Disability Rights Promotion International

Monitoring the Human

Rights of Persons with
Disabilities:

Laws, Policies and

Programs
in India
Copyright 2009 Disability Rights Promotion International (D.R.P.I.)

All rights reserved. Published 2009.

Printed in Canada.

Published by Disability Rights Promotion International (D.R.P.I.)

York University
4700 Keele Street, 5021 TEL Building
Toronto, ON M3J 1P3
Canada
Telephone: +1 416 736 2100 x.20718
Email: drip@[Link]
Website: [Link]

Written by:
Kalpana Kannibiran, NALSAR University Faculty of Law

This Report has been financed by the Swedish International Development

Cooperation Agency (Sida). Sida does not necessarily share the views
expressed in this material. Responsibility for its contents rests entirely with the
authors.

1
 TABLE OF CONTENTS

ACKNOWLEDGEMENTS ....................................................................................3

1. CONSTITUTIONAL POSITION ........................................................................4

2. NATIONAL POLICY AND LEGISLATIVE FRAMEWORK ...............................5

3. COMPLIANCE TO STANDARDS ...................................................................8

4. GENDER AND DISABILITY ...........................................................................10

5. RIGHT TO EDUCATION ................................................................................11

6. FREEDOM OF MOVEMENT ..........................................................................14

7. THE CRIMINAL JUSTICE SYSTEM ..............................................................15

8. ENHANCING KNOWLEDGE AND ACCESS .................................................17

9. COUNTING ABILITY......................................................................................19

10. FAMILY MATTERS ......................................................................................19

11. THE RIGHT TO HOUSING ...........................................................................20

12. POLITICAL AND CULTURAL RIGHTS .......................................................21

13. RESEARCH AND DEVELOPMENT.............................................................22

14. HEALTH .......................................................................................................23

15. THE RIGHT TO WORK ................................................................................23

16. CONCLUSION: INTERNATIONAL COMMITMENTS ..................................24

2
ACKNOWLEDGEMENTS

The author gratefully acknowledges research support from Sharifa Siddiqui and
Pallavi Gupta and secretarial assistance from V. Padmini at Asmita Resource
Centre for Women.

3
Disability Rights Monitor (DRPI): Written Report
Kalpana Kannabiran
Asmita Resource Centre for Women

[NOTE: This report collates and summarises the findings of the Disability Rights
Monitoring Project that attempted a detailed assessment and mapping of policy
relating to persons with disabilities in India. Sharifa Siddiqui and Pallavi Gupta
provided research and editorial assistance. All the sources are cited in full in the
template].

1. CONSTITUTIONAL POSITION
What is the constitutional position on disability in India? While the Indian
Constitution prohibits discrimination per se, it does not explicitly prohibit
discrimination on grounds of disability. However, a seven judge constitutional
bench of the Supreme Court of India in Indra Sawhney vs. Union of India1 held
that the “spirit of Articles 14 [right to equality] 15(1) [right against discrimination]
and 16 [right against discrimination in public employment]” allowed for
discrimination and affirmative actions for persons with disabilities. As a result of
this decision, the Constitution may be read as explicitly prohibiting discrimination
against persons with disabilities. The fundamental right to life enshrined in the
Indian Constitution provides the guarantee of life with liberty and dignity to all
persons resident in India. The right of persons with disabilities to respect, dignity
and freedom is part of this generic right to life. However, the recognition of
disability as part of a larger terrain of human diversity is something that has not
yet entered official discourse on disability rights. Article 21 of the Constitution of
India protects the Right to Life and Personal Liberty, which are inclusive of the
principles of inherent dignity and individual autonomy for all persons resident in
India. This, together with Article 14, the Right to Equality before law provide the
conditioning environment for specific laws and policies that uphold fundamental
rights for different classes of individuals.

The range of provisions and mechanisms that have been put in place
consequent on legislation and policy with reference to special measures
demonstrates the constitutional commitment to strengthen nondiscrimination
through affirmative action. With reference to persons with disabilities this has
taken the form of incentives, reservations and targeted schemes for inclusion into
the mainstream. The view that special measures are necessary to combat
inequality, and an expression of the equality principle, is one that has a very long
legislative history in India, originating in the demand of a special measures for
“depressed classes” prior to independence.

1
1992 Supp (3) SCC 217

4
In Article 15(2) states that no citizen shall, on grounds only of religion, race,
caste, sex, place of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to- access to shops, public restaurants, hotels
and places of public entertainment; or the use of wells, tanks, bathing ghats,
roads and places of public resort maintained wholly or partly out of State funds or
dedicated to the use of the general public. The overarching object of this Article
is to guarantee access without discrimination.

Articles 15(3) and 15(4) of the Constitution establishes a very positive role for the
State. They encourage introduction of special measures in favour of women,
children, Scheduled castes and Scheduled tribes, and other members of socially
and educationally backward classes.

Although the Supreme Court in Indra Sawney and Ors vs. Union of India2 held
that 15(1) covers persons with disabilities while 15(2) (3) 8 (4) do not, the latter
can be interpreted as conditioning the application of 15 (1) in matter of
unhindered access.

However there is also a constitutional denial of the right to vote for persons with
psychiatric and intellectual disabilities3.

There is a clearly discernible disjuncture between the treatment of persons with

disabilities other than mental disability on the one hand, where the focus is on
affirmative action, and persons with mental disability on the other, where
protections and special measures tend to take the form of custody and negation
ranging from mild to severe methods. The denial of suffrage to persons with
mental disabilities under Article 326 of the Constitution is one specific example
that betrays a basic inequality between legal protections provided.

2. NATIONAL POLICY AND LEGISLATIVE FRAMEWORK

The National Policy for Persons with Disabilities, 20064, specifically addresses
the need to apply the Constitutional vision to persons with disabilities. The Policy
proposes amendments to existing legislation that impact on persons with
disabilities. However, this process has not yet gathered momentum. As a result,
the situation of persons with disabilities on the ground remains largely
unchanged. This is evident through shadow reports5 published from time to time
by disability rights groups in India. In the realm of policy however we witness a
sudden awareness about the criticality of disability issues both in the
deliberations of the planning commission and the Ministry of Education.

