SHORT-TERM INTERNSHIP PROGRAMME

JULY 2019
(Phase - II)

(17.07.2019 To 31.07.2019)

GROUP PROJECT - 3

SUBMITTED TO – SUBMITTED BY –

Shri. Pankaj Kumar Kaien Amol Rastogi

Ansh Kesharwani
Assistant
Kalpana
Senior Research Officer
[Training] Unit, Paras Ganguly

Pushkin Tandon
National Human Rights
Commission. Vaishali Rawal
Human Rights of Persons with Disability
especially in context of their rights to
liberty and security.

CONTENTS

1. Human Rights of Persons with Disability –

History & Origin.

2. Convention on the Rights of Persons with

Disabilities and its Optional Protocol.

3. Human Rights of Persons with Disabilities

& Constitution of India in context of their
rights to liberty and Security.

4. Statistical Data – India v. The World.

5. Contemporary Developments.

6. Cases dealt by Judiciary.

 A Note of Gratitude

A heartfelt and sincere thanks to Mr. Pankaj Kumar Kaien and Mr. Aavesh, who
helped us and guided us throughout the course of this internship.

Without their dedicated guidance this internship and this project wouldn’t
have been possible.

A special thanks to the library staff who gave us the space to prepare this
project and also gave us the access to a number of books which helped us to
complete this project.

A special note of gratitude to the Hon’ble Commission and its Members for
giving us this opportunity to intern with the National Human Rights
Commission.

Last but not the least, a special note of gratitude to all our speakers who
motivated us through their lectures.

Their lectures made us aware, informed and surely a better citizen.

 Human Rights of Persons with Disability
– History & Origin.

• Lets begin with defining what disability is?

According to many definitions, a disability is an impairment that may

be cognitive, developmental, intellectual, mental, physical, sensory, or some
combination of these. Other definitions describe disability as the societal
disadvantage arising from such impairments. Disability substantially affects a
person's life activities and may be present from birth or occur during a person's
lifetime.
Disabilities is an umbrella term, covering impairments, activity limitations, and
participation restrictions. An impairment is a problem in body function or structure; an
activity limitation is a difficulty encountered by an individual in executing a task or
action; while a participation restriction is a problem experienced by an individual in
involvement in life situations. Disability is thus not just a health problem. It is a
complex phenomenon, reflecting the interaction between features of a person’s body
and features of the society in which he or she lives.

— World Health Organization.

Disability is a contested concept, with different meanings in different communities.

It may be used to refer to physical or mental attributes that some institutions,
particularly medicine, view as needing to be fixed (the medical model). It may refer to
limitations imposed on people by the constraints of an ableist society (the social
model). Or the term may serve to refer to the identity of disabled
people. Physiological functional capacity (PFC) is a related term that describes an
individual's performance level. It gauges one's ability to perform the physical tasks of
daily life and the ease with which these tasks are performed. PFC declines with
advancing age to result in frailty, cognitive disorders or physical disorders, all of
which may lead to labelling individuals as disabled.
The Convention on the Rights of Persons with Disabilities (“CRPD”) does not provide
a definition of disability, but instead provides a broad description intended to be
widely inclusive.

The CRPD establishes in Article 1 that ‘persons with disabilities’ includes ‘those who
have long-term physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective participation in
society on an equal basis with others’.

This description of disability shifts the focus toward the social and environmental
barriers that hinder an individual’s participation in society rather than on the
individual’s impairments.

This approach to disability is called the “social model” of disability.

The “social model” recognizes that the exclusion of a person with a disability from
society is the result of a barrier or hindrance to the individual’s ability to participate
fully, rather than the result of the individual’s inherent inability to participate.

For example, if a person cannot access a health clinic because of his/her mobility
impairment, it is not his/her inability to walk which is the issue, but rather the clinic’s
lack of accessibility.

Global prevalence of disability

Persons with disabilities constitute a significant portion of the population worldwide,

yet they remain one of the most marginalized and vulnerable populations.

It is difficult to obtain accurate data on the number of people with disabilities

worldwide because approaches to measuring disability vary across countries and
according to the purpose and application of the data.

However, the World Health Survey—a face-to-face household survey conducted in

2002-2004 in 59 countries—estimated that about 650 million adults had a disability,
with about 92 million of those adults experiencing very significant disabilities.

The survey also demonstrated that the occurrence of disability is higher in low-
income countries where about 18% of the population has a disability, in comparison
to high income countries where about 11.8% of the population has a disability.
• What do you understand by Human Rights?
Human rights are moral principles or norms that describe certain standards
of human behaviour and are regularly protected as natural and legal
rights in municipal and international law.

They are commonly understood as inalienable, fundamental rights "to which a

person is inherently entitled simply because she or he is a human being" and
which are "inherent in all human beings",regardless of their nation, location,
language, religion, ethnic origin, or any other status.

They are applicable everywhere and at every time in the sense of

being universal, and they are egalitarian in the sense of being the same for
everyone.

They are regarded as requiring empathy and the rule of law and imposing an
obligation on persons to respect the human rights of others, and it is generally
considered that they should not be taken away except as a result of due
process based on specific circumstances; for example, human rights may
include freedom from unlawful imprisonment, torture, and execution.

The doctrine of human rights has been highly influential within international
law and global and regional institutions.
Actions by states and non-governmental organisations form a basis of public
policy worldwide. The idea of human rights suggests that "if the public
discourse of peacetime global society can be said to have a common moral
language, it is that of human rights".

The strong claims made by the doctrine of human rights continue to provoke
considerable scepticism and debates about the content, nature and
justifications of human rights to this day.

The precise meaning of the term right is controversial and is the subject of
continued philosophical debate; while there is consensus that human rights
encompasses a wide variety of rights such as the right to a fair trial, protection
against enslavement, prohibition of genocide, free speech or a right to
education (including the right to comprehensive sexuality education, among
others), there is disagreement about which of these particular rights should be
included within the general framework of human rights; some thinkers suggest
that human rights should be a minimum requirement to avoid the worst-case
abuses, while others see it as a higher standard.

In the light of emerging neurotechnologies, four new rights were identified: the
right to cognitive liberty, the right to mental privacy, the right to mental
integrity, and the right to psychological continuity.

Many of the basic ideas that animated the human rights movement developed
in the aftermath of the Second World War and the events of the
Holocaust, culminating in the adoption of the Universal Declaration of Human
Rights in Paris by the United Nations General Assembly in 1948.
 Ancient peoples did not have the same modern-day conception of universal
human rights.

The true forerunner of human rights discourse was the concept of natural
rights which appeared as part of the medieval natural law tradition that
became prominent during the European Enlightenment with such
philosophers as John Locke, Francis Hutcheson and Jean-Jacques
Burlamaquiand which featured prominently in the political discourse of
the American Revolution and the French Revolution.

From this foundation, the modern human rights arguments emerged over the
latter half of the 20th century, possibly as a reaction to slavery, torture,
genocide and war crimes, as a realisation of inherent human vulnerability and
as being a precondition for the possibility of a just society.

• Rights of Disabled Persons

Disabilities can be physical in nature, cognitive, behavioral, or even emotional.

All human beings are born free and equal in dignity and rights.

People with disabilities all over the world experience human rights violations,
stigma and discrimination.

To have a disability means that one has fundamental difficulty accomplishing

things that others take for granted.

There are many social factors that can affect whether or not individuals with
disabilities are included or excluded from participation on various activities,
which in tur can affect development or esteem.

Disability is thus just not a health problem.

It is a complex phenomenon, reflecting the interaction between features of a

person’s body and features of the society in which he or she lives.

International Human Rights: UN Charter:

The charter of the United Nations of 1945 is the foundational treaty of the United
Nations, an intergovernmental organization.

Article 55 says that with a view to the creation of conditions of stability and well being
which are necessary for the peaceful and friendly relations among nations based on
respect for the principle of equal rights and self determination of people's, the United
Nations s shall promote:

a. Higher standard of living , full employment and conditions of economic and social
progress and development;
b. solutions of international economic, social, health, and related problems and
international cultural and educational cooperation

c. Universal respect for, and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language or religion.

Declaration On The Rights of Disabled Persons:

The Declaration of the Rights of Disabled persons was a declaration of the General
Assembly of the United Nations made on 9 Dec 1975. It is the 3447th resolution
made by by the Assembly.

The disabled person shall enjoy all rights contained in this declaration without
distinction or discrimination.

The disabled persons have inherent rights to respect for their human dignity and
irrespective of the origin, nature and seriousness of their handicaps and disabilities,
have same Fundamental Rights.

Disabled persons have the same civil and political rights as other human beings.

Disabled persons are entitled to the measures designed to enable them to become
as self-reliant as possible.

Disabled persons have the right to economic and social security, including the right,
according to their capabilities, to secure and retain employment or to engage in a
useful, productive and remunerative occupation and to join trade unions.

Disabled persons have the right to live with their families or with foster parents and to
participate in all social, creative or recreational activities.

Disabled persons shall be protected against all exploitation and treatment of a

discriminatory, abusive or degrading nature.

Provisions of the Declaration include:

1) The definition of " disabled person" as anyone who cannot ensure the necessities
of a normal individual and or social life as a result of deficiency in physical or mental
capabilities.

2) A non discrimination clause applying the Rights to all disabled persons regardless
of " race , colour, sex, language, religion, political or other opinions , national or
social origin , state of wealth, birth " or other situation.

3) Anna statement regarding disabled persons right to respect for their human
dignity.
The Convention On The Rights of Persons With Disabilities:

The Convention on the Rights of Disabilities is an international human rights treaty of

the United Nations intended to protect the Rights and dignity of persons with
disabilities. Parties to the convention are required to promote , protect and ensure
the full enjoyment of human rights by persons with disabilities and ensure that they
enjoy full equality under the law.

In the charter of the United Nations it is proclaimed that the inherent dignity and
worth and the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world.

Similarly, the United Nations, in the universal declaration of human rights and in the
International covenants on Economic, Social and cultural rights.

It is supposed that the convention would make a significant contribution to redressing

the profound social disadvantage of persons with disabilities and promote their
participation in the civil, political, economic, and social and cultural spheres with
equal opportunities, in both developing and developed countries.

The convention on the Rights of Persons with disabilities deals with matters such as,
general principles on the basis of which the rights of the disabled persons are to be
promoted and protected, the obligations that have been undertaken by the State
parties to adopt measures.

The protocol has been added to the present convention authorizing the Committee
on the Peron with Disabilities to receive and consider communications from or on
behalf of individuals or groups of individuals, who claim to be victims of a violation by
a State party of the provisions of the present convention.

Constitutional Rights of Disabled Persons:

1. Prohibition of Discrimination:
Article 15 is a manifestation of “Right to Equality” under article 14, as it enshrines a
specific dimension of the principles of equality relating to discrimination by state or
various grounds.
Under article 15 the protection extends only to citizens, unlike article 14 which
protects ‘any person’.
Thus in application article 15 protects from discriminatory state activities but the
ambit of article 15 is narrower than that of article 14.
Article 15 of the Indian constitution deals with “prohibition of discrimination” on the
grounds of religion, race, caste, sex or place of birth.

It runs as follows:
Article 15(2) says, no no citizen shall on the grounds only of religion, race, caste,
sex, place of birth or any of them, be subjected to any disabilities liability restriction
or condition with regard to :
(a) Access to shops, public restaurants, hotels and places of public entertainment; or

(b) The use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of the state funds dedicated to the use of the general
public.

Equity In Social, Economics And Cultural Rights:

Article 25 of the CRDP recognizes the “right of a person with disabilities to

education.
With a view to realizing this right without discrimination and on the basis of equal
opportunity, state parties shall ensure an inclusive education system at all levels and
lifelong learning.”
They considered constitution to grant education to children with disabilities if they
explicitly guarantee the right to education, the right to free education, or the right to
compulsory education to children with disabilities or prohibit discrimination in
education on the basis of disability.
Globally only 28% of the countries provide some type of constitutional guarantee of
educational rights or the children with disabilities.

