Fwd: Enrolment of Persons with psycho social & intellectual disabilities in electoral rolls regarding
Vaishnavi Jayakumar
Date: Wed, 7 Nov 2018 at 17:20
Subject: Fwd: Enrolment of Persons with psycho social & intellectual disabilities in electoral rolls regarding
To: <buat...@gmail.com>, Dr. Manjeet Kaur Bal <manjeet...@gmail.com>, prateek aggarwal <prateeka...@gmail.com>, Umang Jaipur <umang...@gmail.com>, Kusum Bhandari <drklbh...@gmail.com>, <dasa...@rediffmail.com>, Djkniquee Cee <djkn...@gmail.com>, Arushi India <arus...@gmail.com>, <meeta_m...@yahoo.co.in>, Piyali Foundation <piyalifo...@gmail.com>, Rohit Trivedi <roh...@gmail.com>, Rohit Trivedi <roh...@msn.com>, Uderam Thakur <uder...@gmail.com>, <ajay...@yahoo.co.in>, <sikkim....@yahoo.co.in>, Satya Special <satyaspecials...@gmail.com>, Sruti <sru...@hotmail.com>, Kinnari Desai BPA <kinnari...@gmail.com>, Satendra Singh <dr.sa...@gmail.com>, Ankit Rajiv Jindal <ankitraj...@gmail.com>, Javed Ahmed Tak <jsocial...@gmail.com>, Dawinder Singh <dawi...@gmail.com>, Siyaa Kdt <siy...@gmail.com>, <rkro...@yahoo.com>, <danesh...@gmsil.com>, Disability Rights Association Goa DRAG <drag...@gmail.com>, Nilesh Singit <nilesh...@hotmail.com>, Tiffany Brar <tiffa...@gmail.com>, anil r Companion <anilrco...@gmail.com>
Cc: Vaishnavi Jayakumar <jayakumar...@gmail.com>, NPdO <npd...@gmail.com>
From: Smitha Sadasivan <smitha.cit...@gmail.com>
Date: Mon, 5 Nov 2018 at 10:32
Subject: Enrolment of Persons with psycho social & intellectual disabilities in electoral rolls regarding
To: <ceo-te...@eci.gov.in>, Sailaja Sajja <sailaj...@yahoo.com>, <cdwt...@gmail.com>
Cc: Umesh Sinha Dy ECI <de...@eci.gov.in>, Umesh Sinha <sinha...@gmail.com>, <chandrabhu...@eci.gov.in>
The Election Commission of India is a part of the Forum of Election Management Bodies of South Asia (FEMBOSA) which, along with other FEMBOSA Commissioners of all SAARC Countries signed a Resolution in October 2015 consenting to work on the full inclusion and equal participation of all persons with disabilities including persons with intellectual & psycho social disabilities in the electoral process on an equal basis with others. For this purpose a set of 9 recommendations were drafted by the Disability Activists from Asia who took part in the South Asia Disability Dialogue on Political Participation held in October 2015 at Colombo. Representatives from Disability sector of India too took part in the Dialogue and the whole process was facilitated by International Foundation for Electoral Systems (IFES). The 7th point in the Recommendations states ‘Legal reform is pursued to guarantee people with intellectual & psycho social disabilities the right to vote and stand for election’ which along with Colombo Resolution signed by FEMBOSA Commissioners is attached here with.
In India, 21 types of Persons with disabilities including intellectual (mental retardation) & psycho social disabilities (mental illness) are legally acknowledged as persons with disabilities in the Rights of Persons with Disabilities Act 2016, which is the Disability Legislation of the country. The legislation can be accessed from the website of the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice & Empowerment, Government of India: http://disabilityaffairs.gov.in/upload/uploadfiles/files/RPWD%20ACT%202016.pdf
The Election Commission of India have issued a press release on 12 March 2016 & 7th September 2016 about providing facilities to ALL Persons with Disabilities (which will automatically include persons with intellectual and psycho social disabilities as per the disability legislation of India) in all legislative assembly Elections as well as general elections, which can be accessed from the following link: http://eci.nic.in/eci_main1/current/pwd_12032016.pdf , http://eci.nic.in/eci_main1/current/ImpIns_16092016.pdf
The statement of the Chief Electoral Officer of Tamil Nadu State, during 2016 Legislative Assembly Elections on the right to enrolment in electoral rolls and that of voting of persons with psycho social disabilities can be accessed from the following link:
http://www.thehindu.com/todays-paper/tp-national/for-an-allinclusive-franchise/article8386649.ece.