2
Ibid 1
3
Under Article 326 of the Indian Constitution
4
[Link]
5
[Link]/policy/[Link]

5
The National Policy for Persons with Disabilities, 2006 asserts the principle of full
participation and inclusion. Drawing on figures from the National Census of 2001,
which put the illiteracy rate among persons with disabilities at 51%, the policy
proposes a sector-wise strategy for inclusion and full participation.6 Teaching
methods, languages, communication and assistive devices in educational
institutions under this policy will be inclusive of all disability conditions. The policy
envisages setting up model schools for inclusive education. Inclusive schools will
co-exist with special schools for children with severe disabilities that require
special environments. The educational needs of non-literate adults with
disabilities will be addressed through setting up of adult learning centres.
Distance learning programmes and the national open school will broaden the
base of formal education to persons with disabilities.

A similar initiative has been proposed in the field of higher education. The policy
also proposes strengthening of existing affirmative action in public employment
and the adoption of proactive measures like incentives and tax waivers for
private employers employing persons with disabilities; and proposes initiatives
that will facilitate the modification in design of machinery and implements at the
workplace to ensure full work place participation by persons with disabilities.

The principle of equality of opportunity for persons with disabilities particularly in

education and public employment is fairly well enunciated in Indian policy and
judicial decision-making as is evident from the case law cited in the template.
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 19957 asserts the principle of equality of opportunity. In
addition there is an ongoing effort to set up an Equal Opportunity Commission
that will address the question specifically for persons with disabilities as well as
other classes that face systemic discrimination. In addition, the Persons with
Disabilities Act (1995) includes measures specifically designed to counter
discrimination faced by those with disabilities. Special legislations and policy
initiatives follow this principle.

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

Participation) Act, 1995 defines “disability” under section 2 (i) as blindness, low
vision, leprosy cured, hearing impairment, locomotor disability, mental
retardation, mental illness. A “person with disability” is defined under this statute
as “a person suffering from not less than 40% of any disability as certified by a
medical authority.” The definition under this act does not address the barriers
that hinder access and full participation.

However the National Policy for Persons with Disabilities, 2006 recognises the
existence of barriers in the social environment. The definition of the person with
disability under this policy includes “persons with visual, hearing, speech,
locomotor and mental disabilities.” The policy then recognizes the impact of

6
[Link]
7
[Link]

6
social environment on disability particularly in terms of access and full
recognition: “Seventy five per cent of persons with disabilities live in rural areas,
49 per cent of the disabled population is literate and only 34 per cent are
employed. The earlier emphasis on medical rehabilitation has now been replaced
by an emphasis on social rehabilitation. There has been an increasing
recognition of abilities of persons with disabilities and emphasis on
mainstreaming them in the society based on their capabilities.”8

The right to barrier free access and environments has increasingly been
recognized as indispensable to the full participation of persons with disabilities in
civil society. The creation of barrier free environments, social security measures
for persons with disabilities and their families, and the creation of supporting
infrastructure at the community level are other areas addressed by the national
policy. All public endeavours, the Sarva Shiksha Abhiyaan9 and the University
Grants Commission for example, address the need to create barrier free
environments. Even prior to the adoption of national policy for persons with
disabilities, the ambulift cases10 highlighted the need for persons with disabilities
to dignified access to airplanes. On the ground however even public institutions
have not begun as a rule to create barrier free access. So this remains largely a
commitment on paper. Several disability rights groups have expressed concern
about the situation on the ground.

The National Policy for Persons with Disabilities, 2006, addresses the concern of
“reasonable accommodation” especially with reference to the progressive
elimination of architectural barriers, and provision of transport under the
Integrated Education for Children with Disabilities scheme and with reference to
the modification of machinery and equipment to suit the needs of persons with
disabilities in the workplace. It requires the state to take all appropriate steps to
ensure reasonable accommodation. However, the monitoring mechanisms that
will measure the extent and effectiveness of the steps are not yet in place, nor
are there any sanctions that make the adoption of such steps non-negotiable.
The principle of reasonable accommodation, like the right to barrier free access,
is therefore one that is recognized in policy. Government reports suggest that
concrete measures are underway to realize this principle. We do not have
enough information however of the actual implementation of these measures.
There are however obstructions still in place in the law, that prevent persons with
disabilities, designated by the fuzzy term “infirmity or bodily defect” from entering
into judicial services as is evident in the judicial services rules of the state of
Andhra Pradesh. The policy also details the specific measures in terms of public
health, rehabilitation and assistive devices that enhance the potential of persons
with disabilities to enjoy a better quality of life and access information at all
levels.

8
Ibid 6
9
[Link]
10
Javed Abidi v Union of India 1999 AIR (SC) 512

7
The Protection of Human Rights Act 199311 offers a general protection to all
persons resident in India and is deemed to be an inclusive protection which by
definition offers protection for persons with disabilities against human rights
violations. While the National Human Rights Commission, set up under the
Protection of Human Rights Act, 1993 is charged with the responsibility of
protecting human rights of all persons, it has interpreted this with reference to
persons with disabilities primarily in terms of access to education and
employment and welfare, as is evident from the case law on disability handled by
the NHRC. There have been over the years, sporadic reports of gross violations
of human rights particularly of people in custodial institutions, which have been
interpreted by the courts under the fundamental right to life liberty and equality in
Indian Constitution. It is also now customary for human rights groups in India to
use the commitments to international instruments as a tool to demand
compliance from the Indian government. To that extent, the ratification of the
Disability Rights Convention itself is a powerful tool that is now available to
persons with disabilities within India.

3. COMPLIANCE TO STANDARDS
Disaggregating policy commitments is extremely important, because it is through
this process that implementation is effectively achieved. One of the most
important features of the Tenth Five Year Plan was that it advocated the
introduction of a ‘Composite Plan for the Disabled ' in the budget of all the
concerned Ministries/Departments for this purpose12. If Ministries like those for
education, railways, roadways, rural development, urban development, labour,
communication and information technology, civil aviation, tourism, information &
broadcasting, and various Commissions for child rights/women's rights /human
rights/minorities, etc, allocated a percentage of their annual budget to the
implementation of the concerned provisions of The Persons with DisabilitiesAct,
1995, or initiated of new schemes/facilities for disabled citizens, the face of the
country would change. However, none of the Annual Reports of various Central
Ministries mentioned the Composite Plan, as envisaged by the Tenth Plan.