3. Right To Work:
Article 27 of the CRDP instructs states to “recognizes the right of persons with
disabilities to work, on an equal basis with others; this includes the rights to
opportunity to gain a living by work freely chosen or accepted in a labour market and
work environment that is open, inclusive and accessible to persons with disabilities.

Right To Liberty:
Article 14 of the CRPD instructs state parties to guarantee people with disabilities the
right to liberty and security of person. We considered the right to liberty to be
guaranteed to persons with disabilities if they were explicitly granted the right to
freedom or liberty. Globally, only 9% of the constitution explicitly guarantee the right
to liberty to persons with disabilities. However 19% of the constitution specifies that
the right to liberty can be denied to persons with the mental health condition.

Right To Freedom of Expression:

In article 21, the CRPD states that to “take all appropriate measures to ensure that
persons with disabilities can exercise the right to freedom of expression and opinion
include the freedom to seek, receive and impart information and ideas on an equal
basis with others and through all forms of communications of their choice.”

Rights of Disabled Persons In India:

Persons with disabilities are one of the most neglected sections of our nation. This is
due to the sheer indifference of the society which subjects such people to
disapproval and antipathy. Such people have several rights under various Indian
laws as well as UN conventions that are followed in India. Under section 2(i) of
Persons with Disabilities Act, 1995,"disability" includes blindness, low vision, leprosy
cured, hearing impairment, locomotor disability, mental retardation and mental
illness.
Disability Certificate: It is the most basic document that a disabled person should
possess in order to avail certain benefits and concessions. The State Medical
Boards established under the State governments can issue a disability certificate to
any person with more than 40% disability.

Disability Pension: People who are above 18 years of age, suffering with more than
80% disability and are living below the poverty line are entitled to the disability
pension under the Indira Gandhi National Disability Pension Scheme. Various NGOs
are dedicated to this because i.e. they help such persons with disabilities to get their
disability pension.
Employment: In government jobs, 3% of the seats are reserved for persons with
disabilities.

Income Tax Concession: Under sections 80DD and 80U of Income Tax Act, 1961,
persons with disabilities are also entitled to certain income tax concessions.

• Person With Disabilities Act 1995

The Persons with Disabilities Act, 1995 had come into enforcement on Feb 7,
1996. It is a significant step which ensures equal opportunities for the people
with disabilities and their full participation in the nation building.
The Act provides for both the preventive and promotional aspects of
rehabilitation like education , employment and vocational training, reservation
, research and manpower development and rehabilitation of persons with
disability , unemployment allowance for the disabled persons.

Main Provisions of the Act:

1) Prevention and Early Detection of Disabilities

2) Education
3) Employment
4) Non discrimination
5) Social Security
6 ) Research and manpower development
7) Grievance Redress In Jared Abiding v. Union of India the supreme Court
bearing in mind the discomfort and harassment suffering by a person of
locomotor so disability would face while travelling by train particularly to far off
places issued directions to the Indian Airlines to grant persons suffering from
locomotor so disability to the extent of 80%.

In National Federation of blind v . UPSC The supreme Court held that ,

UPSC may be directed to allow blind persons for appearing the examinations
for Indian administrative and allied Services.

In Government of NCT of Delhi v. Bharath Lalmeena The Delhi High court

held that people with disabilities can be appointed as physical education
teachers provided they have passed the qualifying examination undergone
the requisite training.
Policies In India:

National policy for persons with disabilities, 2006. The Government of India
formulated the national Policy for persons with disabilities in Feb 2006 which
deals with the physical , educational and economic rehabilitation of persons
with disabilities.

The National Policy recognise the Persons with Disabilities are valuable
human resources for the country and seeks to create an environment that
provides them equal opportunities, protection of their rights and full
participation in society .

Some of the aspects which the policy focuses on are:

1) Prevention of Disabilities

2) Rehabilitation Measures

3) Women with disabilities

4) Children with disabilities

Conclusion

Disability refers to the disadvantage or restrictions of activity caused by the

way society is organised which takes little or no account if people who have
physical, sensory or mental impairments.

Disability is an unfortunate part of human life which can affect not only the
natural way of a living but also despair component strength and power.

The Government needs to launch more social security schemes for disabled
sections and generate more employment opportunities for them.

Several schemes and benefits conference on the disabled persons has come
up as relief and has successfully served to provide equal opportunities to the
disabled section.
 Convention on the Rights of Persons with Disabilities
and its Optional Protocol

Outline of Presentation

✓ Convention timeline ◼ What is the Convention?

✓ Paradigm shift
✓ Definition of disability
✓ General principles, articles and rights in the Convention
✓ International cooperation
✓ Accessibility of organizations and their activities
✓ Monitoring
✓ Implementation within the United Nations
✓ Special Rapporteur
✓ Conclusion

Convention Timeline

✓ Adoption by the United Nations General

Assembly - 13 December 2006

✓ Opened for signature - 30 March 2007

✓ Entry into force – 3 May 2008

✓ First Conference of States Parties – 31 October &

3 November 2008

✓ Second Conference of States Parties – 2 – 4

September 2009

✓ First session of the Committee on the Rights of Persons with Disabilities – 23-
27 February 2008
 Relationship to other disability texts

✓ The Convention builds upon, and works in synergy with previous international texts
related to persons with disabilities:
 Standard Rules on the Equalization of
Opportunities for Persons with Disabilities - 1994
(not a legally binding treaty)
 World Programme of Action on Disabled Persons - 1982 (not a legally binding treaty)

Why a Convention?

✓ A response to an overlooked development challenge: approximately 10% of the

world’s population are persons with disabilities (over 650 million persons).
Approximately 80% of whom live in developing countries

✓ A response to the fact that although pre-existing human rights conventions offer
considerable potential to promote and protect the rights of persons with disabilities,
this potential was not being tapped. Persons with disabilities continued being denied
their human rights and were kept on the margins of society in all parts
of the world. The Convention sets out the legal obligations on States to promote and
protect the rights of persons with disabilities. It does not create new rights.

Purpose of Convention (Article 1)

To promote, protect and ensure the full and equal enjoyment of all human rights and
fundamental freedoms by all persons with disabilities, and to promote respect for their
inherent dignity.

A Paradigm Shift

✓ The Convention marks a ‘paradigm shift’ in attitudes and approaches to

persons with disabilities.
✓ Persons with disabilities are not viewed as "objects" of charity, medical
treatment and social protection; rather as "subjects" with rights, who are capable
of claiming those rights and making decisions for their lives based on their free
and informed consent as well as being active members of society.
 ✓ The Convention gives universal recognition to the dignity of persons with
disabilities.

What is Disability?

✓ The Convention does not explicitly define disability ◼ Preamble of

Convention states:

 ‘Disability is an evolvingconcept, and that disability results from the

interactionbetween persons with impairments and attitudinal
and environmental barriers that hinders full and effective
participation in society on an equal basis with others’ ◼ Article 1 of
the Convention states:

 ‘Persons with disabilities includethose who have long-term physical,

mental, intellectual or sensory impairments which in interaction with various
barriers may hinder their full and effective participation in society on an
equal basis with others’.

What is Disability?

✓ Disability results from an interaction between a noninclusive society

and individuals:

 Person using a wheelchair might have difficulties gaining employment

not because of the wheelchair, but because there are environmental
barriers such as inaccessible buses or staircases which impede access

 Person with extreme near-sightedness who does not have access to

corrective lenses may not be able to perform daily tasks. This same person
with prescription eyeglasses would be able to perform all tasks without
problems.
Convention Terminology

✓ YES:
 ‘persons with disabilities’

✓ NO:
 ‘handicapped’
 ‘physically or mentally challenged’

✓ Note: Preferences for terminology among persons with disabilities and

among geographic regions may vary. The individual wishes of persons with
disabilities should be respected as much as possible.

General Principles (Article 3)

✓ Respect for inherent dignity, individual autonomy including the freedom

to make one’s own choices, and independence of persons
✓ Non-discrimination
✓ Full and effective participation and inclusion in society
✓ Respect for difference and acceptance of persons with disabilities as
part of human diversity and humanity
✓ Equality of opportunity
✓ Accessibility
✓ Equality between men and women
✓ Respect for the evolving capacities of children with disabilities and
respect for the right of children with disabilities to preserve their identities

General Principles:
Participation and Inclusion

✓ Participation is important to correctly identify specific needs, and to

empower the individual

✓ Full and effective participation and inclusion in society is recognized in

the Convention as:
 A general principle (article 3)
 A general obligation (article 4)
  A right (articles 29 and 30)

General Principles:
Non-discrimination

✓ Fundamental principle of international human rights law

✓ Includes direct and indirect discrimination
✓ reasonable accommodation must be made for persons with
disabilities

✓ reasonable accommodation: ‘necessary and appropriate modification

and adjustments not imposing a disproportionate or undue burden, where
needed in a particular case, to ensure to persons with disabilities the enjoyment
or exercise on an equal basis with others of all human rights and fundamental
freedoms’

General Principles:
Accessibility

◼ Important as a means to empowerment and inclusion

◼ Both a general principle and a stand-alone article (article
9) ◼ Access must be ensured to:
 Justice (article 13)
 Living independently and being included in the community (article 19)
 Information and communication services (article 21)
 Education (article 24)
 Health (article 25)
 Habilitation and rehabilitation (article 26)
 Work and employment (article 27) - human resource policies and
practices
 Adequate standard of living and social protection (article 28)
 Participation in political and social life (article 29)
 Participation in cultural life, recreation, leisure and sport (article 30
Rights in the Convention

✓ Equality before the law without discrimination (article 5)

✓ Right to life, liberty and security of the person (articles 10 & 14)
✓ Equal recognition before the law and legal capacity (article 12)
✓ Freedom from torture (article 15)
✓ Freedom from exploitation, violence and abuse (article 16)
✓ Right to respect physical and mental integrity (article 17)
✓ Freedom of movement and nationality (article 18)
✓ Right to live in the community (article 19)
✓ Freedom of expression and opinion (article 21)
✓ Respect for privacy (article 22)
✓ Respect for home and the family (article 23)
✓ Right to education (article 24)
✓ Right to health (article 25)
✓ Right to work (article 27)
✓ Right to adequate standard of living (article 28)
✓ Right to participate in political and public life (article 29)
✓ Right to participation in cultural life (article 3)
International Cooperation (Article 32)

✓ International cooperation, including international development

programmes should be inclusive of, and accessible to, persons with disabilities

✓ Focus is on mainstreaming disability into all development

activities, though disability specific measures may be necessary to
‘accelerate or achieve de facto equality of persons with disabilities.
(Article 5)
✓ Millennium Development Goals will not be achieved if persons
with disabilities are not included

Protecting and Promoting Human Rights with Limited Resources

✓ International human rights law recognizes the limitations on resources

✓ Limitations on resources is not an excuse to delay implementation
✓ Limited resources have to be prioritized according to reasonable and
objective criteria and funding must be proportional
◼ Strategies for effective use of limited resources:
 Target low-cost programmes
 Target people in the most marginalized situations
 Be non-discriminatory
 Draw on international cooperation
 Include persons with disabilities in all stages

Mainstreaming Disability in Existing Processes

✓ Article 4.1.(c): ‘States Parties undertake to take into account the

protection and promotion of the human rights of persons with disabilities in all
policies and programmes’

✓ Mainstreaming of disability issues according to the Convention in:

 Work of existing human rights treaty bodies
 Human Rights Council
 Millennium Development Goals (MDG) - national and international
strategies
 Common Country Assessment (CCA)/United Nations Development
Assistance Framework (UNDAF)
 Poverty Reduction Strategy Papers (PRSP)
 The development activities of international donors and NGOs
 Census data
 Sectoral and cross-sectoral policies
 Programmes and policies for women (article 6) and children (article 7)
❑ and others...
No-gap Policy

✓ No entity can achieve the goal of equality for persons with disabilities on
its own.
✓ An interconnected network of actors is required to reach this goal.
✓ Example: In order for a person with disabilities using a wheelchair to
access decent work, the person needs to be able: ❑ to physically move in and
out of his or her home
 to access the public space and transportation
 to access the work facilities (both the built environment and its
information and communications systems)
✓ Different entities need to ensure that their respective spheres of
responsibility provide the necessary opportunities and access to persons with
disabilities, on an equal basis with others.
✓ If any one element of the network fails in this obligation, persons are not
able to reap the benefit from the other elements.

