UN Treaty Violated in India


We are  very happy to come across the Convention on the Rights of Persons with Disabilities has been signed by Nirupam Sen, Indian Ambassador to the United Nations on behalf of India on 31st March 2007. Sure, it is a landmark UN-brokered treaty that aims to improve the lives of the world’s estimated 650 million people with disabilities. As claimed by the UN High Commissioner for Human Rights Louise Arbour in New York that the drive and commitment of the disability community was the greatest impetus behind the treaty's content and relatively rapid adoption. It is really a pleasant thing to note that the convention outlaws discrimination against persons with disabilities in all areas of life, including employment, education, health services, transportation and access to justice.

Prior to this, the Union Cabinet had approved On 23 Dec 2005, a national policy aimed at setting up mechanisms for the promotion and protection of rights of persons with disabilities and to provide them equal opportunity to participate fully in social activities. It also envisages development of professionals for the rehabilitation of persons with disabilities, their education and economic empowerment, including self-employment and creation of a barrier-free environment and social security. In addition, two national instruments were also passed in India - the Rehabilitation Council of India Bill and the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act.

While appreciating the efforts of India to extend a helping hand to the physically challenged and helpless persons, we would like to present a reality show from India and see how the independent India treats its own persons with disabilities.

Pushpakumar is a person left paralysed below waist due to post polio paralysis in the earlier childhood. He is from Kerala, South India and is forty now. Setting aside his disability, Pushpakumar succeeded in undergoing school college studies, obtained a degree in commerce and secured a job in the accounts division of an electrical supply undertaking in Kerala. His office situates five kms away from his home. As Kumar requires some special means of transportation, he bought a gear-free scooter (Kinetic Honda) in 1995 and got attached two additional wheels on both the rear sides by a local technician as no automobile manufacturers in India supply company-fitted scooter with side wheels or produce an invalid carriage. He managed to drive the vehicle very easily and successfully controlled it while driving.

The scooter with side-wheels being the most popular & economic means of transportation of disabled who can neither use public transport nor afford car, taxi etc. Maintenance of such 3/4 wheel standard scooters (Honda / kinetic / bajaj) is easy & economical due to vast availability of mechanics & spare parts for these models and also importantly, the running cost is affordable as these scooters give mileage of app. 35 kmpl. His vehicle was registered as ‘Invalid Carriage’ and he was given a driving license denoting the vehicle number on the license. As per the license, he can not drive any other vehicle.

Pushpakumar had been comfortably riding on the vehicle for the past twelve years, abiding all the traffic rules and without making any nuisance to other riders and to the general public. Meanwhile he was married and has a son aged seven years. As a result of twelve year long riding, his vehicle began to give him troubles due to wear and tear. Kumar therefore bought a new gear-free scooter (Honda Activa) and got attached side wheels similar to that of his old vehicle. The RTO, Cherthala (Road Transport Officer-the automobile registering authority concerned), when approached for the registration of his new vehicle on 05.07.2007, has denied registration. According to the RTO the modifications Pushpakumar has carried out on the vehicle are not as per rules and threatened him that the authority can seize the vehicle at any time. But unfortunately Kumar cannot drive or travel elsewhere without an invalid carriage. He is holding a license to drive an invalid carriage and his old vehicle was registered as 'invalid carriage'. Kumar heard the words of the RTO with a shock. If he is not permitted to use his new vehicle as invalid carriage, he would be put in great trouble. He can not even go to office, travel elsewhere, cannot feed his family and fulfill their needs. The RTO told Pushpakumar to produce a sale letter (form 21) of the ‘Invalid Carriage’ and then only he can register the vehicle as an ‘Invalid Carriage’. It sounded like suggesting an unavailable remedy for an incurable disease, as no automobile manufacturers in India supply company-fitted scooter with side wheels or produces an invalid carriage. The RTO quoted some rules from the Motor Vehicles Act, 1988 (Amendment to Sec. 52 in 2002) in support of his arguments. "No automobile manufacturer is making carriages for the physically challenged. The prototypes of all vehicles including the one for the disabled should be approved by the Pune-based Automobile Research Association of India,” the RTO pointed out. Otherwise no modifications on any vehicle will be permitted and one should use a vehicle in the same shape and design as supplied by the company. It was an insult made to Pushpakumar asking a person left paralysed below waist to drive a two wheeler scooter…!

