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Disability Law vis-à-Vis Human Rights*
by Justice S.B. Sinha

Cite as : (2005) 3 SCC (J) 1

DISABILITY LAW VIS-A-VIS HUMAN RIGHTS

It is indeed a great privilege for me to deliver this year's Justice J.K. Mathur Memorial Lecture and to pay personal tribute to a great soul with whom I have had the honour of sharing the Bench. Justice Mathur has indelibly etched his name in the annals of Indian legal history. Widely regarded for his judgments, his numerous books and scholarly works, and for his zeal to teach future generations, Justice Mathur also employed his expertise and boundless knowledge to causes of human rights and the environment. It is therefore heartening to note that his ideals and efforts live on through Justice J.K. Mathur Memorial Trust and the RLEK family.

I seek to throw light on an oft-ignored facet of human rights—the rights of millions of persons with disabilities (for short "PWDs"), both in India and across the world.

I would attempt to deliberate on the subject in the backdrop of the ancient Vedic understanding that the basic human right, is the right to happiness—losZtuk% lqfkuks HkoUrw ("Let all people be happy"). Fundamental rights represent the basic values cherished by the people since Vedic times and they are intended to protect the dignity of an individual and create conditions in which every human being can develop his personality to the fullest extent.1 I therefore underline the importance of ensuring that PWDs have as much right to happiness and to lead a happy life, as do those who are the so-called "able bodied".

One of the great world leaders, Nelson Mandela had said:

"All countries today need to apply affirmative action to ensure that the women and the disabled are equal to all of us."

This sage advice from an elderly statesman confirms that most people tend to look upon PWDs as unequal. For, as Patricia Wright puts it, "all disabled people share one common experience, that's discrimination".

Fortunately, the worldwide disability rights movement has initiated a new thinking among non-disabled persons that people with disabilities must also be provided with equal opportunities and equal treatment by society, a thinking that there is no pity or tragedy in a disability and that it is a myth that being disabled is difficult. This social attitude has been referred to as disabilism (by Professor Ali Baquer in his book Disability, Disablement and Disabilism published by the Voluntary Health Association of India in 1994).

Disability as a human right—the international legal framework

An international-level awareness pertaining to the rights of persons with disabilities started in 1969 with adoption of the Declaration on Social Progress and Development by the UN General Assembly.

In 1971, the General Assembly adopted the Declaration on the Rights of Mentally Retarded Persons, which stipulates that mentally challenged persons are accorded the same rights as other human beings and some special rights corresponding to their needs in medical, educational and social fields. Whenever a mentally challenged person is unable, because of the severity of his or her handicap, to exercise all his rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure adopted for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. In 1975, the General Assembly adopted the Declaration on the Rights of Persons with Disabilities, which proclaimed the civil and political rights of PWDs. Then in 1976, the General Assembly declared that the year 1981 will be the International Year of PWDs and called for a plan for action at all levels & outcome of this was the formulation of the World Programme of Action Concerning PWDs, adopted by the General Assembly in December 1982. For implementing the activities recommended in the World Programme of Action, the General Assembly proclaimed 1983 to 1992 as the United Nations Decade of Disabled Persons.

On the basis of experience gained during the Decade of Disabled Persons (1983-92), the General Assembly adopted the Standard Rules on the Equalization of Opportunities for Persons with Disabilities in its 85th Plenary Meeting on 20th December 1993. Although the Standard Rules are not compulsory, the purpose of the Rules was to emphasise the responsibility of States in removing obstacles that prevent persons with disabilities from exercising their rights and freedoms.

Contemporary international thinking is of the view that disability is the result of interaction between societal barriers and the impairment rather than a product of the limitation imposed by physical or mental impairment.2 Accordingly, the disability policy of Belgium focuses on education, social integration, greater independence and improvement of the living conditions of the PWDs, whereas that of Spain concentrates on social integration through an action plan.3 Similarly, the interests of PWDs in Austria is defended by the Federal Ministry of Labour, Health and Social Affairs as a matter of social policy rather than as a matter of social legislation, while in Netherlands the Vocational (Re)integration of People Act seeks vocational rehabilitation of people with a disability. The British Parliament has preferred to enact the Disability Discrimination Act, 1995 that prevents discrimination against the PWDs in matters of employment, provision of goods, facilities and services, education, public transport (including taxis, public services vehicles and rail vehicles), and establishes a National Disability Council. The United States has also chosen to enact the Americans with Disabilities Act, 1990 (ADA) based on the finding that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem".4

The Indian initiative

India is a signatory to the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and the Pacific Region, which was adopted at the meeting to launch the Asian and Pacific Decade of PWDs (1993-2002) convened by the Economic and Social Commission for Asia and Pacific at Beijing on 1st December, 1992. To implement the Proclamation, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the Act) was enacted with effect from 1st January, 1996.

