Disability in India – A Legal Analysis

By Sania Gupta, Student, School of Law, Christ University

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 “Disability need not be an obstacle to success” – Stephen Hawking 

Disability led to various forms of prejudice, bias and discriminatory practices around the world. It can be considered as one of the contemporary aspect of society which needs our attention as responsible citizens of the society, it led to the stigmatization of people which contributed to their stagnant growth and development in all spheres of life, including social, economic and political, poor health, limited educational opportunities, etc.  Disability is a concept that revolves around the idea of limited opportunities and special needs and practices but it does not convey inferiority or lack of knowledge and skills in any form. As per the Indian Census of 2001, 2.1% population [21. 9 million people] of the country was living with disability, which was predominant in the rural areas. [1]

This led to the Indian government recognizing disability and framing and enacting various legislations to assist the process of normalization of disability in the country and providing opportunities to the people whose growth was hindered, which commenced with the enactment of the Mental Health Act, 1987[2]. The objective of this Act was to help in improving, protecting and promoting the importance of mental health and to prevent the isolation of people who were considered to be harmful and dangerous to the society. This legislation was followed by the Rehabilitation Council of India Act 1992[3], which was enacted to regulate the training and development policies for the disabled and to prescribe the minimum standards of education and training which could provide them employment opportunities leading to their economic growth. India became the first country in South Asia to sign the Proclamation on the Full Participation and Equality of people with Disabilities in Asia and Pacific 1992 [4], which eventually led to the enactment of Persons with Disabilities [Equal Opportunities, Protection of Rights and Full Participation] Act, 1995[5], this is one of the most significant legislations enacted for the people with disability as it not only provided provisions for their economic welfare and development but also recognized seven categories of disability which ranged from blindness to mental health and well- being. This legislation also provided a reservation policy of 3% in educational institutions owned by the government as well as private entities. Certain other provisions such as reservation in case of combined disability and an unemployment allowance for the registered citizens were also introduced. This Act mandated to adopt an inclusive approach in all the mainstream poverty alleviation schemes of the Government, to uplift the poverty stricken disabled sections of the society. In the case of Union of India v. National Federation of the Blind[6], a public interest litigation was filed in the Delhi High Court which sought the rightful implementation of Section 33 of the Act as it was alleged that the reservation for the blind and low vision persons was not recognized and they were excluded from the scope of the Act. The Court held that 3% reservation could be extended to 5% to satisfactorily represent  each category in public as well as the private sector, the bar of 3% referred to the part of total vacancies in the cadre strength . 

The National trust for welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities Act, 1999[7] was enacted with the objective of creating a National trust by the Central Government and formed a Board of Trustees who would help in making arrangements for an adequate standard of living for the beneficiary and would help in their overall development by providing financial assistance if requested and shall also have the power to appoint legal guardians in case the beneficiary considers it to be necessary for the healthy sustenance of life. The Act also provides for measures to complain against the Board of Trustees in case they fail to perform their duties and responsibilities. 

India was also one of the first countries to sign and ratify the UN Convention on the Rights of Persons with Disabilities adopted and enacted in 2006 and 2008 respectively with the objective ensuring the enjoyment of basic human rights and fundamental freedoms by persons of disability, and to also promote, protect their inherent dignity and welfare. This Convention led to the enactment of the Rights of Persons with Disabilities Act, 2016 which is commonly known as the “New Act” as it modified the provisions of the 1995 Act, followed by the rules there under in 2017. This new legislation recognized 15 categories of disability which included victims of acid attack, people having specific learning disability, intellectual disability, mental harassment victims, etc. and also defined a ‘person with disability’ as someone who might be suffering from long term intellectual, sensory, physical or emotional impairment which acts as an obstacle in their effective participation towards nation building. Under this Act, people are entitled to certain additional benefits in case their disability exceeds more than 40% [this percentage is also as depicting the “benchmark disability”], the Act also specifies that a disabled person shall not be discriminated on the ground of their disability for employment in private and public entities unless there is a rational, legitimate reason, contradictory to which the head of the organization shall be held liable for not adhering to the provisions of the Act and requires all the establishments to prepare an Equal Opportunity Policy which shall be published and registered with the State/ Central Commissioner. This lists shall contain the information and records relating to the people with disability such as the posts identified and filled by such persons, facilities and amenities provided for their benefits, details of the promotion, accommodation, perks or any such benefit provided, type of  disability and the work performed, etc. In the case of Deaf Employees Welfare Association v. Union of India[8], a writ of Mandamus was filed in the Supreme Court of India seeking directions to the Central as well as the State Governments to grant equal transport allowance to the people with hearing impairment, which was low than the allowance allotted to other disabled persons. The Court allowed the petition and directed the respondents to treat every section equally; the respondents cannot discriminate between people belonging to different categories of disability as it would go against the objective and spirit of the Disabilities Act. It cannot be presumed that a person with hearing impairment suffers any less than a person affected by blindness, orthopedic disability, etc and this would violate the personal dignity and integrity of a person. 

The rules lay down the standard of working environment and conditions, transport and communication facilities along with providing a detailed procedure for dealing effectively with complaints in case of discrimination, fines and penalties prescribed for any prejudice towards them, etc.

