For Persons with Disabilities, Elections Continue to Be One Giant Nightmare

Amba Salelkar
Grist Media

Elections are the one time when all citizens of a country are allowed the one unfettered chance to exercise their choice, their say, and give voice to their aspirations and pass judgment on the past performance of those who governed them. In this exercise, all citizens are equally entitled to the right to vote, and the right to secret ballot.

Provided, however, that you are a "complete citizen" in the eyes of the law.

Any person who has visited a polling station in India is aware of its spartan yet secure style of functioning, and considering that this is the world's largest democracy, it is a wonder that it is conducted as successfully as it is. While it seems difficult and unfriendly to the average voter, it gets tremendously worse if a voter arrives at a polling booth with an impairment to access it on par with the average "able-bodied" voter. Through the years, persons with disabilities have placed dignity on the side while exercising their right and duty as citizens of India, as voters, though finally there did come a time when the sector realized that this was one compromise that the State was obliged to help them avoid.

The furor over the Rights of Persons with Disabilities (RPD) Bill, 2013, constantly highlighted the charity versus empowerment approach, and the approach to voters with disabilities is one more instance of how empowerment isn't part of our general lexicon.

One of the basic principles of democracy and free and fair elections is that of secret ballot. Unfortunately, for persons with disabilities, this tends to be subverted in the name of protectionism. The Conduct of Election Rules, 1961, has been amended time and again to reflect modern technology in the voting process, but always maintains the discretion of the presiding officer to permit a companion to accompany a person who is unable to cast their vote independently on account of "blindness" or other "physical infirmity". The companion is mandated to maintain secrecy of the ballot, but in the course of preparing a response to the Law Commission on Electoral Reforms, it was reported that in several constituencies many blind and visually impaired persons were misled into voting for certain candidates by the appointed "companions", a fact that should surprise less when you realize that the "companion" is not chosen by the person with disability or with their consent. Electronic voting machines (EVMs) may be enabled by the use of braille stickers, but all blind persons in India do not use braille, and this is also not useful for India's large population of persons with low vision. These persons would be greatly benefitted by an audio facility on EVMs, which could be accessed by headphones. This would also benefit the illiterate as well.

The presumption, again, is that all voters receive adequate information that allows them to make an informed decision about their voting choices. The Guidelines on Manifestos, a part of the Election Commission's Code of Conduct for this year's general elections, do not contain any mandates to make manifestos accessible to persons with disabilities. It is up to individual parties to do so, and it was due to the efforts of the Tamil Nadu Differently Abled Federation that the Aam Aadmi Party was the first party in India to release a manifesto in Braille.

Screen reader access could also be beneficial, but then again, there are no guidelines on making political party websites accessible. As a matter of fact, a recent study by the Centre for Internet and Society revealed that only two election-related websites - of the BJP and the DMK - had zero accessibility errors, and that the Election Commission of India website itself had over 64 known accessibility errors.

While a lot of the focus has been on the provision of ramps and braille, the fact is that disability is diverse and the assistance that one needs cannot be in a one-size-fits-all format.

There are some disabilities that get the short end of the stick when it comes to debates on accessible elections. India's deaf population is estimated to be several million, yet there exist no guidelines on employing sign language interpreters at electoral offices and polling stations to help clarify doubts and ease the electoral process. In case employing such a large number of interpreters is unviable, explanatory videos in sign language could be made available to resolve frequently asked questions at various stages.

The judiciary has been responsible for most of the success stories in making the electoral process easier for persons with disabilities. A writ petition was filed in the Bombay High Court by the NGO Disability Rights Group in 2004, which ultimately led to an order mandating Braille ballot papers to be made available to blind and visually impaired voters for the 2005 Maharashtra State Assembly Elections. As a result of this order, 9,780 polling stations in 38 constituencies across Maharashtra made this facility available. The difficulty of dignified access to the electoral process ultimately led to the Supreme Court taking cognizance of a letter written by the Disability Rights Group and converting the same into a Public Interest Litigation, in which interim orders were passed in 2007 on the Election Commission undertaking to provide ramps for wheelchairs and Braille facilities on Electronic Voting Machines. There was also a directive issued by the Election Commission on this order, mandating the training of officials, sensitizing them to the concerns of persons with disabilities and publicizing accessibility features for the elections well in advance.

However, these lofty directives have not exactly resulted in significant changes for voters with disabilities. A rare instance of hope was seen in 2009 when the directives of the Supreme Court seemed to have some effect, and it was hoped that in the years and elections to come, things would improve. In last year's Delhi Assembly Elections, the outcry against the dismal access was immense. Activists led by the campaigning doctor Satendra Singh filed several complaints to the Election Commissioner about the flouting of rules and guidelines. Not for the first time, many persons with disabilities had to go home without casting their vote in those elections. Dr. Singh is also responsible for a very important Right to Information application filed last year which revealed that the Election Commission has barely gone beyond the 2007 guidelines on accessible elections. In Chennai, the State Special Election Officer had a joint public consultation with the Office of the State Commissioner for Disabilities in which persons with disabilities voiced their requirements for an accessible election. Sadly, with less than a month before elections commenced, there was very little that could be assured for the upcoming election besides reiteration of the Supreme Court guidelines and what was already included in Election Procedures.