The office of the Chief Commissioner for Persons With Disabilities13 is

responsible for investigating complaints of deprivation of rights of persons with
disabilities and non-implementation of laws and rules at all levels of the state. It
has been able to ensure with a fair degree of success that the rights of persons
with disabilities with respect to education and employment are not violated
particularly by public employers. In addition the Supreme Court has held that
persons with disabilities can claim specific protection under the equality code of
the Constitution of India. In the Dalip Kumar decision14, by upholding the primacy

11
[Link]
12
[Link]
13
[Link]
14
Dalip Kumar vs. AIIMS Delhi High Court 2008 (not reported judgment).
[Link]

8
of the Persons with Disabilities Act as lex specialis over general legislation, the
court went a step further in delineating the non-negotiable elements of
nondiscrimination with reference to persons with disabilities. In 2007, the Kerala
High Court ruled similarly in Bharat Sanchar Nigam Limited vs Chief
Commissioner For Persons With Disabilities15 that the Commissioner is entitled
to investigate grievances regarding deprivation of rights of persons with
disabilities. Several cases, including Secretary (Education) and others v Mukesh
Chand16 (2003) and Baljeet Singh vs Delhi Transport Corporation17 (Delhi High
Court, 2000), have also reinforced the basic authority of the Persons with
Disabilities Act, ensuring that those individuals whose rights have been violated
have access to an effective remedy of the situation.

In several cases, courts have also imposed sanctions on institutions that have
neglected to comply with legislation protecting the rights of the disabled,
including Secretary, Primary and Secondary Education Department, Bangalore
and Others vs Nagaveni M.C. and Another18 (Karnataka High Court), 2008 and
Pushkar Singh and Others vs University of Delhi and Others19 (Delhi High Court),
2001.

Not all rulings have been as supportive of the rights of persons with disabilities,
however. In Sunil Raosaheb Narke vs Air India and Another 20(Bombay High
Court, 2006), the court ruled in favor of the petitioner, but neglected to impose
sanctions and dismissed the case with only an advisory in favor of the rights of
the disabled. Further, in the case of Ratheesh Babu. G vs. University Grants
Commission21 (Kerala High Court, 2004), the Court did not rule in favor of
requiring the State Government to make reservations for persons with physical
disabilities in certain categories in government service.

Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995 provides for a reservation of 3% in the
vacancies in identified posts (1% each for persons with blindness or low vision,
hearing impairment and locomotor disability or cerebral palsy) in Government
establishments including the Public Sector Undertakings.

Section 41 of the Persons with Disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995 provides for incentives to employers to
ensure that at least five percent of their work force was composed of persons
with disabilities.

15
2007 (2) KLT 797
16
CASE NO WP(C) No.2869 of 2003
17
2000 (3) LLJ 339
18
2008 (1) KarLJ 53
19
2001 (90) DLT 36
20
2006 (1) CLR 717
21
W. A. No. 1347 of 2004

9
The National Policy for Persons with Disabilities, which was adopted in 2006 also
lays down that pro-active measures will be taken to provide incentives, awards,
tax exemptions etc. to encourage employment of persons with disabilities in
private sector.

However, the Shadow Report on the status of persons with disabilities raises
several concerns. The Persons with Disabilities Act, 1995, provides for 3%
reservation in jobs of Government establishments and Public Sector
Undertakings in identified posts. However, the available annual reports of Chief
Commissioner for Persons with Disabilities, the Ministry of Social Justice and
Empowerment or the Ministry of Labour provide no information on the status of
its implementation in the past four years in terms of the percentage of disabled
persons employed in Government services. While lakhs of disabled people
remain on the live registers of employment exchanges, the Government
manages to place only about 4,000 disabled people every year into jobs through
its Employment Exchanges. Apart from these, there are thousands of others,
who are either under-employed, do not have information about these
employment exchanges, or find them unapproachable in terms of access,
language, attitudes, etc. Many others are registered with private placement
agencies.

In the entire country, there are only 17 Vocational Rehabilitation Centres (V.R.C.)
run by the Government for disabled people. While 30,390 clients were admitted
during 2003, the number of clients rehabilitated was only 9,292. People with
disabilities continue to be trained in spice-making, cane-weaving, candle making,
block printing and the manufacture of stationary items, whether in Government or
in non-governmental organisations. Year after year they are trained in skills that
do not help them to earn a decent living. The training does not match the skill/
qualification requirement in the job market. Even for self-employment, other
relevant skills like purchase of raw material, marketing, functional literacy &
numeracy, banking, etc. are neglected.

4. GENDER AND DISABILITY

The 2001 Census estimates that there are over 9 million women with disabilities
in India constituting 3.5% of the population. Some researches estimate that there
are over 35 million women with disabilities in India (Bacquer and Sharma
1997)22. Others put the figure at 20 million, 98% of them are illiterate: less than
1% can avail healthcare and rehabilitation services (Action Aid 2003 15). But
these statistics are only the tip of the iceberg when it comes to gauging the level
of neglect, isolation stigma and deprivation that characterise their lives. The
majority of women with disabilities in India suffer the triple discrimination of being
female, being disabled and being poor. Indeed not only are they a socially
invisible category but their plight is worse than both men with disabilities and
other non-disabled women. Being powerless, isolated and anonymous women
with disabilities are extremely vulnerable to abuse and violence.
22
[Link]

10
While no specific disability law mentions women as a category that requires
special attention, the XI Plan observes that "Women with disabilities . . . are
considered a financial burden and social liability by their families; they are denied
opportunities movement outside the home and access to education; they are
viewed as asexual, helpless and dependant . . . they [are] isolated and neglected
with no home of a normal life." It goes on to state that "the specific concerns of
women with disabilities have found a place neither in the government policies
and programmes nor the voluntary sector," a situation which was only begun to
be rectified by the women's movement in the Beijing declaration of 1995.

