02, Sep 2022 | CJP Team
Persons with disabilities, especially those who live on the intersection of different socio-cultural identities, face an extra layer of challenge, that erodes away at least a part of whatever other privileges they may have been born with. In the absence of proper implementation of existing laws and guidelines, their disabilities, both physical and mental, pose many hurdles to their day-to-day activities, and impact different elements of their lives ranging from education and employment to transportation and accessibility.
This legal resource aims to compile all information pertaining to rights of persons with disabilities, and key court cases that paved the way for greater protection and empowerment.
What is Disability?
A disability is often defined as the malfunctioning, disturbance or loss in the normal functioning of physical, mental or psychological processes, or a difficulty in the ability to learn, or adjust socially, which interferes with a person’s normal growth and development.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 incorporates a medical definition. According to section 2(t) ‘person with disability’ means a person suffering from not less than forty per cent of any disability as certified by a medical authority.
Further, the meaning of disability is described in section 2(i) stating that disability means:
- low vision;
- hearing impairment
- locomotor disability;
- mental retardation;
- mental illness
Social Definition of Disability
UN Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, 1993 define disability as, “People may be disabled by physical, intellectual or sensory impairment, medicalconditions or mental illness.” Such impairments, conditions or illnesses may be permanent or transitory innature.
Medical Definition of Disability
The World Health Organisation (WHO) in 1976, provided a three-fold definition of impairment, disability and handicap explaining that “an impairment is any loss or abnormality of psychological, physiological or anatomical structure or function; a disability is any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being; a handicap is a disadvantage for a given individual, resulting from an impairment or a disability, that prevents the fulfilment of a role that is considered normal (depending on age, sex, social and cultural factors) for that individual.”
Such a description frames disability within a medical model, identifying people with disabilities as ill, different from their non-disabled peers and unable to take charge of their own lives. Moreover, the diagnostic parameters of a medical definition do not take note of the imperfections and deficiencies in the basic social structures and processes that fail to accommodate the difference on account of disabilities.
Figures as per Indian 2011 Census
As per the 2011 population census data, 2.21% of India’s total population lives with disabilities, facing many challenges on day-to-day basis. According to a report titled Disabled Persons in India: A statistical profile 2016 issued by the Social Statistics Division under the Ministry of Statistics and Programme Implementation, as of 2011, 20% of persons with disabilities in India have a disability in movement, 19% have a disability in seeing, 19% have a disability in hearing and 8% have multiple disabilities. But these figures are eleven years old and new data is still not available as the 2021 Census had to be put on hold due to the outbreak of Covid 19.
Rights of Persons with Disabilities Act, 2016
The Rights of Persons with Disabilities Act, 2016 (RPWD Act, 2016) was passed by both the houses of the Parliament. It was notified on December 28, 2016 after receiving the presidential assent. Principles stated to be implemented for empowerment of persons with disabilities (PWD) are respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons.
The Act lays stress on non-discrimination, full and effective participation and inclusion in society, respect for difference and acceptance of disabilities as part of human diversity and humanity, equality of opportunity, accessibility, equality between men and women, respect for the evolving capacities of children with disabilities, and respect for the right of children with disabilities to preserve their identities. The principle reflects a paradigm shift in thinking about disability from a social welfare concern to a human rights issue.
- The following rights granted to the Persons with Disabilities under the Act
- Section 3 – Equality and non-discrimination
- Section 4 – Women and children with disabilities
- Section 5 – Community life
- Section 6 – Protection from cruelty and inhuman treatment
- Section 7 – Protection from abuse, violence and exploitation
- Section 8 – Protection and safety
- Section 9 – Home and family
- Section10 – Reproductive rights
- Section 11 – Accessibility in voting
- Section 12 – Access to justice
- Section 13 – Legal capacity
- Section 14 – Provision for guardianship
- Section 15 – Designation of authorities to support
Other important rights incorporated under this Act:
- Adult education
- Non-discrimination in employment
- Equal Opportunity
- Free education for children of Disabled Persons
- Social security
- Accessibility of transportation
- Insurance Scheme
- Accessibility of Information and Communications etc.
Other relevant statutes on Persons with Disabilities
- The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
- The Rehabilitation Council of India Act, 1992
- The Mental Health Act, 1987
- The National Trust Act, 1999
Now, let us look at rights of Persons with Disabilities (Physical and Mental) especially pertaining to:
- Health Care
- Specialized Care (Home & Institutionalized)
- Transport and Access
With the Eighty-Sixth Amendment, the right to free and compulsory education has become a fundamental right.