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There is yet a sizeable section from amongst persons with disabilities for whom even registration as a voter is a distant dream. There is much documentation on the suffrage movements against discrimination on the basis of gender and race, but there is little material on how persons with disabilities have had to fight long and hard for their right to vote on par with other citizens. It is a serious enough issue, however, to warrant a specific provision under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), 2007, which grants the right to political participation under Article 29 - which pertains to both voting in elections and contesting elections. In addition, Article 4 of the Convention talks about State obligations, including taking appropriate measures to modify or abolish existing laws and practices that constitute discrimination against persons with disabilities; to ensure that public authorities and institutions act in conformity with the present Convention; and to eliminate discrimination on the basis of disability by any person, organization or private enterprise. While accessibility measures and guidelines can help most persons with disabilities, there are other groups who find the task of being recognized as voters to be much harder.

India curiously has two statutes titled "The Representation of the People Act" - one enacted in 1950, and one in 1951. The 1950 Act did the preliminary and important task of providing the allocation of seats in, and the delimitation of constituencies for the purpose of election to, the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, etc. The 1951 Act does not repeal the 1950 Act, and in fact refers back to it in several respects. The definition of "elector" under the 1951 Act is one of these provisions - the definition of "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950. Section 16 disqualifies citizens of India from being registered on the electoral rolls if the person "is of unsound mind and stands so declared by a competent court". It has been noted by the Human Rights Council on the Rights of Persons with Disabilities that institutionalization and deprivation of legal capacity were the most common reasons for depriving persons with intellectual or psychosocial disabilities of their right to vote. The "unsoundness of mind" disqualification clause is a death-knell to any attempts of inclusion of these groups. In practice, the certification of a court has never been necessary to deny legal capacity on the ground of disability. Provisions such as the National Trust Act, 1999 create a blanket presumption of lack of legal capacity for persons with mental retardation, autism, cerebral palsy and multiple disabilities, until and unless a certificate to the contrary is issued by a local level committee, and the Mental Health Act, 1987 provides for declaration of unsoundness of mind and appointment of guardians to handle property. It is the National Trust Act and Mental Health Act which are being relied upon by the Reserve Bank of India in their Master Circular to disallow applications of persons with the listed impairments for independently held bank accounts. The mere possibility that a person could be held to be "of unsound mind" or in need of a guardian, if produced before a Court, is enough for any attempted exercise of legal capacity to be thwarted. It is no surprise, therefore, that no attempts are made for registration drives in institutions for persons with disabilities, let alone setting up polling booths or allowing for postal ballots by those residing within them.

The extension of political participation to contesting elections is very much a part of the UNCRPD, but no such facilitation exists under Indian law, including under the RPD Bill presently before the Standing Committee. For persons with disabilities, the ability to vote does not automatically translate into the ability to stand for elections, even if other qualifications are fulfilled. The Tamil Nadu State Election Commission Handbook, for example, allows for disqualification of candidates on grounds of being "deaf-mute", leprosy-affected or of unsound mind. In 2011, protests were held in Chennai against the disqualification of a young deaf woman who wished to contest Panchayat elections. Blind candidates face several difficulties in filling nomination papers on their own, and in several fora, including a recent college election at JNU, there have been disputes based on wrongful rejection of candidature papers. If candidates with disabilities do not inspire confidence in the Election Commission, one can imagine how difficult it would be to convince voters to repose faith in them.

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The net result of excluding persons with disabilities from contesting elections and from voting is that disability becomes a strange sort of political issue: one which gets discussed to display a commitment to social justice for the downtrodden, but without the burden of effective realization of rights. Manifestos will be replete with references to schemes and allowances - but that's about it. A comparison of the current manifestos of the AIADMK and the DMK shows that both parties have prioritized implementation of the 3 percent reservation in the public sector under the 1995 Persons with Disabilities Act. Both parties also refer to financial sops in the form of schemes, allowances, and in the case of the AIADMK, increased tax ceilings. This approach would be perfectly acceptable had this been a state election, and is especially disappointing from the DMK in light of MP Kanimozhi's spirited opposition to calls for the RPD Bill to be passed as a "consensus bill" in the Rajya Sabha. In fact, so far it is only the CPI-M which has a relatively comprehensive section on disability and has made clear reference in their manifesto to the need to ensure UNCRPD compliance in the RPD Bill, in line with the stands taken by their MPs in the Rajya Sabha. The Indian National Congress manifesto, despite the party's usual commitment to "social justice" and Rahul Gandhi's recent vociferous support of the rights of persons with disabilities, forgoes a separate section on issues concerning persons with disabilities altogether, and instead makes a brief mention of a commitment to special education and creating infrastructure for persons with disabilities under "Building the best education system in the world for our students" and ensuring "priority to differently-abled youth with respect to education and employment opportunities". It would be interesting to see how issues are dealt with by other parties, though as pointed out, there seems little incentive to really create something path breaking - despite 15 percent of India's population being persons with disabilities, not to mention their families, caregivers, and friends for whom these issues remain relevant.

It may be optimistic to say that had persons with disabilities been considered to be a vote bank, there would be a lot more willingness to cater to their interests and even encourage political parties to get persons with disabilities to stand for elections. That may be a best-case scenario, but at the very least it is unthinkable that we live in a democracy where some citizens are less equal than others - and in law, no less. The right to effective political participation for persons with disabilities requires legal reform in many aspects but also needs a radical shift in our thinking about them - as equal citizens deserving dignity, recognition of their ability and right to make their own decisions, and in some cases even decisions on behalf of the other citizens they hope to represent.

Amba Salelkar works with the Inclusive Planet Centre for Disability Law and Policy, Chennai.