In this paper, I will present a brief historical survey of the growth of the recognition of the rights of persons with disabilities within Indian legal system. I will identify different sources of the recognition of their rights, such as the Indian Constitution, administrative orders, juridical verdicts, parliamentary enactments and international conventions. Besides such legal documents forming the sources of this paper, I will also use some secondary literature to make specific arguments. In addition, the paper will also draw upon the voices from within the disability sector wherein I have enjoyed first hand access. The survey would bring out an unmistakable expansion of the recognition of their rights,however, it is in no way a simple, straightforward progressive journey. At times, things have become even more complicated and challenging with the growth of the corpus of legal documents on the rights of persons with disabilities. Moreover, there are some burning questions, which were raised before the most recent enactment in 2016, which are still to be addressed.
However, in order to get a proper sense of the plight of persons with disabilities in terms of the enjoyment of equal citizenship, it is requisite to have some idea of their proportion in the total population for which these laws should be applied. Presently, owing to the differences of approach, there exist significant dissimilarities amongst various agencies and scholars in terms of their estimates for the prevalence of disability in India and participation of disabled children in formal education. In this section, I have argued that if we amend our perception and definition of disability in accordance with the internationally upheld perspective, it may considerably modify our understanding of the extent or rate of disability prevalence in India as well. This may also help us to understand afresh the participation or exclusion of disabled persons in public life and encourage us to modify our understanding of the reasons possibly responsible for keeping a large number of them out of it. We will discuss formal education as an example of the larger public sphere in different sections of this paper to show the problems faced by persons with disabilities in achieving equal status and participation.
Although the colonial census enumerated disabled persons from 1872 to 1931, the practice was discontinued thereafter.It was however revived in 1981—the first year of the international decade for disabled—but again dropped in 1991 census owing to the perception of the failure to accumulate proper information.2 However, thanks to the successful pressure exerted by disability rights groups, the Government agreed, albeit in the last minute, to enumerate disabled persons in the Census of 2001, which recorded 2.12 percent disability prevalence rate.3 According to this census, only 25.19 percent disabled persons lived in urban and 74.80 percent in the rural areas. It found that there were more disabled men as compared with disabled women (57.54 % against 42.45 %).
Third Disability Survey of NSSO (58 th round July-December 2002) reported even a lower figure of disability prevalence. According to this survey, 1.8 percent of total population had some or other kind of disability.4 The NSSO survey also documented that about 10.63 per cent of the disabled persons suffered from more than one type of disabilities.
At the same time, it is also true that the third disability survey of NSSO (2002) has recorded higher disability prevalence than the previous two surveys.5 Similarly, the census of India (2001) has also recorded higher disability prevalence if compared with the past reports.For instance, as distinct from the census of 2001, which has recorded 2.12 percent disability prevalence rate in India, the census of 1931 had recorded only 0.31 percent disability prevalence and the 1981 census recorded even a lower rate of 0.2 percent.6 Yet, if compared with many developed and some developing nations, the disability prevalence rate as recorded by the Indian census of 2001 appears to be considerably lower, such as USA (20 percent), UK (12 percent), Brazil (14.5 percent), Turkey (12.3 percent), and Nicaragua (10.1 percent).7