How accessible are the activities of my organization?

✓ Every aspect of an organization’s activities must be analyzed to ensure

accessibility and inclusion. A few examples:
 Do we require our partners/grantees to have policies and practices in
place to ensure inclusion of persons with disabilities?
 Do we collect data on the number of persons with disabilities which
benefit from our development activities?
 Do we design our development projects and programmes to ensure that
persons with disabilities can participate and benefit?
 And many others…

How accessible is my organization?

✓ A thorough analysis of every aspect of an organization must be is

necessary to ensure accessibility and inclusion. Just a few examples:
 Are our human resource policies and practices accessible?
✓ Do we have policies ensuring that the recruitment process is accessible
to persons with different disabilities?
✓ Do we have policies and resources which ensure that provision of
reasonable accommodation, allowing persons with disabilities to work in our
organization?
 Are our information and communication systems accessible?
✓ Is our website accessible?
 ✓ Is sign language interpretation available?
✓ Are documents available in Braille?
❑ Are our physical facilities accessible?
◼ Are our buildings, office spaces, facilities accessible?

Convention Bodies

✓ Conference of States Parties

 meets in order to consider any matter with regard to the
implementation of the Convention (biennially or upon decision by the
Conference)

✓ Committee on the Rights of Persons with Disabilities

 a body of independent experts serving in their personal capacity
 tasked with reviewing States’ implementation of the Convention.
 initially comprises 12 independent experts; rises to 18 members after
an additional 60 ratifications or accessions to the Convention.

Optional Protocol

◼ Creates additional functions for the Committee on the Rights of Persons with
Disabilities:
 Individual communications: Committee considers communications
from individuals or group of individuals claiming to be victims of a violation
of the provisions of the Convention by a State Party of the party to the
Protocol
 Inquiries: Committee member may conduct an inquiry on a State
Party, following information received indicating grave or systemic
violations of the Convention by State Party

National Monitoring and Implementation

✓ National Human Rights Institutions (NHRIs) play important role

✓ National focal points & coordination mechanisms within governments

 Multi-sectoral involvement of all government ministries
  Outreach to other national stakeholders (civil society
organizations, academic/scientific institutions, private sector)

Implementation within United Nations: Inter-agency Support Group

✓ United Nations Inter-Agency Support Group for the Convention on the

Rights of Persons with Disabilities (IASG) established.
✓ First meeting was held in December 2007
✓ Through the IASG, the United Nations will support the States parties,
based within a framework of coordinated planning and action.
✓ The IASG will ensure that the programmes and policies of the United
Nations are inclusive of persons with disabilities, and will work to strengthen
recognition of and respect for the principles of the Convention on the Rights
of Persons with Disabilities.
✓ Membership of the IASG: United Nations departments, regional
commissions, agencies, funds and programmes whose work is relevant to
the Convention.

Special Rapporteur on Disability

✓ Role of the Special Rapporteur on Disability

 Monitor the implementation of the Standard Rules for the Equalization
of Opportunities of Persons with Disabilities
 Advocate the equalization of opportunities for, the full enjoyment of all
human rights by, and the well-being of persons with disabilities in all
respects
 Create awareness of the Convention on the Rights of Persons with
Disabilities, including for its wider signature and ratification by Member
States
 Act as a catalyst to promote international and technical cooperation on
disability issues, including by identifying strategic areas for the exchange
and sharing of expertise, best practices, knowledge, information and
relevant technologies in order to enhance the capacity-building of Member
States
 Collaborate, in the fulfillment of the above tasks, with all relevant
stakeholders, including organizations of persons with disabilities

✓ Special Rapporteur reports yearly to the Commission for Social

Development.
Monitoring and Implementation

All activities must include the participation of persons with disabilities:

‘Nothing about us without us’

Conclusion

✓ The challenge of implementing the Convention is now!

✓ Need for training, capacity building, awareness raising, good practices
collection and validation, knowledge management
✓ Need to mainstream disability in all development activities
✓ Need for implementation of Convention principles in the internal
operations of organizations
✓ Need to include persons with disabilities in all stages of
implementation, and build capacity of organizations of persons with disabilities
to do so

Resource for further information:

United Nations Secretariat for the

Convention on the Rights of Persons with Disabilities

www.un.org/disabilities www.ohchr.org enable@un.org

 Human Rights of Persons with Disabilities & Constitution of India in
context of their rights to liberty and Security

The disabled and the constitution

The Constitution of India applies uniformly to every legal citizen of India, whether they
are healthy or disabled in any way (physically or mentally)

Under the Constitution the disabled have been guaranteed the following fundamental
rights:

1. The Constitution secures to the citizens including the disabled, a right of justice, liberty
of thought, expression, belief, faith and worship, equality of status and of opportunity
and for the promotion of fraternity.

2. Article 15(1) enjoins on the Government not to discriminate against any citizen of India
(including disabled) on the ground of religion, race, caste, sex or place of birth.

3. Article 15 (2) States that no citizen (including the disabled) shall be subjected to any
disability, liability, restriction or condition on any of the above grounds in the matter of
their access to shops, public restaurants, hotels and places of public entertainment or
in the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of government funds or dedicated to the use of the general public.
Women and children and those belonging to any socially and educationally backward
classes or the Scheduled Castes & Tribes can be given the benefit of special laws or
special provisions made by the State.

4. There shall be equality of opportunity for all citizens (including the disabled) in matters
relating to employment or appointment to any office under the State
.
5. No person including the disabled irrespective of his belonging can be treated as an
untouchable. It would be an offence punishable in accordance with law as provided by
Article 17 of the Constitution.

6. Every person including the disabled has his life and liberty guaranteed under Article
21 of the Constitution.
7. There can be no traffic in human beings (including the disabled), and beggar and other
forms of forced labour is prohibited and the same is made punishable in accordance
with law (Article 23).

8. Article 24 prohibits employment of children (including the disabled) below the age of
14 years to work in any factory or mine or to be engaged in any other hazardous
employment. Even a private contractor acting for the Government cannot engage
children below 14 years of age in such employment.

9. Article 25 guarantees to every citizen (including the disabled) the right to freedom of
religion. Every disabled person (like the non-disabled) has the freedom of conscience
to practice and propagate his religion subject to proper order, morality and health.

10. No disabled person can be compelled to pay any taxes for the promotion and
maintenance of any particular religion or religious group.

11. No Disabled person will be deprived of the right to the language, script or culture which
he has or to which he belongs.

12. Every disabled person can move the Supreme Court of India to enforce his
fundamental rights and the rights to move the Supreme Court is itself guaranteed by
Article 32.

13. No disabled person owning property (like the non-disabled) can be deprived of his
property except by authority of law though right to property is not a fundamental right.
Any unauthorized deprivation of property can be challenged by suit and for relief by
way of damages.

14. Every disabled person (like the non-disabled) on attainment of 18 years of age
becomes eligible for inclusion of his name in the general electoral roll for the territorial
constituency to which he belongs.
 General legal provisions relating to the disabled lies in

1. Constitution
2. Education Laws
3. Health Laws
4. Family Laws
5. Succession laws
6. Labour Laws
7. Judicial Procedures
8. Income Tax Laws, &
9. Various Acts
• The Person with Disabilities Act, 1995
• The Mental Health Act, 1987
• The Rehabilitation Council of India, 1992
• The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation, and Multiple Disabilities Act, 1999
• Declaration On The Rights Of Mentally Retarded Persons

Education Law for the Disabled

• The right to education is available to all citizens including the disabled. Article 29(2) of
the Constitution provides that no citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on the ground of
religion, race, caste or language.
• Article 45 of the Constitution directs the State to provide free and compulsory
education for all children (including the disabled) until they attain the age of 14 years.
No child can be denied admission into any education institution maintained by the
State or receiving aid out of State funds on the ground of religion, race, casteor
language.

Health Laws

• Article 47 of the constitution imposes on the Government a primary duty to raise the
level of nutrition and standard of living of its people and make improvements in public
health - particularly to bring about prohibition of the consumption of intoxicating drinks
and drugs which are injurious toone’s health except for medicinal purposes.
• The health laws of India have many provisions for the disabled. Some of the Acts
which make provision for health of the citizens including the disabled may be seen in
the Mental Health Act, 1987 (See later in the chapter).
 Family Laws

Various laws relating to the marriage enacted by the Government for DIFFERENT
communities apply equally to the disabled. In most of these Acts it has been provided
that the following circumstances will disable a person from undertaking a marriage.
These are:
• Where either party is an idiot or lunatic,
• Where one party is unable to give a valid consent due to unsoundness of mind or is
suffering from a mental disorder of such a kind and extent as to be unfit for ‘marriage
for procreation of children’
• Where the parties are within the degree of prohibited relationship or are sapindas of
each other unless permitted by custom or usage.
• Where either party has a living spouse

The rights and duties of the parties to a marriage whether in respect of disabled or
non-disabled persons are governed by the specific provisions contained in different
marriage Acts, such as the Hindu Marriage Act, 1955, the Christian Marriage Act, 1872
and the Parsi Marriage and Divorce Act, 1935. Other marriage Acts which exist
include; the Special Marriage Act, 1954 (for spouses of differing religions) and the
Foreign Marriage Act, 1959 (for marriage outside India). The Child Marriage Restraint
Act, 1929 as amended in 1978 to prevent the solemnization of child marriages also
applies to the disabled. A Disabled person cannot act as a guardian of a minor under
the Guardian and
Wards Act, 1890 if the disability is of such a degree that one cannot act as a guardian
of the minor. A similar position is taken by the Hindu Minority and Guardianship Act,
1956, as also under the Muslim Law

Succession Laws for the Disabled

Under the Hindu Succession Act, 1956 which applies to Hindus it has been specifically
provided that physical disability or physical deformity would not disentitle a person
from inheriting ancestral property. Similarly, in the Indian Succession Act, 1925 which
applies in the case of intestate and testamentary succession, there is no provision
which deprives the disabled from inheriting an ancestral property. The position with
regard to Parsis and the Muslims is the same. In fact a disabled person can also
dispose his property by writing a ‘will’ provided he understands the import and
consequence of writing a will at the time when a will is written. For example, a person
of unsound mind can make a Will during periods of sanity. Even blind persons or those
who are deaf and dumb can make their Wills if they understand the import and
consequence of doing it.

Labour Laws for the Disabled

The rights of the disabled have not been spelt out so well in the labour legislations but
provisions which cater to the disabled in their relationship with the employer are
contained in delegated legislations such as rules, regulations and standing orders.
 Judicial procedures for the disabled
Under the Designs Act, 1911 which deals with the law relating to the protection of
designs any person having jurisdiction in respect of the property of a disabled person
(who is incapable of making any statement or doing anything required to be done
under this Act) may be appointed by the Court under Section 74, to make such
statement or do such thing in the name and on behalf of the person subject to the
disability. The disability may be lunacy or other disability.

