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Disbailty and Indian Judiciary a Legal Study by Dilip Kr Upadhyay

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Disability and judiciary

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  • LAW FOR THE DISABLED PERSONS AND INDIAN JUDICIARY

    Abstract: According to Census of 2001, in respect to the Persons with Disabilities, there

    are 22 millions disabled persons in India. India being the welfare state is under

    obligation to help downtrodden and the poor. Persons with Disabilities also need more

    attention and help from the State. Preamble o f the Indian Constitution guarantees

    Person with Disabilities the full range of civil, political, economic, cultural and social

    rights. In this regards India has also passed the Persons with disabilities (Equal

    Opportunities, protection of rights and full participation) Act, 1995 objective of this Act

    is a legal endorsement to the right of access for the PWD to education and vocational

    training, employment training, practices, travel on public transport and mobility scheme,

    barrier free environment and integrated living information and communication

    strategies. This Act pla ces responsibility on society to make adjustments for PWD so that

    they might overcome various practical psychological and social hurdles related by their

    disability. It seeks to establish a coherent and comprehensive frame work for the

    promotion of just an d fair polices and their effective implementation. The role of the

    Courts in particular field describes and analyses the judgment of Court in the chosen

    sector. Therefore number of judicial decision in the field of disability are too few to make

    a satisfactory evaluation and the manner in which legislation on disability have been

    drafted.

    Introduction:

  • There are millions disabled persons in India, several observations have revealed the fact

    that the situation of Persons with Disabilities are very pitiable. Census of 2001, in respect

    to the Persons with Disabilities shows that there are 22 millions disabled persons in India.

    Although actual number of Indians with temporary and permanent disability could be as

    high as 50 million. India being a welfare State has got the obligation to help downtrodden

    and the poor so it requires more attention and help from the State. Preamble of the Indian

    Constitution guarantees Person with Disabilities the full range of civil, political,

    economic, cultural and social rights and the Directive Principles of State Policy demands

    the state to protect the disabled, within the limits of its economic capacity.

    India is a signatory to the proclamation on the Full Participation and Equality of Persons

    with Disabilities in the Asian and the Pacific Region which was adopted at the meeting to

    launch the Asian and the Pacific Decade of Persons with Disabilities (1993-2002)

    convened by the Economic and Social Commiss ion for Asia and Pacific at Beijing on 1 st

    December, 1992 to implement the proclamation, the Persons with Disabilities (Equal

    Opportunities, protection of Rights and Full participation) Act,1995 hereinafter called as

    disability Act. 1

    Aims of the Persons with Disabilities Act, 1995

    The aim of the disabilities Act is a legal endorsement to the right of access for the

    1 It was passed in December 1995 and was published in the Gazette of India on M onday 1 st January 1996 afterreceiving assent form the President of India. It has come into force from 7 th February 1996.

  • disabled people to education and vocational training, employment training, practices,

    travel on public transport and mobility scheme, barrier free environment and integrated

    living information and communication strategies.

    This Disability Act places responsibility on society to make adjustments for disabled

    people so that they might overcome various practical psychological and social hurdles

    related by their disability. It seeks to establish a coherent and comprehensive frame work

    for the promotion of just and fair polices and their effective implementation. It creates

    formal procedures, which hasten the process of full and total; integration of the disabled

    in society. 2

    2 A.K. Human Rights of the Disabled: World in slow M otion, vol.38 Issue14, 2004 Journal of Constitutionand Parliamentary Studies 1-50at 21.

  • Medical Definition of Disability

    The World Health Organization3 (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 fulfillment 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.

    The disability sector around the world found the WHOs 1976 description of impairment,

    disability and handicap confusing, particularly for policy-making and political action, and

    problematic from a rights perspective. Responding to the growing concern, the WHO

    redefined the relationship between impairment, disability and handicap establishing that

    impairment refers to organ level functions or structures, disability refers to person-

    level limitations in physical and psycho-cognitive activities, and handicap to social

    abilities or relation between the individual and society. The WHO International

    Classification of Impairments, Disabilities and Handicaps, 1996 is relatively realistic as it

    makes a clear distinction between impairment, disability and handicap, though concerns

    have been expressed that in its definition of the term handicap, the classification is still

    too medical and centred on individual, and does not adequately clarify the interaction

    between societal conditions or expectations and unique circumstances of a disabled

    individual.

    3 Section 26 of the Persons with Disabilities (Equal Opportunities Protection Rights and Full Participation) Act,1995

  • Human Rights Definition of Disability

    The definition of disability adopted by the British Council also takes into account the

    social conditions which disable a group of individuals by ignoring their needs of

    accessing opportunities in a manner different from others. However, it also views these

    social conditions as infringing upon human rights of disabled and as instances of

    discrimination against them. According to this definition, disability is the disadvantage

    or restriction of activity caused by a society which takes little or no account of people

    who have impairments and thus excludes them from mainstream activities. Therefore ,

    like racism or sexism, disability is described as a consequence of discrimination and

    disregard to the unique circumstances of people with disabilities.

    Disability Estimates

    It is estimated that there are about 600 million people in the world who have disability of

    one form or another. Over two thirds of them live in developing countries with high density

    of their population in Sub-Saharan Africa and in South and South-East Asia.

    There is wide variation in the estimated disability rates reported by developed and

    developing countries. The variation depends, to a large extent, on the definitions of

    disability used, which either expand or limit the disability groups covered in a survey. For

    instance, using an overly restrictive definition of disability, the Census of India (2001)

    yielded an average of 2.13% of people with disabilities as compared to 19.1% in New

    Zealand and 18% in Australia.

    Persons With Disability Act , 1995

    The disability Act provide that the state shall ensure that every child with disability has

    access to free education in appropriate government till he attains the age of 18 years and

    promote setting of special schools for such children. The state is required also to frame

    scheme which shall make provision for transport facilities to such children to enable them

    to attend schools and for removal of architectural barriers form schools, colleges and

  • other institution imparting vocational and professional training. 4Schemes are also

    required to be made to provide aids and appliances to disabled people and also to allot

    land to them on concessional rate for house setting up business etc. Besides, the disability

    Act5 also aims to define the responsibilities of the Central and State Government with

    regard to the services for disabled persons. The Act aims to ensure full life to disabled

    individual so as to enable him to make full contribution in accordance with his disability

    condition. Blindness, low vision, leprosy, hearing impairment, loco-motion disability,

    mental illness and mental retardation are seven disability conditions covered under the

    Act. The Act also provides for introduction of non- formal education, provision of aids

    and appliances and creation of adequate teacher training facilities to prepare teachers for

    special and integrated schools.6

    Another esteemed objective of the Act is to provide employment of Persons with

    Disabilities, and the Governments are obligated to identify posts that should be reserved

    for Persons with Disabilities and review the list at least once in three years, most

    importantly, it shall reserve minimum three percent of job for such persons suffering form

    (a) blindness or low vision (b) hearing impairment and (c) loco-motor disabilities or

    cerebral palsy. Further the Government is also obliged to require the employers to furnish

    necessary information about such posts to special employment exchange. Moreover, such

    vacancies which are not filled up due to non availability or may other sufficient reason,

    shall be carried forward to succeeding years and if the desiring candidates are not

    available in that year it may first be filled by inter change among the foresaid there

    categories, in the absence of persons in these categories, the post can be filled up with a

    person s other than disabled persons, relaxation upper age limit regulating training the

    employment, etc. similarly all the Government educational institutions are required to

    reserve not less than three percent seats for disabled persons.7

    Constitutional Protection for Persons with Disabilities and

    4 Section, 30, Ibid 5 Sections, 42-43, Ibid 6 Supra note 1 7Suresh V. Nadagouadar, Rights of Disabled Persons: An Overview of the Persons with Disability (Equal Opportunity, Protection of Rights and Full Participation) Act 1995, vol.27 2000 Indian Bar Review 173-180 at 177

