Drishtikon: Disaster and Disability: Indian Legal Framework
Indian Constitution, despite all its criticism and drawbacks, has been often celebrated as one of the finest pieces of drafting which have been put into practice both in spirit and letter. Indian Constitution is considered very progressive and rightly so for providing fundamental rights like equality, expression of speech, et al from the very beginning, be it voting rights to women or affirmative actions for socially backward sections.
However, despite mentioning and taking cognizance of most socio-economic sections of the society, it fails to recognize ‘Person with Disabilities’ and provide for any explicit affirmative actions.
And only after the disability right movement gained momentum within the international regime, the Indian State starts recognizing that a large section of our society is ‘Person with Disabilities’ about whom nothing has been done. After much persuasion and efforts by the disability activists and other right-minded people, the Parliament of India giving effect to its international commitments like ‘Sustainable Development Goals’ (SDGs) passed ‘Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995’ and subsequently replaced the previous act with ‘Rights of Persons with Disabilities Act, 2016’ in order to implement the international obligation as a signatory and rectifying member state of the ‘Convention on the Rights of Persons with Disabilities’.
Despite all said and done, we still fail to see the intersectionality between Climate Change and Disability and how Climate Change impacts the lives of ‘Person with Disabilities’ and put them at a higher level of risk. At the policy level, we are still limited to countering the impact of Disaster on Person with Disability. Given disasters include natural disasters like floods, cyclones, earthquakes, et al, this is the only way in which we can relate Climate Change with Disaster in the existing framework.
Although, there has been some progress in mainstreaming disability in disaster risk reduction with the introduction of the ‘Rights of Persons with Disabilities (RPwD) Act, 2016’ and the ‘National Disaster Management Guidelines on Disability Inclusive Disaster Risk Reduction’, the general awareness among the community still fall short from being anything close to the ideal.
Further, disaster response mechanisms aren’t adequate and inclusive for people suffering from various disabilities, consequently, ‘Person with Disabilities’ (along with new disaster induced Person with Disabilities) often suffer both during the emergency situation of disaster and afterward in lack of planned disaster response and recovery efforts.[1]
Despite Climate Change induced Disasters disproportionately affecting ‘Person with Disabilities’ (and ones who became ‘Person with Disabilities’ because of such disaster), the case of ‘Person with Disabilities’ couldn’t become a core issue in Disaster Management policy and its implementation for a long time. Although an effort has been made to provide a legal framework for mainstreaming disability issues in Disaster Risk Reduction efforts which we are going to discuss going forward.
So, lets us put together the relevant legal provisions governing effective management during times of disaster in respect to ‘Person with Disabilities’. To begin with, defining disability is a difficult task because there are dozens of definitions — each with a purpose to it.[2] Disability is a complex, dynamic and multi-dimensional issue that no longer is limited to physical barriers alone but encompasses social and economic exclusion and institutional indifference as well.[3]
Section 2 (s) of the ‘Rights Of Persons With Disabilities Act, 2016’ define “person with disability” as “a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others”.
Section 2 (d) of the Disaster Management Act, 2005 define “disaster” as “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area”.
Rights of Persons with Disabilities Act, 2016 provides for special attention for disability-sensitive disaster risk reduction, wherein:-
Section 8 provides for “Protection and safety. — (1) The persons with disabilities shall have equal protection and safety in situations of risk, armed conflict, humanitarian emergencies and natural disasters.
(2) The National Disaster Management Authority and the State Disaster Management Authority shall take appropriate measures to ensure inclusion of persons with disabilities in its disaster management activities as defined under clause (e) of section 2 of the Disaster Management Act, 2005 (53 of 2005) for the safety and protection of persons with disabilities.
(3) The District Disaster Management Authority constituted under section 25 of the Disaster Management Act, 2005 (53 of 2005) shall maintain record of details of persons with disabilities in the district and take suitable measures to inform such persons of any situations of risk so as to enhance disaster preparedness.
(4) The authorities engaged in reconstruction activities subsequent to any situation of risk, armed conflict or natural disasters shall undertake such activities, in consultation with the concerned State Commissioner, in accordance with the accessibility requirements of persons with disabilities.”
Further, Section 24 (1) of the Rights of Persons with Disabilities Act, 2016 in respect to ‘Social Security’ provides for:
“The appropriate Government shall within the limit of its economic capacity and development formulate necessary schemes and programmes to safeguard and promote the right of persons with disabilities for adequate standard of living to enable them to live independently or in the community:
Provided that the quantum of assistance to the persons with disabilities under such schemes and programmes shall be at least twenty-five per cent. higher than the similar schemes applicable to others.”
Sub-section (3) also The schemes under sub-section (1) shall provide for, — © support during natural or man-made disasters and in areas of conflict”.
Moreover, Section 25 (2) of the Rights of Persons with Disabilities Act, 2016 regarding ‘Healthcare’ provides for “The appropriate Government and the local authorities shall take measures and make schemes or programmes to promote healthcare and prevent the occurrence of disabilities and for the said purpose shall — (i) healthcare during the time of natural disasters and other situations of risk”.
Lastly, the Government of India came up with comprehensive guideline regarding disability-inclusive disaster risk reduction (DiDRR), ‘National Disaster Management Guidelines on Disability-Inclusive Disaster Risk Reduction, 2019’ (NDMA 2019) which provide directions for the implementation of disability inclusion viz. accessibility, inclusive design and construction, mainstreaming of inclusive DRR, awareness promotion and corpus on disability inclusion.[4]
[1] Arman Ali, India urgently needs a nationwide Disability Inclusive Disaster Management System, Available at <https://health.economictimes.indiatimes.com/news/policy/india-urgently-needs-a-nationwide-disability-inclusive-disaster-management-system-didms-arman-ali/82716356> Accessed on: 19th December 2021.
[2] Ashok Hans & Nizni Hans, “Inclusion of Disability in Disaster Management”.
[3] National Conference on Disability inclusive Disaster Risk Reduction: Pathways for Inclusion and Action for Resilience, Available on: < https://nidm.gov.in/PDF/trgreports/2020/February/5Feb2020DiDRR.pdf> Accessed on: 16th December 2021.
[4] National Conference on Disability inclusive Disaster Risk Reduction: Pathways for Inclusion and Action for Resilience, Available on: < https://nidm.gov.in/PDF/trgreports/2020/February/5Feb2020DiDRR.pdf> Accessed on: 18th December 2021.
Abhishek Kumar, NCPEDP-Javed Abidi Fellow on Disability.
The author can be reached at: abhishek.ncpedp@gmail.com
