Divyang – Do the Disabled have the Right to Represent and be Represented in India?

Democracy is a government of the people, by the people, and for the people, and voting gives individuals a feeling of control over their government and the power to voice their opinions on their nation, local areas, or political candidates. Though the right to vote in India is the fundamental right of every citizen and is guaranteed under Article 326, Divyang people often don’t get treated the same way as others. Sadly, some of the negative ideas come from religious or medical beliefs, which should be mitigated with laws that support and protect them.

The Article 326 of the Constitution of India states that – “The elections to the House of the People and the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.”

Historical Exclusion of Persons with Disabilities (Divyang) in Electoral Processes

The history of electoral processes worldwide is marred by the exclusion of various marginalized groups, including persons with disabilities (PwDs). This exclusion stemmed from deeply entrenched societal attitudes viewing individuals with disabilities (Divyang) as dependent and incapable of making informed decisions, thus questioning their right to participate in political processes.

1. Legislative Exclusion: Many countries historically had laws or constitutional clauses that directly prohibited people with certain disabilities from voting. For example, various states in the US had laws that disenfranchised citizens “under guardianship” or “declared mentally incompetent.” The Mental Health Act of 1959 prohibited persons detained in psychiatric hospitals from voting in the UK.
2. Inaccessible Infrastructure: Even where no legal barriers existed, physical infrastructure, like polling places without ramps or Braille ballots, often made it difficult or impossible for persons with mobility or visual impairments to vote.
3. Lack of Awareness and Training: Electoral officials often lacked the training to assist voters with disabilities, further discouraging their participation.
4. Limited Political Representation: Rarely were Divyang individuals seen in political offices, creating a lack of representation and advocacy for their rights within governance structures.
5. Lack of Information: Electoral materials and campaign information were often not available in accessible formats, leaving the Divyang uninformed and further marginalised.

Evolution of International Legal Standards promoting the Rights of Divyang

The evolution of international legal standards promoting the rights of Persons with Disabilities (PwD) signifies global recognition of their inherent dignity and equality. One of the most significant milestones in this evolution is the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD represents a paradigm shift in attitudes and approaches to PwDs. The main principles of the CRPD emphasize equality, non-discrimination, full participation, accessibility, and respect for the evolving capacities of children with disabilities.

Specifically: Section 16 of the Representation of the People Act, of 1950 states the following: Disqualifications for registration in an electoral roll — A person shall be disqualified for registration in an electoral roll if he — … (b) is of unsound mind and stands so declared by a competent court.

However, it’s essential to note that the term “unsound mind” doesn’t equate to all disabilities but is specific to mental health conditions, and only when determined by a competent court. The disability community is diverse, encompassing various categories. After India ratified CRPD in 2007, India has made significant strides like the Rights of Persons with Disabilities Act, 2016 for promoting inclusivity, accessibility, and the rights of PwDs across various spheres of life.

Rights of Persons with Disabilities Act

The Rights of Persons with Disabilities Act, 2016 (RPWD Act) is significant legislation in India that aims to secure and enhance the rights and entitlements of Divyang. The Act replaced the earlier Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995. Here’s an overview of the 2016 Act:

• Definition and Types of Disabilities: The Act expanded the types of recognized disabilities from the previous 7 conditions to 21. This encompasses a broader range of disabilities, including physical, intellectual, and mental conditions.
• Rights and Entitlements: The RPWD Act asserts the rights of persons with disabilities, including the right to equality, personal liberty, and protection from any form of discrimination.
• Accessibility: The Act mandates that all public buildings be made accessible to the Divyang, providing amenities like ramps, braille appliances, and other necessary facilities.
• Employment: There’s a provision stating that all government establishments must reserve at least 4% of their vacancies for persons with benchmark disabilities.
• Education: Educational institutions funded or recognized by the government must provide inclusive education for all, making provisions for the specific needs of Divyang students.
• Legal Guardianship: The Act grants limited guardianship, which allows the Divyang to have a legal guardian to take decisions on their behalf when required.
• Penalties for Violations: Any violation of the Act, discrimination against a person due to their disability, or failure to provide the mandated facilities can result in penalties.
• Special Courts: For the speedy trial of offenses under the Act, the legislation mandates the establishment of special courts in each district.
• National and State Commissions: The Act envisages the formation of a National Commission and State Commissions for Persons with Disabilities, which would work towards the effective implementation of the Act and safeguarding the rights of persons with disabilities.
• Awareness and Sensitization: The Act promotes awareness campaigns and other programs to ensure that people are sensitized about the rights of the Divyang.

