#AccessToJustice : The Inaccessible Justice System of India
I begin this article starts with a question: what is the bigger barrier – biological impairment or denial of justice?
This article would revolve around this question, forming the central theme here.
Persons with disabilities today form the largest marginalized section of the society, with nearly 15% of the world population. In India however, the census 2011 puts the number at a modest 2.1% of our total population, which seems an ignored figure considering the range of issues in our country including widespread poverty, lack of adequate health services, amongst others. So, you see we don’t even know how many persons with disabilities live in the country today. The blame can be put on the legislature for its ever-confusing definition of disability, or on the government for its failure in mapping the numbers.
Let’s now move from complex terms like legislature and government to a simpler one-society. In India, where persons with disabilities are still struggling to get their minimum basic needs fulfilled, the society still believes disability is a result of sin or curse from the previous birth.
With this bit of a background, I come to the central theme of this article- “justice”. ‘Justice’ mostly comes into picture when the question is about the treatment of individuals, or providing of rights. The state and its institutions have an obligation to provide a justice system for all. Our Constitution, as the basic document of our democracy, guarantees equal justice to all. Justice as a concept includes many terms like fairness, equality, fair treatment, protection of rights, amongst others. Let’s focus on a few of these, starting with rights, followed by access to justice.
India thought of giving equal rights to persons with disabilities for the first time as late as in 1995 when the first Act on disability was enacted by the Parliament. Today, after almost 2 decades of its passing, we stand with a new Disability Act of 2016 with enhanced provisions and some additional rights. Although various laws provide for equal rights in terms of education, employment, livelihood, etc., there are still gaps in the implementation of the same. Equal education for all has been a long-recognized right in our country, and it’s disappointing to see that even today, there are institutions and sectors that deny education to a person with a disability, on the ground of disability. Just recently, after a long battle in the Supreme Court, the issues surrounding medical entrance examinations and subsequent admissions have been resolved by a Supreme Court order. However, this sends out a loud message-even if there are laws giving you the right to education, the right cannot be availed without a long battle in the courts. There are numerous such instances where the bureaucrats, legal officers and courts have misinterpreted the law, causing a denial of basic rights to persons with disabilities.
Speaking of rights, there is a very important right provided to every person in this country- access to justice. Under this broad idea, various state institutions play a role-police, administrations, courts, etc. Ideally, if your right is violated, these legal institutions are there to help you out. In the case of persons with disabilities, these institutions have been largely inaccessible, deterring people from approaching them. For an example, the 2016 Act mandates accessibility in all public spaces. Suppose a person with a disability approaches the court for an inaccessible government building, with an expectation to get her right protected. Are the courts welcoming enough for her?
As reported by New Indian Express in October 2017, one of the Judges allegedly asked a person with a disability to get up from his wheelchair and walk to the podium. It has also been brought to the notice of the court that the court infrastructure in the country is largely inaccessible, including the buildings and websites. So, essentially, I go to an inaccessible court building to complain about inaccessibility.
This inaccessibility equally prevails for other legal enforcement agencies in the country, like the police. With the ever-increasing number of crimes against persons with disabilities, especially sexual offences against women and children with disabilities, the police still don’t have adequate training to help persons with disabilities in need of justice. This is a major reason why a lot of crimes go unreported in the country.
With these, other societal institutions like families, places of employment, social setups, and communities also play a role in the denial of justice to the disabled. With women with disabilities, there exists a lack of sex education from an early age, resulting in unreported sexual offences. This becomes even more complex when such offences are against women with mental disabilities. There have been instances when a sexual offence against a girl with a disability only came out when her family discovered she was pregnant. Disabilities are varied in their form, and complex in their understanding. There is a lack of enough sign language interpreters with the law enforcement agencies of the countries, leaving the hearing and speech impaired out of the system altogether. Lack of accessible literature for the blind also poses a serious barrier to access to justice.
Above all this, the biggest barrier that truly disables a person with a disability is the societal attitude, which according to me is the biggest culprit. Society still views persons with disabilities as sympathetic beings in need of charity and free food, which kills the entire idea about equal and basic rights for such a major chunk of the population.
Thus, to ensure an equal access to justice for persons with disabilities, everyone from families to the government, from police to courts, and from individuals to society will have to contribute their bit towards making an inclusive planet for the disabled. For government and legal institutions, it is about adhering to laws in place; for enforcement agencies and courts, friendliness and accessibility are must; for families and society, the attitude has to be changed.
As the last reflection, I would come to the question that I raised at the beginning of this article: Do you really think biological impairments make a person disabled? Or is it we, collectively as a society which is responsible?
About the Author:
Maitreya Shah is a law student and disability rights activist and has a passion for policy and development. He is fond of socializing and is a tea-lover. He can be reached at shah_maitreya on twitter.