A Comparative Study of the
United Nations Standard Rules and
India's Persons With Disabilities Act 1995

by V.R.Kulkarni, National Coordinator, CBR Network

The Standard Rules on Equalization of Opportunities for Persons with Disabilities should have been the basic document for the Indian legislation on disability. But, unfortunately that did not happen. Some very vital provisions of the UN Rules have been either deliberately discarded or highly diluted versions are adopted for no obvious reasons. There are many such glaring omissions which will affect the quality of life of the people with disabilities. This brief study is an attempt to bring forth the inadequacies of the Act It is true the Amendment Committee appointed by Govt. of India has tried to some extent improve upon the original provisions. Still there are omissions galore.

It may be useful to start our comparative study from the provisions relating to Prevention and Early Detection of disabilities.

Rule 2 of the UN Rules, stipulate that state should provide for programmes run by multidisciplinary teams of professionals for early detection of disabilities and further stipulate that persons with disabilities, their families and the organisations working for them should be involved at planning, evaluation level and they further provide that local community workers, health workers etc. should be trained for this purpose. In other words, there is a clear and unmistakable reference to community based preventive action. Here, the focus is on people living is rural areas. If we compare this provision with those under Sec. 25 of the Act, which only speaks of promoting various methods of prevention by screening and providing training to the staff of primary health centres, we note the inadequacies. There is no provision either regarding the involvement of the disabled persons or the community in the process of evaluation or integrating the persons with disabilities in the health system.

The expressions like 'persons with disabilities, particularly infants and children, are provided with the same level of medical care within the same system as other members of society' etc. give very stron emphasis for integration. While interpreting these expressions, in the Indian context, they give rural focus also. Such emphasis is totally absent in our Act.

Now, coming to Education of the persons with disabilities, we notice more glaring anomalies. Education is so vital to human development that all developments depend on the quality and coverage of education. The people with disability could be integrated in the society only through a system of inclusive education. That being so, we can hardly exaggerate its importance in civilised society. In order to throw more light on the anomalies, it would be necessary to reproduce some of the provisions verbatim.

Rule 6 of the UN Rules reads as follows:

"States should recognise the principle of equal primary, secondary and tertiary educational opportunities for children, youth and adults with disabilities, in integrated settings. They should ensure that the education of persons with disabilities is an integral part of the educational system."

"General education authorities are responsible for the education of the persons with disabilities in integrated settings. Education for persons with disabilities should form an integral part of national educational planning, curriculum development and school organisation."

The more important provision is as follows.

"Integrated education and community based programmes should be seen as complementary approaches in providing cost-effective education and training for persons with disabilities. National community based programmes should encourage communities to use and develop their resources to provide local education to persons with disabilities."

This provision has been drafted keeping in view the conditions existing in countries like India where a vast majority of disabled people live in villages. An international organisation like the UNO is so much concerned about the people living in villages and strongly recommend community based programmes which are cost-effective. But, unfortunately till recently CBR was a taboo in Govt. circles in India. Perhaps this explains the total absence of rural focus.

Now compare these provisions of the UN Rules with those in our Act. Section 26 of the Act speak about the education of the children with disabilities upto the age of 18 years, in appropriate environment. In clause (c) of this provision, there is a vague and non-specific reference to Integrated Education. But there is no mention of community based program which is so important to support integrated education. People's participation is taken for granted, or it is not felt necessary at all. Perhaps, the presumption is that only experts would implement integrated education programs without community participation.

After making this brief (telegraphic) reference to integrated education the Act mentions about the special schools. Many details as to how special schools are to be equipped are given in these provision. Thus whole composition of the chapter on Education gives an impression that the children with disabilities would be kept outside the mainstream education and the children in rural areas will have no access to education for many more years.

Nobody undermines the importance of special schools, even in an Inclusive Education setup. But, at the same time, one should bear in mind that access to education to majority of diabled children particularly those in villages (nearly 75%) is only possible through mainstream schools. Why is the Act silent on this? Why is there no mention of community participation and community base programs?

What is more surprising and at the same time sad, is the fact that even the Amendment Committee has not done anything to rectify the omission in the Act. When the whole world is marching ahead from mere Integration to inclusion, the Act still talks of special schools. It is more than obvious that through special schools even today 1per cent of the children with disabilities would get education. At this stage, it is pertinent to mention that the World Conference at Salamanca, Spain adopted a declaration very akin to the provisions of UN Standard Rules and India is signatory to Salamanca Declaration in 1994.