  • Views of Judiciary

    Judiciary has played a significant role in transforming and broadening concept of human

    rights and even in the absence of there being specific right to persons with disabilities in

    the chapter relating to Fundamental Rights in the Constitution, the bold interpretation has

    brought within its sweep of chapter IIIrd rights of disabled also, while interpreting Article

    15, 16, and 21 of the Constitution as well as some of provisions contained in the Directive

    Principles of State Policy. The Courts by adopting pragmatic and holistic approach, have

    given useful shape to these rights. In fact, by its activist role it has made executive to

    function in various spheres by awaking them form slumber.8

    The role of Court comes into play subsequent to the enactment of legislation. Article 13

    of Indian Constitution makes a state action invalid if it is in infringement of the

    Fundamental Rights. As process which has been further sharpened with the advent of

    public interest litigation. Actions in public interest have been filed when the ground level

    situation of a particular individual or groups is an infringement of the Fundamental Rights

    guaranteed under the Constitution. These actions have been field before the High Court or

    Supreme Court under Article 226 and 32 respectively for issuance of appropriate writ,

    Oder or Direction for remedying the derivation and upholding the right. Though not in

    large numbers action in public interest have been field to assert the rights of Persons with

    Disabilities. The response of the Judiciary to these actions has been sympathetic but not

    radical. 9

    In The National Federation of the Blind case,10 the Supreme Court was activated so that

    8 Supra note 1, at177 9 Amit Dhanda, According Reality to Disability Rights: Role of the Judiciary by S.K Mishra10 AIR 1993 SC 1916

  • the Union Public Service Commission may be directed to allow blind persons to compete

    in examinations for the Indian Administrative and Allied Services. The Court acceding to

    the petitioners request to write the examination in Braille script or with the help of a

    scribe, allowed the petition. In this execution of order, however, whist a scribe was

    permitted to the blind candidate, the facilities of taking the exam in Braille script was

    withdrawn as it would not be possible to distinguish the script of one persons from that of

    another11 . In Javed Abidi v. Union of India12 the Supreme Court keeping in view the

    objectives of the Act while agreeing that the economic capacity is relevant consideration

    while deciding the question as to whether all suffering from disability as defined under

    section 2(i) of the Act should be granted concession similar to those granted to the blind

    persons for traveling by air, held that court cannot ignore the true spirit and object with

    which the Act was enacted, i.e. to create barrier-free environment for persons with

    disabilities and to make special provision for the integration of persons with disabilities

    into the social mainstream, apart from the protection of rights, provision for medical care

    education training employment and rehabilitation which are some of the prime objective

    of the Act. Again bearing in mind the discomfort and harassment a person suffering from

    locomotor disability would face while traveling by train particularly to far off places, it

    issued a direction to Indian Airlines to grant concession to persons suffering from

    locomotor disability to extent of 80%, the same concession which the airlines are giving

    to those suffering from blindness. This is an important decision, because despite the plea

    that the economic condition of the Indian Airline was such that it was not feasible to grant

    any further concession to any other category of disabled persons, and that the Act itself

    postulates for providing facilities to the disabled persons within the limits of economic

    capacity the Court issued the above direction keep in view the broad objective of the

    Act.13

    In National Federation of Blind UP Branch v. State of UP14 the question to be decided

    before Allahabad High Court was, whether the Lucknow Development Authority while

    1111.Supra note 8, at 9212 AIR 1999 SC 51213 Supra note 1 at 23 - 2414 AIR 2000 All 258

  • giving preference for allotment of plots and houses to blind and other handicapped

    persons, should also accord concessions in the rates of the land? The Court referred to

    section 43 of the Persons with Disabilities Act, which provide for scheme for preferential

    Why do we need to Speak of Disability Rights?Today a new model of thinking is breaking grounds where disability is seen as an integral

    part of society. There is also recognition that persons with disabilities encounter several

    obstacles due to sensitivity and attitudinal barriers. Policies that are based ideologically

    on the human rights model start by identifying barriers in society that restrict disabled

    persons participation. This has altogether changed the perception of disability and the

    approach to it.

    Earlier the emphasis was on correcting the impairment and rehabilitating the individual so

    they may fit in to society. Now there is recognition that disability is not a deviation

    therefore, all systems and structures of the society must be improved upon so as to allow

    equal access and full participation. Consequently States are bound by a multi layer of

    obligations to guarantee both de jure and de facto equality. At the Primary level it entails

    respecting right-holders freedom to act according to their unique status and

    circumstances. At the Secondary level the State has a duty to protect all the right holders

    against political, economic and social interference. This implies introduction of

    legislation and provision for effective preventive and penal remedies. At the Tertiary level

    the States are obliged to ensure that the conditions for equal enjoyment of rights are

    created with the introduction of positive and special measures and by enhancing the

    capacity For example Persons with Disabilities Act, 1995 provide a wide range of

    educational options to persons with disabilities so as to enable them to choose the best

    possible model of education that would suit their needs. Both the Constitution of India

    and Disabilities Act, 1995 prohibits discrimination in the matter of work and with regard

    to accessing public facilities, services and utilities. For the equal participation the

    allotment of land for certain purposes. The Court ordered the respondent not only to give

    preference in matter of allotment of land and house to handicapped persons, but also to

  • provide concessional rate to handicapped persons.

    Access to Education: Enforcement by the Court

    In the era of 21st century, the right to education has been considered to be one of the most

    valuable rights. In such situation it is very important to give adequate attention upon

    education. Thus provisions relating to education are contained in chapter V of the Act.

    Section 26 of this Act enjoins upon authorities to ensure appropriate environment till the

    child attains the age of 18 years. It is also to endeavour to promote the integration of

    student with disability in the normal school. Alongside this statutory emphasis, there is a

    social fact that normal schools blatantly deny admission to persons with disabilities on the

    reasoning that lack of infrastructure and personnel to teach such children. These facilities

    would not be created in ordinary school unless they have student with disabilities.

    Acceptance of the above reasoning is thus a negation of statutory mandate and it is here

    that Courts have a crucial role to play. The Court possess the power to authoritatively

    direct schools and government to fulfill the mandate of the Act and insure that inclusive

    education is provided both in form and substance 15The Supreme Court16 has laid down

    that the right to education is embedded within the right to life and personal liberty.

    16

    A number of vulnerable groups are denied this right on facetious reason. It is only if such

    reasons not accepted as defence by the judiciary when Persons with Disabilities assert

    their rights and the promise made under section 26 does becomes a reality.17

    In chapter VI of the Act, the title of which is employment starts at section 32 and ends

    at section 41. Section 39 provides All government educational institution receiving aid

    15 Supra note 1 , at 27 - 2816 K.P Uninkrishnan vs Union of India (1983) 1 SCC 64517 Supra note 1 at pg. 28

  • from government shall reserve not less than three percent seats for Persons with

    Disabilities. In Kumari Rekha Tyagi v. Vice Chancellor University of Delhi 18the Delhi

    High Court held that section 39 has no application for reservation seats in educational

    institution for Persons with Disabilities. The Court reasoned that since section 39 fell

    under Chapter VI dealing with employment, the word seats must have been used in

    place of the word post. Thus three percent of posts can be reserved for these categories

    in educational institution under section 39.

