The jurisprudence on disability in India, albeit recent, has charted an unusual course. The courts have increasingly resorted to judicial activism to interpret and reinterpret the laws, and have gone beyond the four corners of the legislations in the endeavour of delivering justice. With time, the discourse and narratives on disability coming from the corridors of the courts have noticeably evolved, with a willingness to embrace inclusion beyond the lens of mere charity and welfare.
While the formulation of laws have guaranteed the establishment of institutions to help facilitate disability access and justice, the implementation and enforcement of the same falls short of expectations.
For the first five decades of its independence, India did not have a law to address the rights of Persons with Disabilities (PwDs). The meeting to launch the Asian and Pacific Decade of Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asia and Pacific was held at Beijing from the 1st to 5th December, 1992. India is a signatory to the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region that was adopted at the said meeting. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was subsequently enacted by the Parliament. However, it was in 1993 that the Supreme Court of India first delivered a verdict addressing the rights of the PwDs to participate as full citizens of the society. In 1993, the Supreme Court of India delivered a landmark verdict in National Federation of Blind v. Union Public Service Commission & Ors., recognizing the right of persons with visual disabilities to compete in exams for the Indian Administrative Service and Allied Services. The court directed the Government of India and UPSC to accommodate these candidates using braille or a scribe, marking the first time it acknowledged PwDs’ right to equality in such contexts. The court recognised the PwDs right to equal access to compete in exams. Additionally, the court affirmed that individuals with visual impairments could perform their duties with equal efficiency. However, the court’s use of the term ‘handicapped’ to address the PwDs reflected the medical perspective and attitudinal barriers prevalent at the time.
Over the past two decades and through two pieces of legislation, the conversation around disability has progressed significantly. This development is largely due to the court’s proactive efforts to deliver justice, and ensure equality and dignity for persons with disabilities (PwDs) across all areas of life. The Rights of Persons with Disabilities (RPwD) Act, 2016 has expanded the definition of disability to include 21 categories, up from the previous 7. It also approaches disability from a social perspective, acknowledging social barriers in line with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
By interpreting existing legal frameworks, Indian courts have elaborated on the concepts of dignity, equality, and reasonable accommodations in their successive judgments. In the groundbreaking judgment of Jeeja Ghosh v. UOI, the Supreme Court held that there should be a full recognition of the fact that PWDs were an integral part of the community, equal in dignity and entitled to enjoy the same rights and freedoms like others. In Rajiv Raturi v. UOI, the court observed that equality not only implies preventing discrimination, but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation. The issue of providing reasonable accommodation to UPSC candidates with disabilities was addressed in Vikash Kumar v. UPSC. The petitioner challenged the denial of a scribe, which was restricted to blind candidates and those with specific disabilities. The court emphasized that without reasonable accommodation, the fundamental right to equality for PwDs would remain unfulfilled. It ruled that reasonable accommodation is essential to make these constitutional rights meaningful and to ensure equality and non-discrimination. More recently, in Nipun Malhotra v. Sony Pictures Films India Pvt. Ltd. & Ors, the Supreme Court laid down the nine point guideline on the portrayal of disability in films and visual media. The court recognised that it is crucial to identify and eliminate value systems like ableism that underpin legislation, policies, and practices leading to inequality and discrimination. Only last month, the Supreme Court laid down the jurisprudence on accessibility while directing the central government to delineate mandatory rules from the existing guidelines.
The verdicts coming from the upper echelons of justice have been progressive and revolutionary, however, the judgments rendered by the High Courts across the country on disability rights have been ineffective and inconsistent through the years. In Dhruv Kumar Singh v. State of UP, the petitioner’s disability did not feature in the advertisement of posts by the UPPSC. The court noted that the advertisement was clear and that the vacancy concept does not affect reservation percentages. It emphasized that the government must calculate available vacancies and identify posts for persons with disabilities. The court dismissed the writ petition, finding no valid reason to intervene. On the other hand, the Andhra Pradesh High Court ruled that no appointment for the post of Assistant Motor Vehicle Inspector in direct recruitment for persons with disability, is ultra vires the Persons with Disability (PwD) Act 1995 and creates hostile discrimination violative of Article 14 of the Constitution of India. The Delhi High Court directed the government of Delhi to carry out a special recruitment drive for persons with disabilities, while also filling up the backlog of vacancies. In another case the appellant was denied relief by the Bombay High Court on the grounds that they were not entitled to an additional hour of compensatory time because of a failure to obtain the prescribed disability certificate. The case was later overturned by the Supreme Court.
In the current framework, the RPwD Act aims to establish institutions and mechanisms to implement the principles of the UNCRPD in India. However, nearly ten years after its initial enactment, its implementation has been sluggish and remains a low priority for the state machinery. The Act calls for the appointment of Advisory Boards and Disability Commissioners on the state and district levels along with the establishment of special courts. In a recent writ petition submitted to the Supreme Court to compel the state machinery to adhere to the Act, the Court noted that nearly all states have made errors in compliance with the Act, despite the notification of the corresponding rules. In the given scheme of things it is not hard to conclude that the Supreme Court has shouldered the responsibility of delivering disability justice in the country. Recently, the Court has also taken on the task of ensuring that the law is implemented in its true spirit.
It is also crucial to recognize that the government’s initiatives and policies aimed at improving disability access and justice have not been effectively implemented. The Accessible India Campaign, introduced in 2015 to celebrate the 20th anniversary of the 1995 Act, failed to achieve full accessibility in public infrastructure for people with disabilities (PwDs). Likewise, the National Policy for PwDs, established in 2006 prior to the 2016 Act, remains outdated. Although the Ministry of Social Justice and Empowerment sought feedback on a new draft national policy, it has yet to be released.
In a fairly short span of time, India has come a long way in creating frameworks facilitating access and justice for PwDs. Significant challenges remain in achieving full inclusion and equality for people with disabilities. Concerted efforts across all levels of judiciary, civil society, government and local communities would be crucial in realising the implementation and enforcement of disability rights.