CRITICAL STUDY OF THE ROLE OF JUDICIARY IN SAFEGUARDING THE

RIGHTS OF PERSONS WITH DISABILITIES IN INDIA

Prachi Sharma1
Manjiri Dhawade2
1
Research Associate, MIT World Peace University, Pune
1
[email protected]
1
Ph No.: 9911513939
2
Research Associate, MIT World Peace University, Pune
2
[email protected]
2
Ph No. 9910521558
ABSTRACT
The Indian Judiciary has developed into a bulwark for ensuring protection of human rights
of every citizen. Given that every person is guaranteed an equal treatment, it is crucial to
look at how the judiciary safeguards the rights of specially abled persons. It is
internationally established through conventions and treaties that the judiciary is responsible
for interpreting and enforcing rights and well-being of Persons with disability. Acts namely
The Rights of Persons with Disabilities Act, 2016, The Mental Healthcare Act, 2017, The
Rehabilitation Council of India Act, 1992 , The National Trust for Welfare of Persons with
Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1999 and various
campaigns are conducted by State to ensure accessibility of all rights to specially abled.
However, there is a lack of sensitization and resources which makes the implementation
inefficient and slow paced. This paper examines the need of expanding the scope of judicial
framework to uplift specially abled people. The judicial pronouncements in reference to
disability are critically studied to lay down suggestions for simplifying the applicability of
judicial decisions. This paper identified the loopholes in the current judicial role. The
research also covers the significance of implications of the various International
conventions/ laws related to the Rights of Persons with Disabilities (CRPD), and the
processes and approaches for translating international disability law standards into national
level law. The methodology used to conduct the study is doctrinal and authors attempt to give
a structured recommendation while examining the contemporary landscape of specially
abled people in India.

Keywords: Disability, Judiciary, Equality, Human Rights, Specially-abled

INTRODUCTION
A new paradigm in thinking is currently reshaping the way we view disability, recognizing it
as an integral part of our society. There's a growing awareness that individuals with
disabilities face numerous challenges, primarily stemming from societal insensitivity and
attitudinal barriers. Policies rooted in a human rights framework now begin by identifying the
societal barriers that limit the participation of disabled individuals. This shift has
fundamentally transformed how we perceive disability and how we address it.
In the past, the emphasis was on correcting impairments and rehabilitating individuals so that
they could assimilate into society. However, we now understand that disability is not a
deviation from the norm. As a result, all aspects of our society, including its systems and
structures, must be enhanced to ensure equal access and full participation for everyone.
Consequently, governments are obligated to ensure both the legal and practical aspects of
equality.
At the primary level, this obligation involves respecting the freedom of individuals with
disabilities to act according to their unique circumstances. At the secondary level, the state
must protect all individuals with disabilities from political, economic, and social interference
by introducing relevant legislation and providing effective preventive and punitive measures.
At the tertiary level, governments are required to create conditions that enable equal
enjoyment of rights by implementing affirmative actions and enhancing the capabilities of
societal systems and their personnel.
The Persons with Disabilities Act of 1995, for instance, offers a wide array of educational
opportunities to individuals with disabilities, allowing them to select the most suitable
educational model to cater to their specific needs. Both the Indian Constitution and the
Disabilities Act of 1995 explicitly prohibit discrimination in employment and in terms of
access to public facilities, services, and utilities.

CONSTITUTIONAL PROVISIONS IN INDIA RELATING TO DISABILITY

The Constitution of India is firmly rooted in the principles of social justice and human rights.
It reflects this commitment in the Preamble, the Directive Principles of State Policy, and the
Fundamental Rights it upholds. These provisions highlight the significant role the State plays
in improving the status of marginalized groups.
For instance, Article 41 emphasizes that the State, considering its economic capacity and
development, must actively work to secure the right to employment, education, and public
assistance in situations of unemployment, old age, sickness, and disability. Moreover, Article
46 specifically mandates the State to give special attention to the educational and economic
well-being of disadvantaged sections of society, particularly Scheduled Castes and Scheduled
Tribes, while safeguarding them from social injustice and exploitation.

The Supreme Court, in the Kesavananda Bharati case, underlined the importance of the
Directive Principles, emphasizing that in the pursuit of establishing a just social order, there
are situations where Fundamental Rights must take a back seat to Directive Principles. 1
Article 249 of the Constitution grants the Parliament the authority to legislate on any subject,
regardless of its categorization, to fulfill international obligations.