The Constitution of India does not specifically proscribe discrimination on the ground of "disability", but it does contain non-discriminatory provisions that guarantee equality and equal opportunities for all citizens as in Article 14 and Article 16. It not only guarantees right to life and personal liberty but also directs the State through Article 41 to make effective provisions for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and in other cases of undeserved want, in consonance with the complementary principles of "non-discrimination" and "reasonable differentiation". Further, the judiciary has played a commendable role over the years in transcribing the principles articulated in the Constitution and other laws into reality.

In addition to the constitutional guarantees and the Act, other legislation such as the Mental Health Act, 1987, the Rehabilitation Council of India (RCI) Act, 1992 and the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 have a bearing on the protection and development of persons with disabilities. Besides, the Juvenile Justice (Care and Protection of Children) Act, 2000, which facilitates, amongst other things, the integration of persons with disabilities into mainstream society, there are beneficial labour legislations such as the Workmen's Compensation Act, 1923, the Employees' State Insurance Act, 1948 and the Public Liability Insurance Act, 1991, which protect and promote the rights of persons disabled during the course of employment.

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Act") treats disability as a civil right rather than a health and welfare issue, and recognises the need to integrate persons with disabilities with the mainstream of society by some normative action considering that even by conservative estimates the number of PWDs in the country now number over 90 million according to the survey conducted by NSSO in 1991. Moreover, the survey revealed that in States such as Andhra Pradesh, Himachal Pradesh, Karnataka, Madhya Pradesh, Orissa and Tamil Nadu, the ratio of people with disabilities was higher than the national average of 19 PWDs in every 1000 persons. With the inclusion of the PWDs as a specific category in the 2001 census, the figures are now expected to increase manifold.

The definition of disability has now shifted throughout the world from a medical problem to a social disability. This is recognised by the British Parliament in the Disabilities Discrimination Act, 1995 as well as by ADA. However, the Indian Legislature has not yet accepted this change and disability as defined in Section 2(i) of the Act still accepts the problem only as a medical disability.

One may usefully define disability as

"... the loss or limitation of opportunities that prevents people who have impairments from taking part in the normal life of the community on an equal level with others due to physical and social barriers".5

Among other things, the Act intends to provide for the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities; to create a barrier-free environment for persons with disabilities; to remove any discrimination against persons with disabilities in the sharing of development benefits vis-...-vis non-disabled persons, etc. It also establishes a simple, inexpensive, and speedy mechanism for the redress of grievances. For example in India, State Commissions have been set up and there also exists a National Commission for Persons with Disabilities in Delhi.

In Javed Abidi v. Union of India6, while directing Indian Airlines to provide concessions for passengers suffering from locomotor disability, the Supreme Court held that the true spirit and object of the Act is to create a barrier-free environment for PWDs and to make special provisions for the integration of persons with disabilities into the social mainstream.

In Indian Banks' Assn. v. Devkala Consultancy Service7 while ruling that the banks were indeed at fault for excessively charging Rs 723.79 crores annually from borrowers by way of resorting to rounding up of the rate of interest, the Supreme Court directed the amount to be transferred to a trust under the chairmanship of the Comptroller and Auditor General of India so that the moneys could be utilised for various programmes for the welfare of PWDs.

Then in Chandan Kumar Banik v. State of W.B.8 the Supreme Court had to intervene in order to provide respite to mentally challenged inmates of a hospital in Hooghli district who were being kept chained by the hospital administration to control their unruly or violent behaviour. And, in Death of 25 Chained Inmates in Asylum Fire in T.N., In re v. Union of India9 the Supreme Court, on being informed about the death of 25 chained inmates in an asylum fire, took suo motu action by directing the Cabinet Secretary to frame a national policy to address issues faced by the PWDs under Section 8(2)(b) of the Act. In recent times, judicial activism in the field of human rights is beginning to become more pronounced.10 No longer are the courts constrained to provide compensation out of compassion, as ordered in Hari Singh v. Sukhbir Singh11 (where the victim of a murderous assault lost his power of speech); or, to provide ex gratia payment by liberal interpretation of government circulars, as ordered in Rajanna v. Union of India12 (where an SPG guard suffered permanent partial disablement in a road accident); or, to protect the appointments of blind officers through factual analysis, as done in Jai Shankar Prasad v. State of Bihar13 (where a blind member of the State Public Service Commission who had been recommended for "Padmashree" was sought to be removed on grounds that he was blind from childhood).

