Rights of Prisoners with Disabilities

The rights of prisoners with disabilities

Kalpana Kannabiran

Where prison facilities are not equipped to deal with the specific needs of persons with disabilities, arrest and detention in custody should be a measure of last resort

We have a slew of cases around prisoners’ rights that emphasise their right to dignity and their right against cruel and degrading punishment, which have been understood to violate the right to life, guaranteed by Article 21 of the Indian Constitution. In complying with the standards set out in constitutional jurisprudence on this matter, the offence for which the person has been apprehended or convicted is immaterial. The standard is clear. No person shall be subjected to degrading, inhuman or cruel punishment that is violative of human dignity; the duty of care to be exercised in this matter during pre-trial custody is of a much higher order. These are standards applicable to all custodial situations and to all persons, irrespective of caste, sex, race, religion, or place of birth.

Treatment in custody

The Veena Sethi case in the early 1980s brought to light the treatment of prisoners with mental illnesses and their prolonged incarceration for periods ranging from 16 to 30 years in custody. This is far in excess of sentences given to them in most of these cases, without bringing them any substantive relief beyond release from illegal custody and transport and food expenses till they reached home. That was long before there was a consciousness or political articulation of the rights of persons with disabilities, which, importantly today, includes civil and political rights for prisoners with disabilities.

We have seen some reports on the arrest of Dr. G.N. Saibaba and the conditions under which he is being held in custody. The fact that needs close and urgent examination here is not whether he has Maoist “links” or whether he is a “sympathiser” or even whether a university professor can be harassed in this manner (although we must separate his troubles in the university from his treatment by the officers of the criminal justice system.) What needs our immediate attention is even more fundamental: as a person with disabilities who requires constant assistance and support, what are the standard minimum rules that must temper the decision to take him into custody, in order that the treatment meted out to him is not construed as cruel, degrading and inhuman?

It would be useful for the authorities who have taken Dr. Saibaba into custody to be informed of India’s commitment to the UN Convention on the Rights of Persons with Disabilities (UNCRPD). Article 4(d) enjoins States Parties “to refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention.” What are the specific protections for persons with disabilities in relation to state custody? Article 15(1) of the UNCRPD is immediately relevant: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 15(2) of the Convention places an obligation on the state to protect persons with disabilities from cruel degrading or inhuman treatment and punishment. It says, “States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”

The norm of substantive equality, well established through constitutional jurisprudence in India, speaks of the principle of equality that necessarily includes special treatment for persons who are vulnerable. The denial of special provisions, appropriate assistance and specialised health care access to a person with disabilities in custody, who uses a wheelchair and has special health care needs arising from chronic illness, comes firmly within the meaning of degrading, inhuman and cruel treatment in derogation of the state’s obligation under the UNCRPD.

Particularly where a prisoner with disability requires support and assistance for daily living, placing such a prisoner in solitary confinement and denying the right to accessible facilities for personal care and hygiene is violative of the right to dignity and bodily integrity — both guaranteed under Article 21 of the Constitution, but also under Article 17 of the UNCRPD. The latter simply and pertinently states that “every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.”

The Rights of Persons with Disabilities legislation that ought to set out these standards in clear and unequivocal terms has been ever in the making in India. The absence of specific legislation, however, need not deter us from the path of justice. Article 14 of the Constitution that sets out the substantive right to equality before law, and Article 21 that sets out the framework for the right to life (with dignity) — as it specifically applies to prisoners — should at this time be read with the UNCRPD which India has ratified. This is till the time that we put in place policies and national legislation that mandatorily provide for special services and basic needs that prisoners with disabilities might require, and prioritise the conditional and compassionate release of prisoners with high support needs.

Vulnerability of women

Recognising the vulnerability of women in custodial situations, the Criminal Procedure Code (CPC) provides very different standards for their involvement in criminal investigation. There are also special standards for the treatment of women prisoners and pregnant women in custody. The demand for treatment that is sensitive to the rights of persons with disabilities to dignity and physical integrity and to their specific needs is therefore not unprecedented. Where prison and custodial facilities are not equipped at all to deal with the specific needs of persons with disabilities, arrest and detention in custody should be a measure of last resort, clearly not the case where Dr. Saibaba is concerned. The investigating authorities must release him from custody forthwith and carry out any investigations they may require, without infringing on his right to human dignity and fundamental freedoms, and in full compliance with the CPC, the Constitution and the UNCRPD.