Originally, this right was a part of the Directive Principles under Article 45. Other noteworthy aspect of this amendment is that the fundamental right to education has been arranged as an extension of the Right to Life as Article 21 A, which stipulates, “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”
The Eighty-Sixth Amendment has brought another important facet of education, i.e. early or pre-school education under the constitutional framework. The amended text of Article 45 reads, “The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.”
This provision is of particular relevance for children with disabilities. These amendments are not only important from the perspective of an individual right but they have enlarged the scope of duties both for the State and citizens. Amended Article 51A of the Constitution enjoins, “that it shall be the duty of every citizen of India who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.”
From the standpoint of persons with disabilities, the provisions outlined in Chapter Five of the Persons with Disabilities Act, 1995 entitled ‘Education’ are of great significance. The Act not only guarantees free education up to the age of eighteen years in an appropriate environment but also casts a positive duty on the appropriate governments to promote integrated education as well as special schools. Section 26 of the Persons with Disabilities Act, 1995 stipulates that the appropriate governments and the local authorities shall:
- ensure that every child with a disability has access to free education in an appropriate environment till he attains the age of eighteen years;
- endeavour to promote the integration of students with disabilities in the normal schools;
- promote setting up of special schools in government and private sector for those in need of special education, in such a manner that children with disabilities living in any part of the country have access to such schools; and
- endeavour to equip the special schools for children with disabilities with vocational training facilities.
Recognising that persons with disabilities must have equal access to all forms of education through a variety of models, Section 27 of the Act lays down, “The appropriate governments and the local authorities shall by notification make schemes for:
- conducting part-time classes in respect of children with disabilities who having completed education up to class fifth and could not continue their studies on a whole-time basis;
- conducting special part-time classes for providing functional literacy for children in the age group of sixteen and above;
- imparting non-formal education by utilizing the available manpower in rural areas after giving them appropriate orientation;
- imparting education through open schools or open universities;
- conducting classes and discussions through interactive electronic or other media; and
- providing every child with disability free of cost special books and equipment needed for his education
In this respect, the Act is modelled on human rights approach and entitles persons with disabilities to all measures that are necessary for the effective enjoyment of their right to education.
First of all, the Act recognizes that trained manpower be made available for special schools and integrated schools for children with disabilities. In this respect Section 29 casts a duty on the appropriate governments to set up adequate number of teachers training institutions and assist the national institutes and other voluntary organisations to develop teachers’ training programmes specialising in disabilities so that requisite trained manpower is available for special schools and integrated schools for children with disabilities.
A simple reading of Sections 30 and 31 of the Persons with Disability Act affirms the faith of Indian legislature in the introduction of positive special measures to overcome inequalities and discrimination which persons with disability encounter when the education system and related mechanisms fail to recognize and provide for special needs of children with disabilities.
Sections 30 and 31 outline the special measures to create the concept of appropriate educational environment guaranteed in Section 26. Section 30 requires that the appropriate governments shall by notification prepare a comprehensive education scheme which shall make provision for:
- transport facilities to the children with disabilities or in the alternative financial incentives to parents or guardians to enable their children with disabilities to attend schools;
- the removal of architectural barriers from schools, colleges or other institutions imparting vocational and professional training;
- the supply of books, uniforms and other materials to children with disabilities attending school;
- the grant of scholarship to students with disabilities;
- suitable modification in the examination system to climate purely mathematical questions for the benefit of blind students and students with low vision;
- restructuring of curriculum for the benefit of children with disabilities; and
- restructuring the curriculum for the benefit of students with hearing impairment to facilitate them to take only one language as part of their curriculum.
Section 31 mandates that all educational institutions shall provide or cause to be provided amanuensis to blind students and students with low vision. Although the Act catalogues a comprehensive range of measures necessary to allow equal participation in all aspects of an educational pursuit, the disabled continue to face numerous obstacles on account of a negative mind-set and poor information about the Act itself. Section 39 of the Persons with Disabilities Act imposes yet another positive obligation on the State by mandating “all government educational institutions and other educational institutions receiving aid from the government” to “reserve not less than three per cent seats for persons with disabilities”. This section of Persons with Disabilities Act remained under controversy for some time by its placement under the Chapter on Employment, instead of Education.
Finally, the Supreme Court in All Kerala Parents Association vs State of Kerala 2002 while settling this issue said that the inclusion of the Section 39 under the chapter on employment is due to an error in drafting and affirmed that reservation of three per cent of available seats in government educational institutions for students with disabilities should be applied. There has been some confusion about who would constitute an ‘educational institution receiving aid’ from the government within the context of reserving three per cent seats for persons with disabilities.
