This article is written by DEBRAJ MOHANTA ,South Calcutta Law college, Calcutta University during his internship with Le Droit India.
Introducing the fact of the laws for person with disability in India we can say persons with disabilities, particularly those who belong to multiple marginalized groups, face additional challenges that can diminish any other advantages they may have. Without proper implementation of existing laws and guidelines, their physical and mental disabilities create numerous obstacles in their daily lives, affecting various aspects such as education, employment, transportation, and accessibility. This legal resource consolidates all relevant information about the rights of persons with disabilities and significant court rulings that have contributed to enhanced protection and empowerment.
Now, what is Disability?
A disability is commonly defined as a disruption, impairment, or loss in the normal functioning of physical, mental, or psychological processes, or as a challenge in learning or social adjustment that hinders a person’s typical growth and development.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 incorporates a medical definition. As per the law, a person with a disability is someone who has been medically certified to have at least 40% of any of the following conditions:
- Blindness
- Reduced vision
- After-effects of leprosy
- Hearing impairment
- Difficulty in movement
- Intellectual disability
- Mental health condition
In simpler terms, a disability is a physical, mental or sensory limitation that makes it harder for a person to perform everyday tasks and activities. It can be present from birth or acquired later in life due to an illness, accident or other causes.In 1976, the World Health Organization (WHO) defined three key terms: impairment, disability, and handicap. According to this definition, “impairment” refers to any loss or abnormality in psychological, physiological, or anatomical functions; “disability” is the restriction or inability to perform activities in a way that is considered normal for most people, resulting from an impairment; and “handicap” is a disadvantage that prevents an individual from fulfilling a role that is typical for them, based on factors like age, sex, and cultural context.
This definition presents disability from a medical perspective, suggesting that people with disabilities are ill or different from those without disabilities and lack control over their lives. Additionally, it does not address the flaws in social structures that fail to accommodate individuals with disabilities, which can lead to further challenges in their lives.
According to the 2011 Census data, 2.21% of India’s total population, which amounts to about 2.68 crore (26.8 million) people, live with disabilities. They face various challenges in their daily lives. A report from the Ministry of Statistics and Programme Implementation, titled “Disabled Persons in India: A Statistical Profile 2016,” indicates that among those with disabilities, 20% have movement disabilities, 19% have vision disabilities, 19% have hearing disabilities, and 8% have multiple disabilities. However, these statistics are outdated, as the 2021 Census was postponed due to the COVID-19 pandemic, and no new data is currently available.
Detailed discussion of the law related with the Rights of Persons with Disabilities:-
Rights of Persons with Disabilities Act, 2016 – The Rights of Persons with Disabilities Act, 2016 (RPWD Act, 2016) was approved by both houses of Parliament and came into effect on December 28, 2016, after receiving presidential approval. This law focuses on empowering persons with disabilities (PWD) by promoting respect for their dignity, allowing them to make their own choices, and supporting their independence. The Act emphasizes the importance of non-discrimination, full participation, and inclusion in society. It encourages respect for differences and recognizes disabilities as part of human diversity. Key principles include providing equal opportunities, ensuring accessibility, promoting gender equality, respecting the abilities of children with disabilities, and allowing them to maintain their identities. This approach represents a significant shift in how disability is viewed, moving from a focus on social welfare to recognizing it as a human rights issue.
The Act grants the following rights to persons with disabilities.
- Equality and non-discrimination (Section 3)
- Women and children with disabilities (Section 4)
- Community life (Section 5)
- Protection from cruelty and inhuman treatment (Section 6)
- Protection from abuse, violence and exploitation (Section 7)
- Protection and safety (Section 8)
- Home and family (Section 9)
- Reproductive rights (Section10)
- Accessibility in voting (Section 11)
- Access to justice (Section 12)
- Legal capacity (Section 13)
- Provision for guardianship (Section 14)
- Designation of authorities to support (Section 15)
Other key rights included in this Act are:
- Healthcare
- Accessibility of transportation
- Privacy
- Rehabilitation
- Adult education
- Non-discrimination in employment
Other relevant laws concerning persons with disabilities include:
The Mental Health Act, 1987: The Mental Health Act of 1987 was introduced in India to improve the treatment and care of people with mental illnesses. It replaced the old Indian Lunacy Act of 1912 and aimed to set better standards for mental health care by creating central and state authorities to oversee mental health services. The Act provides clear rules for admitting and discharging patients, whether they choose to enter treatment voluntarily or are admitted involuntarily. It also focuses on protecting the rights of patients and ensuring they are treated with respect and dignity. The Act was later replaced by the Mental Health Care Act of 2017, which further enhanced the rights and services available to individuals with mental health issues.