Thus the XI Plan for the first time considers the situation of women with
disabilities in all its complexity, focusing on the need for an intersectional
understanding of discrimination in order for policy to be effective. The
vulnerability of poor women to triple discrimination - poverty, gender and
disability - marks this document out in significant ways. Alongside this, the
document deliberates on the ways in which the gender-based division of labour
places women with disabilities at an added disadvantage both at the family and
community level. The national policy for persons of disability addresses these
concerns as well, though not as comprehensively as the plan document does.
The plan document provides a framework for future government and non-
government action to strengthen the position of women with disabilities.

However the government is now serious about addressing the issue vis-à-vis
women as seen in its Report of the Working Group on Empowerment of Women
for the XI Plan Ministry of Women and Child Development Government of India23.

It recommends among other things that women with disabilities should be

included not only as beneficiaries from gender equity but also as fieldworker and
project facilitators, survey designers and field investigators in projects with
disability components to enhance their visibility in highly positive roles and
challenge negative attitudes that reduce them to objects of pity and helplessness.

In an important statement, it says there should also be a separate wing for

women with disabilities in the Disability Commissioners office. Women with
disabilities should be represented on the Central and state co-ordination and
executive Committees.

5. RIGHT TO EDUCATION
The rights of children with disabilities are addressed primarily, if not exclusively,
through the medium of universal education, Article 21A of the Constitution of
India. Drawing on this the enunciation of the zero rejection policy by the Sarva
Shiksha Abhiyan (SSA), and the special strategies in this programme to draw
children with disabilities into the mainstream of education, are significant. The
SSA goal of the Universalization of Elementary Education (UEE) necessarily
23
[Link]

11
meant that children with disabilities be included. One of SSA's missions,
therefore, is to ensure that every child with a disability is provided a quality
education in a learning environment best suited to his or her needs. SSA
maintains an emphasis on including children with special needs in mainstream
schooling whenever possible by providing pre-integration programmes when
needed, as well as adequate in-school support.

The newly established National Commission for the Protection of Child Rights24,
although it does not address the question of children with disabilities centrally,
does provide umbrella protection to children as a specific vulnerable category
against all human rights abuses-a protection that applies more strongly to more
vulnerable sections of children, for instance we could argue, children with
disabilities.

Further, the 86th Amendment makes free and compulsory education for all
children ages 6-14 a fundamental right, and Section 26 of the Persons with
Disabilities Act (1995) requires the State "ensure that every child with a disability
has access to free education in an appropriate environment till he attains the age
of eighteen years."

However, an alternate report on the Education of Disabled Children and Youth25

enumerates the failures of SSA to deliver these educational opportunities to
children with special needs, and criticizes the "lack of clear vision at the policy
level to meet the education needs of children with different impairments." It notes
that the Annual Report of Ministry of Human Resource Development (2003-2004)
neglected to mention disabled children under SSA, and did not provide details on
the numbers of children with disabilities enrolled in primary schools. Further, it
reports that the University Grants Commission, which initiated a plan in 1998 to
promote higher education for disabled students, has succeeded in ensuring
benefits for disabled students at only 30 of approximately 300 universities in the
country.

Article 21 A of the Constitution of India guarantees the right to education to all

children which includes children with disabilities. The PWD Act contains explicit
provisions on education for children with disabilities, schemes and programmes
for non-formal education, develop trained manpower for schools, transport
facilities and supply of books for children with disabilities. There are Specific
provisions regarding education for children under the Sarva Shiksha Abhiyaan -
Interventions for children with special needs.

An examination of the process of implementation and general school education

for children with disabilities clearly shows that proper implementation and
monitoring mechanisms are required to ensure the rights of all persons with

24
[Link]
25
[Link]

12
disabilities to education. A survey by National Centre for Promotion of
Employment for Disabled People of 89 schools across the country found that a
mere 0.5 percent of the total number of students were those with disabilities,
though the Persons with Disabilities Act recommends a reservation of three
percent of seats in institutions funded by the government.

Eighteen of the schools surveyed acknowledged that they did not admit students
with disabilities. Twenty percent of the schools polled were not aware of the 1995
Disability Act at all. While girls comprised 41.6 percent of the total student
population, among children with disabilities, the percentage of girls was only 33.26

There are about Sixteen Categories of Professionals/Personnel training on

Special Education courses are conducted for adults and children by the
Rehabilitation Council of India.27 The lack of awareness about these educational
training programmes and schemes for persons with disability is a major barrier to
accessing rights. For e.g. only 50% of the 119 Universities reported being aware
of the UGC Schemes. The remaining 50% did not know of any such Schemes –
the notable ones among them were National Institute of Mental Health &
Sciences (Bangalore), Indian Institute of Technology (Chennai and Kanpur),
School of Planning and Architecture (New Delhi), Tata Institute of Fundamental
Research, Lucknow University, and Nalsar University of Law (Hyderabad)28.

The courts have in most cases upheld the right to education for persons with
disabilities. The Delhi High court in the case of Dr Kunal Kumar v. Union of India
& Others29 observed that a person suffering from color vision deficiency is not
completely blind to red and green colors but may have some trouble
differentiating between certain colors. Moreover, the Court noted that there is no
condition in the admission rules or the regulations of the Medical Council of India
debarring a candidate with color blindness from his admission to the medical
course.30

In 1998, the All India Confederation of the Blind filed a writ petition in the
Supreme Court seeking direction to ensure availability, in Braille, of all textbooks
according to the revised syllabus of NCERT to the visually impaired students
without delay. In its interim order dated 28.10.2003, the Court directed
‘considering the fact that schools will reopen in May, 2004 it would be appropriate
that text-books be made available latest by 31st March, 2004 and not later.’

The Delhi Association of the Deaf has filed an application before the NHRC
alleging that in India there are a number of sign languages in use and these
languages differ from place to place and are quite inadequate in meeting the

26
[Link]
27
[Link]
28
[Link] pdf
29
CW No 4608/2002
30
[Link]

13
educational requirements of deaf children. Therefore, it is important to develop a
Standard Sign language to meet the educational, training and employment needs
of the deaf people. After investigating the status of sign languages for deaf
children in India, the NHRC is convinced that a child-centered sign language is
an important element of the right to education. For its development and
popularization, the Commission believes collaborative action by the Government,
linguists, deaf persons and their families, and interpreters are essential.31

The challenge is to develop inclusive educational programmes and services

which recognize the use of sign languages and Braille as the mode of
communication. Awareness programmes need to be conducted for teachers and
staff in educational institutions whether private or public to create an inclusive
society free from discrimination.

