Unit V: Constitutional & Legal Provisions as applicable to Persons with ASD

1. International provisions as applicable to individuals with ASD

2. Constitutional and legal provisions as applicable to individuals with ASD

3. Implications of the UNCRPD

4. Role of the National Trust

5. Role of the RCI

 

 

 

 

1. International provisions as applicable to individuals with ASD

WHO Resolution on autism spectrum disorders (WHA67.8)

In May 2014, the Sixty-seventh World Health Assembly adopted a resolution entitled "Comprehensive and coordinated efforts for the management of autism spectrum disorders (ASD)," which was supported by more than 60 countries.

The resolution urges WHO to collaborate with Member States and partner agencies to strengthen national capacities to address ASD and other developmental disabilities.

WHO response

WHO and partners recognize the need to strengthen countries' abilities to promote the optimal health and well-being of all people with autism.

WHO's efforts focus on:

The Autism Society believes in the full entitlement of human rights for people with autism, including the following:
 Individuals with autism shall be treated with dignity and respect for their individual autonomy in making their own choices and decisions as it relates to their basic needs.
 Individuals with autism shall have the full benefit of legislation, policies and laws that protect their right to live without discrimination and vigorously promote full social, economic and cultural inclusion.
 Individuals with autism, and their representative organizations, shall be actively involved and in consultation with the development and implementation of legislation and policies, and in other decision-making processes concerning issues relating to persons with autism.
 All individuals with autism are recognized as equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law, including equal access to effective legal protection.
 Children with autism shall enjoy the full array of human rights and freedoms on an equal basis with other children, with the best interest of the child being the primary consideration and with the right to express their views freely on all matters affecting them. Their views must be given due weight in accordance with their age and maturity, on an equal basis with other children, and they must be provided with disability- and age-appropriate assistance to realize that right.
 Individuals with autism should be afforded the right to choose where they live, including the right to live independently and participate fully in all aspects of life. Appropriate measures will ensure access, on an equal basis with others, to the physical environment, to transportation, to information and communication, including information and communication technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. Persons with autism shall have the opportunity to choose with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement.
 Every individual with autism has the inherent right to life.
 No individual with autism shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
 Individuals with autism shall be protected, both within and outside the home, from all forms of exploitation, violence and abuse, including with respect to gender identity.
 Individuals with autism should have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community.

International Human Rights: UN Charter:

The charter of the United Nations of 1945 is the foundational treaty of the United Nations, an intergovernmental organization. Article 55 says that With a view to the creation of conditions of stability and well being which are necessary for the peaceful and friendly relations among nations based on respect for the principle of equal rights and self determination of people's, the United Nations s shall promote:
a. Higher standard of living , full employment and conditions of economic and social progress and development;
b. solutions of international economic, social, health, and related problems and international cultural and educational cooperation
c. Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

Declaration On The Rights of Disabled Persons:

The Declaration of the Rights of Disabled persons was a declaration of the General Assembly of the United Nations made on 9 Dec 1975. It is the 3447th resolution made by by the Assembly.

The disabled person shall enjoy all rights contained in this declaration without distinction or discrimination. The disabled persons have inherent rights to respect for their human dignity and irrespective of the origin, nature and seriousness of their handicaps and disabilities, have same Fundamental Rights. Disabled persons have the same civil and political rights as other human beings. Disabled persons are entitled to the measures designed to enable them to become as self-reliant as possible. Disabled persons have the right to economic and social security, including the right, according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions. Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. Disabled persons shall be protected against all exploitation and treatment of a discriminatory, abusive or degrading nature.

Provisions of the Declaration include:
1) The definition of " disabled person" as anyone who cannot ensure the necessities of a normal individual and or social life as a result of deficiency in physical or mental capabilities.

2) A non discrimination clause applying the Rights to all disabled persons regardless of " race , colour, sex, language, religion, political or other opinions , national or social origin , state of wealth, birth " or other situation

3) Anna statement regarding disabled persons right to respect for their human dignity.

The Convention On The Rights of Persons With Disabilities:

The Convention on the Rights of Disabilities is an international human rights treaty of the United Nations intended to protect the Rights and dignity of persons with disabilities. Parties to the convention are required to promote , protect and ensure the full enjoyment of human rights by persons with disabilities and ensure that they enjoy full equality under the law.

