- Aditya Mehrotra
DELINEATING THE JUDICIAL APPROACH TO DISABILITY RIGHTS JURISPRUDENCE IN INDIA – A CRITIQUE
To ensure that the Supreme Court of India, being the apex court, is accessible to people with disabilities, Chief Justice D.Y. Chandrachud had formed a committee to assess the "physical and functional access" of the court's facilities. Supreme Court Justice S. Ravindra Bhat will serve as the Committee's Chair. The Supreme Court has charged its committee, "Supreme Court Committee on Accessibility" (SCCA) with creating a survey for people of varying abilities who use the Court's facilities. Workers, lawyers, litigants, and interns from the SCCA have all been included in this. Lawmakers and policymakers in India have just recently begun to address the issue of disability. The fundamentals of disability law are revealed through an examination of many landmark decisions under the Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act handed down by the appellate courts between 1996 and 2007.
This investigation into the difficulties faced by those with impairments and the litigation that has resulted from disability laws is illuminating. It draws attention to how the ideas about what it means to be disabled and what it means to be a human, have changed over time. The rights-based approach of disability law was given a legally enforceable foundation in 2006 with the International Convention on the Rights of People with Disabilities. India ratified the Convention on October 1, 2007, making it the eighth country to do so.
Since then, there has been a push to change India's disability law from one that takes a "welfare approach" to one that is "rights-based"; that is, instead of viewing people with disabilities as recipients of state charity in need of medical treatment and social protection, we view them as active members of the society who are entitled to the same rights as everybody else and fully capable of asserting their rights and making their own decisions based on their own free and informed consent.
Provisioned Legal Rights.
Articles 15 and 16 of the Universal Declaration of Human Rights guarantees equal employment opportunities for all members of society regardless of their religion, race, caste, gender, or country of origin. Moreover under the Indian Constitution, Article 16(3) and 16(4), the State may set aside positions or appointments for any historically underrepresented group that the State determines is underrepresented in the armed forces. Protections for reservation and equal opportunity in public employment are provided under the PWD Act based on Article 16.
In terms of employment in the public sector, people of all abilities should be afforded the same protections against discrimination as everyone else. The Employer of the Company must take measures to prevent any kind of unlawful discrimination against employees with disabilities. The employer is obligated to provide reasonable accommodations for handicapped workers, such as providing them with extra time off and specialised training.
The Fundamental Criticism of the PWD Act
The PWD Act of 1995 only has three clauses that deal with accessibility mentioned in Chapter VIII, which deals with protections against discrimination. The accessibility of train cars, aeroplanes, buses, and boats are all governed by Section 44. Disabled passengers are guaranteed access to bathrooms on all modes of transportation, including trains, ships, and aeroplanes. Roadside signs, kerb cuts and slopes, and audio signals at intersections are all allowed by Section 45. Public and medical facilities are required to have ramps installed, elevators must have audible signals, and wheelchair-accessible restrooms must be provided per Section 46. The courts have emphasised that although being codified, these prohibitions are rarely carried out.
Twenty years after its passage, India's PWD Act has still failed to improve the lives of the country's 70 million disabled citizens by not providing them with physical access and making them even more prone to mistreatment. To substantiate, many cases of disability-related job discrimination have been documented throughout the years. Disabled persons often experience bullying and teasing from their peers, which is one type of prejudice they confront. Eighteen percent or more of those polled in an Equality Human Rights study reported having been the target of workplace discrimination, bullying, or harassment.
Notwithstanding the Act's success in filling the gap left by the lack of a comprehensive disability law, it falls short for at least two reasons of what is needed to ensure that people with disabilities have a level playing pitch to participate. .
First, the Act's requirements are written in extremely general and ambiguous language, requiring stakeholders to remove barriers to access to the extent that doing so is feasible from a financial standpoint. This provides government agencies with an easy way to sidestep their duties and ignore the spirit of the law blaming it on financial lacking. For instance, a "person with disability" is defined by the PWD Act as an individual with 40% or more of any of the following impairments: (i) blindness, (ii) low vision, (iii) cured leprosy, (iv) hearing impairment, (v) mobility impairment, (vi) mental retardation, and (vii) mental illness." The PWD Act's rights and programmes are reserved for those who meet the Act's rigorous definition of a disability, which requires at least 40% impairment in each of seven areas.
