Expanding the Horizons of Disability Law in India: A Study from a Human Rights Perspective

Group rights are rights held by a group, or rights held only by individuals within the specified group; in contrast, individual rights are rights held by individual people regardless of their membership of group or lack of it thereof.

The division of human rights into three generations was initially proposed in 1979 by the Czech jurist Karel Vasak at the International Institute of Human Rights in Strasbourg. First-generation human rights (“blue rights”) are fundamentally civil and political in nature while second-generation human rights (“red rights”) are fundamentally economic, social, and cultural in nature. Third-generation human rights are those rights that go beyond the mere civil and social and are more in nature of group rights. See, “Three Generations of Human Rights,” available at <http://en.wikipedia.org/wiki/Three_generations_of_human_rights> (last visited September 16, 2013). Also see B. Algan, “Rethinking Third Generation Human Rights,” Ankara Law Review 1, no. 1 (2004): 121–155.

For more discussion, see “Models of Disability: Is the Religious Model Still Relevant Today?” available at <http://blog.wideaware.co.uk/archive/7/models-of-disability-is-the-religious-model-still-relevant-today> (last visited October 20, 2013).

Fleischer D. Zames F. , The Disability Rights Movement: From Charity to Confrontation (Philadelphia: Temple University Press, 2001).

Note this model is generally reflected in the Indian disability law which strictly treats disability as ailment to be cured. For more information on the medical model of disability, see Mitra Sophie , “The Capability Approach and Disability,” Journal of Disability Policy Studies 16, no. 4 (2006): 236–247, at 237. Note for usage of term Bio-centric Model and its explanation, see “The Approaches to Disability,” available at <www.nhrc.nic.in/Publications/Disability/chapter02.html> (last visited June 16, 2013).

The term “social model” was borne by Mike Oliver, a Professor of Disability Studies at the University of Greenwich, as an explanation of disabled people's way of identifying themselves in society; see supra note 3.

“Human Rights and Disability,” available at <http://www.ohchr.org/Documents/Publications/HRDisabilityen.pdf> (last visited October 23, 2013).

Also see Mudgal M. , “Right Based Approach to Disability and Development,” Nyaya Deep 7, no. 1 (2006): 54–67.

Internationalization of human rights is said to have begun with setting up United Nations by the United Nations Charter of 1945 that now monitors the human rights compliance across the world;

Gómez Isa F. De Feyter K. , eds., International Protection of Human Rights: Achievements and Challenges (South Africa: University of Deusto Bilbao, 2006): At 2–27.

Universal Declaration of Human Rights (UDHR) adopted by UN Genaral Assembly by resolution No.217A(111) of December 10, 1948, followed by International Covenant on Civil and Political Rights, 1966 and International Covenant on Economic, Social and Cultural Rights, 1966 (these came into force in 1976), are jointly called International Bill of Rights.

Rungta S. K. , “Protection of Human Rights of People with Disabilities through Legislative Support,”Asia & Pacific Journal on Disability 1, no. 1 (1997): 36–38. It is the first time since 1958 that an international convention adopted by International Labor Organization included provision for disabled persons under the heading of discrimination (of employment and occupation). Later on, the UN general Assembly made the first International Declaration on the Rights of Mentally Retarded Persons, by resolution no. 2865 (XXVI) of December 20, 1971, covering one category of disabilities. In addition, it also recognized their rights to development in all spheres of life as well as medical care and physical therapy. Four years later, the UN General Assembly adopted the Declaration on the Rights of Disabled Persons, by resolution no. 3447 (XXX) of December 9, 1975, that recognized (in para 3–12 of the Declaration) several rights including: Dignity; civil, political, and social rights; treatment; legal aid; and the right of organizations of disabled persons to be consulted in matters concerning them. This was followed by the Declaration on the Right of Deaf-Blind Persons in 1979. Then 1981 was declared as International Year of Disabled Persons. In 1982 the World Programme of Action Concerning Disabled Persons was announced. In the subsequent year, the UN Decade of Disabled Persons (1983–92) was made to create awareness among policymakers for promoting equality and participation of disabled persons. Within this period ILO Convention (No. 159) concerning Vocational Rehabilitation and Employment (Disabled Persons), 1983 and Principles for the Protection of Persons with Mental Illness and the improvement of Mental Health Care (1991) were laid. Asian and Pacific Decade of Disabled Persons 1993–2002 was proclaimed by UN for concrete actions to be taken by the Governments in the region of the achievement of these goals. At a meeting of the Economic and Social Commission for Asia and the Pacific convened in Beijing in December 1992, a Proclamation on the full Participation and Equality of People with Disabilities in the Asian and Pacific Region was adopted. And later the Standard Rules on the Equalization of Opportunities for Persons with Disabilities by UN General Assembly in December 1993 was adopted.