In Social Jurist v. Government of National Capital Territory of Delhi & Others, 140 (2007) DLT 698, the High Court of Delhi has taken a broad view while defining ‘aid’ and has held that the land received on concessional rate to establish a social institution would constitute aid by the government. The court directed the Delhi Development Authority (DDA) to take ‘appropriate action’ against 265 ‘recognized, private unaided’ schools in the Delhi region, which had been allotted land by the DDA at concessional rates on condition they reserve a 25% freeships quota for disadvantaged children, for breach of that condition.
The right to education for persons with disabilities has evolved incorporating new approaches to disability. The instruments adopted by the UN and its bodies, and the Government of India have elaborated the content of this right from the perspective of human rights and the lived experience of disability. For better appreciation of the right to education and its ramifications, a reading of WPA, Standard Rules, Salamanca Statement, Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region including its targets and recommendations may prove fruitful. These instruments can be relied upon in ensuring full and effective realization of the right to education by persons with disabilities. They offer useful guidance both for the holders of rights and those who have co-related duties.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 adopts a multi prone approach to the issue of employment of persons with disabilities. In order to promote employment of persons with disabilities in organized formal sector, it provides for a scheme of quota to the extent of 3% in all government departments (Central and State government), public sector undertakings and local authorities to be distributed equally to the extent of 1% each among persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor disability or cerebral palsy (Section 33).
Further, in order to promote employment in private sector the Act mandates the government to formulate and implement a scheme for providing incentives to such establishments whose work force is composed of 5% of persons with disabilities (Section 39). To promote self-employment among persons with disabilities, the Act further calls upon the government to formulate and implement scheme for preferential allotment of land at concessional rates for industrial and business purposes to persons with disabilities (Section 43).
Besides these provisions, the Act also prohibits denial of promotion on the ground of disability by any establishment of the government and/or prohibits dispensation of service or reduction in rank of any employee who acquires disability (Section 47). To bolster employment of persons with disabilities in rural area the Act mandates that 3% budget in the poverty reduction schemes be earmarked (Section 40). Marginal benefit has reached the rural disabled.
According to Section 25 of the Rights of Persons with Disabilities Act, 2016,
- The appropriate Government and the local authorities shall take necessary measures for the persons with disabilities to provide—
- free healthcare in the vicinity, especially in rural area subject to such family income as may be notified;
- barrier-free access in all parts of Government and private hospitals and other healthcare institutions and centres;
- priority in attendance and treatment.
- The appropriate Government and the local authorities shall take measures and make schemes or programmes to promote healthcare and prevent the occurrence of disabilities and for the said purpose shall—
- undertake or cause to be undertaken surveys, investigations and research concerning the cause of occurrence of disabilities;
- (b) promote various methods for preventing disabilities;
- screen all the children at least once in a year for the purpose of identifying “at-risk” cases;
- provide facilities for training to the staff at the primary health centres;
- sponsor or cause to be sponsored awareness campaigns and disseminate or cause to be disseminated information for general hygiene, health and sanitation;
- take measures for pre-natal, perinatal and post-natal care of mother and child;
- educate the public through the pre-schools, schools, primary health centres, village level workers and anganwadi workers;
- create awareness amongst the masses through television, radio and other mass media on the causes of disabilities and the preventive measures to be adopted;
- healthcare during the time of natural disasters and other situations of risk;
- essential medical facilities for life saving emergency treatment and procedures; and
sexual and reproductive healthcare especially for women with disability.
Specialized Care (Home & Institution)
As per section 9 of the RPWD Act 2006 provide where the parents are unable to take care of a child with disability, the competent court shall place such child with his or her near relations, and failing that within the community in a family setting or in exceptional cases in shelter home run by the appropriate Government or non-governmental organisation, as may be required.
Transport and Access
According to Section 41 of the Rights of Persons with Disabilities Act, 2016: Access to transport – The appropriate Government shall take suitable measures to Provide facilities for persons with disabilities at bus stops, railway stations and airports conforming to the accessibility standards relating to parking spaces, toilets, ticketing counters and ticketing Machines, access to all modes of transport that conform the design standards, including retrofitting old modes of transport, wherever technically feasible and safe for persons with disabilities, economically viable and without entailing major structural changes in design, accessible roads to address mobility necessary for persons with disabilities. The appropriate Government shall develop schemes programmes to promote the personal mobility of persons with disabilities at affordable cost to provide for—
- incentives and concessions;
- retrofitting of vehicles; and
- personal mobility assistance.
Section 40 of the RPD Act 2006 the Central Government shall, in consultation with the Chief Commissioner, formulate rules for persons with disabilities laying down the standards of accessibility for the physical environment, transportation, information and communications, including appropriate technologies and systems, and other facilities and services provided to the public in urban and rural areas.