Income Tax Concessions

Relief for Handicapped

• Section 80 DD: Section 80 DD provides for a deduction in respect of the expenditure

incurred by an individual or Hindu Undivided Family resident in India on the medical
treatment (including nursing) training and rehabilitation etc. of handicapped
dependants. For officiating the increased cost of such maintenance, the limit of the
deduction has been raised from Rs.12000/- to Rs.20000/-.
• Section 80 V: A new section 80V has been introduced to ensure that the parent in
whose hands income of a permanently disabled minor has been clubbed under
Section 64, is allowed to claim a deduction upto Rs.20000/- in terms of Section 80 V.
• Section 88B: This section provides for an additional rebate from the net tax payable
by a resident individual who has attained the age of 65 years. It has been amended to
increase the rebate from 10% to 20% in the cases where the gross total income does
not exceed Rs.75000/- (as against a limit of Rs.50000/- specified earlier).

The persons with disabilities (PWD) (equal opportunities, protection of rights

and full participation) act, 1995

“The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995” had come into enforcement on February 7, 1996. It is a
significant step which ensures equal opportunities for the people with disabilities and
their full participation in the nation building. The Act provides for both the preventive
and promotional aspects of rehabilitation like education, employment and vocational
training, reservation, research and manpower development, creation of barrier- free
environment, rehabilitation of persons with disability, unemployment allowance for the
disabled, special insurance scheme for the disabled employees and establishment of
homes for persons with severe disability etc.

Main Provisions of the Act

• Prevention and Early Detection of Disabilities

• Education
• Employment
• Non-Discrimination
• Research and Manpower Development
• Affirmative Action
• Social Security
• Grievance Redressal

Prevention and early detection of disabilities

• Surveys, investigations and research shall be conducted to ascertain the cause of

occurrence of disabilities.
• Various measures shall be taken to prevent disabilities. Staff at the Primary Health
Centre shall be trained to assist in this work.
• All the Children shall be screened once in a year for identifying ‘at-risk’ cases.
• Awareness campaigns shall be launched and sponsored to disseminate information.
• Measures shall be taken for pre-natal, peri natal, and post-natal care of the mother
and child.

Education

• Every Child with disability shall have the rights to free education till the age of 18 years
in integrated schools or special schools.
• Appropriate transportation, removal of architectural barriers and restructuring of
modifications in the examination system shall be ensured for the benefit of children
with disabilities.
• Children with disabilities shall have the right to free books, scholarships, uniform and
other learning material.
• Special Schools for children with disabilities shall be equipped with vocational training
facilities.
• Non-formal education shall be promoted for children with disabilities.
• Teachers’ Training Institutions shall be established to develop requisite manpower.
• Parents may move to an appropriate forum for the redressal of grievances regarding
the placement of their children with disabilities.

Employment
3% of vacancies in government employment shall be reserved for people with
disabilities, 1% each for the persons suffering from:
• Blindness or Low Vision
• Hearing Impairment
• Locomotor Disabilities & Cerebral Palsy
• Suitable Scheme shall be formulated for
• The training and welfare of persons with disabilities
• The relaxation of upper age limit
• Regulating the employment
• Health and Safety measures and creation of a non- handicapping, environment in
places where persons with disabilities are employed
Government Educational Institutes and other Educational Institutes receiving grant
from Government shall reserve at least 3% seats for people with disabilities.
No employee can be sacked or demoted if they become disabled during
service, although they can be moved to another post with the same pay and condition.
No promotion can be denied because of impairment.

Affirmative Action
Aids and Appliances shall be made available to the people with disabilities.
Allotment of land shall be made at concessional rates to the people with disabilities
for:
• House
• Business
• Special Recreational Centres
• Special Schools
• Research Schools
• Factories by Entrepreneurs with Disability,

Non-Discrimination

• Public building, rail compartments, buses, ships and air-crafts will be designed to give
easy access to the disabled people.
• In all public places and in waiting rooms, the toilets shall be wheel chair accessible.
Braille and sound symbols are also to be provided in all elevators (lifts).
• All the places of public utility shall be made barrier- free by providing the ramps.

Research and Manpower Development

• Research in the following areas shall be sponsored and promoted

• Prevention of Disability
• Rehabilitation including community based rehabilitation
• Development of Assistive Devices.
• Job Identification
• On site Modifications of Offices and Factories
• Financial assistance shall be made available to the universities, other institutions of
higher learning, professional bodies and non-government research- units or
institutions, for undertaking research for special education, rehabilitation and
manpower development.
 Social Security

• Financial assistance to non-government organizations for the rehabilitation of persons

with disabilities.
• Insurance coverage for the benefit of the government employees with disabilities.
• Unemployment allowance to the people with disabilities who are registered with the
special employment exchange for more than a year and could not find any gainful
occupation

Grievance Redressal

• In case of violation of the rights as prescribed in this act, people with disabilities may
move an application to the
• Chief Commissioner for Persons with Disabilities in the Centre, or
• Commissioner for Persons with Disabilities in the State.

The Mental Health Act, 1987

Under the Mental Health Act, 1987 mentally ill persons are entitled to the following
rights:
1. A right to be admitted, treated and cared in a psychiatric hospital or psychiatric nursing
home or convalescent home established or maintained by the Government or any
other person for the treatment and care of mentally ill persons (other than the general
hospitals or nursing homes of the Government).
2. Even mentally ill prisoners and minors have a right of treatment in psychiatric hospitals
or psychiatric nursing homes of the Government.
3. Minors under the age of 16 years, persons addicted to alcohol or other drugs which
lead to behavioral changes, and those convicted of any offence are entitled to
admission, treatment and care in separate psychiatric hospitals or nursing homes
established or maintained by the Government.
4. Mentally ill persons have the right to get regulated, directed and co-ordinated mental
health services from the Government. The Central Authority and the State Authorities
set up under the Act have the responsibility of such regulation and issue of licenses
for establishing and maintaining psychiatric hospitals and nursing homes.
5. Treatment at Government hospitals and nursing homes mentioned above can be
obtained either as in patient or on an out-patients basis.
6. Mentally ill persons can seek voluntary admission in such hospitals or nursing homes
and minors can seek admission through their guardians. Admission can be sought for
by the relatives of the mentally ill person on behalf of the latter. Applications can also
be made to the local magistrate for grants of such (reception) orders.
7. The police have an obligation to take into protective custody a wandering or neglected
mentally ill person, and inform his relative, and also have to produce such a person
before the local magistrate for issue of reception orders.
8. Mentally ill persons have the right to be discharged when cured and entitled to ‘leave’
the mental health facility in accordance with the provisions in the Act.
9. Where mentally ill persons own properties including land which they cannot
themselves manage, the district court upon application has to protect and secure the
management of such properties by entrusting the same to a ‘Court of Wards’, by
appointing guardians of such mentally ill persons or appointment of managers of such
property.
10. The costs of maintenance of mentally ill persons detained as in-patient in any
government psychiatric hospital or nursing home shall be borne by the state
government concerned unless such costs have been agreed to be borne by the
relative or other person on behalf of the mentally ill person and no provision for such
maintenance has been made by order of the District Court. Such costs can also be
borne out of the estate of the mentally ill person.
11. Mentally ill persons undergoing treatment shall not be subjected to any indignity
(whether physical or mental) or cruelty. Mentally ill persons cannot be used without
their own valid consent for purposes of research, though they could receive their
diagnosis and treatment.
12. Mentally ill persons who are entitled to any pay, pension, gratuity or any other form of
allowance from the government (such as government servants who become mentally
ill during their tenure) cannot be denied of such payments. The person who is in-
charge of such mentally person or his dependents will receive such payments after
the magistrate has certified the same.
13. A mentally ill person shall be entitled to the services of a legal practitioner by order of
the magistrate or district court if he has no means to engage a legal practitioner or his
circumstances so warrant in respect of proceedings under the Act.
 The Rehabilitation Council of India Act, 1992

This Act provides guarantees so as to ensure the good quality of services rendered
by various rehabilitation personnel. Following is the list of such guarantees:
1. To have the right to be served by trained and qualified rehabilitation professionals
whose names are borne on the Register maintained by the Council
2. To have the guarantee of maintenance of minimum standards of education required
for recognition of rehabilitation qualification by universities or institutions in India.
3. To have the guarantee of maintenance of standards of professional conduct and ethics
by rehabilitation professionals in order to protect against the penalty of disciplinary
action and removal from the Register of the Council
4. To have the guarantee of regulation of the profession of rehabilitation professionals
by a statutory council under the control of the central government and within the
bounds prescribed by the statute

The national trust for welfare of persons with autism, cerebral palsy, mental
retardation and multiple disabilities act, 1999

1. The Central Government has the obligation to set up, in accordance with this Act and
for the purpose of the benefit of the disabled, the National Trust for Welfare of Persons
with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability at New Delhi.
2. The National Trust created by the Central Government has to ensure that the objects
for which it has been set up as enshrined in Section 10 of this Act have to be fulfilled.
3. It is an obligation on part of the Board of Trustees of the National Trust so as to make
arrangements for an adequate standard of living of any beneficiary named in any
request received by it, and to provide financial assistance to the registered
organizations for carrying out any approved programme for the benefit of disabled.
4. Disabled persons have the right to be placed under guardianship appointed by the
‘Local Level Committees’ in accordance with the provisions of the Act. The guardians
so appointed will have the obligation to be responsible for the disabled person and
their property and required to be accountable for the same.
5. A disabled person has the right to have his guardian removed under certain conditions.
These include an abuse or neglect of the disabled, or neglect or misappropriation of
the property under care.
6. Whenever the Board of Trustees are unable to perform or have persistently made
default in their performance of duties, a registered organization for the disabled can
complain to the central government to have the Board of Trustees superseded and/or
reconstituted.
7. The National Trust shall be bound by the provisions of this Act regarding its
accountability, monitoring finance, accounts and audit.
 Statistical Data of Disabled Population

India

Census 2011 has revealed that over 2.68 Cr. people in India as suffering from one
or the other kind of disability. Among the disabled population 56% (1.5 Cr) are males
and 44% (1.18 Cr) are females. In the total population, the male and female
population are 51% and 49% respectively.

Population, India 2011 Disabled persons, India 2011

Persons Males Females Person Males Females

121.08 62.32 58.76 2.68 1.5 1.18 Cr.

Cr. Cr. Cr. Cr. Cr.

Majority (69%) of the disabled population resided in rural areas (1.86 Cr disabled
persons in rural areas and 0.81 Cr in urban areas).
In the case of total population also, 69% are from rural areas while the remaining
31% resided in urban areas.
The percentage of disabled to the total population increased from 2.13% in 2001 to
2.21% in 2011.
In rural areas, the increase was from 2.21% in 2001 to 2.24% in 2011 whereas, in
urban areas, it increased from 1.93% to 2.17% during this period.
The same trend was observed among males and females during this period.

Types of disability

The Census 2011 revealed that, In India, 20% of the disabled persons are having
disability in movement, 19% are with disability in seeing, and another 19 % are with
disability in hearing, 8% has multiple disabilities.
 Disabled population by type of disability in
India, Census 2011

In Hearing
In Seeing
In Speech
In Movement
Mental Retardation
Mental Illness
Any Other
Multiple Disability

STATISTICAL DATA OF DISABLED POPULATION: WORLD

One billion people, or 15% of the world’s population, experience some form of
disability, and disability prevalence is higher for developing countries.
One-fifth of the estimated global total, or between 110 million and 190 million people,
experience significant disabilities.

