A very different vehicular segment, largely ignored, is for those among us who are less visible and not considered as market for cars; the un-factored but huge segment of people with disabilities, who number about 7 to 10 crores.

With public transport not being disabled-friendly, this section remains largely cooped up in their homes, not because of physical handicap but because they do not have a viable means of travelling around independently. Hence, they remain deprived of education, employment, entertainment and other activities. So, instead of becoming a contributing and productive segment, they become a liability to society.

On the positive side, one vehicle has been designed for people with disabilities. Called Plexus (Personal Vehicle for Transporting Wheelchairs), it is a vehicle in which a wheelchair can be wheeled in directly for the user.

If India wants to accelerate its sluggish pace of development, all of its people need to be mobile, independent and on the go. This is a vast market for technical products that manufacturers are not tapping into. With the assistance of such customised products, a new wave of workforce that is being left behind can enter the job market. This can only enhance our economy.

Now, if someone from the government throws a dinner and brings together such revolutionary people who think off the beaten track, leave them in a room for 30 minutes and then see, what emerges out of that extempore boardroom meeting! I have a feeling it would be a vehicle of progress with the body aesthetics of a DC, the mind of a Tata and the spirit of a professor.

After Struggle Visually Challenged Got the Question in Braille in UGC NET Exam, Dec 2013

Visually Challenged Candidate Makes UGC History

No matter whether Miranda Tomkinson qualifies in the University Grant Commission’s national eligibility test (NET) held on December 29, he has earned a permanent place for himself in the history of the highest statutory body by virtue of being the first visually challenged candidate to get a question paper in Braille for the examination. Thanks to a Madras High Court directive to UGC, the package containing a set of three question papers in Braille arrived here by flight from New Delhi around 4 pm on Saturday.  

On Sunday morning, Miranda, who is both aurally and visually challenged, arrived at the examination venue – MGR Janaki College – accompanied by Smita Sadasivam from Vidyasagar and Robert Richard of the National Institute Multiple Disabilities.

He appeared tense as the road to the examination hall had not been easy for him. A post-graduate in sociology, his attempts to write NET last June had failed and finally he approached Vidyasagar in September this year. “We take cases of violation of rights of persons with disabilities,” said Smita Sadasivam. “We first wrote to UGC, but did not get any reply. Then, we wrote to the state and chief commissioners for persons of disabilities in Chennai and Delhi. Again, there was no response.”

The organisation then contacted the University of Madras, which sent a missive to UGC. On December 20, the university informed the NGO that the apex body had denied permission to Miranda as a matter of policy decision this year, but that it could be considered next year. “Hence, we filed an emergency petition in the Madras High Court,” Sadasivam said.

On December 27, Justice S Vaidyanathan held that denying a questionnaire in Braille to Miranda would amount to discrimination and directed the UGC to furnish a question book in Braille not just to the petitioner but to all such candidates aspiring to write the NET on Sunday.

“There are 275 blind and low-vision candidates from Chennai,” the activist pointed out. “I am not sure whether they are aware of the court order.” 

Asked about his test-preparedness, Miranda said that he could not concentrate much on his studies because of the legal issues. “I have prepared for the test with the little amount of time available to me. Still, I have great hopes.”

Claiming that the UGC had not provided any compassionate assistance despite making several requests, he said: “I should be judged fairly. The evaluation should be done fairly.”

At the hall, examination officials provided Miranda with a scribe and, as a special case, allowed Robert Richard to sit with him.

Of the 1,002 candidates appearing for NET at the centre, six, including Miranda, suffered from disabilities.

Sunday, 29 December 2013

Indian Rural disabled undercounted in 2011 Census?

Rural disabled undercounted in 2011 Census?

Lack of awareness in rural areas regarding the enhanced definition of disability in census 2011 could have led to severe undercounting of the disabled, the bulk of whom reside in rural India. Rural areas account for almost 70% of the population of people with different kinds of disabilities. Yet the increase in the number of persons with disabilities (PWDs) in the rural areas is barely 14% compared to a whopping 48% increase in urban areas. This has led experts to conclude that PWDs in rural areas were probably undercounted. 

This undercounting is believed to have contributed to the disabled population going up to just 26.8 million from 21.9 million in the last census in 2001, i.e. from 2.13% of the population in 2001 to 2.21%. This is in contrast to most neighbouring countries such as China, Nepal, Bangladesh and Sri Lanka, where PWDs account for about 4-6% of the population.