Article 22 – Respect for privacy of Convention on the Rights of Persons with Disabilities 2006, says, “No person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawfulinterference with his or her privacy, family, or correspondence or other types of communication or to unlawfulattacks on his or her honour and reputation.” Persons with disabilities have the right to the protection of the lawagainst such interference or attacks and States Parties shall protect the privacy of personal, health and rehabilitation information of persons with disabilities on an equal basis with others.
At this point, it is important to recall how former Delhi University professor and Human Rights Activist GN Saibaba, who is who is ninety per cent physically disabled and wheelchair-bound, had gone on hunger strike demanding that his right to privacy be respected by Nagpur Central Jail authorities. He is serving life sentence thereunder Unlawful Activities (Prevention) Act (UAPA) charges for alleged Maoist links.
In May 2022, he had gone on a hunger strike to fight for his fundamental right to privacy, life, liberty and bodily integrity against placing CCTV camera in his cell, capturing and recording footage of toilet and bathing area. The jail authorities fixed a wide-angle CCTV camera in front of his anda cell that could capture video of the entire cell including, toilet seat, bathing place, and everything in the small cell making it difficult for him to use the toilet for urinals or take a bath before the camera, as the camera recorded video of everything 24×7 hours. Dr. GN Saibaba suffers from ailments like hypertrophic cardiomyopathy, hypertension, paraplegia, kyphoscoliosis of the spine, anterior horn cell disease, acute pancreatitis and a cyst in the brain. It is also reported that Prof. Saibaba’s left hand is on the verge of failure and there is acute pain spreading in both his hands.
As per section 2 of the Hindu inheritance (removal of disabilities) Act, 1997 provides for “Persons not to be excluded from inheritance or rights in joint family property.” It says, “Notwithstanding any rule of Hindu law or custom to the contrary, no person governed by the Hindu law, other than a person who is and has been from birth a (TRIGGER WARNING – INSENSITIVE LANGUAGE) lunatic or idiot, shall be excluded from any right or share in joint family property by reason only of any disease deformity or physical or mental defect.”
As per section 13(1) of the Rights of Persons with Disabilities Act 2016, the appropriate Government shall ensure that the persons with disabilities have right, equally with others, to own or inherit property, movable or immovable, control their financial affairs and have access to bank loans, mortgages and other forms of financial credit.
Landmark Judgements pertaining to Rights of Persons with Disabilities
Supreme Court Judgments
Deaf Employees Welfare Association v Union of India 2013
This petition was filed seeking a Writ of Mandamus directing the Central and state governments to grant equal transport allowance to its government employees suffering from hearing impairment as what was being given to blind and other disabled government employees. The allowance given to the hearing-impaired employees was significantly lower than the allowance granted to other employees with disabilities.
The Supreme Court allowed the petition and directed the Respondents to grant transport allowance to speech and hearing-impaired persons also on par with blind and orthopedically disabled government employees.
The court held that “there cannot be further discrimination between a person with disability of ‘blindness’ and a person with disability of ‘hearing impairment’. Such discrimination has not been envisaged under the Disabilities Act.” It held that equality of law and equal protection of law afforded to all persons with disabilities while participating in government functions. The court held that the dignity of persons with hearing impairments must be protected by the state. Even the assumption that a hearing or speech impaired person is suffering less than a blind person is, in effect, marginalizing them; and as such, the same benefits must be given to them, as are awarded to blind citizens. Any move made by the state to further this objective is in consonance with the principles enshrined in Articles 14. This case held that deaf and mute people should also be given transportation allowances on par with blind and orthopedically handicapped employees of the government.
Union of India v National Federation of the Blind (2013) 2 SCC 772
This was an appeal against the decision of the Delhi High Court wherein a public interest petition had been filed seeking the implementation of Section 33 of the Act alleging that the appellants herein have failed to provide reservation to the blind and low vision persons and they are virtually excluded from the process of recruitment to the Government posts as stipulated under the said Act.
The court looked into the calculation of the 3% reservation –whether it refers to cadre strength, or number of vacancies. It was held that 3% refers to a part of the total vacancies in cadre strength. The court also observed, “It is clear that while section 33 provides for a minimum level of representation of 3 per cent in the establishments of appropriate government, the legislature intended to ensure 5 per cent of representation in the entire workforce both in public as well as private sector.”
Government of India v Ravi Prakash Gupta (2010) 7 SCC 626
In this case, the respondent was a visually challenged person who appeared for the civil services examination conducted by the Union Public Service Commission and was declared successful. However, he was not given an appointment even though he was at Sl. No. 5 in the merit list of visually impaired candidates. The respondent approached the Central Administrative Tribunal which refused his application and thereafter the respondent approached the high court. The high court directed the government to accommodate the Respondent in the merit list, against which the state filed an appeal in the Supreme Court. The state contended that since the post for which the respondent was applying was not identified for persons with disabilities and therefore not reserved for them, the government could not make reservations in the same. The Supreme Court refused the state government’s contention that identification of jobs was a pre-requisite for reservation and appointment under section 33 of the Persons with Disabilities Act, 1995.
