Chapter 4 VISHAL

CHAPTER 4
RIGHTS OF DISABLED PERSONS: INDIAN PERSPECTIVE
4.1 INTRODUCTION
An understanding of the Constitutional framework is germane to a study of
the disability laws and judgments in the country. There are at least three
reasons for this. Firstly, the so called "Disability Statutes", in India came
about only from the year 1995. Till then, the Constitution held fort and
provided remedy and relief to persons with disabilities when their rights were
violated or denied. Secondly, since the Statutes derive their roots from the
Constitution, the philosophy of the Constitution must get extended into the
provisions of the statues, which must always be tested against the
Constitutional touchstone to reveal their true import. Thirdly, even today, in
cases where these statutes fall short and cannot deliver due to the limitations
of their provisions which they do so on several counts, the Constitution can
still be invoked. So the protection of basic right like Rights to Life and
Equality of the person with disabilities cannot be underestimated.1
Part III of the Constitution of India provides for fundamental rights available
to all citizens of India including those who may be physically or mentally
challenged. These rights pertain to various rights which a citizen enjoys by
way of Constitutional guarantees. Disability has not been defined in the
Constitution.
However, disability by itself will not constitute a liability or restriction or
condition with regard to access to public places like shops, restaurants, hotels
1
Shruti Pandey, Disability and the Law 201 (Priyanka Chariman and Deepak D'Souza, 2005)
and places of public entertainment or for the use of wells, tanks, bathing
ghats, roads and places of public resort which are maintained out of state
funds or have been dedicated to the use of the general public. The
Constitution also directs the state to ensure that disability does not become a
reasons to deny to any citizen opportunity for securing justice.2
At the time when the Constitution was being framed, a provision was made
that special legislations can be made for women, children and for the
advancement of those belonging to socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
However, at that time, the cause of the disabled had not assumed much public
or national awareness and so there was no provision made for any special
legislation in favour of the disabled like it has been made for women, children
and those belonging to the backward classes. It would be useful to examine
the Articles of the Constitution which apply uniformly to those who are
disabled at par with those who are not disabled. The following rights and
guarantees as discussed below are available to the disabled citizens as much
as they are available to those who are not disabled.
4.2 CONSTITUTIONAL PROVISIONS FOR THE RIGHTS OF

PERSONS WITH DISABILITIES
4.2.1 PREAMBLE
2
M.P. Jain, Indian Constitutional Law 185 (Lexis Nexis, Gurgoan Haryana, 2014)
Equality, Dignity, Sovereignty and Liberty are the founding on which
international human rights law is premised. These ideals have amply
influenced the elementary law of democratic polity and echoed Constitutions
of most democratic nations counting India as well. The Constitution of India
premised on the principle of social justice and human rights. The Preamble,
the Directive Principles of State Policy and the Fundamental Rights enshrined
in the Constitution stand testimony to the commitment of the State to the
people. These provisions envisage a very positive role for the State in the
upliftment of the status of disadvantaged groups.3
The opening words of the Preamble of the Constitution are "We, the people of
India" The word "people", used in the Preamble itself indicates that no
discrimination was envisaged by the Constitution makers amongst the people
of India on any ground whatsoever: be it Religion, Race, Colour, Creed, Caste
or even disability. People suffering from disability, whether they were blind,
physically disabled or even mentally retarded, were included in the word
''people" and an assurance was given in the Preamble "to secure to all its
citizens: Justice, Social Economic and Political" as also equality of status and
of opportunity and to promote fraternity so as to uphold the Dignity of the
individual.4
Further, the Preamble to the Constitution of India expressly declares to, “....
Secure to all citizens; Justice, Social, Economic and Political; 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.”
3
Anuradha Mohit, Meera Pillai, Pratiti Rungta, Rights he Disability 17 (National Human Rights Commission,
New Delhi, 2006)
4
For details on the Speech delivered by Hon'ble Chairperson of the Rajasthan Human Rights Commission un
Disabled Day. visit http://rshrc nic.inlhtm/e-SpSagir-E%201/.html (Last visited on 20April, 2024)
4.2.2 FUNDAMENTAL RIGHTS
4.2.2.1 ARTICLE 14: RIGHT TO EQUALITY

Article 145 ensures that all persons are equal before the law and that equal
protection of the law will be available to all persons within the territory of
India irrespectively of their ability or disability. Equal protection implies
equal protection in similar circumstances in privileges conferred as well as
liabilities imposed. The thought is not to give equal treatment to the unequal,
save there is a coherent relation to the object sought to be achieved by the law.
Thus, Article 14 forbids discrimination between persons who are substantially
in similar circumstances or conditions. It does not forbid different treatment
of unequal. Hence, application of the same laws uniformly to all of them will,
therefore, be inconsistent with the principle of Equality.6
Therefore, this implies that the concept of equality enshrined in Article 14 of
the Constitution of India itself enjoins duty on the state to bring about a
situation where the Fundamental Rights can be exercised on the footing of
equality. It follows: therefore, that a disabled person is entitled to a right to be
placed at a level at which he can enjoy the rights.7
4.2.2.2 ARTICLE 15: PROHIBITION OF DISCRIMINATION ON

GROUNDS OF RELIGION, RACE, CASTE, SEX OR PLACE OF
BIRTH.
5
The Constitution of India, 1950, Article 14
6
V.N. Shukl, The Constitution of India 38 (Eastern Book Company, 2007)
7
A.K.Sikri, “Human Rights of the Disabled: World in a Slow Motion” Vol. 38 ICTS 9 (2004)
Article 15 enjoins that "no citizen shall on grounds only of Religion, Race,
Caste, Sex, Place of birth or any of them, be subject to any liability, restriction
or condition with regard to- (a) access to shops, public restaurants, hotels and
places of public entertainment; or (b) the use of wells, tanks, bathing ghat,
roads and places of public resort maintained wholly or partly out of State
funds or dedicated to the use of the general public.” Thus disability will not
by itself amount to a liability or restriction with regard to access to any of the
places aforesaid. However the public’s facilities mentioned m Article 15 are
designed on the assumption that every person is able-bodied who can walk,
hear, see or use their limbs devoid of any physical or mental disability.8
While many marginalized social groups have been able to project their
specific social experiences of discrimination and their aspirations onto the
wider social plane for discussion and debate, interventions from the disabled
have been minimal as they lead dispersed social lives that make their
discrimination appear as individual problems. This is exemplified in the
Constitution of India that prohibits discrimination on grounds of religion.
Race, Caste, Sex or Place of birth under Article 15, hut does not explicitly
mention persons with disability as a group to be protected against
discrimination.9
4.2.2.3 ARTICLE 16: EQUALITY OF OPPORTUNITY IN MATTERS

OF PUBLIC EMPLOYMENT
8
Supra note 3
9
Introduction, National Human Rights Commission Disability Manual 4 (National Human Rights Commission, New
Delhi, 2005 )
Article 16 guarantees equality of opportunity to all citizens in the matter of
appointment in any office or other employment under the State. The exception
to this rule of equal opportunity has also been stated. Thus under this article
every citizen has a right, whether disabled or not to apply for any post under
the government of and the right to be considered on the merits for the post
applied for. What has been guaranteed is equality of opportunity and not any
right to be appointed to the post under the State. Though there has been no
uniform response regarding reservation· as a way to secure equality among
unequal, the judiciary has had several instance to scrutinize the legitimacy of
such concept as well as its consistency with the right to equality as enshrined
in the Constitution.
However the most remarkable Judgement which is exemplary in putting to
rest all controversy is Indra Swahney v. Union of India.10 This case is held to
be of particular significance for persons with disability as the Supreme Court
reviewed the issue of reservation, taking into account the legality of
reservation in favour of the disabled who have not been explicitly covered
under Article 16 of the Constitution.
The comment of Krishna Jyer J. in Jagdish Saran v. Union of India11 also
needs to be mentioned here. It was observed that even apart from Articles
15(3) and 15(4), equality is not degraded or neglected where special
provisions are geared to the larger goal of the disabled getting over their
disablement consistent with the general good and individual merit.
4.2.2.4 ARTICLE 19: RIGHT TO FREEDOM

10
AIR 1993 SC 477
11
AIR 1980 SC 820
Article 19 guarantees the six fundamental freedoms that are exercisable by
them throughout the territory of India and include- freedom of speech and
expression; freedom of assembly; freedom of association; freedom of
movement; freedom of residence and settlement; and freedom of profession,
Occupation, trade or business. However the six freedoms are not absolute.
Absolute individual rights cannot be guaranteed by any modern state. If
citizens were given total and unconditional liberty without any social control
the consequence would be ruin. Thus the guarantee of each of the aforesaid
rights is hence constrained by the Constitution itself by bestowing upon the
State an authority to impose by law reasonable restrictions as may be
necessary in the larger benefit of the society. The limitations on these
freedoms are contained in clauses 2 to 6 of Article 19 of the Constitution.12
Reasonable restrictions can be placed on grounds of sovereignty and integrity
of India, security of State, and friendly relations with foreign States, public
order, decency or morality, contempt of court, defamation incitement to
offence, breach of peace, etc Thus this Article intends to provide the fabric of
free and equal democratic society. This Article is available to both disabled as
well as non-disabled and no disabled person can either be deprived of the
freedoms assured by this Article, nor evade the restrictions by reason of
his/her disabled status.
4.2.2.5 ARTICLE 21: RIGHT OF LIFE AND PERSONAL LIBERTY
Article 2113 though couched in a negative language, confers on every person
the fundamental right to Life and Personal Liberty and a person can be
12
Dr. J .N .Pandey, The Constitutional Law of India 151 (Central Law Agency, 2002 )
13
The Constitutional Law of India, 1950, Article 21 Protection of life and personal liberty -No person shall be
deprived of his life or personal liberty except according to procedure established by law.
deprived of his life and personal liberty if two conditions are complied with.
Firstly, there must be a law: and secondly, there must be a procedure
prescribed by that law, provide that the procedure is just, fair and reasonable.
Right to life has a very wide ambit and includes the right to live with human
dignity, the right to minimum subsistence, the right to livelihood, right to
shelter as well as dignity of a person. The expression personal liberty implies
freedom from physical restraint of a person and includes the right to move
about freely, right to privacy, right to free legal aid, right to speedy trial, right
against solitary confinement, etc. In fact, though this Article only directs that
no person shall be dispossessed of his life and liberty except according with
law, the construal given to expressions 'life' and 'liberty' have invented so
many rights.
The Constitution pledges “Right to Life to all its citizens which means that
every person including disabled has right to Live with Dignity. This also
implies that the '”Disabled” like other citizens or people, possess all the basic
human rights particularly because they are “Human Beings”·14
4.2.3 DIRECTIVE PRINCIPLES OF STATE POLICY
Directive Principles as laid down in Article 38-47 of the Constitution are

guaranteed to each and every citizen. However, Article 41 is the only Article in
the entire Constitution that spells out the term 'disablement'. Apart from Article
41, Articles 39, 42, and 4 7 impliedly provide certain assurances to be initiated
for the prevention of disability. However these Articles nowhere use the term
'disability', whether physical or mental.
14
The Constitutional Law of India, 1950, Article 15 (3&4)
Article 4115 directs the State to make effectual provisions in order to secure the
right to work, education and public assistance in case or unemployment, sickness
and disablement. The expression in other cases of undeserved want' also relates
to persons with disabilities and furthermore takes in its Sweep disabilities as are
being steadily acknowledged by the medical world. 16 Though, Article 41 does not
confer a justifiable right, the Supreme Court has, by its own interpretation
bearing in mind the goal of socio-economic, held that the Courts should so
interpret a statute as will advance the objective underlying Article 41.17
Article 38 though provides that the State shall Endeavour to promote the welfare
of the people by securing and protecting the social order in which social
economic and political justice shall prevail; inequality of income have to be
minimized and equal facilities and opportunities have to be made available to
individuals and groups of people living in different areas or engaged in diverse
occupations The assurance is available to disabled as well as non-disabled,
whether men or women.
In M.C. Mehta v. State of Tamil Nadu,18 it has been held that in view of Article 39
the employment of children within the match factories directly connected with
the manufacturing process of matches and fireworks cannot be allowed, as it is
hazardous. Children can, however, be employed in the process of packing but it
should be done in area away from the place of manufacturing to avoid exposure
15
The Constitutional Law of India, 1950, Article 41 Right to work, to education and to public assistance in certain
cases- The State shall, within the limits of its economic capacity and development, make effective provision for
securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and
disablement
16
Sadiq Ahamad Jilani Syed, Legal Framework for Social Integration of Persons with Disabilities 166-167
(Indian Law Institute, New Delhi, 2002)
17
Jacoab M. Puthuparambil v. Kerela WaterSupply (1999) 1 SCC 28
18
(1991) 1 SCC 283
to accidents. Thus this step to stop children from being employed in hazardous
employment is to prevent future disablement of such children or disability as a
result of accidents. Similarly clause (f) also aims to protect the children and
youth from any harmful effects that might affect their physical or mental
capacities.
Article 4219 directs the State to make all efforts to secure just and humane
conditions of work and maternity relief. Physical disability IS a condition which
IS not always acquired. If a pregnant mother is not looked after well and during
the period of pregnancy, does not get proper nourishment the embryo may not
fully develop and some deformity may set in some part of the embryonic body.
Children born in such condition, after full period of gestation may have either
visible or latent deformity which the child grows in age may make him a
disabled child. What is, therefore, necessary is that full care must be taken of
mother and child both of the prenatal and post-natal stages. 20 Hence, the
provision is meant to protect every person engaged in any profession to be
safeguarded in his place of work so that he is not exposed to any danger, which
might affect his well-being and thus save him from probable disablement, which
might ensue due to lack of such provisions.
19
The Constitutional Law of India, 1950, Article 42 Provision for just and humane conditions of work and
maternity relief- The State shall make provision for securing just and humane conditions of work and for maternity
relief.
20
Supra note 4
Article 4721 enjoins upon the State to raise the level of nutrition, the standard of
living of the people and also improve public health. The State shall particularly
proscribe the consumption of intoxicating drugs or drinks, detrimental to health
except for therapeutic purpose. Thus this Article also intends to protect the health
of its citizens so as to prevent future disablement, whether due to lack of
nutrition or due to accidents or physical or mental degeneracy owing to use of
mtox1cating drugs or drinks.
Finally Article 249 of the Constitution empowers the Parliament to legislate on

any subject falling in any list in order to fulfill its international obligations.
Consequently, the Person with Disabilities Act, 1995 was framed.
4.3 PROVISIONS FOR THE RIGHTS OF DISABLED VIS-À-VIS