    In State Council of Educational Research and Training v. Ravi Dwivedi 19the High Court

    of Delhi held that when provisions of both the sections i.e. section 33 and 39,are read

    together it is established that educational institution shall have to provide for separate

    questions for different categories of the disabled. It is also held that sections 33 cannot be

    said to be exhaustive of all sub-categories within disabled and that extent is merely

    illustrative. Fact of this case in brief was that the respondent a hearing impaired candidate

    18 93 (2001) DLT 81319 AIR 2008 Delhi 97

  • was denied marks. Respondent challenged to compartmentalization of the three percent

    quota for different categories separately.

    Employment and View of the Court

    The International Covenant on Economic Social and Cultural Rights guarantees the right

    of everyone to enjoyment of just and favorable condition of work, which ensures

    adequate remuneration also.20 Under this Covenant everyone has the right to adequate

    standards of living for himself and his family, including the adequate food, clothing and

    housing. But various cases this right is not at all being respected so for as the disabled

    persons are concerned The Chapter VI of Persons with Disabilities Act 1995 it imposes

    duty on government to identification and reservation of the post for Persons with

    Disabilities, and establishment of special employment exchange, employers were

    required to maintain records and the vacancies which are not filled up to be carried

    forward. Therefore the aim of this Act to provide employment right of Persons with

    Disabilities, which may be divided into two sub-heads, namely

    (A) Right of the Persons with Disabilities to secure employment and (B) Rights of person

    acquiring disablement during employment.

    (A)-Right of employment- The Disabilities Act 1995 confers special and preferential right

    on Persons with Disabilities in government employment and inter alia provide 3

    percent reservation of vacancies for Persons with Disabilities, where 1% each is to be

    reserved for persons suffering from (1) blindness or low vision, (2) hearing impairment

    and (3) locomotors disability or cerebral palsy. As per section 33 if the vacancy cannot be

    filled up due to non-availability of suitable candidates with disability such vacancy shall

    be carried forward to the succeeding recruitment year.

    But reality has shown that these provisions are not affected because of the general

    misconception among non-disabled that Persons with Disabilities are not capable of doing

    any job properly. Therefore the role of court in trying to change the mindset of the people,

    20 Article 17 of International Covenant on Economic and cultural rights

  • and particularly, the employer is worth appreciating. In the High Court of Madras21held

    that where a Persons with Disabilities has performed the endurance test successfully, he

    can be consider for promotion to the post of inspector of central excise and customs. Fact

    of this case was that, the petitioner joined the service as lower divisional clerk. Thereafter

    he was promoted as upper division clerk. Consequent to re-designation of the post he was

    holding the post of Tax assistant. The petitioner by virtue of his experience, made a

    representation for the post considered for promotion to the post of inspector of central

    excise and customs.

    For example Persons with Disabilities Act, 1995 provide a wide range of educational

    options to persons with disabilities so as to enable them to choose the best possible model

    of education that would suit their needs. Both the Constitution of India and Disabilities

    Act, 1995 prohibits discrimination in the matter of work and with regard to accessing

    public facilities, services and utilities. For the equal participation the However the

    respondent did not consider the representation of the petitioner and he was informed that

    being a physically challenged person he would not be able to do the arduous job of

    21 J John Wincent v. The Commissioner of Central Excise, The Chief Commissioner of Excise.

  • inspector of central excise and customs. In Life Insurance of India v. Chief Commissioner

    for Disabilities 22the view taken by LIC was that a persons with 45% disabilities was

    incapable of performing his duties as peon. The Delhi High Court decided that the

    decision of the Chief Commissioner found no substance in it and accordingly directed

    LIC to employ the Persons with Disabilities.

    Other aspects which create problems for Persons with Disabilities in seeking employment

    may be following-

    (1) The definition of disabilities does not provide for all kinds of disabilities. There are

    some types of disabilities that may be rendering Persons with Disabilities unable to

    undertake any job. But there are some other types of disabilities that ought to be

    brought within the definition, since persons suffering from disabilities could still

    perform certain kind of jobs.23

    (2) Under section 38 of the disability Act the government is required to identify jobs that

    could be performed by persons suffering from various kinds of disabilities.24 Cases

    have been filed where questions have arisen as to whether a person's suffering from

    particular job. For instance a Division Bench of Delhi High Court in it judgment held

    that handicapped persons can be appointed as physical education teacher once they

    have passed qualifying examination and undergone the requisite training and the

    government cannot by subsequent clarification take away that right which has already

    been accrued to them.25

    In Sanjay Kumar Jha v. AIIMS and Anr.26 Delhi High Court has pointed out that the

    appropriate government or local authorities have not framed the requisite scheme in

    favour of Persons with Disabilities for preferential allotment etc. though it is the duty cast

    22 2002, 101 DLT 43423 Supra note 1 at 3224 ibid at 1125 Govt of NCT, Delhi vs Bharat lal meena and surinder singh SC 1431, 200226 MANU/DE/0468/2008

  • upon them by the legislatures under sections 43 of the Disability Act. The Court has given

    direction to make appropriate scheme under section 43 of the Act within a period of six

    months. In another case Syed Bashir-ud-din Qadri v. Nazir Ahmed Shah and

    Others27Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection

    of Rights and Full Participation) Act, 1998, ss. 22 and 27 - Employment of person with

    disability - State of Jammu and Kashmir launched a scheme known as "Rehbar-e-Taleem"

    - Under the Scheme, Committee was constituted to select persons to be appointed as

    "Rehbar-e-Taleem" (Teaching guide) - Appellant applied for the same and was placed at

    the first position in the list published of proposed candidates for appointment as Rehbar-

    e-Taleem - Appellant was suffering from Cerebral Palsy which affected his speech -

    Appellant filed writ petition praying for a direction for issuance of appointment letter in

    his favour in terms of the list issued by them - HC directed that the respondent should

    consider the possibility of absorbing the appellant under the quota of handicapped

    persons - Pursuant thereto, a committee was constituted which on an overall assessment

    viewed that the appellant be given appointment as Rehbar-e-Taleem - Appointment of

    appellant was challenged before HC - HC quashed the appellant's appointment -

    Aggrieved by the order of the Single Judge resulting in the passing of the order of his

    disengagement from the post of Rehbar-e-Taleem, the appellant filed present special leave

    petition - Held, object of the Act is to provide equal opportunities, care, protection,

    maintenance, welfare, training and rehabilitation to persons with disabilities.

    Supreme court of India held that approach of the local authorities, as well as the HC, was

    not in consonance with the objects of the Act and scheme of the State Government to fill

    up a certain percentage of vacancies with disabled candidates, and was too pedantic and

    rigid - Impugned order of the HC and that of the Chief Education Officer disengaging the

    appellant from functioning as Rehbar-e-Taleem.

    Persons Acquiring Disabilities during Employment

    In so far as acquiring disability during employment is concerned, the rights of such

    disabled persons are taken care of by enacting a provision like section 47 of the Disability

    27 2010 (3) SCJ 442

  • Act. Sections 47 mandate its clear terms that no establishment shall dispense with or

    reduce in rank the employee who acquires that disabilities during the service.28 In

    Narendra kumar Chandla v. State of Haryana and Other 29a SLP was filed under Article

    136 in the Supreme Court of India. Chandla was aggrieved on account of being reduced

    in rank on acquiring disability during service. Though the Supreme Court but it orders

    appointed him as lower divisional clerk this was lower in rank but protected his salary in

    pay scale of Rs.1400-2300.However he was deprived of his right to promotion to the next

    higher grade forever. No doubt to great degree the Supreme Court removed the injustice

    and protected his livelihood but it did not lay down the law that prohibition against

    discrimination in the matter of career enhancement of acquiring disability during service.