In 1983, the United Nations designated the years from 1983 to 1992 as the Decade of
Disabled Persons, followed by the Asian and Pacific Decade of Disabled Persons from 1993
to 20022. This period witnessed a significant increase in awareness about issues concerning
people with disabilities. During a meeting of the Economic and Social Commission for Asia
and the Pacific in Beijing in December 1992, a Proclamation on the Full Participation and
Equality of People with Disabilities in the Asian and Pacific Region was adopted. India was
among the countries that endorsed this proclamation.3

When countries become signatories to international legal agreements, they are obligated to
create legislation, policies, and practices that align with the principles outlined in these
agreements. This commitment led to the enactment of one of the most comprehensive laws
related to people with disabilities in India: the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act of 1995.

1
Bhatia, R. P. (2003). EVOLUTION OF JUDICIAL ACTIVISM IN INDIA. Journal of the Indian Law Institute,
45(2), 262–274. http://www.jstor.org/stable/43953414.
2
History of United Nations and persons with Disabilities – United Nations decade of disabled persons: 1983 –
1992 enable United Nations. Available at: https://www.un.org/development/desa/disabilities/history-of-united-
nations-and-persons-with-disabilities-united-nations-decade-of-disabled-persons-1983-
1992.html#:~:text=Persons%3A%201983%20%E2%80%93%201992-,History%20of%20United%20Nations
%20and%20Persons%20with%20Disabilities%20%E2%80%93%20United%20Nations,status%20of
%20persons%20with%20disabilities (Accessed: 15 January 2024).
3
Narayan, C.L. and John, T. (2017) The rights of persons with disabilities act, 2016: Does it address the needs
of the persons with mental illness and their families, Indian journal of psychiatry. Available at:
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5419007/ (Accessed: 15 January 2024).
INDIA'S LEGISLATIVE ACTS FOR PEOPLE WITH DISABILITIES

In India's journey toward a more inclusive and equitable society, legislative acts have played
a pivotal role in championing the rights and well-being of people with disabilities. The
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)
Act of 1995 stands as a beacon in this pursuit, with a multifaceted approach to enhance
opportunities for individuals with disabilities. This pivotal act takes a comprehensive
approach to enhance employment prospects for individuals with disabilities, spanning across
different sectors of society.
As per the Census 2011, there are 14.9 million men with disabilities as compared
to 11.9 million women in the country. The total number of differently-abled people is
over 18.0 million in the rural areas and just 8.1 million enumerated in the urban settings. The
percentage of men with disabilities is 2.41 per cent as against 2.01 in women. Social group-
wise analysis shows 2.45 per cent of the total disabled population belong to the Scheduled
Castes (SC), 2.05 per cent to the Scheduled Tribes (ST) and 2.18 per cent to other than
SC/ST.4
Within the organized formal sector, the act mandates a 3% quota for individuals with
disabilities in all government departments, whether at the central or state level, public sector
undertakings, and local authorities. This quota is thoughtfully distributed, with 1% reserved
for individuals with blindness and low vision, another 1% for those with hearing
impairments, and the remaining 1% for individuals with locomotor disabilities or cerebral
palsy (as outlined in Section 33).5
Moreover, the act goes a step further by encouraging employment in the private sector. It
calls on the government to develop and implement a scheme that provides incentives to
establishments where at least 5% of the workforce comprises individuals with disabilities
(Section 39).6
Recognizing the importance of self-employment opportunities, the act pushes for the
government to develop a scheme for preferential land allotment at concessional rates for
industrial and business purposes to persons with disabilities (Section 43).

4
NSS Report: Persons with Disabilities in India, Source: National Statistics Office, Ministry of Statistics and
Programme Implementation, Government of India.
5
Department of Personnel & Training | Mopp&P | GOI. Available at:
https://dopt.gov.in/sites/default/files/FAQ_Disabilities.pdf (Accessed: 15 January 2024).
6
Ibid.
The act doesn't stop at employment provisions. It also works to protect individuals with
disabilities from discrimination and ensures that they have access to opportunities across
various domains of life. This multifaceted approach demonstrates a commitment to
inclusivity and empowerment, aiming to dismantle barriers and create a more equitable
society for all.
India's legislative landscape has seen significant progress in recognizing and safeguarding the
rights of persons with disabilities. The Rights of Persons with Disabilities (RPWD) Act of
2006 and its 2016 counterpart have played a pivotal role in this endeavor, focusing on critical
aspects such as specialized care, transport and access, and privacy.

Specialized Care(Home & Institution): Section 9 of the RPWD Act 2006 underscores the
importance of specialized care for children with disabilities. In cases where parents are
unable to provide adequate care, the competent court steps in. It places the child with near
relations, within the community in a family setting, or, in exceptional cases, in a shelter home
run by the government or non-governmental organizations. This provision reflects a
commitment to ensure that no child with a disability is left without the care and support they
require.

