A STUDY ON- ROLE OF CONSTITUTION AND JUDICIARY IN PROTECTING THE RIGHTS OF PERSONS WITH DISABILITY
Author: Yogesh Mishra
Assistant Professor, KIIT Law School, KIIT University
The problem of doing justice to people with physical and mental impairments is one of the major unresolved problems of social justice. The problems that are being faced by the differently-abled person have been an issue to be looked upon. Also, the problems of the differently-abled person have been neglected in the existing society. Numerous research and policy studies on disability indicate that all around the world there are approximately 10% of the world’s population has been suffering from disability of one form or the other. As early as 1957, the then UN Rehabilitation Chief, Kurt Janson observed: “About 12 to 13 percent of the population of any given country suffers from a permanent or long term disability”. Former World Bank Chief James D. Wolfensohn reported in 2002 said: “disability can affect 10 to 20 percent of a country’s population, a percentage that is expected to grow because of poor health care and nutrition in early life, growing elderly populations, and violent civil conflicts”. So there is an urgent need to provide the person with special facilities at different levels so that they can be made to survive easily with all other individuals. They must be given certain rights to secure their living and their easy survival. The main aim of this paper is to highlight the various rights that have been given by the Constitution to the Person with Disability and also put a light upon how the judiciary has played its part in protecting those rights.
It was evident to the Constitution makers that there will be discrimination that will be done to the person who belongs to the weaker sections of the society. So to create equality among the people of all the class as well as sections of the society, there must be strong provisions that will ensure there equal protection as well as equal rights. To ensure social and economical justice as well as equality to the person who is suffering from disability be it physical or mental. Hence provisions with regards to the protection of rights of weaker sections of the society have been incorporated in different parts of the Constitution.
The responsibility concerning the subject of “Relief to the disabled and unemployable” has been laid upon the State Government as per Entry 9 in the list II of Schedule 7, but in practice, the major role has been played by the Central Government in this regard. For the welfare of the disabled person, there has been a Ministry of Welfare that has been formed by the government. While having a look at the various provisions of the constitution we will be able to look at the way the Constitutional makers have tried to protect the rights of the persons with disabilities.
Not only the Fundamental rights but also the Directive Principle of State Policy has also played an important role in creating a welfare society. The Constitution grants Social, Political and Economic equality as well as justice and hence to enforce them the Directive Principle of State Policy has played a more important role than the Fundamental Rights. The Directive Principle of State Policy has always played a guiding role for the government to create proper social equality and the government has also time to time adopted the Directive Principle of State policy which has been helping it to create a welfare state. The Courts also have played an important role as of Craftsman as it has widened the ambit of various provisions of the Constitution that has enhanced the justice delivery mechanism and helped people to get what they are entitled to.
PREAMBLE ON DISABILITY
The preamble of our constitution has stated the concept of justice in the form of social, economic and political. In all the three social justice has been given priority. Disability falls under the basic concept of social justice, which has been enumerated in the constitution and which is also the soul of the constitution. To secure the social justice of the disabled section in the society they are to be provided with the opportune opportunity.
The preamble provides and promises for the fraternity to assure the dignity of the individual. The dignity of the individual is hurt when they are exposed to unfavorable conditions and has to face infrastructure hurdles in places for public use like offices, buildings, transports, etc. this hurts them and violates the concept of fraternity that has been laid down in the Constitution in the preamble.
FUNDAMENTAL RIGHTS OF PERSONS WITH DISABILITIES
Article 14 which is the fundamental right to equality states that “the state shall not deny to any person equality before the law or equal protection of law within the territory of India”. This Article is very important for this purpose. Judicial pronouncement of not only the Supreme Court but also the High Court has left no doubt that the Constitution does not merely guarantee “Formal” Equality but also “Substantive” equality.
By “Formal Equality” we mean that treating the entire person on an equal basis and not granting anyone any sort of privilege or benefits. The hierarchy of distribution will be only classified on a normal basis and there will be no such further sub-classification. The only liability that will lie upon the state will be to treat everyone in the same manner which will be based on objective standards.
But our Constitution under Article 14 has given recognition to the “Substantive Equality” as has opposed the concept of “Formal Equality”. The concept of substantive Equality is based on the motive of the creation of the welfare states as it focuses on the treatment of different persons differently. That means, the equal person will be treated equal but the person who is not equal will not be treated equally with the equals. So this makes the state responsible for taking proper steps and initiatives to make the life of disadvantageous sections of the society look easy.
There have been two implications of “Substantive equality”:
- Substantive equality has ruled out any kind of denial or discrimination to any individual or class of individuals, on an unreasonable or arbitral basis.
- What substantive equality permits is “affirmative action’s” which can be done only by creating special laws and also those laws must create special rights and “positive discrimination” can be done by the method of reservations for the persons belonging to the weaker sections of the society.
