Covid-19 and Rights of Persons with Disabilities in India

by | May 11, 2020

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About Varsha Iyengar

Varsha R Iyengar is a lawyer practicing in India and a Partner at Arka Law, Bengaluru. She specializes in dispute resolution and strategic impact-based human rights litigation and advocacy. She completed her Masters in Law (JSM) at Stanford Law School.

Citations


Varsha Iyengar, “Covid-19 and Rights of Persons with Disabilities in India” (OxHRH Blog, May 2020), <https://ohrh.law.ox.ac.uk/covid-19-and-the-rights-of-persons-with-disabilities-in-India/>, [Date of access].

Covid-19 is not uniform in its impact. Persons with disabilities are disproportionately affected by the pandemic. Those with underlying health complications face higher risks of severe illness and fatality. Persons with disabilities also encounter additional barriers in implementing precautionary and social distancing measures. No-contact practices are nearly impossible for persons with visual and locomotor disabilities, who routinely depend on touch functions for mobility. Those dependent on daily caregivers, face unprecedented obstacles in practicing social distancing while accessing support.

The pandemic threatens more than 26.8 million people with disabilities in India. State response must act towards rigorous implementation of their right to equal healthcare. However, long term neglect and inaction in disability rights and in public health, has presented overwhelming obstacles in ensuring such equal protection during Covid-19.

India lacks a comprehensive law on pandemics. The Epidemic Diseases Act, 1897 (EDA), simply and inadequately recognizes the power of each state government to “take measures” and “prescribe temporary regulations” to manage epidemic diseases (Section 2). The Central Government has invoked powers under The Disaster Management Act, 2005(DMA), by declaring Covid-19 to be a ‘disaster’. Neither EDA nor DMA address human rights obligations during a pandemic. This restricts human rights inclusion into the Covid-19 response.

The Rights of Persons with Disabilities Act, 2016, (RPD Act) guarantees “equal protection and safety” of persons with disabilities during disaster management (Section 8). It requires a district-wise record of persons with disabilities and mandates district authorities to inform them of their risks during the disaster (Section 8). There are no indications of any such district-wise efforts implemented in the country.

In late March, the Central Government introduced “Comprehensive Disability Inclusive Guidelines For Protection and Safety of Persons With Disabilities (Divyangjan) during COVID 19” (“Guidelines”). The Guidelines instruct state governments to follow certain “general action points”, including: ensuring information accessibility (braille, sign language etc.); exempting caregivers from lockdown restrictions; exempting employees with certain disabilities from essential services work; training emergency service providers on treating persons with disabilities; providing essential support to quarantined persons with disabilities, etc. Importantly, the Guidelines emphasize priority in treatment for persons with disabilities.

These are promising developments to protect persons with disabilities. However, there are shortcomings in implementation. Often considered discretionary, beneficial guidelines are usually not implemented. Sure enough, besides granting exemptions, state governments have failed to implement the Guidelines. The Central Government has also ignored its own standards: The awareness material on its website is not accessible for persons with visual or hearing disabilities (PDF documents are neither accessible nor easily convertible to braille format. Videos are not enabled with captions or sign language interpretation). Presently, the Guidelines are paper promises.

Legal response to Covid-19 has focused on restrictive and punitive laws (lockdown, criminalization of violations and abuse of medical staff), while bunching up rights of disadvantaged populations under unenforceable guidelines. This prioritization informs us of the extent of the government’s commitment to incorporate rights of vulnerable communities in responding to the pandemic. While lockdowns and punishments target disease control, such restrictions during the pandemic also exacerbate existing inequalities. Prioritizing rights-based protection aims at preventing such exacerbation. The governments must commit to identifying and informing persons with disabilities of their risks; and to consult and allow participation of the disability community in governance during the pandemic. Such prioritization empowers and enables persons with disabilities to overcome additional barriers. In fact, this prioritization has also been recognized in the Disability Inclusive Guidelines (September 2019) of the National Disaster Risk Management Authority. It is important that these guidelines are taken seriously, to enforce substantive rights.

Covid-19 response presents striking pictures of inequality in both public and private sectors. For decades, persons with disabilities have struggled, with snail-paced success, to justify even marginal workplace accommodation. In contrast, within a month of Covid-19, public and private sectors have recognized mobility restrictions of its non-disabled employees; drastically altered work policies; and invested in expensive technologies – all to offer non-disabled employees the very accommodations that are historically denied to persons with disabilities. Covid-19 thus displays years of inertia in recognition and implementation of disability rights. It is time to take a long hard look.

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