We can identify various possible reasons of this low recording of disability prevalence rate in India. For instance, it is possible that owing to the influence of the prevalent male perceptions of attractive female body, wherein disability becomes a kind of ignominy, and which thereby determines women’s marital prospects, lesser number of people would have reported instances of the prevalence of physical impairments amongst women. Perhaps because of this low reporting of female disability that contrary to the global trend,8the census of India (2001) recorded lower disability prevalence rate amongst women than men ( 0.90 % and 1.22 % respectively). Secondly, Government carried out the enumeration without adequately sensitizing the enumerators and surveyors about disability implying “difficulty in functioning”,“activity limitation” or “participation restriction”.9 Further, it did not make sufficient prior efforts to create necessary awareness amongst respondents so that they do not hide relevant information and understand accurately what kinds of restrictions may be called disability. In India, the general perception of disability still revolves around obsolete medical criterion of the degree of physical impairment–a parameter already discredited by various nations and international agencies and scholars owing to its inherent limitations. In other words, it has been recognized that impairment data is not an adequate proxy for disability information.10 Therefore, countries reporting higher disability prevalence tend to collect their data through surveys and apply a measurement approach that records activity limitations and participation restrictions in addition to impairments.11
Dr. E. Helander, then working for World Health Organization (WHO) had estimated in 1974 that 10 per cent of the world population was disabled.12 Since then, WHO has been suggesting that about ten percent global population suffers from some or other kind of disability.13 In its recent report published in 2011, WHO has increased this global estimate to 15 percent. WHO does not treat disability merely as impairment, instead as a “difficulty in functioning”, “participation restriction”, or “activity limitation”.14 It has been further suggested by Dr. Helander (in his later book, Prejudice and Dignity), that even if we follow the WHO approach but minus the number of those disabled not requiring special rehabilitative support, then also the percentage of disabled population will be more than five percent of the total population.15
In India, according to R.S. Pandey and Lal Advani, about four per cent of the population can be said to be having ‘obvious' disability of moderate, severe and profound degree. They suggest that if we also count the milder forms of disabilities, the number may well be around 20 per cent or so.16
Hence, it should be apparent from the above discussion that a very important factor determining our understanding of participation/exclusion of disabled children in formal education—the subject matter of the next section—would depend on how do we conceptualize and enumerate disability and measure its prevalence. For instance, as distinct from the above-cited official figures of disability prevalence in India amongst the school-going age group, roughly little less than 2 percent of the total population, Mukhopadhyay and Mani estimate 5 percent children with disability in the age group 5-14.17 Further, if we adopt internationally accepted definition and approach, the reporting of disability prevalence amongst children may increase manifold. For example, according to Cry, one out of every ten children in India is disabled.18
I found similar results in a survey (yet to be published) which I conducted in 2011 amongst the students enrolled in 10 th, 11 th, and 12 th classes in the schools of the Directorate of Education in Delhi, where otherwise our objective was to study the cultural understanding of children and the nature of their peer group interaction. In this study, following the international approach of broadly defining disability, we also asked them if they face any physical impairments including enduring pain and ailment (if at all) which cause difficulties in their normal participation in the school on more or less regular basis? Out of the total students randomly selected for this sample, as per our preliminary calculations, 11.81 percent respondents clearly reported various kinds of physical impairments causing “participation restrictions” or “difficulty in functioning” and 1.57 percent respondents gave obscure responses.
In contrast to Indian Census or NSSO, the studies that record higher disability prevalence adhere to a much open definition of disability rather than completely relying on medical criteria of measuring the degree of impairment. Here the point is not whether census or NSSO officials examine medical certificate before classifying a person as disabled. Nonetheless, in a scenario marked by the lack of awareness amongst the enumerators as well as informants about a broader and inclusive definition of disability, census or sample surveys have underestimated disability prevalence in India. Hence, the available official data have limitations to provide the actual number of children who face disabilities while participating in school or the precise number of children who remain out of school owing to their disability.