The court held, “It is only logical that, as provided in section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate government to make appointments in every establishment.”
Syed Bashir-ud-Din Qadri v. Nazir Ahmed Shah (2010) 3 SCC 603
The Supreme Court observed that, “This case involves a beneficial piece of social legislation to enable persons with certain forms of disability to live a life of purpose and human dignity. This is a case which has to be handled with sensitivity and not with bureaucratic apathy, as appears to have been done as far as the appellant is concerned… It is only to be expected that the movement of a person suffering from cerebral palsy would be jerky on account of locomotor disability and that his speech would be somewhat impaired but despite the same, the legislature thought it fit to provide for reservation of 1 per cent of the vacancies for such persons. So long as the same did not impede the person from discharging his duties efficiently and without causing prejudice to the children being taught, there could, therefore, be no reason for a rigid approach to be taken not to continue with the appellant’s services as Rehbar-e-Taleem, particularly, when his students had themselves stated that they had got used to his manner of talking and did not have any difficulty in understanding the subject being taught by him… Coupled with the above is the fact that the results achieved by him in the different classes were extremely good; his appearance and demeanour in school had been highly appreciated by the committee which had been constituted pursuant to the orders of the high court to assess the appellant’s ability in conducting his classes.”
The court directed that in order to overcome the impediment of writing on the black board, an electronic external aid could be provided to the appellant, which could eliminate the need for drawing a diagram and the same could be substituted by a picture on a screen, which could be projected with minimum effort. With thesedirections for providing reasonable accommodation, the Supreme Court held that the disengagement of the appellant goes against the grain of the PWD Act and hence the order was set aside by the court.
Suchita Srivastava v. Chandigarh Administration 2009 (9) SCC 1
This case was with regard to the reproductive rights of a woman with mental retardation residing at a government run welfare institution in Chandigarh who became pregnant due to a rape by an in-house staff and who wanted to keep the baby and carry on the pregnancy to full term. The Chandigarh Administration filed a petition in the high court seeking permission to terminate her pregnancy under the Medical Termination of Pregnancy Act, 1971 (“MTP Act”) on the ground that she was not capable of carrying on with the pregnancy and would not be able to look after a child.
Although the expert body found that the woman had expressed her wish to bear her child, the high court directed the termination of the pregnancy. The woman, through an amicus, appealed to the Supreme Court and one of the main issues before the Supreme Court was regarding the legal capacity of a woman with mental retardation to decide on her pregnancy. The Supreme Court noted the provisions of the MTP Act, which provided that where pregnancy is a result of rape and termination of the same is contemplated, the consent of the pregnant woman is mandatory. The court also noted the exception to this provision which provided that in case of a pregnant woman who is “mentally ill”, pregnancy can be terminated with the approval of the woman’s guardian. Following this, the court proceeded to make a distinction between ‘mental illness’ and ‘mental retardation’. Upholding the legal capacity of the appellant, the court held: “While a guardian can make decisions on behalf a ‘mentally ill person’ as per Section 3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a condition of ‘mental retardation’.
The only reasonable conclusion that can be arrived at in this regard is that the State must respect the personal autonomy of a mentally retarded woman with regard to decisions about terminating a pregnancy. It can also be reasoned that while the explicit consent of the woman in question is not a necessary condition for continuing the pregnancy, the MTP Act clearly lays down that obtaining the consent of the pregnant woman is indeed an essential condition for proceeding with the termination of a pregnancy.
Thus, the Supreme Court clearly held that the MTP Act required the consent of a mentally retarded woman for termination of pregnancy. Following this, the Court concluded that the Appellant was mentally retarded, had not consented to the termination of her pregnancy and in fact, had expressed her willingness to bear the child. Therefore, it could not permit the termination of her pregnancy. In arriving at this conclusion, the Court not only recognised the reproductive rights of a woman under the MTP Act, but also recognised international norms and principles on mentally retarded persons and persons with disabilities under the CRPD. Therefore, the Supreme Court laid out the specific right to legal capacity which was not subject to an understanding of one’s situation and capacities. This case clearly follows the spirit of protection of legal capacity under Article 12 of the CRPD, 2006.
High Court Judgments
Ranjit Kumar Rajak v. State Bank of India (2009) 5 Bom CR 227
In an extremely significant ruling, a Division Bench of the Bombay High Court articulated and recognised for the first time the concept of “reasonable accommodation at the workplace” in India. The court relied on the CRPD 2006 to decide the duty of the employer in providing reasonable accommodation and the limits on such a duty. The court recognised that India had signed and ratified the CRPD, and that Article 27 of the Convention recognises the right of persons with disability to be “accepted in the labour market and work environment that is open, inclusive and accessible to persons with disabilities.”
