For the first time the CEDAW Committee mentions the issue of disability based detention in its Concluding Observations, which is very important, especially given the climate on this issue generally across human rights mechanisms.

Anjlee Agarwal raised the issue of women and girls with disabilities prior to and during the India review- as a result there were concrete questions on women and girls with disabilities with respect to education, employment, health (forced sterilisation, institutions, forced treatment) and a reference in relation to structural discrimination.

Women With Disabilities India (WWDA) Statement on International Human Rights Day

On this International Human Rights Day, we remind our Governments of their obligation to protect, protect, respect and fulfill the human rights and fundamental freedoms of women and girls with disabilities. Regrettably, in contemporary India, realisation of the most basic human rights remains a distant goal for many women and girls with disabilities. Instead, we continue to be denied the most fundamental rights and freedoms, we are not treated with dignity and respect, we remain profoundly more disadvantaged than our male counterparts; we are systematically denied opportunities to develop, gain an education and live a full and meaningful life. We experience multiple forms of discrimination, and widespread, serious violation of our human rights.

Whilst we want improved access to the built environment, better accessible transport, more choice around personal support and so on, we also want the right to be recognised as sexual beings, with the right and freedom to experience and express our sexuality, to have control over own bodies, to experience love, intimacy, sex and desire. For many of us, particularly those of us locked in institutions and trapped within restrictive environments, we want the right to make our own decisions, to be given choices, to be seen and treated first and foremost, as women. We want ALL forms of violenceperpetrated against us to stop. We want the right to have children and keep our children. We want authorities to stop taking our babies from us solely on the grounds of our disability. We want courts to stop awarding custody of our children to our violent ex-partners, just because we have a disability. We want access to justice when our rights are violated. When we are raped and sexually abused, we want to know that our word and our evidence will be treated as credible. We want the right to work in meaningful employment – in safe workplaces and public spaces including transportation, where we are free from violence, harassment and discrimination. We want the right and the opportunity to participate in decision-making about issues that affect our lives and those of our families, community and nation. We want our decision-makers to understand that just because we are women with disabilities, does not mean we are not entitled to recognition, respect, dignity and rights.

We have been ignored and trivialized at all levels for far too long. This apathy and indifference cannot continue. Women and girls with disabilities matter. Our human rights matter.

As a priority, on this International Human Rights Day, and the final day of the 16Days of Activism Against Gender-Based Violence Campaign, Women With Disabilities India re-iterates our call to the Indian Government to be seen and treated first and foremost, as women!

Violence Against Women With Disabilities: The Facts

  • Violence against women with disabilities is far more extensive than violence amongst the general population
  • Violence perpetrated against women with disabilities is significantly more diverse in nature and more severe than for women in general.
  • Compared to their peers, women with disabilities experience significantly higher levels of all forms of violence and are subjected to such violence by a greater number of perpetrators.
  • Women with disabilities are 40% more likely to be the victims of domestic violence than women without disabilities, and more than 70% of women with disabilities have been victims of violent sexual encounters at some time in their lives.
  • Twenty per cent of women with disabilities report a history of unwanted sex compared to 8.2% of women without disabilities.
  • The rates of sexual victimisation of women with disabilities range from four to 10 times higher than for other women.
  • More than a quarter of rape cases reported by females in India are perpetrated against women with disabilities.
  • Ninety per cent of women with an intellectual disability have been subjected to sexual abuse, with more than two-thirds (68%) having been sexually abused before they turn 18 years of age.
  • Women and girls with disabilities have far less chance of being believed when reporting sexual assault, domestic violence, and other forms of violence, than other women and girls.
  • Crimes of violence committed against women with disabilities often go unreported, and when they are, they are inadequately investigated, remain unsolved or result in minimal sentences.
  • Women with disabilities continue to experience violence (particularly sexual violence) in residential and institutional settings, where they frequently experience sustained and multiple episodes.

Source:
Status of Women with Disabilities in India
Report to SRVAW, March 2013
Convention on the Elimination of All Forms of Discrimination against Women

Fact sheet on women with disabiities in India

In India above 11.84 million women with disabilities (WwDs) form a heterogeneous group and disability and gender also intersect with other categories like class, caste, ethnicity, and rural-urban residence. On behalf of Women with Disabilities India Network (with over 400 disabled women members across India), we urge the Committee to first and foremost highlight in all its recommendations a specific focus on women with disabilities, to address the historic neglect of this disadvantaged group by all concerned parties. Participation of women with disabilities as primary stakeholders, at all stages of law and policy formulation should be made mandatory. Policy measures with relevant budget allocations and human resource allocations along with defined time targeted outcomes will prove more effective.
The Ministry of Women and Child Development (MWCD) does not adequately address rights of women and girls with disabilities or coordinate any actions for them as disability is understood to be a concern of the Ministry of Social Justice and Empowerment (MSJE). While the Department of Disabilities Affairs, MSJE considers that their issues to be addressed by MWCD. Other ministries are not sufficiently aware and thus hardly concerned about the rights of women with disabilities.
The Network highlights four critical issues:

    1. Accessibility and non-handicapping environment
    2. Women with disabilities are erasured as individuals and invisible as a group. Subject to the combined disadvantages associated with gender and disability, they face discrimination, inequalities, exclusion, violence and stigma. To achieve non-discrimination and de-facto & de-jure equality for women and girls with disabilities in all aspects of life, a fully accessible environment has to be ensured. The State must recognise the denial of reasonable accommodation in particular to women and girls with disabilities, as a form of disability based discrimination, and establish steps to mitigate this discrimination.

