While political parties appeal to other marginalised groups, the disability sector has been largely left out.

Politics and people with disabilities How the law remains a barrier against democracy FIle Image
Delve Disability Friday, June 15, 2018 - 15:00

Usha Kiran Naik, or Kiran as he is popularly known, wants to contest in the next municipal elections in Chikballapur, Karnataka. Kiran had contracted polio at the age of three and is a wheelchair user. He has also prepared 10 other people with disabilities - three women and seven men - to contest in the next village panchayat elections in Chikballapur. Kiran, 32, has been an activist in Chikballapur for the last 10 years, working with women with disabilities and people with HIV.

While Kiran wants to improve basic services and government hospitals, he specifically wants to work on issues affecting people with disabilities. “Many are unable to finish their education due to lack of family support. Job reservations are not implemented properly. Women with disabilities face a lot of sexual violence,” he says, adding that people with disabilities themselves should be in power to address these issues. Being a trans person, in addition to having a disability, meant that Kiran himself has faced much discrimination growing up in his home town in Andhra Pradesh.

As a child, he had seen his mother struggle for six years to get him a disability certificate so that he could get the monthly disability pension of Rs 75 at the time. “Every six months, she used to go to a camp where the certificate was given. One time, she stayed put for three days at the camp, slept on the roadside at night, and still couldn’t get the certificate,” recounts Kiran. Getting a disability certificate is still a difficult process. But it was more so for Kiran’s mother who hailed from the nomadic Banjara community and only spoke the community’s own language. “I finally got the certificate when I was in 7th standard, with the help of my school principal. That’s when I decided to work for people with disabilities,” he says.

Kiran is now the General Secretary of the NGO Karnataka Vikalachethana Sanghatane, and also Chikballapur district president of Swaraj India party (started by Yogendra Yadav and Prashant Bhushan in 2016). Swaraj India wanted to get him a ticket to contest in the recent Karnataka assembly election, but couldn’t, due to fund constraints, says KP Singh, National Executive Member representing Karnataka in the party. The party had fielded candidates in only 11 out of 224 constituencies this time.

“Since Kiran is on a wheelchair, he would have needed a special vehicle during the campaign, for which the costs would be higher. Also, in rural areas, the roads are not good, and accessibility may have been an issue,” says Singh.

Usha Kiran Naik

Kiran sees better chances of winning local elections as they require lesser campaign funds. Chikballapur has about 45,000 people with disabilities, but mainstream political parties don’t give them tickets, he says.

In fact, there have been no politicians in India who have represented the disability sector, says TMN Deepak, State President of the December 3 Movement of persons with disabilities in Chennai. Though there have been a few prominent politicians with disabilities, like Jaipal Reddy of Congress, they had not taken up the cause of the sector, he says.

People with disability still not a constituency

While political parties appeal to other marginalised groups, the disability sector has been largely left out. The community still faces routine rights violations. Though the disability rights movement over the past two decades has brought some change, it has been painfully slow.

Deepak says this is because of the lack of political representation of the community. “Inviting attention to an issue by protesting on the streets is very different from inviting attention to it in the parliament. Others are making decisions for us, even regarding very technical issues on disabilities that they don’t understand,” he says.

Over the past decade, a few people with disabilities have contested as independents or as candidates of smaller parties, but not many have won.

Shilpa KP, 33, an international wheelchair lawn tennis player, contested in Karnataka assembly election this May from Channapatna constituency. She was the candidate of Samanya Janata Party and lost to the current chief minister H D Kumaraswamy. She says she wants to be active in both sports and politics.

Shilpa KP

Ajit Babu, 28, had campaigned as an AAP candidate in Ramanagara constituency for the election, but his nomination was rejected due to data mismatch. Babu, a motivational speaker and a “serial entrepreneur”, owns a toy factory in Channapatna. The factory employs 45 people, all of whom have disabilities. “Rather than talking about disability rights per se, I want to normalise disability. My focus has been on getting a social life for people with disabilities,” says Babu, who has cerebral palsy. He has worked on accessibility, but says that whenever he approached politicians, “they just say they have given scooters for people with disabilities.”