6. FREEDOM OF MOVEMENT
Section 45 of The Persons with Disabilities Act, 1995 gives details of the
provisions on public roads to make them accessible. According to a section in
the annual report of Ministry of Social Justice and Empowerment, the Office of
the Chief Commissioner for Persons with Disabilities conducted access audits
of four Government Buildings in Delhi during the whole year, including a railway
ticket reservation centre, a coffee home, an electricity board office and the Delhi
Airport! As per the annual report of Ministry of Urban Development & Poverty
Alleviation (2003-2004), the Government has issued Notifications amending the
unified building by-laws to meet social environmental requirements such as
providing barrier free environment in buildings for people with disabilities. Despite
the provisions in The Persons with Disabilities Act, 1995, and the notification,
constructions full of barriers continue all over the country. In a recent initiative of
the Ministry of Tourism & Culture, revised guidelines were issued to simplify the
procedure for classification of hotels and approval of hotel projects. The
guidelines included that ‘new projects will be required to adopt environment-
friendly practices and facilities for physically challenged persons. And existing
hotels being classified will need to conform to a phased plan for adding eco-
friendly practices and facilities for physically challenged persons'.

The right to liberty and freedom of movement is part of the fundamental rights
that are available to all citizens under article 21 and article 19 of the Indian
Constitution. Article 14 of the Constitution provides equality before the law and
equal protection of the laws to all persons With respect to persons with
disabilities however, the right movement and liberty must be examined in
conjunction with the provision of special measures that enable persons with
disabilities to exercise the right to the freedom of movement.

A limited number of efforts have been made across the country to ensure ease
and liberty of movement for persons with disabilities. Some cities have made
31
[Link]

14
progress in this area, with Mumbai introducing disabled-friendly buses after being
ordered to do so by a Bombay High Court order, and Delhi's Metro Rail
Corporation opening one accessible transportation route. In addition, the
Supreme Court ruled in Javed Abidi vs Union of India32 (1999) that Indian airlines
must not only make their aircrafts more accessible, but provide 50% concession
to all disabled persons as defined in the Persons with Disabilities Act. However, a
shadow report on Access to Transport and Built Environment declared that most
public transport remains inadequate for people with disabilities. In addition, many
annual reports of government establishments, such as that of the Department of
Road Transport and Highways (2003-2004) and that of the Ministry of Civil
Aviation (2003-2004), simply neglects to include information on facilities
extended to persons with disabilities. Thus by and large exercising the right to
freedom of movement continues to be a Herculean task for persons with
disabilities.

While there are reservations of seats, and subsidies on travel, physical access to
spaces and systems of transportation continue to obstruct the free entry and exit
of persons with disabilities.

7. THE CRIMINAL JUSTICE SYSTEM

India has not ratified the Convention against torture. There are of course
mechanisms that have been put in place by human rights movements in the
country to force state accountability with respect to torture particularly in custody.
And these mechanisms apply equally to persons of disabilities.

The Criminal Procedure Code33 contains measures designed to protect persons

with psychiatric disabilities from facing trial. Article 328 dictates that if a
Magistrate determines that "a person against whom [an] inquiry is being held is of
unsound mind and consquently incapable of making his defence," he is required
to "postpone further proceedings in the case." Article 330 instructs the Magistrate
or Court to "order the accused to be detained in a safe custody in such place and
manner as he or it may think fit, and shall report the action taken to the State
Government."

It has been a cause of concern that there have been more than a couple of
instances of torture in custody that have resulted in disabilities under trials and
convicted prisoners -- blinding suspects in prison (the Bhagalpur blindings),
women subjected to sexual torture in custody becoming “mentally ill” are known
cases. There have been instances where private facilities for persons with
intellectual disabilities have violated norms by chaining inmates to beds, or
practicing other forms of degrading and inhuman treatment. The justification for
the forced hysterectomies of women with intellectual disabilities in a government
facility in Pune, was that they are vulnerable to assault, and therefore should at

32
1999 AIR (SC) 512
33
[Link]

15
least be protected against pregnancy, speaking to concerns of security against
violence and exploitation for women of within Mental Health facilities.

One specific law is for persons with mental disabilities only not mentioning
persons with physical disabilities. Section 81 (Chapter VIII) of the Mental Health
Act34 of 1987 provides that "no mentally ill person should be subject during
treatment to any indignity (whether physical or mental) or cruelty." Several
important cases have reinforced this principle.

In the case of Sheela Barse vs. Union of India 35(1986), the Court criticized the
seemingly widespread practice of keeping children with mental and physical
disabilities in jail for "safe custody," and placed responsibility on the State
Government to move them to an environment where they could receive proper
care, medical treatment, and vocational training when possible.

The case of Veena Sethi vs State of Bihar36 (1982) also addressed the practice
of keeping mentally ill persons in jail, where the Court declared that all mentally ill
inmates must be examined every six months and released immediately if they
are found to have no mental illness. In addition, it reaffirmed the principle that
there should be an adequate number of institutions for persons with psychiatric
disabilities, and that jail should not be considered an appropriate location for
providing "safe custody."

Several cases have addressed the deeply inhumane conditions of many

institutions established to provide care for persons with psychiatric. In Dr.
Upendra Baxi vs. State of Uttar Pradesh37 (1983), the Supreme Court ordered a
medical panel to evaluate the inmates at the Agra Home. The report
demonstrated that though a majority of inmates had varying degrees of mental
disability, some had been released by the Superintendent without being
evaluated and had not been provided any means by which to travel to their home
towns. The Court recommended that psychiatric treatment be provided.

In Rakesh Chandra Narayan vs State of Bihar38 (1989), the Supreme Court found
the conditions in the Mental Hospital near Ranchi to be inhumane, and appointed
a committee to visit the site and submit a report about the establishment's
operations and standards of care.