Thus, it can be stated that the rights of a disabled person and any sort of discrimination they are mandated to falls within the ambit of Article 14 of the India Constitution. In the case of the National Federation of Blind vs. Union Public Service Commission, “a writ petition was filed against discrimination of visually impaired in competing of the coveted civil services of the country, and for the government to be directed to permit otherwise qualified blind candidates to appear in the selection examination. The Supreme Court not only allowed the petition but also directed the government to allow them to write the examination in Braille or with the help of scribe”.
Article 21 of the Constitution states, “No Person shall be deprived of his life or personal liberty except according to the procedure established by law”.
So, Article 21 of the constitution grants to every individual Right to Life, but Right to Life doesn’t mean living like an animal, instead, Constitution guarantees its individuals a dignified life under just and humane conditions.
In the case of Kharak Singh v. State of Uttar Pradesh the Supreme Court quoted and held that:
“By the term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an arm or leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world”.
In Sunil Batra v. Delhi Administration, the Supreme Court reiterated with the approval of the above observations and held the right to life included the right to lead a healthy life to enjoy all faculties of the human body in their prime conditions. It would even include the right to protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It includes the right to live in peace, to sleep in peace and the right to repose and health”.
From the above decisions of the Supreme Court, it has been held clearly that Article 21 has a very wider implication and existence. It has not only placed the physically and mentally abled person within its ambit but has also made provisions that there should not be any form of discrimination for the person who is suffering from any sort of disability.
Article 15(1) of the Constitution 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. So the Constitution of India is against any form of discrimination done to any individual in India whether he is able-bodied or having any sort of disability whether Physical or Mental.
Article 15(2) again states “No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition concerning—
(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 State funds or dedicated to the use of the general public.” In this provision also the Constitution has placed the disabled person at par with the abled person, with regards to the rights guaranteed under the Constitution”.
Although at times they have been provided relief by the courts and one of the leading cases be Rajeev Kumar Gupta vs Union of India. In this landmark judgment, the Supreme Court set aside Government of India instructions disallowing reservation in promotion for persons with disabilities and held that wherever posts are identified to be suitable for disabled persons, a 3% reservation must be given in direct recruitment as well as in promotion. The case, argued by Rajan Mani, Advocate of the Disability Law Initiative, in coordination with the Human Rights Law Network, represents success in a hard-fought battle waged by persons with disabilities for equal opportunity and representation in the higher echelons of Government. Hitherto, disabled persons were likely to stagnate at the lower levels of the organizational hierarchy, as their promotion to higher-level posts was made difficult because of their physical disadvantage. This was not the only area where the court intervened but there are several other matters where the court has ruled in favor of disabled people. But despite that there condition is still not at par.
One of the significant judgments delivered by the Supreme Court in Jeeja Ghosh vs. Spice Jet, the Supreme Court had stated, “Non-disabled people do not understand disabled ones. What non-disabled people do not understand is that people with disabilities also have some rights, hopes, and aspirations as everyone else”.
SOME LANDMARK SUPREME COURT CASES
Supreme Court has always tried to grant every right to the citizens that have been granted to them by the constitution. The courts have always taken steps to protect and safeguard the rights of the individuals. Some of the famous and important judgments that the court has delivered to protect the rights of the disabled person that has been granted to them by the Constitution have been listed below.
Dr. Upendra Baxi v State of Uttar Pradesh– This is a petition that has been filed in the form of PIL under Section 32 of the Constitution of India. The petition was filed by Dr. Upendra Baxi and Mrs. Lotika Sarkar. This petition has been filed to seek the direction of the Supreme Court to the State Government. It was held that the basic human rights of the ones who are residing in the protective homes at Agra. The Suppression of Immoral Traffic in Women and Girls Act, 1956 has incorporated the provisions for the establishment of the Protective Home.
The direction then gave certain directions to the State Government of Uttar Pradesh as well the Administrators of the Protective Homes that they are obliged to provide much better conditions of living to the person who is residing in the Protective Homes. The court has also stated that the present condition of living which in inhumane must be improved. Even it was accessed that the condition is deteriorating from last few years hence, that must be stopped and the conditions must be improved as soon as possible. The court has also stated that the provisions of Article 21 of the constitution which has guaranteed Right to life with Dignity must be brought into effect and it must be followed in its real meaning and sense.
An affidavit was filed by The Superintendent of the Home, Mrs. Shrivastava before the Supreme Court. The Affidavit stated that there has been full compliance given to the directions that have been issued by the Supreme Court and the State Government had followed all the directions. Supreme Court has stated that as per the earlier direction stated by all the inmates who were presently residing in the home must be medically examined. As per the report that has been submitted by “Incharge of Department of Psychiatry, S N Medical College Agra”, it was stated that they have examined around 50 individuals who were residing in the Home and out of which 33 individuals are suffering from mental retardation. The degree of retardation, however, varied from one individual to another. But it was stated that at the time when they were being admitted to the home they have not been medically examined.