The court also discussed the definition of “reasonable accommodation” under Article 2 as “a necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”
In interpreting “reasonable accommodation” and “undue burden” the court relied on the CRPD and recognised the importance of India’s international obligations with respect to rights of disabled persons by stating that: “The law is now well settled that though the United Nations Convention may not have been enacted into the Municipal Law, as long as the convention is not in conflict with the Municipal Law and can be read into Article 2 thus making it enforceable. Therefore, in the absence of any conflict it is possible to read the test of reasonable accommodation in employment contracts.”
The Court further held, “A duty is, therefore, cast on the State to provide reasonable accommodation in the matter of employment subject to the burden of hardship test being satisfied. In the absence of a statutory definition of reasonable accommodation, the reasonable accommodation as set out in the protocol in the first instance can be considered. It will have to have a nexus with the financial burden on the institution and/or undertaking which will have to bear the burden and further the extent to which reasonable accommodation can be provided for.”
The court incorporated the right to reasonable accommodation by declaring that “Reasonable accommodation, if read into Article 21, based on the U.N Protocol, would not be in conflict with municipal law. It would give added life and dimension to the ever-expanding concept of life and its true enjoyment.”
Following this, the court concluded that the bank has a duty to provide reasonable accommodation to the petitioner subject to any undue burden. The court observed that no evidence was presented on how the financial burden would actually be a caused to the bank in providing reasonable accommodation to the petitioner even if it meant meeting his medical expenses. Consequently, the court allowed the petition and directed that the Petitioner be offered appointment and allowed to join the post.
Lalit and Others v Govt. of NCT and Another W.P. (C) No. 3444/2008
Judgement dated May 7, 2010 (Delhi High Court)
Hon’ble Mr. Justice Muralidhar of the Delhi High Court noted that the facts illustrated the lack of decent accommodation for children with disabilities and recognised the associated problems of lack of resources, hygiene and accountability in the running of institutions with disabled children.
The court held, “In the context of the inviolable human rights of the disabled, it is necessary to take note of the binding and mandatory provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (specifically Sections 26 and 30) (`PDR Act’) and the Convention on the Rights of Persons with Disabilities (`CRPD’) which has been ratified by India. In particular, Article 7 which set out the obligations of the States towards children with disabilities, Article 9 which obliges the States to take appropriate measures to ensure access to “schools, housing, medical facilities’, and Article 24 which deals with the right to education are relevant.”
The court relied upon Article 24 of the CRPD which guaranteed the right to education and held that in the context of a disabled child housed in a state-run institution there are a cluster of laws all of which can be traced to the fundamental rights to liberty and a life with dignity. It held that in the context of a young person receiving education in a state-run institution as a resident scholar, the right to shelter and decent living is an inalienable facet of the right to education itself and when the State takes over the running of an educational institution that caters to the needs of the disabled, it has to account for the ‘cascading effect’ of multiple disadvantages that such children face.
In the context of the present case however, the court held that due to the limitation of resources, all the visually impaired persons at the Andh- Mahavidhyalala, irrespective of their age cannot possibly expect to be allowed to live there as the primary purpose should be to cater to the needs of young children studying up to class VIII. If this primary object was not kept in view, then it may result in an unfair denial of the right to education of other deserving young students who are visually challenged.
The court, thus directed the Respondent authorities to take every possible effort to see if all the 5 inmates who were given expulsion orders could be accommodated in any of the other institutions in Delhi. Sufficient time of 6 months should be given to them to make alternative arrangements and assistance should be given to help them find alternative accommodation. The court also observed that this case should act as a wakeup call for the government to monitor the functioning generally of all institutions under its control, particularly for the disabled. This case illustrates the incorporation of the CRPD principles with regard to reasonable accommodation and right to education of children. The court was called upon to balance the two rights, which it ultimately did by taking into account the level of disabilities faced by each group demanding accommodation.
The National Association for the Deaf v. Union of India W.P.(C) No.6250/2010
Judgment dated November 24, 2011 (Delhi High Court)
This was a public interest petition filed by the National Association for the Deaf before the Delhi High Court on the non-availability of sign language interpreters in public services. The petition complained of the lack of availability of adequate number of sign language interpreters in various public places and sought for directions against the Ministry of Social Justice and Empowerment and other authorities to ensure access and better training of sign language interpreters.