GENERAL LEGISLATIONS
Together with the Constitutional provisions, particular legislations dealing

with disability rights, legislations concerning compensatory remedies in case
disablement, it will be worth while to have a look at the various other
legislations that contain provisions pertaining to people with mental and
physical disability. While in some legislations they have been given some
benefits in others they have been abstained from doing certain acts.
4.3.1 INDIAN PENAL CODE: The Code though provides for a general
punitive law for India. However persons with insanity have been given the
21
The Constitution of India, 1950, Article 47 Duty of the State to raise the level of nutrition and the standard
of living and to improve public health- The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as among its primary duties and, in
particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious to health.
benefit it General Exceptions in case they have been found to have
committed a crime within the meaning of this Code.
Section 84 deals with the act of a person of unsound mind and says that
nothing is an offence which is done by a person who at the time of doing it ,
by reason of unsoundness of mind is incapable of knowing the nature of the
act, or that he is doing what is either wrong or contrary to law.
Section 89 also excepts any act done in good faith for benefit of child or
insane person by consent of the guardian or other person having lawful
charge of that person.
Section 90 provides that if any consent given by a person who, from

unsoundness of mind is unable to understand the nature and consequence of
that to which he gives consent will not amount to consent.
However, Section 98 provides for the right of private defence against an act
of a person of unsound mind. Thus the Code provides for these exceptions
due to the incapacity of a person with mental disability to understand the
nature and consequences of his conducts due to their immaturity of
understanding.22
4.3.2 THE EVIDENCE ACT, 1872: Chapter IX of the Act deals with the
provisions dealing with witnesses in courts. Section 118 of the Act provides
as to who may testify as witness. It lays that all persons shall be competent to
testify unless the Court considers that they are prevented from understanding
the questions put to them or from giving, rational answers to these questions,
22
Ratanlal & Dhirajlal, The Indian Penal Code 96, 101, 102, 118 (Wadhwa and Company, Nagpur, 28th edition / 1999)
by tender years, extreme old age, disease, whether of mind or body, or any
other cause of the same kind. The Explanation provides that a lunatic is not
incompetent to testify, unless he is prevented by his lunacy from
understanding the questions put to him and giving rational answers to them.
Further Section 119 of the Act provides for the manner in which a dumb
witness may tender evidence orally in an open court. It provides that a
witness who is unable to speak may give evidence in any other manner in
which he can make it intelligible, as by writing or by signs, but such writing
must be written and the signs made in open court. Evidence so given shall he
deemed to be oral evidence. This provision thus takes care of the situation of
the dumb witness but there is no provision laid down for blind or deaf
witness.23
4.3.3 INDIAN SUCCESSION ACT 1925: The Act seeks to consolidate the
law applicable to intestate and testamentary succession. Act deals with the
person capable of making wills. It says that every person of sound mind not
being a minor may dispose of his property by Will. Persons who are deaf or
dumb or blind are not thereby incapacitated for making a Will if they are able
to understand the nature of their acts. A person who is ordinarily insane may
make a Will during interval m which he is of sound mind. 24 Sections 223 and
236 disentitle a person of unsound mind to be granted Probate or Letters of
Administration.
Further it deals with the administration for use and benefit of lunatic or
minor. If a sole executor or a sole universal or residuary legatee or a person
23
Gautam Banerjee, Disability and the Law 477 (Commercial Law Publishers, 2005)
24
The Indian Succession Act, 1925, Section 59
who would be solely entitled to the estate of the intestate according to the
rule for the distribution of intestate's estate applicable in the case of the
deceased, is a minor or lunatic, letters of administration, with or without the
will annexed, as the case may be, shall be granted to the person to whom the
care of his estate has been committed by competent authority, or, if there is
no such person to such other person as the court may think fit to appoint, for
the use and benefit of the minor or lunatic until he attains a majority or
becomes of sound mind, as the case may be.25
4.3.4 INCOME TAX ACT, 1961: The Income Tax Act, 1961 recognizes the
plight of the disabled and allows concessions to the blind or those subject to
permanent physical disability or to those subject to mental retardation and
also allows deductions incurred on the maintenance of the disabled. It also
allows deductions and rebate in the case of senior citizens who are more than
65 years of age.26 Certain sections of the Act have granted concessions to a
person with disability, but in a limited way in as much as a disabled person
has been taken as a handicapped person suffering from a permanent physical
disability or is subject to mental retardation which has the effect of reducing
considerably such person's capacity for normal work or engaging in a gainful
employment or occupation.27
Section 80U of the said Act provides that in computing the total income of an
individual being a resident, who at the end of the previous year, is suffering
from a permanent physical disability (including blindness) or is subject to
25
Ibid, Section 246
26
Gautaam Banerjee, Legal Rights of Persons with Disability in India 16 (Rehabilitaion Council of India, Ner Delhi,
2004)
27
Supra note 23 at 479-480
mental retardation being a permanent physical disability or mental retardation
specified in the rules made in this behalf by the Central Board of Direct
Taxes, which is certified by a physician, a Surgeon, an oculist or a
psychiatrist, as the case may be, working in a Government hospital, and
which has the effect of reducing considerably such individual's capacity for
normal work or engaging in a gainful employment or occupation, there shall
be allowed a deduction of a sum of Rs. 50,000 with enhanced limit of Rs.
75,000 for the severely disabled. Such individual has to produce the aforesaid
certificate before the Assessing Officer in respect of the first assessment year
for which he claims deduction under this Section.28
4.3.5 THE LIMITATION ACT, 1963: Section 6 of this Act, described as

‘Legal Disability’ provides that where a person entitled to institute a suit or
make an application for the execution of a decree is, at the time from which
the prescribed period is to be considered, a minor or insane, or an idiot, he
may institute the suit or make the application within the same period after the
disability has ceased, as would otherwise have been allowed from the time
specified. Therefore, the above benefit would be available when there is more
than one disability and will ensure to the legal representatives if the disability
continues till death.29
Medical Termination of' Pregnancy Act, 1971: Section 3 of the Act deals with
the situation when pregnancies can he terminated by registered medical
practitioners. Sub-section (2) clause (b) (ii) provides that where the length of
the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if
28
Supra note 26 at 17
29
Supra note 26 at 483
not less than two registered medical practitioners are of opinion, formed in
good faith that there is a substantial risk if the child were born, it would suffer
from such physical or mental abnormalities as to be seriously handicapped,
such pregnancy may the terminated by a registered medical practitioner. Also,
Sub-section (4) (a) provides that no pregnancy of a woman, who has not
attained the age of eighteen years, or who having attained the age of eighteen
years is a lunatic, shall he terminated except with the written consent of the
guardian. Thus the Act on one hand seeks to prevent the birth of abnormal
children as well as intends to protect a pregnant lunatic woman.
4.3.6 CODE OF CRIMINAL PROCEDURE, 1973: This Code consolidates

and amends the law relating to Criminal Procedure. Section 125 of the Act
deals with orders that a Magistrate can pass for maintenance of wives,
children and parents where they are unable to maintain themselves. Clause
(c) of subsection (l) of Section 125 provides that if a person having sufficient
means neglects or refuses to maintain his legitimate or illegitimate child,
other than a married daughter, who has attained majority where such child is,
by reason of any physical or mental abnormality or injury is unable to
maintain itself, a Magistrate of first class may order such person to make a
monthly allowance for the maintenance of such child.30
4.3.7 MOTOR VEHICLES ACT, 1988: The Motor Vehicles Act, 1998
seeks to consolidate and amend the law relating to motor vehicles. Sections 8,
16 and 186 are the provisions which concern with ‘disability’ as one of the
grounds of refusal or revocation of license and when disabled persons may be
30
Ibid at 475
penalized for being a danger to the public by driving vehicles which they are
incompetent to drive.
Section 8 deals with the grant of learner's license. Every person who applies
for a learner's license has to satisfy the licensing authority about his physical
fitness for driving vehicles on the road. For this purpose such person has to
submit a medical certificate from a registered medical practitioner. Sub-
section (4) provides that if from a medical certificate it appears that the
applicant is suffering from any disease or disability which is likely to cause
the driving by him of motor vehicle of the class which he would be
authorized by the learner's license applied for to drive, to be source of danger
to the public or passengers, the licensing authority shall refuse to issue the
learner's license. However it is subject to the proviso that a learner’s license
limited to driving an invalid carriage may be issued to the applicant, if the
licensing authority is satisfied that he is fit to drive such a carriage.
Section 16 deals with the revocation of driving license on grounds of disease

or disability. It says that any licensing authority is at liberty at any time
revoke a driving license or may require as a condition of continuing to hold
such driving license the holder thereof to produce a medical certificate m the
same manner as is referred to in Section 8 . If the licensing authority has
reasonable grounds to believe that the holder of the driving license is, by
virtue of any disease or disability unfit to drive a motor vehicle and where the
authority revoking a driving license is not the authority which issued the
same. It shall intimate the fact of revocation to the authority which issued that
license.
Section 186 imposes a penalty on a person who drives a motor vehicle in any
public place when he has knowledge that he is suffering from any disease or
disability and such driving shall be a source of danger to the public,
punishable for the first offence with fine extending up to two hundred rupees
and for a second or subsequent offence with fine which may extend to five
hundred rupees.
4.3.8 EMPLOYEES STATE INSURANCE, ACT, 1948
The next important legislation is the Employees State Insurance, Act, 1948
which also contains certain provisions concerning ‘Disablement’.
There are three kinds of disablement under the Act:
1. Permanent Partial Disablement

2. Permanent Total Disablement
3. Temporary Disablement
The Act provides benefits in case of disablement along with certain other
benefits like sickness benefit, maternity benefit, dependants benefit, medical
benefit etc. According to this Section, any insured person shall be entitled to
periodical payments if-
i. he suffers from disablement;

ii. the disablement results from an employment injury; and
iii. the injuries were sustained due to employment as an employee under
the conditions mentioned in the Act.31
31
The Employee State Insurance Act, 1948, Section 46
However, the disablement benefit is payable only when the Injury is
appropriately certified by an Insurance Medical Officer.32
Section 51 provides for disablement benefit and lays down that, subject to the
provisions of this Act:
(a) a person who sustains temporary disablement for not less than three days
(excluding the day of accident) shall be entitled to periodical payment at such
rates and for such period and subject to such conditions as maybe prescribed by
the Central Government.
(b) a person who sustains permanent disablement whether total or partial, shall
be entitled to periodical payment at such rated and for such period and subject
to such conditions as may be prescribed by Central Government.
Section 54 deals with the issue of determination of question of disablement. The

Section lays that the questions relating to disablement shall be determined by
the Medical Board constituted in accordance with the regulations.33
Thus, the positive aspect of the Employees' State Insurance Act, 1948 is the
periodical payments of disablement benefits.
4.3.7 THE WORKMEN'S COMPENSATION ACT, 1923: The Workmen’s

Compensation Act, 1923 was framed with a view to provide for compensation
to workmen incapacitated by an injury from accident arising out of and in the
course of employment. It is a guarantee against hazards of employment to
32
Surya Narayan MIsra, Sudhiur Kumar Misra, An Introduction to Labour and Industrial Law 409 (Central Law
Publications, Allahabad, 18th Edition/2004)
33
which a workman is exposed because of his employment. The main object of
the Act is to provide compensation to the workman or his dependants.
The Act does not define 'Disability' or 'Disablement'. It defines 'partial

disablement' and 'total disablement'.
Section 3 is concerned with employer's liability for compensation. The liability

of an employer to pay compensation is limited and is subject to the provisions
of the Act. Section 3 (1) fixes the liability, if the employer to pay compensation
only on these four grounds:
(1) Personal injury must have been caused to a workman:
(2) Such injury must have been caused by an accident;
(3) The accident must have arisen out of and in the course of employment and
(4) The injury must have resulted either in death of the workman or m his total
or partial disablement for a period exceeding three days. The employer shall not
be liable to pay compensation in the following cases:
(a) If the injury did not result in total or partial disablement of the workman for
a period exceeding three days:
(b) In respect of any injury not resulting in death or permanent total disablement
the employer can implore:
(I) That the workman was at the time of accident under the influence of drinks
or drugs;
(II) That the workman willfully disobeyed an order expressly given or a rule
expressly framed for the purpose of securing safety of workman; and
(III) that the workman having known that certain safety-guards or safety
devices are specifically provided for the purpose of securing the safety of
workman, willfu1ly disregarded or removed the 145 same.34
Section 4 lays down the amount of compensation payable in various types of

disablement mentioned under the Act.
4.4 MAJOR LAW DEALING WITH THE RIGHTS OF PERSONS WITH

