Disability Rights in India

Normal people desire to feel special & the biggest desire special people have is to feel normal.
That’s the irony of life

Evolution of Disability Rights in India

The evolution of disability rights began somewhat in the 1970s, but a wave of unification of the demands ran across the nation in around the 1980s. After a lot of protests and a series of petitions, the government passed the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and that year became the benchmark for disability rights movement in India Now, especially abled persons found visibility in educational institutions and govt. services.

In the year 2007, India ratified the UN Convention on the Rights of Persons with Disabilities, 2006 and by the year 2012, the Govt. of India came up with a disability bill which was finally enacted in the year 2016, in the form of the Act we see presently. However, the enactment was not merely a result of protests and movement on the streets, but a reality accorded by the judiciary owing to numerous petitions and PILs.

  • Some landmark pronouncements are:
    • Daya Ram Tripathi V State of UP & Anr., (1986) Supp. SCC 497
    • Deaf Employees Welfare Association v. Union of India, (2014) 3 SCC 173
    • Union of India v National Federation of the Blind, (2013) 10 SCC 772
    • Ravi Prakash Gupta vs. UPSC and Others, Writ Petition No. 5429/2008
    • Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1
    • Syed Bashir-ud-Din Qadri v. Nazir Ahmed Shah, SLP(C)Nos.10669-70 of 2008

The Rights of Persons with Disabilities Act, 2016

The Rights of Persons with Disabilities Act, 2016 symbolizes healing, for it is not always linear. Indeed, while this on-going journey moves forward, it still consists of days abundant of trauma. Similarly, the RPD Act showcases a shift from the medical to the social model of disability.

However, it clings on to the negative idea that disability is an abnormality found within an individual rather than treating disability as a social issue. The schedule in the Act provides a list of twenty-one conditions defined as a specified disability. Additionally, the Central Government is also given residuary authority to expand on the list, as it deems necessary.

Thus, the Act defines disability as a changing and dynamic concept rather than exhaustive. The Act also provides a generic definition of persons with disabilities. Correspondingly, chapters two to five provide comprehensive measures to ensure the equality and protection of the fundamental freedoms of disabled people. It envisages a human rights-based approach in the form of furthering the civil and political rights of the concerned.[1]

Quite suitably, it is the anti-discriminatory nature of the remedy that led to the wide approach of defining specified disability. Chapters two to five of the Act also reflect the social model of disability since there is a primary focus on the acknowledgment that Indian State have been lacking in providing facilities and assistance to aid the absolute integration of the disabled people regardless of their individual limitations. The provisions implicitly accept that it is the society that turned the individuals with impairments into disabled by segregating them from dignified participation. The provisions envision the disabled with rights and consent instead of letting the society have a monopoly over care and control of the disabled.

Lastly, disabled persons are not forced to adjust but the society is meant to affirm the disabled.[2] Furthermore, the Act also provides a subdivision of two categories that include, people with benchmark disabilities and persons with disabilities having high support needs. These categories include individuals who experience at least forty or more percent of the specified disabilities.

Disappointingly, the Act takes a departure from the appreciated social model to the biological model of disability. The forty percent requirement represents the medicalization of the Act. Primacy is given to the medical practitioner who assesses the individual body from a lens of suspicion to test if it is worthy of state-aid.[3] This medicalization labels the body as pathological as opposed to the normal body. This binary is inspired by the ideas of Charles Darwin where only the fittest body shall survive while defeating the deviant disabled body that is a threat to the rest of the society.[4] Accordingly, the venue of medical examination becomes a circus where the disabled individuals are forced to fascinate the medical practitioner by reducing themselves into an able-bodied stereotype.

The examination showcases the patronizing obsession and the savior complex of the state. After all, the state feels that the claimant is suffering should they be allowed aid. The price of the disability certificate achieved is not minimal but increasingly costly, forcing one to trade their trauma for necessities. The validating mechanism in the nature of a medical assessment[5] is connected to the narrowed definitions of people with benchmark disabilities and persons with disabilities having high support since the remedy requires the distribution of limited state aid.[6] The judiciary also conveniently depends on the medical authority to be the bad cop that eliminates the unworthy claims by not providing them with a disability certificate. The precious time of the judiciary should not be wasted by petty claims of the disabled. The judiciary evades from being the bearer of the bad news to the claimant that it is more sensitive to the concerns of the body-abled state than the disabled claimant.[7] Hence, ultimate primacy is given to the medical authority but the judiciary seemingly encourages it.

Besides, the lack of legal literacy and the presence of regional cultural conceptions which treat disability as a divine blessing and thus reject to acknowledge the impairment only helps in furthering the state-agenda of refusing to grant a disability certificate. The rejection of providing aid to the claimants also represents a capitalist ideology where, since the disabled body will be unable to engage in any labor and thus, not earn profits, it should be discarded and dumped. This also leads to conflict within the disabled community for limited resources and thus hinders the formation of a collective consciousness against the state. Ultimately, this act protects the state from providing radical care to the disabled community.[8]

Thus, the Act finds itself in a dilemma where while it aims at social change, it still ends up burdening the disabled with the task of individual adaptation.[9] Consequently, it is important that the ethic of healing is prioritized and the Act apologizes for and rectifies the prejudices it holds against people with disability.

[1] Prasanna Kumar Pincha. 2016.The Rights of Persons with Disabilities Act, 2016 – An Overview.

[2] Mike Oliver.1996.”The Social Model in Context”. Understanding Disability, pp. 30-42

[3] Renu Addlakha and Saptarshi Mandal. 2009.“Disability Law in India: Paradigm Shift or Evolving Discourse?”. Economic & Political Weekly, 10 October, pp. 62-68.

[4] C. Raghava Reddy. 2011.”From Impairment to Disability and Beyond: Critical Explorations in Disability Studies”. Sociological Bulletin 60, No. 2: 287-306. http://www.jstor.org/stable/23620921.

[5] Stone, Deborah A.1985. The Disabled State. Macmillan.

[6] Addlakha and Mandal, Persons with Disabilities Act 2016

[7] Saptarshi Mandal. 2010.”Adjudicating Disability: Some Emerging Issues”. Economic and Political Weekly, Vol. XLV, No. 49, pp. 22-25.

[8] Supra note 6

[9] Supra note 2

Trisha Shreyashi from KIIT School of Law, Bhubaneswar

Editor: Sanskriti Sood

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