CHAPTER 2

Scheme of the Chapter

2.0 Introduction ....................................................................................................................80

2.1 United Nations and Development of Disability Rights ...........................................81

2.2 Rights of the Disabled under the European Union ............................................... 109

2.2.1 History of Development of Disability Rights in the European Union ............ 110

2.2.2 Statistical analysis of Disability in European Union ........................................... 114

2.2.3 European Disability Strategy 2010-2020 .............................................................. 117

2.3 United Kingdom Approach towards the Right of the Disabled .......................... 119

2.3.1 Supreme Court of United Kingdom and disability rights .................................. 123

2.4 United States of America Approach towards The Rights of The Disability ...... 138

2.4.1 Supreme Court of America and disability rights ................................................. 139

2.5 Indian Disability Laws and Policies .......................................................................... 142

2.5.1 Constitution of India ............................................................................................... 143

2.5.2 The Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 ............................................................................................ 145

2.5.3 The Rights of Persons with Disabilities Bill, 2014 .............................................. 156

2.5.4 Comparison of the Bill 2014 with PWD Act, 1995 and Draft Bill, 2011 ........ 171

2.6 Welfare Schemes, Programmes and Measures for The Benefit of Disabled Persons
.............................................................................................................................................. 174

2.6.1 Central Government Schemes ............................................................................... 181

2.6.2 Gujarat Government Welfare Scheme for Disabled Persons ........................... 211

2.7 Government Institutions Working for the Rights of the Disabled ..................... 228

2.8 Summary ....................................................................................................................... 241

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2.0 Introduction

Disability rights have often been neglected and even when addressed, the same has
been done with a tone of charity. The reason for the same has been a sense of
inferiority with which the society at large sees a disabled person. Further, democracy
while having many of its benefits has a disadvantage to often overlook the rights of
minority. Unfortunately, the disabled throughout countries fall under the minority,
mostly due to their small numbers to influence any voting process coupled with their
lack of economic contribution to the overall economy. Therefore, the social status of
persons with disabilities is best reflected in the laws enacted by the society for them.
Also, efficiency being relative to the performance of others, in order to appreciate the
efficacy of the Indian laws and policy, one would have to appreciate the laws and
policies enacted by the International Community. This chapter describes the history
of how over time different societies have come to address disability rights and how
laws have taken shape on this subject, and attempts to better understand the
comparative structure of different approaches towards disability rights. The Chapter
has been divided in following sections –

(i) United Nations and development of Disability Rights, and how the UN has
provided a general international framework and developments that led to the
passing of the UN Convention on Rights of Persons with Disabilities, and other
reports of the UN which have contributed towards the development of disability
rights.

(ii) European Union and Rights of Disabled Persons, and how the EU has managed
to address disability rights across a wide spectrum in a diverse society.

(iii) Rights of Disabled Persons in the United Kingdom, and how in the UK reasonable
adjustment constitutes a right and violation of which constitutes discrimination.

(iv) Rights of Disabled Persons in the United States, and the development of disability
rights in America.

(v) Indian Laws on Disability and Policy, the provisions of the PWD Act 1995, the
lacunas in it, and the effectiveness of the Rights of the Persons with Disability Bill

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 2012, along with different government schemes aimed at welfare of persons with
disabilities.

2.1 United Nations and Development of Disability Rights

Disability rights first originate from the Preamble to the Charter of the United Nations
(hereafter UN) which makes it obligatory for every nation to – “to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the equal rights of men
and women and of nations large and small”1.

This general framework is further strengthened by the Universal Declaration of the

Human Rights (hereafter UDHR) which, apart from laying down the general principles
of equality, has also laid down some specific rights. One amongst them is Article 25(1)
of the UDHR, which reads as-

“Everyone has the right to a standard of living adequate for the health and well-being of himself and
of his family, including food, clothing, housing and medical care and necessary social services, and the
right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack
of livelihood in circumstances beyond his control.”

Further Article 23 of the UDHR, provides that everyone should be given an access to
just and favorable conditions to work and employment.

The initial approach of the United Nations towards disability can be understood in
reference to the circumstances which preceded its formation. The UN came into
existence as the World War II was being concluded; while the war left many people
dead, it also left many handicapped as a result of the war.