DISABILITIES IN INDIA
As already mentioned, apart from The Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995, which is
the most important legislation concerning the disabled persons, there are three
other statutes which also address the issue. India has been a signatory to all the
major international instruments dealing with the mental and physical well being
of the persons with disabilities. An analysis of The Mental Health Act of India,
1987.,The Rehabilitation Council of India Act, 1993 and The National Trust for
Welfare of Persons with Autism, Cerebral Palsy), Mental Retardation and
Multiple Disabilities Act. 1999 shall be undertaken to assess the role of these
three statutes in protecting the need of the disabled lot, particularly from the
human rights point of view.
4.4.1 THE MENTAL HEALTH ACT OF INDIA, 198735
34
35
Act no. 14 of 1987, dt. 22/5/1987
The earliest Act regulating mentally ill persons or "lunatics" as they were
termed under the Indian Lunacy Act, 1912. With the advancement made in
medical science and social thoughtfulness of the nature of this illness, it became
indispensable to have a fresh law with provisions for treatment of mentally ill
persons in accordance with the new approach.36
The Government of India took the initiative to enact Mental Health Act of
India, 1987. The Act deals with ‘mental health’, the Act neither defines 'mental
health' or 'mental illness'. However the Act as per section 2 (I) defines 'mentally
ill person' as a person who is in need of treatment by means of any mental
disorder other than mental retardation. While mental disorder'> require
treatment ranging from mild neurosis to violent psychoses, a!l these disorders
do not require in-patient treatment. The definition given in the Act says that
only those persons are mentally ill who are exposed to psychiatric treatment.
But looking at the wide range of mental disorders, the definition does not
ret1ect that only in-patient persons will be described as mentally s1ck within
the purview of the Mental Health Act, 1987. Hence in terms of this meaning,
one is considered mentally disordered person by reason of the simple fact that
he or she is in need of psychiatric treatment or one who receives psychiatric
care. This definition is therefore insufficient as it leaves out many people who
for one reason nr the other who are potentially diagnosable as mentally ill.37
The Act makes provision for psychiatric hospitals and nursing homes, it
provides for the establishment or maintenance of psychiatric hospitals or
36
37
Subhash Chandra Singh, "Legal and Ethical Rights of Persons with Mental Disability'' Vol. 32 (1&2) ISLJ 28
(2006)
psychiatric nursing homes by the Central or State government within the limits
of their jurisdiction.38 It also provides for establishment of psychiatric hospitals
or psychiatric nursing homes by any private citizen only on holding a valid
licence under the Act.39 Minors who are under the age of 16 years, persons who
are addicted to alcohol or other drugs which lead to behavioral changes and
those convicted of any offence are. entitled to admission, treatment and care in
separate Psychiatric hospitals or nursing homes established or maintained by
the Government provision has also been made for the treatment of mentally dl
persons in the psychiatric hospital I nursing home as an out - patients, in case
his condition does not warrant his admission or an in- patient.40
So far as admission and detention is concerned the Act deals with admission on
voluntary basis admission under special circumstances and admission with
reception orders. Mentally ill persons can seek voluntary admission in such
hospitals or nursing homes41 and minors can seek admission through their
guardians.42 Section 18 lays down the detailed procedure for discharge of
voluntary patient from the psychiatric hospital or psychiatric nursing home.
Relatives of mentally ill persons on behalf of the latter can seek for admission.
Any mentally ill persons who does not, or is unable to, express his willingness
for admission as a voluntary patient, may be admitted and kept as an in-patient
in a psychiatric nursing hospital or psychiatric nursing home.
38
The Mental Health Act, 1987, Section 5
39
Ibid, Section 6,7,8,9, 11, 12 provide the procedure of making the application for licence, the grant or refusal
of licence by the licencing authority, duration and renewal of licence, revocation of licence; and. appeal in case
when: a licence has been refused has also been laid down.
40
Ibid, Section 14
41
Ibid, Section 15&17
42
Ibid, Section 16
Any mentally ill persons who does not, ur is unable to, express his willingness
for admission as a voluntary patient, may be admitted and kept as an in-patient
in a psychiatric nursing hospital or psychiatric nursing home on an application
made in that behalf by a relative or a friend of the mentally ill persons if the
medical officers-in-charge is satisfied that in the interest of the mentally ill
persons it is necessary so to do.43 Applications can also he made to the local
magistrate for grant of reception orders.44
Chapter VIII of the Act specifically deals with the protection of human rights of
menta1ly disabled people. It consists of only one section i.e. Section 81. The
Section provides that mentally iII persons are to be treated without violation of
human rights. The section is based on the principle that mentally ill persons
deserve the protection of law as a matter of human right. This section therefore
provides that no mentally ill person will be subject during his treatment in any
psychiatric hospital or psychiatric nursing home to any kind of physical or
mental indignity or cruelty. He shall not be used for the purposes of research
unless such research is for his benefit, for better diagnosis or treatment or where
he is voluntary patient and has given his consent m writing or by his
guardian(in case of minor) for such research. But the provision of research with
the consent of guardian amounts to treating them like animate objects. Hence,
though a provision to protect human rights, the section itself amounts to gross
human rights violation. This section also provides that no letters or other
communications sent by or to a mentally ill person under treatment shall he
intercepted, detained or destroyed. The purpose is to prevent any vexatious or
43
Ibid, Section 19
44
Ibid, Section 20
derogatory communication that is detrimental to the treatment of mentally ill
person from adversely affecting his human rights.45
4.4.2 THE REHABILITATION COUNCIL OF INDIA ACT, 199246
The rehabilitation of disabled persons in India has been receiving the attention
during the last three decades since independence. As early as 1974 the
government had launched the scheme of Integrated Education for Disabled
Children (IEDC) but there were only 700 teachers to attend to some 45,000
children. Even with all the schemes, not more than 2 per cent of the children
with disability could be covered47. But, there were merely any planned efforts in
the field for developing trained manpower, which could help in rehabilitation of
the disabled persons in India. The existing training programmes in the country
in the field of handicapped were isolated and ad-hoc in nature, with no standard
syllabi. There wasn’t uniformity in the teaching curriculum run by various
institutions at the undergraduate, graduate and post-graduate levels. It was,
therefore, decided by the Government of India to set up a Rehabilitation
Council of India in 1986.48 Primarily as a society under the Societies
Registration Act to regulate and standardize training policies and programmes
in the field of rehabilitation of ·persons with disabilities The imperative call for
minimum standards was considered, as the bulk of persons engaged in
education; vocational training and counseling of persons with disabilities
professionally incompetent. Poor academic and training standards unfavorably
influenced the likelihood of disabled succeeding in the employment scenario.
45
46
Act no. 34 of 1992 dt. 1-9-1992
47
B.S. Padmanabhan, ''Rehabilitation Council of India-Enabling the Disabled" Available at http://www.frontline.com
(Last visited on 30-4-2024)
48
Available at http//www.vigyanprasar.gov·.in/comcom/feature16.htm-10k (Last visited on 30-4-2024)
76 Therefore, in 1992, status of this Council was enhanced to that of statutory
body by passing the Rehabilitation Council of India Act. The Act came into
force on 22nct June 1993 and contains provisions concerning the constitution of
the Rehabilitation council of India, its functions and incidental provisions.
Amendment Act No. 38 of 2000 w.e.f 4th September 2000 amended the Act in
the year 2000. The Act has the following aims-
a) To regulate and monitor the training of rehabilitation professionals;
b) To bring about standardization of training courses for rehabilitation

uniformly throughout the country.
c) To lay down minimum standards of education and training of various classes

of professionals dealing with persons with disabilities;
d) To regulate these standards in all training institutions uniformly throughout

the country; e) To promote research in rehabilitation and special education; and
f) To maintain Central Rehabilitation Register for registration of professionals.
‘Rehabilitation’49 in the Act refers to a process aimed at enabling persons with

disabilities to reach and maintain their optimal Physical, Censory, Intellectual,
Psychiatric or social functional levels. While the use of the word handicapped
has been held to be derogatory it is astounding as to why the RCI Act defines
the term. 'Handicapped'50 has been defined as a person suffering from any
disability referred to in clause (i) of Section 2 of the Persons with Disabilities
49
The Rehabilitation Council of India Act, 1992, Section 2(ma)
50
Ibid, Section 2(c)
(Equal Opportunities, Protection of Rights and Full Participation) Act, J 995 (I
of 1996).
‘Rehabilitation Professionals’51under the Act includes -(i) audiologists and

speech therapists; (ii) clinical psychologists; (iii) hearing aid and ear mould
technicians; (iv) rehabilitation engineers and technicians; (v) special teacher.-.;
for educating and training the handicapped; (vi) vocational counselors,
employment officers and placement officers dealing with handicapped; (vii)
multi-purpose rehabilitation therapists, technicians: or (viii) speech
pathologists; (ix) rehabilitation psychologists: (x) rehabilitation social workers;
(xi) rehabilitation practitioners in mental retardation; (xii) orientation and
mobility specialist: (xiii) community based rehabilitation professionals; (xiv)
rehabilitation counselors/ administrators; (xv) prosthetics and orthotics: (XVI)
rehabilitation workshop managers; (xvii) physio therapists: ( xix) ophthalmic
technicians: and (xx) such other category of professionals as the Central
Government may in consultation with the council, notify from time to time.
This definition of the Act has been a subject of criticism due to a number of
factors and is one of the major drawbacks of this Act.
The Rights of Disabled Persons enumerating from the Act are-
1. To have the right to be served by trained and qualified Rehabilitation

professionals whose names are borne on the Register maintained by the
Council.
51
Ibid, Section 2 (n)
2. To have the guarantee of maintenance of minimum standards of education
required for recognition of rehabilitation qualification by Universities or
Institutions in India.
3. To have the guarantee of maintenance of standards of professional
conduct and etiquette by rehabilitation professionals against the penalty of
disciplinary action and removal from the Register of the Council.
4. To have the guarantee of regulation of the profession of rehabilitation
professionals by a statutory council under the control of the Central
Government and within the bounds prescribed by the statute.52
4.4.3 NATIONAL TRUST FOR WELFARE OF PERSONS WITH

AUTISM, CEREBRAL PALSY, MENTAL RETARDATION AND
MULTIPLE DISABILITIES ACT, 199953
As certain groups amongst the disabled are more susceptible than others, a
special enactment for the security of such persons, their property and well-
being was felt indispensable. The passing of the National Trust for Welfare of
Persons with Autism. Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 intends to accomplish a universal insistence of families
seeking reliable arrangement for their severely disabled wards. The Act
endeavours to provide for the constitution of a body at the national level for
the welfare of persons with Autism Cerebral Palsy, Mental Retardation and
Multiple Disabilities and for matters connected therewith or incidental
thereto. The body so constituted is known as the National Trust for Welfare of
Person’s with Autism, Cerebral Palsy, Mental Retardation and Multiple
52
Supra note 26 at 53
53
Act no. 44 of 1999, dt. 30-12-1999
Disabilities, commonly referred to as the National Trust. The Trust is
primitive, proactive and protectionist m nature. It seeks principally to keep up
the rights, encourage the development and defend the interests of persons
with Autism54, Cerebral Palsy,55 Mental Retardation56, Multiple Disabilities57
and their families. To accomplish this aim, the National Trust supports
programmes which promote liberty, facilitating guardianship where necessary
and address the concern, of those special persons who do not have their
family support The Trust seeks to strengthen families and protect the interest
of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities after the death of their parents.58
The objects of the Act59 can he broadly specified as under:
1. Enabling and empowering persons with disability-
• to live independently,
• to live fully as possible.
• to live within and close to the community to which they belong, and
54
National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, /999. s. 2 (a) --- Autism means a condition of uneven skill in development primarily affecting
the communication and social abilities of a person, marked by repetitive and ritualistic behavior.
55
Ibid, S. 2 (c) ---'Autism' means a condition of uneven skill in development primarily affecting the communication
and social abilities of a person, marked by repetitive and ritualistic behaviour
56
Ibid, Section 2 (g) -- 'Mental Retardation· means a condition of arrested or incomplete development of mind,
which is specially characterized by sub-normality of intelligence.
57
Ibid, Section 2(h)--- 'Multiple Disabilities· means a combination of two or more disabilities as defined in clause (i)
of Section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,
1995. Since the objects of the Act apply to 'Persons with Disability', the term has been defined as a person suffering
from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or
more of such conditions and includes a person suffering from multiple disability.
58
59
Ibid, Section 10
• to ensure that the persons with disability do not suffer isolation and as such
it has been seen that such persons are able to live as independently as
possible. They are to be helped to manage themselves gradually so that their
dependence on non-disabled persons is reduced.60
2. Strengthening the facilities required providing support to persons

with disability to live within their own families - The Trust Act has a
very progressive objective namely, to facilitate persons with disabilities
to live as fully as possible within and close to the community to which
they belong. The initiative is not to push people out of the society and
keep them in residential institutions, but to encourage them to live
within their families. But there are people with severe disabilities who
may be unable to move. Thus there could be a possibility of a therapist
visiting home and providing rehabilitation services at home. Thus the
Trust seeks to improve their situation with the physical and
psychological support of the family members so that they may feel that
they are part of normal family and thereby the magnitude of their
suffering is curtailed.61
3. Extending support to registered organizations- The next object of
the Act is to provide support to the registered organizations so as to
provide need-based services during the crisis the family of persons with
disability. The support to the organizations involves setting up of care
centres, relief and respite centres with ample medical facilities and
60
61
Supra note 3 at 417
provision for the care, protection and maintenance of persons with
disability.
4. Dealing of problems of persons with disability who do not have
family support-- This implies that the Trust will unswervingly take
actions for persons with disability who have been discarded or who do
not have sufficient family support. Tribulations of such persons
principally relate to their rehabilitation and care.
5. Promoting care and protection in case of death of parent/guardian-
Usually the parent or guardian looks after a person with disability. If a
situation arises where parents or guardian dies, the natural question is
as to who will look after them and take their responsibility. Thus in
such a situation, the Trust has to make provisions for the care and
protection of such person. It is often seen that people with mental
retardation either end up in Juvenile Homes or mental hospitals or jails.
None of these are places where they ought to go, but unfortunately this
is what the state does. Hence, the State must take appropriate measures
as a means of social commitment.
6. Procedure for appointment of guardians and trustees- The issue of
appointing a guardian under the tenets of this Act is governed by the
constitution of a local level committee, consisting of an officer of the
State, a representative of an NGO a (any) person with disability. This
object reflects a very progressive attitude and provisions have been
made under sections 14. 15, 16 and 17 of the Act for the appointment of
guardians.
7. Facilitating Equal Opportunities, Protection of rights and full
participation- This implies taking initiatives for encouraging occasions
for realization of equal opportunities, protection of rights and full
participations of persons with disability.
8. Residual Power-The Trust has also been empowered to perform all
other act that is necessary for the attainment of the aforesaid objects.
Thus the Act has very specific objectives to achieve its goal, which ranges
from enabling and empowering persons with disabilities to live as
independently and as fully as possible within and as close to the
community to which they belong; promoting measures for the care and
protection of persons with disabilities in the event of death of their parents
or guardian; and extending support to registered organizations to provide
need based services during the period of crisis in the family of disabled
covered under the Act.62
The Central Government has the obligation to set up. in accordance with
this Act and for the purpose of the benefit of the disabled the National
Trust for Welfare of Persons with Autism. Cerebral Palsy, Mental
Retardation and Multiple Disability at New Delhi. The National Trust
treated by the Central Government has to ensure that the objects for which
it has been set up as enshrined in Section 10 of this Act have to be
fulfilled. The National Trust shall be bound by the provisions of this Act as
to its accountability, monitoring, finance, accounts and audit. Accordingly,
the rights may be summed up as-
62
Ibid
1. It is the obligation of the Board of Trustees of the National Trust to
make arrangements for adequate standard of living of any
beneficiary named in any bequest received by it, and to provide
financial assistance to registered organizations for carrying out any
approved programme for the benefit of the disabled.
2. Disabled persons also have the right to be placed under guardian
appointed by the Local Level Committees m accordance with the
provisions of the Act. The guardians so appointed will have the
obligation to be responsible for the person and property of their
disabled wards and be accountable for the same.
3. A disabled person has the right to have his guardian removed where
the guardian is abusing or neglecting him or is misappropriating or
neglecting the property of the disabled person.
4. Where the Board of Trustees is unable to perform or has persistently
made default in the performance of duties imposed on it, a registered
organisation for the disabled can complain to the Central
Government to have the Board of Trustees superseded and/or
reconstituted.63
4.4.4 THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 201664
The Rights of Persons with Disabilities (RPwD) Act was enacted in the year
2016 and came into force from 19th April, 2017. It replaced the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995. The objective of the RPwD Act is to ensure that all persons with
63
Supra note 26 at 103, 104
64
Act no. 49 of 2016, dt. 19-04-2017
disabilities can lead their lives with dignity, without discrimination and with
equal opportunities. The Act lays down specific provisions to uphold such
rights. It incorporates the rights of persons with disabilities covered under the
United Nations Convention on the Rights of Persons with Disabilities
(UNCRPD), to which India is a signatory.
4.4.4.1 SOME RIGHTS GUARANTEED UNDER THE RPwD ACT
1. Persons with disabilities have the right to equality, dignity and respect
for integrity: RPwD Act requires the appropriate government to ensure
that persons with disabilities enjoy the right to equality, life with
dignity and respect for his or her integrity equally with others.65
2. The Act ensures the rights of women and children with disabilities:
Section 4 states that the appropriate government and local authorities shall
take measures to ensure that women and children with disabilities enjoy
their rights equally with others. The section further states that all children
with disabilities have the right to freely express their views on all matters
affecting them and that, for this, support will be provided to keep in view
their age and disability.
3. Persons with disabilities have the right to live in the community:
Section 5(2) of the Act states that appropriate government shall endeavour
that persons with disabilities are not forced to live in any particular living
arrangement and are given access to a range of in house, residential and
65
The Rights Of Persons With Disabilities Act, 2016, Section 3(1)
other community support services, including personal assistance necessary
to support living with due regard to age and gender.
4. The Act provides protection to persons with disabilities from being