In the case of S.P. Sathe vs. State of Maharashtra39 (1984), the Bombay High
Court regulated the administration of electroconvulsive therapy (ECT) to mentally
ill persons after hearing of the conditions at the Institute of Psychiatry and Human

34
[Link]
35
(1986) 3 SCC 632, Vide order dated 15.4.1986
36
1983 AIR(SC) 339
37
(1983) 2 SCC 308
38
(1989) SUPP 1 SCC 644
39
Writ Petition No 1537 of 1984, Bombay [Link]/humanrights/[Link]

16
Behavior in Panaji, Goa. Patients at the IPBH were reportedly given ECT without
anaesthesia, a practice which could lead to general discomfort as well as bone
fractures and dislocations. In addition, the IPBH neglected to obtain informed
consent from the patients before administering the treatment. In Chandan Kumar
Banik vs. State of West Bengal40 (1995), the Supreme Court criticized the
inhumane conditions at the Mankundu Mental Hospital in the District of Hooghli,
banned the practice of restricting patients with iron chains, and instead ordered
drug treatment for them. In Tamil Nadu, in Re vs. Union of India41 (2002), the
Supreme Court ordered each State to undertake a survey of every institution
offering psychiatric care to ensure that all were following the prescribed
standards set out in the Mental Health Act of 1987.

8. ENHANCING KNOWLEDGE AND ACCESS

Article 19 of the Constitution of India guarantees to all Citizens the Right to
Freedom of Speech and Expression. This is a generic right that applies to
Persons with Disabilities who are Citizens of India. The Persons with Disabilities
Act 1995 places the responsibility on appropriate government and local
authorities to facilitate full and free expression of this freedom through the
introduction of flexibility in the examination system and the curriculum that will
benefit in particular children with visual and hearing impairments.

The right to free speech, and expression and the right information for persons
with disabilities can only be realized through the entrenchment of multiple media
communication in everyday level. While all citizens of India have the right to
freedom of speech and expression, under article 19 of the Indian Constitution,
and while all citizens have the right to information under the right information act,
realizing this right depends on the provision of information and the enabling of
speech and expression in diverse ways -- sign language, Braille, and the range
of audio, visual, electronic and print communication. The recognition of the need
to put special mechanisms in place in order to realize the fundamental right to
speech of persons with disabilities is one that has not yet been made.

The National Policy for Persons with Disabilities commits the state to undertake
research in the socio-economic and cultural context, cause of disabilities, early
childhood education methodologies and development of user friendly aids and
appliances. It also aims to support research on “all matters connected with
disabilities which will significantly alter the quality of life and civil society’s ability
to respond to their concerns. The Ministry of Science and Technology will be
required under the policy to set up a Rehabilitation Technology Centre for
coordinating and undertaking research and development.

40
[(1995) Supp. 4 SCC 505]
41
(2002) 3 SCC 31

17
The National Policy also addresses communication needs by making information
service and public documents accessible through Braille, tape service, large print
and other appropriate technologies. The National Trust for the Welfare of
Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities
Act, 199942 enables persons with disability to live independently, while being
close to the community and drawing support from their families. Persons with
disabilities who do not have family support will, under the mandate of the Trust
,be supported by registered organisations or guardians and trustees appointed
through an established procedure. Programmes supported by The National
Trust Act aim at creating a conducive environment in the community, counselling
family members and carers, and promoting foster family care and day care for
persons who need it. The objective of The National Trust Act is to facilitate the
realisation of equal opportunities, and the protection of rights and full participation
of persons with disability. Vision 202043, the policy statement put out by The
Ministry of Social Justice and Empowerment, Government of India, envisions “a
society which is truly inclusive and egalitarian, where every individual, including
persons with disabilities, have equal opportunities for access to the services they
need in order to develop their full potential. Recognising the link between
poverty, health and social vulnerability, the Vision 2020 statement envisages “the
creation of an environment where all preventable diseases and disabilities are
prevented through a much cleaner, non polluting, hygienic environment and
sanitary living conditions including availability of potable drinking water…..
complete food security …. and …. special care including immunisation…. so that
there is no consequent disability. By 2020, the society at large will be aware of
issues such as the importance of prevention of disability by simple life style
changes…. which has an inter generational impact on mortality, morbidity and
disability.”

The Eleventh Five Year Plan proposes a determined effort to mainstream the
hitherto neglected needs of persons with hearing and/or speech impairment and
aims at providing access to information in all its forms.

The promotion of awareness on issues of disability, although it is high on the

agenda of the Ministry of Social Justice and Empowerment, occupies a marginal
position in the public space and exists in episodic fashion, not systematic or
concerted. The efforts of civil society groups in promoting awareness on the
other hand are commendable.

While the Broadcasting Corporation of India44 has as one of its primary objectives
the promotion of positive images of “children, the blind, and the elderly”, state-run
channels do very little to create an enabling an environment and the media for
persons with disabilities. Here as well, it is independent filmmakers who focus
on the issue of disabilities with sensitivity and commitment.

42
[Link]
43
[Link]
44
[Link]

18
9. COUNTING ABILITY
The debate around the Census of 2001 and the inclusion in the census of a
question on disability has opened critical space for the collection of data on
disabilities crossed sectorally. The 11th plan process reflects this concern as well.
The environment created by the Disability Rights Convention process has had a
critical impact on the data gathering and research thrust in policy.

The Office of Registrar General of India conducts Population Censuses at an

interval of ten years since 1881. Indian Population Census has been providing
some useful data on the “physical infirmities” from its inception. The census
questionnaire of 1872 called “House Register” included questions on physical
disablilies like “” the blind, the deaf and the dumb”. But due to constraints in
enumeration, the quality of data collected through the Population Censuses was
not satisfactory and thus the practice was discontinued after 1931. No attempt
was, therefore, made to collect information on disability through censuses of
1951, 1961 and 1971. Collection of certain important information on persons with
physical disabilities was again taken up in 1981 census. Declaration of the year
1981 as the international year for the disabled persons by the United Nations
was also a reason for taking up the aspect of disability in the 1981 Population
Census. The enumeration of disabled persons was again taken up along with the
Population Census of India conducted in 2001.

