Ashok Agarwal, a lawyer with Social Jurist - a legal advocacy group - talks to Madhu Mishra Jassal about the use of powerful legislation as a weapon to create the enforceable rights-based inclusion of disabled people.
Why was Social Jurist formed?
Social Jurist is a legal advocacy group of like-minded people who represent cases of marginalised people. Though it is not a registered body, it raises issues concerning underprivileged people in society in courts of law. The organisation is continuously extending its wing through the lawyers' union.
As the movement progressed, many NGOs, bureaucrats, representatives from industrial associations and chambers, media people, doctors, chartered accountants, teachers, parents associations, bureaucrats, social activists and housewives came in to join hands with me to promote the cause. The basic intention is to involve people from various section of the community and civil society organisations to advocate this cause and provide justice to those who have been denied it. Efforts are also made to sensitise the masses.
The objective is not to position ourselves as brand ambassadors of a social cause, but to promote an individualistic involvement of those aggrieved.
How did you start work on cases related to education and disability?
Disability as an issue came to my mind after witnessing the lack of facilities in schools. During my visits to bastis, and interaction with teachers, students and activists, I came to know about the plight of education of disabled children. Therefore I felt that pursuing such litigation cases would be one way of ending such discrimination.
Social Jurist has worked as a catalyst in the disability movement. How did you go about it?
We took up first case on disability in 2000, in which a 60 per cent paralytic girl was denied admission in a public school because she was over-age. The judgment brought an end to denial of admission for disabled students even if they were over-age.
Another case we took up was when Delhi University denied admission to a student because he did not have a disability certificate. At that time, less than 5 hospitals issued disability certificates. In the judgment the court directed that all the government hospitals should be authorised to issue disability certificates. As a result of this, a campaign to issue disability certificates was conducted in various hospitals in association with NGOs. Doctors were appointed in the University of Delhi.
We have submitted many more cases in the court related to the denial of admission to children with disabilities. In some instances, the admission was denied merely on the basis of unavailability of birth certificate.
We have managed to get some landmark judgement so far, through which we seek to promote and protect the rights of disabled people, who have been more marginalised than others.
What is the role of the government in implementing the Persons with Disability Act? Do you think the government is responsive towards the concept of inclusive education for disabled children?
Governments need to enact legislation, with enforcement mechanisms, to mandate education for all children, including children with disabilities.
In a case recently represented, the documentary evidence revealed that out of roughly 2 lakh disabled children in Delhi, only about 800 are in regular schools. The major reason cited for this disproportion was that there are not enough schools or trained teachers to meet their need. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, states that government should provide training for teachers in special education. Despite this, nothing is being done.
The exclusion of children and youth with disabilities from education results in their exclusion from opportunities for further development, particularly diminishing their access to vocational training, employment, income generation and business development. Failure to access education and training prevents the achievement of economic and social independence and increases vulnerability to poverty in what can become a self-perpetuating, inter-generational cycle.
Is education only for the elite or urban disabled?
Currently, education for children and youth with disabilities is predominantly provided in special schools in urban areas and is available to only a limited numbers of children. Government should ensure that inclusive education, with access to education in the regular local neighborhood or community school, provides the best opportunity for the majority of children and youth with disabilities to receive education, including those in rural areas.
Despite the Act that was passed in 1995, disabled students are still not getting the benefits earmarked for them. NCPEDP's Education Audit too reveals this. What is being done to rectify this?
The Persons with Disabilities Act promises creation of facilities in almost
all areas pertaining to disability. But what does the Act say? That 'appropriate
authorities' should be directed to 'endeavour' or 'promote' integration (of
persons with disabilities) 'within the limits of their economic capacity and
Reactions to the provisions in the Act range from complete acceptance to total rejection. Those endorsing the Act do not feel the need to analyse its contents because they believe it is their efforts that finally culminate in legislation for disabled people.
The critics of the Act are concerned about the lack of an implementation mechanism. It does not override any existing laws. Positive rights are not fiscally supported. Constitutional provisions without penal sanction negate the advantage of enforcement, and make the usefulness of the legislative instrument questionable.
To the stakeholders, disability legislation in India seems progressive in spirit but lacking in the strength to progress.
On the other hand, strong legislation might remove legal barriers to participation but cannot ensure removal of social barriers against people with disabilities. The use of powerful legislation has the advantage of creating an enforceable right of inclusion with participation. Thus the need is to sensitise general public on the issue, for which best tool is information and individual effort.
What else would make a difference?
This brings us back to the social attitude towards disability. Most Indians view disability as matter of charity rather than a human rights issue. The charity perspective, while ensuring care and tolerance, promotes dependency among the disabled. The charity perspective also reinforces the belief that decisions regarding the nature, amount and recipient of charity should lie with the donor. On the other hand, disabled people and their families must accept their hardship with fortitude, as it is a part of their karma.
The need is to strengthen the disability movement and empower people with disabilities. In a country like India, it means that the various departments of the government, such as education, health, transport, building works and employment, work in conjunction. It also means that the world's largest democracy must listen to the voice of people who have been on the margins, and bring them into the mainstream. Thus, full inclusion of disabled people would mean removing the physical barriers of participation.
For organisations that work with the disabled, it means that they must abandon the agenda that promotes a specific disability or a group of disabled people, and develop an advocacy programme that sensitises the community and the administration to the needs of all people with disabilities.
The Ministry of Education needs to work in partnership with NGOs at the national and local level to conduct public awareness campaigns to inform families of disabled children. On the other hand, schools and local communities should also disseminate information on the rights of children with disabilities, so that they can participate in education at all levels, both in urban and rural areas.
What you are saying involves a complete change in social thought processes, and that is never easy.
Though a lot must be done before such social beliefs change, the government can begin by removing disability rehabilitation from the auspices of the Ministry of Social Justice and Empowerment, and placing it under the Ministry of Human Resource Development.
Often, the government department selected for implementing a scheme is not notified of its details and its [the Ministry's] role in it. On the other hand, when the department concerned is notified, the officers assume a patronising attitude towards potential beneficiaries and delay the process of implementation. Progressive legislations, schemes and provisions exist at the policy level but, at the ground level, the disabled continue to be neglected and marginalised. The onus of care is on the family rather than the community.
Various schemes have been offered for the welfare of the disabled population, but lack of adequate information about them ensures that stakeholders - disabled people, their families and organisations that work for them - are either unaware or cannot avail of the provisions therein. At times the process of availing the benefits of schemes is so cumbersome and time-consuming that most people prefer to by-pass them.
Answers to these fundamental issues are not ready-to-be-served. Answers to these are sought in the precedent practices, which would be evident in their contextually defined outcomes - whether successful or otherwise.
So the debate is not about what is right or wrong. Instead, analyse what has worked out so far and why, and continue to fight for what has notů