A trial court in Delhi was recently shocked when a disabled accused in a criminal case had to crawl on his hands to the fifth-floor courtroom because the police did not think of arranging a wheelchair for him.
Seeking a detailed report from the Delhi Police commissioner and director-general of prisons on the provisions for accused persons with disabilities, the court said, “This court is of the opinion that there was no arrangement of a wheelchair when he was arrested and lodged in police lock-up, produced before the court the first time, and made to board the jail van as well as when he was received in jail lock-up at court complex. The case demonstrates total lack of sensitivity and concern for the rights of a disabled person.”
That this should happen in the national capital illustrates the pathetic condition of the people with disabilities in the administration of criminal justice despite a slew of judicial verdicts from the Supreme Court and the high courts emphasising their right to dignified treatment at every stage of the trial.
Even after an individual is charged with a heinous offence, his human rights do not cease to exist because he is an accused. Indeed, they would not cease to exist even if he were convicted of that crime. 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. No individual should be subjected to degrading, inhuman or cruel punishment that violates human dignity. The duty of care to be exercised in this matter during pre-trial custody is of a much higher order.
Unfortunately, the harsh reality is that offenders with disabilities face disadvantages at various stages of the criminal justice system. They may be indirectly discriminated against in their access to justice, if the special assistance they need is not provided. People with disabilities are liable to face discrimination directly or indirectly throughout their lives, despite legislation in many countries prohibiting such discrimination.
Moreover, in the absence of appropriate training and sensitisation, law enforcement officials usually show lack of understanding or even active hostility in their treatment of people with disabilities. The Delhi incident underscores the urgent need to bring about a comprehensive legislation on the rights of the disabled in India. The Rights of Persons with Disabilities law that ought to set out these standards in clear and unequivocal terms has been ever in the making. The Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, (PWD Act) of 1995 did help the disabled people to some extent, but it has many loopholes and needs to be reworked after India signed the UN Convention on the Rights of Persons with Disabilities (Disability Convention) in October 2007.
The UN convention recognises that persons with disability are right-holders instead of passive recipients of government schemes, while the PWD Act has a different foundation. The principles contained in the UN convention apply to all persons with disabilities, including those facing criminal prosecution, detainees and prisoners. It is, hence, imperative that existing laws and practices that are discriminatory towards the disabled are repealed or amended to bring them in line with the convention.
A vigorous law, however, is a necessary but not sufficient condition for enforcement of the rights of the disabled. Every law requires vigorous implementation. As the Supreme Court recently observed, the provisions of even the PWD Act, far from perfect, haven’t been implemented in most states so far.
preetha.thomas@yahoo.in