Incapacity due to unsound mind shall not be assumed and/or attributed to groups of persons with disabilities including persons with intellectual & psycho social disabilities. Rather it has to be dealt in common with regard to all citizens irrespective of disability, on a case to case basis. For Example: Persons suffering from high fever, high degree of alcoholism, comatose state, etc at the time of contract. References from Indian Contract Act 1872:
http://lawcommissionofindia.nic.in/1-50/Report13.pdf
Moreover, The Constitution of India says, "every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice". https://india.gov.in/my-government/constitution-india/constitution-india-full-text
A comparative research study on legal capacity of persons with disabilities including persons with intellectual/psycho social disabilities in 11 countries namely England & Wales & the European Court of Human Rights, France, Germany, Italy, Polland, Spain, Argentina, Brazil, Mexico, Indonesia & South Africa was carried out by Vidya Sagar, a member organisation of Disability Rights Alliance India. The findings revealed that certain countries provide voting rights for persons with psycho social disabilities. http://www.trust.org/publications/i/?id=0f116ebd-2821-40df-95aa-daa1fa8eb681
Persons with psycho social disabilities (mental illness) and intellectual disabilities (Mental retardation, learning disabilities, autism etc) have equal voting rights. They need information and training on how to vote and why to vote in simple language. Further, the Election Commission is not the competent authority to declare that a person/voter is of Unsound mind. It is the duty of the competent court to certify someone as having unsound mind after due process. If anybody irrespective of having a disability or not is certified as having unsound mind by the competent court, the respective person will not be allowed to vote by the Election Commission. Otherwise everyone has the right to be enrolled and vote, and the Election Commission allows every other person to vote, which obviously includes people with intellectual and psycho social Disabilities. This can be understood from the third point under the sub heading “Who is not qualified to be enrolled on the Electoral roll/Voter list” in the voters page of ECI website: http://ecisveep.nic.in/voters/general-voters/
To reiterate, ECI is not asking for proof of soundness of mind, but is only acting on unsoundness of mind if there is a court order declaring a person to be of unsound mind.
Kindly go through the Hon’ble High Court of Kerala State Judgment: WP(c) No. 14703/2016 which provides for the voting rights of persons with mental disabilities, that is attached herewith for your ready reference.
The Representation of People’s Act 1950 (India) says, "16. Disqualification for registration in an electoral roll-
(1) A person shall be disqualified for registration in an electoral roll if he,-
(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared by a competent Court; or
(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.
(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:
Provided that the name of any person struck off the electoral roll of a constituency by reason of disqualification under clause (c)of sub section (1) shall forthwith be re-instated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal." http://www.lawmin.nic.in/legislative/election/volume%201/representation%20of%20the%20people%20act,%201951.pdf
Section 12 in The Indian Contract Act, 1872 provides explanation & references for a sound mind for the purposes of contracting: “A person is said to be of sound mind for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests." A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person, who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
Illustrations:
(a) A patient in a lunatic asylum, who is, at intervals, of sound mind, may
contract during those intervals."
(b) A sane man, who is delirious from fever, or who is so drunk that he cannot understand the terms of a contract, or form a rational judgment as to its effect on his interests, cannot contract whilst such delirium or drunkenness lasts.” Refer Indian Contract Act 1872: http://comtax.up.nic.in/Miscellaneous%20Act/the-indian-contract-act-1872.pdf
CASE STUDIES:
Repeated Special Voter Enrolment Camps for persons with psycho social and intellectual disabilities living in residential institutions were conducted in Tamil Nadu, India. Refer Attached News item. Many more in different groups / homes for persons with intellectual and psycho social disabilities were enrolled online by volunteers from a CSO called Chennai Volunteers after intimating the CEO TN office. Further orientation programs on the importance of voting, how and why to vote, experiential demonstration of voting with dummy ballot boxes, information about candidates were carried out in simple easy to understand language to sensitise people with intellectual and psycho social disabilities during 2016 Assembly Elections in Tamilnadu.
Mr.Kabir Kumta, a person with Autism & a citizen of India voted for the 2nd time, in 2014 General elections.
https://www.facebook.com/photo.php?fbid=10203503078470907&set=a.3267857928613.2144240.1032255273&type=3&theater
https://www.facebook.com/photo.php?fbid=10203509035939840&set=o.706712166052578&type=3&theater
