Protecting the vulnerable

The ministry of social justice and empowerment has proposed to draft a new legislation to replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The ministry recently constituted a committee to draft the law. The draft legislation, to be submitted by August, will be in consonance with the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

The need for a new legislation that respects and protects the rights of persons with disabilities is undisputed. However, the rights of and safeguards for persons with disabilities have to be integrated in all existing laws for India to meet its obligations under the UNCRPD. It requires states to recognise that people with disabilities “enjoy legal capacity on an equal basis with others in all aspects of life.

Here, we illustrate the need to review existing legislations by drawing attention to laws pertaining to domestic violence, rape and marriage.

Discussions on the need to amend the Protection of Women from Domestic Violence Act, 2005 (PWDVA) have been on the agenda of women’s networks. The Act, that came into effect on October 26, 2006, protects women from violence in intimate relationships within the home. Although, it is being used extensively by women to obtain civil reliefs — such as protection, maintenance and residence orders — some key provisions need to be revised for its effective functioning. The PWDVA needs to integrate the concerns of women with disabilities, which it has failed to do so far.

The UK-based organisation Women’s Aid in 2007 reported that disabled women were twice as likely to suffer from domestic violence. It pointed out though the violence suffered by disabled women may not be any different, they may find themselves in vulnerable situations with less access to help. For instance, in case of disabled women the violence may be faced at the hands of a care-giver. This care-giver may be someone the woman is living with.

That disability may be the cause for domestic violence should be taken into consideration. The explanation to the definition of domestic violence which presently includes physical, mental, verbal and emotional, sexual and economic abuse, should expressly incorporate acts such as taunting/insults directed towards the woman’s disability.

Under the PWDVA, acts of omission also constitute domestic violence. In case of disabled women, acts of omission would lead to greater hardship, especially, when such acts by her care-giver/partner socially isolate her, deny her health services or impede her social interaction and mobility.

Likewise, Protection and Residence Orders under the PWDVA have to consider circumstances where a woman suffering from physical, visual or sensory impairment may need assistance/care of her partner and at the same time need a protection order restraining him from perpetrating violence.

The need for sign language to courts and other service providers is essential for making the PWDVA and other laws available to the disabled.

Incidents of rape of women/girls with disabilities have been rising. The provisions on rape in the Indian Penal Code need to be
revised to recognise rape against a woman with disabilities as an aggravated offence warranting a higher penalty. Presently, if the victim of rape is disabled but not a minor, the offence is punishable with a maximum of seven years imprisonment.

The Criminal Law Amendment Bill, 2010, does prescribe a minimum of 10 years imprisonment or life imprisonment and fine for “sexual assault on a woman suffering from “mental and physical disability”. The use of “and” suggests that the victim must be living with both a mental and physical disability for the provision to apply. Although, the courts have often interpreted ‘and’ to imply ‘or’, it is recommended that the Bill is revised at this stage to avoid confusion.

Under the Hindu Marriage Act, 1955, a marriage entered into by a person “incapable of giving a valid consent” due to “unsoundness of mind” or “capable of giving a valid consent” but “suffering from mental disorder” that would make him unfit for marriage and procreation is voidable under the Act. The Special Marriage Act, 1954, contains similar provisions. The presumption of legal incapacity of all persons with mental disabilities deprives them of their right to marry.

Thus, drafting of the new law should be accompanied by amendments to the existing laws in order to ensure protection of rights and recognition of legal capacity of persons with disabilities. Legislation for the disabled needs to be integrated with existing laws