While the court noted the lack of availability of sign language interpreters, it agreed with the Petitioner Association that due to non-availability of interpreters, the hearing impaired were unable to avail medical, transport and banking facilities and to also seek police help. With regard to the importance of ensuring the availability of support in the form of interpreters, the Court relied on the CRPD and held, “The United Nations Convention on the Rights of persons with disabilities adopted by the General Assembly and ratified by the Govt. of India on 1st October, 2007 also provides for taking appropriate measures to provide forms of live assistance and intermediaries including guides, readers and professional Sign Language Interpreters to facilitate accessibility to buildings and other facilities open to the public. Needless to state that all the said rights are composite part of life enshrined in Article 21 of the Constitution of India.”
Based on this, the court issued specific directions to the respondent authorities which included undertaking a survey to assess the availability and requirements for sign language interpreters, appointing nodal officers to seek information from concerned authorities and prepare a report to be used for creation of new posts, creating courses and curricula for training of interpreters.
Bhagwan Dass and Anr. Vs. Punjab State Electricity Board (2003) 4 SCC 524
In this case, the Appellant was an Assistant Lineman in the Respondent Board. During his service, he became totally blind and the Respondent failed to accommodate him in an alternative post as per Section 47 of the PWD Act and terminated his service. Therefore, the appellant approached the High Court of Punjab and Haryana against the termination of his service. The high court dismissed the petition and the Appellant appealed to the Supreme Court.
The Supreme Court allowed the appeal relying on Section 47 of the PWD Act and observed that the Board had an obligation to follow this provision as the appellant had acquired disability during his service. On Section 47, the Court relied on a previous decision in Kunal Singh v. Union of India and Anr. (2003) 4 SCC 524 which held that, “In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act.”
The court gave a broad interpretation to Section 47 and took a protective approach towards persons with disabilities by holding: “From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country.”
Ritesh Sinha v. State of Haryana CWP NO. 3087 OF 2011 (Punjab and Haryana High Court)
In this case, an important interim order was passed by the High Court of Punjab and Haryana and the matter is still pending. The petitioner was a person with locomotor disability and was appointed as a clerk by the District and Sessions Judge, Karnal in the post reserved for physically disabled persons. Thereafter his services were terminated due to his inability to perform the duties as a clerk who was expected to write the office notes and maintain records in his own hands.
The court held that as the petitioner was well conversant with computer operations and that there could be plenty of work done by him like preparation of daily cause lists of all courts, certified copies of judgments, etc., which could be assigned to a computer savvy person like him. The court directed that in the interim, his dismissal order would remain stayed, and the respondents were directed to reinstate the petitioner in service with all benefits. The court even directed the respondents to immediately construct a ramp / slope so that the petitioner could enter his office and a compliance report to be submitted to court about the same. Further, it directed the respondents to see that a congenial atmosphere is created at the workplace so that the Petitioner is made an integral part of the mainstream workforce.
U.P. Vishesh Shikshak Association v. State of U.P. Misc Bench No. 5622/ 2010
Order dated June 17, 2010 (Allahabad High Court)
Here the Petitioner Association had filed a public interest petition before the Allahabad High Court contending that the pupil-teacher ratio so far as specialised teachers and children with disabilities was concerned was not adequate and claimed that the government circular on Integrated Education for Disabled Children Scheme mandated a pupil teacher ratio of 8:1. It also claimed that the Rehabilitation Council of India Act, 1992 imposed a statutory duty on the State to make arrangements for adequate number of teachers for persons with disabilities.
The Allahabad High Court recognised the statutory duty of the State to “provide all necessary help and assistance to physically disabled students. However, in response to an argument that orthopedically handicapped children do not require specialised teachers, it held, “We are of the view that now, the right to education and right to livelihood being the fundamental rights enshrined under Articles 21 and 21-A of the Constitution, the State Government has to make all efforts to provide necessary assistance to all disabled persons. Taking into consideration the meagre strength of 1291 teachers, we cannot presume that State Government may be able to impart education to disabled students.”
Manjunatha v. Government of Karnataka and Ors. W.P. 35969/2010
Judgment dated September 29, 2011 (Karnataka High Court)
In this case, the petitioner, who was completely blind sought to apply for the B. Ed. Course under the government quota of seats in Karnataka. However, he was denied admission by reason of the condition that persons with disability greater than 75 per cent would not be eligible for admission. The announcement issued by the respondent permitted applications from persons with disability but restricted it to such applicants who had a disability exceeding 40 per cent but below 75 per cent.