WORLD REPORT ON DISABILITY

The first ever World report on disability, produced jointly by WHO and the World
Bank, in 2011 suggests that more than a billion people in the world today experience
disability.
This report has significantly contributed to the international discourse on disability
and development.
People with disabilities have generally poorer health, lower education achievements,
fewer economic opportunities and higher rates of poverty than people without
disabilities.
This is largely due to the lack of services available to them and the many obstacles
they face in their everyday lives.
The report provides the best available evidence about what works to overcome
barriers to health care, rehabilitation, education, employment, and support services,
and to create the environments which will enable people with disabilities to flourish.
The report ends with a concrete set of recommended actions for governments and
their partners.
This pioneering World report on disability will make a significant contribution to
implementation of the Convention on the Rights of Persons with Disabilities.
At the intersection of public health, human rights and development, the report is set
to become a "must have" resource for policy-makers, service providers,
professionals, and advocates for people with disabilities and their families.
SCOPE
The Report focuses on measures to improve accessibility and equality of
opportunity; promoting participation and inclusion; and increasing respect for the
autonomy and dignity of persons with disabilities. It defines terms such as disability,
discusses prevention and its ethical considerations, introduces the International
Classification of Functioning, Disability and Health (ICF) and the CRPD, and
discusses disability and human rights, and disability and development.

UN FLAGSHIP REPORT ON DISABILITY AND DEVELOPMENT

The United Nations launched its first-ever flagship report on disability and
development; published by, for, and with, persons with disabilities, in the hopes of
fostering more accessible, and disability-inclusive societies.
The UN Flagship Report on Disability and Development 2018, coincides with the
annual International Day, marked on 3 December, which the UN chief described as
important for “the social, economic and political inclusion of all, including people with
disabilities,” as promoted in the Sustainable Development Goals, or SDGs.
This report represents the first UN system wide effort to examine disability and the
Sustainable Development Goals (SDGs) of the 2030 Agenda for Sustainable
Development at the global level.
The report reviews data, policies and programmes and identifies good practices; and
uses the evidence it reviewed to outline recommended actions to promote the
realization of the SDGs for persons with disabilities.
Over 200 experts from UN agencies and International Financial Institutions, Member
States and civil society, including research institutions and organizations of persons
with disabilities, contributed to this report.
The report covers new areas for which no global research was previously available,
for example, the role of access to energy to enable persons with disabilities to use
assistive technology.
It also contains the first global compilation and analysis of internationally comparable
data using the Washington Group on Disability Statistics short set of questions.
Reviews of legislation from 193 UN Member States were conducted and analysed
for this report to highlight good practices and to assess the current status of
discriminatory laws on voting, election for office, right to marry and others.
More than 12 major databases of disability statistics, from international agencies and
other organizations, were analysed – covering an unprecedented amount of data
from over 100 countries.
In addition, more than 1.2 million data points of crowd-sourced data have been
examined to inform analysis of the accessibility of physical spaces.

The report demonstrates how disability-based discrimination has severe effects on

transport, cultural life, and access to public places and services, and thus, the report
leads with a push to change urban environments to make them more accessible.
The above challenges often go unseen as a result of insufficient questions relevant
to disability, and consequently, an underestimation of the number of persons living
with disabilities and affected by discrimination, and other barriers.

The report shows that despite the progress made in recent years, persons with
disabilities continue to face numerous barriers to their full inclusion and participation
in the life of their communities.
It sheds light on their disproportionate levels of poverty, their lack of access to
education, health services, employment, their under-representation in decision-
making and political participation.
This is particularly the case for women and girls with disabilities. Main barriers to
inclusion entail discrimination and stigma on the ground of disability, lack of
accessibility to physical and virtual environments, lack of access to assistive
technology, essential services, rehabilitation and support for independent living that
are critical for the full and equal participation of persons with disabilities as agents of
change and beneficiaries of development.
Data and statistics compiled and analysed in the present report indicate that persons
with disabilities are not yet sufficiently included in the implementation, monitoring and
evaluation of the SDGs.
2030 AGENDA FOR SUSTAINABLE DEVELOPMENT
The 2030 Agenda for Sustainable Development clearly states that disability cannot
be a reason or criteria for lack of access to development programming and the
realization of human rights.
The Sustainable Development Goals (SDGs) framework includes seven targets,
which explicitly refer to persons with disabilities, and six further targets on persons in
vulnerable situations, which include persons with disabilities.
The SDGs address essential development domains such as education, employment
and decent work, social protection, resilience to and mitigation of disasters,
sanitation, transport, and non-discrimination – all of which are important areas of
work for the World Bank.
The New Urban Agenda specifically commits to promoting measures to facilitate
equal access to public spaces, facilities, technology, systems, and services for
persons with disabilities in urban and rural area.
Including people with disabilities and expanding equitable opportunities are at the
core of the World Bank’s work to build sustainable, inclusive communities, aligned
with the institution’s goals to end extreme poverty and promote shared prosperity.
Specifically, the World Bank integrates disability into development through its
analytical work, data, and good-practice policies.
The Bank also integrates disability issues into its operations across a wide range of
sectors, including promoting access to infrastructure facilities and social services,
rehabilitation, skills development, creating economic opportunities, and working with
disabled people’s organizations, focusing on the most vulnerable among people with
disabilities, such as women and children, and influencing policies and institutional
development.
The Global Disability Advisor’s team serves as a focal points for ongoing advisory
and analytical support to operational teams on disability-inclusive approaches in
project design and implementation.
The 2030 Agenda for Sustainable Development and its 17 SDGs provide a powerful
framework to guide local communities, countries and the international community
toward the achievement of disability-inclusive development.
The 2030 Agenda pledges to leave no one behind, including persons with disabilities
and other disadvantaged groups, and has recognized disability as a cross-cutting
issue, to be considered in the implementation of all of its goals.
The Agenda also includes seven targets and 11 indicators explicitly making
reference to persons with disabilities, covering access to education and employment,
availability of schools sensitive to students with disabilities, inclusion and
empowerment of persons with disabilities, accessible transport, accessible public
and green spaces, and building capacity of countries to disaggregate data by
disability.
The 2030 Agenda is guided by the purposes and principles of the Charter of the
United Nations and grounded, inter alia, in the Universal Declaration of Human
Rights and international human rights treaties.
The 2030 Agenda is therefore linked to the Convention on the Rights of Persons with
Disabilities (CRPD), and its implementation, by, for, and with persons with disabilities
should be in line with the CRPD to incorporate the disability perspective in all
aspects of its realization, monitoring and evaluation.
The commitment of Governments to disability inclusive development has also been
demonstrated in other recent development agreements, which provide further
guidance in their respective areas of focus.
The outcome document of the Rio+20 Conference - “The future we want” -
underscored the importance of accessibility and disability-inclusion in supporting
strategies for sustainable development.
The Sendai Framework for Disaster Risk Reduction, adopted in March 2015,
included persons with disabilities as agents of change.
The Addis Ababa Action Agenda, adopted in July 2015, addressed the needs of
persons with disabilities in social protection, employment, education, infrastructure,
financial inclusion, technology and data.
The World Humanitarian Summit, held in May 2016, launched the first-ever Charter
on Inclusion of Persons with Disabilities in Humanitarian Action.
Habitat III in October 2016 adopted a disability-inclusive New Urban Agenda, guiding
urban development with the principles of universal design and accessibility for all.
Striving to achieve disability-inclusive development is not only the right thing to do.
It is also the practical thing to do: sustainable development for all can only be
attained if persons with disabilities are equally included as both agents and
beneficiaries as countries strive for a sustainable future.
The success of the 2030 Agenda requires a participatory and inclusive approach in
which all stakeholders, including persons with disabilities, are engaged.
The 2030 Agenda therefore presents an important opportunity to advance the goal of
the United Nations: to promote economic and social progress and human rights
toward a peaceful and prosperous world for all.

DISABILITY INCLUSION

The World Bank launched its first Disability Inclusion and Accountability Framework
in June 2018 to offer a roadmap for including disability in the World Bank’s policies,
operations, and analytical work; and Building internal capacity for supporting clients
in implementing disability-inclusive development programs.
The framework is relevant to policymakers, government officials, other development
organizations, and persons with disabilities.
The importance of disability inclusion within development is highlighted in the World
Bank’s key engagement and dissemination efforts.
The 2016 World Development Report: Digital Dividends underlined the importance of
ensuring that information and communication technologies (ICTs) are accessible for
persons with disabilities.
The World Bank is developing a knowledge series on Inclusive Education to build the
staff’s capacity to assist countries in designing effective policies, systems, and
practices to ensure equity in education and quality learning outcomes for children
with disabilities.
Today, 44 per cent of countries prevent students with disabilities from being taught in
the same classroom as others. In some countries, over 1 in 10 persons with
disabilities have been refused school enrolment.
And despite having greater health-care needs, one in three people with disabilities
today cannot afford health-care facilities.
The United Nations is working to change that through the Convention on the Rights
of Persons with Disabilities.
Adopted in 2006 and ratified by 177 countries so far, this landmark document is the
largest human rights treaty in the world and it is paving the way towards full inclusion
and equal opportunities for persons with disabilities.
Disability inclusion is not only a fundamental human right, it is “central to the
promise” of the 2030 Agenda on Sustainable Development.
The World Bank produces independent empirical studies on poverty and disability in
developing countries, disability and education, and disability and labour markets.

GLOBAL DISABILITY SUMMIT

The first ever Global Disability Summit hosted by the United Kingdom in July 2018, in
this the World Bank Group made ten commitments to accelerate global action for
disability-inclusive development in key areas such as education, digital development,
data collection, gender, post-disaster reconstruction, transport, private sector
investments, and social protection.
These are:
1. Ensuring that all WB-financed education programs and projects are
disability- inclusive by 2025.
2. Ensuring that all WB-financed digital development projects are disability sensitive,
including through the use of universal design and accessibility standards.
3. Scaling up disability data collection and use, guided by global standards and best
practices, such as using the Washington Group’s Short Set of Questions on
Disability.
4. Introducing questions on disability into the Women, Business and the Law survey
to better understand the economic empowerment of women with disabilities.
5. Ensuring that all projects financing public facilities in post-disaster reconstruction
are disability-inclusive by 2020.
6. Ensuring that all WB-financed urban mobility and rail projects that support public
transport services are disability-inclusive by 2025.
7. Enhancing due diligence on private sector projects financed by the International
Finance Corporation (IFC) regarding disability inclusion.
8. Ensuring that 75% of WB-financed social protection projects are disability-
inclusive by 2025.
9. Increasing the number of staff with disabilities in the WBG.
10. Promoting the Disability Inclusion and Accountability Framework among World
Bank staff as a way to support the WB’s new Environmental and Social Framework
(ESF).

The World Bank’s Environmental and Social Framework (ESF) includes a strong
provision designed to make sure that the interests of persons with disabilities are
protected and included, requiring the borrower to look specifically at disability as part
of any social assessments. Disabled Persons’ Organizations and experts on
disability inclusion participated actively in the consultations on the Safeguards
reform.
The ESF makes several direct references to safeguarding the interests of persons
with disabilities and protecting them from unsafe working conditions.
It encourages borrowers to undertake reasonable accommodation measures to
adapt the workplace to include workers with disabilities, as well as to provide
information in accessible formats.
Furthermore, the ESF also requires borrowers to undertake meaningful consultations
with stakeholders to learn their views on project risks, impacts, and mitigation
measures.
In addition, the World Bank has issued a Directive on addressing project risks and
impacts on disadvantaged and vulnerable groups, which also addresses the
inclusion of persons with disabilities.
The Disability Inclusion and Accountability Framework is aligned with the ESF and
will offer a thematic blueprint to support disability-inclusive investments.

The 2nd Global Disability Summit held at Buenos Aires, Argentina from 6 June to 8
June 2019.
It was follow up summit of disability summit held at London It was aimed to deliberate
on issues related to empowerment and inclusion of Persons with Disabilities across
the world and to work out a mechanism so as to enable person with disabilities to
live an independent and dignified life.

References:
http://mospi.nic.in/sites/default/files/publication_reports/Disabled_persons_in_India_
2016.pdf
 Contemporary Developments
Right to Mental Health Care
Right to Mental Health Care In comparison to the MHA, various provisions of the
MHCB provide for the care and treatment of mentally ill persons.

MHCB does not envision treatment in institutional terms alone, therefore there are
several provisions which place obligations on the government to make treatment
facilities available in the community.