subjected to torture, cruel, inhuman or degrading treatment:
The Act requires the government to take measures to prevent torture,

cruel, inhuman or degrading treatment and ensure that no person with
disability shall be a subject of any research without his or her free and
informed consent. This is to be obtained through accessible modes, means
and formats of communication and prior permission of a Committee for
Research on Disability. 66
5. The Act ensures protection of persons with disabilities from abuse,

violence and exploitation: The Act states that victims of violence,
abuse or exploitation shall be rescued, protected and rehabilitated. The
government is also obligated to create awareness about the provisions
and make it available to the public.67
Any person or registered organization who or which has reason to believe

that an act of abuse, violence or exploitation has been, is being, or is likely to
be committed may inform the Executive Magistrate of the incident who
thereafter is obligated to rescue, protect, rehabilitate and provide maintenance
to the victim. The police on receipt of complaint or knowing about such
incidents are obligated to inform the victim of their rights to apply for
protection, free legal aid, right to file a complaint and the particulars of the
66
Ibid, Section 6
67
Ibid, Section 7
Executive Magistrate and the nearest organization/institution working for the
rehabilitation of persons with disabilities.
6. Persons with disabilities are entitled to equal protection and safety in

situations of risk, armed conflict, humanitarian emergencies and natural
disasters:
Section 8 of the Act requires the National and State Disaster Management
Authorities to ensure the inclusion of persons with disabilities in its
disaster management activities for their safety and protection.
7. Children with disabilities not to be separated from their parents:
It states that no child with disability shall be separated from his or her
parents on the grounds of disability except on an order of a competent
court, if required, in the best interest of the child. 68
8. The Act recognizes the reproductive rights of persons with disabilities:
Section 10 states that the appropriate government shall ensure that

persons with disabilities have access to appropriate information regarding
the reproduction and family planning and that no person with any
disability is subjected to any medical procedure which leads to infertility
without his or her free and informed consent.
9. The Election Commissions to ensure that persons with disabilities can

cast their vote:
68
Ibid, Section 9
Section 11 states that the Election Commission of India and the State
Election Commissions shall ensure that all polling stations are accessible
to persons with disabilities and all materials related to the electoral process
are easily understandable by and accessible to them.
10. The Act addresses challenges faced by persons with disabilities in

accessing the justice system: Act also states that persons with
disabilities have the right to access any court or anybody with judicial
or quasi-judicial or investigative powers without discrimination and
steps will be taken to provide suitable measures to support persons with
disabilities, especially those living without a family and those requiring
high support for exercising legal rights. Further, the Section states that
the National and State Legal Services Authority shall make provisions,
including reasonable accommodation, to ensure access to any scheme,
programme, facility or service offered by them. It is to make all public
documents available in accessible formats and for this, all filing
departments, registry, etc, will be supplied with necessary equipment.
All necessary facilities and equipment to facilitate the recording of
testimonies, arguments or opinions given by persons with disabilities in
their preferred language and means of communication will be made
available. 69
11. Legal rights of person with disabilities:
Section 13 states that the appropriate government shall ensure that persons
with disabilities enjoy equal legal rights on an equal basis with others in
69
Ibid, Section 12
all aspects of life and have the right to equal recognition everywhere as
any other person before the law.
12. Persons with disabilities to have protection against discrimination

in employment: It states that no government establishment shall
discriminate against any person with disability in any matter relating to
employment, provided that the appropriate government may, having
regard to the type of work carried on in any establishment, by
notification and subject to such conditions, if any, exempt any
establishment from the provisions of this section.70
13. Persons with disabilities cannot be denied promotions on the
grounds of disability: Further it states that no promotion shall be denied
to a person merely on the ground of disability.71
4.4.4.2 RIGHTS OF PERSONS WITH BENCHMARK

DISABILITIES
“Person with benchmark disability” means a person with not less than
forty per cent 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. The Schedule of Specified Disabilities
enumerates the following disabilities:
1. PHYSICAL DISABILITY
A. Locomotor disability:
70
Ibid, Section 20
71
Ibid
 Leprosy cured person
 Cerebral palsy
 Dwarfism
 Muscular dystrophy
 Acid attack victim
B. Visual impairment:
 Blindness
 Low vision
C. Hearing impairment:
 Deaf
 Hard of hearing
D. Speech and language disability
2. INTELLECTUAL DISABILITY
A. Specific Learning Disabilities
B. Autism Spectrum Disorder
3. MENTAL BEHAVIOUR
A. Mental Illness
4. Disability caused due to
A. Chronic neurological conditions:

 Multiple Sclerosis
 Parkinson’s Disease
B. Blood disorder:
 Haemophilia
 Thalassemia
 Sickle Cell Disease
5. MULTIPLE DISABILITIES
Note: The Central Government may notify any other category as per need.
4.4.4.3 SCHEMES FOR THE WELFARE OF PERSONS WITH

DISABILITY
1. Scheme of Assistance to Disabled Persons for Purchase/ Fitting of

Aids/ Appliances Scheme (ADIP Scheme)
ADIP scheme is a scheme of Assistance to Disabled Persons for

Purchase/Fitting of Aids/Appliances. Its main objective is to assist the
needy persons with disabilities in procuring durable, sophisticated and
scientifically manufactured, modern, standard aids and appliances that can
promote their physical, social and psychological rehabilitation, by
reducing the effects of disabilities and enhance their economic potential.
The aids and appliances that are supplied under the scheme must have due
certification. A person with disabilities fulfilling the following conditions
would be eligible for assistance under ADIP scheme.
 An Indian citizen of any age.
 Holds a 40% Disability Certificate.
 Has a monthly income from all sources not exceeding Rs 20,000/-
per month.
 In case of dependents, income of parents/guardians should not
exceed Rs 20,000/- per month.
 Who have not received assistance during the last 3 years for the
same purpose from any source. However, for children below 12
years of age, this limit would be 1 year. Aids/appliances which do
not cost more than Rs. 10,000/ - are covered under the Scheme for a
single disability. However, in the case of Students with Disabilities
(SwDs), students beyond IX class, the limit would be raised to
Rs.12,000/. In the case of multiple disabilities, the limit will apply
to individual items separately in case more than one aid/appliance is
required.72
2. Scholarships for Students with Disability
There are scholarships provided for SwDs under the Scheme of

National Scholarships for Persons with Disabilities. Every year, 500
new scholarships are awarded for pursuing post-matric professional
and technical courses of duration more than one year. However, for
students with cerebral palsy, mental retardation, multiple disabilities
and profound or severe hearing impairment, scholarship is awarded for
pursuing studies from Class IX. Students with 40% or more disability,
72
Available at www.nhrc.nic.in (Last Visited 3-05-2024)
whose monthly family income does not exceed Rs. 15,000, are eligible
for scholarship. A scholarship of Rs. 700/- per month to day-scholars
and Rs. 1,000/- per month to hostellers is provided to the students
pursuing Graduate and Post Graduate level technical or professional
courses. A scholarship of Rs. 400/- per month to day-scholars and Rs.
700/- per month to hostellers is provided for pursuing diploma and
certificate level professional courses. In addition to the scholarship, the
students are reimbursed the course fee of upto Rs. 10,000/- per year.
3. Facilities for voters with disabilities
Voters having one among the 21 disabilities as mentioned by the

Rights of Persons with Disabilities Act 2016 are termed as voters with
disabilities. In addition, if a person who has reduced mobility and/ or
motor function and/or physical coordination due to age, temporary
ailment, pregnancy and other disease, and needs to be facilitated to get
registered and to vote are termed as electors/ voters with reduced
mobility and physical functions. An eligible person with disability or
reduced mobility/ physical functions can get enrolled in electoral roll
by filling Form 6 inclusive of information about one’s disability online
at www.nvsp.in and uploading the necessary documents.73 One can also
enrol at voter enrolment centres or the offices of Electoral Registration
Officers/ Assistant Electoral Registration Officers, which will be
accessible for persons with disabilities and reduced mobility/ physical
functions, by filling Form 6 in two copies which are available free of
73
Ibid
cost at such centres/ offices and annexing copies of the relevant
documents. In case of any assistance/ facilitation of communication
required in filling the form, the same would be provided at both
offices. The forms can also be sent by post to Electoral Registration
Officer/ Assistant Electoral Registration Officer.
4.4.4.4 WHAT CAN A PERSON WITH DISABILITY DO IF

PROVISIONS OF THIS LAW ARE NOT IMPLEMENTED?
 Make representations to the concerned government and/ or the

concerned establishment, if there is deprivation or violation of
any right provided under the Disabilities Act.
 If there is no response or if the response is negative/ inadequate,
approach the concerned Commissioner of Disabilities.
 Alternatively, file a Writ Petition under Article 226 of the
Constitution of India, in the concerned High Court.
 If there is any violation of a Constitutional right also, of national
importance, file Writ Petition under Article 32 of the Constitution
before the Supreme Court.
4.5 JUDICIAL DECISIONS WITH SPECIAL REFERENCE

TO DISABLED PERSONS: SUPREME COURT
JUDGEMENTS
Javed Abidi v.Union of India and Others74
74
AIR1999 SC512
The Supreme Court decided and gave directions on the question of
concession and facilities to be provided to persons with disabilities while
travelling by air. Me Javed Abidi was orthopaedically handicappd and was
suffering with locomotor disability. He filed a writ petition under Article
32 of the constitution before the Supreme Court, requesting the court to
direct union and state governments to implement the provisions of PWD
Act 1995. He also prayed for directions to be given to Indian Air lines to
provide as early as possible aisle chair in every airport, ambulift in all
airports in the country and to provide 50% concession as it is provided to
visually impaired persons.
The Central and the State Governments filed affidavit before the
Supreme courts informing that they have set up central and state
committees as provided in the PWD Act, 1995.The Indian airlines stated
that it had taken steps to make available aisle chairs in the aircrafts and
ambulifts at different airports. In view of the statement the Supreme court
observed that it was not necessary to issue any directions in this behalf.
So far the question of concession of 50% on air tickets the court was
of the opinion that keeping in mind the harassment and discomfort of the
persons suffering from locomotor disability shall face while travelling by
train specially to far off places. It was necessary to direct to Indian
airlines to grant same concession which was being provided to persons
suffering from blindness. However for claiming this concession the
locomotor disability is fixed to 80% and above. It would be necessary for
such person suffering from locomotor disability to provide medical
certificate from the Chief District Medical Officer.
Section 3 sub-section 2(1) of the Persons with Disabilities (Equal
Opportunities Protection of Rights and Full Participation) Act, 1995
required the government to nominate to the central co-ordination
committee five persons, as far as practicable, being persons with
disabilities to represent non-governmental organisations or associations
which are concerned with disabilities. Section 57 of the Act empowered
the central government to appoint a Chief Commissioner for persons with
disabilities. A person was qualified for such appointment if he had special
knowledge or practical experience in respect of matters relating to
rehabilitation. The central government whilst making nominations under
these two statutory provisions chose persons who did not fulfil the
statutory requirements. Upon this challenge the central government
withdrew the nominations it had made and agreed to appoint persons in
strict fulfilment of the statutory requirements. The crucial omission in this
appointment was that the person chosen as non-governmental
representatives as well as the individual appointed as Chief Commissioner
did not have experience in the field of disability.
In Re: Death of 25 Chained Inmates in Asylum Fire in Tamil Nadu75
The Supreme Court issued special directions for the implementation of The
Mental Health Act, 1987, The PWD Act, 1995 and The National Trust
Act, 1999 based on the newspaper reports. It was reported in the
newspaper that a gruesome tragedy took place in a mental asylum in Tamil
Nadu, Where more than 25 mentally challenged patients were housed.
They were charred to death since they could not escape, because they
75
AIR 2002 SC 979
had been chained to beds or polls. The Supreme court issued notice to the
state of Tamil Nadu and the Central government. The court appointed a
friend of the court to visit the place of fire and to make prima facia
examination. After receiving the report The Supreme court issued notice to
other states also. It was reported to the Supreme Court that The Mental
Health Act, 1987 had not been implemented by the state govt. as well as
by the central government. The Supreme Court issued the specific
instructions to all states and Union territories that the provisions of the
above said Acts, are implemented. To ensure the compliance of such
directions the states and the union territories were directed to file the
compliance report and the affidavits in the Supreme Court.
Narendra Kumar Chandla v. State of Haryana76
The moot question in this case before the Supreme court was that whether
an employee may be adjusted in a suitable post with protection of pay after
one arm was amputated due to sarcoma that is bone cancer. The Supreme
court answered in positive and observed as follows:
“Article 21 of t he Constitution protects the right to livelihood as an
integral fact of right to life. When an employee is inflicted with
unfortunate disease due to which, when he is unable to perform the duties
of the post he was holding, the employer must make every endeavour to
adjust him in a post which the employee would be suitable to discharge the
duties as a carrier attendant. Since he is matriculate, he is eligible for the
post of LDC for which apart from matriculation, passing in typing test
76
AIR 2002 SC 979.
either in English or Hindi at 30/15 words per minute speed is necessary.
For a clerk, typing generally is not a must. In view of the fact and the
circumstances of the case, we direct the respondent Board to relax his
passing of the typing test and appoint him as a LDC. Admittedly, on the
date when he had unfortunate operation, he was drawing the salary in the
pay scale of Rs 1400-2300. Necessarily, therefore, his last pay drawn has
to be protected. Since he has been rehabilitated in the post of LDC
protecting his scale of pay of Rs 1400-2300 and direct to pay all the
arrears of salary.”
State of Himachal Pradesh v. Gian Chand77
The main question in this case was whether schizophrenia is equal to