An explanation as to why they have not been medically examined was sought by the Supreme Court from the Superintendent of the Home. The Supreme Court also asked as to why there has not been any kind of Psychiatric treatment provided to them. Even there have been no efforts made for their rehabilitation. The Supreme Court also directed both state government as well as the superintendent to make proper arrangements as to the transfer of the person suffering from mental retardation to another Institution which will be suitable for them. Hence the mentally retarded mates must be segregated from the other inmates.
Deaf Employees Welfare Association v Union of India– A writ of mandamus was filed against the state as well as the central government to grant equal transport allowances to all the government employees who are suffering from hearing impairment which was already being given to the person who was blind and also some other government employees. It was also contended that whatever allowance that was being given to the hearing impaired employees was significantly lower as compared to allowances that were granted to other employees with disability.
When Supreme Court looked upon the matter it straight away not only allowed the petition but also issued a direction to the respondent stating that there must be equality concerning the grant of allowances and the person who is suffering from speech and hearing disability are entitled to get the same allowances as that is being received by the Blind and Orthopedically disabled government employees. The court stated “there cannot be further discrimination between persons with disabilities of ‘blindness’ and persons with disabilities of ‘hearing impairment’. Such discrimination has not been envisaged under the Disabilities Act.” Equal Protection of law and equality of law has been provided to the entire person by the constitution and which also covers the disabled person who is performing under the government. So it was stated by the Court that like another disabled person the dignity of the person with hearing impairment must also be protected by the state no matter what. It has been witnessed that it is assumed that the blind person suffering is more as compared to that of the person having a hearing impairment, the court stated that this assumption must not be made and hence the person with hearing disability must be given same benefits as that is awarded to blind citizens. The state should make any move in this regard by keeping in view the Article 14 of the Constitution and what has been stated must be followed strictly. So finally it was held under this case that the deaf and mute people must be treated at par with the other disabled person and must be given the same allowances as is being given to the person who is blind and orthopedically handicapped employees of the government.
Government of India v Ravi Prakash Gupta -This is the case that revolves around a person, the respondent to the case, who is a visually challenged person who has cleared the Civil Services Examinations which is conducted by Union Public Service Commission. But, although he has cleared the merit list and was at Serial Number 5 in the merit list of the person with visual imparity, he was not given as appointment. Initially, the respondent filed a petition under the Central Administrative Tribunal, but the tribunal rejected his contentions. The respondent then approached the High Court. The High Court, however, directed the Government to grant him the appointment as the name of the respondent was there in the merit list. But the State Government stated that for this post the reservation cannot be granted as for this post there has been no reservation identified for the person with disabilities and hence the government cannot make any sort of reservation.
When the matter was raised before the Supreme Court, the Court straight away rejected the contention that has been raised by the State Government. The Apex court hence stated the contention of the State Government to be false which stated that the jobs must be identified under Section 33 of the Act and was one of the pre-requisite for reservation and appointment. The court stated, “It is only logical that, as provided in section 32 of the aforesaid Act, posts have to be identified for reservation for 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.”
It was observed by the Supreme Court that persons with disabilities are facing a key problem of Unemployment and they have been denied jobs. Although providing proper jobs to persons with disabilities is a major game-changer when we talk about their empowerment. The denial of jobs to the Persons with disabilities is not because of their disability but the social stigma and practical barriers play a major role in preventing them from joining any workforce. Although the Persons with Disabilities Act, 1995 has provided equal opportunity at the workplace but the persons with disabilities have failed to claim its benefit even today. The Supreme Court also stated that the Government which has been taking a key interest in providing reservations to peoples from various castes has however chosen to challenge the reservations for persons with disabilities in the Supreme Court.
In this case, the question that came before the Supreme Court for consideration was whether the reservation can be exceeded beyond 50%. The Court has replied in affirmative and hence stated that judgment that has been delivered in the Indira Sawhney case will not operate to bar the reservation for persons with disabilities. The Court has also stated that persons with disabilities must also be provided with suitable reservations in the private sectors too.
Union of India v National Federation of the Blind– There was an appeal filed against the decision of the Delhi High Court where there was a Public Interest Litigation has been filed to request the proper implementation of Section 33 of the Act. It was stated that there has been a denial of reservation rights to the person who is blind and having low vision by the appellants. By doing so they have acted against what has been stated in the Act as they have excluded them virtually from the recruitment process to the government post. It has been clearly stated that they are entitled to the reservation under the Act and hence they must be granted reservation.