The statute does not limit access to health care in the government sector alone and
persons needing treatment have been given the right to access such treatment on
reimbursement basis from private establishments also.

The Insurance Development Authority has been directed to ensure equity in

insurance between mental and physical illness21.

Whilst the bio-medical interventions of western psychiatry have been privileged, the
option to access other systems of medicine, free of cost has also been recognized.

A. The Mental Health Care Bill 2013 in place of MHA This legislation was
proposed to replace the MHA, which regulated the admission and discharge into
psychiatric hospitals and nursing homes.

The Act of 1987 permitted voluntary care but primarily made provision for
compulsory care to psychiatric hospitals. Consequently, whilst it had provisions
whereby the discharge of a voluntarily admitted patient could be compulsorily
stopped13, there was no provision to convert an involuntary admission into a
voluntary one.

In the main, the statute, redistributed the powers of admission between judicial
officers and medical personnel.

Thus all short term admissions were kept within the domain of medical personnel
and indefinite long term admissions were approved by Magistrates (Dhanda 2000).
Both short term and long term admissions could be made on therapeutic or social
control grounds.

The statute required rules to be promulgated laying down standards for care and
treatment to be observed by psychiatric hospitals and nursing homes14 but did not
recognize a right to treatment.

Similarly, a right to legal representation and aid was provided but where and how this
right would be inducted in the procedure of admission was not provided15.

The MHA was thus fulfilling the basic constitutional requirement of employing a
legislative procedure to deprive the life and liberty of a person with mental illness;
whether this procedure could also be considered fair, just and reasonable was an
issue which did not receive direct judicial scrutiny; even as public interest actions
questioning the constitutionality of specific provisions of the statute were filed in the
apex court.

B. Right to Persons with Disabilities Bill 2014 to Replace PWDA The

PWDA was the first disabilities rights law which was enacted in the country in 1995.

It was a legislation which only made provision for the socio-economic rights of
persons with disabilities and since questions of autonomy, choice and participation
are often considered foreign to socioeconomic rights, the matter of legal capacity has
not been an issue in either the text or the jurisprudence of that legislation.

Consequently, when the law reform process started the question of legal capacity
was to be considered for the first time in a Disability Rights legislation.

There were provisions disqualifying persons with disabilities from exercising legal
capacity but they were generally found in other general legislations; and there were
provisions surrounding guardianship in the MHA27 and NTA.
NHRC writes to Chief Ministers and Central Ministers for the protection of the
rights of the disabled

The Chairperson of the National Human Rights Commission, Justice J.S. Verma,
has written to the Chief Ministers of all States and to the Central Ministers of the
concerned departments of the Government of India for the better protection of the
rights of the disabled persons.

In his letter, the Chairperson said that the NHRC has been greatly concerned with
the problems of persons with disability.

Its endeavour in these areas has been to bring in a paradigm shift in the approach
motivated by charity towards the disabled to one based on rights.

With this perspective in view, the Commission has recently reviewed the
implementation of various legislations/programmes for the disabled both by the
Central and the State Governments.

Disability being a rights issue, the Chairperson has said that, the Government needs
to bring human rights of the disabled to the center stage of the developmental
agenda. However, the Commission has noticed that the implementation of the
policies and programmes for the disabled, by the ministries and departments of the
Government of India has been inadequate.

The Commission has identified some of the priority areas requiring the immediate
attention.
While both the Centre and the States have been asked to:
Constitute a task force to frame a national policy and plan for creation of barrier-free
infrastructure for the disabled in accordance with the provisions of the Disabilities
Act.

Review and amendment of rules and regulations that have discriminatory provisions
or lack enabling provisions for the enjoyment of full range of human rights by
persons with disabilities.
The States have been specifically asked to:

• Formulate ‘State Disability Policy and Plan of Action.’

• Carry out vertical integration of schemes of all departments relating to the
disabled.
• Provide employment opportunities for the disabled in accordance with the
provisions of the Disabilities Act.
• Carry out capacity building/sensitization programmes for administrators and
field functionaries.
• Enforce the provisions of Mental Health Act, 1987.

and the Centre has been asked to:

• Introduce and rationalize schemes for persons with disabilities.

• Develop minimum standards to ensure quality in the services provided by
NGOs and government institutions to the disabled.
• Rehabilitate disabled child beggars.
• Provide social security for women with disabilities.

The Commission has asked the Chief Ministers and the Central Ministers to bestow
their personal attention to these issues to ensure that the rights of the disabled
recognized in the law are earnestly granted to them without any further avoidable
delay.

Besides writing to the Chief Ministers to all the States and the Administrators of
Union Territories, the Chairperson’s letters have been addressed to the Ministers of
Parliamentary Affairs, Rural Development, Human Resource Development and
Science and Technology & Ocean Development, Urban Development & Poverty
Alleviation, Social Justice & Empowerment, Civil Aviation, Railways, Information &
Broadcasting, Health and Family Welfare and Law and Justice and Ministers of State
for Road Transport and Highways and Programme Implementation & Statistics.
Cases delt by NHRC

• A 55 Year Old Mentally Sick Man Kept in Chains Without Any Treatment
in Village Ambaguda, District Nabarangpur, Odisha (Case No.
3847/4/27/2013)

Shri Damodar Sarangi, Special Rapporteur of the NHRC, East Zone 1, forwarded a
translated copy of the clipping of a news report carried by an Oriya Daily "Samaj" on
10 September 2013.

It was alleged that one mentally sick person, namely, Shri Basu Majhi, aged 55
years, resident of village Ambaguda, District Nabarangpur. had been kept in chains
for the last 10 years without any treatment.

As per the report the family of Shri Basu was struggling against acute poverty and
had not received any assistance from the Government for the treatment of Shri
Basu. Benefits under the various welfare schemes were also not extended to the
family.

Taking cognizance of the news report, forwarded by Special Rapporteur Shri

Sarangi, the Commission vide its proceedings dated 15 October 2013 called for a
report from Chief Secretary, Government of Odisha.

The report is under consideration of the Commission.

• Thrashing of a Mentally Challenged Man by Government Railway Police

in Purnea District in Bihar (Case No. 3847/4/27/2013)

The English daily "The Hindustan Times' dated 24.10.2013 carried a news item
captioned, "Bihar GRP thrash mentally challenged man" The press report alleged
that Gyanendra Choudhary, aged 40 years and a mentally challenged person, was
injured while trying to cross the railway tracks in Purnea GRP men took him to the
District hospital.
However, he slipped out of the hospital and, after a search, was found at a roadside
temple 400 meter away by GRP men. The report further alleged that the GRP men
thrashed him mercilessly and dragged him back to the hospital.

As per the report, he had been so brutally beaten up that he could hardly walk.

Taking suo motu cognizance of the aforesaid press report, the Commission vide its
proceedings dated 30 October 2013 observed that the contents of the report raised
issue of violation of human rights of mentally challenged person and issued notice to
the Director General of Police, Bihar, Patna to submit a report in the matter.

In Response to the Commission's notice, a report has been received from the
Inspector. General of Police, Bihar, Patna and the same is under consideration of the
Commission.

• Violation of Human Rights Relating to Life, Liberty and Dignity of a

Physically Disabled Professor of Ram Lal Anand College, University of
Delhi (Case No. 5920/30/4/2013)

Shri Manoranjan Mohanty, a retired Professor of University of Delhi and Shri

Sumit Chakravorthy, Editor, “Mainstream”, weekly approached the Commission with
a complaint regarding violation of human rights of Dr. G.N. Saibaba who is a
Professor with the Ram Lal Anand College of Delhi University and a physically
disabled person.

It was alleged that a team of personnel from Delhi and Maharashtra Police jointly
conducted a raid at the residence of Dr. G. N. Saibaba on 12 September 2013
suspecting him to be having links with the banned naxals.

The Police team took away his laptop, hard disks, flash drives, books and pen drives
containing his research work in an unsealed condition.

It was alleged that police personnel in plain clothes were deployed in front of his
house to keep constant watch on him, due to which his family was living in shadow
of fear.

A copy of the notice dated 17 September 2013 u/s 160 Cr. P. C. was enclosed with
the complaint whereby Dr. G.N. Saibaba was asked by the SDPO of Aheri District,
Gadhcholi, Maharashtra to appear before him within eight days from the receipt of
the notice anywhere outside Delhi or at Nagpur for the purpose of inquiry.

The Commission directed to issue notice to the Commissioner of Police, Delhi and
the Director General of Police, Maharashtra asking them to submit their reports in
the matter.

Response received from authorities is under consideration of the Commission.

• Death of 32 Inmates in Vagrant Homes of West Bengal Within a period of

Five Months due to Malnutrition and Lack of Medical Aid (Case No.
694/25/13/2013)

Sh. Tapas Kumar Ray vide his complaint dated 4.6.2013 drew attention of the
Commission towards the condition of inmates of the seven Vagrant Homes
established under the Bengal Vagrancy Act, 1943 in West Bengal.

The complainant, enclosing a press clipping published in the Ananda Bazar Patrika
dated 02.06.2013, claimed that 32 inmates, including 21 male and 11 female, of the
Mahalandi Lunatic Vagrant Home, District Murshidabad, West Bengal died within a
period of 5 months due to malnutrition and lack of medical aid.

The Commission requested its Director General (Investigation to depute a team of

the Commission for spot inspection of the Vagrant Homes and to submit a report
within six weeks.
 Cases dealt by Judiciary

Deaf Employees Welfare Association v Union of India

This petition was filed seeking a Writ of Mandamus directing the Central and state
governments to grant equal transport allowance to its government employees
suffering from hearing impairment as what was being given to blind and other
disabled government employees.
The allowance given to the hearing impaired employees was significantly lower than
the allowance granted to other employees with disabilities.
The Supreme Court allowed the petition and directed the Respondents to grant
transport allowance to speech and hearing impaired persons also on par with blind
and orthopaedically disabled government employees.
The court held that “there cannot be further discrimination between a person with
disability of ‘blindness’ and a person with disability of ‘hearing impairment’. Such
discrimination has not been envisaged under the Disabilities Act.”
It held that equality of law and equal protection of law afforded to all persons with
disabilities while participating in government functions.
The court held that the dignity of persons with hearing impairments must be
protected by the state.
Even the assumption that a hearing or speech impaired person is suffering less than
a blind person is, in effect, marginalizing them; and as such, the same benefits must
be given to them, as are awarded to blind citizens.
Any move made by the state to further this objective is in consonance with the
principles enshrined in Articles 14.
This case held that deaf and mute people should also be given transportation
allowances on par with blind and orthopedically handicapped employees of the
government.

Union of India v National Federation of the Blind[2]

This was an appeal from the decision of the Delhi High Court wherein a public
interest petition had been filed which sought the implementation of Section 33 of the
Act alleging that the appellants herein have failed to provide reservation to the blind
and low vision persons and they are virtually excluded from the process of
recruitment to the Government posts as stipulated under the said Act.
The court looked into the calculation of the 3% reservation –whether it refers to
cadre strength, or number of vacancies.
It was held that 3% refers to a part of the total vacancies in cadre strength.
The court also observed, “It is clear that while section 33 provides for a minimum
level of representation of 3 per cent in the establishments of appropriate
government, the legislature intended to ensure 5 per cent of representation in the
entire workforce both in public as well as private sector”.

