Unspeakable Inequalities: Debarred from Full Citizenship

by Amba Salelkar

I am, by no means, an expert in disability rights and policy, though this is my area of work. The experiences of persons with disabilities have been much better documented by my peers who have decades of experience in the field. That said, my previous avatar as a criminal trial lawyer exposed me to a subject which concerns persons with disabilities greatly – the use of violence, and the threat of violence.

Violence is of many kinds, and in this blogpost I hope to point out some of the challenges which are faced when it comes to women with disabilities.

I’ll start with sexual assault, because it is the most topical. It was hard to have our voices heard during the Justice Verma recommendations and the surrounding outrage on rape and sexual assault. I believe that this was because the sexual assault of women with disabilities falls so far away from the popular cultural notions of rape – conventionally attractive, delicate victims who are made the victims of lust by savage rapists, lurking on the fringes of society. While the media seems appalled with violence against women, the fact is that the most “talked about” cases fall within this stereotype – stranger rape – which makes for only a small percentage of the actual rapes that are at least reported in this Country. Women with disabilities don’t have to worry about dressing provocatively, going out late at night, or their own economic empowerment being the reasons for their being targeted – these are relative luxuries, and often impossibilities for them. Most public service announcements and campaigns don’t concern them, even though it is estimated that 8 out of 10 women with disabilities will undergo sexual assault in their lifetime.

So where does this assault and abuse take place? Let’s start with the home, where women with disabilities, disempowered from the start, are left at the mercy of caregivers, family members, neighbours with easy access to the house. The level of dependency is such that they could be very well be subject to abuse from the one person that they depend on to make that call to the Police Station. Or by the one person who should be obligated to teach them the difference between a “good touch” and a “bad touch”. Some of these women are institutionalized from a very young age, in places with no monitoring mechanisms, and where gruesomeness comes to light often when it is too late.

I want to, however, make one thing clear here: women with disabilities have as much right to a happy and fulfilling sexual relationship as any other person, and calls for treating sexual contact with a person with disability as “statutory rape” are nonsensical. The problem here is awareness and access to justice, and denying legal capacity in this manner is not solving any problems whatsoever.

Closely tied to sexual violence is the violence committed upon women with disability and reproductive rights. Women with disabilities, particularly women in institutions, are routinely given hysterectomies on the grounds of hygiene – that they are unable to manage menstruation and hence they should be relieved of this monthly occurrence “for their own good”. Some Governments also upheld this view. Besides the blatant falsehood that backs such a view, it also leaves women with disabilities at higher risk for sexual assault, because sadly enough, the only way in which such instances ever actually come to light was when inmates of institutions become pregnant.

Institutions for women with disabilities are rife with instances of abuse beyond what has been described above – the process begins as an act of abuse, where women with psychosocial/intellectual disabilities are abandoned by family members, or run away on account of abuse. Obviously, because such information is inaccessible to them, they have no idea on what to do. On the streets, abusers further victimize these women, and it is not uncommon for women to be found by NGO workers with clear signs of having been abused. Since community based rehabilitation is not an option in most cities, women with disabilities are remanded to institutions, even against their will, from which they can never leave, because provisions of the Mental Health Act in India have resulted in the position that a person with psychosocial disability can only be released from a Mental Health Institution after someone comes forth willing to stand surety. The other option is that an inmate applies from within the institution for release upon recovery – however this is an option which is seldom exercised, mainly on account of a lack of access to justice for women in institutions. Institutionalization is perhaps better regulated under the Mental Health Act than say the Beggary Acts which allow for indefinite incarceration of “incurably helpless” beggars – mostly persons with disabilities.

Let’s not forget the abuse and violence that happens on account of legitimate medical treatment of women with disabilities – particularly women with psychosocial disabilities. This includes unmodified ECT, psychosurgery and even sterilization as a method of treatment – all administered against the will and without the consent of the patient, and perfectly legal under present Indian Law0.