    In order to prevent discrimination on grounds of disability extra legal safeguards have

    now been provided.30 As section 47 of the Act says that no establishment shall dispense

    with or reduce in rank, on employee who acquires a disability during his service.

    Provided that if any employee after acquiring disability is not suitable for the post he was

    holding could be shifted to some other post with the same pay scale and service benefit.

    Provided further that if it is not possible to adjust the employee against any post, he may

    be left on super-numerary post until a suitable post is available or he attains the age of

    superannuation whichever is earlier. No promotion shall be denied to a person merely on

    ground of disability. In Kunal Singh v. Union of India 31the appellant was recruited as a

    constable in the Special Service Bureau. When he was on duty, he suffered an injury in

    his left leg. The medical aid given to him did not help. Ultimately, his left leg was

    amputated on account of gangrene which had developed from the injury. He was

    invalidated from service by the respondents on the basis of the report of the Medical

    Board, Kullu under which he was declared permanently incapacitated for further service

    as per order passed by the commandant, Group center, SSB Shamshi (Kullu). He filed a

    writ petition in the High Court challenging the validity and correctness of the said order

    on the ground that it was arbitrary and that he could have been assigned with alternative

    28 Supra note 1 at 4129 AIR 1996 SC 41930 ibid at 4231 AIR 2003 SC 623

  • duty which he could discharge keeping in view the extent of his disability and having due

    regard to 17 years of his unblemished service. The writ petition was dismissed the High

    Court holding that he had been permanently invalidated on the basis of the medical

    opinion and as such there was no scope for his to continue any further in service of any

    kind in the SSB. Hence, the appeal was filed assailing the impugned order before the

    Supreme Court.

    Supreme Court held that the appellant has acquired disability during his service and if

    found not suitable for the post he was holding, he could be shifted to some other post with

    same pay-scale and service and service benefits, if it was not possible to adjust him

    against any post, he could be kept on supernumerary post until a suitable post was

    available or he attains the age of superannuation, whichever is earlier. It appears no such

    efforts were made by the respondents. They have proceeded to hold that he was

    permanently incapacitated to continue in service without considering the effect of other

    provisions of section 47 of the Act. In another case of Delhi High Court 32where the

    petitioner was appointed as a conductor in Delhi transport corporation. On one fateful day

    he met with an accident at his residence and got burns on his face and eyes. Fifteen days

    later he was certified to have fully recovered. The medical board declared the petitioner

    unfit for the post of conductor. The petitioner was then served with an order by which he

    was retired prematurely from the service of the DTC.

    The petitioner is seeking relief under section 47 of the Act filed a petition in the Delhi

    High Court. The Court gave order that the DTC should reinstate the petitioner either on

    the post of a conductor or some suitable post with the same pay-scale and service

    benefits. In case he cannot be adjusted against any other post he attains the age of

    superannuation, whichever is earlier. The Court further held that he will be deemed to

    have continued in service without any break and will be entitled to pay and allowances

    and other service benefits from the date he was retired by the impugned order till the date

    of this judgment. Any amount withdrawn pursuant to the impugned order will be adjusted

    against his salary due till date and subsequent salaries.

    32 Sherni deen dayal vs Delhi Transport Corporation 131 (2006)

  • Denial of a disabled person s rights would not only be unjust and unfair to him and his

    families but would also create larger and graver problems for the society at large. What

    the law permits to them is no charity or largess hut their right as equal citizens of the

    country. Thus in the Bhagwan Das and Anothers v. Punjab State Electricity Board 33the

    appellant became blind while in service and remained absent from duty for three years

    without any sanctioned leave. Then he made representation to the Board for retirement

    and requested to appoint his wife in his place he was then relived from the service. He

    filed an affidavit before the Board and pleaded that he had no knowledge of rule of the

    Electricity Board and represented for retirement mistakenly. Here the High Court

    dismissed the appeal instituted against the decision of the board. Upon this the appellant

    filed appeal before the Supreme Court. The Board contended before the Supreme Court

    that he himself wanted to retire from service therefore section 47 of the Act was not

    applicable. The Supreme Court held that in the letter for retirement the appellant

    requested to be retired but at the same time requested that his wife should be given a

    suitable job. Hence the latter is not a voluntary offer for retirement. Rather it was the duty

    of the superior officers to explain to him the correct legal position and to tell him about

    his legal rights. The conduct of the concerned officers was depreciable as it has resulted

    into denial of disabled persons rights which would not only be unjust and unfair to them

    and their families but would create larger and graver problems for the society at large.

    Hence the termination was held bad and illegal and he was held entitled to all service

    benefits.

    In Union of India v. Devendra Kumar Pant and Others34Respondent was appointed as a

    Lab Assistant in the Research Designs and Standards Organisation (RDSO), Ministry of

    Railways and was subsequently promoted as Junior Research Assistant, and Senior

    Research Assistant, he further was selected for the next higher post with the condition

    that his promotion w ill be effective from the date of submission of fit certificate in B1

    medical category. Earlier applicable medical category was B2 - Writ petition filed before

    33 AIR 2008 SC 99034 2010 (1) SCJ 455

  • Allahabad High Court, section 47(2) of the Persons With Disabilities (Equal

    Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the

    Act');with contention that B1 medical category was of a higher standard than B2, as it

    required colour perception in addition to the requirements prescribed for B2 category, that

    lack of colour perception or reduced colour perception was a 'disability' and that as he

    was otherwise qualified; having regard to section 47(2), promotion could not be denied to

    him on the ground of any disability which existed with reference to B1 medical standard -

    High court accepted the petition - Whether refusal by the appellant to give effect to the

    promotion of respondent unless be obtains fit certificate in B1 medical category, violates

    section 47(2) of the Act and held, no object and scheme of Act deliberated upon;

    provisions perused, and contentions heard decided cases on the subject referred disability

    under Act means inter alia, blindness, low vision, lack of colour perception, Court

    observed, is neither blindness nor low vision and is therefore apparently not a disability

    under the Act Court said that it is doubtful whether a person lacking colour perception

    can claim to be person entitled to any benefit under the Act.

    The Court proceeded with assumption that respondent is a Person with Disability as per

    section 47(2) a person who is otherwise eligible for promotion shall not be denied

    promotion merely or only on the ground that he suffers from a disability, thus it bars

    disability per se being made a disqualification for promotion, but if promotion is denied

    on the ground that it will affect the safety, security and performance, then it is not denial

    of promotion merely on the ground of his disability, but is denial of promotion by reason

    of the disability plus something more, that is adverse effect of the disability upon the

    employee's performance of the higher duties or functions attached to the promotional post

    - Higher standard fixed in instant case for the promotion post was being fixed in the

    interest of the public safety, as also interest of the employee concerned, co-employees and

    administration, the respondent cannot, by relying upon section 47(2) of Act, avoid

    subjecting himself to medical examination for ascertainment of B1 medical category

    fitness - Prescription of minimum medical standard for promotion should be considered

    as such, and should not be viewed as denial of a promotional opportunity to a Person with

    Disability. Case comes before Supreme Court. The Supreme Court observed that section

  • 47(2) only provides that a person who is otherwise eligible for promotion shall not be

    denied promotion merely on the ground that he suffers from disability. The use of the

    words 'merely on the ground' shows that the section does not provide that if the disability

    comes in the way of performing the higher duties and functions associated with the

    promotional post, promotion shall not be denied. In other words promotion shall not be

    denied to a person on the ground of his disability only if the disability does not affect his

    capacity to discharge the higher functions of a promotional post.