(Kalpana Kannabiran is Professor and director, Council for Social Development, Hyderabad.)

Source: The Hindu

Progressive Temple Trust wants women and backward caste to work as priests

This is the face of progressive India where every one irrespective of his caste or sex can be a priest in the temples of the God - breaking age old monopoly of only Brahmins  (the upper caste Hindus).  After the Supreme Court rejected the claims of the two brahmin families after a four decade protracted battle, the temple trust has now called for applications for filing eight posts of priest from amongst  women & those from backward classes as part of inclusive mission!

Pt. Shriram Sharma Acharya - the founder of Gayatri Pariwar in 1950s had gone ahead giving gayatri deeksha to women and those from lower castes also saying that in the eyes of God every one is equal.  Today Akhil Vishwa Gayatri Pariwaar has become a movement for social inclusion.

Here goes the news:

Hindu temple to have women, backward-caste priests

IANS | May 11, 2014, 07.05 AM IST

SOLAPUR (Maharashtra): Here's another traditional male bastion set to crumble. With a Supreme Court prod, the renowned 900-year old Vitthoba Temple in the pilgrim town of Pandharpur will script religious history when it appoints its first women priests as also priests from the backward classes as part of an inclusive mission. 

"This is the first initiative in the country by any temple trust to break the centuries-old monopoly of the brahmans over the temple puja and other rituals. We are keen that puja and rituals should be thrown open to all castes, especially non-brahmans," Anna Dange, chairman of the Vitthal Rukmini Temple Trust (VRTT) explained to IANS. 

The VRTT advertised this week, inviting applications for eight posts of priests from all practising Hindus and women well-versed in the two-or-three special pujas for Lord Vitthoba and his consort Rukmini, besides other temple rites and rituals. 

"We shall interview the candidates May 18 and finalize the appointments which shall be purely temporary and contractual with the remuneration depending on the merits of those selected," said Dange. 

The VRTT move was prompted by a Supreme Court judgment in January in a four-decade-old litigation dismissing the claims of exclusive ancestral rights over the earnings and rituals at the temple by the Badve and Utpat families here. 

The two families had challenged the decision of the state government to take over the temple in 1968 after the recommendations of the B.D. Nadkarni Committee. 

A former cabinet minister in Maharashtra, Dange said that the apex court's verdict has already brought about a seachange in the past few months in the earnings of the temple, situated around 350 km southeast of Mumbai. 

"Earlier, the two families used to auction the daily pujas for the two presiding deities starting at Rs 7,000 ($117) for Rukmini and Rs 20,000 for Lord Vitthoba. They kept the daily earnings which were around Rs 150,000 and grew manifold on special occasions and festivals. Now, all the money is coming to the VRTT. This year, the temple income will be more than five crore rupees," Dange said. 

The VRTT has been flooded with applications and many are ready to work free as they consider it a "divine service", Dange said with a smile. The excited applicants are said to hail from OBCs, Marathas, the scheduled castes and scheduled tribes and other castes. 

The temple hosts the idol of Lord Vitthoba, a local version of Lord Krishna, and his consort Rukmini, and is revered by the 150,000-strong population of the town. 

It has a unique scripture on its walls dating to 1195 on which the devotees would rub their backs to free themselves from the cycles of rebirth. 

Attracting around 30,000 devotees from Maharashtra and other parts of India every day, the temple atmosphere is festive during four annual pilgrimages when around nearly two million devotees daily throng there. 

On Navratri and Dassehra, the deities look spectacular daily with new clothes and jewellery, with lights and decorations that reflect in the serene waters of the Bhima river on whose banks the temple stands, Dange told IANS. 

Incidentally, the world-famous 200,000 dabbawalas of Mumbai are staunch devotees of Lord Vitthoba and Rukmini and they take a brief vacation for their annual "jatras" to Pandharpur. 

The dabbawalas belong to the clan of "varkaris" who walk hundreds of kilometres from different parts of the state in processions taking two-three weeks during the Hindu months of Chaitra (March-April), Ashadhi (June-July), Karthik (October-November) and Maghi (January-February). 