Thus, the UN initially adopted a welfare approach and the focus was on prevention
and rehabilitation. To implement this goal the task was handed over to the United
Nations Secretariat, the Economic and Social Council and the Social Commission. In
order to satisfy its mandate the Social Commission in 1950 submitted reports dealing
with rehabilitation of the disabled. This led to the establishment of programs for
rehabilitation of the disabled and for prevention and treatment of the blind. In the

1 U.N. Charter preamble, http://www.un.org/en/documents/charter/preamble.shtml.

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March of 1950, a conference of the organizations of the UN was called, which led to
the consensus amongst the organizations of the UN for “the need to establish international
standards for the education, treatment, training and placement of persons with disabilities, with
particular emphasis on the needs of blind persons in underdeveloped areas”2.

Thus, the approach was limited to welfare schemes only, which could be understood
from the conditions existing then; the UN was in its nascent stage, the World War II
had just ended, most of the countries were facing financial and economic crisis and
were in need of labour which a disabled person was unable to provide. However, the
countries also felt obliged to their heroes and thus the initial approach towards
disability rights was to focus on those who were disabled due to some calamity or
accident.

But, in the late 50s as the economy slowly started to come back on track, the efforts
of UN shifted from welfare to that of social welfare. As a result of this, the
institutionalized approach was replaced by deinstitutionalization, since more and more
non-governmental organizations were now becoming active in this area.

In addition to this, even the disabled started getting involved in the policy making
process. Due to this, the approach towards looking at disability rights started getting
changed. The efforts now started to be more towards addressing the social
obstructions faced by the disabled.

The result of experts getting involved in this process had a direct bearing on the
teaching and training process adopted by the governments; this further ignited
discourse on the rights of the disabled and the problems faced by them and disability
rights started becoming part of the teaching process.

While initially the change in infrastructure was not visible, the change became visible
through the efforts made in educating and spreading the information about this
subject. In 1956, the International Social Service Review was found with the sole
purpose of raising awareness about disability rights and giving encouragement to
rehabilitation program.

2 ‘History of United Nations and Persons with Disabilities - The First Millennium Decade’.
http://www.un.org/disabilities/default.asp?id=128.

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All these efforts culminated in the passage of ‘The Declaration on Social Progress and
Development”3 on 11.12.1969. The declaration made remarkable strides for the
disability rights.

Article 11 of this Declaration reads as follows:

(i) “The provision of comprehensive social security schemes and social welfare services; the
establishment and improvement of social security and insurance schemes for all persons who,
because of illness, disability or old age, are temporarily or permanently unable to earn a living,
with a view to ensuring a proper standard of living for such persons and for their families and
dependents;

(ii) The protection of the rights of the mother and child; concern for the upbringing and health of
children; the provision of measures to safeguard the health and welfare of women and particularly
of working mothers during pregnancy and the infancy of their children, as well as of mothers
whose earnings are the sole source of livelihood for the family; the granting to women of pregnancy
and maternity leave and allowances without loss of employment or wages;

(iii) The protection of the rights and the assuring of the welfare of children, the aged and the disabled;
the provision of protection for the physically or mentally disadvantaged;

(iv) The education of youth in, and promotion among them of, the ideals of justice and peace, mutual
respect and understanding among peoples; the promotion of full participation of youth in the
process of national development;

(v) The provision of social defence measures and the elimination of conditions leading to crime and
delinquency especially juvenile delinquency;

(vi) The guarantee that all individuals, without discrimination of any kind, are made aware of their
rights and obligations and receive the necessary aid in the exercise and safeguarding of their
rights.”

Further Article 19 of the Declaration provides –

(i) “The provision of free health services to the whole population and of adequate preventive and
curative facilities and welfare medical services accessible to all;

3 ‘Declaration on Social Progress and Development, G.A. Res. 2542 (XXIV), 24 U.N. GAOR Supp.
(no. 30) at 49, U.N. Doc. A/7630 (1969)’, https://www1.umn.edu/humanrts/instree/s1dspd.htm.

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 (ii) The enactment and establishment of legislative measures and administrative regulations with a
view to the implementation of comprehensive programs of social security schemes and social welfare
services and to the improvement and co-ordination of existing services;

(iii) The adoption of measures and the provision of social welfare services to migrant workers and
their families, in conformity with the provisions of Convention No. 97 of the International
Labour Organisation and other international instruments relating to migrant workers;

(iv) The institution of appropriate measures for the rehabilitation of mentally or physically disabled
persons, especially children and youth, so as to enable them to the fullest possible extent to be
useful members of society- these measures shall include the provision of treatment and technical
appliances, education, vocational and social guidance, training and selective placement, and other
assistance required-and the creation of social conditions in which the handicapped are not
discriminated against because of their disabilities.”