    Similarly the Madras High Court in Sheriff E. v. Tamilnadu State Express Transport

    Corporation 35decided that the petitioner was entitled to the benefits of the provisions

    contained in section 47 of the Act, the same should have been extended by the TNSETC

    but instead it has entered into a settlement with the petitioner and provided the job of

    helper, which post carries a lesser pay scale, which in the considered view of the Court is

    against the beneficial provisions contained in section 47 of the Act. Therefore, the Court

    took the view that the impugned order is liable to be quashed and accordingly quashed

    and allowed the petition. The facts of this case in brief was that the petitioner who was

    working as a conductor with the TNSETC lost his right leg in an accident which occurred

    while he was on duty. On account of the said accident, the petitioner was no more in a

    position to perform his duty as conductor. However, he later joined duty after getting a

    fitness certificate to resume work. But, he was not able to perform his job as conductor.

    Hence, he was given lighter work as Reservation Counter Clerk/ Time Keeper, as there

    was no need for the petitioner to stand or walk to discharge the duties, and the was

    working as Reservation Counter Clerk/ time keeper satisfactorily. While so, the petitioner

    was abruptly denied employment six years later from date of accident, by an oral order of

    the branch Manager of the Marthandam Depot. He was informed that he would not be

    given the lighter work which he was doing from last six year. Hence a representation was

    made by the petitioner to the managing director of the Corporation, requesting them to

    continue to give him lighter work. The petitioner was directed to appear before the

    Medical Board and the Board found that the petitioner was not fit to discharge his duties

    35 Sherrif E vs Tamil Nadu State Express Transport Corporation, (2008) LLJ 1455

  • as conductor. On the basis of the report of the Medical Board, a show cause notice was

    sent to the petitioner to show cause as to why he should not be terminated from service.

    In reply he again requested for providing him lighter work as was provided to him earlier.

    But not accepting the explanation and representation of the petitioner, the MD of

    Corporation passed an order terminating his service.

    Easy and Convenient Access to All Places for Persons with Disabilities

    In Lok Sabha while answering a question on 10th August,1994, the Minister of State for

    Urban Development admitted that even Government building are not designed to

    facilitate access for Persons with Disabilities. Voicing concern to bring disabled people

    into the mainstreams of society and nation by official and non-official agencies has

    become a trend of the day. However, what is being preached is not practiced. One of the

    most essential prerequisites for brining in to ma instream the disabled person is to provide

    them accessibility to public places/building and an accommodating transport system.

    Difficult to enter offices, railway/bus stations, banks universities/colleges, schools, courts,

    entrainment and sports likes theaters, amusement park, restaurants and mela or trade fare

    etc. hampers this accessibility aspect.36 Therefore the strategy adopted in the Disability

    Act for the realization of positive right is the mandate to the government to prepare

    scheme through which accessibility can be secured. Thus, under section 30 of the Act,

    appropriate government have been directed to prepare a comprehensive educational

    scheme which may provide, inter alia, for transport facilities, supply of books, uniforms,

    grant of scholarship etc.

    In the present case, there was nothing on record to show that the appellant was not

    performing his duties as Rehbar-e-Taleem efficiently and with dedication - On the other

    hand, his performance as a teacher was reflected in the exceptionally good results that he

    achieved in his discipline in the classes taught by him - Furthermore, Committee

    constituted to assess his performance as a teacher notwithstanding his disability had

    formed a favourable impression about him.

    36 Atiq Khan, " Persons with Disabiltiy" Act, 1995

  • Scheme Sarv Shiksha Abhiyan not only makes provision for the inclusion of children in

    the mainstream schools but it has also made a budget provision for it. Another example of

    disability inclusive development is Delhi Metro. This is perhaps the first public transport

    system in the country which has been constructed in a manner that allows equal access by

    persons with disabilities.

    In the introduction to the Standard Rules on the Equalization of Opportunities for Persons

    with Disabilities, 1993, the principle of equal rights is described as implying that the

    needs of each and every individual are of equal importance, that those needs must be

    made the basis for the planning of societies and that all resources must be employed in

    such a way as to ensure that every individual has equal opportunities for participation

    What do the Laws Say?

    In this chapter we would present a brief overview of International Human Rights Law and

    Domestic Laws. Under the Domestic Laws four important legislations on disability have

    been discussed at some length, in addition some provisions of Juvenile Justice Act and

    Income Tax Act will also feature.

    International Human Rights Law

    There are three legal instruments which make up the International Bill of Human Rights.

    These are the Universal Declaration of Human Rights37, passed by the General Assembly

    of the United Nations in 1948, the International Covenant on Civil and Political Rights

    (ICCPR), and the International Covenant on Economic, Social and Cultural Rights

    (ICESCR), both adopted in 1966. International human rights law has not always

    adequately acknowledged people with a disability as part of what the human, in human

    rights, means. In the last two decades, however, there has been increasing international

    37 Adapted from NHRC report, 2006 by S.K Mishra and Atul Srivastava

  • attention to issues concerning the human rights of people with disabilities. But to date this

    has not resulted in a specific binding international treaty, as there is on racial

    discrimination, or discrimination against women, or the rights of children.

    As already pointed out, when these international legal instruments were elaborated, they

    did not explicitly mention disability as a category of discrimination. However, in 1994,

    the Committee on Economic, Social and Cultural Rights in General Comment No. 5

    clarified that any distinction, exclusion, restriction or preference, or denial of reasonable

    accommodation based on disability which has the effect of nullifying or impairing the

    recognition, enjoyment or exercise of economic , social or cultural rights will constitute

    discrimination. (The international monitoring committees established under various

    conventions and covenants from time to time issue general comments. They offer general

    description or explanation of specific aspect of the convention especially where states are

    confronted with the obstacles making the implementation difficult. These general

    comments serve as guidelines as they provide a more clear interpretation of the treaty

    rights or obligations under it. In recent years both governments and courts have taken

    them into consideration. The case of Vishakha is one example of this nature.)

    To avoid any confusion it must be pointed out that although a legally binding

    international instrument on the human rights of persons with disabilities does not exist but

    there are a number of soft law instruments with a clear focus on disability, e.g.

    Declaration on the Rights of Mentally Retarded Persons. (1971)

    Declaration on the Rights of Disabled Persons. (1945)

    World Programme of Action. (1982)

    UN Standard Rules on the Equalization of Opportunities for People with Disabilities.(1993)

    Proclamation on the Full Participation and Equality of People with Disabilities in the

  • Asian and Pacific Region. (1992)

    Biwako Millennium Framework towards an Inclusive, Barrier-free and Rights-based

    Society for Persons with Disabilities. (2002)

    As such these soft law instruments are non-binding in nature which means governments

    are not bound to consider them while formulating policy or law. However, some of these

    non-binding instruments such as UDHR and Standard Rules have been accepted so

    widely that they form a part of customary law, meaning thereby that the practice of using

    these instruments is very common.

