Rights of persons with disabilities and of the aged

Part A: Persons with disabilities

1. The UN Declarations

The Declaration on the Rights of Mentally Retarded Persons, 1971 was the first UN instrument on disability. It said such persons have, to the maximum degree of feasibility, the same rights as other human beings. The terminology is now obsolete; it is cited for its history.

The Declaration on the Rights of Disabled Persons was adopted by the General Assembly on 9 December 1975 (resolution 3447 (XXX)). Its main points:

• A disabled person is any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual or social life, as a result of a deficiency, congenital or not, in physical or mental capabilities.
• Disabled persons enjoy all the rights in the Declaration without exception or distinction.
• They have the inherent right to respect for their human dignity and the same fundamental rights as fellow citizens of the same age, which implies first and foremost the right to a decent life, as normal and full as possible.
• The same civil and political rights as other persons.
• The right to measures designed to enable them to become as self-reliant as possible.
• The right to medical, psychological and functional treatment, rehabilitation, education, vocational training, counselling and placement services.
• The right to economic and social security and a decent level of living, and to secure and retain employment.
• To have their special needs taken into consideration at all stages of planning.
• To live with their families and take part in social and creative activities; if residence in a specialised establishment is necessary, conditions should be as close as possible to normal life.
• Protection against exploitation and treatment of a discriminatory, abusive or degrading nature; qualified legal aid; and organisations of disabled persons to be consulted.

The International Year of Disabled Persons (1981), the World Programme of Action (1982) and the Standard Rules on the Equalization of Opportunities (1993) followed. None was binding.

2. The Convention on the Rights of Persons with Disabilities, 2006

Adopted on 13 December 2006, in force on 3 May 2008. India ratified on 1 October 2007. The Convention adopts the social model: disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder full and effective participation on an equal basis with others (Preamble (e), Art. 1).

• Art. 2: definitions, including reasonable accommodation (necessary and appropriate modification not imposing a disproportionate burden); denial of reasonable accommodation is discrimination.
• Art. 3: general principles: dignity and autonomy, non-discrimination, full participation and inclusion, respect for difference, equality of opportunity, accessibility, equality between men and women, respect for the evolving capacities of children.
• Arts. 9, 12, 19, 24, 27: accessibility; equal recognition before the law and legal capacity on an equal basis; living independently and being included in the community; inclusive education; work and employment.
• Art. 34: the Committee on the Rights of Persons with Disabilities. An Optional Protocol allows individual communications; India has not accepted it.

3. Indian law

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was replaced by the Rights of Persons with Disabilities Act, 2016, enacted to give effect to the CRPD.

• Definitions. A “person with disability” is a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders full and effective participation in society equally with others (s. 2(s)). A “person with benchmark disability” has not less than forty per cent of a specified disability (s. 2(r)). The Schedule lists the specified disabilities, twenty-one in all, against seven under the 1995 Act.
• Equality and non-discrimination (s. 3).
• Education: government and aided higher education institutions to reserve not less than five per cent of seats for persons with benchmark disabilities (s. 32).
• Employment: not less than four per cent of vacancies in each group of posts in government establishments reserved for persons with benchmark disabilities (s. 34).
• Institutions: the Chief Commissioner for Persons with Disabilities (s. 74), now a deemed Member of the NHRC, and State Commissioners; Special Courts in each district (s. 84).

Cases.

• Jeeja Ghosh v. Union of India, 2016 INSC 412, (2016) 7 SCC 761: a passenger with cerebral palsy was made to leave an aircraft. The Court awarded compensation and held that the rights of persons with disabilities rest on dignity and equality, relying on the CRPD.
• Vikash Kumar v. Union Public Service Commission, 2021 INSC 78, (2021) 5 SCC 370: a candidate with writer’s cramp, not a benchmark disability, was entitled to a scribe; reasonable accommodation is a right under the 2016 Act.

Part B: The aged

4. International position

There is no binding UN convention on the rights of older persons. The rights come from general instruments (UDHR Art. 25(1): security in old age; ICESCR Art. 9: social security) and from soft law.

• Vienna International Plan of Action on Ageing, 1982, the first international instrument on ageing.
• UN Principles for Older Persons, 1991 (General Assembly resolution 46/91), in five groups: independence (food, water, shelter, health care, work, income, safe environments, living at home as long as possible); participation (in policy-making, sharing knowledge with younger generations, forming associations); care (family and community care, health care, social and legal services, institutional care with dignity); self-fulfilment (education, culture, recreation); dignity (living in dignity and security, free of exploitation and abuse, and being treated fairly regardless of age, sex, race or disability).
• 1 October was proclaimed the International Day of Older Persons (1990), and 1999 the International Year of Older Persons.
• Madrid International Plan of Action on Ageing, 2002, adopted at the Second World Assembly on Ageing, with three priority directions: older persons and development, health and well-being into old age, and enabling and supportive environments.
• Regional treaties: the Inter-American Convention on Protecting the Human Rights of Older Persons (2015) and the African Union Protocol on the Rights of Older Persons (2016).

5. Indian law

Constitution. Article 41 (public assistance in cases of old age) and Article 46 read with Article 21.

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

• A senior citizen is an Indian citizen who has attained the age of sixty (s. 2(h)).
• A senior citizen, including a parent, unable to maintain himself may claim maintenance from adult children or grandchildren, or, if childless, from a relative who will inherit his property (s. 4).
• Applications go to a Maintenance Tribunal constituted by the State (s. 7), which follows a summary procedure; the maximum maintenance is as prescribed by the State but not more than ten thousand rupees a month (s. 9).
• A transfer of property by a senior citizen on condition that the transferee will provide basic amenities and needs may be declared void by the Tribunal if the transferee fails to do so (s. 23).
• The State may establish old age homes (s. 19) and must ensure medical support (s. 20).
• Exposure and abandonment of a senior citizen by a person having his care is punishable with imprisonment up to three months or fine up to five thousand rupees, or both (s. 24).

Maintenance may also be claimed by parents under section 144 BNSS (section 125 CrPC), and under section 20 of the Hindu Adoptions and Maintenance Act, 1956. Policy: the National Policy on Older Persons, 1999, and pension schemes such as the Indira Gandhi National Old Age Pension Scheme.

In Dr. Ashwani Kumar v. Union of India, 2018 INSC 1201, (2019) 2 SCC 636, the Supreme Court held that the rights of elderly persons to dignity, shelter and health are part of Article 21, and directed the Union and the States to collect data on old age homes, ensure adequate pensions and geriatric care, and implement the 2007 Act.

How this is examined

For the 1975 Declaration note, section 1 is the answer, with a closing line on the CRPD and the 2016 Act. For “rights of aged persons”, section 4 (with the five groups of the 1991 Principles) and section 5 (the 2007 Act with section numbers, and Ashwani Kumar). An essay on vulnerable groups in general can use both parts in shortened form.