A trip to Pandharpur means a visit to some other famous temples in and around the town, including the Goddess Tulja Bhavani Temple, the family diety of the great Maratha warrior king Chhatrapati Shivaji; Shri Swami Samarth Temple; Lord Shri Kshetra Temple and Lord Dattatreya Temple.

Source: The Times of India

Inconsistencies in Age of consent in multiple laws has jeopardized the child protection regime

‘Tough to bring sex in child marriage on a par with age of consent’

Written by Utkarsh Anand | New Delhi | April 17, 2014 1:23 am

In India, a person can be booked for rape if he indulges in a sexual relation with a woman less than 18 years of age. But he may marry at 12, or at an even younger age, and can validly consummate the marriage at 15. For, what relevant laws provide for are:

• Minimum age for a valid marriage: 18 years
• Minimum age at which one can marry and make it valid on turning 18: As low as one likes
• Minimum age at which a couple, married or otherwise, can have sex: 18 years
• Minimum age at which a couple can have sex when married as children: 15 years

This apparent contradiction in the law on the age of consent may have fettered the battle against child marriage in India — having more child brides than any other nation in the world — but the government has chosen to concede to the “social realities of the nation”.

The Centre has told the Supreme Court that it was deemed “not appropriate and practical” to remove this anomaly since there were at least 23 million child brides in India, who constitute nearly half of all child brides in the world. An attempt to bring sex in child marriages on a par with age of consent as others will lead to various “social tensions”, it said.

   

Significantly, in October last, the government had refused to sign the first-ever global resolution on early and forced marriage of children, led by the UN which was supported by 107 countries. India had refused to sponsor the measure, stating that the resolution’s definition of early marriage was vague.

Now, responding to a PIL that demanded removal of this disparity on age of consent, the Ministry of Home Affairs (MHA) conceded that while it was making efforts “in a discreet manner”, to prohibit child marriage, making the age of consent uniformly as 18 would throw up several other issues.

The PIL by organisation ‘Independent Thought’ has emphasised that Exception 2 to Section 375 of the IPC allows sexual relationship with a married girl at the age of 15 whereas under all the others laws, a person below the age of 18 is a child.

This contradiction in law, the PIL said, encouraged sexual relationship with a girl child under 18 because she is married.

However, the MHA said its stand on the issue of marital rape was “pragmatic” since marriage, being a social institution, is the bedrock of the society and ought to be protected.

The affidavit mentions stringency of the law on prohibiting child marriage but waters it down by saying: “It is a fact that child marriages do take place in India. The social, economic and educational developments in the country is still uneven and child marriages are taking place.”

The court will take up the government’s affidavit on Thursday.

Source: Indian Express

Most Polling Booths inaccessible in Bangalore

There are several such voters who can do with some facilities
from the election authorities. File photo: S.S.Kumar (The Hindu)

Most of the 7,700 polling booths in Bangalore are seen to be not accessible to those with physical disabilities.

A middle-aged, physically challenged woman came to exercise her franchise at the Government Urdu Primary School in Palace Guttahalli here during the Assembly elections in May 2013. The wheelchair-bound woman could not enter the polling booth as there was no ramp. Eventually, her son and husband arranged for a plastic chair, eased her into it and lifted her to go inside the booth, after which she cast her vote.

Most of the 7,700 polling booths in Bangalore are seen to be not accessible to those with physical disabilities. Though the Election Commission has promised to make arrangements to help such people cast their votes, Chief Electoral Officer, Karnataka, Anil Kumar Jha admitted that it may be difficult to ensure such facilities at booths located on the various floors of a building.

Sunil Jain, founder of Astha, an organisation working for people with disabilities, said that the authorities, when it is difficult to make such booths accessible to such people, should make efforts to at least identify booths with a large concentration of people with disabilities so that necessary arrangements can be made there. With the 2011 Census identifying 1.8 per cent of the population in Bangalore as living with disabilities and NGOs estimating their percentage at 2.7, Mr. Jain, himself wheelchair-bound, said that persons with disabilities constitute several thousands of Bangalore’s 76 lakh electorate. In addition, there may be several persons with temporarily disabilities that they have suffered in accidents.

