Indian Constitution: Rights For Disabled

Rights For Disabled Under the Indian Constitution 

Disability in itself is an enduring and excruciating truth; in such a case, if the disabled people have not been privileged and given special status, then it would be a threat for their survival. Understanding the necessity, nationally as well as internationally many laws have been legislated and enacted to protect the rights of disabled people.  

 

However, before going forward and discuss the constitutional and judicial provisions, let us understand actually, who are disabled. According to the Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act 1995 (PWD Act), based on a medical model, defines disability as: 

The person, who suffers any or couple of the problems from the listed given below, is categorically categorized as disabled.

• Blindness
• Low vision
• Leprosy-cured
• Hearing impairment
• Locomotor disability
• Mental retardation
• Mental illness

Constitutional Provisions

As such Constitution of India does not specifically pronounce an exclusive right for the disabled; however, some of its provisions are equally applicable and ensure the rights for all including disabled.

The Preamble states that “… to secure to all its citizens;

JUSTICE, Social, Economic and Political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity and to promote among them all;

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation….”

Article 14 guarantees to its all citizens equality before law and equal protection of law.

Further, Articles 15 and 16 proscribe discrimination on the grounds of “religion, race, caste, sex, place of birth or any of them.”

Likewise, here we can see, all these provisions are common and not exclusive for the disabled people. However, in recent years, judicial interventions have been given the ways to disabled people, as it secures reserved rights for them.

Judicial Interventions

Laws legislated and enacted after the independence did not give space to disabled people in the list prohibited heads of discrimination. As we have discussed above the Articles 15 and 16 strictly forbid discrimination related to employment and access to the public facilities on the grounds of religion, race, caste, sex, and place of birth, but it did not say anything for the disabled. 

Furthermore, till 1995, the Service Rules also restrained the entry of a disabled person in higher grade services. The rule was pitiless, as it authorized the employer to force premature or voluntary retirement in public interest. Secondly, if any employees who somehow got disabled during his service – he was left with two options either to leave the job or accept the lower rank. Likewise, his career opportunity development used to seized permanently. 

Time has changed, as the Judiciary came forward to set aside the discriminatory rules.  For example: 

In Nandakumar Narayanarao Ghodmare vs. State of Maharashtra and Ors. (1995 SCC 720), the Apex Court directed that the candidate who was rejected on the ground colorblindness should be appointed to any of the posts of the Agricultural Class II Service.

 

In Rajbhir Singh vs. DTC (97 2002 DLT 19), the Delhi High Court directed the respondent to “take the petitioner back into the respective service and pay salary from the date when the management stopped paying salary to the respondent in respect of termination of his service.” 

In Indra Sawhney vs. Union of India (1992 Supp (3) SCC), the Supreme Court observed the legality of reservation in favor of the disabled who are not evidently covered under Article 16 of the Constitution. The Court stated “… mere formal declaration of the right would not make unequals equal. Further, the Court said that “to enable all to compete with each other on an equal ground, it is indispensable to take positive measures to equip the disadvantaged and the handicapped to bring them to the level of the advantaged. Article 14 and Article 16(1) undoubtedly would by themselves permit such positive measures in favor of the disadvantaged to make real the equality guaranteed by them.”

In Dr. Jagdish Saran & Ors. vs. Union of India (1980 2 SCC 768), Justice Krishna Iyer elucidated that “even apart from Articles 15 (3) and (4), equality is not degraded or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit.”

Fortunately, the law is progressive in nature; the Judiciary always comes forward to secure the rights of all those people whose rights are threatened.

Moreover, following are the specific Acts that exclusively deal with the disability rights:

• The Mental Health Act of 1987.
• The Persons with Disabilities Act.
• The Rehabilitation Council of India Act.
• The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act of 1999.