The Convention on the Rights of Persons with Disabilities and its Optional Protocol was adopted on December 13, 2006. It was opened for signature on March 30, 2007 and recorded the highest number of signatories (82) in history to a UN Convention on its opening day. The Convention entered into force on May 3, 2008. As of October 2011, the Convention had 106 ratifications and 153 signatories while the Optional Protocol to the Convention had 63 ratifications and 90 signatories, as per information, available at <www.un.org/disabilities> (last visited September 16, 2013).

Indian Disability Laws - an Obsolete Picture, available at <http://www.dpiap.org/resources/pdf/dpbriefnoclra_11_05_16.pdf> (last visited June 5, 2013).

The Draft Rights of Persons with Disabilities Bill, 2012, available at <www.socialjustice.nic.in/pdf/draftpwd12.pdf> (last visited September 16, 2013).

Iyer K. , Law, Justice and the Disabled (New Delhi: Deep & Deep, 1962): At 4.

Under Entry 9 in the List II of the Schedule 7 of the Constitution, the subject of “Relief to the Disabled” and “Unemployable” is the responsibility of the State Governments. Similarly, the treatment and reception of lunatic and mental deficient is included in Entries 9 and 16 of List II & III respectively.

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

Manecksha F. , “Indian Activists Demand New Law on Disability,” available at <http://southasia.oneworld.net/news/indianactivists-demand-new-law-on-disabilty#.UmppZnBHL2s> (last visited October 16, 2013).

Note Amatya Sen is said to have pioneered the “Capability Approach” that was significantly developed by Martha C. Nussbaum, who sets minimum “threshold of capabilities” (like choice, food, and freedom of expression) that must be secured to all. see Nussbaum M. C. ,Frontiers of Justice, Nationality, Species Membership (New York: Oxford University Press, 2006). Also see Sen A. K. , Commodities and Capabilities (Oxford: Oxford University Press, 1985).

The first time disability census was done was in 1981 (International Year of Disabled People), and only the physically disabled who were considered as “Totally Blind,” “Totally Dumb,” and “Totally Crippled” were included. Later, in 2001, census was done again and then in 2011, mental disability was included in the census. For more information see, Manual on Disability Statistics, available at <www.mospi.nic.in/mospi_new/upload/Disability_Manual_19mar12.pdf> (last visited October 16, 2013). The census in 2001 was done after a lot of struggle by the civil society members; see,/“Enumerating the Disabled,” available through <www.thehindu.com> (last visited October 16, 2013). For the first time, people with mental illness and multiple disabilities were included in the 2011 census.

National Human Rights Commission, “Rights of the Disabled,” available at <www.nhrc.nic.in/hrissues.htm#no18> (last visited on September 16, 2013).

Census 2001 states that there are 2.19 crore persons with disabilities in India, constituting 2.13 percent of the total population. However, in contrast to most developed countries, this number raises to 18 percent (Australia), 14.2 percent (United Kingdom) and 9 percent (the United States); India's neighbors also have substantially higher: 5 percent in China, 5 percent in Nepal, and 4.9 percent in Pakistan; see supra note 18;.

also see Bhanushali Kishor , “Defining disabilities: NSSO v/s Census” Journal of the Sardar Patel Institute of Economic and Social Research 35, no. 2 (2005): 65–70.

The Erwadi tragedy took place on August 6, 2001 when a mysterious fire broke and killed 26 persons with mentally ill patients in a mental asylum who were chained and did not receive proper treatment; Murthy S. R. ,“Lessons from the Erwadi Tragedy for Mental Health Care in India,”Indian Journal of Psychiatry 43, no. 4 (2001): 362–366.

Ritz S. , “The Need for Parity in Health Insurance Benefits for the Mentally and Physically Disabled: Questioning Inconsistency between Two Leading Anti-Discrimination Laws,” Journal of Law and Health, 18, no. 2 (2003–2004): 264–296.

Mental Health Gap Action Programme, available at <http://www.who.int/mental_health/mhgap/en/> (last visited October 24, 2013).