A. Access for PWDs

A consequent issue that needs to be expeditiously attended to is that of providing access for millions of PWDs of this country. Access not only to justice in courts of law, but also to various other facilities such as public buildings, housing, medical and health care, educational institutions, sports facilities14, etc. The issue of access therefore encompasses ascertaining means to overcome "environmental barriers" (such as inaccessible private and public buildings, colleges, offices and transport), "institutional barriers" (such as segregation, expulsion, exclusion from key social institutions including health and employment) and "attitudinal barriers" (such as prejudices, pity and disregard for PWDs). The concept of a barrier-free environment is in fact premised on Article 7 of ICESCR that mandates "providing and modifying devices, services, or facilities, or changing practices or procedures in order to afford participation on equal terms", including through installation of wheelchair ramps, elevators for people of mobility impairments, introduction of part-time work schedules for workers with severe conditions, availability of readers for visual impairments, and sign translation for people with hearing impairments.

Just a few days ago, the newspapers reported that a 21-year-old visually challenged college student of Delhi was killed by a speeding vehicle.15 The incident was the direct result of the complete insensitivity to problems of access to commuting that are faced everyday by the PWDs. Another measure of such callousness is the apathy expressed by the lawmakers themselves. On 22nd August, 1994 the Minister of State for Communications was reported to have stated in Parliament that since "there was no complaint about the disabled persons, especially the wheelchair-users facing difficulty while entering post offices ... therefore there are no ramps".16 In a public interest petition17 filed last year a non-governmental organisation committed to the welfare of the PWDs had sought the intervention of the Supreme Court to correct the wrong of the Election Commission of India in not providing adequate facilities for PWDs to vote. The matter—which is now pending consideration of the Apex Court—involves the rights of over 45 million citizens of the country who are unable to vote effectively in various general and local elections, with their dignity and sense of confidentiality in their vote intact, due to the non-availability of ramps, PWD-friendly voting machines (EVMs), PWD-friendly security arrangements in the polling booths, and identification of their PWD status in the electoral rolls. Not only does this indicate a violation of a PWD citizen's right to vote, it also reflects the gross violation of the Act.

In recent years, the approach has indeed been of a broader understanding of disability, which recognises that the circumstances of people with disabilities and the discrimination they face are socially created phenomena and have little to do with the impairments of people with disabilities.18

It would be prudent in the context above to elucidate on certain specific aspects on the issue of access, namely, that of access to education, employment and health for the PWDs.

(i) Access to education

In 1973, an American children's advocate Marian Wright Edelman launched the Children Defence Fund in the United States with a survey. One US census figure haunted her. Some 750,000 American children between the age of 7 and 13 did not attend school. She assumed they were Negro students, but then dawned an unanticipated reality, "handicapped kids were those seven hundred fifty thousand kids" she said. A similar deplorable condition prevails in India, where it is estimated, less than 1% of disabled students ever manage to receive formal education.

One of the largest groups in the PWD population is that of mentally challenged children falling into various categories such as imbeciles (IQ from 0 to 25), trainable mentally challenged (IQ from 25 to 50), educable mentally challenged (IQ from 50-70), the dull (IQ from 75 to 85), dyslexic children, and emotionally challenged children, apart from the deaf, blind and orthopaedically challenged children.19 Despite this fact, schools deny admission to children with disabilities on the reasoning that they lack the infrastructure and personnel to teach such children. Such avoidance of disabled students on one pretext or the other is a flagrant violation of the statutory mandate and it is here that courts have a crucial role to play.

In Unni Krishnan, J.P. v. Union of India20 the Supreme Court has laid down that the right to education is embedded within the right to life and personal liberty. To the aforementioned extent the dicta has been approved by an eleven-Judge Bench in T.M.A. Pai Foundation v. State of Karnataka21 A number of vulnerable groups are denied these rights on facetious reason.