Transport and Access : Section 41 of the 2016 RPWD Act emphasizes the importance of
accessibility in transportation. The appropriate Government is tasked with providing facilities
conforming to accessibility standards at bus stops, railway stations, and airports. This
includes everything from parking spaces and toilets to ticketing counters. Moreover, it
emphasizes the retrofitting of old modes of transport to make them accessible. This provision
isn't just about convenience; it's about enabling individuals with disabilities to lead
independent lives by ensuring they can access essential services and opportunities.

Privacy : The protection of privacy is a fundamental human right. The Convention on the
Rights of Persons with Disabilities, ratified by India, underscores this in Article 22. It states
that persons with disabilities should not be subjected to arbitrary or unlawful interference
with their privacy. This right extends to personal, health, and rehabilitation information. The
importance of safeguarding this right was brought into sharp focus by the case of GN
Saibaba, a disabled Delhi University professor and human rights activist.
In the case of GN Saibaba, we witness the stark reality of how the right to privacy can be
under threat. Despite being physically disabled and wheelchair-bound, he found himself in a
struggle to protect his privacy. Hunger striking against the placement of a wide-angle CCTV
camera in his cell, he sought to ensure that the authorities respected his right to privacy, life,
liberty, and bodily integrity.7 Saibaba's case highlights the critical importance of upholding
the right to privacy, particularly for persons with disabilities. It's a reminder that disability
rights go beyond legislation; they are about the daily lives and dignity of individuals. As we
celebrate the progress made through acts like the RPWD Act, we must also remain vigilant in
safeguarding these rights in practice, ensuring that every person with a disability can live a
life of dignity, free from unlawful interference or attack on their privacy.

BARRIERS TO JUSTICE

People who feel unfairly treated or mistreated in some way often turn to the legal systems –
including civil, administrative and criminal law – for redress. In addition to seeking redress,
legal defense or remedy, there are many ways in which individuals can participate in the
justice system, including as witnesses, jurors, lawyers, prosecutors, judges , referees or
undertake other functions such as those of police or prison officers.. Additionally, one can act
as a defendant in a criminal case.
Despite the protections of international human rights law and national laws, people with
disabilities often continue to face significant barriers in accessing justice. Common barriers,
which may be more complex for people living in rural areas or from disadvantaged
socioeconomic backgrounds, or for those facing multiple forms of discrimination which are
as follows:
Legal or policy barriers: Legal barriers to justice for people with disabilities include
situations where the rights of people with disabilities are not enshrined in law or where laws,
policies or practices are contrary to the provisions of CDPH. The legal aid services are not
provided at low or no cost, one may lack the economic means to engage a lawyer.

Attitudinal barriers: Negative attitudes and erroneous beliefs or assumptions of

stakeholders, including police, lawyers, and judges, can cause people with disabilities to be
consistently overlooked for claiming compensation for an alleged violation of their rights, or
participating in legal proceedings.

7
G.N. Saibaba hospitalised after 4-day hunger strike to get CCTV removed from jail cell The Wire. Available
at: https://thewire.in/rights/g-n-saibaba-hospitalised-after-4-day-hunger-strike-to-get-cctv-removed-from-jail-
cell (Accessed: 15 January 2024).
Information and communication barriers: People with disabilities cannot seek redress for
injustices if they do not know what their legal rights are or how to exercise them under the
law. The lack of accessible information or communication further limits the ability of people
with disabilities to report crimes or participate effectively in legal proceedings.

Physical barriers: Access to justice for people with disabilities may be hindered where
measures are not taken to ensure access to relevant physical environments, including courts,
police stations, police, law firms and related service providers.. such as victim advocates and
health care facilities where forensic evidence is collected..

Economic barriers: People with disabilities are among the poorest people in the world..
Lack of economic resources can directly affect access to justice in many ways. For example,
it may affect a person's ability to engage and pay for quality legal advice when it is not
provided free of charge etc.