Green S. Davis C. , “Living Stigma: The Impact of Labeling, Stereotyping, Separation, Status Loss, and Discrimination in the Lives of Individuals with Disabilities and Their Families,”Sociological Inquiry 75, no. 2 (2005): 197–215.

For example, blind students may not be allowed to study math. “Human Rights of Persons with Disabilities”, available at <www.hrea.org/index.php?doc_id=416> (last visited October 21, 2013). Also see, “The Role of International Human Rights in National Mental Health Legislation,” available at <www.who.int/mental_health/policy/international_hr_in_national_mhlegislation.pdf> (last visited October 21, 2013).

Rosenthal E. Sundram C. J. , “International Human Rights in Mental Health Legislation,”New York Law School Journal International Comparative Law, 21, no. 2 (2002): 469–536.

Singh S. C. , “Legal and Ethical Rights of Persons with Mental Disability: An Overview,”Indian Socio-Legal Journal 32, nos. 1 & 2 (2006): 27–40. Also see, “Poised For Change First Country Report of India”, available at http://disabilitystudiesnalsar.org/CountryReportLatest.pdf> (last visited October 23, 2013).

For instance in Nikita Mehta case, despite knowing that abortion after 26 weeks of pregnancy will cause immense pain to the child in womb, the mother wanted to abort as she did not want a burdensome life of raising a baby with a heart defect; see Abortion and the Niketa Mehta case, available at <http://elekhni.com/2008/08/abortion-and-the-niketa-mehta-case/> (last visited October 23, 2013).

Mahesh C. , “Us and Them,” Combat Law 7, no. 1 (2008): 14–16.

Report on National Seminar, “Mentally III Women: Is Destitution the Only Answer?” New Delhi, March 8–9, 2007, available at <ncw.nic.in/> (last visited September 16, 2013).

Revathi R. , “Social Exclusion of Disabled and the Human Right Issues – Critique,” Madras Law Journal 246, no. 4 (2009): 37–43.

Bagenston S. R. , “Subordination, Stigma and Disability,” Virginia Law Review 86, no. 3 (2000): 397–534.

Quinn G. Degener T. , Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability,” United Nations Publications (2002), at 180–187.

Dixit V. K. , “Historical Foundation of Disability Discrimination in Classical Hindu Law,” Delhi Law Review 20, no. 1 (1998): 65–70.

See supra note 35.

Sharma R. , “Reaching Out to the last: Medical Rehabilitation of the Physically Disabled,” Administrator 41, no. 1 (1996): 142– 48.

Id.

Hillman A. A. , “Protecting Mental Disability Rights: A Success Story in the Inter-American Human Rights System,” Human Rights Brief 12, no. 3 (2005): 25–28.

Pasayat A. , “Disability - Right Based Approach,” Nyaya Deep 11, no. 2 (2010): 5–19, at 12.

Mohit A. Pillai M. , Rights of the Disabled (National Human Rights Commission, New Delhi, 2006): at 13.

Came into effect on May 22, 1987. There was several Acts before its passing – i.e., (a) The Lunacy (Supreme Court) Act, 1853 (Act 34 of 1858); (b) The Lunacy (District Courts) Act, 1858 (Act 35 of 1858); (c) The Indian Lunatic Asylums Act (Act 360 of 1858); (d) The Military Lunatics Act 1877 (Act 11 of 1877); (e) The Indian Lunatic Asylums (Amendment) Act, 1886 (Act 18 of 1886); and (f) The Indian Lunatic Asylums (Amendment) Act 1889 (Act 20 of 1889).

Mental Health Act of 1987, at Preamble.

Mental Health Act of 1987, at Chapter II & IV.

Id., at Chapter V.

Id., at Sec. 90 & 91.

(1995) Supp 4 SCC 505.

Shah A. P. , “Right Based Approach to Disability and Development,” Nyaya Kiran 3, no. 2 (2009): 5–8, at 7.

Id.

Draft of Mental Care Act, 2010, available at <www.prsindia.org/uploads/media/draft/Draft%20Mental%20Health%20Care%20Act,%202010.pdf> (last visited September 16, 2013).

Came into force September 1, 1992. It was amended in 2000. The following are various regulations that support the act: Rehabilitation Council of India Regulations (1997); Rehabilitation Council of India (Standards of Professional Conduct, Etiquette and Code of Ethics for Rehabilitation Professionals) Regulations (1998); Rehabilitation Council of India (Conditions of Service of the Member-Secretary, the Officers and Other Employees) Regulations (1998).

