Abstract
Persons with Disabilities (PWD) remain in a vulnerable position mostly due to social stigmas against them and they are being a minority as regards representation in policymaking is concerned. Initially, they were regarded as a burden upon the society, later as dependents on charities, and finally as Differently Abled Persons with their unique abilities capable of living a normal life. This change in status of the PWDs has also made significant changes in the jurisprudential theories and principles during the policy-making process. The law has now started recognizing the abilities of the PWDs rather than the disabilities and therefore initiated for promoting them instead of merely protecting them across the world. However, in the process, India has also adopted several changes in her Jurisprudential outlook over the PWDs but the consequences remain a question. The paper, therefore, analyzes the status provided by the Indian Jurisprudence to the PWDs as per the contemporary demands are concerned.
Keywords
Disabilities, Indian Jurisprudence, Persons with Disabilities (PWD)s, Promotion, Protection, and Recognition
Introduction
Persons with disabilities are also human beings who are eligible for enjoying human rights not merely based on charity or favor but based on them being human beings. They are different from normal people in their capabilities or appearance but still, they come within the category of human beings. Since time immemorial there are pieces of evidence some of which will be briefly highlighted in this paper where they had been looked upon as unfit for active involvement in the stiff Competition of humanity towards perfection, while on the other hand, the so-designated disabled persons have shown their extraordinary capabilities like Stephen Hawkins, Helen Keller, Anna Mary Sewell and such other persons who ruled over the world with their exceptional qualities. This shows how these people are eligible more than the normal people for achieving respect as significant contributors to the civilized status of humanity. But they need some opportunities for entering this competition to some extent.
Initially, although these people were neglected and are still neglected in many cases by the world community, yet attempts are being made for making life easier for them and allowing them some opportunities to survive in this material world with a minimum amount of dignity. Humanity has greatly recognized that these people need some amount of special care, however; the journey of this recognition had not been a smooth one. It was a time in the past where these people were treated as a burden upon society and their pathetic situations were held to be consequences of some previous birth sinful activities. But, time changed, and human civilization progressed and along with it the scientific base of rational thinking also stood up whereby those previous dark notions regarding the existence of these disabled people changed and now they are treated not as a burden but as persons with different but special abilities for which they are now not referred to as Persons with Disabilities rather they are termed as Specially Abled Persons (SAP) or Differently Abled Persons.
The world community and also several national governments are now trying to create an environment whereby these people are allowed some opportunities based on equity so that they enjoy a status of equality with their normal counterparts, however, this task is not an easy one since the persons with disabilities are not uniform in their source of disabilities for which it is never possible to provide for a uniform platform for so many different categories of disabled persons. Considering this difficulty, the authorities responsible on this behalf are trying their best to introduce as many kinds of different grounds of disabilities to cover a broader section of such people. Their basic attempts in this direction are highlighted by the legislations that they are enacting and implementing from time to time to define their rights and for providing facilities to them for making them stand and head towards the destination of perfection.
However, we must also acknowledge that no human being can be perfect as such the laws which are manmade will also suffer from drawbacks for which a critical study of these laws becomes necessary along with the principle that governs the enactment of these laws. This study becomes more necessary because the Persons with Disabilities are rarely represented in the decision-making bodies for which the laws made by them are likely to be more vulnerable to criticisms for them not being able to introduce to most of the issues of this disadvantaged section of humanity. At present, the world community is witnessing a state where the rate of disabled persons is increasing day by day due to several factors, for instance,unhygienic living conditions, climatechange, an increase of pollution, unregulatedintimacy, improper survival environment, and such other negative impacts. In such a situation these studies become more important. This study will thereby attempt to highlight some of the defects if any in the prevailing legislation so that they can be made proper and more friendly to these people who desperately require such laws. And I being a member of this community and is also a law student, hope for contributing to some aspect in this direction from my personal experience.
