By Bharti Garg
The discussion surrounding the dictionary definition of the word “disability”—the absence of competent physical, intelligent, or moral power, means, fitness, and the like—suggests it would be wide enough to encompass the entire humankind, given the old adage that “no one is perfect” and each person possesses some variant of a limitation. However, when confined to legal purposes, the state recognizes long-term physical, mental, and intellectual impairments that presumably put a person at a more disadvantageous position than others in following personal, economic, and social pursuits (e.g., disabilities related to speech, sight, movement, mental retardation, and mental illness). Because of their uncommon challenges and equally rare qualities, such individuals are more appropriately addressed as differently-abled or specially-abled persons.
Article 14 of the Constitution promises equality to all, and Article 21 guarantees the dignity of every individual. For the realization of these rights, differently-abled persons are conferred with additional legal protection. Similarly, Article 46 directs the state to ensure the promotion, with special care, of the economic and educational interests of weaker sections.
Legislative and Welfare Interventions
Comprehensive legislation has been introduced in the field, yet access to public services for persons with disabilities remains hugely hampered, employment rates languish at low ebbs, and women and children are subject to severe crimes. Furthermore, society often fails to give such individuals a sense of belonging, appreciate their wherewithal and independence, or support them within their own families.
- Education Sector: The appropriate government is mandated to conduct surveys of school-going children every five years to identify and address the special requirements of children with disabilities. Teachers must be trained to communicate effectively with these children. Individuals aged 6 to 18 years with benchmark disabilities now have the right to free education. “Persons with Benchmark Disabilities” refer to those certified as having at least 40% of a disability. An additional reservation of a minimum of 5% has been promised in respect of Government institutions of higher education and higher education institutions receiving Government aid. Notable government initiatives include launching the “Atlas for Visually Impaired (India)” in English Braille and releasing an Indian sign language dictionary.
- Employment and Reservations: The employment rate among persons with disabilities is less than half that of their non-disabled counterparts. Employed individuals also face challenges such as difficult access to facilities, distrust from employers and colleagues, and differential pay. To grapple with these barriers in the government sector, the provision of reservation was increased from 3% to 4% under the new Act. Section 35 of the Act obliges the government to provide incentives to private sector employers to ensure that at least 5% of their workforce comprises persons with benchmark disabilities. Furthermore, Section 20 reaffirms that no government establishment shall discriminate against any person with disability in employment matters (though a proviso enables exemptions based on the ‘type of work’).
- Accessibility and Public Facilities: Schemes have been adumbrated under the Act to provide livelihoods to women, ensure unhindered access to sanitation and safe drinking water, offer disability pensions, retrofit public transportation for smoother access, and create National and State Funds for financial support. Special courts have also been proposed to expeditiously try cases involving violations of the rights of persons with disabilities.
- Mental Health: A notable legislative development in mental health is the Mental Health Care Act, 2017 (which repealed the 1987 Act), receiving the assent of the President on April 7, 2017, to propel the security and dignity of people afflicted with mental health problems.
- Sports and Electoral Participation: Provisions exist to bolster participation in sporting activities and expand training infrastructure. (For instance, the Indian T20 Blind Cricket World Cup Team successfully defended their world champions crown by beating Pakistan by 9 wickets in the 2017 finals). Additionally, the statute joins the Election Commission of India and State Election Commissions to ensure that access to polling stations becomes more congenial, making participation in the electoral process meaningful.
- Offences and Penalties: Section 92 enhances punishments for certain offences committed against persons with disabilities (notwithstanding any other Central or State Act). Whoever intentionally insults or intimidates with intent to humiliate, assaults or uses force to outrage modesty, voluntarily denies food or fluids, sexually exploits a person under their control, damages supporting devices, or performs unauthorized termination of medical pregnancies on a woman with disability without consent shall be punishable with imprisonment ranging from six months to five years, along with a fine.
Criticisms and Areas for Improvement
Despite progress, certain provisions have found disfavour with disability rights activists:
- Section 3(3) Loopholes: The provision states that no person with disability shall be discriminated against on the ground of disability unless the impugned act or omission is appropriate to achieve a legitimate aim. Activists note this leaves an indeterminate scope for authorities to dilute the object of the statute in the absence of specific guidelines.
- Role of Families: Statutes give insufficient attention to the role of families, whose homes are often where worries begin when kith and kin dissuade individuals from leading normal lives.
- Wage Discrimination and Legal Costs: The statute lacks explicit notice regarding wage discrimination. Furthermore, physical access must be accompanied by inexpensive access to courts and legal remedies, especially given the unavoidable costs of medical treatment and lower-than-average earnings.
Prominent Examples and Judicial Precedent
Avenues exist where exclusive talents can be harnessed—such as the College of Fragrance for the Visually Impaired in Mumbai, which trains individuals to utilize superior olfactory abilities in the perfume industry. Figures like Stephen Hawking, blind cricket captain Shekhar Naik, amputee dancer Sudha Chandran, and Arunima Sinha (the first female amputee to climb Mount Everest) demonstrate remarkable grit.
In Ranjit Kumar Rajak v. State Bank of India, the Bombay High Court considered whether a fully qualified person could be denied employment due to the financial burden of their medical condition. The court imported the concept of “reasonable accommodation at the workplace” as ensconced in the UN Convention, ruling that while financial burden on the institution is a factor, the state bears a duty to ensure easy access and adaptation in the labor market subject to financial limits.
Ultimately, undermining the quality of existence of differently-abled individuals through ridicule, exaggerated vulnerability, or pity is a gross impiety. Society must move beyond superficial understandings of an ideal physical body, respect their autonomy, judge them by their abilities rather than disabilities, and work hand in glove to fulfill constitutional goals through voluntary embracement rather than mere legal duress.