In the charter of the United Nations it is proclaimed that the inherent dignity and worth and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Similarly, the United Nations, in the universal declaration of human rights and in the International covenants on Economic, Social and cultural rights. It is supposed that the convention would make a significant contribution to redressing the profound social disadvantage of persons with disabilities and promote their participation in the civil, political, economic, and social and cultural spheres with equal opportunities, in both developing and developed countries. The convention on the Rights of Persons with disabilities deals with matters such as, general principles on the basis of which the rights of the disabled persons are to be promoted and protected, the obligations that have been undertaken by the State parties to adopt measures. The protocol has been added to the present convention authorizing the Committee on the Peron with Disabilities to receive and consider communications from or on behalf of individuals or groups of individuals, who claim to be victims of a violation by a State party of the provisions of the present convention.

 

2. Constitutional and legal provisions as applicable to individuals with ASD

1. Prohibition of Discrimination:
Article 15 is a manifestation of Right to Equality under article 14, as it enshrines a specific dimension of the principles of equality relating to discrimination by state or various grounds . Under article 15 the protection extends only to citizens , unlike article 14 which protects any personal . Thus in application article 15 protects from discriminatory state activities but the ambit of article 15 is narrower than that of article 14.
Article 15 of the Indian constitution deals with prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.

It runs as follows:
Article 15(2) says, no no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disabilities liability restriction or condition with regard to :
(a) Access to shops, public restaurants, hotels and places of public entertainment; or
(b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of the state funds dedicated to the use of the general public.

Equity In Social, Economics And Cultural Rights:
Article 25 of the CRDP recognizes the right of a person with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity , state parties shall ensure an inclusive education system at all levels and lifelong learning. They considered constitution to grant education to children with disabilities if they explicitly guarantee the right to education , the right to free education, or the right to compulsory education to children with disabilities or prohibit discrimination in education on the basis if disability. Globally only 28% of the countries provide some type of constitutional guarantee of educational rights or the children with disabilities.

3. Right To Work:
Article 27 of the CRDP instructs states to recognizes the right of persons with disabilities to work, on an equal basis with others; this includes the rights to opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.

Right To Liberty:
Article 14 of the CRPD instructs state parties to guarantee people with disabilities the right to liberty and security of person. We considered the right to liberty to be guaranteed to persons with disabilities if they were explicitly granted the right to freedom or liberty. Globally, only 9% of the constitution explicitly guarantee the right to liberty to persons with disabilities. However 19% of the constitution specifies that the right to liberty can be denied to persons with the mental health condition.

Right To Freedom of Expression:
In article 21, the CRPD states that to take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion include the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communications of their choice.

Rights of Disabled Persons In India:
Persons with disabilities are one of the most neglected sections of our nation. This is due to the sheer indifference of the society which subjects such people to disapproval and antipathy. Such people have several rights under various Indian laws as well as UN conventions that are followed in India. Under section 2(i) of Persons with Disabilities Act, 1995,"disability" includes blindness, low vision, leprosy cured, hearing impairment, locomotor disability, mental retardation and mental illness.

Disability Certificate: It is the most basic document that a disabled person should possess in order to avail certain benefits and concessions. The State Medical Boards established under the State governments can issue a disability certificate to any person with more than 40% disability.

Disability Pension: People who are above 18 years of age, suffering with more than 80% disability and are living below the poverty line are entitled to the disability pension under the Indira Gandhi National Disability Pension Scheme. Various NGOs are dedicated to this because i.e. they help such persons with disabilities to get their disability pension.
Employment: In government jobs, 3% of the seats are reserved for persons with disabilities.

Income Tax Concession: Under sections 80DD and 80U of Income Tax Act, 1961, persons with disabilities are also entitled to certain income tax concessions.

Person With Disabilities Act 1995

The Persons with Disabilities Act , 1995 had come into enforcement on Feb 7, 1996. It is a significant step which ensures equal opportunities for the people with disabilities and their full participation in the nation building . The Act provides for both the preventive and promotional aspects of rehabilitation like education , employment and vocational training, reservation , research and manpower development and rehabilitation of persons with disability , unemployment allowance for the disabled persons.