Present Status of Persons with Disabilities in India
Status of Implementation of Rights of Persons with Disabilities (RWPD), 2016[1]
The Disability Rights India Foundation (DRIF) conducted a study about the status of implementation of the Act of 2016 in 24 states including UTs which revealed the following facts-
| Sl no. | Areas | Figures with Percentage |
| 1. | No. of states and UTs that have responded | 24 (66.7%) |
| 2. | States that have not notified state rules | 58.3% |
| 3 | States and UTs without Advisory Boards | 50% |
| 4. | States that have not Allocated State Funds | 79.2% |
| 5. | States without notified Special Courts | 58.3% |
| 8. | States without Special Public Prosecutors | 87.5% |
The report shows that even though the law is framed for securing the rights of the PWDs, yet implementation of the law is not that satisfactory.
The extent of Recognition of Persons with Disability under Indian Laws
Constitution of India[2]–
The supreme body of law in the country of India is the constitution which provides a legal standard to every law for gaining its validity. Similarly, it grants validity to special laws enacted for the disabled community of people. Besides that, the fundamental rights that are provided by the constitution to the citizens of India are also equally applicable to disabled persons. Therefore, a disabled person has the right to equality (including equality before the law and equal protection of the law), right to freedom (the six rights of freedom), right against exploitation, right of religious freedom, cultural and linguistic rights, and most importantly right to approach the Judiciary for enforcement of their fundamental rights. However, provided equal treatment for them with their normal counterparts, they had also been provided with special reservation facilities and other such initiatives that are to be taken by both central as well as the state governments from time to time for their welfare. This shows that the constitution itself provides unequal treatment for this section of people but is based on equity. Further, Article 47 provides a directive principle for the responsible government to take measures for the upliftment of their health conditions.
Family Laws[3]–
Due to the absence of a uniform civil code and also due to the sentiments of secularism in India which is a land of diverse pluralistic communities, there exist different sets of family legislation (personal laws) across the territory applicable differently on separate communities of people. However, a common derivative of several provisions of those laws provides few basic attributes of disabilities for marriage under all those laws which are- if either party is an idiot or lunatic; or incapable of giving free consent to marriage; or impotency; falls under sapinda relationship (Hindu) or any other restricted relationships,or either party has a living spouse,or otherwise not restricted legally from entering into marriage.
As per the succession laws are concerned no restrictions are imposed on any kinds of disabilities (either physical or mental) for inheritance and succession. Further, any disabled persons can disposeof their property, if their disability is not to the extent of restricting to have a clear understanding of the consequences of such a disposal.
This shows that there is no such discrimination amongst Persons with Disabilities and normal people. However, with regardsto marriage, there are some restrictions to certain categories of both mental and physical disabilities and this is not a discriminatory provision rather a safeguard for the one who is going to marry the disabled person. While as regards property laws no discrimination is made for succession and inheritance but protection is provided for them to safeguard their interests over their properties by providing some restrictions in their right to dispose of their property.
Income Tax Law[4]–
Section 80DD provides relief to about Rs. 20,000 to the handicapped people for the expenses incurred in the process of medical treatment; nursing; rehabilitation; etc. Section 80V ensures the right of the parent whose income of the minor disabled has been clubbed under section 64 to claim deduction up to Rs. 20,000.
These provisions show that a minimum extent of relief is granted so that disabled people can take medical measures and other such supporting staff for their maintenance.
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995[5]–
The chief provisions of this act at first includes determination of the persons with disabilities, their cause and taking measures to prevent such disabilities by conducting research, surveys, etc. with the assistance of medical support staff; proper checkup of the children to avoid risks of suffering any possible disabilities; pre-natal, peril-natal and post-natalcheckups of a mother’s health; and so on.
Education
Second, for educational facilities the act provides for necessary modification in the academic institutions for the convenience of the disabled students; up-gradation of special institutions established for these students, reservations of seats for PWD candidates in all government-aided institutions, the establishment of a special grievance redressal forum for the PWDs.