Government of India v Ravi Prakash Gupta[3]

In this case, the respondent was a visually challenged person who appeared for the
civil services examination conducted by the Union Public Service Commission and
was declared successful.
However, he was not given an appointment even though he was at Sl. No. 5 in the
merit list of visually impaired candidates.
The respondent approached the Central Administrative Tribunal which refused his
application and thereafter the respondent approached the high court.
The high court directed the government to accommodate the Respondent in the
merit list, against which the state filed an appeal in the Supreme Court.
The state contended that since the post for which the respondent was applying was
not identified for persons with disabilities and therefore not reserved for them, the
government could not make reservations in the same.
The Supreme Court refused the state government’s contention that identification of
jobs was a pre-requisite for reservation and appointment under section 33 of the
Act.[4]
The court held,
"It is only logical that, as provided in section 32 of the aforesaid Act, posts have to be
identified for reservation for the purposes of Section 33, but such identification was
meant to be simultaneously undertaken with the coming into operation of the Act, to
give effect to the provisions of Section 33. The legislature never intended the
provisions of section 32 of the Act to be used as a tool to deny the benefits of
Section 33 to these categories of disabled persons indicated therein. Such a
submission strikes at the foundation of the provisions relating to the duty cast upon
the appropriate government to make appointments in every establishment."[5]

Syed Bashir-ud-Din Qadri v. Nazir Ahmed Shah[6]

This was a decision by the Supreme Court. In this case, the Appellant was a B.Sc.
graduate with cerebral palsy who had applied for a job as a ‘Rehbar-e-Taleem’ or
‘Teaching Guide’ in the State of Jammu and Kashmir. The state government had
initially objected to his appointment on the ground of his disability. The appellant
however, with directions from the high court, was appointed under the Jammu and
Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1998.
The Respondent then filed a petition challenging the order of appointment and the
appellant was re-examined by the head of the Department of Neurology. It was
indicated in the report that as he had cerebral palsy, he had significant speech and
writing difficulties, which would make it difficult for him to perform his duties as a
teacher. The high court quashed his appointment and ordered that since the
appellant was unfit to the post of the teacher he should be given an alternative
employment. His appeal to the division bench of the high court was dismissed and
he thereafter approached the Supreme Court.
The Supreme Court observed that,
“This case involves a beneficial piece of social legislation to enable persons with
certain forms of disability to live a life of purpose and human dignity. This is a case
which has to be handled with sensitivity and not with bureaucratic apathy, as
appears to have been done as far as the appellant is concerned... It is only to be
expected that the movement of a person suffering from cerebral palsy would be jerky
on account of locomotor disability and that his speech would be somewhat impaired
but despite the same, the legislature thought it fit to provide for reservation of 1 per
cent of the vacancies for such persons. So long as the same did not impede the
person from discharging his duties efficiently and without causing prejudice to the
children being taught, there could, therefore, be no reason for a rigid approach to be
taken not to continue with the appellant's services as Rehbar-e-Taleem, particularly,
when his students had themselves stated that they had got used to his manner of
talking and did not have any difficulty in understanding the subject being taught by
him... Coupled with the above is the fact that the results achieved by him in the
different classes were extremely good; his appearance and demeanour in school
had been highly appreciated by the committee which had been constituted pursuant
to the orders of the high court to assess the appellant's ability in conducting his
classes.”[7]
The court directed that in order to overcome the impediment of writing on the black
board, an electronic external aid could be provided to the appellant, which could
eliminate the need for drawing a diagram and the same could be substituted by a
picture on a screen, which could be projected with minimum effort. With these
directions for providing reasonable accommodation, the Supreme Court held that the
disengagement of the appellant goes against the grain of the PWD Act and hence
the order was set aside by the court.

Suchita Srivastava v. Chandigarh Administration[8]

This case was with regard to the reproductive rights of a woman with mental
retardation residing at a government run welfare institution in Chandigarh who
became pregnant due to a rape by an in-house staff and who wanted to keep the
baby and carry on the pregnancy to full term. The Chandigarh Administration filed a
petition in the high court seeking permission to terminate her pregnancy under the
Medical Termination of Pregnancy Act, 1971 (“MTP Act”) on the ground that she was
not capable of carrying on with the pregnancy and would not be able to look after a
child. Although the expert body found that the woman had expressed her wish to
bear her child, the high court directed the termination of the pregnancy. The woman,
through an amicus, appealed to the Supreme Court and one of the main issues
before the Supreme Court was regarding the legal capacity of a woman with mental
retardation to decide on her pregnancy.
The Supreme Court noted the provisions of the MTP Act, which provided that where
pregnancy is a result of rape and termination of the same is contemplated, the
consent of the pregnant woman is mandatory.[9] The court also noted the exception
to this provision which provided that in case of a pregnant woman who is “mentally
ill”, pregnancy can be terminated with the approval of the woman’s
guardian.[10] Following this, the court proceeded to make a distinction between
‘mental illness’ and ‘mental retardation’. Upholding the legal capacity of the
appellant, the court held:
“While a guardian can make decisions on behalf a ‘mentally ill person’ as per Section
3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a
condition of ‘mental retardation’. The only reasonable conclusion that can be arrived
at in this regard is that the State must respect the personal autonomy of a mentally
retarded woman with regard to decisions about terminating a pregnancy. It can also
be reasoned that while the explicit consent of the woman in question is not a
necessary condition for continuing the pregnancy, the MTP Act clearly lays down
that obtaining the consent of the pregnant woman is indeed an essential condition for
proceeding with the termination of a pregnancy... We cannot permit a dilution of this
requirement of consent since the same would amount to an arbitrary and
unreasonable restriction on the reproductive rights of the victim.”[11]
Thus the Supreme Court clearly held that the MTP Act required the consent of a
mentally retarded woman for termination of pregnancy. Following this, the Court
concluded that the Appellant was mentally retarded, had not consented to the
termination of her pregnancy and in fact, had expressed her willingness to bear the
child. Therefore it could not permit the termination of her pregnancy. In arriving at
this conclusion, the Court not only recognised the reproductive rights of a woman
under the MTP Act, but also recognised international norms and principles on
mentally retarded persons and persons with disabilities under the CRPD. In this
context the Court specifically held:
"Our conclusions in this case are strengthened by some norms developed in the
realm of international law... In respecting the personal autonomy of mentally retarded
persons with regard to the reproductive choice of continuing or terminating a
pregnancy, the MTP Act lays down such a procedure. We must also bear in mind
that India has ratified the Convention on the Rights of Persons with Disabilities
(CRPD) on October 1, 2007 and the contents of the same are binding on our legal
system."[12]
The court clearly recognised the right to legal capacity of women with mental
retardation to take independent decisions on her pregnancy. The Supreme Court
held that “Her reproductive choice should be respected in spite of other factors such
as the lack of understanding of the sexual act as well as apprehensions about her
capacity to carry the pregnancy to its full term and the assumption of maternal
responsibilities thereafter.[13]” Therefore, the Supreme Court laid out the specific
right to legal capacity which was not subject to an understanding of one’s situation
and capacities. This case clearly follows the spirit of protection of legal capacity
under Article 12 of the CRPD.

High Court Decisions

Ranjit Kumar Rajak v. State Bank of India(2009) 5 Bom CR 227

The Petitioner in this case underwent a renal transplant in 2004. Subsequently, he
applied to the post of a probationary officer in the State Bank of India. After a
medical test, the bank rejected him on the ground that he was found medically unfit
for the post. The petitioner approached the Bombay High Court by a writ petition
claiming that despite medical reports that indicate his fitness to perform his duties,
he was denied being considered for employment. The bank rejected him as the rules
required the bank to reimburse medical expenses incurred by the officers of the bank
and since the medical condition of the Petitioner required regular medical check-ups,
the costs would be very high and could not be borne by the bank. The main
question, according to the Court, was “whether a person who is fully qualified for a
post because of his past or present medical condition which otherwise did not
interfere with his fitness to dispense the duties of his post, be denied employment
because of the financial burden that would be cast on the employer.”[14]
In an extremely significant ruling, a Division Bench of the Bombay High
Court[15] articulated and recognised for the first time the concept of “reasonable
accommodation at the workplace” in India. The court relied on the CRPD to decide
the duty of the employer in providing reasonable accommodation and the limits on
such a duty. The court recognised that India had signed and ratified the CRPD and
that Article 27 of the Convention recognises the right of persons with disability to be
"accepted in the labour market and work environment that is open, inclusive and
accessible to persons with disabilities."[16]
The court also discussed the definition of “reasonable accommodation” under Article
2 as “a necessary and appropriate modification and adjustments not imposing a
disproportionate or undue burden, where needed in a particular case, to ensure to
persons with disabilities the enjoyment or exercise on an equal basis with others of
all human rights and fundamental freedoms.”[17]
In interpreting “reasonable accommodation” and “undue burden” the court relied on
the CRPD and recognised the importance of India’s international obligations with
respect to rights of disabled persons by stating that:
“The law is now well settled that though the United Nations Convention may not have
been enacted into the Municipal Law, as long as the convention is not in conflict with
the Municipal Law and can be read into Article 2 thus making it enforceable.
Therefore, in the absence of any conflict it is possible to read the test of reasonable
accommodation in employment contracts.”[18]
The Court further held:
“A duty is, therefore, cast on the State to provide reasonable accommodation in the
matter of employment subject to the burden of hardship test being satisfied. In the
absence of a statutory definition of reasonable accommodation, the reasonable
accommodation as set out in the protocol in the first instance can be considered. It
will have to have a nexus with the financial burden on the institution and/or
undertaking which will have to bear the burden and further the extent to which
reasonable accommodation can be provided for.”[19]
The court incorporated the right to reasonable accommodation by declaring that
“Reasonable accommodation, if read into Article 21, based on the U.N Protocol,
would not be in conflict with municipal law. It would give added life and dimension to
the ever expanding concept of life and its true enjoyment.”[20] Following this, the
court concluded that the bank has a duty to provide reasonable accommodation to
the petitioner subject to any undue burden. The court observed that no evidence was
presented on how the financial burden would actually be a caused to the bank in
providing reasonable accommodation to the petitioner even if it meant meeting his
medical expenses. Consequently, the court allowed the petition and directed that the
Petitioner be offered appointment and allowed to join the post.

Lalit and Others v Govt. of NCT and Another[21]

This petition was filed by 12 inmates of the hostel attached to Andh Mahavidyalya,
New Delhi, an institution for visually impaired students, seeking a direction that they
may not be expelled or dispossessed from the hostel. Out of these 12 inmates,
expulsion orders were issued by the Respondents against 5 inmates on the ground
that the hostel was meant for only students up to Class VIII and the petitioners had
overstayed beyond this class. Many of them were between 25-35 years old and it
was alleged that there was a shortage of space for deserving younger visually
impaired students and that they were also intimidating the younger students. One of
the main issues before the Court was whether the hostel was obligated to
accommodate the petitioners because of their disabled status even if it resulted in a
disadvantage to the other disabled students.
Justice Muralidhar of the Delhi High Court noted that the facts illustrated the lack of
decent accommodation for children with disabilities and recognised the associated
problems of lack of resources, hygiene and accountability in the running of
institutions with disabled children. The court held as follows:
“In the context of the inviolable human rights of the disabled, it is necessary to take
note of the binding and mandatory provisions of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 (specifically
Sections 26 and 30) (`PDR Act’) and the Convention on the Rights of Persons with
Disabilities (`CRPD’) which has been ratified by India. In particular, Article 7 which
set out the obligations of the States towards children with disabilities, Article 9 which
obliges the States to take appropriate measures to ensure access to “schools,
housing, medical facilities’, and Article 24 which deals with the right to education are
relevant.”
The court relied upon Article 24 of the CRPD which guaranteed the right to education
and held that in the context of a disabled child housed in a state-run institution there
are a cluster of laws all of which can be traced to the fundamental rights to liberty
and a life with dignity. It held that in the context of a young person receiving
education in a state-run institution as a resident scholar, the right to shelter and
decent living is an inalienable facet of the right to education itself and when the State
takes over the running of an educational institution that caters to the needs of the
disabled, it has to account for the ‘cascading effect’ of multiple disadvantages that
such children face.
In the context of the present case however, the court held that due to the limitation of
resources, all the visually impaired persons at the Andh Mahavidhyalala, irrespective
of their age cannot possibly expect to be allowed to live there as the primary purpose
should be to cater to the needs of young children studying up to class VIII. If this
primary object was not kept in view, then it may result in an unfair denial of the right
to education of other deserving young students who are visually challenged.
The court thus directed the Respondent authorities to take every possible effort to
see if all the 5 inmates who were given expulsion orders could be accommodated in
any of the other institutions in Delhi. Sufficient time of 6 months should be given to
them to make alternative arrangements and assistance should be given to help them
find alternative accommodation. The court also observed that this case should act as
a wakeup call for the government to monitor the functioning generally of all
institutions under its control, particularly for the disabled. This case illustrates the
incorporation of the CRPD principles with regard to reasonable accommodation and
right to education of children. The court was called upon to balance the two rights,
which it ultimately did by taking into account the level of disabilities faced by each
group demanding accommodation.