We urge the Committee to recommend that accessibility is made mandatory in all infrastructure, services, facilities and public places irrespective of it being public or private ownership and provide for a penalty for non-compliance to universal accessibility standards.

    1. Collection of disaggregated data on disability and gender at all levels

      The government data collection under various systems like the Sample Registration System (SRS), the National Crime Records Bureau (NCRB), the National Family Health Surveys (NFHS) etc. remains silent on disability and gender. Even the macro-level data available on disability in the public domain lacks data on gender. This lack of disaggregated data creates a vacuum in understanding the realistic picture of the needs of WwDs and developing the proper responses, policies and programmes. We urge that the Committee recommend to the State party to ensure the collection of disaggregated data on disability, gender and age under all its systems of data collection at both micro and macro levels.

    2. Forced incarceration of women with disabilities in institutions- governmental and non-governmental

      It is common practice to use institutions especially mental health institutions as dumping grounds for women with disabilities. Moreover, women they are rarely taken back home after treatment. Orders for Committal or continuation of detention in a mental health facility are passed without their presence thus leading to the deprivation of their liberty and legal capacity. Direct electro-convulsive therapy (ECT) is still practised unabated. Additionally, monitoring mechanisms are non-existent especially in case of government run institutions.

      We request the Committee recommends that State Party take action to:

      • Stringently implement monitoring mechanisms in public and privately run institutions and ensure that forced incarceration is not permitted by law on women with disabilities.
      • Address the issue of mental health detention and compulsory treatment as an unjustified breach of the right to liberty, security and to be free from arbitrary detention.
      • Ensure that the penal laws are amended to punish those who violate and not provide protection of prior sanctions for the officials of a government run facility.
    3. Stereotypes and harmful practices

      Response to paragraph 8 of the list of issues: The State is till date adopting and promoting practices which entrenches the stigma and discrimination faced by women with disabilities in society-for example, the campaign which promotes “incentives” to “Wed a Disabled Person”- in which INR 50,000 (approximately USD 760) is offered by the State of Goa, Odisha, etc. for marrying a disabled woman. Such initiatives are humiliating and derogatory and do not espouse a human rights based approach to the rights of women with disabilities. This reflects the general public opinion and narrow thinking of society which views women with disabilities as a burden. The state parties should abolish such policies and practices. There is an urgent need for the government to take on human rights based approach campaigns to promote the positive image of women with disabilities and their active role in contributing to society.

    4. Inclusion of WwDs in the Right of Persons with Disabilities Bill, 2014
    5. Post India’s signing and ratification of the Convention on the Rights of Persons with Disabilities (UNCRPD), the State Party undertook the creation of a new legislation on disability on the lines of the UNCRPD to replace the current Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. After two drafts of 2011 and 2012, the final version was presented in the Parliament in 2014 but was stalled. In the present bill the twin track approach on gender has been done away with, which dealt in a holistic manner with the rights and empowerments of these marginalised groups.

As the bill is still under consideration and can be amended, it is an opportune time to reintroduce the chapters on women with disabilities into the Bill for addressing their issues, needs and holistic empowerment. We ask the Committee to recommend to the State Party to recognise that WwDs face multiple levels of discrimination and to reintroduce the chapters on women and children with disabilities from the 2011 draft of the Rights of Persons with Disabilities Bill into the present version.

Oral Statement – Forced Detention

Women with Disabilities are particularly vulnerable to violence and abuse at home, in institutions and in public spaces. More women than men are found in mental hospitals/asylums, while men are admitted for treatment in early stages, women are dumped only after their illness becomes chronic.  Women are rarely taken back home after treatment. Committal or continuation of detention in a mental health facility of women with disabilities are passed without the presence before the court and without their statement which leads to the deprivation of their liberty and legal capacity. Besides fraudulent confinement, the misuse of shock treatment through Electro-Convulsive Therapy (ECT) continues despite its ill effects.

The State must stringently implement monitoring mechanisms in institutions of care and protection covering public and privately run institutions and ensure that forced incarceration is not permitted by law on women with disabilities. Guidelines and laws for monitoring of religious institutions (shrines, temples, dargahs) purporting to cure certain disabilities ensure that no direct Electro-Convulsive Therapy (ECT) is given to them. Ensure that the penal laws are amended to punish those who violate this requirement.

The State must adopt the emerging norm that prohibits any form of mental health detention and compulsory treatment, as elaborated under the Convention on the Rights of Persons with Disabilities. The CRPD unlike earlier non-binding declarations prohibits detention on mental health grounds, including when additional factors or motivations, such as prevention of harm to the person or others, are added.