The Eleventh Plan document emphasizes and adopts a multi-pronged, cross-

sectoral approach to identifying, preventing, managing, treating and rehabilitating
persons with mental disabilities. There will be a focus on awareness drives,
defining the various kinds of disabilities, generating valid census data, inclusion
in all areas of development, and community based treatment and rehabilitation
approaches. Efforts are to be directed towards strengthening and developing
trained human resource to addressing the growing magnitude of mental
disabilities. There will be emphasis on research to generate relevant data and
culturally valid rehabilitative measures.

10. FAMILY MATTERS

No law or policy has a clear-cut statement that prohibits discrimination against
persons with disabilities on matters relating to marriage, family, parenthood and
relationships on an equal basis with others. Especially with regard to persons
with psychiatric disabilities, the plethora of cases applying for divorce gets firm
support from individual personal laws all which support that insanity can be a
ground for divorce. However in particular cases, the Court exhibited sensitivity –
for example in the Anima Roy vs. Prabodh Mohan Roy 45 the psychiatrist who

45
AIR 1969 Cal 304

19
examined her recognized that she could have contracted the illness at any time
in the course of two month or five years.

Perhaps standards of norms for investigation by psychiatrists could be

reexamined.

As regards the right of persons with disabilities to retain their fertility and provide
age-appropriate information, reproductive and family planning education, women
with disabilities seem to be especially vulnerable to having their rights infringed.
Women in institutions are subject to hysterectomies, as the 1984 case
Hysterectomies of Mentally Challenged Women that was authorized by the
government of Maharashtra demonstrates. Women with disabilities are perceived
as children when parents come for treatment for the disability and are rarely seen
in obstetric and gynaecological settings as adults. The reproductive health of
women with disabilities in another grey area, which does not even find a mention
in any programmes.

There is no mention of reproductive rights of men with disabilities in any planning

documents.

Regarding rendering appropriate assistance to persons with disabilities in the

performance of their child-rearing responsibilities, a programme to provide
financial support to women with disabilities to hire services to look after their
children is mooted. Such support will be limited to two children for a period not
exceeding two years. The provision does not extend to men with disability and
this is a serious lapse.

While there is no law that ensures the right of children, regardless of their
disabilities or the disabilities of their parents to live with their own family, there
have been extensive provisions for hostels for persons with disabilities, based on
their disability. While on the one hand it might look as if it’s a good scheme, on
the other hand, it could result in further exclusion of persons with disabilities.

11. THE RIGHT TO HOUSING

One of the main prerequisites for Independence for persons with disabilities is an
effective housing policy -- one that entails non-discriminatory public works
programmes, non-discriminatory housing subsidies and non-discriminatory
building codes. Non-discriminatory housing subsidies mean that programmes for
public or social housing in the form of incentives in the form of subsidy and tax
rebate to builders with the sole condition that the buildings conform to
accessibility housing standards.

The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act (1999) strives to enable persons with
disabilities to live independently and be included in their communities. Provisions
for achieving this goal are contained within the Persons with Disabilities Act,

20
1995, which states that Governments and local authorities should work to offer
affirmative action schemes as well as ensure the accessibility of housing, public
facilities, and transportation. Read together, these Acts provide a broad
framework for protecting the rights of persons with disabilities to live
independently. However, the situation on the ground shows that many of these
goals have yet to be achieved, and indicates the need for policies containing
more specific strategies aimed at ensuring that those with disabilities can live
within their communities. Some progress has been made here -- examples being
the launch of a pilot health care program for those with disabilities, or the city of
Delhi's attempts to make public places accessible -- but there are many areas
which still need vast improvement. In addition, this kind of legislation needs to
include punitive measures when state or local governments do not adhere to its
requirements -- for example, by funding the construction of public buildings that
remain inaccessible to persons with disabilities.

The Persons with Disabilities Act, 1995 does not specifically provide rights to
basic services – adequate food, clothing, access to clean water and continuous
improvement of living conditions. Provisions under Section 42 of the Persons
with Disabilities Act, 1995 calls for schemes to provide aids and appliances to
persons with disabilities. Section 43 of the Act provides schemes for preferential
allotment of land in favour of persons with disabilities at concessional rates for
housing. The Persons with Disabilities Act has failed to ensure social protection
and adequate standard of living to persons with disabilities. However provisions
under the Eleventh Planning Commission document makes ‘Provision of Public
Housing Assistance to all shelter less poor families’; Social Insurance Schemes
available to the unorganized sector are operated through the LIC such as Social
Security Group Insurance Scheme covers all persons between 18 to 60 years
belonging to the 24 approved occupation groups, and includes physically
challenged. The National Handicapped Finance and Development Corporation
(NHFDC) is a major step to promote economic and development activities
undertaken by persons with disability46. There is need for adequate
implementation and monitoring of these policies and more programmes that
promote rights of persons with disabilities to lead a more dignified life.

12. POLITICAL AND CULTURAL RIGHTS

Though the appropriate policies are in place to ensure that persons with physical
disabilities can participate in political life, the situation on the ground
demonstrates that the difficulty lies in enforcement of these policies. While in
2005 the Election Commission directed the Chief Secretaries of all States/Union
Territories to construct permanent ramps in each public building containing a
polling station to ensure that persons with physical disabilities could exercise
their right to vote, the Disabled Rights Group, along with other NGOs, alleged
that these instructions had not been carried out in all areas. In contrast to even
46
[Link]

21
the spirit of the efforts to ensure access to polling places for those with physical
disabilities, however, are the policies in place in both the Constitution and the
Representation of People Act (1950)47, which can actively prohibit those with
mental disabilities or mental illness from participating in political life by voting or
standing for elections. Full equality will not be achieved until these policies are
altered to avoid the disenfranchisement of large groups of voters with disabilities.

The National Policy for Persons with Disabilities does establish the need to
"ensure equal opportunities for sports, recreation and cultural activities."
However, while the Constitution of India recognizes the right of all groups to
conserve their "distinct language, script, or culture" and the National Policy states
that "special care will be taken to make Sign language [and] Alternative and
Augmentative Communications . . . recognized, standardized and popularized,"
some groups have raised concerns about whether all disabled individuals,
specifically those in India's blind and deaf communities, have easy access to
educational materials and other communications in their language.