At this juncture, it would be appropriate to mention about a grave problem concerning education of the children with disabilities, arising mainly due to lack of coordination between two Govt. departments despite there being a Coordination Committee at the level of Govt. of India and in all states. The special schools fall under the preview of the Ministry of Social Justice in Central Govt. and the Department of Social Welfare or some other department dealing disability matters. Education department is not at all concerned with the children with special needs. However, Integrated Education of Disabled Children [IEDC] comes under the Ministry of Human Resources Development in GOI and Education department in states. There is absolutely no mutual coordination and even understanding of the activities between the two. The information available shows that no state Govt. in country has prepared a systematic plan of action for the education of the disabled children. Since no single department of the Govt. owns responsibility of the education of children with special needs, it is the responsibility of none. This situation continues even today despite there being a special legislation since four long years. It is important to bear in mind that the law pertaining to access to education contains a self-imposed mandatory provision.

Employment is another very important aspect of life and at the same time it is very closely linked to education. Rule-7 of the UN Standard Rules is not only very elaborate but also takes into consideration the realities of the present day labour market.

It would be interesting to read the statement of objective found at the outset of Rule 7

"States should recognise the principle that persons with disabilities must be empowered to exercise their human rights, particularly in the field of employment. In both rural and urban areas they must have equal opportunities for productive and gainful employment in labour market."

This statement has been further elaborated by stating that the laws and regulations in the employment field must not discriminate and raise obstacles. The Rules also stipulate that states should actively support the integration of disabled persons into open employment. This is a very significant provision as it underscores the importance of integration of the persons with disabilities in the mainstream society on the one hand and on other hand it highlights the importance of mainstream or open employment. We are all aware that employment opportunities in the Govt. sector are very limited and the disabled will have to find jobs in large numbers only in the private sector where they have to compete with non-disabled on equal footing.

The ACT speaks of classification of jobs in Govt departments, policy on job reservation, setting up of employment exchanges and elaborate procedure for notifying vacancies etc. In fact most part of chapter VI deals with jobs in Govt sector. There is hardly any reference to open market employment and how private sector should be made equally responsible for the persons with disabilities. How the private enterprises would be encouraged for employing the disabled persons. Vocation training and technical education is a must to prepare the disabled persons for open job market. No such provisions could be seen here. On the contrary, over importance has been given to Govt jobs which are extremely small compared to the number of persons to employed. This is nothing but typical hangover of colonial thinking.

Rule-3 of the Rules deals with Rehabilitation and the goal set out is that rehabilitation services to persons with disabilities should enable them to reach and sustain their optimum level of independence and functioning. Further, it states that there should be national rehabilitation programmes for all groups of persons with disabilities. What is more important is that such programmes of rehabilitation should be based on individual needs and disabled persons and their families should be able to participate in the design and organisation of services. The Rule further contemplates that all rehabilitation services should be available in the local community where the persons with disabilities live. This is nothing short of an ideal CBR.

We do not find a parallel of this kind in the ACT. Only in chapter XIII, under sub-section of Sec.66 there is vague reference to consultation with non-govt. all organisations while formulating rehabilitation policies.

Rules 4 and 5 deal with support services and accessibility. These rules are so meticulously drafted that they contain all the details regarding production, distribution and maintenance of assistive devices and also include financial accessibility to acquire the devices. With a view to highlight the thoroughness with which these provisions are drafted, I am tempted to quote sub-rule 5 of Rule-4. 'In rehabilitation programmes for provisions of assistive devices and equipment, States should consider the special requirements of girls and boys with disabilities concerning the design, durability and age-appropriateness of assistive devices and equipment.

While speaking of Accessibility the Rule state that it should be perceived in the overall context of equalisation of opportunities and any plan of action to provide accessibility should include physical access to built environment and also access to information and communication.

In the Persons With Disabilities Act we notice some such provisions in two separate chapters, namely, Affirmative Action and Non-discrimination. But soon we will be disappointed to see very non-specific provisions and a desperate attempt to run away from shouldering responsibility. The provisions dealing with access to physical environment employs an escape clause, within the limits of economic capacity and development. It is common knowledge that these escape clauses are never used for the advantage of the people concerned but they are always used to cover up inaction \ nonperformance.

Thus, it is seen that the true spirit of the UN Standard Rules has been overlooked in the Act. Another very interesting thing about the Act is that the Preamble mentions only Beijing Proclamation of 1992. Sadly the Act lacks even the spirit of Beijing Proclamation. The Directive Principles of our own constitution, particularly Article 46, really provides constitutional sanction for a legislation of this kind. Surprisingly the relevant constitutional provision has not been cited in the Preamble to the Act. Is it deliberate only to escape from implementing the Act and also possible writs from Courts? It is learnt that legislation based on International conventions will have no binding force on the central or provincial governments.