II. Rights of Persons with Disabilities and the Constitution of India
Since different parliamentary and governmental enactments draw their strength from the Indian Constitution, this should be treated as one important fountain source of the rights and entitlements of persons with disabilities in India. It is evident from the previous section that demographically and socially, persons with disabilities are a significant block. However, their status is not so clear in the Indian constitution and depends in a great deal on interpretations. For instance, as Sambhavana Organization (a voluntary, non-governmental and nonprofit making organization for persons with disabilities)alleged in one of their campaigns for constitutional amendment, it is indeed very sad and unfortunate that Constitution of India does not have a single visible provision voicing specifically the rights of Persons with Disabilities in unequivocal terms. On the contrary, many articles contain undue limitations.19 We can attribute this lacuna in Constitution as one factor responsible for the malady that prevails today in the country with regard to the legal rights of persons with disabilities. “For it is a settled law that while the interpretation of enactments might vary according to the understanding of courts or amendment in the statutes but the basic structure of the Constitution will remain intact”.20
Sambhavana had proposed amendments in the Indian Constitution to the Constitution Review Commission Set-up by the NDA 1.Sambhavana even points out that there are many countries in the world, which have recognized the rights of disabled in their constitutions, for instance, Canada, South Africa and Eritrea.21
III. Specific Legal Instruments for Persons with Disabilities in India
Nonetheless, fundamental rights as enshrined in the Indian Constitution do not essentially exclude disabled persons and this is an important strength for their rights. Moreover, we have at least seven specific legal instruments for the protection of the rights and entitlements of persons with disabilities in India as listed below. Of these, five have been provided by the Indian Parliament, one by the Union Ministry of Social Justice and Empowerment, and one by the international commitment of the Government of India.
(A.) Mental Health Act, 1987;
(B.) the Rehabilitation Council of India Act, 1992; and
(C.) The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) (PWD) Act, 1995
(D.) The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999.
(E.) National Policy for Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, 2006.
(F.) United Nations’ Convention on the Rights of Persons with Disabilities (UNCRPD), 2005, to which India has also ratified in 2007.
(G.) Rights of Persons with Disabilities Act, Government of India, 2016.
IV. General Legal Instruments for Persons with Disabilities in India
Beside these specifically designed legislations, occasionally, some general enactments of legislative bodies also very explicitly recognize the rights of persons with disabilities, such as the right to education Act 2009, and particularly its amendment in 2010. Even otherwise, general enactments have important bearings on their rights, positive or negative depending upon the specificities of the act in question and its sensitivities or lack of it to the plight of disabled persons.
V. Official Memorandums, Orders, Circulars and Judgements
Similarly, the Official Memorandums (OMs) and circulars issued by different Government agencies are another source of the rights and entitlements of persons with disabilities. Though it should be possible to find these OMs and circulars of a prior date, the DOPT (Department of Personnel and Training) OM of 1982 is considered to be one of the oldest but very useful document in this regard. Another significant document is the DOPT OM of 2005, which is actually a compilation of different OMs and circulars prepared and issued time to time by it.
The OMs issued by the DOPT pertain to the issues of employment;the circulars issued by financial agencies, Ministry of Finance etc.and the banking agencies (such as the Reserve Bank of India and the Indian Banking Association) pertain to the matters concerning the participation of disabled persons in the economic life; and those issued by the MHRD and autonomous bodies liketheUGC (University Grants Commission) to education. Similarly, MSJE (Ministry of Social Justice and Empowerment) issues orders on miscellaneous other matters.
Beside these, judicial interpretations and verdicts form another very strong corpus of the recognition of the rights and entitlements of persons with disabilities. In fact, these have proved to be by and large the main driving force towards improvement since the enactment of the disability legislation of 1995 not only in terms of the implementation of its provisions, but also for covering more and more areas within its ambit through progressive interpretations. These judgements or verdicts could be again classified in two parts. First, the judgements of various courts. Second, the judgements passed by the office of the Chief Commissioner for Persons with Disabilities, Government of India and its state level equivalents. These commissioner offices have the powers of the session court.
VI. The PWD Act of 1995
The disability legislations of 1987 and 1992 by the Indian parliament dealt with specific disabilities and specific issues, largely relating to education and training. However, the enactment of 1995 was much comprehensive. It specified seven conditions as disabilities: 1. blindness; 2. low vision; 3. leprosy-cured; 4. hearing impairment; 5. loco motor disability; 6. mental retardation; and 7. mental illness. It made special provisions for disabled persons with regard to their rehabilitation, and equal opportunities and participation in employment and education. However, over a period of time, many limitations of this Act were underlined by the disability writes scholars, activists and concerned officials. The Ministry for SJE also prepared a comprehensive list of required amendments in this Act. Hence, the need to amend the PWD Act of 1995 was voiced by the disability sector. Nonetheless, as we shall see shortly, the future course of events moved in a different direction.