In Dy. Secy. (Mart), Deptt. of Health and Family Welfare v. Sanchita Biswas22 absence of reservations for persons with a physical handicap in medical colleges was found by the Calcutta High Court to be an infringement of both the Act and the Constitution. A Division Bench later upheld this ruling of the Court, first delivered by a Single Judge. The Court also provided the modalities to be adopted in selecting candidates from the PWD category.

The view of the Calcutta High Court finds support in a flurry of judgments pronounced by the Delhi High Court in Raman Khanna (Dr.) v. University of Delhi23, as also in the decision of the Rajasthan High Court in Vijay K. Agarwal (Dr.) v. State of Rajasthan24, the A.P. High Court in A.P. Federation of the Blind v. Registrar, Andhra University25, the Madras High Court in J. Rajkumar (Minor) v. Secy., Educational Deptt., Govt. of T.N.26 and the Kerala High Court in Benny v. State of Kerala27 These decisions dramatically bring to the fore the role that the judiciary can play in the realm of disability rights.

An interlinked issue is that of providing opportunities in the field of sports for the PWDs. Sporting activity is a part of the larger concept of education. Efforts are therefore required, including by the Department of Sports and Youth Affairs, a part of the Ministry of Human Resource Development, to promote sports-related activities amongst the PWDs. The Paralympics held internationally and the various cricket matches for the visually challenged are inspirational in this regard.

(ii) Access to employment

Broadly speaking, employment for the PWD can be divided into two compartments, namely, (a) right of the PWD to secure employment, and (b) the rights of persons becoming disabled during employment.

Insofar as rights of the first kind are concerned, Section 33 of the Persons with Disabilities Act provides for 3% reservation of vacancies for persons with a disability, where 1% each is to be reserved for persons suffering from (1) blindness or low vision; (2) hearing impairment; and (3) locomotor disability or cerebral palsy. As per Section 36, where in any recruitment year any vacancy under Section 33 cannot be filled up due to non-availability of suitable candidates with disability, such vacancy is to be carried forward to the succeeding recruitment year. The reserved seats can be filled by persons other than the PWDs only when there is no PWD available for that vacancy for the successive recruitment year. Under Section 41, the Act also provides incentives to public and private sector players who ensure that at least 5% of their workforce is constituted of PWDs.

However, experience has shown that these provisions are hardly given effect to. This is because of the general misconception among non-disabled that persons with disabilities are not capable of doing any job properly. For example, in LIC of India v. Chief Commr. for Disabilities28 the view taken by LIC was that a person with 45% disability was incapable of performing his duties as a peon. The Delhi High Court in appeal from the decision of the Chief Commissioner found no substance in it and accordingly directed LIC to employ the PWD.

However, in all fairness, it must be stated that the situation described above does not exist only with respect to State entities—even private organisations fail to recognise the potential of PWDs and, therefore, reject them as candidates for employment. According to a research study conducted by the National Centre for Promotion of Employment for Disabled People (NCPEDP)29, out of the top 100 companies of India the percentage of employees with disabilities in the private sector was only 0.28%, and the percentage of PWD employees in multinationals was a meagre 0.05%. It was also found that there was no company amongst the top 100 which employed even 2% of the workforce from the PWDs. As notes Sandra Swift Perrino of the National Council on Disability in the United States, "when industries retrench, these contingent workers are the first to lose their jobs. When there is growth, they are the last to be hired."

In this context, it is also necessary to mention two other aspects of the problem:

(1) The definition of disability does not provide for all kinds of disability. There are some types of disabilities that may render PWD unable to undertake any job. But, there are some other kinds of disabilities that ought to be brought within the definition, since persons suffering from such disabilities could still perform certain kinds of jobs.

(2) Under Section 38 of the Persons with Disabilities Act, the Government is required to identify jobs that could be performed by persons suffering from various kinds of disabilities.

Cases have come where questions have arisen as to whether a person suffering from a particular disability, would be in a position to undertake a particular job. For instance, the Delhi High Court in Govt. of NCT of Delhi v. Bharat Lal Meena30 held that PWDs can be appointed as Physical Education Teachers once they have passed the qualifying examination and undergone the requisite training and the Government cannot by a subsequent clarification take away that right which has already accrued to them. Similarly, the Andhra Pradesh High Court in Perambaduru Murali Krishna v. State of A.P.31 has ruled that visually challenged persons who were selected for the post of Secondary Grade Teacher/School Assistant but were later deprived of their legitimate right owing to their disability, were entitled to a supernumerary post as Secondary Grade Teachers.

