[AI] Combat Law Article by Prasanna Kumar Pincha

Pamnani kanchanpamnani at hotmail.com
Wed May 14 01:51:20 EDT 2008

The ability debate

Quite a few debates are currently raging in the disability rights movement. Special schools or inclusive education, community based rehabilitation or institutionalised rehabilitation—these are some of the very pertinent questions raised and deliberated upon by Prasanna Kumar Pincha, the National Theme leader - UNCRPD, ActionAid India


For past three decades or so India

has seen a marked rise in disability

activism. We now have a

number of seasoned disability rights

activists doing a marvelous job in

taking the disability rights movement

forward. In a milieu of this ilk,

it is only natural that enormous

amount of soul searching, introspection,

and critical reflection is happening

within the disability sector on

vital issues relating to disability

movement, and disability work.

This brief write-up seeks to outline

some current debates together

with the author's perspective.


Of versus for

The huge ideological divide between

organisations of persons with disabilities

on one hand, and organisations

for persons with disabilities on the

other, is quite apparent. The advocates

of the former category of organisations

firmly uphold the view that

the leadership, control, and management

of disability related organisations

must rest with persons with disabilities.

They subscribe to the principals

which say-"only the wearer

knows where the shoe pinches", or

for that matter, "nothing about us,

without us". Clearly, this view

favours complete ownership and full

participation of the primary stakeholders

around a range of issues, in

the present case, persons with disabilities.

Such persons, they contend,

can think, speak, decide, and act for

themselves, and that they do not need

any mouthpiece albeit they most certainly

welcome the support and solidarity

of the larger civil society.


The opponents of this view, or, for

that matter, the supporters of the latter

category of organisations feel that

the time is not yet ripe for persons

with disabilities living in India to

organise as they still continue to live

in a state of utter disempowerment

and disarticulation. Hence, they see a

definite and distinct need of organizations,

which will speak for and on

behalf of persons with disabilities.

This view, clearly appears to be driven

more by feeling of philanthropy

and charity, and perhaps having

scant regard for the immense and

enormous potential, and capabilities

of persons with disabilities.


Author's perspective: The author

evidently, would vote for the former

category of organisations on account

of a multiplicity of very valid reasons.

In the first place, it goes without

saying, that every interest group

has a direct and first hand feel of

issues that affects the lives of people

belonging to that group. This

explains why we have organisations

of different interest groups, such as

those of women, of industrialists, of

traders, of workers, of farmers, etc.

Besides, all the excluded and disadvantaged

groups live in a state of disempowerment

and disarticulation;

and empowerment and articulation

comes with opportunity. Hence,

while the processes of empowerment

must go on, the struggle of these

groups cannot and need not wait till

everyone in a given interest group is

empowered. Besides, the achievements

of organisations of persons

with disabilities have been more progressive

and substantial. To the

author's way of thinking, organisations

for persons with disabilities,

should, over a period of time, get

converted into organisations of persons

with disabilities. This is not to

suggest that organisations of persons

with disabilities do not require solidarity

of the larger civil society. Such

solidarity is indispensable.


Cross vs Uni-disability

>From another perspective, we see

emergence of two categories of

organisations on disability rights.

The cross-disability organisations,

the first of the two categories, fight

for the rights of all persons with disabilities

regardless of the nature,

extent, or category of disability. The

upholders of this category of organisation

stress upon the commonality

of issues that stare persons with disabilities

in the face. These are generally

issues around discrimination,

exclusion, and access on an equal

basis with others. They underscore

the importance of guarding against

the disability rights movement getting

fragmented. They assert that

persons with disabilities suffer discrimination

and exclusion on the

basis of long-term physical, mental,

intellectual, and sensory impairments.


Contrary to this view, there are

others who are of the opinion that

each category of persons with disabilities

have issues specific to the

nature, extent, and category of disability

which do not often get adequately

and equally highlighted

through cross-disability organisations-

hence, the need for Uni-disability

organisations. They also tend to

argue that in cross-disability organisations,

there is a distinct danger of a

certain hierarchy of disabilities getting

created depending, inter-alia, on

the leadership of such organisations

in a given time. This may result in

some issues of some categories of

disabilities getting highlighted more

compared to some other equally

important and critical issues of some

other categories of disabilities.


Author's perspective: It is indeed

critical to ensure that that the disability

rights movement does not get

fragmented. It is also in the fitness of

things to recognise that there exists

huge commonality of interests and

issues around long-term impairment

based discrimination and exclusion.

Hence, emphasis should be on evolving

a common agenda through processes

of consultations and consensus.