    Many experts believe that a new human rights convention38 on the theme of disability is

    necessary to give status, authority and visibility to disability rights that cannot be

    achieved through the process of interpretations and refinement of the existing treaties and

    Standard Rules. Moreover, adding a new treaty will complement existing international

    standards for disability rights. In response to a continued advocacy for a specific

    disability convention, in December 2001 the UN General Assembly passed a resolution

    establishing an Ad Hoc Committee to consider proposals for a comprehensive and

    integral international convention to promote and protect the rights and dignity of persons

    with disabilities, based on the holistic approach in the work done in the field of social

    development, human rights and non-discrimination. To date, the committee has held

    seven sessions. Negotiations on the convention are advancing at a rapid pace. A large

    measure of agreement has already been reached on a number of articles. There are a few

    issues that require further negotiations which, in all likelihood, would be completed over

    a short period of time. It is hoped that by the year 2007, the convention would be adopted

    by the UN General Assembly. This convention could considerably move forward the

    process of mainstreaming disability. A new treaty would create a strong monitoring

    mechanism and give impetus to the implementation process. In some, the international

    human rights convention on disability would have enormous potential in bridging the

    38 ibid

  • gaps under domestic law and practice.

    The Indian Law and Disability

    The Constitution of India premised on the principle of social justice and human rights.

    The Preamble, the Directive Principles of State Policy and the Fundamental Rights

    enshrined in the Constitution stand testimony to the commitment of the State to its

    people. These provisions envisage a very positive role for the State in the upliftment of

    the status of disadvantaged groups39. For example, Article 41 enjoins that, The State

    shall, within the limits of its economic capacity and development make effective

    provision for securing the right to work, to education and to public assistance in cases of

    unemployment, old age, sickness and disablement. More specifically, Article 46

    stipulates that, The State shall promote with special care the educational and economic

    interests of the weaker sections of the people, and, in particular, of the Scheduled Castes

    and the Scheduled Tribes, and shall protect them from social injustice and all forms of

    exploitation.

    Here it is important to clarify that under Part IV of the Constitution of India, Directive

    Principles of State Policy rights that have been catalogued need to be realized over a

    period of time. On the other hand under Part III, such rights have been arranged which are

    fundamental in nature and crucial to democracy and are to be enforced immediately. For

    example, rights covered under Article 14 to Article 32 form part of

    fundamental/enforceable rights and Article 36 to Article 51 comprise directive principles

    and are theoretically non- justiciable.

    However, in Article 37, the constitution clarifies:

    (a) That the directive principles are fundamental in the governance of the country, and

    (b) It shall be the duty of the State to apply these principles in making laws.

    In view of these obligations, disability has been an integral component of policy

    39 Review of report on National Disabled Persons Census , 2009

  • plannning. The ten five year plans that the country has embarked upon, do make a

    refrence to disability though in the margins. Introduction of the policy of reservation in

    jobs for persons with disabilities in 1977 and the formulation of scheme of integrated

    education for disabled children in 1976 are also a few examples that mark this trend.

    There appears to be a complete unanimity of judicial opinion that the Directive Principles

    and the Fundamental Rights are inter-related and interdependent. The Supreme Court of

    India declared, The directive principles contained in Part IV constitute the stairs to climb

    the high edifice of a socialistic State and the fundamental rights are the means through

    which one can reach the top of the edifice.

    Highlighting the significance of the Directive Principles, the Supreme Court stated, in

    Kesavananda Bharati, that it is relevant in this context to remember that in building up a

    just social order it is sometimes imperative that the Fundamental Rights should be

    subordinated to the Directive Principles

    The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full

    Participation) Act, 1995

    The Act, which catalogues the rights of people with disabilities in India, was passed by

    the Parliament of India on December 12, 1995, and notified on February 7, 1996. The Act

    was a landmark in that, for the first time, it stated that people with disabilities had the

    right to equal opportunities and full participation and that these rights would be protected

    by the law. The Act40 elaborates, at some length, duties of the government at various

    levels and the other establishments under their control. It also provides useful guidance

    regarding the type and nature of measure that would equalize opportunities for the

    enjoyment of basic rights and freedoms.

    The Act is arranged in three distinct parts:

    40 Annual report by NHRC on Persons with disabilities Act 1995

  • Part I comprises Chapter 1-4 dealing with the administrative arrangement forimplementation.

    Part II comprises Chapter 5-11 dealing with the substantive rights and co-relatedobligations.

    Part III provides a mechanism for the monitoring of the Act in the Centre and States.Chapter 12 establishes the office of the Chief Commissioner and State Commissioners forperson with disabilities.

    Part I

    In the first chapter, the Act lists and defines the disabilities covered under it. These

    disabilities are blindness, low-vision, disabilities as a result of leprosy, hearing

    impairment, locomotor disabilities, mental retardation, and mental illness. The Act

    specifies the minimum degree of disability to be 40% to entitle a person with disability to

    the benefits under the Act. Authority to certify disability has also been specified. A

    medical board comprising three specialists from a government hospital can issue a

    disability certificate.

    The Act establishes the Central and State Co-ordination Committees. These committees

    have been conceived in a multi-sectoral mode. Many important ministries and

    departments of the governments including five representatives of NGOs are members.

    The committee is mandated to perform the following functions:

    (a) Review and coordinate the activities of all the Departments of Government and

    other Governmental and Non-Governmental Organizations which are dealing with

    matters relating to persons with disabilities;

    (b) Develop a national policy to address issues faced by persons with disabilities;

    (c) Advise the Central Government on the formulation of policies, programmes,

    legislation and projects with respect to disability;

    (d) Take up the cause of persons with disabilities with the concerned authorities and

  • the international organizations with a view, to provide for schemes and projects for

    the disabled in the national plans and other programmes and policies evolved by

    the international agencies;

    (e) Review, in consultation with the donor agencies, their funding policies from the

    perspective of their impact on persons with disabilities;

    PART II

    In order to make up for past discrimination, and deter it from happening in the future, the

    Act enlists various duties of the government in relation to the rights of persons with

    disabilities under Chapter Five Education, Chapter Six Employment, Chapter Seven

    Affirmative Action, Chapter Eight Non-discrimination, Chapter Nine Research and

    Manpower Development, Chapter Ten Recognition of Institutions for Persons with

    Disabilities and Chapter Eleven Institutions for Persons with Severe Disabilities makes

    provision for what is called affirmative action preferential actions designed to improve

    the status of people with disabilities. It is, therefore, the governments responsibility to

    provide people with disabilities with aids and appliances which reduce or eliminate the

    limitations on function imposed by the disabilities. The government is also required to

    show preferences to people with disabilities when it allots land for building houses and

    setting up businesses, and also for the creation of special schools41 and recreational

    centres for people with disabilities.

    Part IIIThe Act provides for a monitoring mechanism in the Centre as well as in States. For this

    purpose it has established the office of the Chief Commissioner and State Commissioners

    for person with disabilities. The functions of the Chief Commissioner are:

    a. coordinate the work of the Commissioners;

    b. monitor the utilization of funds disbursed by the Central Government;

    c. take steps to safeguard the rights and facilities made available to persons with

    41 ibid

  • disabilities;

    d. submit reports to the Central Government on the implementation of the Act at such

    intervals as that Government may prescribe.

    In addition to the People with Disabilities Act 1995, there are three other legislations

    which are relevant to the rights of people with disabilities. These include the National

    Trust Act 2000, the Rehabilitation Council of India Act 1992, and the Mental Health Act

    1987. In addition, the Government of India has adopted a National Policy on Disability in

    February 2006.