The National Trust Act, 1999: The National Trust Act of 1999 was created in India to help people with autism, cerebral palsy, mental retardation, and multiple disabilities. This law established a government organization to protect the rights and well-being of these individuals, so they can live independently and actively participate in society. The National Trust works to empower persons with disabilities by offering support services, arranging legal guardians when needed, and helping them become part of their communities. It also makes sure those without family support still get the care and assistance they require.
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 was passed in India to ensure that people with disabilities have equal rights and opportunities. It took effect on February 7, 1996, and focuses on preventing disabilities, early detection, education, and employment for individuals with disabilities. The law requires that 3% of government jobs and educational seats be reserved for them, helping to create an environment where they can participate fully in society. It also highlights the need for non-discrimination and provides social security measures to improve the lives of people with disabilities and help them integrate into their communities.
The Rehabilitation Council of India Act, 1992: The Rehabilitation Council of India Act, 1992 was created to set up the Rehabilitation Council of India (RCI) as an official body responsible for overseeing the training of rehabilitation professionals. The Act aims to ensure that people with disabilities receive high-quality rehabilitation services by establishing standards for education and training. It also keeps a Central Rehabilitation Register that lists qualified professionals in this field. The Act highlights the need for proper qualifications and includes penalties for unqualified individuals who provide rehabilitation services. Overall, it plays an important role in supporting the welfare and inclusion of persons with disabilities in society.
Now, the Eighty-Sixth Amendment to the Indian Constitution made the right to free and compulsory education a fundamental right. Initially, this right was included in the Directive Principles under Article 45. The amendment established the fundamental right to education as an extension of the Right to Life in Article 21A, which states, “The State shall provide free and compulsory education to all children aged six to fourteen years in a manner determined by law.”
Additionally, the amendment brought early childhood education into the constitutional framework, with the updated Article 45 stating, “The State shall endeavor to provide early childhood care and education for all children until they complete six years of age.” This provision is especially important for children with disabilities. These changes not only enhance individual rights but also expand the responsibilities of both the State and citizens. The amended Article 51A of the Constitution states that it is the duty of every parent or guardian to ensure educational opportunities for their child or ward between the ages of six and fourteen years.
The Act recognizes that persons with disabilities should have equal opportunities to access all types of education through different models. Section 27 of the Act outlines these provisions. “The appropriate governments and the local authorities shall by notification make schemes for: Conducting part-time classes for children with disabilities who have completed their education up to the fifth grade but are unable to continue their studies full-time; conducting special part-time classes to provide functional literacy for children aged sixteen and older. Providing non-formal education in rural areas by using the available workforce after giving them the necessary training, providing every child with disability free of cost special books and equipment needed for his education
The Act is based on a human rights approach, ensuring that persons with disabilities have all the necessary support to fully enjoy their right to education. First, the Act acknowledges the need for trained professionals in special and integrated schools for children with disabilities. Section 29 requires the government to establish enough teacher training institutions and assist national institutes and organizations in developing specialized training programs for teachers, ensuring that qualified staff is available in these schools. A straightforward reading of Sections 30 and 31 of the Persons with Disabilities Act shows that the Indian legislature believes in implementing positive measures to address the inequalities and discrimination faced by persons with disabilities, especially when the education system fails to recognize and meet their special needs. Section 31 requires all educational institutions to provide amanuensis (scribes) for blind students and those with low vision. While the Act includes many important measures to help ensure equal access to education, people with disabilities still face significant challenges due to negative attitudes and a lack of awareness about the Act. Additionally, Section 39 of the Persons with Disabilities Act places a responsibility on the State by requiring all government educational institutions and those receiving government funding to reserve at least 3% of seats for persons with disabilities. However, this section has faced controversy because it is located under the Chapter on Employment instead of Education.
Finally, the Supreme Court in All Kerala Parents Association vs. State of Kerala 2002 while resolving this issue, the government stated that the inclusion of Section 39 under the employment chapter was a mistake made when drafting the law. They confirmed that the reservation of 3% of seats in government-funded schools and colleges should be given to students with disabilities. There has been some confusion about which educational institutions would be considered as “receiving aid” from the government. This is important because it determines which schools and colleges must reserve 3% of their seats for students with disabilities.