The Karnataka High Court allowed the petition by holding that such a provision in the announcement ran counter to the PWD Act. The respondent government argued that the upper limit in the announcement was based on a similar provision in Karnataka Selection of Candidates for Admission to Teachers Certificate Higher Course (TCH) and Bachelor of Education Course (B.Ed.) Rules 1999 and therefore such a notification could not be challenged. The bench however, rejected this contention and held that even the Rules run contrary to the PWD Act and the state government could not rely on the Rules to deny admission to candidates having more than 75 per cent disability. The court ruled in favour of the petitioner and held that he was entitled to take up CET for admission to B.Ed. course and further declared that he shall not be denied admission on the basis of his disability exceeding 75 per cent.
The observations of the court strengthened the protection for persons with disabilities as it effectively held that the disability legislations would take precedence over administrative rules of the government.
Kritika Purohit and Anr. v. State of Maharashtra and Ors. W.P. 979/2010, Bombay High Court
The petitioner was a visually impaired student who sought admission to the course in Bachelor of Physiotherapy but was not permitted to apply for the same. The petitioner contended that although the post of a physiotherapist was considered to be suitable for blind persons, the denial of courses in physiotherapy for blind persons ran counter to Section 39 of the PWD Act and that the respondents were obliged to make all accommodations for the Petitioner in conformity with Article 24(2) of the CRPD.
The respondents contended that it was not practical for the petitioner to be involved in the course. However, the court also noted the petitioner’s reliance on the circular of the Mumbai University in mandating that resources should be made available to visually impaired student to allow them to complete their courses. In view of these materials, the court observed that the respondents had shown a negative attitude towards persons with disabilities and “have not cared to consider the object underlying the provisions of Disabilities Act, 1995.”
Therefore, by an interim order dated August 2, 2010, it directed the Commissioner of Disabilities to consider all the materials and make suitable instructions to the respondents for making necessary arrangements for admission of visually challenged students. It also directed that the petitioner should be provisionally admitted for the course and should be provided with resources for translation of the material to braille.
Subsequently the court found that the petitioner had completed the first exam and had secured 62 per cent in the same. Therefore, it held that she should be allowed to be admitted and complete the course. However, the court noted that the state government had accepted the guidelines of the Maharashtra State Council for Occupational Therapy and Physiotherapy that visually impaired candidates are not fit for the physiotherapy course. On this, it noted the contentions of the Petitioner and also Xavier’s Resource Centre for the Visually Challenged who claimed that a physiotherapist is not required to perform all the functions of physiotherapy and visually impaired physiotherapists can perform all functions with assistance if necessary.
They also pointed out various physiotherapists who were working in Maharashtra successfully for many years. The court held, “We are, therefore, of the view that the stand of the respondent authorities is clearly discriminatory and adversely affects the Right to Life and equal opportunities of the petitioner as also other such students similarly situated. The fact that petitioner though being visually impaired not only passed her first year examination with 62% marks and is successfully studying in 2nd year, and several visually impaired persons have been working as professional physiotherapists in India as well as abroad appeals to us not to allow the petitioner as also others in the same position to be discriminated against or disqualified on that ground.”
Thus, the court stayed the decision of the state government and directed the respondents to consider candidates with visual disability for admission to the course in physiotherapy.
UGC’s Accessibility Guidelines
Recently, a PIL was filed before the Supreme Court for the benefit of persons with disability as defined under the Rights of Persons with Disabilities Act, 2016. On July 25, the Court was informed by the University Grants Commission, that it had finalised the Accessibility Guidelines and Standards for Higher Educational Institutions and Universities to ensure access for persons with disabilities in certain educational institutions. The Court asked the UGC to ensure that the guidelines are monitored and periodical steps are taken for the progress of its implementation.
According to the Guidelines, all institutions of higher education under the control of government or receiving aid from the government are to reserve at least 5% seats for persons with disabilities while making admission of students in educational courses each year, failing which the institutions would face consequential action, reported LiveLaw.
Uttarakhand HC quashes discriminatory state public service commission advertisement
Earlier this month, the Uttarakhand High Court quashed an advertisement issued by the Uttarakhand Public Service Commission notifying vacancies for the post of Assistant Professors in Government Colleges, finding it to be in violation of Rule 11(4) of the Rights of Persons with Disability Rules, 2017 and the Supreme Court’ decision in Indra Sawhney vs. Union of India and Anr, reported LiveLaw.
The said notification prescribed Horizontal reservation in a manner that in the Unreserved category, no reservation was available to the physically handicapped candidates in the subject of Political Science. According to the Court, persons with disabilities are entitled to horizontal reservation cutting across all categories. It explained that an otherwise eligible and qualified candidate/person with disability would first be allocated a seat, and depending on the category to which that person belongs, i.e. whether the person hails from a Scheduled Caste, Scheduled Tribe, Other Backward Classes, or is a General Category candidate, the seat in that category would stand exhausted.
As laid out in the case of Indra Sawhney, “If he belongs to S.C. category, he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments.”