The Supreme Court of India is shifting the paradigm on disability rights.
A few weeks ago, two very progressive judgments on disability rights were delivered by the Supreme Court of India on the very same day. Interestingly, both judgments were delivered by Justice A.K. Sikri, who has been one of the most ardent champions of equal rights for persons with disabilities at the Supreme Court. History will definitely remember him very kindly for he has been one of the strongest supporters of inclusion and has delivered judgments with utmost empathy. One may recollect his 2016 judgment in the Jeeja Ghosh case, where he strongly condemned an airline service for de-boarding a passenger with cerebral palsy, in violation of the law, and held:
“… [The] gap between the laws and reality still remains. Even though human rights activists have made their best efforts to create awareness that people with disabilities have also right to enjoy their life and spend the same not only with the sense of fulfilment but also to make them contribute in the growth of the society, yet mindset of large section of the people who claim themselves to be ‘able’ persons still needs to be changed towards differently abled persons.”
And like his powerful verdict in the Jeeja Ghosh case, Justice Sikri has delivered two more powerful judgments on disability rights with the aim of bridging the gap between law and reality. These judgments reinforce the fact that merely enacting laws to empower marginalised communities will not suffice. Real change occurs only on effective implementation and on tackling the attitudinal barriers of society.
In these two cases, Disability Rights Group & Anr vs. Union of India and the Rajive Raturi vs. Union of India, the Supreme Court addressed issues pertaining to reservation for persons with disabilities in educational institutions and accessibility of educational institutions.
Reservation in higher educational institutions
The original petition in the Disability Rights Group case was only confined to law schools. However, in a noteworthy exercise of judicial discretion, Justice Sikri, recognising the importance of the issues at hand, extended the decision to all educational institutions.
In the aforesaid case, the court directed all higher educational institutions covered by the obligations under Section 32 of the Rights of Persons with Disabilities Act, 2016 (RPWD Act) to comply with the provisions of Section 32 while admitting students each year. Section 32 of the RPWD Act requires all governmental institutions of higher education and other higher education institutions receiving aid from the government to reserve not less than 5% of seats for persons with benchmark disabilities. (Under the former law, i.e., the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995, 3% of seats were required to be reserved for persons with disabilities. However under the RPWD Act this reservation has been extended to 5% as the definition of disabilities has also been widened.)
While this may seem like a straightforward requirement and merely a restatement of the law by the court, the reality is far from it. In many cases, this reservation was only confined to paper as even established and reputed institutions failed to implement it. For example, in the additional affidavit filed by the petitioner in the Shamnad Basheer v Union of India case (a copy of the affidavit as filed can be found here) which is currently pending before the Supreme Court, the petitioner has highlighted that not even one seat was reserved for persons with disabilities by some national law universities. Accordingly, this timely reiteration of the position of law by Justice Sikri will serve as a much needed precedent for thousands of students with disabilities who are denied their chance for quality education and who have to repeatedly knock on the doors of the Supreme Court to find justice.
In another commendable move, to ensure that the reservation mandated is not confined merely to paper despite this judgment, the court mandated all institutions to submit a list of the number of disabled persons admitted each year in each institution to the chief commissioner for persons with disabilities or the state commissioner. The court also explicitly states that it will also be the duty of the chief commissioner or the state commissioner to enquire if educational institutions are fulfilling their obligation with regard to reservation.
By creating checks and balances, the court has devised a simple yet ingenious reporting mechanism to prevent institutions from flouting the provisions on reservations in the RPWD Act and consequently, has filled the lacunae in the current law which is silent on such reporting mechanisms.
Accessible infrastructure and inclusive pedagogy
In the Rajive Raturi case, the court discussed at length the accessibility requirements of persons with visual disabilities with respect to safe access to roads and transport facilities.
The Disability Rights case, referring to the Rajive Raturi case, directs the University Grants Commission (UGC) to constitute a committee to consider the feasibility of the ‘Guidelines for Accessibility for Students with Disabilities in Universities/Colleges’ made by the petitioner. The guidelines provide exhaustive recommendations mandating inclusive infrastructure in schools/colleges as well mandating a change in the teaching and examination structure in such schools/colleges. In a country where an audit report in the year 2016 revealed that not a single public building is accessible, this direction from the court to the UGC to complete an accessibility report and study in a time bound manner, is a welcome relief.
While arriving at his conclusion on the requirement of accessible institutions, Justice Sikri cogently refers to the rights-based model of development and the capabilities approach propounded by Martha Nussbaum. He states:
“To ensure the level playing field, it is not only essential to give necessary education to the persons suffering from the disability, it is also imperative to see that such education is imparted to them in a fruitful manner. That can be achieved only if there is proper accessibility to the buildings where the educational institution is housed as well as to other facilities in the said building, namely, class rooms, library, bathrooms etc.”
Conclusion: step forward to building an inclusive barrier free society
The RPWD Act was enacted to give effect to the United Nations Convention on the Rights of Persons with Disabilities, a convention enacted to change attitudes and approaches towards persons with disabilities. Steps have been taken to move away from the charity model of disability which looks at persons with disabilities as mere welfare recipients to a social model of disability, where rather than focusing on the disability of the individual, the focus is shifted to the social construct of society including attitudinal and physical barriers which prevent a person with a disability from leading a fulfilling and meaningful life.
While the RPWD Act has to an extent tried to capture this, it is only with judgments like Justice Sikri’s that the intent of the RPWD Act and India’s commitment to the UN convention be truly fleshed out. In the judgments, Justice Sikri introduces elements of the social model of disability into the jurisprudence of disability rights discourse in India. While elaborating on this concept he states:
“The social model of disability locates disability as being socially constructed through the creation of artificial attitudinal, organisational and environmental barriers. Impairment is regarded as being a normal part of the human condition, with everyone experiencing impairment differently and having different access needs. Life is accepted as including negative experiences, and impairment may be – but is not necessarily – one of them. Disabled people are defined as being people who experience the unnecessary barriers created by society within their daily life…Keeping in view the above, proper facilities are need to be provided to differently-abled persons while having higher education.”
By recognising persons with disabilities as individuals with rights on par with their able bodied counterparts and by not merely reducing them to their disability, and by placing the burden of providing facilities for meaningful education on the duty bearers (the educational institutions), the Supreme Court has opened up the doors to inclusive education where the needs of all – able-bodied and disabled – are met.
Anusha Reddy is an Associate Director at IDIA Charitable Trust. Namrata Dubey is a fourth year law student at Nirma University. Views expressed are personal. To know more about the work IDIA does, please visit www.idialaw.com