The Constitution of India, which is one of the most detailed Constitutions in the world, has been inclusive of most of the social issues in the Indian society and recognized disability by providing certain rights to people guaranteed under its various articles. Article 15(1) of the Indian Constitution ensures that there shall be no discrimination against any citizen of India [includes the persons with disability], on the grounds of race, religion, caste, sex or place of birth, followed by Article 15(2) which provides that  no citizen (including the disabled) shall be subjected to any disability, liability, restriction or condition on any of the above grounds in the matter of their access to shops, public restaurants, hotels and places of public entertainment or in the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of government funds or dedicated to the use of the general public. Women and children and those belonging to any socially and educationally backward classes or the Scheduled Castes & Tribes can be given the benefit of special laws or special provisions made by the State.[9] Article 25 recognizes the right of a person with disabilities to education; he/she shall have the right without any discrimination and shall be given ample opportunities by introducing the fundamental right to education. Article 27 provides for the equal employment opportunities to all persons including persons with disability and to choose a work stream suitable to his needs and comfort. Article 14 of the Convention on the Rights of Persons with Disabilities instructs state parties to guarantee people with disabilities the right to liberty and security of person. We considered the right to liberty to be guaranteed to persons with disabilities if they were explicitly granted the right to freedom or liberty. Globally, only 9% of the Constitution explicitly guarantees the right to liberty to persons with disabilities. However 19% of the constitution specifies that the right to liberty can be denied to persons with the mental health condition.[10]

In addition to the various rights and legislations, certain additional measures and initiatives are adopted by the Indian Government such as – The rights and duties of the parties to a marriage whether in respect of disabled or non-disabled persons are governed by the specific provisions contained in different marriage Acts, such as the Hindu Marriage Act, 1955, the Christian Marriage Act, 1872 and the Parsi Marriage and Divorce Act, 1935. Other marriage Acts which exist include; the Special Marriage Act, 1954 (for spouses of differing religions) and the Foreign Marriage Act, 1959 (for marriage outside India). The Child Marriage Restraint Act, 1929 as amended in 1978 to prevent the solemnization of child marriages also applies to the disabled. A Disabled person cannot act as a guardian of a minor under the Guardian and Wards Act, 1890 if the disability is of such a degree that one cannot act as a guardian of the minor. A similar position is taken by the Hindu Minority and Guardianship Act, 1956, as also under the Muslim Law.[11] As per the Hindu Succession Act, 1956 physical disability or deformity will not restrict a person from inheriting property, similar provisions relating to intestate and testamentary succession under Indian Succession Act, 1925 were also enacted. There are similar provisions for Muslims and Parsis under their respective personal laws. Certain tax concessions are also provided by the Government – Section 80 DD: Section 80 DD provides for a deduction in respect of the expenditure incurred by an individual or Hindu Undivided Family resident in India on the medical treatment (including nursing) training and rehabilitation etc. of handicapped dependants. For officiating the increased cost of such maintenance, the limit of the deduction has been raised from Rs.12000/- to Rs.20000/-.

Section 80 V: A new section 80V has been introduced to ensure that the parent in whose hands income of a permanently disabled minor has been clubbed under Section 64 is allowed to claim a deduction up to Rs.20000/- in terms of Section 80 V.

Section 88B: This section provides for an additional rebate from the net tax payable by a resident individual who has attained the age of 65 years. It has been amended to increase the rebate from 10% to 20% in the cases where the gross total income does not exceed Rs.75000/- (as against a limit of Rs.50000/- specified earlier).[12]

Thus, there are several schemes and legislations by the Government which provides for the betterment and welfare of the persons with disability, but in order to make these legislations fruitful, we should change our perspective as a society, and not treat the persons with disability differently. Successful implementation of laws is only possible if we as citizens of a democratic country acknowledge our responsibilities and duties towards all. 

Disclaimer : All rights reserved to Lexstructor only. Views are personal.

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References

[1]Fetterman DM. Empowerment Evaluation. Am J Eval. 1994;15(1):1–15.

[2]Government of India. The Mental Health Act. In: 14. India: Ministry of Law and Justice, Legislative Department; 1987.

[3]Government of India. Rehabilitation Council of India Act. In: 34, vol. 34. India: Ministry of Law and Justice, Legislative Department; 1992.

[4] United Nations Economic and Social Commission for Asia and the Pacific (ESCAP). Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region. In: Com Res 48/3. Geneva: UN ESCAP: Social Development Division; 1992.

[5] Government of India. The Persons with Disabilities (Equal Opportunities, protection of Rights and Full Participation) ACT. In: India: Ministry of Law and Justice, Legislative Department; 1995. 

[6] (2013)2 SCC 772

[7] Government of India, The National trust for welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities Act, 1999 [Act 44 of 1999].

[8]  (2013)2 SCC 772.

[9] The Constitution of India. Article 15(2).

[10] Praveen, Rights of Disabled Persons, Legal Services India, 8th January, 2021 4:55 PM http://www.legalserviceindia.com/legal/article-98-rights-of-disabled-persons.html

[11]Handbook for Parents of Children with Disabilities, https://vikaspedia.in/education/parents-corner/guidelines-for-parents-of-children-with-disabilities/legal-rights-of-the-disabled-in-india#:~:text=Article%2015(1)%20enjoins%20on,sex%20or%20place%20of%20birth.&text=Every%20person%20including%20the%20disabled,Article%2021%20of%20the%20Constitution.

[12]Ibid

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