mental illness under Mental Health Act, 1987, the Supreme Court replied
in negative. In this case the session court had convicted a person accused
of the offence of raping a girl of five and half years on the basis of the
statement of witnesses, the medical reports and the First Information
Report. The judgement of the session court was overruled by the High
Court in the appeal. The High Court doubted the prosecution
story ,because of the delay in filing the FIR and the delay was not properly
explained to the High Court. The plea of the accused that he was
suffering from some mental disorder at the time of incident was also not
accepted. On appeal the Supreme Court quashed the judgement of the
High Court and upheld the conviction of the accused by the session court.
77
(2001) 6 SCC 71
The Supreme Court while dealing with the question about the
accused suffering from schizophrenia held as follows:
“The plea raised before and entertained by the High Court, in the
present case was one about accused suffering from schizophrenia is one of
a group of severe emotional disorders, usually of psychotic proportions,
characterized by misinterpretation and retreat from reality, delusions,
hallucinations, ambivalence, inappropriate affect and withdrawn, bizarre or
regressive behaviour, popularly and erroneously called split personality.
( see medical dictionary, Sloane- Dockland page, 628). We are not
persuaded to hold even prima facie, on the material available on record ,
that the accused was suffering from unsoundness of mind that too of a
nature which would have rendered him incapable of knowing the nature of
the act which he was doing or incapable of distinguishing between wrong
or right as per law. The entire discussion by the High Court on this aspect
of the case was irrelevant and meaningless.”
Kunal Singh v. Union of India and another78
In this case Kunal Singh, a constable in Special Service Bureau suffered an
injury in his left leg during service and medical help did not cure, his left
leg was amputated because of gangrene. On the basis of the Medical
Board report, he was permanently incapacitated. Under rule 38 of the
Central Services Pension rules 1972, he was granted invalidity pension.
The appellant challenged the order of termination by a writ petition
in H P before Himachal Pradesh High Court on the ground that his
termination was arbitrary and he could have been assigned some
78
AIR 2003 SC 1623.
alternative duty which he was capable of discharging. The High Court held
that since he had been permanently disabled on the basis of medical
opinion , there was no further scope for him to continue in any other
service.
He further appealed the orders of the High Court before the Supreme
Court. The Supreme Court took into account the definition of disability,
locomotor disability and persons with disability in PWD Act, 1995 and
also the definitions of these terms in the Nation Trust for Welfare of
Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple
disabilities Act, 1999 and held as follows:
“It is well settled that in the same enactment if two distinct
definitions are given defining a word/expression, they must be understood
accordingly in terms of the definition. It must be remembered that a
person does not acquire or suffer disability by choice. An employee who
acquires disability during his service, is sought to be under section 47 of
the Act, specifically. Such employee, acquiring disability, if not protected,
would not only suffer himself, but possibly all those who depend upon him
would also suffer. The very frame and content of section 47 clearly
indicates its mandatory nature. The very opening part of the section reads
“No establishment shall dispense with or reduce in rank an employee who
acquires disability during his service.” The section further provides that if
an employee after acquiring disability is not suitable for the post he was
holding, he could be shifted to some other post with same pay scale and
service benefits. If it is not possible to adjust the employee against any
post, he will be kept on a supernumerary post until a suitable post is
available or he attains the age of superannuation whichever is earlier. The
receipt of invalidity pension by the appellant cannot come in the way of
the appellant being given the benefit of section 47 of the PWD Act, of
1995.”
Deaf Employees Welfare Association v. Union of India79
In this case the petition was filed for seeking a Writ of Mandamus
directing the Central and state governments to grant equal transport
allowance to its government employees suffering from hearing
impairment as what was being given to blind and other disabled
government employees. The allowance given to the hearing impaired
employees was significantly lower than the allowance granted to other
employees with disabilities.
The Supreme Court allowed the petition and directed the
Respondents to grant transport allowance to speech and hearing impaired
persons also on par with blind and orthopaedically disabled government
employees. The Court held that “there cannot be further discrimination
between a person with disability of ‘blindness’ and a person with
disability of ‘hearing impairment’. Such discrimination has not been
envisaged under the Disabilities Act.” It held that equality of law and equal
protection of law afforded to all persons with disabilities while
participating in government functions. The Court held that the dignity of
persons with hearing impairments must be protected by the state. Even
the assumption that a hearing or speech impaired person is suffering less
79
(2014) 3 SCC 173
than a blind person is, in effect, marginalizing them; and as such, the same
benefits must be given to them, as are awarded to blind citizens. Any
move made by the state to further this objective is in consonance with the
principles enshrined in Articles 14. This case held that deaf and mute
people should also be given transportation allowances at par with blind and
orthopedically handicapped employees of the government.
Union of India v. National Federation of the Blind80
This was an appeal from the decision of the Delhi High Court wherein a
public interest petition had been filed which sought the implementation of
Section 33 of the Act (PWD) alleging that the appellants herein have failed
to provide reservation to the blind and low vision persons and they are
virtually excluded from the process of recruitment to the Government
posts as stipulated under the said Act. The Court looked into the
calculation of the 3% reservation –whether it refers to cadre strength, or
number of vacancies. It was held that 3% refers to a part of the total
vacancies in cadre strength. The Court also observed, “It is clear that
while section 33 provides for a minimum level of representation of 3 per
cent in the establishments of appropriate government, the legislature
intended to ensure 5 per cent of representation in the entire workforce
both in public as well as private sector”.
Government of India v Ravi Prakash Gupta81
In this case, the respondent was a visually challenged person who

appeared for the civil services examination conducted by the Union
80
(2013) 2 SCC 772
81
(2010) 7 SCC 626
Public Service Commission and was declared successful. However, he
was not given an appointment even though he was at selection no. 5 in the
merit list of visually impaired candidates. The respondent approached the
Central Administrative Tribunal which refused his application and
thereafter the respondent approached the High Court. The High Court
directed the government to accommodate the Respondent in the merit list,
against which the state filed an appeal in the Supreme Court. The state
contended that since the post for which the respondent was applying was
not identified for persons with disabilities and therefore not reserved for
them, the government could not make reservations in the same.
The Supreme Court refused the state government’s contention that
identification of jobs was a pre-requisite for reservation and appointment
under section 33 of the Act.82 The Court held:
"It is only logical that, as provided in section 32 of the aforesaid
Act, posts have to be identified for reservation for the purposes of Section
33, but such identification was meant to be simultaneously undertaken with
the coming into operation of the Act, to give effect to the provisions of
Section 33. The legislature never intended the provisions of section 32 of
the Act to be used as a tool to deny the benefits of Section 33 to these
categories of disabled persons indicated therein. Such a submission strikes
at the foundation of the provisions relating to the duty cast upon the
appropriate government to make appointments in every establishment."
Syed Bashir-ud-Din Qadri v. Nazir Ahmed Shah83

82
The Persons with Disabilities Act, 1995, Section 33
83
Civil Appeal Nos.2281-2282 Of 2010
In this case, the Appellant was a B.Sc. graduate with cerebral palsy who
had applied for a job as a ‘Rehbar-e-Taleem’ or ‘Teaching Guide’ in the
State of Jammu and Kashmir. The state government had initially
objected to his appointment on the ground of his disability. The appellant
however, with directions from the High Court, was appointed under the
Jammu and Kashmir Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1998.
The Respondent then filed a petition challenging the order of
appointment and the appellant was re-examined by the head of the
Department of Neurology. It was indicated in the report that as he had
cerebral palsy, he had significant speech and writing difficulties, which
would make it difficult for him to perform his duties as a teacher. The
High Court quashed his appointment and ordered that since the appellant
was unfit to the post of the teacher he should be given an alternative
employment. His appeal to the division bench of the High Court was
dismissed and he thereafter approached the Supreme Court.
The Supreme Court observed that:
“This case involves a beneficial piece of social legislation to enable

persons with certain forms of disability to live a life of purpose and human
dignity. This is a case which has to be handled with sensitivity and not
with bureaucratic apathy, as appears to have been done as far as the
appellant is concerned... It is only to be expected that the movement of a
person suffering from cerebral palsy would be jerky on account of
locomotor disability and that his speech would be somewhat impaired
but despite the same, the legislature thought it fit to provide for
reservation of 1 per cent of the vacancies for such persons. So long as the
same did not impede the person from discharging his duties efficiently and
without causing prejudice to the children being taught, there could,
therefore, be no reason for a rigid approach to be taken not to continue
with the appellant's services as Rehbar-e-Taleem, particularly, when his
students had themselves stated that they had got used to his manner of
talking and did not have any difficulty in understanding the subject being
taught by him... Coupled with the above is the fact that the results
achieved by him in the different classes were extremely good; his
appearance and demeanour in school had been highly appreciated by
the committee which had been constituted pursuant to the orders of the
High Court to assess the appellant's ability in conducting his classes.”
The Court directed that in order to overcome the impediment of writing on

the black board, an electronic external aid could be provided to the
appellant, which could eliminate the need for drawing a diagram and the
same could be substituted by a picture on a screen, which could be
projected with minimum effort. With these directions for providing
reasonable accommodation, the Supreme Court held that the
disengagement of the appellant goes against the grain of the PWD Act and
hence the order was set aside by the Court.
Suchita Srivastava v. Chandigarh Administration84
This case was with regard to the reproductive rights of a woman with
84
(2009) 9 SCC 1.
mental retardation residing at a government run welfare institution in
Chandigarh who became pregnant due to a rape by an in-house staff and
who wanted to keep the baby and carry on the pregnancy to full term. The
Chandigarh Administration filed a petition in the High Court seeking
permission to terminate her pregnancy under the Medical Termination of
Pregnancy Act, 1971 (“MTP Act”) on the ground that she was not
capable of carrying on with the pregnancy and would not be able to look
after a child. Although the expert body found that the woman had
expressed her wish to bear her child, the High Court directed the
termination of the pregnancy. The woman, through an amicus, appealed to
the Supreme Court and one of the main issues before the Supreme Court
was regarding the legal capacity of a woman with mental retardation to
decide on her pregnancy.
The Supreme Court noted the provisions of the MTP Act, which
provided that where pregnancy is a result of rape and termination of the
same is contemplated, the consent of the pregnant woman is
mandatory.85The Court also noted the exception to this provision which
provided that in case of a pregnant woman who is “mentally ill”,
pregnancy can be terminated with the approval of the woman’s guardian.86
Following this, the Court proceeded to make a distinction between
‘mental illness’ and ‘mental retardation’. Upholding the legal capacity of
the appellant, the Court held:
85
The Medical Termination of Pregnancy Act, 1971, Section 3(4) (b).
86
Id.,Section 3(4)(a).
“While a guardian can make decisions on behalf a ‘mentally ill person’ as
per Section 3(4) (a) of the MTP Act, the same cannot be done on behalf of
a person who is in a condition of ‘mental retardation’. The only reasonable
conclusion that can be arrived at in this regard is that the State must
respect the personal autonomy of a mentally retarded woman with regard
to decisions about terminating a pregnancy. It can also be reasoned that
while the explicit consent of the woman in question is not a necessary
condition for continuing the pregnancy, the MTP Act clearly lays down
that obtaining the consent of the pregnant woman is indeed an essential
condition for proceeding with the termination of a pregnancy... We cannot
permit a dilution of this requirement of consent since the same would
amount to an arbitrary and unreasonable restriction on the reproductive
rights of the victim.”
Thus, the Supreme Court clearly held that the MTP Act required
the consent of a mentally retarded woman for termination of pregnancy.
Following this, the Court concluded that the Appellant was mentally
retarded, had not consented to the termination of her pregnancy and in
fact, had expressed her willingness to bear the child. Therefore it could
not permit the termination of her pregnancy. In arriving at this
conclusion, the Court not only recognised the reproductive rights of a
woman under the MTP Act, but also recognised international norms and
principles on mentally retarded persons and persons with disabilities under
the CRPD. In this context the Court specifically held:
"Our conclusions in this case are strengthened by some norms
developed in the realm of international law... In respecting the personal
autonomy of mentally retarded persons with regard to the reproductive
choice of continuing or terminating a pregnancy, the MTP Act lays down
such a procedure. We must also bear in mind that India has ratified the
Convention on the Rights of Persons with Disabilities (CRPD) on October
1, 2007 and the contents of the same are binding on our legal system." The
Court clearly recognised the right to legal capacity of women with mental
retardation to take independent decisions on her pregnancy. The Supreme
Court held that “Her reproductive choice should be respected in spite of
other factors such as the lack of understanding of the sexual act as well as
apprehensions about her capacity to carry the pregnancy to its full term
and the assumption of maternal responsibilities thereafter.”
Therefore, the Supreme Court laid out the specific right to legal
capacity which was not subject to an understanding of one’s situation and
capacities. This case clearly follows the spirit of protection of legal
capacity under Article 12 of the CRPD.
Govt. of India through Secretary v. Ravi Prakash Gupta87
Altamas Kabir and Cyriac Joseph JJ. while deciding the case e, held
that the Persons with Disabilities Act, 1995 created valuable rights which
were intended to protect employees of public bodies, in a welfare state,
who acquired a disability while in service. The protection which is
87
(2008) 1SCC 579.
conferred by section 47 cannot be violated or abrogated by taking recourse
to disingenuous methods which would defeat the rights which Parliament
has conferred upon persons with disability. The Persons with Disabilities
Act, 1995 is a Parliamentary recognition of the special needs of person
with disabilities; of the affirmative action that is required to protect their
life and liberty under article 21 of the Constitution and to ensure them a
right of dignified existence. In cases governed by the Persons with
Disabilities Act, 1995, the Court had viewed an abrogation of the mandate
of section 47 in strict terms. The general principles which are applicable
to the grant of back wages in a situation of termination governed by the
Industrial Disputes Act, 1947 would need to be modulated where there is
a breach by a public employer of the rights which are conferred by
section 47 of the Persons with Disabilities Act, 1995. A case governed by
section 47 cannot be treated at par with cases where the services of an
employee have been dispensed with as a result of an act of misconduct, or
for that matter as a result of violation on the part of the employee. In a
case where the employer has been in breach of the mandatory obligation
under section 47, it would not be permissible to deprive the employee of
consequential benefits when the Court sets aside an illegal action. An
employer of the public sector must be held to strict compliances with the
Persons with Disabilities Act, 1995 and any dereliction of the obligation
mandated by section 47 will have to be visited with the grant of
consequential benefits.
Chandan Kumar Banik v. State of West Bengal 88
88
(1995) 4 SCC 505
A letter, accompanied with a newspaper photograph of a mentally ill
patient in chains, in the hospital in question, was addressed to the Chief
Justice who issued notice to the State of West Bengal and appointed a
Committee to inspect the hospital. In the State’s counter-affidavit, it took
the plea that the hospital was only under its temporary management, as the
same was not being properly managed by the Trust that was entrusted
with the property. The Court directed that so long as the State is
responsible, no matter how temporary an arrangement, it has to provide
adequate facilities. In the context of chaining of inmates, the Court
specifically directed that the practice ought to be discontinued immediately
and drug treatment be adopted to treat such patients. The State was also
directed to appoint an Administrator besides the Chief Medical Officer, so
that the management of the hospital can receive due time and
consideration.
Sheela Barse v. Union of India89
The Supreme Court issued directions pursuant to the suggestions of