VII. Harmonizing Indian Laws with UNCRPD and the Move Towards RPWD Act 2016
In 2007, India became a signatory to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which requires signatory states to harmonize their internal laws and policies with the framework of this Convention. The UNCRPD marks a very important shift from medical model of understanding disability to the social model of comprehending it. Its framework is wider than any other previous legislation and therefore It covers almost every aspect of human life of a person with disability. It treats disability as one of the many diversities that exist in the world. It recognizes that specific physical/mental/visual impairments become disabilities only in interaction with built environment and prevalent social attitudes.22
In response to the need for harmonization of Indian laws with the framework of the UNCRPD, the Government of India decided to bring about changes in its existing legal framework for persons with disabilities by once again focusing on specific laws legislated exclusively for them, instead of adopting a broad view of amending other laws over a longer period of time. In 2010, the government constituted an expert committee under Professor Sudha Kaulto draft a new Bill for persons with disabilities. This Committee submitted a Draft Bill on June 30, 2011. The draft was discussed in various consultations organized by the governments; and many DPOs (disability rights organizations) also gave their suggestions. The revised draft was although approved by the Cabinet, it could not be passed by the Parliament due to the dissolution of 15th Lok Sabha.It was subsequently passed by the 16 thLoksabhaand the Rajyasabha in December 2015.23
VIII. Issues in the RPWD Bill 2016
Of course, in general, the Bill was written in a more progressive language than the PWD Act of 1995. However, it belied hopes on many counts. Therefore, notwithstanding the fact that many leading disability rights organizations favored the enactment of this legislation perhaps as a contingent solution, it did not trigger the kind of euphoric response that we witnessed in 1995-96. It was thought by many sections within the disability sector that this 2016 legislation not merely frustrated the objective to give full effect to the UNCRPD,but even took away what was already available to them in the earlier Act of 1995 and other legal and juridical instruments.
Even though such reactions might be too sharp at times, however, on specific points, they were not completely off the mark either. This we shall elaborate below. Some of the major criticisms of the bill and the process of its promulgation (as was evident in many consultations) are being summarized below. However, the main focus will be on those areas where issues have been still unresolved even when the bill has become the act.
It was bemoaned that the bill was passed even without putting the final version in the public domain. Many important issues were left in the bill for the formulation of its rules by the bureaucracy. Moreover, a large number of judgments passed by the judiciary in the past had given progressive interpretations advancing the rights of disabled. It was therefore an anxiety that how this jurisprudence would find its place in the new Bill or in the rules to be promulgated for its implementation.
It was resented that the RPWD bill 2016 was passed in the Parliament without elaborate discussion, which is essential to avoid lacunas.Even many of those issues which were resolved in the previous drafts again dropped in the final bill. For instance, while the categories of disabilities were increased from seven to 21, it increased reservation only to 4% from earlier 3%, whilst 5%was provided in the earlier drafts.
Further, even though the Supreme Court had interpreted on 9th October 2013 in the matter of 'Union of India Vs. National Federation of Blind' that the section 33 of the PWD Act of 1995 provides reservation in promotion to employees with disabilities in all groups i.e. ABC& D. the bill relegates the right to reservation in promotion to a provision where it is left with the appropriate governments to issue instructions from time to time. Subsequently, the Hon'ble Supreme Court vide its judgment dated 10 Dec 2013 in a case titled as MCD Vs. Manoj Kumar Gupta upheld a judgment of Hon'ble Delhi High court which declared that Section 33 of the Disabilities Act 1995 provided for reservation in promotion for persons with disabilities in Groups A and B also. Again, in the Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others court held that reservation in promotion has to be given in Groups A & B posts under section 33.
The bill did not provide any provisions for women and children with disabilities.The bill lacks any serious engagement on the question of protecting the labour and economic rights of disabled persons employed in the private sector. The bill was also criticized for the lack of Punitive Action in its provisions against the violators except only a fine of Rs 10,000 to Rs 5 lakh.