Unlike other minorities, disability is one minority, as pointed out by Shapiro, "anyone can join at any time, as a result of a sudden automobile accident, a fall down from a flight of stairs, cancer, or disease".32 In this respect, Section 47 in clear terms mandates that no establishment shall dispense with or reduce in rank an employee, who acquires a disability during his service. Even if he is not suitable for the post he was holding, as a result of the disability, he is to be shifted to some other post with the same pay scale and service benefits. In the armed forces, this is referred to as a "sheltered appointment". Thus, not so long ago in Vijender Singh v. Delhi Transport Corpn.33 the Delhi High Court ordered reinstatement in a suitable alternate post for an employee whose services were terminated only on the ground that he became physically challenged while in service.

Recently, the Supreme Court in Kunal Singh v. Union of India34 held that Section 47 must be interpreted liberally so that the object and purport of the Act viz. equal opportunities to the PWDs, protection of their rights and full participation is advanced.35 The Court, noted that an employee who is a PWD during employment, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The dicta of this case is similar to that of the English decision in Collins v. Royal National Theatre Board Ltd.36 where the Court of Appeal stated that Sections 437, 538 and 639 of the English Disability Discrimination Act, 1995 prohibited an employer to discriminate against a PWD by, among other things, dismissing him. The semi-skilled carpenter who had become disabled in the course of employment in this case was therefore entitled to relief in that the employer was duty-bound to find him a suitable alternate employment within the establishment. In another case, that of Archibald v. Fife Council40, a street sweeper who became disabled and was consequently sought to be demoted, but because of unavailability of posts at a lower grade, was dismissed, approached the courts for justice. It was held that the Employment Tribunal, that had earlier upheld her dismissal, was to reconsider the case on the ground that the employer was mandated by the English Disability Discrimination Act, 1995 to prevent dismissal by even transferring her "upwards".

An additional issue to that of access to employment, is protection of wages of the PWDs in employment. The Delhi High Court in a recent case of Delhi Admn. v. Presiding Officer41 while dismissing the contention that minimum wages were not to be paid to disabled workers in a workshop established for their welfare opined (DLT p. 124, para 10),

"if the wages of an employee who incurs disability during employment are protected under Section 47 without taking into account his output, then I see no reason whatsoever why the disabled whose quality and quantity of work are not questioned should be denied dignity of labour by paying them less than the minimum wages merely on ground of their being disabled".

The fact remains that notwithstanding the recommendations of world bodies like the General Conference of ILO held in June 1955 a recommendation concerning vocational rehabilitation of the PWDs as also the ILO recommendation of 1983 and the United Nations Commission for Social Development and the statutory provisions mentioned above, the desired results have not been achieved. It is mainly because of the mindset of people towards PWDs which needs to be changed. In the words of Henry Viscards Jr., "... there are no disabled people. There is nothing which can substitute for human rights, no honours, no fame, no pension, no subsidy, can replace a wish to work with dignity in free and open competition with all."

(iii) Access to healthcare

Persons suffering from HIV/AIDS also suffer from a disability not included in the definition under the Act. In South Africa, the Constitutional Court in Minister of Health v. Treatment Action Campaign42 invoking the right of access to public health care services embodied in the South African Constitution held that the State was constitutionally obliged to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of such a right. People were therefore entitled to use of Nevirapine—a potentially life-saving drug that reduced the risk of mother-to-child transmission of HIV. In Bragdon v. Abbott43 the United States Supreme Court construed asymptomatic HIV infection as a disability if it affected the major life activity of reproduction.

Fortunately, similar access to healthcare for the PWDs in India can be provided under Article 21—the fundamental right to life—of the Constitution. In M.C. Mehta v. Union of India44 the Supreme Court observed that the right to life under Article 21 also encompassed the "right to good health". The courts therefore have a ready precedent to provide the PWDs recourse in case they are prevented in any manner from accessing health and medical care services owing to their disability.