Amicus Curiae appointed by the Court to investigate the plight of
mentally ill persons in various mental asylums, pursuant to an unfortunate
event in which 25 inmates died in a fire they were chained to their beds
and could not escape. The directions issued by the Supreme Court were:
1. District-wise survey of all registered/unregistered bodies offering
psychiatric/mental health care should be done. No unregistered body will
function.
89
(1995) 4 SCC 634.
2. No mentally challenged person will be chained in any part of the State.
Chief Secretary or Additional Chief Secretary designated by him at the
Central-level, shall be the nodal agency to coordinate all activities involved
in implementation of the Mental Health Act, 1987, the Persons with
Disability (equal opportunities, Protection of Rights and Full
Participation) Act, 1995 and the National Trust for Welfare of Persons
with Autism, Cerebral Palsy, Mental National Trust Should be formed
under the 1999 Act and contribution made for it.
3. One Central Government-run mental hospital in each State and Union
Territory must be established within a definite time frame.
State Government and Union Territory Government set up at least one
mental hospital within a definite time frame.
4. Both Central and State Governments shall undertake a comprehensive
awareness campaign with a special rural focus to educate people as to
provisions of law relating to mental health, rights of mentally challenged
persons, the fact that chaining of mentally challenged persons is illegal
and that mental patients should be sent do doctors and not religious places
such as temples or dargahs.
5. A state Mental Health Authority under section 3 of the 1987 Act should be
constituted, which should meet at least once in every four months or at
more frequent intervals depending upon in exigency.
Indian Bank Association v. Devkala Consultancy services90
The Supreme Court in this case directed the creation of 723

Crores corpus fund for physically challenged. Devika Consultancy
90
(2004) 4 Cri.L.J. 80(SC).
Services had filed a petition int he Karnataka High Court challenging
the authorities of the bank to round up the existing interest rates to .25
percent of such rates as were less than 25%. Such rounding off was
foung necessary on account of the grossing up involved in calculating
the incidence of tax. As the Reserve Bank of India had given its
approval to such rounding off in April, 1993. The Banks collected the
amount of 723.99 Crores as it was alleged. The High Court held that
the action of the Banks was illegal and accordingly directed that the
excess amount be collected by the Union of India from the bank and
deposit in the Government Funds.
The Indian Banks Associatin was respondent in this writ appeal and
appealed to the Supreme Court by way of Special Writ Petiton. The
Supreme Court upheld the judgemnt of the High Court that the Reserve
Bank of India could not have empowered the Banks to charge something
more from the borrowers by the process of rounding off of interest in
excercise of their contractual powers viz-z-viz the Bank Regulation Act
considering that there were more than 5 crores of borrowers of the banks,
any directions to refund the amount would take a long time. The court,
therefore, directed that the amount so collected should be put in the copus
for the welfare of the physically challenged.
Disability Rights Group v. Cheif Election Commissioner and Anr.91
The Supreme Court in this case directed the availability of Wooden

Ramps for the disabled suffering from locomotor disability. The
difficulties faced by the persons with locomotor disability in entering
91
AIR 2004 SC 34.
polling stations to cast their vote in the absence of ramps were called
under question in the general elections of 2004.
After hearing the counsels for election commission and the
Attorney General of India, the Supreme Court directed the Chief
Secretaries of all the respective States to ensure in co-ordination with
Chief Election Officers that as far as possible the wooden Ramps are
made available in the elections to be held on 26th April 2004.
National Federation of Blind v. Union Public Service Commission
and Ors.92
The question for disposal before the Supreme Court in this case was
that whether the Blind candidates may be permitted to compete for IAS
and allied services and if so, whether they be provided with facilities of
writing the Civil Services Examination either in Brial script or with the
help of scribe?
The Supreme Court answered in positive.
On behalf of the blind and partially blind persons, the National

Federation for the blind filed a writ petition straight away before the
Supreme Court under Article 32 of the Indian Constitution. The writ
petition had prayed for the direction to the Union of India and the Union
Public Service Commission to permit blind candidates to compete for the
IAS and Allied Services examination. They further requested that they
may kindly be provided the facility of writing the Civil Services
Examination either in Brail Script or with the help of Scribe. They further
92
AIR 1983 SC 1916
requested that the post in Group A and B int he government and in the
Public Sectors Undertakings which have been identified for blind persons
be offered to them as early as possible on preferential basis.
The Supreme Court observed that several measures had been launched in
several schemes like education, train and provide employment to blind
persons both at Central and State level governments. Three percent
vacancies in Group C and D under the Central Government had already
been reserved for the blind and partially blind persons. So, far as the
posts in Group A and B under the central government, the standing
committee in the Ministry of Welfare had been asked in December 1985 to
indentify the posts which could be given to the persons with disability.
The report of the committee was submitted before the Supreme Court
stating that 420 posts of various categories of disability including those
for the blind and partially blind in group A and B and other Public
Sector Undertakings had already been identified. It was argued before the
court that such recommendations had not been implemented, although
seven years had passed. The court directed the Government to implement
the reservation/preferences to the handicap persons in Group A and B
expidicously. The request of the blind candidates to write the Civil Service
examination in brail script. Once considered legally justified, however, it
was made clear by the Supreme Court that once recruited to the lowest
level of service, the visually handicap persons shall not be entitled to
claim promotion to the highest post in the service irrespective of the
physical requirement of the job.
Mahesh Gupta v. Yashwant Kumar Ahirwar93
The Supreme Court set aside the judgment of Bombay High Court
and held that there can be no discrimination between general categories
disabled persons and other SC, ST category etc. disabled persons. The
Supreme Court observed that the Supreme Court could be two type of
reservations under Article 16 of the Constitution and that it has adopted a
policy for making horizontal reservations for persons with disabilities. It
was further observed by the Supreme Court that a person with a disability
constituted a special class and that there cannot therefore be any further
reservation based on caste or religion for the disabled candidate.
The Supreme Court directed that the persons whose services had been
terminated should be continued in service. It was further directed that they
be paid back-wages as also other service benefits. The Supreme Court also
directed that Ahirwar (Respondent No. 1) could have been considered as
a person with a disability as also under the category of Scheduled Castes
and Scheduled Tribes. If all the vacancies meant for Scheduled Castes,
Scheduled Tribes had not been filled up, the State was directed to
consider appointing him and that if he had already been appointed, the
State was directed to consider creating a supplementary post and continue
his service therein. The Appeals were allowed with cost.
Ch. Salil Chaturvedi and Prajwala v. Union of India94
The Supreme Court framed rules for the allotment of land. The
93
2008(6) Bombay CCR 280.
94
(2009) 4 SCC 798 (WP(C) 56 of 2004).
petitioner under the present Public Interest Litigation alleged that despite
the commencement of the act i.e. The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995,
which came into force with effect from 07.02.1996. The State Government
and Local Authorities have not formulated any rule regarding the
allotment of land to the disabled as per the requirement of Section 43 of
the Act. Section 43 runs as under:
“Schemes for preferential allotment of land for certain purposes.
The appropriate Government and local authorities shall by notification
frame schemes in favour of persons with disabilities, for the preferential
allotment of land at concessional rates for:-
a) house
b) setting
c) setting up of special recreation centres
d) establishment of special schools
e) establishment of research centres
f) establishment of factories by entrepreneurs with disabilities”.

The Supreme Court directed the State Government as well as Local
Authorities to allot land for various purposes indicated in Section 43 of the
Act and preferential treatment be given to disabled persons and the land
shall be allotted at concessional rates. The Court observed the percentage
of reservations may be left to the discretion of the State Governments and
Local Authorities. However, the total percentage of disabled persons shall
be taken into account while dealing with the percentage of allotment. The
Supreme Court further directed the appointment of Chief Commissioner
and to look after the complaints of person’s disabilities as required under
Section 63 of the PWD Act of 1995.
Rakesh Chandra Narayan v. State of Bihar95
It was a letter, which was addressed to the Chief Justice of India,

however, the same was considered as Public Interest Litigation under
Article 32 of the Constitution. The letter spoke about the inhuman
conditions prevailing in the State owned mental hospitals. The Court
observed that it was the obligation of the State to provide medical
attention to every person and that it would be difficult for the Supreme
Court to monitor the management of hospitals located far away. Inhuman
conditions were still found to be in existence in these hospitals despite
several interim Supreme Court’s orders and several assurances given by
the States. The Court further directed that various implementation reports
that are furnished by the different States from time to time be placed
before the Supreme Court. The Court further observed that the matter shall
be deemed to be pending to monitor the progress so as to facilitate
passing further orders.
Shyam Narayan Chouksey v. Union Of India & Others96
The petitioner approached the Supreme Court under Article 32 for

issue of writ of mandamus or any other direction for the respondents to
take appropriate steps for inculcating due respect to national anthem
95
AIR 1989 SC 348.
96
Writ Petition (Civil) No. 855 of 2016
specially when it is being sung in the cinema halls. The direction was shot
specifically with regards to physically handicapped persons,ie persons
who are covered under section 2(i) and section2(t) of the Persons with
Disabilities (Equal opportunities, protection of Rights and Full
Participation) Act, 1995.
Mr Rohtagi the then Attorney General of India submitted that the
Central Government is going to issue guidelines within ten days as to how
the physically challenged or physically handicapped person shall show
respect to national anthem. Meanwhile it is cleared that if a physically
challenged person or physically handicapped person goes to cinema hall
to watch a film, he need not stand up, if he is incapable to stand, but must
show such conduct from which respect to the national anthem is amply
visible and clear.
The petition was filed to issue direction to Union of India to exempt

certain categories of disabled persons to stand up when the national
anthem is being sung in the cinema hall. The categories of persons
mentioned are
1) Those with Autism
2) Those with cerebral palsy
3) Intellectual disabilities
4) Wheel chair users-can be cerebral palsy, Parkinsons, Multiple sclerosis,

Muscular dystrophy or other conditions
5) Mental illness
6) Deaf blind
7) Parkinsons, Multilple sclerosis
8) Multiple disabilities
9) Leprosy cured
10) Muscular dystrophy
It was decided to constitute an inter ministerial committee to give

recommendations regarding regulations of playing/singing of national
anthem and to suggest changes in the Prevention to Insults to the National
Honour Act, 1971 relating to the national anthem of India till the
committee submit its report. It was observed that playing of National
Anthem in the cinema hall may not be made mandatory. The exemption
granted to the disabled persons shall remain in the court till the final
decision of the competent authority with regards to each occasion,
whenever national anthem is played .
Disabled Rights Group & anr. v. Union of India & ors97
The present petition is filed in public interest for the benefit of persons
suffering from disabilities as per the definition given by The Rights of
Persons with Disabilities Act, 2016. There were three main issues in the
present
1) The first issue related to the non implementation of 3% reservation of seats
in the educational institutions as provided in section 32 of the disabilities
Act, of 2016.
97
Writ Petition (Civil) No. 292 Of 2006
2) The second issue was regarding providing proper access to orthopaedic
persons so that they may move freely in the educational institutions and
may have access to facilities.
3) The third issue pertains to pedagog i.e to make available adequate facilities
of teaching to disable persons depending upon the nature of disabilities, so
that they may undertake the studies effectively.
Mr Justice A. K. Sekhri pronounced the judgement of the bench. The
other Lordship of the bench was Hon’ble Mr Justice Ashok Bhushan. The
writ petition was disposed off with the following directions:
1) While dealing with the reservation of seats in educational institutions, all the
educational institutions are given directions that they will comply with the
provisions of section 32 of disabilities Act, 2016.In addition to this
direction it is further directed that all institutions/law colleges shall
intimate the Bar Council of India regarding compliance to these orders,
whereas the other institutions will notify the compliance of the order to
UGC every year.
2) On the second issue raised by the petitioner regarding guidelines for
accessibility to students with disabilities in universities/ colleges. The
UGC shall constitute a committee to consider its feasibility .The
committee shall undertake a detailed study before making any provision
with regards to accessibility as well as pedagogy. The committee shall also
lay down the time limit within which such suggestions will be
implemented. The exercise shall be completed by the committee by June
30, 2018.
Rajiv Raturi v. Union of India98
The petitioner who is visually disabled person , is resident of

Gurgaon(Gurugram) and works in Delhi with a human organisation. He
has filed this petition in public interest on behalf of disabled persons(better
expression is differently abled person) for proper and sufficient access to
public places. It is stated in the petition that there are sixty to seventy
million disabled persons in India out of which fifty percent suffer from
visual disability. The main concern of these visually impaired persons is
safe accessibility to movements on the footpaths, roads and transports. The
internationally acceptable components of physical accessibility are as
under:
a) Safety- The environment may be so created where disable persons can move
freely and safely.
b) Independence- The environment may be such where the disable can move
independently.
c) Affordability- The accessibility to the environment should be affordable that
is without making any payment.
d) Logical layout- The environment must be such where the disable persons
are able to move without much physical exertion i.e he need not have to
move to the length and the breadth of the building to get his work done.
The petitioner suggested the following measures in respect of roads:
1) Installation of auditory signals at every red light so that visually disabled
98
(2018) 2 SCC 413
person may cross the road safely. The signal emits a series of sounds
indicating the time to cross the road.
2) To construct zebra crossing at a slight incline by way of aid to visually
disabled persons to enable the disable person to move along the raised safe
passage of zebra crossing.
3) To insert guiding blocks in zebra crossings so that visually disabled persons
may move along safely.
4) To place warning blocks on the edges of footpaths so as to caution the
disable between the road and the pathways.
5) To construct footpath without any obstruction or with minimum hindrances
for straight and free movements for the disabled persons.
6) To erect temporary barricades around the place where the construction
work is in progress.
7) To construct road dividers in between the main road so that two separate
traffic zones move in two opposite directions. The visually disabled
person with help of aid of his ears can concentrate on the traffic sounds
coming from one particular direction while crossing the road.
The court observed that having regard to the constitutional and legislative
provisions, there is no denial of the fact that visually handicapped persons
need to be provided safe access to the roads and transport as well as to
buildings and public places. The court observed that it finds comfort in
viewing that the Union of India does not view it in an adverse manner. It
rather reflects the commitment of central government in taking care for the
disabled. It is for this reason that Union of India has been filing the status
report about the disabled from time to time by way of fulfilling its
constitutional and statutory obligations.
The writ petition is desposed with the following direction:
1) To make twenty to fifty important government buildings in fifty cities fully

accessible to disabled within the prescribed period as per provision of
Section 46 of the Disability Act, of 2016.
2) To make fifty percent of the government buildings of the national capital
and capitals of all the states fully accessible to the disabled by December
2018.
3) To complete the audit of accessibility of fifty percent of government
buildings and making them fully accessible in the ten most important
cities of states, UTs not covered under serial no 1 and 2 by December
2019.
4) To provide accessibility in all the international airports within the prescribed
time limits
5) To make accessibility in railways. Ministry of Railway was required to
make all A 1, A and B categories of railway stations fully accessible to
disabled. Out of which fifty percent railway stations are to be fully
accessible by March 2018.
6) Ten percent of government owned transports are to be made fully accessible
to disabled by March 2018.
7) To fix a target of training additional 200 sign language interpreters by
March 2018.
8) As per Section 60 and 66 of The Disability act,2016 all states and Union
territories are required to constitute central and state advisory boards for
the proper and effective implementation of the provisions of the Act.
4.6 JUDICIAL DECISIONS WITH SPECIAL REFERENCE TO