Another major resentment was that the bill instituted “income ceiling” for provisions of aids & appliances, medicine & diagnostic services & corrective surgery free of cost and for the purpose of disability pension. Moreover, it retained the safeguard of “within the limit of its (state’s) economic capacity & development”.
Yet another critique was that the extension of time limit for making the building accessible on case to case basis as given in section 44 intended to delay accessibility for an indefinite period.
Ninth, another major hue and cry was against the effort to reduce the powers of disability commissioners. Although the bill retains the disability commissions in the center and the state, it did not make their power binding on agencies violating the provisions of the act.
Tenth, the educational provisions as laid down in the bill were found severely inadequate to meet the crisis. Let us see this issue in somewhat more details, because education is otherwise generally regarded as the panacea for the development and exercise of the rights of persons with disabilities. No doubt, the enrollment of disabled children in elementary education (as per the DISE statistics compiled by the NUEPA) has increased from 50 percent in 2001 to about 74 percent by 2009, however, we also fined that their enrolment in upper primary education (6th to 8th standards) is merely 34.80 percent of their enrollment in primary education. It means that about 65.20 percent disabled children enrolled in primary education do not reach upper primary level.
We can further understand the failure of school education to retain and promote disabled children with the example of Delhi University, which has about 82 affiliated colleges for undergraduate studies where roughly 1500 disabled students should be every year admitted under three percent reservation quota. However, notwithstanding the fact that Delhi University is a premier central university of national stature—which otherwise attracts students from all over the country and which claims to provide somewhat better facilities for disabled students—only 503 disabled candidates have been applying for admission over last many years. Even the extra ordinary measures taken by the Equal Opportunity Cell (EOC), University of Delhi (during last few years) to contact schools and provide all possible assistance for the admission of disabled children in undergraduate courses and the intervention on this issue by various Disabled Persons Organizations (DPOs) have not transformed this Situation. It is in this backdrop that we now turn to the provisions laid down in the RPWD Bill 2016 with regard to inclusive education.
(A.) Section 16, subsection (I) provides that disabled children will be admitted by all educational institutions without discrimination and the latter shall provide them education and opportunities for sports and recreation activities equally with others. However, this section, or other sections in this chapter nowhere provide for reservation of disabled children within the EWS category quota in admission in private schools. It should be read with the provisions contained in the chapter dealing with reservation and if required necessary amendments or appropriate cognizance should be taken whilst formulating the rules. It is pertinent to point out here that the RTE Amendment Act 2010 included children with disabilities under the definition of disadvantaged children.
(B.) Subsection (II) of Section 16 of course directs educational institutions to make building, campus and various facilities accessible for disabled. However, it provides No deadline for educational institutions to make their campuses and buildings accessible. Unfortunately, this Act makes no attempt to link the requirement of accessibility with the recognition status of educational institutions. It is all the more regrettable, because this provision is otherwise already in existence within an earlier legislation, namely in the norms annexed with the RTE Act (2009). There, the barrier free environment is made one of the conditions of recognition of educational institutions under the Act. It is a different matter that the same continues to be violated till date. In fact, for this reason of non-compliance, the RPWD Act 2016 could have made it stricter by proposing some effective monitoring mechanism. Moreover, the present RPWD Act 2016 does not present any blueprint or guidelines about the sharing or incentivizing the financial expenditure to be incurred by private institutions to make their premises accessible. It is important, because now these private educational institutions have been brought under the definition of establishment; and alsobecause the chapter on education includes not only the institutions funded by the Government but also those which are recognized by it. Private educational institutions will be covered thus under the latter term i.e. recognized. If budgetary aspects not specified, and if private institutions are made to comply, they might attempt to transfer this cost on the shoulders of other parents. This might not be so good for mutual social and peer relations between disabled and non-disabled.
