Background paper prepared by Bapu Trust, for meeting on de-institutionalization and thinking alternatives, 14th-15th April 2015, New Delhi

Brainstorming meeting on institutions for children and persons with disabilities:

Thinking alternatives

14th, 15th April 2015, New Delhi

Organized by Center for Rights of Persons with Disabilities (CRPD) and the Bapu Trust

A background note

India ratified the UNCRPD in 2008, and has an obligation to ensure all human rights for all persons with disabilities. Among the rights placed center stage for the forthcoming meeting, are the following:

Article 19: Right to live independently and be included in the community

Article 14: Right to liberty and security

Article 15: Freedom from torture, cruel, inhuman, degrading punishment or treatment

Article 16: Freedom from exploitation, violence and abuse

Article 17: Protecting the integrity of the person

Article 12: Equal recognition before the law

These rights of course must be read in tandem with other important Articles of the CRPD including ones on Right to Health and rehabilitation (25, 26); Equality and Non discrimination (5); Right to life (10); Articles on women and children (6, 7).

Over the last decades many of us have been concerned about the nature of institutions and lack of community based alternatives for children, men and women with disabilities. Events relating to Erwady asylum in Tamil Nadu, India, in 2001; and Asha Kiran, New Delhi, in the last few years, have highlighted the serious need to reform the disability sector from a human rights perspective. A recent report by Human Rights Watch [i], the Zero Draft of the UNCRPD Monitoring Report put out by NCPEDP [ii], the legal works and reports of Dr Asha Bajpai relating to the Mumbai High court proceedings on the massive scale of abuse against children with intellectual disabilities provoke civil society into taking human rights actions yet again. Meetings have been held by a variety of groups [iii] [iv] [v] including the recent National consultation by the Indian network of Women with Disabilities, protesting those abuses and violations that happen behind closed doors. Depositions, litigation and other efforts by HRLN lawyers in different parts of the country have also been around the issue of forced institutionalization, to protect Article 21 of the Indian constitution for persons with disabilities.

In the international front, even though there is ample scope for negotiation, the World Health Organization (WHO) at the least admitted that the presence of these laws have not secured respect and the safeguard of human rights [vi].  In the case of Korean submission before the UNCRPD Monitoring Committee, civil society made it amply clear that mental health legislations or any ‘special’ legislations result in the phenomenal increase in custodial institutions. In India too, following Erwady tragedy, custodial institutions have grown phenomenally in the private sector and ‘mentally ill’ patients are the only “health care consumers” who pay to get themselves involuntarily arrested and committed. UNCRPD committee Concluding Observations in a variety of country contexts, but most pointedly, in the case of China, have given clear directions for de-institutionalization and for realizing Article 19. The General Comment on Article 12 issued by the CRPD monitoring Committee [vii] has clearly directed that the right to legal capacity be ensured in health care settings. In 2008, The UN SR on Torture had already declared that institutionalization may constitute torture or ill-treatment if detention is indefinite. In 2013, the SR on torture, and other cruel, inhuman and degrading treatment or punishment expanded on this position and prohibited a wide variety of custodial practices found in the disability sector worldwide (medical treatments lacking therapeutic purpose; restraints; seclusion; coercive and non-consensual treatments; forced medication; electroshock procedures). The UN SR on Violence Against Women who visited India in 2012 also critically commented on forced sterilization and involuntary commitment, and concomitant violence on women and girls with disabilities. Also see an earlier Commission Resolution, viz. ‘Basic Principles and guidelines…’  which clearly mentions criminal sanctions against perpetrators of psychiatric detention and compulsory treatment [viii]. The WGHR group which intervenes in the UPR process of the United nations OHCHR and the Human Rights Council critically documented human rights violations of persons, especially women, with disabilities in the context of enforced detention and cruel, inhuman and degrading treatments[ix]. Not happy with the coverage of the WGHR submission, and mentored by the International Disability Alliance, the National Disability Alliance submitted its own UPR report focusing on disability rights [x].

Against this scenario, emerging groups of persons with psychosocial disabilities in the Asian region (TCI-Asia) has advocated as follows:

“… many countries in Asia are bereft of any kind of community support systems for people with psychosocial disabilities. Some of those countries are poised for drafting and adopting a Mental health law, contrary to world experience of vast human rights violations within institutions. The Asian region is geographically, culturally and linguistically diverse with complex social systems. Devising strategies for Inclusion of persons with disabilities has to factor in this dynamism through local mental health programs integrated with community development.”