DISABLED PERSONS: HIGH COURT JUDGEMENTS
Ranjit Kumar Rajak v. State Bank of India99

The Petitioner in this case underwent a renal transplant in 2004.
Subsequently, he applied to the post of a probationary officer in the State
Bank of India. After a medical test, the bank rejected him on the ground
that he was found medically unfit for the post. The petitioner approached
the Bombay High Court by a writ petition claiming that despite medical
reports that indicate his fitness to perform his duties, he was denied being
considered for employment. The bank rejected him as the rules required
the bank to reimburse medical expenses incurred by the officers of the
bank and since the medical condition of the Petitioner required regular
medical check-ups, the costs would be very high and could not be borne by
the bank. The main question, according to the Court, was “whether a
person who is fully qualified for a post because of his past or present
medical condition which otherwise did not interfere with his fitness to
dispense the duties of his post, be denied employment because of the
financial burden that would be cast on the employer.”
In an extremely significant ruling, a Division Bench of the Bombay

High Court 36articulated and recognised for the first time the concept of
“reasonable accommodation at the workplace” in India. The Court relied
99
(2009) 5 Bom. CR 227.
on the CRPD to decide the duty of the employer in providing reasonable
accommodation and the limits on such a duty. The Court recognised that
India had signed and ratified the CRPD and that Article 27 of the
Convention recognises the right of persons with disability to be "accepted
in the labour market and work environment that is open, inclusive and
accessible to persons with disabilities." The Court also discussed the
definition of “reasonable accommodation” under Article 2 as “a necessary
and appropriate modification and adjustments not imposing a
disproportionate or undue burden, where needed in a particular case, to
ensure to persons with disabilities the enjoyment or exercise on an equal
basis with others of all human rights and fundamental freedoms.”
In interpreting “reasonable accommodation” and “undue burden” the

Court relied on the CRPD and recognised the importance of India’s
international obligations with respect to rights of disabled persons by
stating that:
“The law is now well settled that though the United Nations Convention
may not have been enacted into the Municipal Law, as long as the
convention is not in conflict with the Municipal Law and can be read into
Article 2 thus making it enforceable. The Court further held:
Therefore, in the absence of any conflict it is possible to read the test

of reasonable accommodation in employment contracts.” “A duty is,
therefore, cast on the State to provide reasonable accommodation in the
matter of employment subject to the burden of hardship test being
satisfied. In the absence of a statutory definition of reasonable
accommodation, the reasonable accommodation as set out in the protocol
in the first instance can be considered. It will have to have a nexus with
the financial burden on the institution and/or undertaking which will have
to bear the burden and further the extent to which reasonable
accommodation can be provided for.”
The Court incorporated the right to reasonable accommodation by

declaring that “Reasonable accommodation, if read into Article 21, based
on the U.N Protocol, would not be in conflict with municipal law. It would
give added life and dimension to the ever expanding concept of life and its
true enjoyment.”
Following this, the Court concluded that the bank has a duty to
provide reasonable accommodation to the petitioner subject to any undue
burden. The Court observed that no evidence was presented on how the
financial burden would actually be caused to the bank in providing
reasonable accommodation to the petitioner even if it meant meeting his
medical expenses. Consequently, the Court allowed the petition and
directed that the Petitioner be offered appointment and allowed to join the
post.
Lalit and Others v. Govt. of NCT and another 100
This petition was filed by 12 inmates of the hostel attached to Andh
Mahavidyalya, New Delhi, an institution for visually impaired students,
seeking a direction that they may not be expelled or dispossessed from the
hostel. Out of these 12 inmates, expulsion orders were issued by the
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Respondents against 5 inmates on the ground that the hostel was meant for
only students up to Class VIII and the petitioners had overstayed beyond
this class. Many of them were between 25-35 years old and it was alleged
that there was a shortage of space for deserving younger visually
impaired students and that they were also intimidating the younger
students. One of the main issues before the Court was whether the hostel
was obligated to accommodate the petitioners because of their disabled
status even if it resulted in a disadvantage to the other disabled students.
Justice Muralidhar of the Delhi High Court noted that the facts
illustrated the lack of decent accommodation for children with disabilities
and recognised the associated problems of lack of resources, hygiene and
accountability in the running of institutions with disabled children. The
Court held as follows:
“In the context of the inviolable human rights of the disabled, it is
necessary to take note of the binding and mandatory provisions of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 (specifically Sections 26 and 30) (`PDR Act’)
and the Convention on the Rights of Persons with Disabilities (`CRPD’)
which has been ratified by India. In particular, Article 7 which sets out the
obligations of the States towards children with disabilities, Article 9
which obliges the States to take appropriate measures to ensure access to
“schools, housing, medical facilities’, and Article 24 which deals with the
right to education are relevant.”
The Court relied upon Article 24 of the CRPD which guaranteed the
right to education and held that in the context of a disabled child housed in
a state-run institution there are a cluster of laws all of which can be traced
to the fundamental rights to liberty and a life with dignity. It held that in
the context of a young person receiving education in a state-run institution
as a resident scholar, the right to shelter and decent living is an inalienable
facet of the right to education itself and when the State takes over the
running of an educational institution that caters to the needs of the
disabled, it has to account for the ‘cascading effect’ of multiple
disadvantages that such children face.
In the context of the present case however, the Court held that due to
the limitation of resources, all the visually impaired persons at the Andh
Mahavidhyalala, irrespective of their age cannot possibly expect to be
allowed to live there as the primary purpose should be to cater to the
needs of young children studying up to class
VIII. If this primary object was not kept in view, then it may result in an
unfair denial of the right to education of other deserving young students
who are visually challenged.
The Court thus directed the Respondent authorities to take every
possible effort to see if all the 5 inmates who were given expulsion orders
could be accommodated in any of the other institutions in Delhi. Sufficient
time of 6 months should be given to them to make alternative
arrangements and assistance should be given to help them find alternative
accommodation. The Court also observed that this case should act as a
wakeup call for the government to monitor the functioning generally of all
institutions under its control, particularly for the disabled. This case
illustrates the incorporation of the CRPD principles with regard to
reasonable accommodation and right to education of children. The Court
was called upon to balance the two rights, which it ultimately did by
taking into account the level of disabilities faced by each group demanding
accommodation.
The National Association for the Deaf v. Union of India101
This was a public interest petition filed by the National Association

for the Deaf before the Delhi High Court on the non-availability of sign
language interpreters in public services. The petition complained of the
lack of availability of adequate number of sign language interpreters in
various public places and sought for directions against the Ministry of
Social Justice and Empowerment and other authorities to ensure access
and better training of sign language interpreters.
While the Court noted the lack of availability of sign language
interpreters, it agreed with the Petitioner Association that due to non-
availability of interpreters, the hearing impaired were unable to avail
medical, transport and banking facilities and to also seek police help. With
regard to the importance of ensuring the availability of support in the form
of interpreters, the Court relied on the CRPD and held,
“The United Nations Convention on the Rights of persons with
disabilities adopted by the General Assembly and ratified by the Govt. of
India on 1st October, 2007 also provides for taking appropriate measures
to provide forms of live assistance and intermediaries including guides,
readers and professional Sign Language Interpreters to facilitate
101
W.P. (C) 10849/2009
accessibility to buildings and other facilities open to the public. It is
needless to state that, all the said rights are composite part of right to life
enshrined in Article 21 of the Constitution of India.” Based on this, the
Court issued specific directions to the respondent authorities which
included undertaking a survey to assess the availability and requirements
for sign language interpreters, appointing nodal officers to seek
information from concerned authorities and prepare a report to be used for
creation of new posts, creating courses and curricula for training of
interpreters.
Bhagwan Dass and Anr v. Punjab State Electricity Board102
In this case, the Appellant was an Assistant Lineman in the

Respondent Board. During his service, he became totally blind and the
Respondent failed to accommodate him in an alternative post as per
Section 47 of the PWD Act and terminated his services. Therefore the
appellant approached the High Court of Punjab and Haryana against the
termination of his services. The High Court dismissed the petition and the
Appellant appealed to the Supreme Court.
The Supreme Court allowed the appeal relying on Section 47 of the
PWD Act and observed that the Board had an obligation to follow this
provision as the appellant had acquired disability during his service. On
Section 47, the Court relied on a previous decision in Kunal Singh v.
Union of India and Anr45 which held that, “In construing a provision of a
social beneficial enactment that too dealing with disabled persons intended
to give them equal opportunities, protection of rights and full
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participation, the view that advances the object of the Act and serves its
purpose must be preferred to the one which obstructs the object and
paralyses the purpose of the Act”
The Court gave a broad interpretation to Section 47 and took a

protective approach towards persons with disabilities by holding:
“From the narrow point of view the officers were duty bound to follow the
law and it was not open to them to allow their bias to defeat the lawful
rights of the disabled employee. From the larger point of view the officers
failed to realize that the disabled too are equal citizens of the country and
have as much share in its resources as any other citizen. The denial of
their rights would not only be unjust and unfair to them and their families
but would create larger and graver problems for the society at large.
What the law permits to them is no charity or largess but their right as
equal citizens of the country.”
Ritesh Sinha v. State of Haryana103
In this case, an important interim order was passed by the High

Court of Punjab and Haryana and the matter is still pending. The petitioner
was a person with locomotors disability and was appointed as a clerk by
the District and Sessions Judge, Karnal in the post reserved for physically
disabled persons. Thereafter his services were terminated due to his
inability to perform the duties as a clerk who was expected to write the
office notes and maintain records in his own hands.
The Court held that as the petitioner was well conversant with
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Civil Writ Petition No. 3087 of 2011
computer operations and that there could be plenty of work done by him
like preparation of daily cause lists of all Courts, certified copies of
judgments, etc., which could be assigned to a computer savvy person like
him. The Court directed that in the interim, his dismissal order would
remain stayed, and the respondents were directed to reinstate the
petitioner in service with all benefits. The Court even directed the
respondents to immediately construct a ramp / slope so that the petitioner
could enter his office and a compliance report to be submitted to Court
about the same. Further, it directed the respondents to see that a congenial
atmosphere is created at the workplace so that the Petitioner is made an
integral part of the mainstream workforce.
U.P. Vishesh Shikshak Association v. State of U.P.104
Here the Petitioner Association had filed a public interest petition

before the Allahabad High Court contending that the pupil-teacher ratio so
far as specialised teachers and children with disabilities was concerned was
not adequate and claimed that the government circular on Integrated
Education for Disabled Children Scheme mandated a pupil teacher ratio of
8:1. It also claimed that the Rehabilitation Council of India Act, 1992
imposed a statutory duty on the State to make arrangements for adequate
number of teachers for persons with disabilities.
The Allahabad High Court recognised the statutory duty of the State
to “provide all necessary help and assistance to physically disabled
students.”However, in response to an argument that orthopaedically
handicapped children do not require specialised teachers, it held, “We are
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Misc. Bench No. 5622 of 2010
of the view that now, the right to education and right to livelihood being
the fundamental rights enshrined under Articles 21 and 21-A of the
Constitution, the State Government has to make all efforts to provide
necessary assistance to all disabled persons. Taking into consideration the
meagre strength of 1291 teachers, we cannot presume that State
Government may be able to impart education to disabled students.”
Manjunatha v. Government of Karnataka and Ors.105
In this case, the petitioner, who was completely blind sought to apply for
the
B. Ed. Course under the government quota of seats in Karnataka. However,

he was denied admission by reason of the condition that persons with
disability greater than 75 per cent would not be eligible for admission. The
announcement issued by the respondent permitted applications from
persons with disability but restricted it to such applicants who had a
disability exceeding 40 per cent but below 75 per cent. The Karnataka
High Court allowed the petition by holding that such a provision in the
announcement ran counter to the PwD Act. The respondent government
argued that the upper limit in the announcement was based on a similar
provision in Karnataka Selection of Candidates for Admission to Teachers
Certificate Higher Course (TCH) and Bachelor of Education Course
(B.Ed.) Rules 1999 and therefore such a notification could not be
challenged. The bench however, rejected this contention and held that even
the Rules run contrary to the PwD Act and the state government could not
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W.P 35969 of 2010
rely on the Rules to deny admission to candidates having more than 75 per
cent disability. The Court ruled in favour of the petitioner and held that he
was entitled to take up CET for admission to B.Ed. course and further
declared that he shall not be denied admission on the basis of his disability
exceeding 75 per cent.
The observations of the Court strengthened the protection for persons
with disabilities as it effectively held that the disability legislations would
take precedence over administrative rules of the government.
Kritika Purohit and Anr. v. State of Maharashtra and Ors.106
The petitioner was a visually impaired student who sought admission