While the above two articles specifically provide for measures for the disabled, the
other articles also enforce the mandate of the UDHR and equality. In totality, this
Declaration provides a hint to the changing approach of the UN.

The UN as a result of these developments shifted its approach in disability rights from
a medical approach to a more social approach, by concentrating on the social barriers
rather than the medical shortcomings. This led to the adoption of the following two
landmark declarations that were made by the UN –

(i) The Declaration on the Rights of Mentally Retarded Persons, 20.12.1971.

(ii) The Declaration on the Rights of Disabled Persons, 09.12.1975.

On 20 December 1971, the General Assembly of the UN adopted “The Declaration

on the Rights of Mentally Retarded Persons”4, which gave the following rights to
mentally retarded persons5-

(i) “The mentally retarded person has, to the maximum degree of feasibility, the same rights as
other human beings.

4 ‘Declaration on the Rights of Mentally Retarded Persons’, 1996,

http://www.ohchr.org/EN/ProfessionalInterest/Pages/RightsOfMentallyRetardedPersons.aspx.
5 ibid.

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(ii) The mentally retarded person has a right to proper medical care and physical therapy and to such
education, training, rehabilitation and guidance as will enable him to develop his ability and
maximum potential.

(iii) The mentally retarded person has a right to economic security and to a decent standard of living.
He has a right to perform productive work or to engage in any other meaningful occupation to
the fullest possible extent of his capabilities.

(iv) Whenever possible, the mentally retarded person should live with his own family or with foster
parents and participate in different forms of community life. The family with which he lives
should receive assistance. If care in an institution becomes necessary, it should be provided in
surroundings and other circumstances as close as possible to those of normal life.

(v) The mentally retarded person has a right to a qualified guardian when this is required to protect
his personal well-being and interests.

(vi) The mentally retarded person has a right to protection from exploitation, abuse and degrading
treatment. If prosecuted for any offence, he shall have a right to due process of law with full
recognition being given to his degree of mental responsibility.

(vii) Whenever mentally retarded persons are unable, because of the severity of their handicap, to
exercise all their rights in a meaningful way or it should become necessary to restrict or deny some
or all of these rights, the procedure used for that restriction or denial of rights must contain proper
legal safeguards against every form of abuse. This procedure must be based on an evaluation of
the social capability of the mentally retarded person by qualified experts and must be subject to
periodic review and to the right of appeal to higher authorities.”

Another significant development that took place in a few years from the adoption of
this declaration was the adoption of “The Declaration on the Rights of Disabled
Persons”6 by the General Assembly in the year 1975, which created the following rights

(i) “The term "disabled person" means any person unable to ensure by himself or herself, wholly or
partly, the necessities of a normal individual and/or social life, as a result of deficiency, either
congenital or not, in his or her physical or mental capabilities.

6 ‘Declaration on the Rights of Disabled Persons’, 1996,

http://www.ohchr.org/EN/ProfessionalInterest/Pages/RightsOfDisabledPersons.aspx.

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(ii) Disabled persons shall enjoy all the rights set forth in this Declaration. These rights shall be
granted to all disabled persons without any exception whatsoever and without distinction or
discrimination on the basis of race, colour, sex, language, religion, political or other opinions,
national or social origin, state of wealth, birth or any other situation applying either to the
disabled person himself or herself or to his or her family.

(iii) Disabled persons have the inherent right to respect for their human dignity. Disabled persons,
whatever the origin, nature and seriousness of their handicaps and disabilities, have the same
fundamental rights as their fellow-citizens of the same age, which implies first and foremost the
right to enjoy a decent life, as normal and full as possible.

(iv) Disabled persons have the same civil and political rights as other human beings; paragraph 7 of
the Declaration on the Rights of Mentally Retarded Persons applies to any possible limitation
or suppression of those rights for mentally disabled persons.

(v) Disabled persons are entitled to the measures designed to enable them to become as self-reliant
as possible.

(vi) Disabled persons have the right to medical, psychological and functional treatment, including
prosthetic and orthotic appliances, to medical and social rehabilitation, education, vocational
training and rehabilitation, aid, counselling, placement services and other services which will
enable them to develop their capabilities and skills to the maximum and will hasten the processes
of their social integration or reintegration.