Political reservations for people with disabilities?

As per the UNCRPD (UN Convention on the Rights of Persons with Disabilities), which India had ratified, the state should guarantee equal political rights to people with disabilities that includes both the right to vote and be elected. UNCRPD is also the basis for India’s RPD (Rights of Persons with Disabilities) Act, 2016. While the RPD Bill was being drafted, Deepak had made a presentation to the drafting committee to include political reservations, but this was not considered. “Reservation will at least set the ball rolling. Ensuring how the seats can go to people genuinely representing the sector, women with disabilities etc, can be worked out after that. The result should be effective engagement with power, instead of tokenistic engagement, as is the case now,” he says.

BJP National Secretary H Raja admits that the party has not been proactive in inducting people with disabilities. “Probably their numbers are low in politics as political leadership requires strenuous work and constant travel. It’s a good suggestion that more people with disabilities should be inducted as it will help us understand their issues. In BJP, there have been discussions about their problems, but not about getting them to participate in politics,” he says.

Brinda Karat, CPI(M) MP and Politburo member, claims the left has helped shift the discourse on disability from one of welfare to that of rights. The disability rights organisation National Platform for the Rights of the Disabled (NPRD) is backed by CPI(M). “It’s only in the last few years that we have more party workers with disabilities at the local levels. There is a process by which they have to get to the higher levels,” she says, adding that the issue of reservation for the sector is under discussion at the party.

Disability as a reason for disqualification

In 2011, T Kavita, a hearing-impaired tailor from Villupuram district in Tamil Nadu, was prevented from contesting panchayat elections. This was because being “deaf-mute” disqualifies a candidate as per the Tamil Nadu Panchayats Act, 1994. Various disability rights organisations protested then, supporting Kavita. When the issue was taken to Madras High Court, the court gave an interim order allowing Kavita to contest, but the last date for filing nomination had passed by then.

“During the hearings, state government said the Act would be amended to remove the discriminatory provision, but it has not been done yet. Anyway, since the order allowed Kavita to contest, it follows that other hearing and speech impaired people could contest from then on,” says advocate Prabhakaran, who was involved with the case. Activists also filed a PIL in the Supreme Court saying that the discriminatory provision should be struck down from all state laws in India; the case is still ongoing. Many states like Kerala and Andhra Pradesh still have the provision disqualifying “deaf-mute” applicants in their Panchayat Raj Acts.

Similar to Kavita’s case, this April, P Saravanan, an employee at the Central Library in Dharmapuri district in Tamil Nadu, was barred from contesting in elections to the Dharmapuri Public Library Employees and Thrift Co-operative Society. The reason here was not the law itself, but an interpretation of it. As per Tamil Nadu Co-operative Societies Act, 1983, candidates who can’t read and write Tamil or English would be disqualified. Saravanan who is visually impaired could read and write, but in Braille.

A poster in support of P Saravanan

During the previous election in 2013, the state Cooperative Societies Election Commission had disqualified Saravanan saying that he couldn’t read and write. Though Saravanan had challenged the decision in High Court, he lost the case. When elections were due this year, Saravanan directly presented his case to the Cooperatives Election Commissioner, but without success. Despite days of protests by disability rights groups, the Commissioner refused to accept Saravanan’s candidature unless the Cooperative Societies Act was amended.

“But we said that the right to contest was already there as per RPD Act, so why should we go to court? We threatened to go to the Supreme Court and file a contempt petition against the Commissioner instead,” says Deepak, who was at the forefront of the protests. RPD Act prohibits discrimination against people with disabilities and mandates the state to provide reasonable accommodation if required - including assistive technologies or personnel - to remove barriers for them.

Eventually, authorities were forced to cancel the election all over Dharmapuri. Activists had pointed out that since Saravanan had no opportunity to get elected, he was also losing the opportunity to vote and contest to the senior posts of President and Vice President. “This way we prevented a legal injury,” explains Deepak.