INDIA - GOVERNMENT INITIATIVES FOR EMPLOYMENT OPPORTUNITIES

As a signatory to the Convention on the Rights of Persons with Disabilities, India is
committed to enhancing comprehensive habilitation and rehabilitation services, focusing on
health, employment, education, and social services (Article 26). In 1997, India established the
National Handicapped Finance and Development Corporation (NHFDC) to provide financial
assistance to entrepreneurs with disabilities.
The Department of Empowerment of Persons with Disabilities (Divyangjan) created on 8
December 2014, acts as the nodal agency on issues related to disability and people with
disabilities, including Closer coordination among various stakeholders: 4,444 central
ministries, state/UT governments, NGOs, etc. for disability-related questions. The
Government of India has launched the ‘Accessible India Campaign’ for accessibility of
urban, rural and remote areas based on universal design increases safety and ease of use not
only for persons with disabilities, but also for all other members of society. 8

8
Year End Review 2018: Department of Empowerment of Persons with Disabilities (DEPwD) under M/O Social
Justice & Empowerment (2018) Year end review 2018: Department of Empowerment of Persons with
Disabilities (depwd) under M/O Social Justice & Empowerment. Available at:
https://pib.gov.in/newsite/PrintRelease.aspx?relid=186404 (Accessed: 15 January 2024)
INTERNATIONAL GOOD PRACTICES IN FACILITATING JUSTICE TO
DISABLED PEOPLE
The 2030 Agenda for Sustainable Development, crafted in 2015, has emerged as a powerful
global framework, embracing inclusivity for all, including individuals with disabilities. This
comprehensive agenda encompasses the Sustainable Development Goals (SDGs),
representing an unequivocal commitment to the participation of persons with disabilities in
the global drive towards sustainable development. Within this framework, five specific SDGs
have been designed to address the unique challenges and opportunities facing individuals
with disabilities, exemplifying a global shift towards inclusivity and equity.9

Goal 4 of the SDGs stands as a resolute commitment to equal and accessible education for
all. It emphasizes the necessity of creating inclusive learning environments while providing
indispensable support for individuals with disabilities. The goal is to shatter the barriers
obstructing access to education and ensure that every individual, regardless of their abilities,
has an equal opportunity to learn.10

Goal 17 provides a robust foundation for the entire agenda. It underscores the significance of
collecting data and monitoring the SDGs, with a specific emphasis on disability-
disaggregated data. This data serves as a vital tool for tracking progress and ensuring that
individuals with disabilities are not left behind in the quest for sustainable development.
Beyond the global agenda, several pioneering companies have taken innovative steps to
promote disability inclusion and diversity within their workplaces. These initiatives serve as
examples of best practices and contribute to fostering inclusive environments where the rights
and contributions of individuals with disabilities are valued.

Accenture's Abilities Unleashed Program is a beacon of leadership development for

individuals with disabilities. It seeks to enhance career progression by providing

