In issues handled by the Disability Law Group of the Cane Foundation, one question that often props up is whether persons with disabilities have a right to live independently. This question is primarily pertinent in community settings when persons with disabilities seek facilities for living life free from barriers placed by the society. The Indian law on disability, which is based on the UN Convention on the Rights of Persons with Disabilities does not specifically provide for this right, and assertion of this right is often view with circumspection. The objective of this note is to clarify that the right to independent living is a combination of rights with the help of excerpts from a report by the United Nations High Commissioner for Human Rights (OHCHR) .
The Report on Independent Living Right
Through a resolution, the Human Rights Council requested OHCHR to prepare a report on the right of persons with disabilities to live independently and be included in the community. The OHCHR prepared the said report and made it available in the 28th session of the Council. Some important excerpts of the report are provided hereunder for the reader’s benefit.
The right to live independently and be included in the community
“3. Persons with disabilities are often presumed to be unable to live independently. That presumption is based on misconceptions, including that they lack the ability to make sound decisions for themselves and that, therefore, society needs to protect them. This approach, practised in many countries for a long time, has deprived persons with disabilities of the opportunity to choose where and with whom to live and to determine their own future.
4. In article 19 of the Convention on the Rights of Persons with Disabilities, the States parties to the Convention recognized the equal right of all persons with disabilities to live independently and be included in the community, with choices equal to others. The foundation of that right is the core human rights principle that all humans are born equal in dignity and rights, and that all life is of equal worth. On those grounds, persons with disabilities have claimed the right to participate in all areas of mainstream community living, arguing that the capacity of all individuals to make choices in that regard must be acknowledged and enabled. Knowing their own needs best, persons with disabilities have sought control over options to choose, requesting that community services be made available to them on an equal basis with others. That approach has gradually been introduced in the laws and policies of some countries.
5. Those changes in approach are causes and consequences of the transition from a medical and charity approach to disability, whereby persons with disabilities were seen as passive objects of care, to a human rights-based approach. The latter approach takes the view that it is the society that must accommodate human diversity and enable persons with disabilities, among others, to be an active part of it. An important milestone in the process was the adoption of the Convention on the Rights of Persons with Disabilities in 2006, which established an obligation for States parties to take effective and appropriate measures with a view to achieving full inclusion and participation of persons with disabilities in the community.
6. Article 19 reflects the essence of the Convention, in which persons with disabilities are regarded as subjects of rights. The article is aimed at preventing abandonment, institutionalization and segregation in domestic settings through the promotion of enabling and inclusive environments for all, and the abolishment of legal provisions that deprive persons with disabilities of choice by forcing them to live in institutions or other segregated settings. Fulfilment of the obligations under Article 19 also provides the conditions for the full development of the personality and capabilities of persons with disabilities.
7. The foundation of an independent and inclusive life in the community for persons with disabilities is provided for by the general principles of the Convention (art. 3), in particular the principles concerning full and effective participation and inclusion in society, and respect for the individual’s inherent dignity, autonomy and independence. Full enjoyment of the right to live independently in the community is both the result of, and a precondition for, the combating of stereotypes and prejudices relating to persons with disabilities and the promotion of awareness of their capabilities and contributions to society (art. 8). Non-discrimination (art. 5) and accessibility (art. 9) are essential to ensure that community services and facilities for the general population are available on an equal basis to persons with disabilities and respond to their needs. Measures to prevent multiple discrimination are required to guarantee women with disabilities the full and equal enjoyment of the right to live independently in the community (art. 6). The specific barriers that children with disabilities face in enjoying this right, including to have their views taken into account on an equal basis with other children, should be duly considered and addressed when determining the best interest of the child on issues related to article 19 (art. 7).