Employment
3% seats are to be reserved in government jobs, 1% each for blind or low vision, hearing impairment, and locomotors disabilities and cerebral palsy respectively. No one can be demoted neither anyone’s promotion can be withheld merely based on disability. Proper facilities for a non-disability environment are also to be provided.
Affirmative Actions
Besides providing aids and assistance to these PWD, the Act also provides for land at a concessional rate for house, business, office, public places shall be made easily accessible to them by way of providing sound symbols, removing barriers for wheelchair movement, etc.
Social Security
Special kinds of insurances for the PWDs, financial assistance to NGOs, and other provisions.
Grievance Redressal
In violation of any rights, the PWD people can make an application to a) Chief Commissioner for persons with disabilities in the center; or b) commissioner for persons with disabilities in the state.
This Act made a very effective attempt to ensure PWDs’ participation for their own welfare. Several initiatives were also taken to secure their existence in society. It thus provided for both protective as well as promoting platforms for the PWDs.
The Mental Health Act, 1987[6]–
The mentally ill persons are been given the right to be admitted to a separate psychiatric hospital or nursing home managed by the government for treatment either by being an in-patient or out-patient to that hospital, expenditures of which are to be made if no relatives of such persons are not taking the responsibilities of that person, from his/her property provided if the District Court directs otherwise or by the respective state governments. Special protections are provided for such persons with mental disabilities in police custody, property-related affairs, and even incase of unpaid salaries and allowances, etc.
The provisions of this Act are highly protective rather than promoting. It may be because the mentality is the basis of human rationality and its identity as being a human without which he/she may lose his/her functional attributes of those of a human. So, promoting measures may not be so fruitful rather it may become a bit dangerous.
The Rehabilitation Council of India, Act 1992[7]–
The Act provides the PWDs guarantee about their rights to have access towards better rehabilitation facilities with Rehabilitation Professionals having standardized qualifications along with professional ethics, and a statutory regulatory body for regulating these Rehabilitation centers.
The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities, Act 1999[8]–
The Act provides for the establishment of a National Trust Body for the fulfillment of the objectives as mentioned in section 10 of the Act to the disabled people; further, the Act provides a right to them to have a guardian appointed for them by the Local Committees who will be responsible to look after both person and property of such disabled persons; measures for removal of such guardians on the event of their being incapable from acting as a guardian or any misdeeds by such guardian with such PWDs; etc.
This particular Act ensures protection and management by the central government for such disabled persons.
National Policy on Disability, 2006[9]
In response to the UNCRPD, the central government of India adopted this national policy to implement several key provisions including educational, health, employment, and other facilities for the PWDs.
However, the states are still far behind from enacting a state-level policy in this direction with only a few exceptional states.
Judicial Decisions and Persons with Disabilities
It will never be possible to ensure justice to anyone only by-laws;therefore, it becomes equally important for the courts to provide a clear interpretation of these laws from time to time whenever such cases involving the rights of PWDs come before the court. Some of such cases where the Courts in India provided several interpretations to the various disability laws to provide justice to such people are discussed in this chapter-
Court on its Own Motion v Union of India[10]
A dispute, in this case, arose when the petitioner VaivhabShukla, a candidate for the M. Phil entrance exam under Delhi University was not allowed to access the only means of transport besides him being disabled and having a valid ticket for the seats which were reserved for PWDs, by the respondent.
The Court held that both Section 16 and Section 41of the Rights of Persons with Disabilities Act 2016 shall be read together for fulfilling the basic objective of the said Act. Further, the penal provisions as under Section 89 highlight the importance given by the Parliament for the enforcement of their rights. Again, the court upheld that it is also constitutional responsibility upon the government as well as the University of Delhi (Respondents) to actively corporate in the direction for social justice to such PWDs.