Policemen help a voter with disability at a polling
booth in Virugambakkam. Photo: S.S.Kumar (The Hindu)

Astha has written to Mr. Jha urging him to launch a drive through SMS under which those with disabilities can send their Voter ID number to a designated mobile number and indicate their nature of disability. Also, it has cited an initiative taken up by the Chief Electoral Officer of Delhi, providing for registration of those with disabilities and their nature of disability on a website and urged Mr. Jha to replicate this experiment in the State.

Through this, Mr. Jain said, the authorities can generate data of persons with disabilities booth-wise and take alleviating steps. In response, Mr. Jha said that he would examine the suggestion made by Astha. But he was sceptical about implementing it as elections are barely two weeks away.

Mr. Jain, however, said that a deadline for registration can be fixed and the data can be shared with officials in-charge of booths designated for those with disabilities to make necessary arrangements for such voters.

Mr. Jha said that instructions have been given to election officials to give preference to those with disabilities when they come to vote. “They will not have to wait or stand in a queue,” he added.

Though all Electronic Voting Machines (EVM) are Braille-enabled, Section 49 N of the Conduct of Election Rules 1961 allows a blind or a physically infirm person who is unable to recognise the symbol on the ballot paper/EVM, to be accompanied by another person.

Mr. Jain said that the Election Commission should begin compiling data of persons with disabilities on its rolls by including a provision for registration in Form 6 submitted at the time of enrolment.

Source: The Hindu - Bangalore needs – disabled-friendly polling booths

Supreme Court directs Centre to withdraw order making Aadhaar "Mandatory"

Withdraw orders making Aadhaar mandatory for any service: SC to Centre

New Delhi: The Supreme Court has directed the Government of India to withdraw all orders, which make the Aadhaar card mandatory for availing any service. The court has also directed the Unique Identification Authority of India (UIDAI) not to share any information pertaining to an Aadhaar card holder with any government agency without the prior permission of the card holder.

The Supreme Court was hearing the petitions challenging the Constitutional validity of Aadhaar card with those opposing the mega project saying it was not backed by any statute and compromises with national security.

Further, a three-judge bench headed by Justice BS Chauhan was also told that the project not only violates the right to privacy but the "biometrics", which is the foundation of the project, is an unreliable and untested technology and public funds are being channeled to private enterprises without sufficient validation.

Earlier in 2013, the apex court had also issued an interim order which had said Aadhaar card be not made mandatory for people for availing any government services and nobody should be deprived of any such facilities for want of the card.

The Centre, UIDAI and three oil PSUs - IOCL, BPCL and HPCL - had later on moved the apex court seeking modification of its earlier order that Aadhaar card is not mandatory and no person should suffer for want of it in getting the benefits of government schemes.

The petitioners, including Justice K Puttaswamy; former high court judge and Major General SG Vombatkere, who retired as Additional Director General, Discipline and Vigilance in Army HQ; also sought to restrain the Centre, Planning Commission and the UIDAI from issuing Aadhaar cards by way of an executive order of January 28, 2009.

Senior advocate Shyam Divan had in the beginning of the arguments by saying that "there is no statute to back the project" and even if there were one, the statute would be violative of Articles 14 and 21 of the Constitution as the project enables surveillance of individuals and impinges upon right to human dignity. Maintaining that whenever state seeks to impinge upon fundamental rights, its action must be backed by statute and not mere executive fiat, the senior advocate said, "Here, the action under the impugned project of collecting personal biometric information without statutory backing is ultra vires even where an individual voluntarily agrees to part with biometric information."

He contended that the project would not stand the test of Constitution as there is no statutory guidance on who and how the biometric information has to be collected. The advocate said the task has been given to some private entities without sufficient validation. Further, there was no clarity on storage, usage and protection of data, he said, adding "the project is also ultra vires because under the constitutional scheme any action of the state that could potentially impinge on an individual's freedom must be backed by statute."

The petitioners said that the procedure adopted by UIDAI in collecting data was also violative of Article 21 as individuals are not told about crucial aspects such as potential misuse of the information, the absence of any statutory protection, commercial value of the information and that private parties are involved in collecting biometric information without safeguards. The bench, which is hearing a batch of petitions challenging the scheme, had earlier said the stand of state governments needs to be considered while adjudicating the case on Aadhaar card. .................

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Source: IBN Live