Abstract
There are certain institutional and societal practices that give rise to inequality amongst people. The discrimination could be based on grounds of caste, gender, color, religion, status, and power in society and the physical ability or rather disability stemming from personal prejudices or perceptions. Laws ordinarily assist in molding the relationships existing in society in a progressive manner. They help redefine the social perceptions and are used to establish reformatory practices. With respect to persons with disability or rather the differently abled, the law has been and is being used to change the orthodox view of disability. This chapter will provide an overview of the rights available to the differently abled under the Indian Constitution. The Constitution bestows the fundamental rights of equality and personal liberty to each and every person and recognizes the ideals of dignity and privacy of human beings. It will examine how the law is trying to bring about a change in the social notions, prejudiced perceptions and the practices of social exclusion faced by the persons with disability. It explores the development of the legislation and the fundamental rights available to the differently abled in India today.
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Notes
- 1.
The Preamble to the Constitution of India expressly lays down the objectives which reflect the philosophy of the Constitution.
- 2.
The Preamble to the Constitution of India as interpreted in the famous case of Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.
- 3.
A constitution bench of 9 judges gave a historical judgment in the K.S. Puttaswamy v.Union of India (2017) 10 SCC 1. They interpreted the hitherto unrecognized right to privacy as a fundamental right of the people of India under Article 21 of the Constitution. Article 21 which guarantees the most fundamental of all rights is the right to life and personal liberty. Right to privacy is now recognized as a fundamental right under Article 21.
- 4.
Article 19(1)(a), Indian Constitution guarantees the fundamental right to freedom of speech and expression to all the citizens. This freedom is available to all persons regardless of their abilities, status, and other disabling factors.
- 5.
See the recent judgment of the Supreme Court upholding the rights of the LGBT community and striking down Section 377, IPC in Navtej Singh Johar v.Union of India Writ Petition (criminal) No. 76 of 2016, delivered on September 6, 2018. The transgenders among such others with different sexual orientation have been held to be a part of the society, and their rights and feelings cannot be ignored as it would result in the denial of their right to dignity and personal liberty under the Indian Constitution.
- 6.
Ashok Kumar Thakur v.Union of India (2008) 6 SCC 1., para 49. As stated in the case in para 6.5, the objective of Article 15(5) is positive discrimination which is based on the valid classification to meet the objective of social justice, i.e., to provide opportunities to the weaker sections of the society.
- 7.
The Constitution of India under the concept of equality provides for equal status, social and economic justice, and the dignity of the person. These objectives are mentioned in the Preamble to the Constitution.
- 8.
Article 51-A(e), Constitution of India is one of the eleven fundamental duties of the Indian citizens. Although these duties have not been made mandatory by the Constitution, it is imperative to observe these in letter and spirit as these duties reflect the culture and identity of the nation. Non-observance of some of the duties has been made punishable under laws enacted by the Parliament for the purpose. Also see State of U.P. v. Dina Nath Shukla (Dr) (1997) 9 SCC 662 at page 666.
- 9.
Bagenstos, S. R. (2004). The Future of Disability Law. The Yale Law Journal, 114(1), 1–83. Similar arguments have been advanced in this article regarding the Americans with Disability Act (ADA), 1990.
- 10.
As per Article 246 and the Seventh Schedule of the Indian Constitution, the Parliament has the power to make laws on matter mentioned in the Union List and the Concurrent List. The State Legislatures make laws on matters in the State List and Concurrent List. Since rehabilitation of the disabled is a matter in the State List, The Parliament cannot make a law on the same.
- 11.
As per Article 253, Constitution of India, the Parliament has the power to enact laws on matters in the State List to give effect to international agreements. The PWD Act, 1995 was enacted as a consequence of the signing of the Proclamation which was an international treaty.
- 12.
Act 1 of 1996. The Act is available online at: http://www.ccdisabilities.nic.in/page.php?s=&t=pb&p=pwd_act (downloaded on 6.9.18).
- 13.
As per the Gazette Notification issued by the Ministry of Social Justice and Empowerment dated 19.4.2017.
- 14.
This shift in thinking was addressed by Justice Dr. A.K. Sikri in Rajive Raturi v. Union of India (2018) 2 SCC 413.
- 15.
The Right to Education Act, 2009 puts a mandate on all schools including the private schools to reserve 25% seats for the children from the economically weaker section of the society. The objective it to reduce the inequality and follow a policy of inclusiveness.
- 16.
Section 2(r) “person with benchmark disability” means “a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority.”
- 17.
Section 41. (1) The appropriate government shall take suitable measures to provide—(a) 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; (b) 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; and (c) accessible roads to address mobility necessary for persons with disabilities. (2) The appropriate government shall develop schemes programmes to promote the personal mobility of persons with disabilities at affordable cost to provide for—(a) incentives and concessions; (b) retrofitting of vehicles; and (c) personal mobility assistance.
- 18.
Section 42. The appropriate government shall take measures to ensure that—(i) all contents available in audio, print, and electronic media are in accessible format; (ii) persons with disabilities have access to electronic media by providing audio description, sign language interpretation and close captioning; and (iii) electronic goods and equipment which are meant for everyday use are available in universal design.
- 19.
Section 33. Identification of posts for reservation—The appropriate government shall—
-
(i)
identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of Section 34;
-
(ii)
constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and
-
(iii)
undertake periodic review of the identified posts at an interval not exceeding three years.
-
(i)
- 20.
Section 34. Reservation-(1) Every appropriate government shall appoint in every government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and (e), namely:- (a) blindness and low vision; (b) deaf and hard of hearing; (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability and mental illness; (e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disability:
Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate government from time to time:
Provided further that the appropriate government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any government establishment from the provisions of this section.
(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate government.
(3) The appropriate government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.
- 21.
Section 35. Incentives to employers in private sector—The appropriate government and the local authorities shall, within the limit of their economic capacity and development, provide incentives to employer in private sector to ensure that at least five percent of their work force is composed of persons with “benchmark disability.”
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Bedi, S. (2019). The Differently Abled: Exploring the Rights and Legislation in India. In: Halder, S., Argyropoulos, V. (eds) Inclusion, Equity and Access for Individuals with Disabilities. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-13-5962-0_2
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