Second, there is no mechanism for enforcing the law when it comes to actual cases of discrimination or the implementation of access restrictions. The Federal and State Office of the Commissioner for Persons with Disabilities, established by the Act, is woefully understaffed and lacks the legitimacy and public support necessary to implement more fundamental structural changes. The absence of consequences for violators of the statute exacerbates this problem. Because of this, the enforcement apparatus is unable to develop solutions that would increase accessibility for all.
Reasonable Accommodation & Decoding the Landmark Judgment of Vikash Kumar
Recognizing the Supreme Court's seminal decision in Vikash Kumar vs. Union Public Service Commission is crucial for our discussion. According to the Supreme Court's ruling in paragraph 49, discrimination occurs when an employer refuses to make an effort or fails to accommodate an employee's disability. The court analysed important provisions of the RPWD Act to stress the importance of the right to a reasonable accommodation. In sub-section 3, discrimination on the basis of a disability is outlawed unless it is necessary to accomplish a legitimate goal. According to Section 3, a disabled person’s freedom cannot be taken away only because of their disability. Likewise, government agencies are required by Section 20 of RPWD Act, to make reasonable accommodations and create a barrier-free work environment for people with disabilities.
Furthermore, it was made clear that the state was required by Sections 3 and 20 of the 2016 Act to protect disabled individuals from discrimination and provide them with humane treatment.
Paragraph 33 indicates that “Section 3 is a positive statement of the legislature’s aim that the fundamental principles of equality and non-discrimination be made available to persons with disabilities without the idea of a baseline disability.” The term “substantive equality facilitator” was used to describe “reasonable accommodation” [as specified in clause 2(y)]. If a person is not given a reasonable accommodation, it is considered discrimination under Section 2(h) of the Act.
In addition, the court in case of Vikash cited the seminal ruling of Jeeja Ghosh v. Union of India, which established that equality encompasses a broad range of positive rights, including the right to reasonable accommodation. Furthermore, the court concluded that the refusal to provide a reasonable accommodation amounted to disability-based discrimination in violation of Section 3 of the RPWD Act. The goal of this regulation is to prevent a disproportional burden on people with impairments while still requiring them to overcome small impediments and achieve full participation. The state must provide conditions where people with disabilities have full access to public services and programmes under this framework. So, the provision of a scribe or other reasonable accommodation is a tool for achieving actual parity.
The publication of the CRPD, and more specifically Article 1 and preambular para (e) of CRPD, has led courts in several jurisdictions to reinterpret the concept of "disability," making an explicit reference to ideas like the social model and the human rights model of disability, as made clear by various contributors to The UN Convention on the Rights of Persons with Disabilities in Practice edited collection. The Vikash Kumar proposal that judges should use language that challenges rather than perpetuates enabling attitudes remains crucial notwithstanding these developments. In doing so, it tacitly recognizes Law's expressive role and the duty it puts on lawmakers, including judges, by shifting the attention to the language through which court judgements are conveyed. The Supreme Court disagrees with the lower court's description of the applicant's writer's cramp as a "disease," not because of any flaw in the lower court's reasoning, but because such language implies that disability is "an affliction that causes suffering," an understanding "rooted in the medical model of disability" as laid down in Para 68.
Furthermore, The Vikash Kumar rallying cry is a plea to judges to deliberate over their use of disability-related terminology and to take steps to ensure that it is understood by individuals with disabilities to be encouraging of participation and agency. This necessitates paying close attention to the perspectives of people with disabilities and their organisations, which in turn underscores the necessity for organisations representing people with disabilities to be encouraged to participate in judicial training and advice.
Therefore, by committing to the CRPD, India has assured its disabled citizens and the rest of the world that their rights would be respected and advanced. People with disabilities are among the world's poorest and most marginalised, and the CRPD emphasised the need of examining their human rights. It firmly established the rights of people with disabilities as a universal concern. It ushered in a new progressive paradigm, particularly for the disabled who had been excluded and forgotten up until this point.
So far, all efforts in India to ensure that people with disabilities have equal rights and opportunities have been focused only on a medical paradigm, without taking into account the social, economic, or legal contexts in which they live. The outlook for those with disabilities is not completely bleak, however bringing the PWD Act 1995 up to date with the UN Convention on the Rights of People with Disabilities leaves a lot of room for reform.
According to this rights-based and disabled-centric understanding of reasonable accommodation (as discussed above while analysing the Vikash Kumar Dictum), failing to do so amounts to discrimination. Decisions on what constitutes a reasonable accommodation must be decided on a case-by-case basis, in collaboration with the impaired individual in question. The idea of reasonable accommodation mandates consultation with the affected person to identify the most appropriate means of overcoming the obstacle in question.