On the question of ‘If not institutions, what else…?’ a large set of accumulating knowledge is growing, on community based practices. In a very significant and celebratory moment, the resolution 25/20 the Office of the United Nations High Commissioner for Human Rights (OHCHR) released this year, their findings of  a study on the right of persons with disabilities to live independently and be included in the community (art. 19 of the Convention on the Rights of Persons with Disabilities). The study has defined ‘institutions’ in a new way, suggesting that institutionalization is a mental attitude rather than a material structure. The study enumerates a variety of good practices on living independently and being included in communities. Commitments of Asian region countries to the Incheon Strategy is yet another way by which persons with disabilities can inch their way forward into the development arena with dignity. While these pathways may be difficult, it is upto communities and collectives to open new doors for our inclusion in development.

CBR has inhabited the disability and development world for a long time. The World Report on Disability (2012) engaged world communities of people working in the disabilities sectors, to create enabling environments close to communities, taking the CBR framework forward. Inclusion International brought out two comprehensive reports [xi] [xii], where ‘Inclusion’ has become the guiding principle for all interventions: Any intervention that excludes people with disabilities from communities is considered as bad Development practice. Moving from their earlier 2010 Guidelines, CBM (2014) came up with a strategy paper on Inclusion of persons with psychosocial disabilities, describing good practices relevant to the Global South. The Trans Asian group of persons with psychosocial disabilities put together a document on good practices on Inclusion of persons with psychosocial disabilities in Bangkok, November, 2014.

Among several ideas, some common themes for such ‘Inclusion services’ are: supported networks at the community and family level and civil registrations thereof; foster parenting of those without any support systems; independent living communities; peer support, friendship and alternative social systems; groups and grassroots organizations of social workers, self advocates and community supporters on Inclusion; neighbourhoods and development practices in urban areas; a spectrum of all essential services in low income communities; and organizations that can build the capacities of communities on Inclusion.

[i] www.hrw.org/sites/default/files/reports/india_forUpload.pdf “Treated worse than animals”. Human Rights Watch, 2014.

[ii] NCPEDP, 2013. Report on the CRPD implementation in India- Zero draft. NCPEDP, New Delhi.

[iii] NAAJMI (2009) NAAJMI, ‘Bill of Rights: Insights of a Mad Pride Campaign (2005-2008)’. Ed. Bhargavi Davar. Mental health Advocacy Resources, Volume II. Pune: Bapu Trust for Research on Mind & Discourse.

[iv] (2013), “Protection of Children with Disabilities – The Way Forward….” Organized by Aarth Astha, Seminar Hall No.3, India International Centre, 40, Max Muller Marg, Lodhi Road, New Delhi. 25th June 2013.

[v] (2012), The Disabled Rights Group (DRG) and National Alliance on Access to Justice for People Living with a Mental Illness (NAAJMI), organized a peaceful protest outside the Ministry of Health and Family Welfare on the 10th of October, 2012, against the new proposed Mental health care Bill.

[vi] 10 Facts on Mental Health, WHO, Geneva. “Human rights violations of people with mental and psychosocial disability are routinely reported in most countries. These include physical restraint, seclusion and denial of basic needs and privacy. Few countries have a legal framework that adequately protects the rights of people with mental disorders.”

[vii] http://www.ohchr.org/EN/HRBodies/CRPD/Pages/GC.aspx

[viii] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law, UN Commission on Human Rights Resolution 2005/35:  “Under their obligations to take effective measures to prevent torture and ill-treatment, States Parties must enact and enforce criminal sanctions against perpetrators of psychiatric detention and compulsory treatment, and must provide reparations to victims and survivors.”

[ix] UPR, India Review, 13TH SESSION OF THE UPR WORKING GROUP, UN HUMAN RIGHTS COUNCIL (21 MAY – 1 JUNE 2012) JOINT STAKEHOLDERS’REPORT, Geneva Submitted by Working Group on Human Rights in India and the UN (WGHR), India, November of 2011

[x] Universal Periodic Review and Disability, an Indian experience. DNIS, Volume 9, Issue 5, May 15 2012. http: //www.dnis.org/features.php?issue_id=5&volume_id=9&features_id=204

[xi] Inclusion International, 2012. “Inclusive Communities = Stronger communities. Global Report on Article 19”, London.

[xii] Inclusion International, 2014. “Independent but not alone. A global report on the right to decide”. London.

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