CRPD Article 14 obligates states to ensure that no one is detained in any kind of a mental health facility and to repeal legal provisions that authorize detention of persons with psychosocial disabilities, including those provisions that portray persons with psychosocial disabilities as potentially dangerous to themselves or others, or as being in need of care and treatment. CRPD General Comment No. 1 holds that institutionalization against a person’s will or without their free and informed consent constitutes arbitrary detention and violates Article 12 on equal recognition before the law, in addition to Article 14 on liberty and security of the person.

A person’s actual or perceived deficits in mental capacity or decision-making cannot justify a denial of legal capacity including the standing and agency to make decisions about medical (including psychiatric) treatment.  Support for decision-making must be made available based on the person’s will and preferences rather than a perception of their best interest.

Concluding Observations under the CRPD consistently articulate a state obligation to ensure that all health and mental health services are based on the free and informed consent of the person concerned.  General Comment No. 1 characterizes forced psychiatric treatment as an infringement of the freedom from torture as well as a violation of the right to decide about medical treatment under Article 12, and urges its abolition.

The States should address the issue of mental health detention and compulsory treatment as an unjustified breach of the right to liberty and security of the person and of the right to be free from arbitrary detention.

The States to ensure that no person is detained in any kind of a mental health facility and that all mental health services are based only on the free and informed consent of the person concerned.  The legal capacity of persons with disabilities to give or withdraw consent for mental health services or hospitalization must be respected at all times, including in crisis situations, and supports must be provided for decision-making that are based on the person’s will and preferences, rather than best interests.

The Committee may also wish to state, in accordance with CRPD Article 14 paragraph 2, that persons with disabilities are not exempt from any form of detention that is applicable to the general population, and are entitled to equal guarantees as others in the event of such detention; in addition they are entitled to be treated in accordance with the highest standards found in international law regarding the rights of persons with persons with disabilities, including the provision of reasonable accommodation.

The draft General Comment on liberty and security of the person is an ideal context to announce its adoption of this emerging norm, so that people with psychosocial disabilities are ensured of their full enjoyment and exercise of all rights under the Covenant on an equal basis with others and all states are made aware of their obligations.

Recommendations to CEDAW Committee

India Women with Disabilities

  1. Principal areas of concern

    The Committee is concerned about the lack of protection, empowerment and integration of women and girls with disabilities The Committee notes with regret that the State party has not paid due attention to creating inclusive, protective and accessible environments for women and girls with disabilities in the areas of education, employment, health and public spaces in view of the multiple levels of discrimination faced by them. Lack of disaggregated data on disability and gender, unavailability of accessible female toilets, inaccessible environments including in schools, forced treatments and incarcerations and  a missing twin track approach to gender in the pending Right of Persons with Disabilities Bill, 2014 are serious concerns.

  2. Recommendations

    The Committee recommends and urges the State party:
    (a) To generate disaggregated data on admission and drop outs of girls with disabilities in schools especially under the State Party’s flagship programme Sarv Shiksha Abhiyan;

    (b)To generate disaggregated data on disability and gender under all the State Party’s surveys and data collection programmes;

    (c)To provide accessible toilets for girls with disabilities in all schools both public and private;

    (d)To ensure strict compliance along-with penal provisions on default of universal accessibility norms by all stakeholders providing education in the State Party;

    (e)To  develop a comprehensive strategy in consultation with experts on intellectual and multiple disabilities from the disability sector to include girls with intellectual and multiple disabilities into mainstream schools;

    (f) To ensure that involuntary treatment, such as forced abortion, contraception, sterilization and incarceration are not permitted by law on women with disabilities; and

    (g) To expeditiously enact the proposed Rights of Persons with Disabilities Bill, 2014 with the incorporation of a separate chapter on women and girls with disabilities as provided for in draft of the Rights of Persons with Disabilities Bill, 2011.

Specific recommendations on CEDAW Articles

Article 10 Education
We strongly recommended compulsory inclusive education for girls with disabilities with adequate provisions for alternate teaching learning material and adequate number of special educators in both rural and urban areas. Government must take steps to reduce inequalities in educational participation of WwDs.

Art 5, 12, 16
Many women with disabilities especially those with intellectual disability are denied family life and motherhood. Many States have started an unethical scheme contributing to increasing violence on women with disabilities in the guise of enhancing their matrimonial opportunities giving economic benefits – upto 760 USD to non-disabled persons to marry persons with disabilities. We recommend this scheme be abolished as this is commodification of women with disabilities.

Art 12 Health
We recommend the removal of social, architectural and economic barriers to access health care by women with disabilities. We recommend strong prohibitions for forced sterilization , hysterectomies and abortion of women with intellectual disabilities.

Art 15 Violence
We recommend that there should be strict Guidelines and monitoring mechanisms to ensure that there is no abuse and violence against women with disabilities in institutions such as   mental health facilities, care-homes, residential hostels, halfway homes, homes for the destitute, juvenile homes for children with special needs and religious places. We recommend that no ECT should be administered to women with psycho-social disabilities without their consent. We recommend the incorporation of women with disabilities in the prevention of Domestic Violence Act 2005.