to the course in Bachelor of Physiotherapy but was not permitted to apply
for the same. The petitioner contended that although the post of a
physiotherapist was considered to be suitable for blind persons, the denial
of courses in physiotherapy for blind persons ran counter to Section 39 of
the PWD Act and that the respondents were obliged to make all
accommodations for the Petitioner in conformity with Article 24(2) of the
CRPD.
The respondents contended that it was not practical for the petitioner
to be involved in the course. However, the Court also noted the petitioner’s
reliance on the circular of the Mumbai University in mandating that
resources should be made available to visually impaired student to allow
them to complete their courses. In view of these materials, the Court
observed that the respondents had shown a negative attitude towards
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W.P. No. 979 of 2010
persons with disabilities and “have not cared to consider the object
underlying the provisions of Disabilities Act, 1995”. Therefore, by an
interim order dated 2 August 2010, it directed the Commissioner of
Disabilities to consider all the materials and make suitable instructions to
the respondents for making necessary arrangements for admission of
visually challenged students. It also directed that the petitioner should be
provisionally admitted for the course and should be provided with
resources for translation of the material to braille.
Subsequently, the Court found that the petitioner had completed the first
exam and had secured 62 per cent in the same. Therefore, it held that she
should be allowed to be admitted and complete the course. However, the
Court noted that the state government had accepted the guidelines of the
Maharashtra State Council for Occupational Therapy and Physiotherapy
that visually impaired candidates are not fit for the physiotherapy course.
On this, it noted the contentions of the Petitioner and also Xavier’s
Resource Centre for the Visually Challenged who claimed that a
physiotherapist is not required to perform all the functions of
physiotherapy and visually impaired physiotherapists can perform all
functions with assistance if necessary. They also pointed out various
physiotherapists who were working in Maharasthra successfully for many
years. The Court held that “We are, therefore, of the view that the stand
of the respondent authorities is clearly discriminatory and adversely
affects the Right to Life and equal opportunities of the petitioner as also
other such students similarly situated. The fact that petitioner though being
visually impaired not only passed her first year examination with 62%
marks and is successfully studying in 2nd year, and several visually
impaired persons have been working as professional physiotherapists in
India as well as abroad appeals to us not to allow the petitioner as also
others in the same position to be discriminated against or disqualified on
that ground.”
Thus, the Court stayed the decision of the state government and
directed the respondents to consider candidates with visual disability for
admission to the course in physiotherapy.
Hansraj Gupta v. The Concerned Manager, Western Railway and Anr.107
A public interest litigation was filed before the Bombay High Court
to highlight the plight of blind hawkers in the greater Mumbai who sold the
goods on Railway Platforms and in local and long distance trains in order
to earn for their living. It was contended that since the income is limited
in view of their disability, they were forced to take to hawkings. It was
further pointed out that police had increased their enforcement against
blind hawkers as against those who were not disabled hawkers. The court's
attention was also drawn to the fact that the blind hawkers were exposed
to constant police abuse from goods being thrown before on coming trains
and being locked up and severely beaten for hawking. It was requested that
the Railway Authorities and the Mumbai Municipal Corporation be
directed to issue lisence to Blind Hawkers to enable them to earn their
livelihood at par with the normal hawkers.
The Municipal Corporation stated that issuance of lenience of
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hawkers had been stopped since 1979, though, the permission for PCO
booth are given to blind/handicap persons for operation on roads/footpaths.
It was further stated that the Railways started 2% reservation to physically
handicap persons in the matter of issue of lisence for hawking and
vending.
In view of the provisions of Article 41 of the Constitution of India and the
Persons with Disabilities Act, 1995; it was necessary to provide for
reservation in the grant of Licences for hawking to blind persons. The
Supreme Court further directed that the Mumbai Municipal Corporation,
to prepare a scheme for providing reservations to disabled hawkers
including blind hawkers under section 313 of the Mumbai Municipal
Corporation Act, 1949 which will be in addition to PCO Booth.
Sivakumar N v. Andhra Pradesh State Road Corporation108
The petitioner in the present case acquired disability during the

course of service with the respondent Andhra Pradesh State Road
Corporation. Since, he was denied alternative employment, he had no
option, but, to file a writ petition before the Andhra Pradesh High Court.
The High Court directed the Andhra Pradesh State Road Corporation that
the petitioner be considered for the appointment to the post of cleaner or
conductor as provided under the existing rules and guidelines of the
Corporation. Aggrieved by such order, the petitioner filed a writ appeal
before the Division Bench of the High Court. It was brought to the notice
of the court that the petitioner was compelled to drive a jeep which was
condemned and hence he could not be blamed for the accident which had
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caused the disability.
The Division Bench held that the “However, having regard to the fact
that a beneficent legislation has been enacted for a person who has
become disabled, we are of the opinion that the case of the appellant may
be considered by the appropriate authority”.
Baljeet Singh v. Delhi Transport Corporation109
The question before the Delhi High Court was whether the Delhi
Transport Corporation was justified in dispensing with the services of its
employees after they incurred disability during the course of service in
violation of the section 47 of the PwD Act, 1995.
The High Court before passing any order traced the background
which led to the passing of PwD Act, 1995 for the benefit of the persons
with disability. Section 47 of the Act reads as under:
“Non-discrimination in Government Employment: (1) No
establishment shall dispense with, or reduce in rank, an employee who
acquires a disability during his service:
PROVIDED that, if an employee, after acquiring disability is not

suitable for the post he was holding, could be shifted to some other post
with the same pay scale and service benefits:
PROVIDED further that if it is not possible to adjust the employee

against any post, he may be kept on a supernumerary post until a suitable
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post is available or he attains the age of superannuation, whichever is
earlier.
(2) No promotion shall be denied to a person merely on the ground of

his disability:
PROVIDED that appropriate government may, having regard to the

type of work carried on in any establishment, by notification and subject
to such conditions, if any, as may be specified in such notification, exempt
any establishment from the provisions of this section.”
Allowing the petition, the court quashed the order of premature

retirement and directed payment of wages to all employees from the time
such payments had been stopped. The petitioners were also to be treated as
in continuous service and wherever necessary, alternative jobs were to be
provided to them. Costs of the litigation were also to be provided to each
litigant to the tune of 3000/-.
Binita Senapati v. State of Assam & Ors.110
The petitioner who had 45 % locomotor disability sought admission

in MBBS course against 3% reservation required by section 39 of the
PwD,Act, 1995. section 39 runs as under: “39. All Educational
Institutions to reserve seats for persons with disabilities- All Government
Educational Institutions and other educational institutions receiving aid
from the Government, shall reserve not less than 3%, seats for persons
with disabilities.” The petitioners stated that the physically handicapped
110
AIR 2000 Gauhati 1.
had reservation in engineering, Arts and science courses, but, such
reservations had not been provided for courses in medicine. After
examining the provisions and scheme of the Act, the High Court of
Gauhati held that Chapter V titled ‘Education’ nowhere provides
reservation of seats for candidates in educational institution of Scientific,
Technical and Super technical areas. Since, the petitioners had taken the
assistance of section 39 which falls in chapter VI, under the title
'Employment' which reserves 3% vacancies in Government Educational
Institutions and other educational institutions for appointment of persons
with disabilities covering teaching and non-teaching staff. The High
Court rejected the petition and held that the legislature never intended
reservation of seats in the institutions covering scientific, technical and
super technical areas and therefore, extending to the benefit of the Act for
the purpose of admission to medical colleges may not be in conformity
with the intention of legislatures.
Dhawal S Chotai v. Union of India & Ors.111
The main fact in issue before the Bombay High Court was that
whether a person suffering from cerebral palasy may be given extra hours
to write his examination for charted accountancy. The Bombay High
Court upheld his contention.
The petitioner in this case was suffering from Cerebral Palasy, a
disability which affects the normal functioning of bones, muscles and
joints and also the communication skill. Despite such handicap, the
111
AIR 2003 Bombay 316.
petitioner had passed B.Com examination and had also cleared foundation
course for Charted Accountancy. He wanted to appear in the intermediate
examination known as Professional Education-II. At the time of his B.Com
examination, the University of Bombay had permitted him three hours
extra time to write his papers in view of his disability. The same request
was sent to the Institute of Charted Accountants of India. Only half and
hour extra time was permitted to be given to him for writing his papers.
Aggrieved by such communication, he filed the present writ petition
before the Bombay High Court.
The Court observed that chapter V of the PwD Act, 1995 makes beneficial
provision in the matter of education. Section 27 directs the appropriate
authorities to make a scheme and programs for children with cerebral
palsy. Chapter V provides to make available all necessary facilities for the
persons suffering from these disabilities in the matter of education. The
court observed that Institute of Charted Accountants is a statutory
authority and would be covered amongst other authorities under Article
12 of the Constitution of India and, therefore, bound by Article 21 of the
Constitution which provides for Right to Life which means Right to have a
decent life. The High Court further directed the petitioner be allowed to
have three hours extra to write his examination and all future examination
for Charted Accountant Course and be provided with full cooperation.
Jasphal v. State of Haryana112
The petitioner who was an ex-serviceman filed the present writ
112
AIR 2002 P&H 240.
petition challenging his non-selection for admission to O.T. (Hindi) course
of the State of Haryana even though there was provision of 1% reservation
for ex-servicemen and their wards in terms of the prospectus issued in this
behalf. Under the prospectus reservation to different categories was in the
order of Scheduled Caste, Backward Classes, Physically Handicap,
dependents of Freedom fighters and Ex-servicemen and their wards. There
was also 1% horizontal reservation for widows, legally disserted and
legally divorced ladies. It was mentioned clearly that candidate belonging
to reserve category would clearly specify the category they belong. It was
found by the High Court after perusal of the prospectus that reservation of
the seats was and was controlled by the Reservation Policy of the State
Government.
The Government varied the reservation only to the extent that the
physically handicap categories was given precedence over the other
categories. In the event of physically handicap categories were not
available, and then only, the seats would be made available to the other
categories. Therefore, the decision of the state Government to implement
the policy to secure teh interest of the physically handicap could not be
termed as arbitrary or ill founded. This does not offend the protection
given under the principles of equality enshrined under the Articles 14 & 16
of the Constitution of India.
Devindra Nath Tiwari v. State of UP113
The Hon'ble Allahabad High Court observed that writ of Mandamus

113
2008 (3) ALJ 234 at 255.
is not a proper remedy where the High Court can direct the State
Governments to identify any particular service or Post for extending the
reservation policy in favour of physically handicap persons. The question
in this case was the appointment of Civil Judges (Jr. Divn.) and the benefit
to be given to the physically handicap persons. The observations of the
Allahabad High Court were in view of the fact that the State is also
dependent upon consultation with the High Court for extending the benefit
of Reservation in favour of physically handicap persons.
4.7 CONCLUSION
Having comprehensive disability rights legislation is a crucial first step, but it

must be complemented by sustained efforts to sensitize government
functionaries, service providers, and the general public. This is necessary to
ensure that the rights and needs of persons with disabilities are recognized
and respected and that they can fully participate in society on an equal basis.
It’s an ongoing process that requires collaboration between government
agencies, civil society, and the public at large. The Rights of Persons with
Disabilities Act aims to bring about a paradigm shift in how society perceives
and treats persons with disabilities. It reflects India’s commitment to
inclusivity and equality and is in line with international conventions, such as
the United Nations Convention on the Rights of Persons with Disabilities
(UNCRPD), which India ratified in 2007. The Act seeks to create a more
inclusive and equitable society where persons with disabilities can live with
dignity and enjoy their full rights and freedoms. The values (dignity, equality,
autonomy and liberty) supported by human rights law form the basis of the
basic freedom of the individual, which provides protection against misuse of
power and creates a place for the development of human emotion. It would
not be wrong to say that human rights are the power that gives a person the
power to stand up with respect to society. Human rights are not just rights but
self-respect for any person. Therefore, a person with disabilities is a special
person who needs special attention, so he should be given special human
rights.
Before the enactment of the PWD Act, 2016, the rights relating to persons
with disabilities, various acts, the Constitution of India, persons with
disabilities (Equal Opportunities for Equality and Full Participation) Act,
1995, Mental Health Act, 1987, Rehabilitation Council of India Act and
National Trust (for the Welfare of Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities) Act, 1999 Were scattered in. Although
the purpose of these laws are to protect the rights of people with disabilities,
but these laws did not provide equality of opportunity, especially regarding
employment. PWD Act 2016 has tried to reconcile these laws and the
equality of opportunity has been provided.
For people with disabilities, a piece of law is a boon and not less. This act is
widely related to the rights of persons with disabilities. It also orders the
government to perform its duties in the most diligent manner and to make
plans and programs in the direction of community welfare. This act is
definitely a good step in that direction.

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CHAPTER 4

RIGHTS OF DISABLED PERSONS: INDIAN PERSPECTIVE

4.2 CONSTITUTIONAL PROVISIONS FOR THE RIGHTS OF

4.2.2.1 ARTICLE 14: RIGHT TO EQUALITY

4.2.2.2 ARTICLE 15: PROHIBITION OF DISCRIMINATION ON

4.2.2.3 ARTICLE 16: EQUALITY OF OPPORTUNITY IN MATTERS

4.2.2.4 ARTICLE 19: RIGHT TO FREEDOM

4.2.3 DIRECTIVE PRINCIPLES OF STATE POLICY

Directive Principles as laid down in Article 38-47 of the Constitution are

Finally Article 249 of the Constitution empowers the Parliament to legislate on

4.3 PROVISIONS FOR THE RIGHTS OF DISABLED VIS-À-VIS

Together with the Constitutional provisions, particular legislations dealing

Section 90 provides that if any consent given by a person who, from

4.3.5 THE LIMITATION ACT, 1963: Section 6 of this Act, described as

4.3.6 CODE OF CRIMINAL PROCEDURE, 1973: This Code consolidates

Section 16 deals with the revocation of driving license on grounds of disease

4.3.8 EMPLOYEES STATE INSURANCE, ACT, 1948

There are three kinds of disablement under the Act:

1. Permanent Partial Disablement

i. he suffers from disablement;

Section 54 deals with the issue of determination of question of disablement. The

4.3.7 THE WORKMEN'S COMPENSATION ACT, 1923: The Workmen’s

The Act does not define 'Disability' or 'Disablement'. It defines 'partial

Section 3 is concerned with employer's liability for compensation. The liability

(1) Personal injury must have been caused to a workman:

(2) Such injury must have been caused by an accident;

Section 4 lays down the amount of compensation payable in various types of

4.4 MAJOR LAW DEALING WITH THE RIGHTS OF PERSONS WITH

As already mentioned, apart from The Persons with Disabilities (Equal

4.4.1 THE MENTAL HEALTH ACT OF INDIA, 198735

4.4.2 THE REHABILITATION COUNCIL OF INDIA ACT, 199246

a) To regulate and monitor the training of rehabilitation professionals;

b) To bring about standardization of training courses for rehabilitation

c) To lay down minimum standards of education and training of various classes

d) To regulate these standards in all training institutions uniformly throughout

f) To maintain Central Rehabilitation Register for registration of professionals.

‘Rehabilitation’49 in the Act refers to a process aimed at enabling persons with

‘Rehabilitation Professionals’51under the Act includes -(i) audiologists and

The Rights of Disabled Persons enumerating from the Act are-

1. To have the right to be served by trained and qualified Rehabilitation

4.4.3 NATIONAL TRUST FOR WELFARE OF PERSONS WITH

The objects of the Act59 can he broadly specified as under:

1. Enabling and empowering persons with disability-

• to live fully as possible.

2. Strengthening the facilities required providing support to persons

4.4.4 THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 201664

4.4.4.1 SOME RIGHTS GUARANTEED UNDER THE RPwD ACT

3. Persons with disabilities have the right to live in the community:

4. The Act provides protection to persons with disabilities from being

The Act requires the government to take measures to prevent torture,

5. The Act ensures protection of persons with disabilities from abuse,

Any person or registered organization who or which has reason to believe

6. Persons with disabilities are entitled to equal protection and safety in

7. Children with disabilities not to be separated from their parents:

8. The Act recognizes the reproductive rights of persons with disabilities:

Section 10 states that the appropriate government shall ensure that

9. The Election Commissions to ensure that persons with disabilities can

10. The Act addresses challenges faced by persons with disabilities in