    The Rehabilitation Council of India Act 1992:

    The Rehabilitation Council of India was set up by the Government of India in 1986,

    initially as a society to regulate and standardise training policies and programmes in the

    field of rehabilitation of persons with disabilities. The urgent need for minimum standards

    was felt as the majority of persons engaged in education, vocational training and

    counselling of persons with disabilities were not professionally qualified. Poor academic

    and training standards adversely affect the chances of disabled succeeding in the world of

    work. Therefore, an Act of Parliament in 199242 enhanced the status of the Council to a

    statutory body with following aims:

    1. To standardise training courses for professionals dealing with people with

    disabilities;

    2. To prescribe minimum standards of education and training of various categories of

    professionals dealing with people with disabilities;

    3. To regulate these standards in all training institutions uniformly throughout the

    country;

    4. To promote research in rehabilitation and special education; and

    5. To maintain Central Rehabilitation Register for registration of professionals.

    42 Persons with disability Act, 1995 report

  • The Rehabilitation Council of India (RCI) regulates training standards for sixteen

    categories of rehabilitation workers. The Council is proactively promoting training and

    research initiatives utilising experience of specialised as well as mainstream academic

    institutions.

    The National Trust for Welfare of Persons with Autism, Cerebral Palsy,

    Mental Retardation and Multiple Disabilities Act 1999:

    As certain groups among the disabled are more vulnerable than others, a special

    enactment for the protection of such persons, their property and well-being was felt

    necessary. The enactment of the National Trust for Welfare of Persons with Autism,

    Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (referred to as the

    National Trust Act) aims to fulfil a common demand of families seeking reliable

    arrangement for their severely disabled wards. The specific objectives of the Act43 are:

    To enable and empower persons with disabilities to live as independently and asfully as possible within and as close to the community to which they belong;

    To promote measures for the care and protection of persons with disabilities in theevent of death of their parent or guardian; and

    To extend support to registered organisations to provide need based servicesduring the period of crisis in the family of disabled covered under this Act.

    The National Trust Act mandates the creation of a Local Level Committee (LLC)

    comprising District Magistrate along with one representative from a registered

    43 adapted from article in hindustan times (19.8.2011)

  • organisation and one person with a disability. The LLC is vested with the authority to

    decide upon applications for legal guardianship. The Act provides for the manner in

    which legal guardians are to be appointed. The conditions of eligibility, the order of

    eligible applicants, and the disqualification of applicants are contained in Regulations 11

    to 14.

    The Act also lays down duties of the legal guardian who has to furnish periodic returns to

    the LLC about the assets of the ward and their disposal in his hands. Similarly, the

    Committee too is required to maintain inventory and annual accounts of the property and

    assets, claims and liabilities submitted by the legal guardians to it.

    The overall supervision of this Act is vested with a National Trust Board appointed

    through a democratic process by the registered organisations of the parents and others

    providing services to this segment of the disabled population. The government has

    contributed Rupees one billion to the trust fund. The interest earned is used in supporting

    mandated activities.

  • SOME IMPORTANT RIGHTS

    Rights are interconnected and are interdependent. In the absence of one it becomes

    difficult to enjoy other rights. In this chapter we will talk about some of the rights seen

    crucial in the enjoyment of all other rights. Education, Employment and right to access

    form the core of these rights, nonetheless rights that are not mentioned in this chapter are

    equally significant for persons with disabilities. In the Disability Manual, 200544 the

    NHRC has compiled a very comprehensive analysis of the complete range of rights with

    examples from International and National Law including legal cases.

    Education

    Over the last fifty years, right to education has evolved in India, inspired by a host of

    factors including judicial interpretations, enactment of special laws and amendment to the

    Constitution. For example, 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 21A, 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.

    44 NHRC annual Survey, 2005 report

  • 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, 199545 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:

    1. ensure that every child with a disability has access to free education in anappropriate environment till he attains the age of eighteen years;

    2. endeavour to promote the integration of students with disabilities in the normalschools;

    3. promote setting up of special schools in government and private sector for those inneed of special education, in such a manner that children with disabilities living inany part of the country have access to such schools; and

    4. endeavour to equip the special schools for children with disabilities withvocational training facilities.

    Recognizing that persons with disabilities must have equal access to all forms of

    45 ibid

  • 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:

    1. 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;

    2. conducting special part-time classes for providing functional literacy for children

    in the age group of sixteen and above;

    3. imparting non-formal education by utilizing the available manpower in rural areas

    4. imparting education through open schools or open universities;

    5. conducting classes and discussions through interactive electronic or other media;

    and

    6. providing every child with disability free of cost special books and equipments

    needed for his education.

    In this respect, the Act is modeled on human rights approach and entitles persons with

    disabilities to all such 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.

    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:

  • 1. 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;

    2. the removal of architectural barriers from schools, colleges or other institutions

    imparting vocational and professional training;

    3. the supply of books, uniforms and other materials to children with disabilities

    attending school;

    4. the grant of scholarship to students with disabilities;

    5. suitable modification in the examination system to climate purely mathematical

    questions for the benefit of blind students and students with low vision;

    6. restructuring of curriculum for the benefit of children with disabilities; and

    7. 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 mindset and poor information about the Act

    itself.

    Employment

    In spite of recognition by international community of the dignity of human life, persons

    with disabilities have remained marginalized and excluded from participating in different

    aspects of community life. They have always been perceived as lacking abilities and

    potential to engage in any meaningful activity or work. This perception resulted into

    denial of the right to work to them which has been recognized in UDHR and more

  • specifically in IESCR. The dismal employment situation of persons with disabilities

    engaged the attention of international community which culminated into the first

    international document relating to disability and work titled Recommendation 99 of the

    International Labour Organization on Vocational Rehabilitation (Disabled)46 in 1955.

    Committee on Economic, Social and Cultural Rights through its General Comments

    elaborated positively on the right to work on persons with disabilities. All disability

    related international instruments also provided a broad guideline and a foundation for

    legislative and policy framework at domestic level to ensure that persons with disabilities

    are able to enjoy their right to work and access job opportunities. These international

    developments influenced the legislative and policy environment in many countries. Since

    1980s there has been growth of various legislation and policies in most of the countries

    aimed at ensuring greater participation and equality of persons with disabilities in all

    matters including employment. There are two visible major legislative strategies one

    prohibits discrimination while assuring equality of opportunity of persons with

    disabilities in employment through reasonable accommodation while the other strategy

    provides for quota system to achieve real equality at least in organized public

    employment sector.

    In India, 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)47. 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

    46 United Nations Report on Labour trades and organisation, 200647 supra @ 35

  • 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).

    Accessibility

    Given their history of segregation and isolation, the right to full participation in the

    community is one that people with disabilities value very highly. However, in order to

    participate in the life of the community, a person needs to get around. Whether s/he is

    going to school, or to work, or to use recreational facilities, the ability of the person with

    disability to move around in the immediate vicinity of the living space or travel farther a

    field is critical to make him or her feel like a valued and effective member of the

    community. However , most community facilities in the world have been designed for

    and cater to able-bodied individuals.

    Using the facilities of a community service, keeping in mind the perspective of people

    with disabilities, is likely to quickly to show how ableist the community is in the

    provision of services. For example, a visit to your local bus station might be useful to

    understand this aspect of discrimination against people with disabilities. As you examine

    the facilities, ask yourself questions like these: Do buses for different routes stop at

    different fixed spots, or are commuters expected to run up to the bus and rely on sight to

    find out where it is going? Even if there are platforms and bays for buses on the various

    routes, are there cut-outs in the platforms and pavements to allow wheelchair users on

    them? In addition to stairs wherever necessary (e.g. to buildings, information booths,

    raised walkways, etc.), are there ramps and lifts in addition to stairs? Are stairs marked by

    broad yellow lines to help people with visual impairments recognize the difference in

    gradient? Are signs marked in Braille as well as in the local languages? Are

  • announcements made over public address system? Do the buses have low entryways,

    ramps and lifts, wide doorways and bays for locking wheelchairs to assist wheelchair

    users? Are toilets available and are these disabled-friendly? Have the employees of

    transport service companies been provided with sensitivity training to assist passengers

    with disabilities and to be sensitive and helpful in serving the needs of people with

    disabilities? It is likely that, when you make such a survey, you will discover how much

    further we have to go to ensure that public services are accessible and friendly to people

    with disabilities.