The Court then took over the matter and firstly looked upon that whether the Calculation of 3% that is to be made is to be calculated over the cadre strength of the total number of vacancies. And after the findings, it was stated that 3% that has been stated refers to the part of total vacancies in cadre strength. The court also stated, “It is clear that while section 33 provides for a minimum level of representation of 3 percent in the establishments of appropriate government, the legislature intended to ensure 5 percent of representation in the entire workforce both in public as well as the private sector”.
Suchita Srivastava v. Chandigarh Administration– This case revolves around the reproductive right of a woman who is mentally retarded. The women reside at a Welfare Institution sun by the Government at Chandigarh. The woman was raped by in-house staff and which resulted in her pregnancy. The woman was willing to give birth to the child and hence will undergo full-term pregnancy.
The petition was then filed by the Chandigarh Administration in the high court to seek permission for the termination of the pregnancy of the woman under the Medical Termination of Pregnancy Act, 1971 (“MTP Act”). The ground on which the termination was sought was that the woman will not be able to give proper care and attention to the child and hence that will go against the child. The expert body, however, finds out that woman was willing to have a baby and will bear the child. But apart from the expert body report, the High Court directed the order of termination of the pregnancy. The lady then approached the Supreme Court through the Amicus Curie and the main concern that was before the Supreme Court was relating to the legal capacity of the women. The court needs to find out whether the decision made by a mentally retarded lady concerning her pregnancy can be relied upon or not.
The Supreme Court brought to the notice the provisions of the MTP Act where it has been clearly stated that if the pregnancy has been because of rape and such pregnancy is to be terminated, it is mandatory to take the consent of the women.In the proviso clause, it has also been stated that if the women is “Mentally Ill” then the pregnancy can only be terminated when it has been approved by the Guardian of the Women. The Court then also went on to make a distinction between “Mental Illness” and “Mental Retardation”. The Court then Upholding the Legal capacity of the Appellant stated that-
“While a guardian can make decisions on behalf of 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 concerning 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 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.”
It was the Stated by the Supreme Court that the MTP Act has clearly stated that the consent of the mentally retarded women was required to terminate the pregnancy. So giving effect to this the court stated that the Appellant was mentally retarded, and has not given her consent to terminate the pregnancy, hence the court cannot allow for termination of the pregnancy. So while concluding, the Court gave recognition to the reproductive rights of a woman under the MTP Act and gave recognition to the International norms as well as principles concerning the mentally retarded persons as well as persons with disabilities under the CRPD. The court then specifically in this context stated-
“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 about 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.”
There has been clear recognition given by the court to the mentally retarded about their pregnancy and hence they are independent to decide on their own. The Supreme Court also held that “Her reproductive choice should be respected despite 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.” in this case the Supreme Court has laid out the specific right to legal Capacity which cannot be put under limitation concerning one’s understanding and situation. Hence while taking close reference of the case it can be said that the case follows the spirit of protection of legal capacity under Article 12 of the CRPD.
So, by the above stated important cases and various provisions of the Constitution, it has been held that both play an exclusive role to protect the rights of the Person with Disability. Judiciary has shown its positive approach to create a welfare state and actively participated in the protection and preservation of the Rights of Person with Disability. Still, there are certain loopholes in the law as well in its enforcement but it has shown its interest in recognizing and protecting the Rights inclusively as well as exclusively.
 Constitution of India, 1950
 (Government of India (1994): National Council For the Handicapped Welfare, Ministry of Welfare, Vigyan Bhavan, New Delhi, on 21st September at p. 1.)
 CONSTITUTION OF INDIA, 1950
 1993 AIR 1916, 1993 SCR (2) 556
 1963 AIR 1295, 1964 SCR (1) 332
 1980 AIR 1579, 1980 SCR (2) 557
 WRIT PETITION(CIVIL) 521 OF 2008
 Writ Petition (Civil) No. 98 of 2012
 (1983) 2 SCC 308
 “Disabilityindia.Co.In,” accessed March 24, 2018, http://www.disabilityindia.co.in/Disability-Law-and-Access-to-Rights/humanrights.php.
 Civil Petition 107 of 2011, decided on December 12, 2013
 (2010) 7 SCC 626
 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
 Id at Para 16
 AIR 1993 SC 477, 1992 Supp 2 SCR 454
 (2013) 2 SCC 772
 2009 (9) SCC 1
 Section 3(4)(b), Medical Termination of Pregnancy Act, 1971
 Section 3(4)(a), Medical Termination of Pregnancy Act, 1971
 Suchita Srivastava Chandigarh Administration, (2009) 9 SCC 1, at para 15
 Id at Para 25, 26
 Suchita Srivastava (n 5) at Para 10