M. Venkateswarlu S/O Papaiah,…V Andhra Pradesh State Road…[11]
The PWD act cannot be expected to applyto all categories of disabled persons equally and uniformly under the non-discriminatory principle. Since disabled persons are unique in themselves due to various distinct forms of disability. The Act attempts to provide a helping hand to such persons for ensuring a dignified life as a human being as provided under Article 21 of the Constitution of India.
Section 47 under chapter VIII entrusts a responsibility upon the employers to protect the employee who had suffered any form of disabilities during his/her employment. Thus, any employment opted for the disabled employee’s spouse or child shall be expressed in return for his/her special treatment or monetarybenefits by way of an undertaking which shall be final and irrevocable.
Municipal Corporation Of … v Mr.ShrirangAnandrao Jadhav[12]
In this case, there was a dispute over the issue that disabilities, as mentioned under Section 47, are not provided under Section 2 for which the termination of service of a disabled person who suffered the disability during his/her employment was contended to be valid. However, the Court rejecting this view upheld that termination of such persons cannot be valid rather it is illegal, and since in this case, the employee reached the age of superannuation so there was no dispute over allowing him all the previous due wages.
Union of India &Anr v National Federation of the Blind &…[13]
In this case, there arose a controversy between the High Court order and the government represented by the respective Solicitor General on the issue of reservation facilities for the PWDs. Whatever may be the content and consequences of the case, an important point was made by the Supreme Court that the Act came much before but still, theconcerned community of people has not been provided with the rights as been defined by the said PWD Act. The court held the Official Memorandum of the government under dispute to be illegal and ordered work for filling up the vacancies to these reserved posts in all A, B, C, and D posts both identified and unidentified in consistency with the High Court orders.
P.Divya vs The Secretary to Government[14]
In this case, the definition of Disabled Persons as provided under Section 2(i) was made clear by the Court by stating that this definition is not exclusive rather it is just an illustrative one. This makes it clear that the purpose and scope of the PWD Act are much broader than the category provided under Section 2(i) thereby it includes the disabled persons under Section 20. Therefore, the government has been made responsible to provide 3% seats in all government institutions for all disabled persons above 40% disability.
Thus, the above discussed five case laws highlight the basic intention that the legislative bodies aimed for behind enacting these laws for disabled persons. These cases further clarified the various concepts which won’t otherwise have served the purpose of these laws as intended for. Therefore, we must acknowledge the contribution of the Judiciary in providing justice to these people.
Jurisprudential Interpretation of the Indian Legal Recognition of the Person with Disabilities
This chapter will aim at providing the different jurisprudential attributes of the laws in India since the inception of the disability movement which began from the year 1977 itself however, the rights of PWDs were concretely recognized only in the year 1995 with the enactment of the PWD Act. History is evident how these people were neglected initially, for instance, the Great Scholar of entire Humanity, Plato regarded that the birth of disabled people is a source of dysfunction and disorder in the society for which they must be killed as soon as they are born. If the world today recognizes him as a Scholar besides making such kinds of arguments, then we can easily assume the depth of the injustice done to these people in the past. For this reason, it becomes necessary for analyzing the jurisprudential value given to these laws to secure justice to the PWDs, however, the decision-making bodies mostly comprise people of normal category whereby the disabled people lack adequate representation for which the laws may mostly turn to be invalid. The basic logic that should govern for enacting laws in this direction along with the consistency of Indian laws with those principles under the following heads-
Charity or distributive justice-
John Rawls claimed that it’s the primary responsibility of the state to provide for distributive justice to its citizens.[15] Distributive justice calls for the distribution of national resources as perdue to its citizens. History is evident that besides justice it was a charity that was granted to the PWDs by the laws but as time passed justice was meant for them. For instance, providing aids and assistance, affirmative action under the PWD Act are examples of state activities of granting such justice to the PWDs but the issue is concerning the implementation of such provisions while from my personal experiences I could recall that in the Blind School at Basistha it was admitted that there were no adequate resources technical staffs to provide the blind students with the basic educational materials which are of serious concern. Further, the higher education facilities are even more pathetic. Thus, distribution in this direction becomes more effective for a better implementation of these provisions.