Main Provisions of the Act:
1) Prevention and Early Detection of Disabilities
2) Education
3) Employment
4) Non discrimination
5) Social Security
6 ) Research and manpower development
7) Grievance Redress In Jared Abiding v. Union of India the supreme Court bearing in mind the discomfort and harassment suffering by a person of locomotor so disability would face while travelling by train particularly to far off places issued directions to the Indian Airlines to grant persons suffering from locomotor so disability to the extent of 80%.

In National Federation of blind v . UPSC The supreme Court held that , UPSC may be directed to allow blind persons for appearing the examinations for Indian administrative and allied Services.

In Government of NCT of Delhi v. Bharath Lalmeena The Delhi High court held that people with disabilities can be appointed as physical education teachers provided they have passed the qualifying examination undergone the requisite training.

Policies In India:
National policy for persons with disabilities, 2006 . The Government of India formulated the national Policy for persons with disabilities in Feb 2006 which deals with the physical , educational and economic rehabilitation of persons with disabilities.

The National Policy recognise the Persons with Disabilities are valuable human resources for the country and seeks to create an environment that provides them equal opportunities, protection of their rights and full participation in society . Some of the aspects which the policy focuses on are:
1) Prevention of Disabilities 2) Rehabilitation Measures 3) Women with disabilities 4) Children with disabilities

Disability refers to the disadvantage or restrictions of activity caused by the way society is organised which takes little or no account if people who have physical , sensory or mental impairments . Disability is an unfortunate part od human life which can effect not only the natural way of a living but also despair component strength and power . The Government needs to launch more social security schemes for disabled sections and generate more employment opportunities for them . Several schemes and benefits conference on the disabled persons has come up as relief and has successfully served to provide equal opportunities to the disabled section.

 

3. Implications of the UNCRPD

The UN Convention on the Rights of Persons with Disabilities is one of the first human rights Conventions of this century. It guarantees all human rights to all persons with disabilities.

The convention developed with extensive participation and inclusion of stakeholders. Disabled People's Organisation enjoyed equal rights of participation along with government Representatives.

The Convention is a reflection of the readiness of the international community to recognize that disability is a human rights issue. Till the year 2006, disability issue was not even considered a 'human rights issue'. But disability (advocacy) movement across the world, brought about the shift.

The Convention breaks way from usual practices. The Convention is unique since the primary stakeholders (people with disabilities) were central, fundamental to the formulation of the Convention. The Convention specially focuses on disabled women and children.

The Convention is guided by core principles that include,

    Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons

    Non-discrimination

    Full and effective participation and inclusion in society

    Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity

    Equality of opportunity

    Accessibility

    Equality between men and women.

    Respect for evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

 

4. Role of the National Trust

The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities was constituted by the Central Government as a legal entity. This was set up in the year 2000. The objectives of the Trust is to enable and empower persons with disability, facilitate support to registered organizations, deal with problems of disabled persons who do not have family support, promote measures for their care and protection in the event of loss    of parents and guardians, evolve a procedure for appointment of guardians and trustees so that equal opportunities, protection of rights and full participation of such persons is ensured. The National Trust has several schemes and programmes available for persons with autism and their families. 

The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act was passed by Parliament in 1999. This act covers the following disability areas and is defined by the National Trust as follows:

Objectives of the Trust:

The objectives of the National Trust are:

 

5. Role of the RCI

The Rehabilitation Council of India (RCI) set up as a registered society in 1986, is the apex body set up under an Act of Parliament. The Act was amended in 2000 to make it more broadbased. The main purpose of the Council is to regulate training programmes and courses targeted at disabled, disadvantaged, and special education requirement communities. As per the Act, unqualifies persons delivering such services would be dealt with strongly.

 

RCI is the only statutory council in India that is required to maintain the Central Rehabilitation Register which mainly documents details of all qualified professionals who operate and deliver training and educational programmes for the targeted communities. 

 

Objectives of RCI

As per RCI, the following categories of professionals can apply for RCI's accreditation process. 

Training Courses Under RCI

One of the main functions of the Council is to  standardize the training courses for Professionals for ensuring quality services to the people with disabilities. The Council keeps on modifying and revising the existing syllabus and adopt new training programmes incorporating new developments.

 

The Council has standardized 58 Long Term/ Short Term Training Courses, which include 04 Courses developed during the current year, with the help of respective Expert Committees constituted by the Council.