The 2011 census had made special efforts to ensure that all PWDs were counted and an enhanced definition of disability was used. While census 2001 collected information on only five types of disabilities, in 2011, information on eight types of disabilities was included. The census office had roped in the National Centre for Promotion of Employment for Disabled People (NCPEDP) and its partners to develop training modules and had involved them in training and sensitising census enumerators. Despite these efforts, the total number seems rather low compared to the estimated 70 million population of PWDs.

NCPEDP convenor Javed Abidi said that he was disappointed at how low the numbers were despite all efforts to ensure better coverage. "With the expanded definition of disability, we had expected that it would be at least 4% plus. But just 2.2% is a disappointment. It cannot be a coincidence that the increase was just 14% in rural areas and 48% in urban areas. I guess our campaign was restricted to the urban population, especially metros and state capitals. This is a wake-up call for the disability sector. We have a long way to go in reaching the bulk of the PWDs, who are in rural areas," said Abidi. 

Not only PWDs, but also local enumerators in rural areas would need more training on how to count PWDs under the enhanced definition for which the government too would need to launch awareness drives among census enumerators in particular and the rural population in general.

The disability sector is however elated that, for the first time, census 2011 has yielded data on the population of people with mental illness, mental retardation and those with multiple disabilities and even those with 'other' kinds of disabilities. Earlier, the focus was largely only on visual, locomotor, speech and hearing impairment.

Almost half a crore people have been identified with "any other" disability, while over 1.5 million persons with mental retardation or intellectual disability have been identified. The census counted over 7.2 lakh persons with mental illness.

The census data also revealed that the scheduled castes had the highest proportion of PWDs in their population, about 2.5% compared to just 2.1% among scheduled tribes and 2.2% among the general population.

Activists press for introducing New Disabilities Bill in Parliament soon

Activists press for introducing Disabilities Bill in Parliament soon
Disability rights groups on Friday expressed dismay over the inordinate delay in introducing the Rights of Persons with Disabilities Bill in Parliament even after it was approved by the Cabinet a few days ago.

Activists of the Disabled Rights Group (DRG) and the National Platform for the Rights of the Disabled (NRPD) said they will approach major political parties to convince them to introduce the Bill when Parliament reconvenes.
"Parliament session will be convened to pass the Vote on Account in January and February. This important piece of legislation must also be taken up by both, Lok Sabha and Rajya Sabha for enactment," NPRD secretary Muralidharan said.

DRG convener Javed Abidi said, "We will be approaching all major political parties to garner support for this as we genuinely believe that the cause of disability is a totally non-partisan and non-political issue."

Besides offering a comprehensive definition of disability, the legislation which will replace the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, provides for an increase in the quota for persons with disabilities from three per cent to five per cent in government jobs.

It also makes private companies accountable for creating a disabled-friendly environment.

As a mark of protest, disability rights activists will hold candle-light vigils in various parts of the country on December 31, the members said. In Delhi, the vigil will be held outside the Vice President's House as he is the chairman of Rajya Sabha, they said.

With India ratifying the UN Convention on Rights of Persons with Disabilities (UNCRPD) in 2007, it was expected that all the four disability-specific legislations -- the Mental Health Act 1987, Rehabilitation Council of India Act 1992, Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 and the National Trust Act 1999 -- would be harmonised with the provisions of the UNCRPD.

However, while the Mental Health Care Bill has been introduced in Parliament, the bill replacing the Persons with Disabilities Act of 1995 is yet to be introduced.

Though the process of drafting the new law started over four years back and has gone through various stages, the delay in introducing this legislation is inexplicable, Abidi said.

More than a year has passed since the new draft of the proposed bill was uploaded on the website of the Ministry of Social Justice and Empowerment in September 2012.

The Minister for Social Justice and Empowerment had given an assurance that the bill would be introduced in the winter session of Parliament. The Union Cabinet gave its approval to the draft bill on December 12. However, the abrupt end of the Parliament session on December 18 prevented the bill from being tabled. 

'Accessible' transport for disabled sought in West Bengal

'Accessible' transport for Disabled sought in West Bengal
Blaming government apathy for the harassment they are forced to face while availing public conveyance, people with disabilities in West Bengal Saturday demanded an "accessible transport system".

