Aditya Mehrotra, a third year BA. LL.B (Hons.) student at Symbiosis Law School, Pune, India discusses disability rights under Indian jurisprudence…
The Chief Justice of India, D.Y. Chandrachud, has created a team to evaluate the “physical and functional access“ of the top court’s facilities to make them accessible to people with disabilities. The group will be chaired by Justice S. Ravindra Bhat of the Apex Court. The Supreme Court has charged its Supreme Court Committee on Accessibility (SCCA) with creating and disseminating a survey to everyone who uses the Supreme Court’s facilities for business or pleasure who happens to be disabled. This includes SCCA workers, attorneys, litigants, and interns.
In India, the disability rights movement is not a new phenomenon, it has been developing since 1970. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of 1995 made substantial advances in disability rights, particularly in the service and employment Sectors (PWD Act). The Act reserves 3 percent of all government jobs for individuals with disabilities (PWDs). As a consequence of the movement’s momentum, India signed and ratified the Convention on the Rights of Persons with Disabilities in 2007.
The gradual transition from a charity-based to a rights-based strategy, while simultaneously establishing and executing the statutory rights of individuals with disabilities, is a change that has happened over time. The shift from the medical model of disability envisioned in the 1995 Act to the social model of disability and the human rights approach, which gained prominence after the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the Rights of Persons with Disabilities Act of 2016 (RPWD Act), is another significant development. The Incheon Strategy for Inclusiveness of People with Disabilities also contributed globally to the passage of the 2016 Act.
A Critique of the Rights of Persons with Disability Act (PWD Act)
Only three sections of the PWD Act of 1995 concern accessibility. These are found in Chapter VIII, which addresses non-discrimination. Section 44 concerns non-discrimination in transportation and regulates the accessibility of railway compartments, aircraft, buses, and boats for people with impairments. It stipulates that bathrooms on trains, ships, and aircraft must be accessible to those using wheelchairs. Section 45 authorizes the installation of audible signals at traffic crossings, curb cuts and slopes on sidewalks, and roadside signage. Section 46 requires the erection of ramps in public buildings and hospitals, audible signals in elevators, and wheelchair-accessible bathrooms. Despite their codification, the courts have emphasized that these provisions are seldom obeyed and implemented.
Even though the PWD Act has been in effect for 20 years, a significant portion of India’s 70 million disabled people still lack physical access to the nation’s most important socio-economic institutions, which are necessary for them to live productive lives.
Considering that, the PWD Act was able to fill a significant legal void created by the lack of a concrete disability law, it lacks the robust and forward-looking provisions necessary to provide the disabled with a solid legal foundation on which to compete on equal footing with others for at least two reasons.
First, rather than imposing binding obligations on stakeholders to make their infrastructure accessible to the disabled, the majority of the Act’s provisions are written in extremely vague and ambiguous language, requiring stakeholders to make their services barrier-free to the extent that it is economically feasible. This provides government bodies with an efficient escape route to circumvent the intent of the law by avoiding their obligations. For example, under the PWD Act, a “person with disability” is defined as a person with 40% or more of any of the following impairments: “(i) blindness; (ii) low vision; (iii) healed leprosy; (iv) hearing impairment; (v) mobility impairment; (vi) mental retardation; and (vii) mental illness.” This is a restrictive definition, since only those with 40% or more of the following seven impairments would be classified as people with disabilities and be eligible for the rights and programs under the PWD Act.
Second, the law lacks the necessary enforcement mechanism for its application to real-world instances of discrimination or the imposition of access restrictions. The Office of the Commissioner for Persons with Disabilities, which the Act established at the federal and state level, is woefully understaffed and lacks the legitimacy and public support necessary to enact more extensive structural changes. This challenge is exacerbated by the fact that the law does not identify sanctions for those who violate its provision. Thus, the enforcement apparatus lacks the resources required to design solutions that encourage universal access.
Reasonable Accommodation and The Landmark Vikash Kumar Dictum
It has becomes imperative to note the landmark judgment of the Apex Court in Vikash Kumar vs Union Public Service Commission. The Supreme Court found in paragraph 49 that failure to offer reasonable accommodations constitutes discrimination. In order to underscore the significance of the right to reasonable accommodation, the court carefully examined key sections of the RPWD Act. Section 3 prohibits discrimination on the basis of a disability unless the discriminatory activity is designed to achieve a legitimate aim. A person with a disability cannot be deprived of their liberty based simply on their impairment, under Section 3(4). Additionally, section 20 mandates that government employers provide reasonable accommodations and a barrier-free workplace for those with disabilities.
It went on to clarify that Sections 3 and 20 of the 2016 Act mandated the state to ensure non-discrimination and decent treatment of people with disabilities. In paragraph 33 it states that, “[s]ection 3 is a positive statement of the legislature’s intent that the fundamental principles of equality and non-discrimination be made available to persons with disabilities without the idea of a benchmark disability.” Reasonable accommodation (as defined in section 2(y)) was referred to as the “substantive equality enabler.” According to clause 2(h) of the Act, the denial of a reasonable accommodation would constitute discrimination.
The court furthermore, in the matter of Vikash, relied on the fundamental judgment of Jeeja Ghosh v. Union of India, which held that equality embraces a wide range of positive rights, including reasonable accommodation. In addition, the court ruled that the denial of a reasonable accommodation constituted disability-based discrimination under Section 3 of the RPWD Act. This rule is intended to ensure that individuals with disabilities are able to overcome minor barriers to inclusion without being exposed to a disproportionate burden. Under this framework, the state is required to establish an environment that provides equal access to opportunities for people with disabilities. As a result, a reasonable accommodation, such as the supply of a scribe, is an instrument for attaining substantive equality.
The PWD Act’s provisions and benefits remain unclear to the general population. People with disabilities constitute a disproportionately low-income population. Children and adults account for the bulk of people with disabilities. Educational institutions and community-based programs are inadequate for the underprivileged to reap the benefits of these programs, since they need early identification and prevention as well as full participation in the public realm. Thus, empowering groups and government entities is an urgent need. In order for them to have a normal, comfortable life in a competitive atmosphere, they must be granted equal rights.
Lastly, at a time when the Indian government is making significant strides in transforming India into a digitally empowered information society, it is essential that the law provide a solid foundation for initiatives such as Accessible India to ensure that the digitization of service delivery mechanisms can alleviate, rather than exacerbate, the challenges faced by the world’s largest minority – the disabled.
Aditya Mehrotra is a third year BA. LL.B (Hons.) student at Symbiosis Law School, Pune. He is passionate about human rights studies, bail jurisprudence, rights of an undertrial, and special laws. He has published his pieces on draconian bail provisions in the UAPA in the Tamil Nadu National Law University, Constitutional Law Society. He was also published in the Human Rights Law Review with his article, Membership of a Banned Organization in UAPA. Furthermore, with his interest in special laws, he’s been published in various leading tax law platforms such as Tax Guru, Tax Management India, and leading newspapers like The Daily Guardian.
Suggested citation: Aditya Mehrotra, The Indian Supreme Court and Disability Rights – Critiquing the Underpinnings of Disability Rights Jurisprudence in India, JURIST – Student Commentary, January 31, 2023, https://www.jurist.org/commentary/2022/01/Aditya-Mehrota-India-disability-rights/.
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