B. Mandatory notification of schemes

The strategy adopted in the Act for the realisation of positive rights is to mandate the Government to prepare schemes through which it can be achieved. Thus, under Section 30 of the Act, appropriate Governments have been directed to prepare a comprehensive education scheme which may provide, inter alia, for transport facilities, supply of books, uniforms, grant for scholarships, etc. Under Section 38, a duty has been cast on the appropriate Government and local authorities to formulate schemes for ensuring employment and creating a barrier-free environment and by virtue of Section 42, schemes have to be made to provide aids and appliances to persons with disabilities. The realisation of these vital rights can only occur if the proposed schemes are formulated or alternatively, courts see the absence of a scheme as a ground for intervention.

Needless to mention, due to the lackadaisical functioning of the State machinery, the provisions of the Act were notified with effect from November 4, 2003 only after a public interest litigation in the Delhi High Court was filed.

The impact that judicial interpretation can have on this formulation has come to the fore in the decision of the Allahabad High Court in National Federation of Blinds, U.P. Branch v. State of U.P.45 where the petitioner's request for concessional tariffs in allotment of land under Section 43 of the Act was rejected on the ground that in the absence of any scheme for such allotment under the provision, no such benefit could be provided to him. To correct the folly of the administrative machinery, the Court directed the framing of a scheme in three months' time, and also noted that: (AIR p. 265, para 29)

"It was the obligation of the State Government and all local bodies including the development authorities, to frame a scheme and notify the same. If they had not done so, they cannot take advantage of their own wrong."

Some time ago, the Delhi High Court in Delhi Development Authority v. Chief Commr. for Disabilities46 while directing allotment of a flat in terms of Section 43 of the Act noted with dismay that there was no scheme to provide allotment to PWDs in accordance with the mandate of Section 43. The Court therefore observed that "the object and intent of the legislature in enacting Section 43 of the Act cannot be defeated by non-framing of the scheme in terms of the mandate of the section". In accordance with the ruling of the Court, the Delhi Development Authority has notified schemes for the PWDs that came into effect a few months ago in October 2004.

Under English law, rights of access for PWDs to goods, facilities and services are established by the Disability Discrimination Act, 1995. These provisions have come into force from October 2004. Thus, benefits to PWDs is not dependent on the formulation of schemes, rather, the substantive provisions themselves prohibit discrimination.47

The extraordinary powers vested in the Supreme Court under Articles 32 and 14248, and the High Courts under Article 226, have ensured that the rights of the citizens, and more specifically, that of the disabled citizens, are not trampled upon. This "enlargement" of the field of judicial review in the interests of the citizens' rights is a phenomenon followed also in other jurisdictions.49 It remains to be seen, nonetheless, how far the rights of the PWDs can be accorded the status of fundamental rights. While there is a constitutional obligation on the State to ensure equal opportunity to all persons including the PWDs, there is no judgment as yet that explicitly recognises the rights of the PWDs, including that of "access", as a fundamental right.

Once it is recognised that the rights of the PWDs flow not only from the statute but also from the fundamental rights enumerated in the Constitution, the State can no longer excuse itself from protecting the (fundamental) rights of the PWDs on grounds of financial constraints.

In Govt. of the Republic of South Africa v. Grootboom50 the South African Constitutional Court opined that,

"the South African Constitution requires the State to respect, protect, provide and fulfill these rights explicitly included in the Constitution and the courts are constitutionally bound to ensure that they are protected.... The obligation is to provide access to housing, health-care, sufficient food and water, and social security to those unable to support themselves and their dependants."

Conclusion

Legal predications, judicial pronouncements and constitutional preferences only elucidate the imperative, for laws alone cannot guarantee integration. There are no firm policy decisions nor is there any action plan as to how and in what manner the provisions of the enactments would be implemented. Significantly, there has also been no financial impact assessment conducted to anticipate the cost of policies.

Besides, there is also a need to recognise that problems do not reside in a person with a disability, but are a result of structural practices and attitudes that prevent an individual from exercising his or her capabilities.

The time is now ripe for "social innovation", that is, the normalisation, integration, equalisation and inclusion of the PWDs. Restorative, rehabilitative, and participative support with dignity is needed to bring the PWDs back into the mainstream.

As elaborated by Shapiro:

"In the long run, integration will cost society less. A good education allows a disabled student, one day to become a worker and a taxpayer, rather than a costly tax burden."

