People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature. These disabled person are no longer discriminated due to their physical problems but are treated equally under the eyes of law. Article 14, 15, 16 and 21 of our Indian Constitution depicts about providing equal liberty, integrity and dignity to all the citizens. According to a survey:
- Census 2001 = 2.19 crore people in India are disabled.
- One WHO report states that around 10% population of world is disabled.
The Indian Disability Laws for the Rights of persons with Disability
The govt. of India has enacted 3 legislations for persons with Disabilities:
1 Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which provides for education, employment, creation of a barrier free environment, social security, etc.
2 National Trust for Welfare of Persons with Autism, Cerebral palsy, Mental Retardation and Multiple Disability Act, 1999 has provisions for legal guardianship and creation of an enabling environment that will allow as much independent living as is possible.
3 Rehabilitation Council of India Act, 1992 deals with the development of manpower for provision of rehabilitation services.
The Persons with Disabilities Act, 1995 (PWDA) addresses the issue of education for children with disability as an ‘endeavour’ to promote their integration within mainstream schools. The focus is not on building the capacity of people living with disabilities, but rather on helping them to cope within the existing mainstream educational system. A similarly lifeless approach continues through the chapters, whether concerned with participation of people with disabilities, prevention and early detection of the disabilities, research and manpower, recognition of institutions for persons with severe disabilities, social security, etc. Here one clearly realizes that the ACT which is at the heart of all policies pertaining to persons with disabilities is itself conceptually flawed; to expect a Rights Based Policy from a Welfare Based Law is therefore misplaced.
Person with disability”(PWDA) means a person suffering from not less than forty per cent of any disability as certified by a medical authority. And “Disability” means-
2) Low vision;
4) Hearing impairment;
5) Loco motor disability;
6) Mental retardation;
7) Mental illness ;
However, this definition of disability needs to be more modified. The current definition does not cover all the categories of disability. The Madurai Bench of the Madras High Court has ruled that the benefits conferred on a Government employee, who is disabled during his/her service period, under Section 47 of Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995 cannot be confined only to seven types of medical conditions defined as `disability’ in the Act.
It was observed in the case of Social Jurist vs. Union of India and others that a disabled child has the fundamental right to have access to free education in an appropriate environment till he attains the age of 18 years as guaranteed to his under Articles 21 and 45 of the Constitution of India. And it was also been held that, “it is the legal duty of the government to provide free educational facilities till the age of 18 years.”
In All Kerala Parents Association Vs. state of Kerala(1) case it was held that,“ Sec.39 of PWD Act, deals with the reservation of seats for persons with disabilities in Government educational institutions as well as educational institutions receiving aid from the Government, and necessarily therefore the provisions thereof must be complied with.” This section was interpreted widely in the case of Dr. Raman Khanna vs. University of Delhi(2) as:“the law does not state that the 3% reservation has 1% allocated to each of the 3 sub groups of disabilities. Since the law mandates a 3% reservation, the MCI cannot lower the quantum of reservation. Thus, it has to offer this 3% reservation to the category it allows, namely, physical or locomotors handicaps”.
In the Constitution of India there are provisions having a bearing on education for Schedule Castes, Schedule Tribes, Other Backward Classes, Weaker Section of the society, socially, economically and educationally backward classes and minorities. As:
1) ARTICLE 30: Right of minorities to establish and administer educational institutions
2) ARTICLE 46: Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections but the disabled have no such articles in Constitution like the above both. More over they are not part of weaker section or minority so they cannot get the power as mentioned in both the articles.
For Minority, in the case of Bal Patil & Anr. .V. Union of India & Ors “Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving protection from likely deprivation of their religious, cultural and educational rights by other communities who happen to be in majority and likely to gain political power in a democratic form of Government based on election”. The given definition does not include Disabled and Weaker Section also does not include disabled. The problem is that, even though SC & HC orders and / judgments many a times do not go in favor of disabled because it has no strong base for interpretation in the Constitution of India as the Schedule Castes & Schedule Tribes have. As far as the implementation part is concern it is a common problem for every law and its provisions.
In Mr. D. Pugazhenthi vs. Secretary to Government, Higher Education Department, a physically disabled person with 48% disability, applied for admission to the M.B.B.S Course for the academic year 2004-05 against the seats reserved for the physically handicapped candidates. His claim was rejected on the ground that the prospectus issued by the Director of Medical Education provided, that candidates with 50% to 70% disability alone were entitled for consideration under the reserved quota.
Then a Writ Petition was filed challenging the same. The petition was dismissed stating that the State government had the power to prescribe higher level of disability than the one prescribed by the said Act. The aggrieved party filed an appeal. The Court analyzed the relevant provisions of the Persons with Disabilities Act to see if the aggrieved party’s disability fell within the definition of disability under the Act. The Court observed that the Section 2(t) of the Act lays down the minimum percentage of any disability to enable a person to claim and avail the benefits of reservation.
The Court disagreed with the previous order, and held that the State Government could not prescribe a higher level of disability than the one prescribed under the said Act. The Court held that the person was entitled to the benefits of reservation and that the prospectus prescribing a higher level of disability for consideration under seats reserved for the physically disabled persons was invalid.
In conclusion, it can be said that the Persons with Disabilities Act, 1995 has proved to be a successful instrument with regard to provision of reservations in higher education. The deviation in drafting of section 39 has been ignored by the Court by way of decided cases, and hence the same may now be overlooked. However, the legislature must take due care while drafting important legislations and avoiding such anomalies which result in some loss to persons already disadvantaged.
1) 2003 (2) WLN 692
2) 2003 AD (Delhi) 343 Delhi High Court
Student, Amity Law School, Noida
[Submitted as an entry for the mightylaws.in Blog Post Writing Competition, 2011]