Jurisprudence on disability rights
Geeta Ramaseshan
a compilation of positive judgments on a wide range of issues covering disability rights
DISABILITY AND THE LAW: Shruti Pandey, Priyanka Chirimar and Deepak D'Souza — Editors; Pub. by Human Rights Law Network, a division of Socio Legal Information Centre, 65, Masjid Road, Jangpura, New Delhi-110014. Rs. 800.
Concerns on the rights of the disabled actually became visible in the public domain since the 1990s when a cluster of legislations was enacted by Parliament. These were: The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, The National Trust for Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, The Mental Health Act, and the Rehabilitation Council of India Act. These legislations though inadequate and faulty nevertheless marked a beginning by mainstreaming the issue.
During this decade many of these laws were tested in courts by activists of the disability rights movement and these cases highlighted their fault lines. This led to the development of jurisprudence on disability rights. However compared to the evolution of jurisprudence on gender or environment, the pace has remained slow.
Lack of awareness
There is also a lack of awareness in most parts of the country on the issue of disability rights. To give an example it is often not known that in the Indra Sawhney vs. Union of India case, popularly known as the Mandal case, advocate S.K. Rungta intervened for the National Federation of the Blind on behalf of all persons with disabilities and wanted the Supreme Court to consider the specific issue whether `backward classes of citizens' as defined by the Constitution could include persons with disabilities.
Despite sharp divisions on other issues raised in the Mandal case, the apex court held that though `backward classes of citizens' as used in the Article 15 and 16 did not cover persons with disabilities the constitutional scheme and spirit of the Article 14 allowed for affirmative action in favour of persons with disabilities.
Judgments
This book is a compilation of positive judgments on a wide range of issues covering disability rights. It starts with the constitutional framework and includes cases on education, employment, access, social security, mental health including those in personal laws, capacity to litigate and criminal liability and imprisonment. Other areas include general principles relating to disability both in national and foreign judgments and a few cases of the National Human Rights Commission. Statutes both Indian and some foreign also form part of the book.
The book is definitely not exhaustive and some headings such as `Employment' cover more cases than others such as `Access'. But this is also indicative of the fact that certain areas exhibit more concern that in turn has led to greater development of the law in that branch.
The authors point out that many issues, which have not been brought to the judiciary such as the problematic one — the misuse of disability certificates — several aspects of access with regard to roads, public buildings, transport, intellectual access and right of self-determination as part of statutory committees are not included.
So too are provisions of Acts that have not been used or disputed in courts even though they are otherwise contentious to the movement such as `prevention of disability', incentives policy for employment in the private sector, insurance and unemployment allowance to name a few.
State policy has been very ambivalent if not callous towards persons with disability. Appointment of a disabled person as a commissioner constituted under the Act is often an exemption. As pointed in the foreword to the book, it is impossible to imagine a man heading the Women's Commission. So, why this discrimination?
The book does not answer such questions but attempts to spread legal awareness on the issue of disability rights. It includes many unreported judgments of various high courts that would be very beneficial to the lawyer and the activist specialising in disability rights. But do not expect a detailed analysis of the law.
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