In essence, the RPWD Act, 2016, represents a significant step forward for India in ensuring that the rights and entitlements of persons with disabilities are given paramount importance.

Right to Represent – Divyang as Candidates and Office Bearers 

The active participation of persons with disabilities as candidates is crucial for inclusive representation, breaking stereotypes, shaping policies that address their unique needs, and fostering societies that value diversity and equal rights for all. Recent data from the National Statistical Office (NSO) reveals that 2.2% of India’s population has some form of disability, yet they lack proper political representation. Although there are reservations for persons with disabilities in education and employment, true equality and inclusivity in India can’t be achieved without political empowerment.

Barriers to Active Participation as Candidates in Indian Elections for the Divyang

Legal Barriers

• No Quotas for PwDs: India hosts a diverse range of marginalized groups. While the Parliament of India, State Assemblies, urban and rural-level institutions, reserve seats for SCs, STs, and other minority groups, there is no similar provision for PwDs.
• Inadequate Legal Provisions: Although the Rights of Persons with Disabilities Act, 2016, is in place, its implementation concerning political participation is still lacking.

Structural Barriers

• Inaccessible Venues: Many campaign venues and polling booths are not designed to be accessible to persons with disabilities, posing physical challenges.
• Communication Barriers: There is a significant lack of sign language interpreters and Braille materials, making it difficult for deaf and blind persons to engage in the electoral process.
• Transportation: Limited accessible transportation options can hinder movement for campaigns and meetings.

Social Barriers

• Perception & Bias: Society often perceives persons with disabilities as dependent or incapable, questioning their ability to hold and execute political office effectively.
• Stereotyping: Candidates with disabilities often face typecasting where their entire candidacy revolves around their disability, rather than their political agenda or competencies.
• Lack of Awareness: Many people remain unaware of the capabilities and rights of persons with disabilities, which can affect their voting choices.
• Patriarchal Constraints: Women with disabilities face dual marginalization due to gender and disability, making it even harder for them to enter the political arena.
• Financial Constraints: Contesting elections requires significant financial resources. Persons with disabilities often face economic disadvantages, making it challenging to fund their campaigns.

Cultural Barriers

• Cultural Stigma: In many parts of India, disability is viewed through a lens of pity or superstition, leading to reluctance in supporting persons with disabilities as leaders.
• Familial Pressure: Families might discourage persons with disabilities from entering politics due to concerns about societal perceptions or the rigors of political life.

Institutional Barriers

• Party Politics: Political parties might be hesitant to give tickets to persons with disabilities, fearing that they might not secure enough votes.
• Limited Training: There are limited platforms or training programs tailored for persons with disabilities to understand political processes and build necessary skills.

Addressing these barriers requires a multifaceted approach involving legislative changes, societal awareness campaigns, and active encouragement and support from political institutions and civil society.

Socio-Legal Implications – The Nexus between Legal Provisions and Social Acceptance