Despite the existence of legislation as well as guidelines from the Calcutta High Court prohibiting harassment, commuting for people with disabilities has become a nightmare, they said.

Earlier this week, a disabled woman who runs an NGO to fight for social equality was treated inhumanly, while she was travelling with her minor daughter in a mini-bus.

The woman claimed her right to travel free on a pass because of her disability, and also showed her identity card, but was shoved around, taunted, and confined in the bus by its conductor and driver.

Highlighting their plight, the Sruti Disability Rights Centre and Human Rights Law Network, non-governmental organisations working for human rights, said they would meet representatives of the Mamata Banerjee-led West Bengal government seeking implementation of the provisions of the Persons With Disability Act, 1995 as well as the court's guidelines seeking to facilitate easy commuting of disabled people.

"Hearing a public interest litigation, the high court in June had laid down guidelines prohibiting harassment, asking for installation of auditory signals and reservation of seats in buses. Unfortunately, the state government has not implemented even one percent of those guidelines," Debashis Banerjee, a lawyer, said.

Visually challenged Sourav Bose, an insurance agent, described daily commuting as a nightmare.

"While commuting is a nightmare, the apathy toward us is reflected by the fact that most government buildings don't have ramps or lifts fitted with voice-announcements of the different floors, making it difficult for us to access them. The irony is, the office of the disability commissioner here too falls under the same category of buildings," Bose said.

Sharing a similar ordeal, physically challenged Bubai Bag - a research scholar - said: "The government has reserved a train compartment for the disabled, but has never given a thought to how a man like me would eventually reach that compartment".

"Just by reserving two seats in a bus or train, the government cannot wash its hands of its responsibilities. Who will sensitise people who operate the buses? While commuting, we realise how unacceptable we are to society," Bag said.

With the state government yet to implement the high court guidelines, lawyer Banerjee said the organisations were planning to file contempt proceedings.

"While the plans to file contempt proceedings are afoot, we don't want to rush things. Rather, we would like to meet government representatives, especially the state transport minister, to discuss things.

"While the government has shown its intent, it's the transport operators who have been creating hurdles. They neither implement the court guidelines nor do they come to the discussion table," legal counsel Banerjee said.

Saturday, 28 December 2013

Disability in India: The Struggles of Infrastructure, Prejudice and Karma

Disability in India: The Struggles of Infrastructure, Prejudice and Karma

According to the United Nations, around one billion people live with disabilities globally -- they are the world's largest minority.

Of this number, as many as 40-80 million live in India, though the underdeveloped infrastructure across much of this vast country makes it difficult for them to get around.

But it's not just the land that can be harsh and unwelcoming; prejudice and the karmic belief that disabled people are at fault for their incapacity can affect their ability to lead a normal life.

Devender Pal Singh, 39, lost his leg during the Kargil War between India and Pakistan in 1999 when a bomb exploded just meters away from him, piercing his body with shrapnel.

After a subsequent operation, his right leg became infected and had to be amputated. At one point doctors didn't think he'd pull through. "This is my second life," he says from his home in Noida outside Delhi, "because I was pronounced dead. I am one of the chosen ones."

Blade runner

Refusing to be overcome by the physical or mental challenges of losing a limb, he became a marathon runner, eventually being dubbed India's blade runner owing to the blade-style prosthetic he uses.

He says his mindset is born out of a desire for people to see him in the competent way that he sees himself. "What I'm trying to pass on is attitude," he says.
Miss Iowa is missing one key feature
Pope Francis stops to bless disabled man
A former major in the Indian army, Singh formed a support group for people like him called the "Challenging Ones." He says he prefers to feel like he has a challenge to overcome rather than a disability.

By taking part in half marathons since 2009, he says the fellow amputees in his group, which has 450 members across India and over 1,900 likes on Facebook, have been encouraged to do the same.

His acceptance of who he has become clearly shows. "This is the positive side of being an amputee," he laughs, effortlessly using his crutch to press a distant button that operates the ceiling fan.

Long way to go

But while he has learned to live with his disability, or challenge, India still has a long way to go before the needs of the disabled are sufficiently met, or even recognized.

Take a short wander around virtually anywhere in the country's capital and you are faced with stairs or steep, uneven pavements with stalls intruding on their spaces, running alongside unruly traffic.

