The definition of the Person with Disability of 1995 Act is replaced by the definition of the 2016 Act. A person with disabilities means “a person with long-term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.”
Rights provided in RPwD Act:
The 2016 Act has provided disabled persons a right to legal capacity which in simple words we can say: an equal recognition.
The rights include (1)—
1. Right to inherit property
2. Voting rights
3. Educational rights
4. Reproduction rights
5. Right to choose a legal guardian; which includes the right to change the guardian as well.
6. Reservation rights consisting of –
● 4% reservation to all persons with disability for employment
● 5% in higher education
● 5% reservation that prioritize the women are for: housing; the land of cultivation; schemes relating to scarcity and poverty; and the allocation of land at concessional rates.
● The reservation of 1% for the people with specific nature of disabilities like autism disorder, SLD, locomotor disabilities, mental illness, and the intellectual disability
7. Accessibility rights: transport in all modes; communication and information technology and ensure that the PwD should be provided with all the contents they need in a form that is feasible for them to access.
RTE and the PWD & the RPwD Act
The term “inclusive education” in the RPwD Act has come with statutory backing. It is defined as “a system of education wherein students with and without disability learn together and the system of teaching and learning is suitably adapted to meet the learning needs of different types of students with disabilities.”
Section 12(1)(c) of the Right to Education Act mandates the state to provide free and compulsory education to the children belonging to the weaker sections and underprivileged groups including the ‘children with disabilities.’ It further urges the mandate to reserve some percent, i.e., 25% of the strength of a class to such children in private schools and the schools that are categorically specified for this purpose.
The three major glitches that distress these functions which do not make the children with disabilities fit in are: collaborating the disabled children with other groups; neighborhood criteria restriction; and the lack of the environment. The outcome of the lack of proviso for special category or reservation for children with disabilities in the s.12(1)(c) is the admission of the other group children getting admission under the 25% of the class strength category and the disabled children being left out.
Regarding this, some states have been taking valuable and useful steps for them while most of the cities are still in ignorance.
Pramod Arora v. Hon’ble LG of Delhi(2)
Facts:
The lack of guidelines in the institutions to provide proper care, attention, and infrastructure to the students with special needs is making the opportunities of the disabled and special children very less. The submission is to provide access to children till the age of 18 years in an apt and suitable environment. The advantages of such children have to be provided since their preliminary education to gain access and the benefits, if not they would never be able to obtain the advantage of it. The main argument made is
“The entire object of full participation of differently-abled persons in national life would be defeated if they are screened and discriminated at the primary education stage itself.”
Held:
For the children with special needs and care, it is a necessity to ensure the education of such children till they attain the age of 18. The nature of provision under RTE is imperative and essential. So, the court held that
“The neighborhood principle cannot prevail over the need to admit CWSN if in a given case, the school is equipped to deal with or handle some or one kind of disability (blindness, speech impairment, autism, etc). The state, therefore, has to tailor appropriate policies to optimize admission of CWSN in those unaided schools, in the first instance, which are geared and equipped to deal with particular disabilities, duly balancing with the dictates of the neighborhood criteria.”
Without considering and contemplating the neighborhood criteria, admission for 3% of seats has to be allotted to disabled children under the EWS quota as regulated by the Delhi Government in its circular. The circular of guidelines is thereby issued especially after the judgment in the Pramod Arora case.
Accessibility
The observation and principles laid down about judicial precedents are as follows:
In Rajive Raturi v. Union of India,(3) The court looked into the rights of disabled persons at the international level using the International Human Rights Law and stated that,
“Equality, in international human rights law, founded upon two complementary principles: non-discrimination and reasonable differentiation. Non-discrimination seeks to ensure that all people can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities of equal participation. Equality not only implies preventing discrimination but remedies discrimination against groups suffering systematic discrimination in society i.e. it embraces the notion of positive rights, affirmative action, and reasonable accommodation.”
The fact that there is a special need to provide for persons with disabilities with proper care and safe access to transport and roads is in no denial.
HARMONISED GUIDELINES
The directions issued by the Ministry of Urban Development, which is named ‘harmonized guidelines’ were submitted by the petitioner before the court of law. The court pointed out the guidelines related to transportation. The harmonized guidelines were pulled out and made in the case of Nipun Malhotra vs Government Of Nct Of Delhi & Ors. (4)
“11.7 Public Transport
11.7.1 Land Transport
11.7.1.1 General
● Buses, trams, taxis, mini-buses, and three-wheelers should be designed as far as practicable to include facilities that can accommodate people with disabilities.
● New vehicles when purchased should comply with accessibility standards to enable all people, including those in wheelchairs, to use the service provided.
● Equally important, travel routes to bus stops should also be barrier-free to ensure that persons can travel from their homes to their chosen pick-up point. Training should be provided for drivers to help them become aware of the needs of Persons with Disabilities.
11.7.1.2 Accessible buses
Accessible buses should have the following features:
● Bus doors should be at least 1200 mm wide;
● Should be a low floor;
● Have handrail and footlight installed; and
● Have apparatus such as a hydraulic lift or pull-out/foldable ramp installed in the doorway for mobility-aided users/ prams.
