There exist a number of ways to define a concept or notion to embody the same in a legally tenable manner. Yet the contours of disability present indications of the aspirations of an entire class of people whose daily engagement with physical infirmity explains their continuing quest for dignity. A disability can be objectively defined and has been so across the globe, but its subjectivity varies from one country to another based on how the law surrounding it has moulded its perception.
In India, the definition of a disabled person finds mention in Section 2(s) of the Rights of Persons with Disabilities Act, 2016. This is a revolutionary legislation that repealed the 1995 Act and brought the Indian law on disability in line with the United Nations Convention on the Rights of Persons with Disabilities. Under the 1995 Act, disability was merely considered to be a medical condition – devoid of any understanding of how disability is engendered by social structures that are tailored for able-bodied persons and thus obstructs equal participation of persons with disabilities in the society.
Section 2(t) of the 1995 Act defined a person with disability as: “a person suffering from not less than 40% of any disability as certified by a medical authority. Whereas Section 2(s) of the RPwD Act of 2016 defined PwD as “a person with long term physical, mental, intellectual or sensory impairment which, in interaction with, barriers or hinders, his full and effective participation in society equally with others”. The Act of 2016 clearly has a more inclusive definition of PwDs. This demonstrates a shift from a stigmatising medical model of disability to a social model of disability that recognizes the societal and physical limitations – a shift which is conscious of the resulting exclusion of persons with disabilities from effective involvement in society.
The RPwD Act presents another distinctive notion of ‘persons with benchmark disabilities’. Section 2(r) of the Act of 2016 provides that: a “person with benchmark disability means a person with not less than 40% of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority”. Thus, Section 2(r) covers two situations, first where a specified disability has not been defined in measurable terms, and second, where a specified disability has been defined in measurable terms. Moreover, while under the 1995 Act, only seven kinds of disabilities were recognized, the 2016 Act recognizes 21 “specified disabilities” and further enables the Central Government to add categories of disability. In addition to widening the scope of the definition of disability, the Act of 2016 has also provided an open space for future developments.
Equality, non-discrimination and dignity form the spirit of the protective ambit of the RPwD Act of 2016. Section 2(s) unlike Section 2(r) is not labelled either with the notion of a specified disability or a benchmark disability. Section 2(s) of the 2016 Act has been phrased by the Parliament in broad terms and this is noteworthy because it recognizes three important aspects, (i) nature of the impairment, (ii) interrelation of the impairment with several barriers and (iii) effect of the impairment in obstructing full and effective participation on an equal footing.
While the Ministry of Social Justice and Empowerment in India is the nodal ministry entrusted with implementing the provisions of the RPwD Act of 2016, it is the judiciary that has been tasked with appropriately interpreting the law. The cases before the Apex Court test what the law professes. Its judgments generate introspection over the path which the Indian society has navigated so far and the road that lies ahead in realising the rights of the disabled. The Supreme Court through one of its recent landmark judgments has conveyed to disabled persons that they belong, that they matter, that they are assets, not liabilities and that they make this country stronger, not weaker.
Vikash Kumar Vs. Union Public Service Commission and Ors. (MANU/SC/0067/2021) upheld the right of the aggrieved with Writer’s Cramp to a scribe for the civil services examination. A division bench composed of Justice D.Y. Chandrachud, Justice Indira Banerjee and Justice Sanjiv Khanna, observed that:
“ Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India. A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become coequal participants in all facets of life.”
It was in this very judgement that the hon’ble court overruled the precedent of V. Surendra Mohan v. State of Tamil Nadu (MANU/SC/0055/2019), where the issue was whether there could exist limitations on visual impairment for appointment of Civil Judges. The court had held that visual impairment exceeding 40-50% was a ‘reasonable limitation’ for the discharge of duties of a civil judge. However, in this instance the court provided that the aforementioned judgement failed to recognize the objectives of the 2016 Act and that while it provides rights, it is the role of the judiciary to provide tools that make the rights meaningful. Leaning towards the importance of affirmative action, the court provided legal sanction to a reservation in promotions of PwDs of 3%.
It would be improper to not mention the words of this Hon’ble Bench that formalised the purposes of a statute and a constitutional commitment:
“The RPwD Act 2016 is fundamentally premised on the recognition that there are many ways to be, none more ‘normal’ or ‘better’ than the other… By opening doors for them and attenuating the barriers thwarting the realisation of their full potential, it seeks to ensure that they are no longer treated as second class citizens.”
Indian jurisprudence has come a long way through both statutory provisions and an active judiciary. A fundamental shift is now beginning to emerge in how laws are not being interpreted for just their legal purpose but also their social purpose. The social purpose of a law such as this is to organically incline the society to move towards a world where disabilities do not disadvantage people in how they interact with society. Hence, driving that social purpose of the law through pronouncements such as the one delivered in Vikash Kumar’s case (supra), the judiciary hopes to turn the text of the law into actual change. A change towards an equal society.
The discrimination that disabled people have been facing for years, for no fault of their own, has to be eliminated by the State, its Constitution and its people together.
Srishty is a first generation lawyer currently practicing in Delhi. Being a gold medalist in Political Science from Delhi University, she is also amongst the only 29 Indians to be an internationally qualified Golf Rules Official.
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