Disability Rights Convention: Opportunities for India’s NHRC

An encouraging recent development in the field of human rights was the adoption of the United Nations Convention on the Rights of Persons with Disabilities by the General Assembly on 13 December 2006. Opened for signature beginning on 30 March 2007, the Convention has garnered signatures from over 100 states and been ratified by five states as of early September 2007. The Convention requires 20 ratifications before it will come into force. With its legally binding provisions, the Convention will provide a plethora of tools for rights advocates once it enters into force. 

However, the rights of disabled persons, once pegged as primarily economic and social rights, then became subject to the comforting escape clause of “progressive realisation”—a legal doctrine that is too often used as reason not to take action to improve human rights implementation. This notion that economic and social rights need only be realised over a period of time subject to the limitations of a State’s resources finds its classical exposition in Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR): 

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means. 

The operative portions of this language from the ICESCR are picked up almost verbatim by Article 4(2) of the Disability Rights Convention. Such language is also replicated in domestic disability rights legislation such as India’s Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, which uses the phrase “within the limits of their economic capacity and development” no fewer than seven times in qualifying the obligations of India’s several layers of government to (1) detect and prevent disabilities; (2) provide incentives for affirmative action in the private sector; (3) effect a number of reasonable accommodations in public transportation, in roadways and at intersections, and in public buildings; and (4) establish programmes of rehabilitation and unemployment insurance. 

Of course it is necessary to acknowledge that certain measures called for by the Disability Rights Convention and India’s Disabilities Act will cost money to implement, but it must also be acknowledged that the various forms of “progressive realisation” clauses have been abused by those who do not rate the rights of persons with disabilities very highly on their list of priorities.  

Because Article 4(2) of the Disability Rights Convention risks making the rest of the Convention largely meaningless, it is vital that campaigns for the rights of disabled persons argue forcefully for a new doctrine—“progressive realisation” with bite. In this, national human rights institutions have a crucial advocacy and education role to play. 

The role of the Indian NHRC 

India’s National Human Rights Commission (NHRC) should be given credit for being conscious of disability rights issues from its inception, regularly mentioning conditions of persons with disabilities in its annual reports over the years. However, with the Disability Rights Convention galloping towards coming into force in the near future and with India’s Disabilities Act now more than a decade old, the NHRC should shift gears in the field of disability rights from awareness-raising and standard-setting to implementation and enforcement. The need for effective implementation of existing policies is pressing. For instance, the 2006 U.S. Department of State Country Report on Human Rights Practices cites a National Center for Promotion of Employment for Disabled People study that found that despite the three percent quota in public sector jobs, persons with disability only made up one percent of the public sector workforce in India. Even more troubling, more than 90 percent of the 2005-2006 government budget allocated for disability rights issues reportedly remained unspent. 

The NHRC could consider the following measures to promote and protect the rights of disabled persons in India: 

Firstly, the NHRC should join with civil society groups to ensure that the next census does not undercount persons with disability. Even before the next scheduled census, more modest surveys of disabilities in India, along the lines of those discussed at the United Nations Economic and Social Commission for Asia and the Pacific’s various Workshops for Improving Disability Statistics and Measurement, should be conducted to highlight the shortcomings of the previous census’ methodology.  

Secondly, the NHRC should not only join the campaign to have the Indian government ratify the Disability Rights Convention, but should also take advantage of the recent amendment to Section 2(f) of the Protection of Human Rights Act (PHRA), which expands the list of international human rights treaties to which the NHRC may refer. Thus, the NHRC should lobby to have the Government notify the Disability Rights Convention as an “International Covenant” for purposes of the PHRA. 

Thirdly, the NHRC should push for a different approach to the sometimes bizarre public sector job classification eligibility schemes touted by the Ministry of Social Justice and Empowerment. Not only do these classifications not take into account the continuum of ability among the population of persons with disability, but sometimes there does not even seem to be a rational relationship between the restrictions the ministry imposes and the actual demands of the job. A better approach would be a more flexible one involving an individualised assessment of each candidate and taking into account his or her unique skills and abilities in light of the actual duties expected on the job. 

Fourthly, it is simply unacceptable that no provision is made in India’s reservation schemes under the Disabilities Act for persons with mental disabilities. Mental disabilities may, in some cases, preclude persons from taking advantage from educational or employment opportunities. But once again, it must be emphasised that there is a broad continuum of mental disability—as there is among many human characteristics—and it is both untrue and unhelpful to paint all persons with mental disability as unfit for work or school. 

Fifthly, the NHRC must be more vocal and take the initiative in advocating for implementation of existing legislation on disability issues in India such as the 1995 Disabilities Act. A disability rights education publication the NHRC sponsored in 2006 noted that government authorities used resource limitation loopholes in the 1995 Act to “argue that they do not have the funds to provide admissible facilities for people with disabilities”. Some budgetary priorities are certainly the province of democratic politics as expressed through elections to legislatures and executive offices, but legitimate questions can and should be raised by the NHRC about government waste, corruption, and policies that may have regressive effects on human rights.  

In an era when India is experiencing high rates of economic growth and is investing significant sums of money in rebuilding its infrastructure, excuses about resource constraints are not very credible. For instance, the NHRC-sponsored 2006 publication on disability rights touts the accessibility of the Delhi metro rail system. But it fails to mention that, in all of the construction expanding that system and reshaping Delhi in time for the 2010 Commonwealth Games, very little attention is being paid to more mundane accessibility issues like incorporating curb cuts into newly built pavements or constructing accessible subways to allow differently abled pedestrians to avoid crossing increasingly congested and dangerous roads. 

On broader issues of accessibility, the NHRC would do well to follow the lead of organisations such as the National Center for Promotion of Employment for Disabled People (NCPEDP) and conduct accessibility audits of public places including public transportation, airports, streets, courts, schools, universities, film theatres, museums, historic sites, and restaurants. Such audits can be effective in stirring complacent bureaucracies into action especially when coupled with high profile pressure, such Professor Stephen Hawking’s trip to Delhi, which finally spurred the Archaeological Survey of India to improve accessibility to the capital’s monuments. 

A potent tool also relatively underused by the NHRC in recent years is resort to litigation, either as a party to public interest litigation and other types of suits or through filing amicus briefs in selected disability rights cases. With the exceedingly slow pace of litigation in India, it is fair to say that suits are no panacea, and certainly cannot substitute for political will. But lawsuits can be effective not just if the NHRC were to win the narrow issue being considered, but also if they can be a component of a broader advocacy campaign on behalf of persons with disabilities.

 Human Rights Features