Disability rights get a judicial boost
Asia-Pacific, Misc., January 3 2018
INDIA: The disability rights movement received momentous judicial support on December 15. The Supreme Court pronounced two major judgments concerning the higher education and accessibility rights of persons with disabilities (PWDs). These judgments have also come at a strategic time; India has completed 10 years of ratifying the United Nations Convention on Persons with Disabilities and we just celebrated the anniversary of the Rights of the Persons with Disabilities Act, 2016, which came into effect on 27 December 2016.
In these judgments, the apex court has taken serious note of the callousness shown by the Centre, state governments and union territories in implementing the erstwhile Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act), 1995 which has now been replaced by the Rights of the Persons with Disabilities Act, 2016.
While emphasizing the need for creating a level playing field for PWDs, the Court, in Disabled Rights Group vs Union of India, has directed all governments and higher education institutions which receive aid from the government to immediately comply with the obligations under Section 32 of the 2016 legislation. Originally, this petition sought judicial intervention for enabling PWDs to seek admission to law colleges.
However, under the new law, the scope of providing reservation in higher education to PWDs with benchmark disabilities does not limit it to a study of any particular discipline. The Supreme Court rightly seized this opportunity and widened the coverage of its directions to all educational institutions. The Supreme Court did not merely call for compliance with the reservation scheme envisioned under the law but also said that it is equally essential to impart education in a fruitful manner. Unless students with disabilities have easy access to all sections in an educational institution, the ultimate goal of law will not be accomplished.
In this regard, the court categorically observed that the absence of adequate provisions to facilitate proper education to PWDs would amount to discrimination. The Supreme Court has also directed the University Grants Commission (UGC) to constitute an expert committee and consider the feasibility of ‘Guidelines for Accessibility for Students with Disabilities in Universities/Colleges’. In a greater progressive move, the Supreme Court has further directed the UGC to constitute an expert committee to weigh the feasibility of instituting an in-house body to help PWDs in each educational institution.
There are three major takeaways from this judgment: The enlargement of reservation scheme to all educational institutions in all disciplines, reading non-compliance of the law for providing accessibility facilities in educational institutions as an act of discrimination and proposing the in-house body to supervise the well-being of PWDs in educational institutions. The Supreme Court is all geared up to oversee that the executive implements the new law in a time-bound manner and effectively.
The Supreme Court also acknowledged merit in another petition seeking all accessibility requirements to meet the needs of visually disabled persons. Through Rajive Raturi vs Union of India & Ors, the Court recognised the concerns of the visually impaired persons towards accessing obstacle-free walking areas as well as ease in using transport facilities.
The Rights of Persons with Disabilities Act, 2016 also clearly provides for a barrier- free environment under Chapter VIII and reflects the intent of the legislature for facilitating a conducive physical environment to the PWDs. The Court observed that without these facilities, the movement of PWDs gets impaired and this can even be treated as an infringement of their fundamental rights under Article 19 of the Constitution. It also recalled the approach followed by it in Francis Coralie Mullin vs Administrator, Union Territory of Delhi, (1981) and reiterated that the right to life under Article 21 also mandates that every citizen has a right to live with dignity.
The Supreme Court has issued a series of timelines to the Centre and state governments for complying with provisions concerning enhancement of accessibility for PWDs in transport and government buildings. Some of the major deadlines issued by the court include: a direction to the states to identify 50 per cent of all government buildings fully accessible for PWDs by 28 February 2018—with a rider that no further extension of time shall be granted; completion of retrofitting by December 2018; and direction to states to identify 10 most important cities and complete the accessibility audit of 50 per cent of government buildings in those cities by February 28.
The governments have been asked to file status reports in three months with respect to orders, and thereafter fresh directions will be issued. Even this judgment will have far-reaching implications and would benefit all kinds of disabled persons, not just visually disabled persons.
In both these judgments, the Supreme Court has seized a ripe opportunity to hold the governments accountable as they have not done enough to transfer benefits enshrined in the erstwhile law of 1995 to the beneficiaries and now, in the new disability law of 2016. This has reinforced India’s commitment in the United Nations Convention on Rights of the Persons with Disabilities.
The disability rights discourse seems to have found momentum once again. These fine judgments have reinforced the disabled-friendly judicial activism of the Supreme Court. The differently-abled community has perhaps found new friends in the apex court.
By: Dr. Nachiketa Mittal
Assistant Registrar (Research) in the Supreme Court on deputation from National Law University Odisha
Re-posted with permission.
Source: New Indian Express