State policy (particularly in the form of the Persons with Disabilities Act, 1995,
and the National Policy for Persons with Disabilities, 2006) is supportive of the
need for individuals with disabilities to participate in sport, recreational and
leisure activities, and includes provisions designed to both encourage
development of special recreation centers and ensure accessibility to all public
places. However, the situation on the ground remains mixed. Persons with
physical disabilities are unable to enjoy leisure activities on an equal basis with
others as long as transportation systems and public buildings continue to lack
barrier-free access, a problem which has not been addressed on a consistent
basis by the Government. However, organizations and establishments like the
Wheelchair Sports Federation of India, the Indian Blind Sports Association, and
the Special Olympics Bharat do provide opportunities for physically and mentally
differently-abled athletes to participate in sporting activities. Unfortunately, there
remains no institution available to coach elite differently-abled athletes in India,
leaving a gap in attainment of the goals outlined in State policy. In order for
persons with disabilities to be able to participate in leisure activities at the level
described in government policies, stricter enforcement of these laws is needed.

13. RESEARCH AND DEVELOPMENT

While the laws and policies for promoting research and development, and
availability and use of universally designed goods, services, equipments and
facilities, and new technologies, including information and communications
technologies, mobility aids, devices and assistive technologies, suitable for
persons with disabilities, are in place it is unfortunate that it does not provide
accessible information to persons with disabilities about these technologies. The
Eleventh Plan has drawn up a concerted and detailed plan to overcome the

47
[Link]
act_1950.pdf

22
shortcoming. In addition the Persons with Disabilities Act, 1995 contains
Guidelines and Space Standards for Barrier Free Built Environment for Disabled
and Elderly Persons. Its scope and responsibilities are wide and covers, public
places including transport facilities, academic institutions, and government and
private offices.

Further the Eleventh Plan promises to promote greater accessibility and a

barrier-free environment to persons with disabilities and that a new National
Institute of Universal Design will be set up. All National Institutes would
undertake activities of community outreach to meet the needs of the neglected
and persons with disabilities in slums, tribal belts, semi-urban and rural areas.
The Plans and policies does show sensitivity and will in enabling persons with
disability a dignified life. But as of now, shadow reports, newspaper reports and
practical observation tell tales of elusive aids, devices and assistive technologies
and inaccessible spaces for persons with disabilities.

14. HEALTH
The Persons with Disabilities Act focuses merely on the prevention and detection
of disabilities. The provisions entail that the appropriate government and
authorities take steps for the prevention of occurrence of disabilities. The right to
enjoyment of highest attainable standards of health should include accessible
hospitals and primary health care centers in rural areas that are closer to the
communities. There should be provisions of proper care and informed consent
for treatment of persons with disabilities. In the state of Maharashtra
“Hysterectomies of Mentally Challenged Women”48 is a case in point. The public
health system in general is on the verge of collapse in India. The situation of
persons with disabilities with respect to health and habilitation is cause for grave
concern.

15. THE RIGHT TO WORK

The right to work is not only guaranteed in Article 41 of the Constitution of India,
but has also been declared by the Supreme Court to be included in the "right to
life" provided by Article 21. In addition, the Persons with Disabilities Act outlines
specific measures to be taken by the Government to better incorporate persons
with disabilities in the workforce. These include the development of schemes
providing for the training of persons with disabilities, the reservation of posts in
Government establishments for members of community of persons with
disabilities and the policy that employers must offer individuals who have
acquired a disability a different job with equal benefits and pay.

In recent years, tangible steps have been taken by the government -- one
example being the establishment of the National Handicapped Finance and

48
[Link]

23
Development Corporation -- to help provide employment opportunities and
vocational trainings for those with disabilities. However, doubts have been raised
by advocacy groups about the efficacy of some of these efforts, as well as the
wage gap that often exists between able-bodied and persons with disabilities.
This issue in particular came into focus with the recommendation of the National
Human Rights Commission on the National Employment Guarantee Bill (2004)49,
which encouraged equal pay for those with disabilities despite lower production.

In general, the Indian courts have consistently insisted on enforcement of the

provisions included in the Persons with Disabilities Act, thereby upholding a
comprehensive "right to work." However, contradictions still exist between the
respect for the right to work in the Persons with Disabilities Act and provisions in
Indian labour laws. While the Persons with Disabilities Act protects the rights of
those who have developed a disability to continue as an employee at the same
establishment in a position of equal benefits and pay, thereby protecting their
right to work, other labor laws (like the Industrial Disputes Act and Workmen's
Compensation Act) at best approach the differently-abled from a charitable
perspective by awarding compensation, and at worst provide for complete
termination of service without any payment. Since provisions in these laws
remain intact even after the passage of the Persons with Disabilities Act, 1995,
the state of the right to work remains uncertain. However, Court judgments like
Shree Satish Prabhakar Padhye vs. Union of India and Ors50 have both
maintained certain aspects of the right to employment (like the continuation of
service even after the development of a disability) and confirmed their
applicability to private establishments as well as the public sector.

16. CONCLUSION: INTERNATIONAL COMMITMENTS

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

People with Disabilities in the Asia Pacific Region. India is also a signatory to the
Biwako Millennium Framework for Action towards an inclusive, barrier free and
rights based society. India was part of the negotiations on the UN Convention on
Protection and Promotion of the Rights and Dignity of Persons with Disabilities.
The Persons with Disabilities(Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 was adopted to give effect to the Proclamation on the
Full Participation and Equality of People with Disabilities in the Asian and Pacific
region. The National Policy for Persons with Disabilities, 2006 was also adopted
in furtherance of these international commitments, which are a two way process
aimed at realizing economic, social and cultural rights for persons with
disabilities. The government is in the process of evolving a framework for the
implementation of the UN Disability Convention. The XI Plan document
recognizes the need to integrate India’s commitment towards the International
Policy Framework consequent on ratification of the Disability Rights Convention
on 01 October 2007. Since it is just a year since India ratified the UN Disability
49
[Link]
50
2006 (1) CLR 455

24
Rights Convention, the government is still in the process of designating a
framework to promote its implementation. However, a significant step has been
in the deliberations on this matter in the processes that put the 11th Five Year
Plan in place. This will provide us with a policy framework for the next five years
at the national level and will enable a convergence between different sectors that
is so significant for the realization of disability rights.

25