Abstract
Provisions of the Constitution of India, national and international laws and case laws relating to legal capacity, rehabilitation, reintegration, de institutionalization and independent living have been discussed. The jurisprudence emerging from Supreme and High Courts in India and European Courts on Human Rights leading to empowerment of children and persons with disability are analyzed in this chapter.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Christen Maguire. (2011). ‘A new face in the crowd: An examination on social integration of children.’ Independent Study Project (ISP) Collection Paper, Fall 1146. http://digitalcollections.sit.edu/isp_collection/1146.
- 2.
Social Statistics Division, Ministry of Statistics and Programme Implementation . (2017). Disabled persons in India, a statistical profile 2016.
- 3.
Ibid.
- 4.
Ibid.
- 5.
Maguire (2011).
- 6.
Government of India (2017).
- 7.
United Nations Convention on the Rights of Persons with Disabilities, Committee on the Rights of Persons with Disabilities, General Comment No. 5 (2017) on living independently and being included in the community , available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2fGC%2f5&Lang=en (accessed May 15, 2018).
- 8.
United Nations, General Assembly, Thematic study on the right of persons with disabilities to live independently and be included in the community. A/HRC/28/37, available at www.ohchr.org/EN/HRBodies/HRC/RegularSessions/…/A_HRC_28_37_ENG.doc (accessed November 28, 2017).
- 9.
According to Article 19, ‘States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community , with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community ’.
- 10.
According to Article 12, ‘States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law and enjoy legal capacity on an equal basis with others in all aspects of life. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity ’.
- 11.
UN Committee on the Rights of Persons with Disabilities (CRPD), General Comment No. 1 (2014), Article 12: Equal Protection Before the Law, May 19, 2014, CRPD/C/GC/1, available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G1403120.pdf?OpenElement (accessed November 29, 2017).
- 12.
[2011] ECHR 1835.
- 13.
[2014] ECHR 96.
- 14.
[2012] ECHR 46.
- 15.
Article 1, Convention on Rights of Persons with Disabilities, 2006.
- 16.
Glor v. Switzerland (Application No. 13444/04), judgment April 30, 2009, paragraph 53.
- 17.
(Application No. 44009/05) [2008] ECHR 223.
- 18.
(Application No. 36760/06) [2012] ECHR 46.
- 19.
(Application No. 13469/06) [2012] ECHR 254.
- 20.
(Application No. 5193/09) [2011] ECHR 1835.
- 21.
Harlan Hahn. (1985). ‘Introduction: Disability policy and the problem of discrimination.’ American Behavioral Scientist, 28, 293, 296, 304.
- 22.
Commissioner for Human Rights, Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities (Council of Europe, Strasbourg, 2012), p. 6.
- 23.
According to the National Trust , ‘A guardian is a person who is appointed to look after another person or his property. He or she assumes the care and protection of the person for whom he/she is appointed the guardian. The guardian takes all legal decisions on behalf of the person and the property of the ward. The occasion for taking care of another person may be his minority that is, a person who has not completed 18 years of age. It can also refer to guardianship of a person who because of physical and mental deficiencies is unable to take care of himself or his property,’ available at http://www.thenationaltrust.gov.in/content/innerpage/guardianship.php (accessed June 4, 2018).
- 24.
Committee on the Rights of Persons with Disabilities, Consideration of reports submitted by States parties under Article 35 of the Convention. Concluding Observations of the Rights of Persons with Disabilities: Spain (6th session, 19–23 September 2011) Geneva, Switzerland. See also the Committee’s reports on China, Argentina, Peru, Tunisia and Hungary: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Session6.aspx.
- 25.
Committee on the Rights of Persons with Disabilities, Draft General Comment No. 5 (2017), Article 19: Living independently and being included in the community , available at https://www.ohchr.org/en/hrbodies/crpd/pages/gc.aspx (accessed on August 11, 2018).
- 26.
Article 8 of the European Convention on Human Rights provides ‘A right to respect for one’s ‘private and family life, his home and his correspondence’, subject to certain restrictions that are ‘in accordance with law’ and ‘necessary in a democratic society’. Art. 5 ECHR provides that ‘Everyone has the right to liberty and security of person . Liberty and security of the person are taken as a “compound” concept —security of the person has not been subject to separate interpretation by the Court’.
- 27.
Niemietz v. Germany (Application No. 13710/88) [1992] ECHR 80; 16 EHRR 97, paragraph 29.
- 28.
O. Lewis. (2011). ‘Advancing legal capacity jurisprudence.’ European Human Rights Law Review, 6, 700–714; European Union Agency for Fundamental Rights (FRA), Involuntary placement and involuntary treatment of persons with mental health problems (Vienna, 2012); C. Parker, Forgotten Europeans, forgotten rights: The human rights of persons placed in institutions (United Nations Office of the High Commissioner for Human Rights, Brussels, 2011); E. Steinerte, R. Murray, & J. Laing. (2012). ‘Monitoring those deprived of their liberty in psychiatric and social care institutions and national practice in the UK.’ The International Journal of Human Rights, 16, 865–882. See also Stanev v. Bulgaria, paragraph 154.
- 29.
Stanev v. Bulgaria (Application No. 36760/06) [2012] ECHR 46.
- 30.
P. Bartlett. (2012). ‘A mental disorder of a kind or degree warranting confinement: Examining justifications for psychiatric detention.’ The International Journal of Human Rights, 16, 831–844.
- 31.
G. Boyle. (2005). ‘The role of autonomy in explaining mental ill-health and depression among older people in long-term care settings.’ Ageing and Society, 25, 731–748.
- 32.