The Pune-based Automobile Research Association of India, when contacted by Jagdish Motwani, Mumbai (A person facing similar issue), have clarified vide their letter No.ARAI/APX/CMVR-CORR/06-07/172 dated November 16, 2006 as under:

1. Currently there is no specified / notified procedure for the testing and certification of such systems in our country as a retro-fitment on existing vehicles.
2. The vehicles fitted with such systems have to be verified and certified by the Regional Transport Authorities as an “Invalid carriage”.
3. The suitability of the modified vehicle for the person with a particular disability for purposes of safe driving has to be examined by a medical practitioner and certified so, with respect to the nature and type of disability.
4. The Regional authorities would verify the report of the medical practitioner and also ensure that the physically challenged person is able to drive the vehicle safely.

Still the transport authorities are sticking to the rule 126 of Central Motor Vehicle Rules 1989, i.e., prototype of every motor vehicle subject to test!

Being aggrieved by the action of the RTO, Pushpakumar sent letters to District Collector, Transport Minister, Transport Secretaries and the Chief Minister with a request to intervene into the matter and make justice available to him immediately. By the time, the issue had gained much media attention including television channels giving wide coverage. But none has turned to extend a helping hand and has done nothing to redress his grievance. It was an acute painful experience in his hitherto life. Pushpakumar again approached the RTO on 27.07.2007 with the same request to register his new vehicle as ‘invalid carriage’ without sticking on the sale letter, as; such a sale letter is not available in India. Contrary to the request the RTO has registered the new vehicle as ‘Motor cycle without gear’. This registration has made the new vehicle unusable, since Kumar do not have a license to drive a ‘Motor cycle without gear’. And due to his disability Kumar is not eligible for obtaining a license to drive a ‘Motor cycle without gear’, It is now clear that the authorities are imposing a Blanket Ban on Registration of Vehicles used by the disabled paving way to the disability discrimination.

“If the provisions of Amendment to Sec. 52 not being applied in isolation to vehicles of Disabled, then why registration of Trucks, Tankers, Buses, etc. is not similarly banned as even for them only Engine, Cowl & Chassis is supplied by Manufactures (like Tata, Ashok-Leyland, etc.) & Load / Passenger Body, Tank, etc. are fabricated subsequently by local fabricators who are not asked for Prototype approval. This arbitrary rule is being applied only for disabled riders. Still the Depts. /Govt do not have any details available with them about Accidents, Traffic Offences and Vehicle Failure of such vehicles”, Pushpakumar asked.

We  feel the action of the RTO and the silence of the Government is in violation of the following articles/sections laid down on the Convention on the Rights of Persons with Disabilities.

 Article 4(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
 Article 4(d) to refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention;
 Article 4(f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines;
 Article 4(g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost;
 Article 4(h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities;
 Article 5
Equality and non-discrimination
 States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
 States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
 In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
 Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.
 Article 9
 To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.
 Article 20 States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by:
 Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost;

(b) Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost;
 Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities;

(d) Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.
 Article 26 Habilitation and rehabilitation States Parties shall take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. To that end, States Parties shall organize, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services, in such a way that these services and programmes.

As a result of all these, the new vehicle is kept in the porch and Pushpakumar is now forced to use his twelve year old vehicle which is not in good condition and requiring frequent repairing. At the same time the old vehicle of similar type is enjoying full legal protection. Is it not an atrocity and discrimination shown towards the disabled and the helpless persons like Kumar?

The Maharashtra State Transport Commissioner on his letter No.MVR-0902/CR-46(A)/D-H (4) ON-764 dated 16th January, 2006 addressed to the Secretary to the Government of India, Ministry of Road Transport & Highways, requested the Government of India to exempt such modified two wheeler solely used for the physically disabled persons from the purview of Central Motor Vehicle Rules 126 i.e., “Prototype of every motor vehicle to be subject to test”. The Commissioner had also pointed out in his letter that various high courts had given directions to the various State Governments to take various steps for the benefit of the physically disabled person.