This does not mean that the Unidisability

organisations should close

down. The fact of the matter is that

these two categories of organisations

can significantly compliment and

supplement each other, and can and

must coexist as mutually cohesive

entities. The idea is that the Uni-disability

organisations can bring the

expertise of experience of a particular

category of disability into cross-disability

organiszations thereby

strengthening the perspective of such

organisations on relevant issues.


Community vs institution

The seventies and eighties of the last

century saw the emergence of the

concept of Community Based

Rehabilitation as opposed to

Institution Based Rehabilitation. This

approach envisages, among other

things, community ownership of the

responsibility and obligation of taking

care of the all-round development

of persons with disabilities living

in a given community. It stresses

the need of making available to persons

with disabilities services at their

doorstep. The idea is to ensure that

persons with disabilities are able to

live independently within their own

communities. With the efflux of time,

Community Based Rehabilitation

has come to acquire a very strong

rights complexion with the result

that utmost emphasis is placed on

organising, mobilising, and empowering

persons with disabilities. This

approach is also favoured because

the cost of setting up disability specific

institutions is very prohibitive;

and, as such, institutions of this ilk

cannot be set up everywhere.

Institution based rehabilitation

however, envisages training, education,

etc, of persons with disabilities

in institutional settings where all the

facilities expertise pertaining to a

given disability are available. The

detractors of the CBR approach

argue that in developing countries in

particular, communities have neither

the requisite facilities nor the expertise

to appropriately train, educate,

and groom a person with disability

to lead a life of honour and dignity.

In any case, they maintain that expertise,

assistive aids and appliances,

etc. must come from institutions

only. Why should persons with disabilities

be made to remain confined

only within their communities? Why

shouldn't they be permitted to participate

in the affairs of the larger civil

society? The supporters of the IBR

model however, are heard emphasizing

the importance of bringing about

institutional reforms.


Author's perspective: We must

clearly understand that both the

approaches are complimentary,

rather than contradictory to each

other; and can be used to empower

and promote the well-being of persons

with disabilities. The CBR

approach does not intend to keep

persons with disabilities confined

within their communities when it

envisages that conditions be created

so that persons with disabilities are

able to live independently within

their own communities; on contrary,

it is an attempt to accommodate the

concerns of poor persons with disabilities

who do not have the necessary

wherewithal to go to so-called

special institutions. CBR also seeks to

mainstream persons with disabilities

in the life of the community and society.

Hence, both the approaches

should be seen as complimenting

each other.


Special Vs. inclusive schools

Broadly speaking, there exist two

schools of thought in respect of settings

in which education may be

imparted to children with disabilities.

Those favouring special school

system argue that it is only in special

settings that children with disabilities

can get quality education, adequate

attention and all required facilities;

and that too in an appropriate

atmosphere with a level playing field

and without feeling excluded in the

crowd of non-disabled children.

Such settings ensure that the children

with disabilities are able to keep pace

with the class unlike in the so-called

integrated/inclusive settings.

Contrary to the above view, the exponents

of integrated/inclusive settings

attack the special school system

vehemently on the ground that such

a system tends to ghettoize children

with disabilities. Strongly favouring

the idea of working towards creating

an inclusive, barrier-free, and rightsbased

society, they assert that a vast

majority of children with disabilities

can be accommodated within the

regular school settings, and hence, in

an inclusive environment with some

adaptations. In any event, a child

with a disability is essentially and

primarily a child first and a child

with a disability only next. Besides,

they argue that the cost of setting up

special schools is highly prohibitive.


Author's perspective: In the first

place, it is critical to recognise that

promoting inclusion in all spheres of

life is non-negotiable. Therefore,

inclusion in education, in order to be

effective and meaningful, must happen

at all levels of the entire education

process-viz., at the curriculum

development level, at the teaching

learning level, at the infrastructure

development level, and at the school

management level, at the examination

and evaluation etc. Piecemeal

inclusion is no inclusion. It has got to

be all-pervasive. Although inclusion

is primarily a goal, to my humble

way of thinking, it is also a process.

All the progressive international

instruments including the UN

Convention on The Rights of Persons

with Disabilities place an all-out

emphasis on participation of persons

with disabilities in all spheres of life;

and no such participation is possible

without inclusion. Inclusion is a precondition

to participation.


To my mind, inclusion must be an

all-pervasive phenomenon.

However, given the prevailing realities,

the so-called special schools will

continue to play an important role

for a long time to come. In my view,

these schools can and should promote

inclusion. Besides, our emphasis

must be on imparting quality education

to children with disabilities in

an appropriate environment. Let us

utilize the special schools in promoting

inclusion rather than making

such schools a casualty in the name

of inclusion. In my opinion inclusion

should be understood and defined in

proper perspective.