This is under the administrative control of the Ministry of Social Justice and Empowerment. For more information, see the website of the Rehabilitation Council of India at <www.rehabcouncil.nic.in> (last visited September 16, 2013).

Id.

Id.

Rehabilitation Council of India Act, 1992, Preamble.

Id., at Chapter II.

Id., at Sec. 14 & 15.

Id., at Sec. 17.

Id., at Sec. 21.

Came into effect on December 30, 1999. There are also The National Trust Rules (2000) and the National Trust Regulations (2001) that are to be read along with the act.

Note that disabilities under the National Trust Act are in fact developmental disabilities caused by insult to the brain and damage to the central nervous system.

The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act(1999), at Chapter III.

Id., at Chapter VI.

The conditions of eligibility, the order of eligible applicants, and the disqualification of applicants are contained in Regulations 11 to 14.

Id., at Chapter VIII.

Id., at Chapter II.

Id., at Chapter VII, Section 21.

Id., at Chapter VII, Section 22.

Came into effect on January 1, 1996. The Act is to be read along with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules (1996).

Article 249 read with Article 253 read with item 13 of list I (Union List) of the seventh schedule of the Indian Constitution empowers the Parliament to legislate on any subject falling on any list in order to fulfill its international obligations.

Nadagoudar S. V. , “Right of Disabled Persons: An Overview of Persons with Disabilities (Equal Opportunities, Protection of Rights, Full Participation) Act, 1995,” Indian Bar Review 27, no. 2 (2000 Apr-Jun): 173–180.

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, sec. 2(i).

Id., at sec. 2 (b); “blindness means total absence of sight or visual activity not exceeding 6/60 or 20/200 or limiting field of vision subtending 20 degree.”

Low vision means a person suffering from impairment of visual functioning even after treatment.

Id., at sec. 2 (n); “leprosy cured person means any person who has been cured of leprosy but is suffering from-i. loss of sensation in hands or feet as well as loss of sensation and paresis in the eye and eye-lid but with no manifest deformity; ii. manifest deformity and paresis but having sufficient mobility in their hands and feet to enable them to engage in normal economic activity; iii. extreme physical deformity as well as advanced age which prevents him from undertaking any gainful occupation, and the expression leprosy cured shall be construed accordingly.”

Id., at sec. 2 (l); “Hearing Impairment means loss of sixty decibels of frequency.”

Id. at sec. 2 (o); “Locomotor Disabilities mean disabilities of bones, joints or muscles restricting movements.”

Id., at sec. 2 (r); “Mental Retardation means arrested or incomplete development of mind.”

Id., at sec. 2 (q); “Mental Illness means mental disorder. Also see The Mental Health Act, 1987 sec. 2 (l).”

Jain S. , “Effectiveness of the Indian Disability Law to Enforce Human Rights of Persons with Disabilities,” All India Reportor 91, no. 1 (2004 Apr): J119–J127.

Sikri A. K. , “Human Rights of the Disabled: World in a Slow Motion,” Journal of Constitutional and Parliamentary Studies 38, nos. 1–4 (2004): 1–50 at 32.

Covered under the scope of disability by the World Health Organization in the international categorization.

“Emotional Disability,” available at <www.maessu.org/Emotional%20disability.htm> (last visited September 16, 2013).

Hulliung M. , Montesquieu and the Old Regime (Berkeley/Los Angeles: University of California Press, California, 1976): At 124.

Elliott R. Utyasheva L. , “HIV, Disability and Discrimination: Making the Links in International and Domestic Human Rights Law,” Journal of the International AIDS Society 12, no. 1 (2009): 29–38.

Clause 2 (y), the Right of Person with Disabilities Bill, 2012.

Subrahmanyam B. V. , Human Disability Evaluation: Personal Injuries: Principles, Practice & Law (Allahabad: Law Publishers [India] Pvt. Ltd., 2007). Also see, “Concept and Extent of Disability in India,” available at <www.bpaindia.org/CBR%20M%20chapt-1.pdf> (last visited September 16, 2013).

Ghai A. , (Dis)Embodied Form: Issues of Disabled Women (New Delhi: Shakti Books, 2003): At 18.

Id.