Equality or equity
Equality before the law and equal protection of the law are the basic attributes of the Rule of Law as per Dicey[16] but again equality before the law will call for grave injustice upon the PWDs for which mental disability amounts to the ground for a general exception under the Indian Penal Code for offenses committed by such persons and again absolute equality to such people will be inadequate for their welfare for which they are granted with special protection under several legislations. But these principles put a question that these may be violative to the doctrine of Rule of Law thathas been referred to as one of the basic structure of the constitution of India as provided in the case of Kesavananda v State of Kerala.[17] However, if absolute equality is granted then it would amount to a gross violation of the basic objective of the Rule of Law doctrine which is to provide for the welfare of all its citizens. Therefore, more than equality, equity is what justifies such inequalities and as such,that shall be the aim for every law to achieve. Considering this need some extra opportunities are granted to the PWDs which are justified in the eyes of law under laws that owe theirvalidity from the Constitution itself.
Utilitarianism versus Individualism
The great British scholar Jeremy Bentham propounded the theory of utilitarianism whereby the greatest happiness of the greatest number shall be the ultimate aim of every law of the countries concerned. Butthis may not serve the basic needs of the PWDs which are still in minority. And Martin Luther King Jr. provided that “Injustice anywhere is a Threat to Justice Everywhere” for which laws shall also take into consideration the needs of the individual persons aiming for individual welfare especially for the welfare of the PWDs who are alike in their respective forms of disabilities. Therefore, the principle of utilitarianism is not applicable in this regard.
Fundamental Rights / Human Rights
The constitution of India provided for fundamental rights equally applicable upon all its citizens but being a citizen the PWDs are granted with special exceptions which are justified and again under the Directive Principles, the state is responsible for adopting measures to bring these PWDs on an equal footing with that of its normal citizens. The needs of the PWDs shall be recognized as basic human rights since without them their survival won’t be possible with the dignity of living as a human being. Therefore, the prevailing laws shall not provide these provisions as ordinary rights but also as basic human rights.
Discrimination versus non-discrimination
To some extent, it is highly debatable that the rights guaranteed to these PWDs are highly discriminatory especially concerning reservations but concerns shall also be laid upon the need of these PWDs as they cannot fight for their rights on an equal footing in competition with their normal counterparts since they are naturally made to be in a backward position by way of disability in the race of human civilization. Therefore, such provisions cannot be justified as discriminatory in a broader sense rather they are non-discriminatoryup to the extent of their disability in comparison to their normal counterparts.
Protection versus Promotion
There is no doubt that disabled people need extra protection which the laws are providing at least on papers but more than protection, promotion shall be the ultimate aim. For instance, due to reservation the cut-off mark for the JEE entrance exams for PWDs was very low, and for this reason, even if he/she scores fewer marks due to lack of required knowledge will get a seat under reservation in the country’s top IIT institution. But this initiative will not serve the purpose of promotion of the PWDs as concerned since they will never be able to achieve functional capabilities as a professional in such a technical field due to their low amount of competition. Therefore, the laws besides aiming to protect them must also aim for promoting them with proper opportunities to be granted so that they can contribute to the nation’s economic development. I am not against the reservation facilities for the PWDs, but I am just trying to suggest that besides merely providing reservations, attempts shall be made to provide all necessary facilities which will make them capable to stand on equal footing with the non-disabled persons. This will serve both the purpose of making the PWDs a valuable human resource to contribute to nation-building as well as will also help the PWDs to function in an efficient manner where their disabilities will not become a hindrance.
Theoretical security versus Practical Utility–
The laws so framed are not adequately able to provide the basic facilities in practice to the PWDs as already highlighted in the previous examples. As such procedures for better implementation is the need of the hour where the role of the civil society comes into focus. More than laws on papers it is an achievement on record that needs to be given priority, or otherwise, justice won’t be possible by merely defining the different rights in the laws. Financial assistance shall be provided to develop the infrastructures in a manner, that becomes PWD friendly.