Recently the 19 th meeting of the standing committee of the Transport Ministers, Transport Secretaries and Transport Commissioners of southern states held at Thiruvananthapuram on 6 th and 7 th July, 2007, have inter alia, recommended the Central Government as follows:

“Item No.21
Sub: Alteration of vehicles for use of handicapped.
(Sponsored by: Transport Commissioner, Kerala)
As per Section 52 of MV Act “no owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate of registration are at variance with those originally specified by the manufacturer”. 
Several applications are being received from handicapped persons for alteration of their vehicles so as to drive themselves. But the above provision does not permit such alterations. Previously, Maruti Udyog Ltd. used to manufacture special type vehicles for handicapped persons with suitable modifications/attachments. As the requirement of different persons with different disability varies, the modifications/attachments are also has to be different. Since the prototype of each model has to undergo the test, under Rule 126 of CMV Rules, the manufactures has stopped production of such vehicles. It is desirable on humanitarian grounds to allow modifications/alterations of vehicles enabling the handicapped to drive their own vehicles.”

In spite of all these, the Government of India is closing eyes and shutting ears to the woes of the disabled and helpless persons. The Government does not have to spend even a single rupee from its exchequer to solve this problem and moreover the problem is the creation of the same Government due to the said amendment in 2002 to Sec. 52 of the Motor Vehicles Act, 1988.
Should we think the UN treaty on the rights of the persons with disabilities India have signed and other mechanisms for the promotion and protection of rights of persons with disabilities is sabotaged or sidelined in India?

Should we think the independent India, celebrating its 60th year of freedom, has not so far been made capable to handle these types of genuine and minor issues?

Since the disabled, as yet, do not have any economic, political or media power in India, they tend to be mostly ignored by society. Their fundamental freedom is challenged; human rights are violated; right to equality is breached; and while India celebrates freedom, they are loosing. Should the lives of the disabled end up in the dark corridors?

Is Kumar put in trouble because of some recent legislative changes in India or the authorities are misinterpreting the rules?

The remedies sought by Pushpakumar to solve his problem are to:

1. Exempt the vehicles adopted for the use of disabled persons i.e., the fitment of extra wheels at rear to the motor cycle from the purview of rule 126 of Central Motor Vehicle Rules 1989, i.e., prototype of every Motor Vehicle subject to test.

2. Empower the concerned RTOs to test and approve a modified scooter owned and used solely by a physically challenged person, as INVALID CARRIAGE.

3. Issue sufficient guidelines to get his new vehicle (Honda Activa – registered as ‘Motor Cycle without Gear’) registered as ‘INVALID CARRIAGE’.

As a last resort, Pushpakumar is considering to take up the issue with the UN related institutions of human rights and associated matters. Kumar is still hopeful –over ruling all his disabilities- his eyes sparkled…….



Is Your Hut On Fire Today?

The only survivor of a shipwreck was washed up on a small, uninhabited island. He prayed feverishly for God to rescue him, and every day he scanned the horizon for help, but none seemed forthcoming. Exhausted, he eventually managed to build a little hut out of driftwood to protect him from the elements, and to store his few possessions.

One day, after scavenging for food, he arrived home to find his little hut in flames, and soon there was nothing left.

The worst had happened, and everything was lost. He was stunned with disbelief, grief, and anger.

"God, how could you do this to me ?" he cried.

Early the next day he was awakened by the sound of a ship approaching the island. It had come to rescue him.

"How did you know I was here ?" asked the weary man of his rescuers.

"We saw your smoke signal," they replied.

It's easy to get discouraged when things are going bad, but we shouldn't lose heart, because God is at work in our lives, even in the midst of pain, and suffering. Remember this the next time your "hut" seems to be burning to the ground. It just may be a smoke signal that summons the grace of God.

You May Want To Consider Passing This On, because "You Never Know Who Feels Like Their Hut Is On Fire Today"