The Persons with Disabilities Rules (1996) have been amended in 2009 which inter-alia prescribed a simplified and decentralized procedure for issuance of Disability Certificate. In the amended rules, instead of the medical board, medical authorities has been prescribed for issue of medical certificates. The medical authorities have to be notified by the appropriate governments.

These positive obligations need to be structured in order to differentiate between the responses to various kinds of disabilities;

Balakrishnan K. G. , “Seminar on Right Based Approach to Disability and Development in the Light of the United Nations Convention,” Nyaya Kiran 3, no. 2 (2009): 1–4.

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, (1995), at Sec. 39.

Id., at Sec. 43.

Id., at Sec. 3 and 9, respectively.

“Policies and Institutions for Persons with Disabilities in India” available at <http://siteresources.worldbank.org/INDIAEXTN/Resources/295583–1171456325808/Chapter07.pdf> (last visited October 22, 2013).

See supra note 86, at Sec. 44.

Javed Abidi v. Union of India (1999) 1 SCC 467. In this case the court rejecting financial incapacity, ordered concessions for people with 80 percent locomotor disabilities that was being given by Air India to blind as they also suffer a lot of difficulty.

Clause 2 (y).

Clause 2 (e).

Id., at Clause 2 (hh).

Dhanda A. , “According Reality to Disability Rights: Role of the Judiciary,” in Verma S. K. Srivastava S. C. ed., Rights of Persons with Disabilities (New Delhi: Indian Law Institute, 2002): At 90–92.

This is a fundamental right embedded within the right to life and personal liberty as expressed in Unnikrishnan v. Union of India (1993) 1 SCC 645 and further confirmed in Mohini Jain v. State of Karnataka (1992) 3 SCC 666.

AIR 1971 SC 1762.

AIR 2000 All 258.

93 (2001) DLT 813.

AIR 2008 Delhi 97.

AIR 2010 SC 235.

As also envisaged under the PWD Act.

1995 Supp (4) SCC 505. In the case of Sheela Barse v. Union of India, the Supreme Court held that mentally ill non-criminal persons cannot be kept in jail and opined that keeping the non-criminals in jail along with other convicts is unconstitutiona1. It also directed that the function of getting mentally ill persons examined should vest with judicial magistrates and who upon the advice of mental health psychiatrists should assign the mentally ill persons to the nearest place of treatment and care.

See supra note 27.

(2006) 4 MLJ 1669.

7 (2008) 5 MLJ 787.

150 (2008) DLT 209.

(2010) 3 SCC 603.

As also clarified by the preamble of the Convention on the Rights of Persons with Disabilities, 2006.

Mandal S. , “Adjudicating Disability: Some Emerging Questions,” Economic and Political Weekly 45, no. 49 (2010): 22–25.

Disability is not a fixed concept and the giving a list means making the definition too narrow and can defeat the non-discrimination provision.

Feldblum C. , “Definition of Disability under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do about It?” Berkeley Journal of Employment and Labor Law 21, no. 1 (2000): 91–99.

On March 31, 2010, the Supreme Court of India, considering the cases of Dalco Engineering Private Ltd v. Shree Satish Prabhakar Padhye & Ors, AIR 2010 SC 1576, held that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 was not applicable to private companies or proprietary concerns or companies other than government companies excluded from the word “establishments.” In this case S. P. Padhye was employed as a telephone operator by the appellant for more than two decades and because of advrse effect of his work he had become deaf (85% reduction in ability to hear), but the company refused to provide him any other work.

Das A. , “Government Polices and Programme for Protection of Persons with Disability,” in Verma S. K. Srivastava S. C. ed., Rights of Persons with Disabilities (New Delhi: Indian Law Institute, 2002): At 68–71.

Inspired from Justice Arijit Pasayat's suggestion.

To some extent influenced from Convention on the Rights of Persons with Disabilities, 2006.

This right to dignity must also be protected at the time of medical examination and treatment as suggested by the Law Commission of India in the 135th Report on Women in Custody (1989), at 7–9.

Note that the Indian Supreme Court in Vishaka v. U.O.I., (1997) 6 SCC 241, has already emphasized the need for enforcing right of life and dignity horizontally to ensure safe working places and protection from sexual harassment. For more information, see Kothari J. , “UN Convention on Rights of Persons with Disabilities: Engine for Law Reform in India,” Economic and Political Weekly 45, no. 18 (2010): 65–72.