    According to the Persons with Disabilities Act, many measures have been encouraged to

    improve accessibility for people with disabilities.

    Establishments associated with providing transport have been encouraged to adapt

    buses, trains, boats and aircraft and waiting areas to allow for easy access to

    people with disabilities and to adapt toilets to allow people with disabilities to use

    them conveniently.

    Modify traffic signals so that they serve the needs of people with visual

    impairments.

    Make slopes and curb-cuts in pavements at regular intervals so that wheelchair

    users can use them.

    Engraving surfaces of zebra crossings or platforms with a gradient difference to

    assist people with low vision.

    Using appropriate signs to indicate disabled-friendly services and installing

    warning signals of various kinds where necessary.

    Build ramps in public buildings, hospitals, primary health centres, etc. and adapt

    toilets in these building to make them disabled-friendly.

    Have auditory signals and Braille symbols in elevators and lifts.

    One of the major drawbacks of the Persons with Disabilities Act 1995 is that it allows

    for loopholes that allow authorities to get away without providing many of the

    recommended facilities. When important social justice legislation is introduced, aimed

  • at bringing about major changes in society, it is necessary that these be accompanied

    by financial backing for local governments. This is an area in which the Persons with

    Disabilities Act is weak. Many of the recommendations made by the Act in the area of

    measures to support people with disabilities come with the rider within the limits of

    their [the states] economic capacity. Hence, it is possible for authorities to argue that

    they do not have the funds to provide admissible facilities for people with disabilities.

    It is, therefore, necessary to strengthen the law to put pressure on authorities to comply

    with it. In addition, while public facilities are modified to meet the needs of people with

    disabilities, it is simultaneously necessary to educate able-bodied members of the general

    public on the importance of these measures so that there is support and sensitivity on their

    part as well. Many states in India have reserved seats on buses for people with

    disabilities. It is not unusual to find able-bodied people using them and refusing to give

    them up even when a person with a disability enters the bus. Likewise, even in the rare

    city in India which reserves parking spots for people with disabilities, it is not unusual to

    find non-disabled persons usurping the privilege. Hence, awareness raising and advocacy

    among the general public is absolutely necessary to improve access to public services and

    facilities for people with disabilities.

    Under section 38, duty has been casted upon appropriate government and local authorities

    to formulate scheme for ensuring equal employment opportunities and under section 42,

    schemes have to be made to provide aids and appliance to persons with disabilities.

    Insofar as the realization of these vital rights can be secured only if the proposed schemes

    are formulated, while the absence of such schemes would needlessly create ground for

    Court's intervention. If the Courts have left the choice of making such scheme to the

    discretion of appropriate government and local authorities the one of the most potent

    rights guaranteed by the statute would be rendered nugatory.48

    Only through the Act it is not possible to fulfill need of Persons with Disabilities, or in

    other words, the loud talk of bringing the Persons with Disabilities into the mainstream of

    the nation is restricted to papers and platforms, alone it needs hardly be stressed that the

    48 adapted from "A Disabled mind: Therapy and medication" by P.N Sarkar

  • state and society both have to collaborate in order to meet and fulfill their obligation

    towards the Persons with Disabilities so as to enable them to join the mainstream as far as

    possible in all possible way of human life.

    The Importance of Legal Cases in Furthering Rights

    The rights activists and the field functionaries are generally inclined to find answers in

    the legal and policy instruments. In doing so they deprived themselves of a more modern

    interpretation of rights that feature in the law books. The aim of this chapter is to

    encourage use of case law that offers useful interpretations significant in furthering the

    rights of disabled people. We have given few examples just to show the trend. A

    comprehensive compilation of positive cases has been published by the Chief

    Commissioner for Persons with Disabilities and the Human Rights Law Network.

    National Federation of Blinds, UP Branch vs. State of UP, 2000

    In this case, the Uttar Pradesh Branch of the organization, National Federation of Blinds,

    approached the courts to direct the state to arrange for preferential allotment of sites at

    concessional rates to people with visual impairments. The State of Uttar Pradesh

    contended that no schemes existed for such allotment. The court held that the petition was

    in consonance with the People with Disabilities Act 1995, and not against any other

    existing laws and therefore must be granted. The States argument that no schemes had

    been formulated yet, was not a just cause for non-compliance with the law.

    Dr. Vijay K. Agarwal vs. State of Rajasthan, 2001

    In this case, Dr. Agarwal approached the court seeking admission to post-graduate course

    in medicine, based on educational concessions allotted by law to people with disabilities

    under the PDA. The State of Rajasthan argued that the Central and State Coordinating

    Committees responsible for making policy decisions related to the implementation of the

    People with Disabilities Act had not yet been set up. The court adjudged the petitioners

    request valid, and informed the state that the excuses that the Coordinating Committees

    had not been set up and that schemes had not been formulated were not sufficient reason

  • for not complying with the Act.

    Pushkar Singh & Ors. vs. University of Delhi & Ors

    In this case the petition was filed in the High Court of Delhi by Pushkar Singh and four

    others against University of Delhi & Ors alleging that reservation on the teaching post

    have not been provided by Delhi University according to circular dated 25 th October ,

    1994 regarding 3% reservation as recommended by the committee for blind and

    orthopaedically handicapped categories be made known in every advertisement of the

    university/college and at least one disabled person must be appointed in each college

    during the Academic Year 1994-95. The court allowed the writ petition and directed the

    respondents to comply with Resolution No.193/3 dated 16 th July, 1994 of the Executive

    Council of Delhi University w.e.f. date of this Resolution. This exercise should be done to

    calculate the number of posts which will have to be reserved for visually and

    orthopaedically handicapped persons in terms of the aforesaid Resolution and the

    Provisions of Disabilities Act and the number of posts which are to be reserved in the

    aforesaid manner should be earmarked subject wise keeping in view the criteria laid down

    in office memorandum dated 25th November, 1986. This exercise be done within a period

    of two months from the date of this judgment. Further, while implementing the decision

    aforesaid, if number of posts are not available, the respondents should have options either

    to create supernumerary post or terminate the services of those whose appointments were

    made subject to the decision of this writ petition as per order dated 14th July, 1995 in

    CM.4271 of 1995. It is simply because the posts which would now be earmarked for

    handicapped persons were meant for them, are occupied by others and thus recruitment

    not validly made.

    Anka Toppo vs. AIIMS

    Anka Toppio aggrieved on being denied the right to take the examinations for MBBS

    final year, on losing sight, by the All India Institute of Medical Sciences (AIIMS),

  • approached the NHRC. The Respondent was of the opinion that in view of the severe

    visual loss suffered by Shri Toppo, it would not be possible for him to work in the

    medical profession. After great persuasion by the NHRC and on exposing the

    Respondent to numerous examples of blind people successfully pursuing medical

    profession, the Respondent finally agreed to take steps to examine the petitioner for the

    MBBS course by offering a modified methodology of examination. In the light of the

    experience of this case the NHRC at its sitting on 28 May 2001 expressed the view that

    the Medical Council of India should perform a similar exercise so that the same facility

    and system is avail


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