• Legislation Reflecting Social Values – Laws are often a reflection of the prevailing societal norms and values. When the law enshrines rights for certain marginalised groups, it signals a society’s intention to move towards inclusivity.
• Legal Provisions Leading Change – Legislation can act as a catalyst for societal change. The introduction of legal provisions favouring the rights and inclusion of persons with disabilities can stimulate a shift in societal perceptions and attitudes toward them.
• Political parties in India often cater to specific marginalised communities to gain support, but the concerns of the Divyang community have historically been neglected.
• Gap Between Law and Practice – There may exist a gap between the legal provisions and their actual implementation. While the law might promote inclusivity, societal prejudices, and biases can hinder its effective realization.
• Legal Provisions as Validation – Having legal provisions in place validates the concerns and rights of marginalized groups. This legal recognition can boost the confidence of persons with disabilities and pave the way for their more active participation in societal roles.
• Social Resistance and Acceptance – Despite clear legal provisions, societal acceptance is crucial for their success. Without social buy-in, even the most progressive laws might remain ineffective. For instance, laws supporting accessible public spaces for persons with disabilities will be more effective if the general public is also invested in and supportive of such initiatives.
• Awareness and Education – The introduction of legal provisions should be coupled with awareness campaigns to educate the masses about the rights of persons with disabilities and the reasons behind such laws. This ensures that society understands and supports the spirit of the law.
• Economic Implications – Socio-legal changes can have economic implications. Making spaces accessible or providing resources for persons with disabilities might require financial investments. However, the long-term benefits, such as a more inclusive workforce and society, can outweigh these costs.
• Interplay of Culture and Law – Societal attitudes are deeply entrenched in the culture. Sometimes, legal provisions can challenge cultural beliefs. Lawmakers must be sensitive to these cultural nuances while drafting laws, ensuring they are both progressive and respectful of cultural sentiments.

In essence, the nexus between legal provisions and social acceptance is intricate. For legal provisions to be effective and beneficial, they should resonate with, be understood by, and be supported by the larger society. Conversely, societal attitudes can be shaped and guided by progressive laws, underscoring the symbiotic relationship between law and society.

Success Stories and Challenges from around the World

Despite facing challenges, numerous elected individuals with disabilities who are very few, have demonstrated exceptional prowess in the political domain. Take, for instance, Jaipal Reddy, who despite being impacted by polio, was a significant figure in the Andhra Pradesh Separation Movement. He held a crucial post as the oil and petroleum minister and made significant strides in areas such as urban development, science and technology, and earth sciences. Similarly, Sadhan Gupta, India’s inaugural blind parliamentarian, was not only an outstanding orator but also founded India’s national federation for the blind. Furthermore, at the grassroots level, many divyang individuals have made their mark. This list is graced by trailblazers like Minati Barik, the first woman wheelchair user to clinch a victory in Odisha’s Kantabania Gram Panchayat elections.

Beyond India, there are prominent figures like Marta Gabriela Michetti Illia, a wheelchair user and former Vice President of Argentina; Greg Abbott, the Governor of Texas who is paralyzed from the waist down; and Carla Qualtrough, who took charge as Canada’s Minister of Employment, Workforce Development, and Disability Inclusion. Their achievements underline that individuals with disabilities can be equally proficient in political roles as their able-bodied counterparts. Nevertheless, the participation of individuals with disabilities in Indian politics remains limited.

Right to be Represented – Enabling Participation in the Voting Process

The Election Commission of India operates with the principle of ‘No voter to be left behind.’ They are dedicated to ensuring that every group of voters is included in the voting process, aiming for the complete participation of all adults as envisioned in Article 326. The Election Commission of India emphasizes an equal opportunity framework for Persons with Disabilities (PwDs), aiming to boost their confidence in the electoral process and encourage better services to increase their participation in voting.

Based on the fundamentals of equal respect and dignity, voters who have any of the 21 disabilities listed in the Rights of Persons with Disabilities Act 2016 are referred to as voters with disabilities. Currently, PwD voters are categorized in the electoral roll under Visual impairment, Speech & hearing disability, Locomotor disability, and Other. A PwD voter can enroll under any of these categories either by completing Form 6 online, by turning in the form at a voter service center, or through the Saksham ECI Application. From time to time, the Commission has implemented measures to assist in the election process for persons with disabilities. A few of these initiatives include:

• Identifying and Mapping PwDs – The “Unique ID for Persons with Disabilities” initiative aims to establish a national database for PwDs and provide each individual with a distinct Disability Identity Card. Apart from tracking the certificate of disability at the village level, block level, and District level, each state will gather preliminary data from other departments such as the Social Justice & Empowerment Department, and the Women and Child Welfare Department to consolidate lists of adults (18+) with disabilities and organize them at the Polling Station level. PwDs should be identified based on their category at each polling station and mapped accordingly. This list will be given to Booth level officers (BLOs), but for privacy reasons, it won’t be marked on the electoral roll or displayed online, especially for PwDs and senior citizens.
• Initial voter registration at PS Level – During the official voter registration process, BLOs should conduct door-to-door surveys to make sure no PwDs are missed in the identification/mapping procedure and efforts will be made to register eligible PwDs not already on the electoral roll. The registration form (Form 6) already includes a section to specify the type of disability. A dedicated field for PwDs could be added to the corresponding databases at the PS Level. The finalized list of PwDs with the nature of the disability, assistance required, and service offering at the poll/facilitation center should be made ready before the start of the electoral process in poll-going states should be provided to the BLO, Presiding Officer, and the head of the facilitation center in each polling station zone to ensures proper preparation and efficient service delivery during the election timeframe.
• PwD-friendly facilities under assured minimum facilities (AMFs) – All polling stations should be equipped with the necessary infrastructure according to set guidelines as a sustainable solution for PwDs. Polling booths should install wheelchair-friendly ramps, be well-lit, adhere to accessibility standards, and have knowledgeable volunteers from Electoral Literacy Clubs and NCC and sign language interpreters to assist PwDs. Overall, polling booth entrances should be, and the furniture and layout should be designed to cater to PwDs. Information at polling stations should be accessible in various formats like Braille, sign language, audio recordings, straightforward language, and visual aids like posters with large contrasting text and images.
  At the Help Desk, PwD voters should receive a brief overview of the polling booth layout, including directions, polling officers’ desks, Braille ballot sheets, Electronic Voting Machine (EVM) with Braille signage features, and Voter Verified Paper Audit Trail (VVPAT) to verify their vote. Transport facility may be provided to the PwDs from home to polling booths and back on the polling

Different types of PwDs might need varied assistance. Support for blind or physically challenged voters should be swiftly given at the polling booth based on Rule 49N of the Conduct of the Elections Rules, 1961.

• Rule 49N – If a voter, due to blindness or other physical challenges, cannot recogniSe symbols on the voting machine or press the right button, they are allowed to bring a companion (at least 18 years old) to assist in voting. A companion can assist only one voter in a day at a polling station and is marked with indelible ink and must leave promptly after assistance. Voters needing mobility assistance should be helped up to, but not inside, the voting compartment; Form 14A records those needing voting help; post-polling checks ensure voting integrity; companions, are limited to assisting one voter.

Alternative voting methods should be considered, ensuring the vote’s sanctity and secrecy remain intact. For PwD electors unable to visit the polling station, options like Postal Ballot, mobile polling stations, or Remote/Home Voting might be explored. For the first time during the Karnataka Assembly elections this year, the EC introduced a vote-from-home (VFH) option for 12.15 lakh individuals aged over 80 and 5.55 lakh benchmarked PwDs. The EC teams visited the homes of those who opted for this service with a form 12D (available within five days of the election announcement) to assist them in voting.

Conclusion

NGOs, and disability rights activists serve as crucial pillars in championing the rights of Divyang, persons with disabilities (PwDs). Through meticulous research, studies, and data collection, they offer empirical insights into the challenges PwDs face, laying a strong foundation for policy changes. Additionally, they foster community-building by creating networks for PwDs to exchange experiences, resources, and support, thereby promoting a sense of unity and collective advocacy. The disabled community in the nation is progressively emerging in various spheres of life. Holistic policies play a pivotal role in empowering this community, granting them equal opportunities to exercise their rights, harness their potential, and contribute to national progress. Introducing a reserved quota for Persons with Disabilities in national, state, and local elections would be a monumental advancement in the pursuit of true inclusivity.

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