Activists fighting for the rights of the differently-abled community are celebrating the Supreme Court judgement on the Public Interest Litigation filed by Jeeja Ghosh, a cerebral palsy sufferer who was forcibly offloaded by Spice Jet in 2012.
The Supreme Court on May 12 awarded Ghosh Rs 10 lakh as damages for the discrimination against her.
While the Civil Aviation Rules mandate providing certain facilities for an airplane passenger, many Indian laws, mostly stuck in colonial times, discriminate against people with disabilities. It starts with the Constitution, which allows for disqualification of a Member of Parliament or Member of Legislative Assembly if he or she stands declared being of “unsound mind” by a court of law. Under many municipal and Panchayat systems, people suffering from tuberculosis and leprosy cannot contest elections.
“We are hoping that the 2012 Rights of Persons with Disabilities Bill, when enacted, will override all the discriminatory laws,” said Rajive Raturi, from Human Rights Law Network.
There are nearly 2,000 laws which discriminate against differently-abled persons. Here are five of these that affect routine tasks that we take for granted.
1. Opening a bank account
A person suffering from mental and physical disabilities – including "autism, cerebral palsy, mental retardation" – cannot open a bank account unless they have a guardian appointed by the authorities. Only after a guardianship certificate is issued can a differently-abled person open an account, according to a 2014 Reserve Bank of India circular.
The central bank clarified that it is not necessary for every mentally ill person to insist on a guardianship certificate, in response to submissions from organisations working with rights of persons with disabilities. Only if a bank official is convinced that a mentally ill person will not be able to enter a valid contract, the RBI clarified. The bar on people with other disabilities, however, remains.
The RBI, however, does have specific guidelines supporting visually challenged and wheelchair-bound people to use bank facilities, including providing ramps in bank branches and ATMs.
2. Voting
No person of “unsound mind” – declared so by a court – can vote in an election, as per the Representation of People’s Act.
In Tamil Nadu, for the first time, 100 mentally ill homeless women have registered to vote in Monday's Assembly elections. These women live in a shelter run by the non-governmental organisation called The Banyan.
Stating that mental health is not a permanent feature, the Chief Electoral Officer, Rajesh Lakhoni told The Hindu that anyone not declared by a court to be of unsound mind can vote.
Though the Persons with Disabilities Act, 1995 provides for a barrier-free environment, ramps for physically challenged people to vote, many voting booths are not accessible.
3. Registering marriage or staying married
Under some marriage laws, including the Special Marriage Act, a person of unsound mind is either deemed “incapable of giving valid consent” or “unfit for marriage and procreation of children". Even epileptic fits are considered grounds for not registering a marriage.
“I know of a case in Tamil Nadu where in a group marriage ceremony, the marriage registrar refused to register a marriage because he felt one of the parties was of unsound mind,” said Amba Salelkar, from Inclusive Planet Centre for Disability Law and Policy in Chennai.
A family court can also grant divorce on the same grounds. The discrimination extends to people suffering from mental disorders, including schizophrenia. Even those suffering from leprosy are covered in its ambit.
This clause is known to be misused against people whose partners do not want to stay in the marriage.
“The trouble in all these laws is that while there is provision to declare someone unfit, there is no provision to declare a person fit,” said Bhargavi Davar, from Bapu Trust for Research on Mind & Discourse, Pune.
4. Adopting children
A prospective adoptive parent should be physically, mentally and emotionally stable to adopt a child, under the Central Adoption Resource Authority guidelines.
“So if I reveal my mental illness to the authorities, I will not be allowed to adopt," said Salelkar. "Physically disabled people need support and there is a cost involved in it. But that does not mean you cannot have a child.”
5. To terminate or choose a pregnancy
The Medical Termination of Pregnancy Act allows for termination of pregnancy for a mentally ill person only with the consent of her guardian in writing. In the Act, a mentally ill person is on the same standing as a woman who is less than 18 years old. Since the guardian has all the powers, a mentally challenged person may not be allowed to even choose a pregnancy.