Social Security and Social Justice
Social security of PWDs will be possible only if their reputation as human beings is respected by their fellow members within their society. More than sympathy it is respect that they deserve as human beings. For which the government must take adequate steps for creating awareness amongst the other normal members of the society in particular and the entire humanity in general. The laws shall also provide for removing a sense of isolation from the society amongst the disabled persons which they feel as consequences of their disability. Social justice will only be possible if the law provides for such measures.
Conclusion and Suggestions
Thus, it becomes evident that the world community at large as well as the Indian laws have recognized that more than charity it is justice that needs to be provided to the Persons with Disabilities for which several changes are taking place in the jurisprudential outlook of the legislative bodies. However, more than protection and security at the hands of the normal people it is the promotion of the PWDs and their welfare at their own hands shall be the ultimate goal of every law for providing individual welfare. Greater participation of the disabled community in the decision-making process shall be the goal of the authority at present so that the disabled community gets a proper representation. For which a change in the thinking process of the members in the authority to encourage such development is needed. Empowerment of the PWDs shall be vested at the hands of such PWDs themselves so that they can take adequate measures for their development on the foundation of democracy to the greatest possible extent.
The outlook of the Indian laws shall be broadened so that the PWDs are not only governed by principles but are also regulated in practical. Opportunities based on equity shall be made available to them for their welfare. Laws more than being general must be particularistic satisfying the different needs of different categories of disabled people. More than charity, it is justice that forms the very basic right of these people. At the same time ignoring negligence, the normal population shall provide for greater respect to the abilities of these people as dignified human beings. A little help from them might change the life of these people to a great extent. The role of Civil Societies is also important in this regard. This paper is not an exhaustive one including all the issues related to disabled people but is just an attempt to know the necessary principles that shall govern the legislative enactments along with its proper implementation.
[1] Staff Reporter, Disabilities Act: States going slow on roll-out, says study, THE HIND, Dec, 5, 2018, at 7.
[2]INDIA CONST. 1950.
[3] Hindu Marriage Act, 1955 No. 25, Acts of Parliament, 1955 (India); India Succession Act, 1956, No. 30, Acts of Parliament, 1956, (India), etc.
[4] Income Tax Act, 1961, No. 43, Acts of Parliament, 1961, (India).
[5] Rights of Persons with Disabilities Act, 2016, No. 49, Acts of Parliament, 2016, (India).
[6] The Mental Health Act, 1987, Acts of Parliament, 1987, (India).
[7]Rehabilitation Council of India Act, 1992, No. 34, Acts of Parliament, 1992, (India).
[8] National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, No. 44, Acts of Parliament, 1999, (India).
[9] National Policy for Persons with Disabilities, 2006, Minister of Social Justice and Empowerment Government of India, (Shastri Bhawan, New Delhi).
[10] Court on its Own Motion Vs Union of India and Ors, (2017) SC (India).
[11] M. Venkateswarlu S/OPapaiah,… V. Andhra Pradesh State Road…, (2012), SC, (2016).
[12] Municipal Corporation of Gr. Mumbai V. Mr. Shrirang Anandrao Jadhav, (2009), HC (2016) (Mumbai).
[13] Union of India &Anr V. National Federation of The Blind &Ors, (2015) SC (India).
[14] (2011), (India).
[15] Pieter Pekelharing, Global Justice and the State, Doing GoodOr Doing Better, 301, 361-62 (2009), https://www.jstor.org/stable/j.ctt46n0g6.19.
[16] Vivek Ranjan, Rule of Law and Modern Administrative Law, IIT Law School, IIT Kharagpur (Feb 15 2011), https://papers.ssn.com/sol3/papers.cfn?abstract…id=1761506.
[17] (1973) 4 SCC 225.