(C.) The subsection (V) of Section 16 directs educational institutions to ensure that the education to persons who are blind or deaf or both is imparted in the most appropriate languages and modes and means of communication. An appropriate reading of this provision should cover Braille, e-technology, and Sign language, and any other method that might be devised in future to attain the objective of inclusive education of disabled in full. However, the language of this Subsection has been kept completely abstract without including these exemplary means and modes of communication, such as Braille, Sign Language and E-technology. These have not been explicitly stated here. If this language is not improved, it might become source of confusion. More importantly, improvement in language will send a strong message which is essential to break the inertia that has been in existence over last twenty years. The abstract nature of this subsection is additionally surprising, because it could not have been simply an omission or the result of ignorance, as the PWD Act of 1995 as well as the UNCRPD state these in clear terms. Of course, in order to retain the field open for additional facilities, the word etc could have been inserted after specifying these examples. In fact, this argument of bureaucratic intention to maintain vagueness is further corroborated by the fact that the same chapter elsewhere, in Subsection (F) of Section 17, directs The appropriate Government and the local authorities to promote the use of appropriate augmentative and alternative modes including means and formats of communication, including these exemplary means and modes of communication such as Braille and sign language. This makes it clear that in the section dealing explicitly with educational institutions, the Government wants to retain existing confusion wherein the state and local authorities smartly end up appointing at best the special educators at cluster level instead of appointing them in every school.
(D.) Of course, Subsection (VIII) of Section 16 provides for transportation facilities to the children with disabilities and also the attendant of the children with disabilities having high support needs. However, neither it states that these facilities will be provided to disabled children free of cost nor it clarifies that these facilities will be provided to them up to which age. Further, it does not clarify that in case of private or Aided institutions, who will reimburse this cost if we suppose that disabled students are not to be charged for it? It is important to underline the omission of the proviso of free of cost and upper age limit in this subsection pertaining to educational institutions, because elsewhere within the same chapter, in regard to other facilities, the appropriate Government and the local authorities have been explicitly directed under Subsection (G) of Section 17 “to provide books, other learning materials and appropriate assistive devices to students with benchmark disabilities free of cost up to the age of eighteen years”.
(E.) In fact, the above-mentioned provision as laid down in Subsection (G) of Section 17 is also dissatisfactory as it enshrines upon the appropriate Government and the local authorities the responsibility “to provide books, other learning materials and appropriate assistive devices to students with benchmark disabilities free of cost up to the age of eighteen”. It means that providing these facilities free of cost to disabled for attaining higher education, where they reach and continue beyond the age of 18 is not the responsibility of the appropriate Government and the local authorities as the RPWD Act 2016 cleverly shirks this liability entirely on the shoulders of the educational institutions.
(F.) The aspects of the training of teachers and other resource persons for children with disabilities have been dealt under Subsections (B.) to (E.) of Section 17. It does talk about training all teachers and staff in disability, but it does not mention any target date.
(G.) The entire chapter on education makes no mention of institutions of special education. The focus on inclusive education is indeed worth welcoming. However, given the current level of research and scholarship as well as the existing scenario, we cannot completely ignore the aspect of special education. Their problems should have been addressed and legal remedies should have been provided.
(H.) Appropriate relaxations in copy Right rules for vision impaired readers is an important issue closely linked to their education. Many significant developments are taking place on the international platform in this regard. However, nothing on this count is mentioned here.
(I.) Unlike earlier drafts, the RPWD act 2016 has not mentioned anything about home-based education. This might appear in the first instance a good sign as the proposed provisions in the earlier drafts of the RPWD Act for home-based education were criticized. However, at the same time, it does not mean that the dangers of home-based education are completely done away with, because this act nowhere unequivocally guarantees full time regular education for all disabled children. Moreover, the RTE Amendment Act 2010 has already provided for home-based education. I have elsewhere discussed the dangers of home-based education in detail.24 Hence, it is highly required that the Government clearly specifies under the rules or through amendments in relevant legislations that the home based education model will be pursued under rarest of rare conditions of extreme disability in interaction with external environment; and to the extent possible, it would be provided only as a transitional stage, instead of as a regular substitution for inclusive education.
Notes and References
Asst. Professor, Department of History,
Faculty of Social Sciences, Delhi University