The Supreme Court of India and the Rights of Persons with Disabilities – Criticizing the Underpinnings of Disability Rights Jurisprudence in India – JURIST – Commentary

Aditya Mehrotra, 3rd year BA. LL.B (Hons.) students of Symbiosis Law School, Pune, India, discussing disability rights under Indian jurisprudence…

DY Chandrachud, Chief Justice of India, said: “physical and functional access“ Make the facilities of the Supreme Court accessible to persons with disabilities. The group will be chaired by his Supreme Court Justice S. Ravindra Bhat. The Supreme Court Supreme Court Committee on Accessibility (SCCA) uses the facilities of the Supreme Court for business and recreation to produce and distribute surveys to all who happen to have a disability. This includes SCCA workers, attorneys, litigants, and interns.

In India, the disability rights movement is not a new phenomenon and has been developing since the 1970s. Persons with Disabilities Act 1995 (Equal Opportunity, Protection of Rights, Full Participation) Great strides have been made in the rights of persons with disabilities, especially in the service and employment sectors (PWD Act). The law reserves her 3% of all government jobs for individuals with disabilities (PWD).As a result of the momentum of the movement, India signed ratify the Convention on the Rights of Persons with Disabilities in 2007.

Establishing and enforcing statutory rights for individuals with disabilities, along with a gradual shift from charity-based to rights-based strategies, is a shift that has occurred over time. Moving from the medical model of disability envisioned in the 1995 Act to a social model of disability and a human rights approach. United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the Rights of Persons with Disabilities Act 2016 (RPWD method) is another important development. The Incheon Strategy for Inclusion of Persons with Disabilities also contributed globally to the passage of the 2016 Law.

Criticism of the Rights of Persons with Disabilities Act (PWD Act)

The PWD Act of 1995 has only three sections on accessibility. These are set out in Chapter VIII, which deals with the prohibition of discrimination. Section 44 Regulates the accessibility of railway compartments, aircraft, buses and boats for persons with disabilities, concerned with the prohibition of discrimination in transport. It stipulates that toilets on trains, ships and aircraft must be accessible for people using wheelchairs. Section 45 Permits the installation of audible signals at crosswalks, sidewalk curb cuts and slopes, and roadside signs. Section 46 Public buildings and hospitals should be equipped with ramps, elevators with acoustic signals, and wheelchair-accessible toilets. Despite their codification, courts have emphasized that these provisions are rarely followed and enforced.

Twenty years after the PWD Act came into force, a significant portion of India’s 70 million disabled people still have access to the country’s most important socio-economic institutions, the ones they need to lead productive lives. does not have physical access to

Given that the PWD Act has been able to fill a significant legal void left by the lack of specific disability legislation, it is intended to provide persons with disabilities with a solid legal basis to compete on an equal footing. lacks the robust, forward-looking provisions necessary for with others for at least two reasons.

First, rather than imposing obligations on stakeholders to make infrastructure accessible to persons with disabilities, most of the provisions of the Act are very vague and vaguely worded and are economically uneconomical. Requires stakeholders to make services accessible to the extent practicable. This gives government agencies an efficient escape route to circumvent the intent of the law by circumventing their obligations. For example, the PWD Act defines a “person with a disability” as someone who has at least 40% of her disability with any of the following: (ii) low vision; (iii) cured leprosy; (iv) Hearing Impairment. (v) movement disorders; (vi) mental retardation; (vii) mental illness. ” This is a restrictive definition. Because only 40% or more of her 7 impairments are classified as disabled and eligible for rights and programs under the PWD Act.

Second, the law lacks the enforcement mechanisms necessary to enforce real-world discrimination and access restrictions. The Disability Commissioner’s office established at the federal and state levels by this law is woefully understaffed and lacks the legitimacy and public support needed to enact broader structural reforms. This problem is exacerbated by the fact that the law does not specify sanctions for violators of its provisions. Therefore, law enforcement agencies lack the necessary resources to design solutions that facilitate universal access.

Reasonable accommodation and landmark Vikash Kumar Dictum

It has become imperative to note the landmark ruling of the Supreme Court of Vikash Kumar vs Federal Public Service CommissionThe Supreme Court held at paragraph 49 that failure to provide reasonable accommodation constitutes discrimination. To underscore the importance of the right to reasonable accommodation, the court carefully examined key parts of her RPWD Act. Section 3 prohibits discrimination based on disability unless the discriminatory activity is designed to achieve a legitimate purpose. People with disabilities are not deprived of their liberty simply because they have a disability. Section 3(4). moreover, Section 20 requires government employers to provide reasonable accommodations and accessible workplaces for people with disabilities.

kept revealing it Section 3 When 20 A 2016 law obliged the country to eliminate discrimination and ensure decent treatment of people with disabilities. Paragraph 33 states:[s]Article 3 is an affirmative statement of Parliament’s intention that the fundamental principles of equality and non-discrimination be made available to persons with disabilities without a standard concept of disability. “Reasonable Accommodation (as defined in) Section 2(y)) It was called a “substantial equality enabler.”according to Section 2(h) According to the Act, denial of reasonable accommodation constitutes discrimination.

Furthermore, the court Vikasdepends on the basic judgment of Zija Ghosh vs Indian FederationIt argued that equality encompasses a broad range of positive rights, including reasonable accommodation.Furthermore, the court ruled that denial of reasonable accommodation amounted to discrimination on the basis of disability under section 3 of the RPWD Act. . The rule is intended to help individuals with disabilities overcome small barriers to inclusion without exposing them to disproportionate burdens. Under this framework, countries should establish an environment that provides persons with disabilities with equal access to opportunities. As a result, reasonable accommodation, such as the supply of scribes, becomes a means to achieve substantive equality.

Conclusion

The provisions and benefits of the PWD Act remain unclear to the public. People with disabilities disproportionately constitute the low-income population. Children and adults make up the majority of people with disabilities. Educational institutions and community-based programs are insufficient for underprivileged people to benefit from these programs. Because they require early detection and prevention, and full participation in the public sphere. Empowering groups and government agencies is therefore an urgent need. They must be given equal rights in order to live a normal and comfortable life in a highly competitive atmosphere.

Finally, as the Government of India is making great strides in transforming India into a digital and information society, legislation should be introduced to initiatives such as Accessible India to ensure that the digitization of service delivery mechanisms can be mitigated. It is imperative that we provide a solid foundation for, rather than exacerbate the challenges faced by, the world’s largest minority, persons with disabilities.

Aditya Mehrotra is a 3rd year BA. He is an LL.B (Hons.) student at Symbiosis Law School, Pune. He is passionate about human rights studies, bail jurisprudence, lower court rights, and special law. He has published a paper on the strict bail provisions in his UAPA at the National Law College of Tamil Nadu, Constitutional Law Society. He was also published in Human Rights Law Review, along with his article “Membership in UAPA’s Prohibited Organizations.” Additionally, he has an interest in special law and has been published in various leading tax law platforms such as Tax Guru, Tax Management India and major newspapers such as The Daily Guardian.

Suggestions for citation: Aditya Mehrotra, Supreme Court of India and Disability Rights – Criticizing the Foundations of Disability Rights Jurisprudence in India, JURIST – Student Commentary, 31 January 2023, https://www.jurist.org/commentary/2022/ 01/Aditya-Mehrota – Disability Rights India/.

This article was prepared for publication by co-editor Rebekah Yeager-Malkin. If you have any questions or comments, please contact commentary@jurist.org.