R Arun Kumar, Managing Editor, Legit
UN Guidelines on Access to Social Justice for Person with Disability
For a nation to transform into a developed one, it is not only necessary to focus on the betterment of the best, but also need to improve its worst side. The low lying inferior or unattended groups or communities must be given adequate recognition and safeguards to survive in a society. Apart from discrimination on the grounds of religion, caste, and language; there is yet another set of people who are made vulnerable on the basis of their ability to live, with respect to others. While in the former scenario, the dwellers of the community themselves can stand for their rights, the latter often fail to fight against their oppressors and remain in a dormant state. This article deals with the accessibility of social justice from a differently-abled person’s perspective along with the recent UN guidelines.
Keywords: Differently-abled, discrimination, United Nations
For every nation to be recognized as a modern welfare state, the pillar of its justice system must be strong and indispensable enough to cope up with its society’s dynamicity. The term ‘Justice System’ not only includes the independence of the court but also covers every other aspect of the justice delivery system starting from the spot-inspection of crime to the execution of decree or order. In between these, there are many state and non-state actors involved, who contribute (actively or passively) in the justice rendering process. The said process will be fruitful only when the components of it coordinate. By components, the author means to point the policies, law, execution, actors, etc. Undoubtedly, the legal systems in every country are complicated and it makes the situation even worse for the Persons with Disability (PwD) community. To over-bridge this lacuna, the United Nations has come up with its first-ever framework for its member-states “UN guidelines for Access to Justice for Person with Disability” containing 10 principles. This paper will further deal with the effectiveness of guidelines, the existing status of PwD communities in developing countries, prevailing legislation, and policies at par with the released guidelines and other miscellaneous aspects.
Instruments & Guidelines – at a glance:
The first major Human Rights instrument in the twenty-first century is the Convention of Rights of Persons with Disabilities (CRPD) adopted in 2007 defining the term PwD as ‘those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with other’. The ten guidelines released by the UN primarily aims to review the CRPD concerning access to social justice, to explore barriers faced by PwD to access it and to consider steps to overcome the same. Special Rapporteur on Rights of PwD, Committee on the Right of PwD and the special envoy of Sustainable Goals on Disability and Accessibility worked together to put forth these guidelines. Catalina Devandas, UN Special rapporteur on rights of PwD quoted, “everyone including the disabled groups must be recognized on an equal basis with others and there is a number of barriers against them in the society” and further added that these principles will help member countries to dismantle obstacles and parallel systems that prevent access to existing guarantees and rights by all people. Chairperson of Committee on rights of PwD, Danlami Basharu referred to this as an indispensable contribution to achieving justice for all. Further, the guideline was endorsed by the International Disability Alliance and the International Commission of Jurists.
Overcome the obstacles:
Across the globe, this particular community faces a pinch higher oppression than other minorities. These barriers can be summed up into five categories, namely, legal, attitudinal, information & communication, physical, and economical barrier. The first one includes the legislation, policies that are contrary to the provision of CRPD and that are away from the welfare of PwDs. Even if they are available in certain countries, they are complex and confusing and inaccessible for the differently-abled. Attitudinal behaviour denotes the negative attitude and false belief and assumption towards the disabled by society. For example, police, lawyers and judges consider them as less credible for the legal proceeding due to the fact that the lag in some sense and move on in search of more credible sources. Thirdly, the actors as well as the public lack the knowledge and awareness about the life of PwDs, making it difficult for society to address the demands of the latter. Infrastructural impediments like lack of facilities and reasonable accommodation in public offices and spaces are few physical barriers faced by PwDs. Finally, most of the people in the differently-abled community are below the poverty line and come across economical challenges in claiming their justice done.
On coming to the ways by which the above obstacles can be sided, the state or the government as a whole must identify barriers of discrimination in the existing legislation that expressly bar or hinder the PwDs to participate in legal proceedings. Court proceedings must be reviewed so that it offers PwDs a user-friendly environment. Overall, the law must be brought in line with the provisions of CRPD, especially comply with the non-discriminatory and reasonable accommodations under Article 4 under the general obligation of CRPD. There are other legislations like the Kenya Marriage Act and Gabon’s Civil Code, which expressly prevent a person with an intellectual and psychological disability from marrying on an equal basis with others. Regarding the attitude and awareness, regular training and behavioural components must be inculcated into the professions of those who come in touch with PwDs like police, prosecutors, judges, etc. Allocate funds for educating PwDs as well as the general public about the lifestyle of the former and implement them properly. Investigating and inquiring the capacity and skill of the police and court staff must be improved. In consultation and cooperation with persons with disabilities, governments should consider developing a comprehensive disability access plan that covers communications with persons with disabilities in ways that are accessible to them, for example, sign language interpreters, Braille, and others. Coming to the physical barriers, the same can be countered by developing suitable infrastructure for the PwDs and introducing reasonable accommodation, facilities and also appropriate accessibility for PwDs in public buildings and institutions. And lastly, the economic barriers can be eradicated by bringing policies that render PwDs adequate support and employment opportunities for their standard living.
With that discussed, it is important to analyse the UN guidelines and determine how far it would navigate its member state to a discrimination-free society. Lastly, the above said barriers have been successfully addressed in these ten principles and it’s up to the members to make themselves align with the guidelines and also add more welfare measures for bringing up the PwDs on an equal basis with others. The guidelines cope up with the provision of CRPD and also with other instruments. Article 13 of CRPD specifies ensuring effective access to justice on an equal basis via the proper accommodation, the same has been given in principles 1, 2 and 3. Principles 4, 7 and 8 are similar to that of Article 5 of CRPD that enshrines equality before law and PwDs are entitled to equal protection and equal benefit of the law without any discrimination. Both Universal Declaration of Human Rights(UDHR) and International Covenant on Civil and Political Rights (ICCPR) emphasize the equal right to an effective remedy by competent national tribunals or courts for acts violating the Fundamental Rights granted by the constitution or by the laws.
Globally, 15% of the population is disabled, which is about 1 million people. In India, 2.4% of the male and 2% of female are disabled. The Constitution of India ordinarily deals with equality and discrimination under articles 14 to 16. Under Directive Principles of State Policy, Article 41 directs the state to legislate provisions for securing the right to work, education and public assistance in cases of disablement and others. ‘Relief of disabled & unemployment’ entry is listed in the state list under Schedule VII. Apart from the parent document, the Rights of persons with disability Act, 2016 was enacted to replace the Persons with disability (Equal opportunity, Protection of rights and full participation) Act, 1995. Besides defining PwD, the Act covers another term ‘Persons with Benchmark disability’ who are not less than 40% of the specified disability and not defined in measurable terms. By this new Act, the kinds of disability have been increased from 7 to 21. At par with Article 21-A, this enactment supplements the right to free education for children between 6-18 years with Benchmark disability. There is a department for the empowerment of PwD under the Ministry of Social Justice and Empowerment. Besides, there are seven National Institutes and seven Composite Regional Centres and also a National Handicapped Financial & Development corporation that economically assist the PwD community and uplift their standards.
As a conclusion, the PwD population, apart from NGOs and activists, needs representatives who origin from them and who is one among them, i.e., a differently-abled representative. They must carry forward their community in all walks of decision-making processes from Panchayat boards to the Rajya Sabha. They must be given a supported decision making power instead of a substituted one. Till now, the latter is being followed in which the guardians or parents or an abled MP or MLA represents them without fully understanding their struggles. Instead, the people who represent that population must be from themselves. Let’s hope for the best that the guidelines serve its purpose in the near future.
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