The National Association for the Deaf v. Union of India [22]

This was a public interest petition filed by the National Association for the Deaf
before the Delhi High Court on the non-availability of sign language interpreters in
public services. The petition complained of the lack of availability of adequate
number of sign language interpreters in various public places and sought for
directions against the Ministry of Social Justice and Empowerment and other
authorities to ensure access and better training of sign language interpreters.
While the court noted the lack of availability of sign language interpreters, it agreed
with the Petitioner Association that due to non-availability of interpreters, the hearing
impaired were unable to avail medical, transport and banking facilities and to also
seek police help. With regard to the importance of ensuring the availability of support
in the form of interpreters, the Court relied on the CRPD and held,
“The United Nations Convention on the Rights of persons with disabilities adopted by
the General Assembly and ratified by the Govt. of India on 1st October, 2007 also
provides for taking appropriate measures to provide forms of live assistance and
intermediaries including guides, readers and professional Sign Language
Interpreters to facilitate accessibility to buildings and other facilities open to the
public. Needless to state that all the said rights are composite part of life enshrined in
Article 21 of the Constitution of India.”[23]
Based on this, the court issued specific directions to the respondent authorities
which included undertaking a survey to assess the availability and requirements for
sign language interpreters, appointing nodal officers to seek information from
concerned authorities and prepare a report to be used for creation of new posts,
creating courses and curricula for training of interpreters.

BhagwanDass and Anr v. Punjab State Electricity Board

In this case, the Appellant was an Assistant Lineman in the Respondent Board.
During his service, he became totally blind and the Respondent failed to
accommodate him in an alternative post as per Section 47 of the PWD Act and
terminated his service. Therefore the appellant approached the High Court of Punjab
and Haryana against the termination of his service. The high court dismissed the
petition and the Appellant appealed to the Supreme Court.
The Supreme Court allowed the appeal relying on Section 47 of the PWD Act and
observed that the Board had an obligation to follow this provision as the appellant
had acquired disability during his service. On Section 47, the Court relied on a
previous decision in Kunal Singh v. Union of India and Anr[24] which held that, “In
construing a provision of a social beneficial enactment that too dealing with disabled
persons intended to give them equal opportunities, protection of rights and full
participation, the view that advances the object of the Act and serves its purpose
must be preferred to the one which obstructs the object and paralyses the purpose of
the Act”[25]
The court gave a broad interpretation to Section 47 and took a protective approach
towards persons with disabilities by holding:
“From the narrow point of view the officers were duty bound to follow the law and it
was not open to them to allow their bias to defeat the lawful rights of the disabled
employee. From the larger point of view the officers failed to realise that the disabled
too are equal citizens of the country and have as much share in its resources as any
other citizen. The denial of their rights would not only be unjust and unfair to them
and their families but would create larger and graver problems for the society at
large. What the law permits to them is no charity or largess but their right as equal
citizens of the country.”
Ritesh Sinha v. State of Haryana[26]
In this case, an important interim order was passed by the High Court of Punjab and
Haryana and the matter is still pending.
The petitioner was a person with locomotor disability and was appointed as a clerk
by the District and Sessions Judge, Karnal in the post reserved for physically
disabled persons. Thereafter his services were terminated due to his inability to
perform the duties as a clerk who was expected to write the office notes and
maintain records in his own hands.
The court held that as the petitioner was well conversant with computer operations
and that there could be plenty of work done by him like preparation of daily cause
lists of all courts, certified copies of judgments, etc., which could be assigned to a
computer savvy person like him. The court directed that in the interim, his dismissal
order would remain stayed, and the respondents were directed to reinstate the
petitioner in service with all benefits. The court even directed the respondents to
immediately construct a ramp / slope so that the petitioner could enter his office and
a compliance report to be submitted to court about the same. Further, it directed the
respondents to see that a congenial atmosphere is created at the workplace so that
the Petitioner is made an integral part of the mainstream workforce.

U.P. Vishesh Shikshak Association v. State of U.P.[27]

Here the Petitioner Association had filed a public interest petition before the
Allahabad High Court contending that the pupil-teacher ratio so far as specialised
teachers and children with disabilities was concerned was not adequate and claimed
that the government circular on Integrated Education for Disabled Children Scheme
mandated a pupil teacher ratio of 8:1. It also claimed that the Rehabilitation Council
of India Act, 1992 imposed a statutory duty on the State to make arrangements for
adequate number of teachers for persons with disabilities.
The Allahabad High Court recognised the statutory duty of the State to “provide all
necessary help and assistance to physically disabled students.”[28] However, in
response to an argument that orthopaedically handicapped children do not require
specialised teachers, it held, “We are of the view that now, the right to education and
right to livelihood being the fundamental rights enshrined under Articles 21 and 21-A
of the Constitution, the State Government has to make all efforts to provide
necessary assistance to all disabled persons. Taking into consideration the meagre
strength of 1291 teachers, we cannot presume that State Government may be able
to impart education to disabled students.”

Manjunatha v. Government of Karnataka and Ors[29]

In this case, the petitioner, who was completely blind sought to apply for the B. Ed.
Course under the government quota of seats in Karnataka.
However, he was denied admission by reason of the condition that persons with
disability greater than 75 per cent would not be eligible for admission.
The announcement issued by the respondent permitted applications from persons
with disability but restricted it to such applicants who had a disability exceeding 40
per cent but below 75 per cent.
The Karnataka High Court allowed the petition by holding that such a provision in the
announcement ran counter to the PWD Act. The respondent government argued that
the upper limit in the announcement was based on a similar provision in Karnataka
Selection of Candidates for Admission to Teachers Certificate Higher Course (TCH)
and Bachelor of Education Course (B.Ed.) Rules 1999 and therefore such a
notification could not be challenged. The bench however, rejected this contention
and held that even the Rules run contrary to the PWD Act and the state government
could not rely on the Rules to deny admission to candidates having more than 75 per
cent disability. The court ruled in favour of the petitioner and held that he was entitled
to take up CET for admission to B.Ed. course and further declared that he shall not
be denied admission on the basis of his disability exceeding 75 per cent.
The observations of the court strengthened the protection for persons with
disabilities as it effectively held that the disability legislations would take precedence
over administrative rules of the government.

KritikaPurohit and Anr. v. State of Maharashtra and Ors.[30]

The petitioner was a visually impaired student who sought admission to the course in
Bachelor of Physiotherapy but was not permitted to apply for the same. The
petitioner contended that although the post of a physiotherapist was considered to
be suitable for blind persons, the denial of courses in physiotherapy for blind persons
ran counter to Section 39 of the PWD Act and that the respondents were obliged to
make all accommodations for the Petitioner in conformity with Article 24(2) of the
CRPD.
The respondents contended that it was not practical for the petitioner to be involved
in the course. However, the court also noted the petitioner’s reliance on the circular
of the Mumbai University in mandating that resources should be made available to
visually impaired student to allow them to complete their courses. In view of these
materials, the court observed that the respondents had shown a negative attitude
towards persons with disabilities and “have not cared to consider the object
underlying the provisions of Disabilities Act, 1995”. Therefore, by an interim order
dated 2 August 2010, it directed the Commissioner of Disabilities to consider all the
materials and make suitable instructions to the respondents for making necessary
arrangements for admission of visually challenged students. It also directed that the
petitioner should be provisionally admitted for the course and should be provided
with resources for translation of the material to braille.
Subsequently the court found that the petitioner had completed the first exam and
had secured 62 per cent in the same. Therefore, it held that she should be allowed to
be admitted and complete the course. However, the court noted that the state
government had accepted the guidelines of the Maharashtra State Council for
Occupational Therapy and Physiotherapy that visually impaired candidates are not fit
for the physiotherapy course. On this, it noted the contentions of the Petitioner and
also Xavier’s Resource Centre for the Visually Challenged who claimed that a
physiotherapist is not required to perform all the functions of physiotherapy and
visually impaired physiotherapists can perform all functions with assistance if
necessary. They also pointed out various physiotherapists who were working in
Maharasthra successfully for many years. The court held that “We are, therefore, of
the view that the stand of the respondent authorities is clearly discriminatory and
adversely affects the Right to Life and equal opportunities of the petitioner as also
other such students similarly situated. The fact that petitioner though being visually
impaired not only passed her first year examination with 62% marks and is
successfully studying in 2nd year, and several visually impaired persons have been
working as professional physiotherapists in India as well as abroad appeals to us not
to allow the petitioner as also others in the same position to be discriminated against
or disqualified on that ground.[31]”
Thus, the court stayed the decision of the state government and directed the
respondents to consider candidates with visual disability for admission to the course
in physiotherapy.

[1]. Civil Petition 107 of 2011, decided on December 12, 2013.

[2]. (2013)2 SCC 772.
[3]. (2010) 7 SCC 626.
[4]. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, section 33, available
at http://www.socialjustice.nic.in/pwdact1995.php?format=print
[5]. Id at Para 16.
[6]. SLP(C)Nos.10669-70 of 2008 decided on 10 March 2010.
[7]. SLP(C)Nos.10669-70 of 2008 ¶28.
[8]. 2009 (9) SCC 1.
[9]. See Section 3(4)(b), Medical Termination of Pregnancy Act, 1971.
[10]. See Section 3(4)(a), Medical Termination of Pregnancy Act, 1971.
[11].Suchita Shrivastavav Chandigarh Administration, (2009) 9 SCC 1, at para 15.
[12]. See Id at Para 25, 26.
[13]. See SuchitaShrivastava (n 5) at Para 10.
[14]. Ranjit Kumar Rajak v. State Bank of India 2009 (5) BomCR 227 at Para 1.
[15]. With Justice Re
[16]. See Article 27(1), CRPD (n 1).
[17]. Reasonable accommodation is recognised under Article 2 of the CRPD and is
defined as follows: ‘“Reasonable accommodation” means necessary and
appropriate modification and adjustments not imposing a disproportionate or undue
burden, where needed in a particular case, to ensure to persons with disabilities the
enjoyment or exercise on an equal basis with others of all human rights and
fundamental freedoms.”
[18]. Ranjit Kumar Rajak (n 9) at Para 17.
[19]. Id at Para 19.
[20]. Id at Para 21.
[21]. W.P. (C) No. 3444/2008, Judgment dated 7.5.2010 (Delhi High Court).
[22]. W.P.(C) No.6250/2010, Judgment dated 24.11.2011 (Delhi High Court).
[23]. The National Association of the Deaf v Union of India(n 20) at Para 7.
[24]. (2003) 4 SCC 524.
[25]. Id at Para 9.
[26].CWP NO. 3087 OF 2011 (Punjab and Haryana High Court).
[27]. Misc Bench No. 5622/ 2010, order dated 17 June 2010 (Allahabad High Court).
[28]. Id at Para 12.
[29]. W.P. 35969/2010, judgment dated 29-09-2011 (Karnataka High Court).
[30]. W.P. 979/2010, Bombay High Court.
[31]. KritikaPurohit and Anr. v. State of Maharashtra and Ors., W.P. 979/2010,
Bombay High Court, order dated 17 November 2011, para 7.