Many states like Andhra Pradesh also have municipal and panchayat laws barring leprosy-affected people from contesting local elections, even though leprosy is now a curable disease like any other. ‘Leprosy-cured’ is included as a disability as per the RPD Act. In 2008, Supreme Court even upheld the disqualification of a candidate in Orissa on grounds of having ‘risk prone leprosy’. Dhirendra Pandua, who was elected as a municipal ward councillor and the Chairperson of the Municipal Council in 2003, had approached the court when disqualified.

TMN Deepak

Pandua had argued that he had taken treatment, remained bacteriologically negative for three examinations afterwards, but he had not continued the periodical check-ups afterwards. Court then said it couldn’t be conclusively established that he had no leprosy. However, in 2016, Orissa amended its laws, removing the clause that barred leprosy and TB-affected and “deaf-mute” people from contesting. Disqualification provision of leprosy-affected people continues in other states.

In 2015, a Law Commission report recommended to the government that the restrictions on leprosy-affected people in contesting elections should be removed. As per the report, about 1.25 lakh new cases of leprosy are recorded annually, and about 850 segregated ‘leprosy colonies’ exist in India.

Those with ‘unsound mind’ cannot even vote

While people with certain physical disabilities are barred from contesting in local elections, those with psychosocial and intellectual disabilities are barred from even voting in state and national level elections, according to the Representation of the People Act. The latter are categorised as having “unsound mind”, and hence disqualified from both voting and contesting.

Even the Constitution allows disqualification of people with unsound mind from registering as voters. “Unsound mind” has never been defined and is often used arbitrarily. But, of late, some activists have been challenging this.

During the 2016 assembly elections in Tamil Nadu, activists got the state’s then-Chief Electoral Officer (CEO) to arrange voter ID cards and voter enrolment for people with psychosocial and intellectual disabilities living in institutions. “Our point was - how do you prove that the person is mentally unsound at a particular point?” says Chennai-based activist Vaishnavi Jayakumar.

Following this, activists in Kerala filed a PIL for the same cause, ahead of the Kerala assembly election in 2016. The petition argued that to disqualify a person, they should first be declared mentally unsound by a competent court, since the Constitution says no one can be deprived of life or liberty without due process. Advocate Sandhya Raju, who appeared for the case, says, “People who are extremely unwell would be a small percentage, and mostly in hospitals. Most people in other institutions - like care homes - can decide for themselves. They are not permanently ill - they have lucid intervals and manage their disability with medicines. But they are unable to vote as they are under the control of those running the institutions.” Though Kerala High Court ordered the state CEO to enrol institutionalised people, Sandhya says the order was not implemented effectively.

Mumbai-based Kabir Kumtha, who has autism and intellectual disabilities, has voted thrice so far. His mother Parul Kumtha says, “Initially he did not understand the implications of voting for a particular person, but now he understands it better. Many people who vote at 18 don’t have full understanding of politics either; it’s a process of them learning and becoming mature over time. Same is the case for people with intellectual disabilities.”

Voting booths still inaccessible

It’s only in 2000s, with Supreme Court’s orders in the in the Disabled Rights Group Vs Union of India case, that Election Commission of India (ECI) started making voting booths accessible. Before the Karnataka assembly elections, ECI had even mapped the number of voters with disabilities. Even then, many booths lacked basic accessibility like ramps and wheelchairs. Other aspects like the need for sign language interpreters in booths have never been addressed at all.

Abid Basha, 44, from Chitradurga district did not vote this time. With 80% disability from muscular dystrophy, Basha is bedridden. He says that even travelling by ambulance is painful for him. He had requested the ECI to arrange postal ballot for him, but postal ballot is currently allowed only for those in defence services or on election duty. If he gets any support, Basha plans to file a PIL at Karnataka High Court requesting postal ballot facility for anyone with over 75% disability.

In the present system, even the most basic rights of voting and contesting in elections remain an uphill battle for people with disabilities.

Show us some love and support our journalism by becoming a TNM Member - Click here.