(vii) Disabled persons have the right to economic and social security and to a decent level of living.
They have the right, according to their capabilities, to secure and retain employment or to engage
in a useful, productive and remunerative occupation and to join trade unions.

(viii) Disabled persons are entitled to have their special needs taken into consideration at all stages of
economic and social planning.

(ix) Disabled persons have the right to live with their families or with foster parents and to participate
in all social, creative or recreational activities. No disabled person shall be subjected, as far as
his or her residence is concerned, to differential treatment other than that required by his or her
condition or by the improvement which he or she may derive therefrom. If the stay of a disabled
person in a specialized establishment is indispensable, the environment and living conditions
therein shall be as close as possible to those of the normal life of a person of his or her age.

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(x) Disabled persons shall be protected against all exploitation, all regulations and all treatment of
a discriminatory, abusive or degrading nature.

(xi) Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves
indispensable for the protection of their persons and property. If judicial proceedings are instituted
against them, the legal procedure applied shall take their physical and mental condition fully into
account.

(xii) Organizations of disabled persons may be usefully consulted in all matters regarding the rights
of disabled persons.

(xiii) Disabled persons, their families and communities shall be fully informed, by all appropriate
means, of the rights contained in this Declaration.”

The above two declarations formed the bedrock in determining the approach of UN
towards the disability rights. The most important aspect of both these declarations was
their attempt to accommodate the disabled within the society, and the beginning of
the social integration of the disabled.

Taking this a step further, the General Assembly in 1976 declared the year 1981 as the
‘International Year of Disabled Persons’ and in the year 1978, the Secretary General
established the intergovernmental ‘Advisory Committee for the International Year of
Disabled Persons’, and thus begun the Human Rights era of disability rights.7

In order to prepare for the international year of the disabled, the UN initiated various
programs for increasing awareness about disability rights. Various conferences,
symposiums and seminars were organized to create awareness over this issue, as the
major theme of the International Year of the Disabled Persons was to increase “Full
Participation”.

To lead by an example, the offices and premises of the UN buildings were modified
to make them accessible to everyone, and efforts were made to remove barriers in

7United Nations General Assembly ‘A/RES/36/77. International Year of Disabled Persons’,

December 8, 1981, http://www.un.org/documents/ga/res/36/a36r077.htm.

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buildings and other social facilities so as to encourage full participation. Some of the
conferences which the UN conducted were8:

(i) World Conference on Actions and Strategies on Education, Disability

Prevention, and Integration of Disabled Persons, Torremolinos.

(ii) World Symposium of Experts on Technical Cooperation among Developing

Countries and Technical Assistance in Disability Prevention and Rehabilitation
of Disabled Persons, Vienna.

(iii) International Symposium on Disabled Persons, Tripoli.

According to the UN, the major finding from the programs and seminars conducted
during the International Year of the Disabled was – “that the image of persons with
disabilities depends to an important extent on social attitudes; these were a major barrier to the
realization of the goal of full participation and equality in society by persons with disabilities”.

In order to ensure an effective follow up of the International Year of Disabled

Persons, the UN in 1982 adopted a World Programme of Action concerning Disabled
Persons.9 The scheme was to address the following three areas –

(i) Providing equal opportunities.

(ii) Preventions of Disability.

(iii) Rehabilitation of the disabled.

Further, in the same year the UN also passed the following resolution proclaiming the
decade of disabled persons from 1983-1992, with the following points:

(i) “Expresses its appreciation to all Member States which elaborated national policies and
programmes for the implementation of the World Programme of Action concerning Disabled
Persons and for the United Nations Decade of Disabled Persons, and urges those which have
not yet formulated such programmes to do so;

8 ‘History of United Nations and Persons with Disabilities - The First Millennium Decade’.
http://www.un.org/disabilities/default.asp?id=125.
9 ibid.