Reservation debate

While a sizeable chunk of people

favour the idea of reservations in jobs

and other concessions for persons

with disabilities, there is a section of

people who feel otherwise. People

belonging to this section contend that

since persons with disabilities claim

the rights and privileges of class I citizen,

they should not shy away from

assuming the responsibilities and

obligations that come with such citiwww.

zenship. However, those who favour

such reservation and concessions put

forth the view that persons with disabilities

are amongst groups which

have a long history of marginalisation

and exclusion necessitating

reservations and concessions etc

within the larger framework of affirmative

action. They further maintain

that such reservation and facilities

are being made available to many

other disadvantaged and

marginalised groups as well.


Author's perspective: Especially

in the context of the developing and

the underdeveloped nation, I feel, it

is imperative that such reservations

and facilities are made available to

persons with disabilities owing to a

long history of marginalisation and

exclusion. Such reservations and

facilities will have to continue for a

long time to come in order to ensure

a level playing field for persons with

disabilities. The context prompts us

to take note of the fact that some

groups like the scheduled caste and

the scheduled tribes are given the

benefit of reservation in jobs not

merely through statues but also

through constitutional provisions.

Persons with disabilities however,

came to enjoy these facilities through

the PWD Act, 1995, albeit reservation

in C and D categories of jobs at the

level of the central government and

also at the level of some state governments

did exist prior to that through

executive orders. The enactment of

the PWD act however ensures reservation

in all categories of jobs. The

principal of reasonable accommodation

should not deprive persons with

disabilities of the benefit of reservations

and concessions. The manner in

which this principle of reasonable

accommodation as envisaged in the

Americans with Disabilities Act, has

been interpreted by the American

Judiciary in favour of the employers

causes serious concern.


Jobs identification

Some people in the disability rights

movement favour the idea that persons

with disabilities cannot perform

all the jobs and that the bureaucrats

often are found groping in the dark as

to where to place a person with a disability.

Section 32 of the PWD Act 1995

also envisages provision for identification

of jobs. It also provides for periodic

updation and revision of the list

of identified jobs on a regular basis so

as to take note of the advancements

made in the field of science and technology

enabling persons with disabilities

to perform greater number of

jobs than in the past. The relevant

notification issued by the central government

also clearly states that the list

of jobs so identified by it, is only illustrative

and not exhaustive.

Contrary to the above view, there

is a section of people that subscribes

to the opinion that identification of

jobs is redundant, and is pernicious

inasmuch as it restricts the scope for

persons with disabilities. People

favouring this line of thinking further

assert that nobody, whether disabled

or non disabled is capable of

performing all the jobs under the

sun. If a person with a disability is

incompetent to handle a given job, he

anyways stands to be disqualified in

the interview itself. So, why restrict

the scope.


Author's perspective: To my

mind, the provision of identification

of jobs ideally may be done away

with. However, it may be retained in

a modified form in which case it

must clarified beyond an iota of

doubt that such a list is indebted only

to provide a certain guiding framework

to the bureaucrats and that it

does not have any restrictive implications.

However, this carries the

risk/danger that for all practical purposes

the bureaucrats may start

treating such a guiding document as

the gospel truth and thus refrain

from deviating from it no matter how

genuine a given case happens to be

which justifies such deviation.


Decision making mechanism

The deliberations of the ad-hoc committee

on the UN Convention for the

Rights of Persons with Disabilities

which later got adopted witnessed

an absorbing battle of wits on the

issue of legal capacity of persons

with disabilities. While everyone

agreed to recognise persons with disabilities

as persons before the law on

an equal basis with others, and also

their legal capacity to act, opinion

was divided in respect of persons

with certain specific categories of disabilities,

particularly persons with

Mental/Psychosocial disabilities.

Some argued that for persons with

certain specific categories of disabilities,

there should be provision of

substituted decision making mechanism

since they cannot act on their

own. Others however felt that for

such categories of persons, there

should be provision of supported

decision making mechanism and not

for substituted decision making

mechanism. Supported decision

making presupposes inherent capacity

in every individual. It also underscored

the principle of interdependence

amongst human beings.

Substituted decision making on the

other hand negates capacity and

forecloses all opportunities for a person's

capacity to evolve. For example,

today, I may need total support,

but over a period of time the need for

support may get reduced.


Author's perspective: The supported

decision making mechanism

finally won the day at the UN headquarters,

i.e. in the deliberations of

the said ad hoc committee and rightly

so. The fact of the matter is that all

of us whether disabled or not do

need support, for example one needs

the support of a doctor during sickness,

or for that matter of a legal

council to deal with a legal litigation.

It also highlights the fact that life on

earth is neither about dependence

nor independence; rather it is about


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