E. J. Langer & J. Rodin. (1976). ‘The effects of choice and enhanced personal responsibility for the aged: A field experiment in an institutional setting.’ Journal of Personality and Social Psychology, 34, 191.
- 33.
[2012] ECHR 1796.
- 34.
Article 5 of the European Convention on Human Rights provides ‘Everyone has the right to liberty and security of person ’. Liberty and security of the person are interpreted compendiously—security of the person has not been subject to separate interpretation by the Court.
- 35.
Lisa Waddington is the European Disability Forum Chair in European Disability Law, Faculty of Law, Maastricht University, Maastricht, the Netherlands, and Visiting Professor, Melbourne Law School at the University of Melbourne, Australia, available at https://www.maastrichtuniversity.nl/lisa.waddington (accessed May 26, 2018).
- 36.
Lisa Waddington. (2011). ‘The European Union and the United Nations Convention on the Rights of Persons with Disabilities: A story of exclusive and shared competences.’ Maastricht Journal, 18, 431.
- 37.
Thlimmenos v. Greece (Application No. 34369/97) [2000] ECHR 162; Jakóbski v. Poland (Application No. 18429/06) [2010] ECHR 1974; 55 EHRR 8; Eweida and Others v. United Kingdom (Application Nos. 48420/10, 36516/10, 51671/10 and 59842/10) HEJUD [2013] ECHR 37.
- 38.
(Application No. 28973/11)—HEJUD [2012] ECHR 1891.
- 39.
(Application No. 28973/11)—HEJUD [2012] ECHR 1891, paragraph 43.
- 40.
(Application No. 45705/07) HEJUD [2013] ECHR 143, paragraph 176. See also Price v. United Kingdom (Application No. 33394/96) [2001] ECHR 458.
- 41.
(Application No. 6289/73) [1979] ECHR 3; (1980) 2 EHRR 305.
- 42.
Botta v. Italy (Application No. 21439/93) [1998] ECHR 12, paragraph 27.
- 43.
Paul Harpur. (2010). ‘The positive impact of the Convention on the Rights of Persons with Disabilities: A case study on the South Pacific and lessons from the U.S. experience’ (April 7, 2011). Northern Kentucky Law Review, 37, 363–398, available at SSRN https://ssrn.com/abstract=1804736 (accessed December 1, 2017).
- 44.
(Application No. 28973/11)—HEJUD [2012] ECHR 1891, paragraph 43 states that ‘Reasonable steps are a notion quite akin to that of ‘reasonable accommodation ’ in Articles 2, 13 and 14 of the United Nations Convention on the Rights of Persons with Disabilities’.
- 45.
Article 2, Definition, UNCRPD 2006.
- 46.
Civil Writ Petition 3087/2011, available at https://docs.google.com/viewerng/viewer?url=http://www.hrln.org/hrln/images/stories/pdf/ritesh-sinha.pdf (accessed December 2, 2017).
- 47.
2008 (3) SLJ 80.
- 48.
This judgment is under the Persons with Disabilities Act 1995.
Section 32 provides that ‘Appropriate Governments shall—(a) Identify posts, in the establishments, which can be reserved for the persons with disability ; (b) At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology’.
Section 34 provides: ‘Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability as prescribed of which one per cent’.
Section 47 provides that ‘No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service. Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits’.
- 49.
(2010) 2 SCALE 820.
- 50.
Aleksandr Yuryevich Semikhvostov v. Russia (Application No. 2689/12) written Comments submitted jointly by European Disability Forum International Disability Alliance, p. 2.
- 51.
Article 2, Article 5(3), CRPD.
- 52.
Anna Lawson. (2012, August). ‘Disability equality, reasonable accommodation and the avoidance of ill-treatment in places of detention: The role of supranational monitoring and inspection bodies.’ International Journal of Human Rights.
- 53.
Legal Capacity in Europe—A call to action to governments and to the EU, prepared by Mental Disability Advocacy Centre in 2013, available at http://mdac.org/sites/mdac.org/files/legal_capacity_in_europe.pdf (accessed June 4, 2018).
- 54.
Available at http://srsg.violenceagainstchildren.org/un_study (accessed September 2, 2017).
- 55.
Ibid.
- 56.
Asha Bajpai. (2017). ‘A child’s right to a family: Deinstitutionalization—In the best interest of the child .’ Journal of the National Human Rights Commission, 16, 199–216, New Delhi, India. See https://bettercarenetwork.org/sites/default/files/nhrc_journal_2017.pdf.
- 57.
Dr. Beverley Temple, Celeste Waldman and Sneha Abraham, Evidence Briefing on the Process and Impact of Transitioning Individuals with Intellectual and Developmental Disabilities from Institutions to the Community , University of Manitoba, STa Amant, 2015, available at https://stamant.ca/wp-content/uploads/2015/07/Evidence-Briefing-on-the-Process-and-Impact-of-Transitioning-Individuals-with-Intellectual-and-Developmental-Disabilities-from-Institutions-to-the-Community.pdf (accessed May 12, 2018).
- 58.
The Rights of Person With Disabilities Act, 2016, Section 2(h) ‘discrimination’ in relation to disability , means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field and includes all forms of discrimination and denial of reasonable accommodation .
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2018 The Author(s)
About this chapter
Cite this chapter
Bajpai, A. (2018). Towards Empowerment: Changing World and Changing Mind-Set. In: From Exploitation to Empowerment. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-13-1718-7_4
Download citation
DOI: https://doi.org/10.1007/978-981-13-1718-7_4
Published:
Publisher Name: Palgrave Macmillan, Singapore
Print ISBN: 978-981-13-1717-0
Online ISBN: 978-981-13-1718-7
eBook Packages: Law and CriminologyLaw and Criminology (R0)