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(ii) Notes with appreciation the activities relating to the implementation of the World Programme
of Action undertaken by the United Nations system and by relevant non-governmental
organizations;

(iii) Urges Member States to make every effort to attain the objectives of the World Programme of
Action in co-operation with non-governmental organizations concerned and to involve disabled
persons in planning and decision-making related to the implementation of the Programme;

(iv) Invites Member States as a matter of priority to reinforce or establish national committees or
similar bodies for the Decade at the highest level with participation of organizations of disabled
persons to plan, co-ordinate and encourage the execution of activities in support of the objectives
of the Decade at the national and local levels;

(v) Requests the Secretary-General to elaborate the guidelines for priority actions during the Decade
based on his report to the present session and on the replies received from Member States and
organizations including those of disabled persons;

(vi) Reiterates its request that the Secretary-General strengthen the Centre for Social Development
and Humanitarian Affairs of the Secretariat through a reallocation of existing resources to
enable the Centre to continue to serve as the focal point in the field of disability, particularly for
purposes of paragraph 5 above;

(vii) Requests the Secretary-General and relevant organizations of the United Nations system to
develop specific programmes to publicize the Decade and the goals of the World Programme of
Action, and invites Member States and non-governmental organizations to assist in this
undertaking;

(viii) Invites Member States, organizations of the United Nations system, as well as non-
governmental organizations to make available resources in the form of funds and personnel for
the purpose of planning, managing and financing the Decade at the national, regional and
interregional levels;

(ix) Urges all organizations of the United Nations system to take into consideration the interests of
disabled persons as well as the effective implementation of the World Programme of Action in
the pursuance of their overall objectives in their respective areas of competence;

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 (x) Decides that, pending completion of the elaboration and the adoption of the guidelines referred to
in paragraph 5 above, the United Nations Trust Fund for the International Year of Disabled
Persons should continue to support activities in accordance with paragraph 157 of the World
Programme of Action and paragraph 4 of General Assembly resolution 38/28;

(xi) Calls upon Member States and other donors to continue to contribute generously to the Trust
Fund;

(xii)Requests the Secretary-General to promote the recruitment of more disabled persons within the
United Nations system;

(xiii) Again requests the Secretary-General to convene in 1987 a meeting of experts, consisting largely
of disabled persons, to evaluate progress at the mid-point of the Decade and to prepare a report
that would enable the Secretary-General to help the General Assembly at its forty-second session
to evaluate the implementation of the World Programme of Action, as provided for in paragraph
3 of resolution 37/52;

(xiv) Requests the Secretary-General to report on the implementation of the present resolution,
including detailed information on the activities relating to the Trust Fund, to the General
Assembly at its fortieth session and decides to include in the provisional agenda of that session
an item entitled Implementation of the World Programme of Action concerning Disabled Persons
and the United Nations Decade of Disabled Persons.”

In 1989, the UN adopted the “Tallinn Guidelines for Action on Human Resources
Development in the Field of Disability”10. These guidelines provided for training and
employment of disabled in the government department of the member states. The
relevant portion of the resolution adopting these guidelines is being reproduced
below11:

(i) “Recognizes the desirability of the continuation of the United Nations Trust Fund for the
International Year of Disabled Persons throughout the United Nations Decade of Disabled
Persons for the benefit of disabled persons, particularly those in developing countries;

10 United Nations General Assembly, ‘A/RES/38/28. World Programme of Action Concerning

Disabled Persons’, November 22, 1983, http://www.un.org/documents/ga/res/38/a38r028.htm.
11 Ibid.

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(ii) Decides that the Trust Fund should continue its activities pending a report by the Secretary-
General to the General Assembly at its thirty-ninth session, which should include
recommendations for the further implementation of the World Programme of Action concerning
Disabled Persons, the funding of such activities by voluntary contributions, the possible terms of
reference of a trust fund for the United Nations Decade of Disabled Persons, the implementation
of the provisions contained in Assembly resolution 36/77concerning the organization of support
services for technical co-operation in favour of disabled persons, as well as the organization of
task forces mentioned in Assembly resolution 37/53;

(iii) Stresses the need for the administration of the Trust Fund to continue to be carried out as an
integral part of the substantive responsibilities for disability matters discharged by the Secretariat;

(iv) Recommends that the resources of the Trust Fund should be geared, within the framework of the
United Nations Decade of Disabled Persons, towards the implementation of the World
Programme of Action concerning Disabled Persons and towards helping persons with disabilities
to organize themselves, towards assisting in implementing support and consultative services for
technical co-operation and inter-organizational task forces, as mentioned in resolutions 36/77
and 37/53, and towards strengthening the activities of the regional commissions in the field of
disability prevention and the advancement of persons with disabilities;

(v) Requests the Secretary-General to take the necessary steps to strengthen the Trust Fund and, to
this effect, to enlist extra budgetary resources as indicated in paragraph 158 of the World
Programme of Action concerning Disabled Persons;

(vi) Appeals to Governments and private sources for continuing generous voluntary contributions to
the Trust Fund;

(vii) Calls upon all Member States, all non-governmental organizations concerned and organizations
of disabled persons and calls also upon all organs, organizations and agencies of the United
Nations system, through a reallocation of existing resources, to continue to ensure the early
implementation of the World Programme of Action concerning Disabled Persons;

(viii) Requests the Secretary-General to include in his reports to the General Assembly on the
implementation of the World Programme of Action concerning Disabled Persons a section on
the activities of the Trust Fund.”

