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The Legal Framework for Enforcement of Rights of Persons with Disabilities.




In order to get a complete understanding of the legal framework governing the rights of persons with disabilities, we need to understand the several legislations that cover the field. The Constitution of India is the founding legal document guaranteeing fundamental rights to all persons which include persons with disabilities. The main legislation on disability rights is the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("PWD Act") which this chapter will be providing a detailed overview of.

Other legislations which also cover some specialized aspects of disability issues are the National Trusts Act, the Rehabilitation Council of India Act and the Mental Health Act 1987. This chapter will not be dealing with these legislations and will focus mainly on the PWD Act as this is the main legislation covering all rights of persons with disabilities in the country.



The Constitution of India

The Constitution of India under Chapter III guarantees fundamental human rights to all persons. The right to equality is enshrined in Article 14 of the Constitution and recognizes that all persons are equal before the law. Persons with disabilities are entitled to this guarantee to not be discriminated against in any manner and to be treated equally, which includes the requirement for special treatment where required. Similarly, Article 15 and 16 prohibits discrimination on the grounds of "religion, race, caste, sex, place of birth, or any of them and guarantees equal opportunity in matters of public employment. Article 16 (3) & (4) provides that the State can make provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services. It is on the basis of Article 16, that the guarantees to the reservation and equal opportunity in public employment are made under the PWD Act. The right to equality has been upheld for persons with disabilities not to be discriminated and to be provided equal opportunity in recruitment to the civil services.[1] Article 21 of the Constitution guarantees the right to life to all persons, which has been interpreted by the Supreme Court to include the right to live with dignity,[2], the right to livelihood,[3] and the right to education.[4] Article 21A guarantees the right to free and compulsory education for all children between the ages of 6-14 years.

Chapter IV of the constitution contains the Directive Principles of State Policy, which are also aimed for the State to comply with. The DPSPs provide in Article 38 that the State Policy has to be directed to minimize inequalities, secure the right to an adequate means of livelihood, and also secure that the operation of legal system promotes justice. Under Article 41, the State shall make provisions for ensuring the right to work, education, and public assistance in case of unemployment, old age, sickness and disablement and in other cases of undeserved want. The State shall endeavour to provide for free and compulsory education for all children until they complete the age of 14 years and under Article 46 the State has also the responsibility of promoting with special care the educational and economic interests of the weaker sections of the people. All these provisions are equally applicable to persons with disabilities.

The denial or violation of any of these rights would entitle any person to approach the High Courts or the Supreme Court in their writ jurisdictions under Articles 226 and 32, respectively, if there is no other alternative or equally efficacious remedy available.


The PWD Act

The PWD Act came into force on 1st January 1996, and was enacted in pursuance of India's obligation under the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region, which it adopted in December 1992. The Act provides for various measures for persons with disabilities to facilitate their access to education, employment, basic infrastructure, and social welfare measures.

Under the PWD Act, a 'person with disability' has been defined as any person having 40% or more of any of the following disabilities: (i) Blindness; (ii) Low vision; (iii) Leprosy cured; (iv) Hearing impairment; (v) Locomotor disability; (vi) Mental retardation; and (vii) Mental illness. This is a limited definition, as only persons who fall within this definition as having 40% or more of the above 7 disabilities would be categorized as persons with disabilities and would be entitled to get the benefits of the rights and schemes under the PWD Act.

The main rights available to persons with disabilities are in the field of education in public schools, public employment, infrastructure on the roads and in public transport and access to public buildings, and a grievance redressal procedure for the protection of their rights.


Education

Under the PWD Act, all children with disabilities below the age of 18 have the right to free and compulsory education that is accessible. This goes even beyond the mandate of the Right of Children to Free and Compulsory Education Act, 2009 that calls for free education to be provided to children up to the age of 14. The further obligations placed on the government by the PWD Act with respect to formal education are that efforts must be made to see that these children with disabilities are integrated into regular schools that they attend and that the setting up of special schools with vocational training facilities should be encouraged at the local level in the Government and private sectors so that children across the country who require special education have access to such schools in their areas. Section 39 of the PWD Act also requires that 3% of all seats in Government and Government-aided educational institutions be earmarked for children or students with disabilities. The PWD Act also requires that the government formulate and implement schemes pertaining to non-formal, functional education, in respect of the following matters:

(a) Conducting part-time classes in respect of children with disabilities who have completed the fifth grade and could not continue full-time studies thereafter;

(b) Conducting special part-time classes to provide functional literacy for children with disabilities in the age group of sixteen and above;

(c) Imparting non-formal education after an appropriate orientation;

(d) Imparting education through open schools or open universities;

(e) Conducting class and discussions through interactive electronic or other media; and

(f) Providing every child with a disability the requisite books and equipment, at no cost.

Additionally, to facilitate equal opportunities in education for children with disabilities, the government is obligated to promote research on assistive devices, teaching aids, and special teaching materials, and establish and assist special teachers' training institutions. Educational institutions are required to ensure that children with visual disabilities are provided with scribes when required. To further facilitate the mainstreaming of children with disabilities, the government is required to prepare a comprehensive scheme providing for facilities or financial support for transport to and from school, making school supplies available, scholarships, grievance redressal fora, modification of examinations and restructuring of the curriculum.


Employment

Chapter VI of the PWD Act, containing Sections 32 to 40, addresses the affirmative action measures with respect to the employment of persons with disabilities. It requires that at least 3% of all posts in all jobs under the government are required to be reserved for persons with disabilities, with 1% each being reserved for persons with blindness / low vision, persons with hearing disabilities, and persons with locomotor disabilities / cerebral palsy.

To ensure that reservations have meaning, the government is required to identify posts in all public establishments that shall be reserved for persons with disabilities, based on the suitability of such posts to each category of disability. The list of identified posts so prepared is required to be revised in light of technological developments, at regular intervals of a maximum of 3 years.

Under Section 34, vacancies are required to be advertised, with the details of the reservations for the persons with disabilities, in the Special Employment Exchange and, if not filled, shall be carried forward to the next recruitment year.

There are also many requirements of reasonable accommodations to be provided by the Government under Article 38 of the PWD Act and to formulate schemes for the following:

(a) relaxations of age limit,

(b) training,

(c) creation of an enabling environment and providing incentives to employers.

(d) The government is also required to frame an insurance scheme for its employees with disabilities and is expressly prohibited from discriminating against emp