Also, in the case of Social Jurist v. Government of National Capital Territory of Delhi & Others, the Delhi High Court took an expansive approach to define what constitutes ‘aid.’ The court ruled that receiving land at a reduced rate to set up a social institution qualifies as government aid. It ordered the Delhi Development Authority (DDA) to take necessary actions against 265 private unaided schools in Delhi that were given land at these reduced rates, as they had failed to reserve 25% of their seats for underprivileged children, which was a condition of their land allotment.
Generally, the right to education for individuals with disabilities has developed to include new perspectives on disability. The United Nations and the Government of India have created guidelines that explain this right in terms of human rights and the real experiences of people with disabilities. To better understand the right to education and its implications, it is helpful to read various important documents, including the WPA, Standard Rules, the Salamanca Statement, and the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region, along with their targets and recommendations. These documents can assist in fully realizing the right to education for persons with disabilities and provide valuable guidance for both those who hold these rights and those responsible for upholding them. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 takes a comprehensive approach to employment for people with disabilities. To encourage their employment in the formal sector, the Act reserves 3% of positions in all government departments (both Central and State), public sector companies, and local authorities. This quota is divided equally, with 1% allocated to individuals with blindness or low vision, 1% for those with hearing impairments, and 1% for those with locomotors disabilities or cerebral palsy (Section 33).To support employment in the private sector, the Act requires the government to create a scheme that offers incentives to businesses that employ at least 5% of persons with disabilities (Section 39). Additionally, to encourage self-employment, the Act calls for the government to develop a scheme for giving preferential access to land at reduced rates for industrial and business purposes to individuals with disabilities (Section 43).
Moreover, the Act prohibits any government establishment from denying promotions based on disability and prevents the dismissal or demotion of employees who acquire a disability while working (Section 47). To enhance employment opportunities for disabled individuals in rural areas, the Act mandates that 3% of the budget for poverty reduction programs be set aside for them (Section 40). However, the benefits for rural disabled individuals have been minimal. According to Section 40 of the RPD Act 2006, the Central Government, in consultation with the Chief Commissioner, will create rules for people with disabilities. These rules will set standards for accessibility in the physical environment, transportation, information and communication, including suitable technologies and systems, as well as other facilities and services available to the public in both urban and rural areas.
Landmark judgment pertaining to Rights of Persons with Disabilities:
Union of India v National Federation of the Blind (2013) 2 SCC 772
This case was an appeal against a decision made by the Delhi High Court regarding a public interest petition. The petition sought to enforce Section 33 of the Act, claiming that the appellants had not provided the required reservation for blind and low-vision individuals, effectively excluding them from government job recruitment as mandated by the Act. The court examined how to calculate the 3% reservation, questioning whether it should be based on the total number of positions in a department or just the number of job openings. The court concluded that the 3% reservation should be based on the total vacancies in the cadre strength. Additionally, the court noted that while Section 33 guarantees a minimum representation of 3% for these individuals in government jobs, the legislature aimed for a total representation of 5% in the entire workforce, including both public and private sectors.
Conclusion
The legal system for people with disabilities in India has improved a lot, especially with the introduction of the Rights of Persons with Disabilities Act (RPWD) in 2016, which replaced the older Persons with Disabilities Act of 1995. This important law shows a move towards a more inclusive approach by recognizing 21 different types of disabilities and focusing on the rights and needs of individuals with disabilities. The RPWD Act aims to provide equal opportunities, prevent discrimination, and ensure full participation of persons with disabilities in all areas of life, such as education, work, and social services. It requires that environments be accessible, supports affirmative action in jobs, and guarantees free and compulsory education for children with disabilities. Additionally, the Act aligns with international standards set by the United Nations Convention on the Rights of Persons with Disabilities, highlighting India’s commitment to respecting the rights and dignity of disabled individuals. However, there are still challenges in putting these laws into practice, especially in rural areas where access to resources and awareness may be lacking. Ongoing efforts are needed to close these gaps and ensure that the rights outlined in the law lead to real improvements in the lives of people with disabilities. Overall, the RPWD Act marks a significant advancement in promoting inclusivity and empowering individuals with disabilities in India.