There are, at the same time, certain facets of disability law that have not received much attention. Primary is the aspect of rights of disabled women. Women encounter major difficulties in socialisation, maintaining a peer group, holding on or acquiring jobs, and in reintegration into the mainstream. The stigma attached to a disability, the negative attitudes of the family and community at large, only serve to compound the problems faced by women. Women therefore are more vulnerable to mental and physical violations.51 The National Commission for Women has done commendable work in alleviating the sufferings of PWDs. The Commission has already formulated action plans concerning visually challenged and mentally challenged women.

Secondly, there has been very little debate on the need to reformulate the Mental Health Act, 1987. A police officer can pick up a person whom he considers to be mentally unsound and can keep him or her in a lock-up, before producing that mentally challenged person before a Magistrate, who again may direct the detainee to be sent to safe custody. Such mentally challenged persons detained by the police are thus dealt with within the criminal penal system.52

Finally, there appears to be an increasing need to formulate policies introducing social security benefits to the PWDs. In England, for instance, "attendance allowance" was introduced in 1970 as a non-contributory benefit payable at a single flat rate to claimants who were severely physically or mentally challenged and who consequently required "frequent attention throughout the day and prolonged or repeated attention during the night; or ... continual supervision from another person in order to avoid substantial danger to himself or others".53 In 1992 attendance allowance and mobility allowance were merged to create a "new" benefit—disability living allowance (DLA)—providing for mobility allowance and care benefits.54

Briefly, I would summarise by stating that there is a desperate need to (1) equip PWDs with educational opportunities; (2) ensure employment opportunities to them; (3) provide easy and convenient access to facilities; (4) increase public awareness on the rights and requirements of PWDs; (5) recognise the fundamental causes that perpetuate disability in the country and the world in general; and (6) implement the visions of the World Programme of Action Concerning Disabled Persons (WPA) of 1982 regarding "equalisation of opportunities". Concerted efforts are being made to address issues concerning disabled students by various quarters of society. From January 23rd to 25th this year, Delhi would be hosting the West Asian Regional Conference on "Inclusion—the Right Approach" organised by the International Council for Education of People with Visual Impairment, in an attempt by educationists and teachers from around the world to examine the changing role of special schools and institutes seeking to integrate the education of visually challenged students with "able-bodied" students, and that of the visually challenged with additional disabilities like deafness and retardation. The participants would discuss the possibility of community-based rehabilitation, teacher preparation, low vision, and the sustainability of programmes to fund-raising and resource mobilisation, for providing "education to all".

While many have awoken to the needs of the PWDs, and are now actively sensitising others—prominent amongst them being the NCPEDP through the institution of the Helen Keller Award, and entrepreneurs who employ and encourage disabled workers—it is sincerely hoped, in the words of Ali Baquer and Anjali Sharma, "that the new Persons With Disability law will create an accessible society through not just the opening of footpaths and railway platforms but the hearts and minds of Indian people will become more and more open, more unbiased".55

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* Justice J.K. Mathur Memorial Lecture delivered at Lucknow on 22nd January, 2005. Return to Text

1. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 at p. 277 Return to Text
2. Parmanand Singh: "Human Rights of Persons with Disabilities: Some Reflections", Delhi Law Review, Vol. XXIII (2001) at p. 3. Return to Text
3. "Compendium on Member States' Policies on Equality of Opportunity for People with Disabilities", Employment and Social Affairs, European Commission, 1998. Return to Text
4. The Americans with Disabilities Act, 1990, 42 USC § 12101(a)(2). Also see Board of Trustees of the University of Alabama v. Patricia Garrett, 148 L Ed 2d 866 Return to Text
5. V. Finkelstein and S. French, quoted in Disability: Challenges v. Responses by Ali Baquer and Anjali Sharma, available at http://healthlibrary.com/reading/disability/scrap3.htm Return to Text
6. (1999) 1 SCC 467 Return to Text
7. (2004) 11 SCC 1 Return to Text
8. 1995 Supp (4) SCC 505 Return to Text
9. (2002) 3 SCC 31 Return to Text
10. However, see Sathya Narayan: "A Worn Out Manifesto: For the Disabled in India", in Liberty, Equality and Justice: Struggles for a New Social Order, Eastern Book Co., 2003. Return to Text
11. (1988) 4 SCC 551 Return to Text
12. 1995 Supp (2) SCC 601 Return to Text
13. (1993) 2 SCC 597 Return to Text
14. In PGA Tour, Inc. v. Casey Martin, 149 L Ed 2d 904, for instance, the United States Supreme Court held that a golf player suffering from degenerative circulatory disorder in one leg was entitled to relaxation in the rules of the game that required walking as long as there was no "fundamental alteration" in the character of the competition. Return to Text
15. "Blind youth's death has city in shock", The Indian Express, New Delhi, January 20, 2005. Return to Text
16. See Ateeque A. Khan: "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995", Global Health Law, The Indian Law Institute (1998). Return to Text
17. Disabled Rights Group v. Chief Election Commr., WP (C) No. 187 of 2004 Return to Text
18. R.K. Abichandani: The Rights Handicapped, Human Rights Yearbook 2001, International Institute of Human Rights Society. Return to Text
19. M. Afzal Wani: "Disabled Children's Right to Education", Rights of Persons with Disabilities, The Indian Law Institute, 2002. Return to Text
20. (1993) 1 SCC 645 Return to Text
21. (2002) 8 SCC 481 Return to Text
22. AIR 2000 Cal 202 Return to Text
23. (2003) 106 DLT 97 Return to Text
24. CWP No. 1239 of 2000, decided on 12-2-2001. Return to Text
25. WP No. 10234 of 1999. Return to Text
26. WP No. 36981, decided on 30-12-2002. Return to Text
27. WA No. 3660, decided on 30-1-2003. Return to Text
28. (2002) 101 DLT 434 Return to Text
29. See "This minority is invisible" by Javed Abidi, India Together: The disabled are an invisible minority, June 2002. Return to Text
30. (2002) 100 DLT 157. Also see Ravi Kumar Arora v. Union of India, (2004) 111 DLT 126 Return to Text
31. WPs Nos. 3997 and 4041 of 2002, decided on 20-12-2002. Return to Text
32. Joseph P. Shapiro: "No Pity: People with Disabilities Forging a New Civil Rights Movement", Universal, 1994. Return to Text
33. (2003) 105 DLT 261 Return to Text
34. (2003) 4 SCC 524 Return to Text
35. Also see Union of India v. Sanjay Kumar Jain, (2004) 6 SCC 708; Baljit Singh v. DTC, (2000) (1) AD (Del) 88 and DTC v. Rajbir Singh, (2002) 100 DLT 111 Return to Text
36. (2004) 2 All ER 851. Also see McAuley Catholic High School v. C, (2004) 2 All ER 436 Return to Text
37. Section 4 prohibits "discrimination against applicants and employees". Return to Text
38. Section 5 provides that "discrimination" can be said to have been done against a disabled person if—"(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reasons does not or would not apply; and (b) he cannot show that the treatment in question is justified." Return to Text
39. Section 6 requires the employer "to make adjustments" to accommodate a disabled employee where "(a) any arrangements made by or on behalf of an employer; or (b) any physical feature of premises occupied by the employer, place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled ...". Return to Text
40. 2004 UKHL 32 Return to Text
41. (2003) 108 DLT 119 Return to Text
42. 13 BHRC 1 Return to Text
43. Randon Bragdon v. Sidney Abbott, 141 L Ed 2d 524 Return to Text
44. (1999) 6 SCC 9 Return to Text
45. AIR 2000 All 258 Return to Text
46. CW No. 4300 of 2003, decided on 11-7-2003. Return to Text
47. Brian Doyle: "Enabling Legislation or Dissembling Law? The Disability Discrimination Act, 1995", The Modern Law Review, January 1997, Blackwell. Return to Text
48. See for example, Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409 at pp. 430-32 and Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584 Return to Text
49. See for example, Hatton v. United Kingdom, 15 BHRC 259 Return to Text
50. (2000) 1 SA 46 (CC) Return to Text
51. R. Bhama: "Enforcement Mechanism and Strategies—Role of the National Commission for Women in Protection and Empowerment of the Disabled", Rights of Persons with Disabilities, The Indian Law Institute, 2002. Return to Text
52. "Health Care Needs of Persons with Mental Sickness", Round Table III, Global Health Law, The Indian Law Institute, 1998. Return to Text
53. See the English National Insurance (Old Persons' and Widows' Pensions and Attendance Allowance) Act, 1970, Section 4(2). Return to Text
54. Nick Wikeley: "Benefits, Bodily Functions and Living with Disability", The Modern Law Review, July 1998, Blackwell. Return to Text
55. Disability: Challenges v. Responses by Ali Baquer and Anjali Sharma, available at http://healthlibrary.com/reading/disability/scrap3.htm Return to Text