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 after
receiving 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 Constitution
and 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 personlevel 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
persons 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 Mishra
10 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 UP 14 the question to be decided
before Allahabad High Court was, whether the Lucknow Development Authority while
1111.Supra note 8, at 92
12 AIR 1999 SC 512
13 Supra note 1 at 23 - 24
14 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 - 28
16 K.P Uninkrishnan vs Union of India (1983) 1 SCC 645
17 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 813
19 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 434
23 Supra note 1 at 32
24 ibid at 11
25 Govt of NCT, Delhi vs Bharat lal meena and surinder singh SC 1431, 2002
26 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 Rehbare-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 41
29 AIR 1996 SC 419
30 ibid at 42
31 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 persons 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 Others 34Respondent 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 990
34 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 Rights 37, 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 convention 38 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 for
implementation.
Part II comprises Chapter 5-11 dealing with the substantive rights and co-related
obligations.
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 for
person 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 schools 41 and recreational
centres for people with disabilities.

Part III
The 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 1992 42 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 Act 43 are:

To enable and empower persons with disabilities to live as independently and as

fully 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 the
event of death of their parent or guardian; and

To extend support to registered organisations to provide need based services

during 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, 2005 44 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, 1995 45 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 an

appropriate environment till he attains the age of eighteen years;

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

schools;
3. promote setting up of special schools in government and private sector for those in

need of special education, in such a manner that children with disabilities living in
any part of the country have access to such schools; and
4. endeavour to equip the special schools for children with disabilities with

vocational 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, 2006
47 supra @ 35

work force is composed of 5% of persons with disabilities (Section 39). To promote selfemployment 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 14 th 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 available in other medical institutions of the country as well.

Conclusion
The treatment of people with disabilities has varied through the centuries, and it has more
commonly been oppressive than otherwise. A sustained campaign for rights by persons
with disabilities, their family members and well wishers has given birth to new thinking
about disability. This has a clear bearing on the legal and policy frameworks and the
mechanisms for their implementation.
One of the most significant advancement of policy and practice in the latter half of the
twentieth century has related to the right of people with disabilities to live and participate
in their communities, and to secure the maximum possible support so that services related
to rehabilitation, education, and employment are all provided through systems that
comply with minimum standards of quality. In this context, it is also important to realize
that disability rights cannot be fought for and secured in a vacuum. Inevitably, the issue of
disability is related to many other social, economic and political issues, including those of
chronic poverty, gender equity and environmental damage.

While it may be possible to discuss the issue of disability rights in much greater length
and depth, the issue is ultimately a simple one. As human beings, in addition to access,
education, health care, rehabilitation services and employment, all people with disabilities
need a safe, secure and accessible environment which is respectful of their dignity. We
need to learn to care for all human beings as human beings, with due respect for all their
difference.