9
The 2030 agenda, sdgs and disability. Available at:
https://disabilityhub.eu/sites/disabilitybub/files/sdg_anniversary_23092020.pdf (Accessed: 15 January 2024).
10
Narayan, C.L. and John, T. (2017) The rights of persons with disabilities act, 2016: Does it address the needs
of the persons with mental illness and their families, Indian journal of psychiatry. Available at:
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5419007/ (Accessed: 15 January 2024).
opportunities and support. This program is a testament to the commitment to universal
learning initiatives and creating pathways for professional growth.11
Cisco's Global Accommodations Program exemplifies the commitment to ensuring that
reasonable accommodations are available to employees with disabilities. The program
streamlines the review and processing of accommodation requests, focusing on productivity,
work, and a culture of inclusion.
EY's Disability Confidence Initiatives are a testament to the firm's commitment to
disability confidence. Initiatives like "Taking Disability Confidence Global" and research
studies on CEO awareness of disability in the workplace emphasize the importance of
diversity and inclusion.
Johnson & Johnson's Alliance for Diverse Abilities is a prominent employee resource
group dedicated to workplace mental health and well-being, centering on diversity and
inclusion. It serves as a champion for mental health and well-being, raising awareness about
the importance of diversity and inclusion.
Merck's Global Disability Inclusion Project is groundbreaking in its approach to cross-
functional project reviews. This project ensures that disability inclusion is integrated into
various project elements, emphasizing inclusivity.
Microsoft's Central Accommodations Program is a model of efficiency for employees
with disabilities. It centralizes the review and processing of accommodation requests,
ensuring that employees have seamless access to necessary support.
SAP's Autism at Work Program challenges stereotypes by focusing on skills and strengths
rather than disabilities. By embracing differences and promoting inclusivity, SAP sparks
innovation and inspires positive change.12
These remarkable initiatives exemplify the unwavering commitment of organizations to
cultivate inclusive workplaces and societies that value and harness the contributions of
individuals with disabilities. They underscore that diversity and inclusion are not mere ideals
but essential prerequisites for achieving the global Sustainable Development Goals. By
connecting these initiatives to the broader 2030 Agenda, a powerful narrative emerges—one
of global unity and shared purpose in advancing the rights and well-being of individuals with
disabilities.
11
Raju, N. (2022) Accenture wins National Award for the Empowerment of Persons with Disabilities,
CXOToday.com. Available at: https://cxotoday.com/press-release/accenture-wins-national-award-for-the-
empowerment-of-persons-with-disabilities/ (Accessed: 15 January 2024).
12
Government wide strategic plan to advance diversity equity inclusion ... Available at:
https://www.whitehouse.gov/wp-content/uploads/2021/11/Strategic-Plan-to-Advance-Diversity-Equity-
Inclusion-and-Accessibility-in-the-Federal-Workforce-11.23.21.pdf (Accessed: 15 January 2024).
INTERNATIONAL INITIATIVES
The commitment to disability inclusion and diversity resonates across various companies in
Europe, the Middle East, and Africa (EMEA), where innovative practices and initiatives are
breaking down barriers and fostering inclusive work environments. These endeavours
champion the rights and well-being of individuals with disabilities, pushing the boundaries of
inclusion and changing the narrative.
In Ireland, Boston Scientific's mentorship program is a shining example of corporate social
responsibility. The company's mentors, aligned with the Disability Support Service (DSS) of
University College Cork, provide invaluable guidance to DSS students. This mentorship
program is a testament to the power of nurturing potential and breaking down the barriers that
stand in the way of individuals with disabilities.13
Employees at Boston Scientific have undergone training to become Mental Health
Champions, reflecting the company's dedication to mental health support. This training,
which includes all senior leadership team members with direct reports, aims to provide the
correct support during crises and empower supervisors with self-care tools, creating a
compassionate and supportive workplace.
In Angola, Chevron Corporation's Angolan Internship Program stands out as a model of
international collaboration. By placing summer interns through the Lwini Foundation’s career
training program for individuals with disabilities, Chevron is not only providing valuable
experience but also addressing workplace adjustments. Supervisors and co-workers receive
disability awareness and etiquette training in advance, fostering a more inclusive
environment.14
Ford Motor Company in the UK has initiated a groundbreaking campaign, "The Elephant in
the Transit Van," in partnership with the mental health charity Time to Change. This
campaign tackles the stigma surrounding mental health, both within the company and
externally. Ford's commitment to mental health is underscored by its investment in Mental
Health First Aid (MHFA) training, creating a cadre of mental health first aiders across UK
locations.15
13
Boston Scientific Employees Support Mentoring and wellness programs in Ireland - Disability:in (2021)
Disability. Available at: https://disabilityin.org/resource/boston-scientific-employees-support-mentoring-and-
wellness-programs-in-ireland/ (Accessed: 15 January 2024).
14
Chevron Policy, G. and P.A. (2023) Chevron and Angola government announce collaboration on Lower
Carbon Opportunities, chevron.com. Available at: https://www.chevron.com/newsroom/2023/q4/chevron-and-
angola-government-announce-collaboration-on-lower-carbon-opportunities (Accessed: 15 January 2024).
15
Disability inclusion global best practices report. Available at:
https://disabilityin-bulk.s3.amazonaws.com/2021/DEI+Global+Best+Practices508.pdf (Accessed: 15 January
The FordWorks Autism Hiring Program addresses the underrepresentation of individuals
with autism in the workforce, with unemployment rates reaching nearly 90%. Ford's
innovative approach capitalizes on the strengths and insights of individuals with autism,
incorporating them into various skill teams. This not only aligns with Ford's business
objectives but also underscores its commitment to fostering a more inclusive and diverse
community.16
These initiatives and practices not only exemplify the commitment of companies across to
inclusivity but also showcase the power of empathy, innovation, and determination. They
underscore the transformative impact of inclusive practices on individuals with disabilities
and the wider community, fostering an environment where diversity is celebrated, and
everyone can thrive.

Conclusion:
Thus, at each step of the justice process, access to justice needs to be renegotiated with each
actor. People find it demoralizing to constantly have to find their own options for support and
self-disclose their handicap or requirements for assistance. There is lack of clarity in
addressing disability models and the socio structural obstacles that handicapped persons face.
When disabled persons are accused of a crime, these systemic oversights and structural
hurdles have a negative effect on their feelings of justice and fairness. Hence, these laws
should be in line with the international framework for disability rights established by the
UNCRPD. The biological terminology around disability reinforces the extremely
individualized nature of access to justice17. Individual potential and capability are highlighted,
which positions the person as a problem rather than inaccessible structures and processes
thereof.

2024).
16
Ibid.
17
Gormley, C. and Watson, N. (2021) Inaccessible justice: Exploring the barriers to ... - Wiley Online Library.
Available at: https://onlinelibrary.wiley.com/doi/full/10.1111/hojo.12433. (Accessed: 15 January 2024)