For women with disabilities who are not institutionalized, there are more silent forms of abuse which happen, behind closed doors, for which Indian Law is ambiguous. This may include deprivation of medication or food and other basic necessities. The victim can take theoretically take recourse to the Domestic Violence Law, though the definition of “domestic violence” does not consider the needs and vulnerabilities of women with disabilities. Time and again, however, it has been the experience that caregivers of persons with disabilities have more sympathy in such accusations, and that derogatory treatment may not be taken seriously by a judiciary which may not be able to empathize fully with the disabled.

What is also dangerous however, is the violence which can be inflicted on women with disabilities that is entirely State sanctioned – by enforcing guardianship under the National Trusts Act and the Mental Health Act, the State is promoting “civil death”, a term propagated by the Mental Disability Advocacy Centre, and to which I am inclined to agree. Women with psychosocial disabilities, developmental and intellectual disabilities are at serious risk of losing their right to property and independent control of financial resources merely on account of their disability. Right now, for example, the Reserve Bank of India insists that a bank account being opened by persons who fall under the National Trusts Act – persons with cerebral palsy, autism, intellectual disabilities and multiple disabilities – must be done so with a guardian. Without financial independence and control over assets, women with disabilities are at extreme risk of violence and neglect at the hands of family members and caregivers.

How do we solve these issues? As I stated in the beginning, the major concern is that of a lack of information to women and girls with disabilities. For girls who manage to get to schools, proper information on what violence is, what sexual assault is, and how to seek redressal and make complaints must be given in an age appropriate and accessible manner. As for girls and women who remain at home, a great deal of assistance can be got from compulsory registration of disabilities by local governments. Women and girls with disabilities can be reached out to, and given adequate information, and in the event that they can make a complaint to the officer administering the information, adequate protection can be given.

Legal reform is very important. We need to move to an empowerment model, as envisaged by the United Nations Convention on the Rights of Persons with Disabilities and bring our legislation up to International Standards. This includes removal of all impediments to exercise of legal capacity and promotion of assisted decision making instead of guardianship. The Special Rapporteur has held, time and again, that. Involuntary institutionalization is violative of the UNCRPD, yet it persists in our draft Mental Health Care Bill. Mental health care professionals, guided by the WHO frame of reference, have been gatekeepers of persons with psychosocial disabilities, and have set irreconcilable inequality between these and other health care patients; worse, continuing methods of ‘treatment’ which the United Nations Special Rapporteur on Torture and other Cruel Inhuman and Degrading Punishment has termed as “torture” (note: India hasn’t ratified the Torture Convention, but that’s a story for another blogpost).

Thirdly, accessibility is an absolute necessity to empowerment. I’m not just talking about accessible complaint making mechanisms and judicial processes. That is a given. I also mean accessible roads, transport systems, offices, schools, appliances and equipment made in line with universal design – all of this plays an important role in empowering women with disabilities, and helping them be self reliant and more importantly, lead a dignified life, because ultimately, it is these barriers that make a person disabled. To quote this brilliant write up, “…physical and social barriers that create disability are as fundamental as the structural disadvantages that have made (and continue to make) women second-class citizens.”

It seems like a lot of work ahead, but voices from around the world are claiming the same thing. Ratification of Conventions is easy – it’s making them into a reality that is the challenge and is something that we all have to make sure the Indian Government does. I am hopeful, and here I will quote my late colleague Rahul Cherian, (who apparently still manages to get the last word on everything I do).

“When people are demanding their basic rights, no power in the world is strong enough to stop them getting what they want.” 

***

Amba Salelkar works for the Inclusive Planet Centre for Disability Law and Policy started by lawyer Rahul Cherian, as a social network platform for people with disabilities. The group looks at upcoming legislation from the perspective of the disabled and presses for inclusive measures. A graduate of the National Law School of India University, Bangalore, Salelkar is a lawyer with 6 years of experience in litigation. She has presented research papers both nationally and internationally, and has also been teaching and writing in her spare time. Her area of expertise includes Criminal Law, Family Law, Constitutional and Media Law.

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