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The Disabilities Act Is Progressive But Leaves Out Those With Invisible Disabilities

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The Rights of Persons with Disabilities Act, 2016 replaced the Persons with Disabilities Act, 1995 to comply with the United Nations Convention on the Rights of Persons with Disabilities.

While the 2016 act contains progressive changes, this article underlines the need for special provisions to assist persons with ‘mental illnesses’.

The intent of the 2016 Act is to reframe ‘disability’ as a human rights issue. This act stresses the principles of non-discrimination, full and effective participation and inclusion in society, equality of opportunity, accessibility and respect for the evolving capacities of children with disabilities.

The old act listed seven disabilities and spelled out the State’s responsibility to uphold the rights of and provide rehabilitation to persons with disability (PWD). The 2016 Act expanded the list to include 21 disabilities stating that, “person with disability means a person with long-term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.” This definition places people suffering from mental illness under the umbrella term “person with disability”.

Mental illness” is defined as “a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behaviour, and capacity to recognize reality or ability to meet the ordinary demands of life but does not include retardation which is a condition of arrested or incomplete development of mind of a person, especially characterized by subnormality of intelligence.”

The 2016 Act makes special provisions for “persons with benchmark disabilities”, who are defined as persons with at least 40% of a specified disability. A person with a specified disability may apply for a certificate under Section 58(2) and the certifying authority will assess the extent of the disability. This certificate, valid across the country, enables the PWD to access benefits, some of which are discussed below.

PWDs are protected from “torture, cruel, inhuman or degrading treatment”. For example, the legislation includes a compulsory procedure that protects PWDs where they are the subject of research. Importantly, a PWD’s access to voting rights is also ensured, and sections 32-35 provide for reservation in higher education institutions.

Where a PWD lacks capacity to take “legally binding decisions”, further support may be provided by appointment of a “limited guardian”. Full guardianship is granted following a needs review by the Court.

There are stringent penalties for committing atrocities against PWDs punishable with imprisonment of six months extendable to five years and with a fine. Fraudulently availing benefits is also punishable. To streamline the system, Special Courts have been established in each district. The offences covered under the 2016 act include:

  1. Intentionally insulting/intimidating with intent to humiliate within public view;
  2. Assaulting with intent to dishonour or outrage the modesty of a woman with a disability;
  3. Knowingly denying food or fluids to a PWD they are in charge of;
  4. Sexually exploiting a woman/child with disability;
  5. Voluntarily injuring/damaging /interfering with the use of any limb/sense/any supporting device of a PWD; and
  6. Performing/conducting/directing any medical procedure on a woman which causes or can lead to termination of pregnancy, without her or her guardian’s express consent, and without the opinion of a registered medical practitioner.

‘Mental illness’, by its nature, can remain invisible and go undetected. Mentally ill persons often are not aware of the actual nature of their illness and depend on their families for assistance. This difference between ‘mental illness’ and other disabilities needs highlighting so that provisions can be made in a more sensitive way.

For instance, under Section 38, a PWD can apply for ‘high support’, meaning “an intensive support, physical, psychological and otherwise, which may be required by a person with benchmark disability for daily activities, to take independent and informed decision to access facilities and participating in all areas of life including education, employment, family and community life and treatment and therapy.”

There is an assumption that the person suffering from a disability, whether mental or physical, will either have the capacity to act for himself or has someone to advocate on their behalf. This is not always the case.

While the 2016 Act provides many reassurances, brings domestic law in consonance with international standards, and is a huge step forward, its implementation should be monitored carefully to ensure that the needs of persons suffering from mental health issues are being comprehensively met.

iProbono hopes to empower vulnerable individuals by sharing content that raises awareness around legislation, case law and constitutional provisions available to them. The article has been written by Iti Pandey, iProbono’s Program Officer.

You can follow us on Facebook and Twitter. Let us know your thoughts about this campaign using #KnowTheLaw. 

You must be to comment.
  1. lalita kaushik

    Respected Mam

    I am a hearing handicapped candidate and having Government Certificate Of Physically Handicapped of greater than 40 % disability. I want to ask you that-

    1- can I apply as a General Candidate in Government jobs without taking benifit of reservation? I can perform my tasks with the help of a hearing aid So can I apply as a General Candidate without declaring my disability?

    2- Will it be considered as hiding of facts in recruitment process?

    3- If I apply as Gerneral candidate my candidature will be cancelled?

    Kindly answer me appropriately as early as possible please.I am in need.

    Thanking you
    Yours faithfully

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Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

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MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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