If you have a disability and behave ordinarily, people take you as extraordinary.

"The population of India (over 1.2. billion) is the biggest challenge," says Singh. "Everyone expects all buildings and landmarks to be 'disabled-friendly,' but it's not possible overnight. You must adjust yourself."

Awanish Awasthi, joint secretary for the Indian government's department of disability affairs, says most new buildings are disabled-friendly and the government provides financial support to those states wanting to take up the arduous task of upgrading their existing infrastructure.

But these physical obstacles do little to hold Singh back. Once he has dealt with a current injury to his thigh, he's planning to run a half marathon every day for 21 days in 21 different cities of India in 2014. Inspired by British Paralympic gold medalist Paul Whitehead's feat of completing 40 marathons in 40 days, his aim is to promote his campaign and motivate others.

Poverty barrier

However, it's a different scenario for those who are physically or mentally disabled and burdened with poverty and excluded from mainstream society.

The Anchal Charitable Trust in Delhi, supported by the NGO Handicap International, works with eight slums in the east of the city, providing disabled children and their families with rehabilitation, education, counseling and information about their rights.

Manish Singh is a seven-year-old boy from one of the slums with cerebral palsy, who is usually not able to sit or stand. But in a rehabilitation room of the trust's center, he sits on the floor supported by an aid.

His mother says special exercises provided by professional occupational therapists employed by Anchal have slowly improved his condition.

"The issue is how to change the mindset; people think disabled people cannot perform well," says Awasthi. "Gradually people are recognizing the fact that, given the right conditions, everyone can become empowered."

Disability at school

Overcoming disability to serve others
But those with intellectual or learning disabilities face the added struggle of even being identified.

Aartee Gupta, Handicap International's country program monitoring manager and a former government schoolteacher, says: "In the general school curriculum, there is nothing about education for children with special needs."

Through the charity's work in the central state of Chattisgarh, they have come across teachers unwilling to accept pupils with learning difficulties because they believe they are incapable.

Awasthi says the government is developing a separate curriculum, special schools and trained teachers for the mentally impaired, which will also enable monitoring their progress. He hopes this will be in place by March 2014.

Change of attitude

Gradually people are recognizing the fact that, given the right conditions, everyone can become empowered.

However, the factor that hinders the acceptance of disabled people in Indian society is attitude, says Catherine Novi, regional coordinator for the rehabilitation projects of Handicap International.

In her work with various communities, she has found many believe disability is caused by black magic or bad karma, as a result of wrongdoing in the disabled person's former or current life.

At the trust, the mother of Shweta, a nine-year-old girl with spina bifida -- a condition at birth that involves the incomplete development of the spinal cord or its coverings -- says: "Something happened in her former life to make her disabled."

When asked whether the disability may purely be the result of a physical disorder, she holds steadfast to her belief that karma is the cause.

However, evidence shows that proper counseling can transform these attitudes. The trust recruits community volunteers from the slum, including parents of disabled children, who are given training in areas such as rehabilitation or therapy.

Radesham is one such volunteer who is trained to inform the community of their rights. Before joining Anchal, he says he had strong beliefs about karma being the root of disability.

"After receiving training, I now believe in the practical causes of disability, such as injury and infection," he says.

Ironically, Singh says he believes in karma: "But it is not something just associated with your past life but also [what you do in] your present life.

"It means 'action' and is an ongoing process that can be turned around."

Signs of improvement

There is much to be said about disability in such a densely populated country. But Awasthi assures that the situation is improving: "The definition of disability itself has seen a lot of change," he says.

He adds that a new Persons with Disability bill, which is at the final stages of being enacted, accounts for 18 disability types, up from just six in the current 1995 act. These include autism and haemophilia.

India has also adopted the United Nation's development agenda for disabled people. And in September, the Supreme Court ruled that central and state governments must enforce an 18-year-old law to reserve 3% of government jobs for the disabled within three months.

But do the handicapped have to be extraordinary, like Singh and other respected disabled athletes such as paraplegic Deepa Malik, in order to be noticed and accepted by wider society?

"They are role models that inspire others," says Novi.

Singh adds: "If you have a disability and behave ordinarily, people take you as extraordinary."

He says others may see him as special because he is running with one less limb, but that is his driving force: "Sometimes I feel I'm able to do this because I have less."