Wheelchair spaces
● Space for a wheelchair should be provided in an appropriate position, without preventing other passengers from getting on and off
● The location of that space should be as indicated, inside and outside the bus, using the standard symbol for wheelchair accessibility; and
● Wheel stoppers and wheelchair safety belts should be provided.
Alighting Buzzers
● An appropriate number of alighting buzzers should be provided in positions that are easily accessible for seated or standing passengers; and
● The push button of an alighting buzzer should be visible; of adequate size, installed at 900 mm to 1200 mm from the bus floor level, and display the information in Braille/raised numbers as well.
Information Signs
● Information on the names of all stops along a bus route should be indicated inside the bus by displaying the text in a suitable position; and
● Information on a route and its final destination should be displayed outside the bus in large text, especially on the front and side of the bus. This information should be in a bright contrasting color and be well illuminated by an external light to make it readable in the dark.”
The court held that the directions issued by the Government of Delhi are accepted and that 10% of the buses have to be user friendly to the disabled persons or disabled friendly because the respondent parties have been treating the disabled persons as invisible and non-existent besides the point they are not even meddling with the transport accessibility to them.
The Delhi Government’s act of ignorance displeased the judiciary when it noticed the audits of the disabled persons’ rights and accessibility to the transport system, infrastructures of buildings, parks, schools, and technologies. The need for accessibility towards information technology is widely welcomed with open arms in today’s world but the lack of technology consumption and its unaffordable reach. The statement of disappointment is made by Justice C. Hari Shankar and then acting CJ of the Court, “We don’t want lip service from government agencies… we want action.”
The Supreme Court of India gave out,
“To ensure the level playing field, it is not only essential to give necessary education to the persons suffering from the disability, but it is also imperative to see that such education is fruitfully imparted to them. 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, classrooms, library, bathrooms, etc. Without that, physically handicapped persons would not be able to avail and utilize the educational opportunity in full measure. (5)”
The case of the Disability Group had issues as to the reservation rights and the access rights of the persons with disabilities to the educational institutions. This case is limited to the law schools but the importance of issues inclined the judges of the bench to decide and direct the orders to all the educational institutions. The failure to implement the provision of law, as in Section 32 of the PWD Act, 2016 remains stable in paper and not in action. This non-existence of action led to the order of the court and directed all the educational institutions including the higher educational institutions and the government institute to oblige the execution of Section 32 of the said Act to reserve 5% of the seats to the students with the benchmark disabilities. The report has to be made and submitted which lists out all the admission made under this category and the reporting mechanism will prevent the institutions from performing contravening the provisions of the Act and defying the law.
Guardianship right
The right to appoint a legal guardian for the person in a state of coma is mentioned in the case of Shobha Gopalakrishnan v. State of Kerala(7) and held that the Court can invoke the discretion of its jurisdiction to apply Article 226 of the Indian Constitution when there are no statutory provisions or remedies available for the persons in a vegetative state. The court-appointed the patient’s legal heir as his guardian to dispose of and take care of the property.
In Rajni Hariom Sharma v. Union of India and Another, it is held that the wife of the disabled person is the best choice of being a legal guardian of her husband who is in a state of coma. The principle of “parens patriae” is applied in this case as no express provision and legislation are stating any particular clarity on the appointment of the legal guardian to the person who is in a vegetative state. The court held
“the state of being in a coma is nowhere comparable or similar to a physically or mentally challenged as is understood under relevant statutes and neither could be construed as a minor for appointment of a guardian. It is quite evident that the relevant statutes relating to the appointment of guardians would not be relevant in cases associated with persons lying in a comatose condition or a vegetative state.”
Case law concerning the mental age of the disabled person
Ms. Eera through Dr. Manjula Krippendorf Vs. State (Govt. of NCT of Delhi) & ANR.(7)
The victim is a patient suffering from Cerebral Palsy whose biological age is 38 years old and she was raped. The argument and issue of this case as to whether the scope definition of ‘child’ under the POCSO Act can be extended to the victim whose mental age is nearly 6-7 years old. The Court held that it would be abusive to the language of the Parliament if the words ‘mental’ and ‘child’ is interpreted beyond their given meaning. The submission and prayer of the petitioner thus cannot be registered under the POCSO Act and the trial cannot be made for the same. It cannot be entertained.
REFERENCES:
1. Rights of Persons with Disabilities Act 2016
2. Pramod Arora v. Hon’ble LG of Delhi , MANU/DE/0850/2014.
3. Rajive Raturi v. Union of India, 2 SCC 413 (2018).
4. Nipun Malhotra vs Government Of Nct Of Delhi & Ors, 2018 SCC Online Del 12005.
5. Disabled Rights Group and Another v. Union of India & Ors, 2 SCC 397 (2018).
6. Shobha Gopalakrishnan v. the State of Kerala, 2019 SCC OnLine Ker. 739.
7. Ms. Eera through Dr. Manjula Krippendorf Vs. State (Govt. of NCT of Delhi) & ANR, 15 SCC 133 (2017).
Authors:
1. Ms. Roohi Babu, B.SC., B.L., (Hons), Advocate practicing at Madras High Court, with 5 years of experience in IPR and Family matters.
2. B. Smruthi, 4th Year student of BA, LLB (Hons) at Saveetha School of Law, SIMATS, Chennai.