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The General Assembly on December 17, 1991 adopted “The Principles for the
Protection of Persons with Mental Illness and for the Improvement of Mental Health
Care”. The rules provide for freedom and personal liberty of persons with mental
liberty, define mental illness, prevention of mental illness, confidentiality, role of the
community, treatment and medical of the persons with mental illness.12

On 16 December 1992, the General Assembly appealed to the member states to

observe 3rd December as Disability Day every year. In 1993, the General Assembly
adopted “The Standard Rules on the Equalization of Opportunities for Persons with
Disabilities”13. It is a collection of rules that present disability rights in form of human
rights, and concludes the work done by the UN during the Decade of the Persons with
Disability. It covers the following areas:

(i) Preconditions for equal participation of the disabled.

(ii) Target areas for equal participation of the disabled.

(iii) Implementation measures for ensuring equal participation of the disabled.

(iv) The monitoring mechanism - and cover all aspects of life of disabled.

While these efforts put in by the UN were noble and visionary they failed to create any
impact, as they were non-binding in nature and did not create any social norm in the
International arena.

Thus need for a legally binding instrument was felt and the work towards adopting a
convention by the United Nations for the benefit of disabled, was started by the
General Assembly Resolution 56/168 passed on 19.12.2001, wherein the General
Assembly resolution stated as follows14:

“Recalling its resolution 37/52 of 3 December 1982, by which it adopted the World
Program of Action concerning Disabled Persons, its resolution 48/96 of 20 December

12 United Nations General Assembly, ‘A/RES/46/119. The protection of person with mental illness
and the improvement of mental health care’, December 17, 1991,
http://www.un.org/documents/ga/res/46/a46r119.htm.
13 United Nations. ‘The Standard Rules on the Equalization of Opportunities for Persons with

Disabilities’, 2007, http://www.un.org/esa/socdev/enable/dissre00.htm.

14 United Nations General Assembly, ‘A/56/583/Add.2 Comprehensive and integral international

convention to promote and protect the rights and dignity of persons with disabilities’,
http://www.un.org/esa/socdev/enable/disA56168e1.htm.

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1993, by which it adopted the Standard Rules on the Equalization of Opportunities
for Persons with Disabilities, and its resolution 54/121 of 17 December 1999, Recalling
also Economic and Social Council resolution 2000/10 of 27 July 2000 on further
promotion of equalization of opportunities by, for and with persons with disabilities,
as well as other relevant resolutions of the General Assembly, the Economic and Social
Council and the functional commissions of the Council, Reaffirming the outcomes of
the major United Nations conferences and summits and their respective follow-up
reviews, in particular as they pertain to the promotion of the rights and well-being of
persons with disabilities on an equal and participatory basis, Noting with satisfaction that
the Standard Rules play an important role in influencing the promotion, formulation
and evaluation of policies, plans, programs and actions at the national, regional and
international levels to further the equalization of opportunities by, for and with
persons with disabilities, Recognizing that, despite different efforts made to increase
cooperation and integration and increasing awareness of and sensitivity to disability
issues since the adoption of the World Program of Action by Governments, bodies
and relevant organizations of the United Nations system and non-governmental
organizations, these efforts have not been sufficient to promote full and effective
participation by and opportunities for persons with disabilities in economic, social,
cultural and political life, Encouraged by the increasing interest of the international
community in the promotion and protection of the rights and dignity of persons with
disabilities in the world under a comprehensive and integral approach.”

As a result of this resolution an Ad Hoc committee was constituted to work towards

development of a framework for protection of the rights of the disabled. The First
Session of the Ad Hoc Committee took place from 29 July to 9 August 2002. In
preparation to its second session the Ad Hoc Committee decided to seek views and
suggestions on a convention by States and all relevant international, regional and
national organizations.

At its Second Session, from 16-27 June 2003, the Ad Hoc Committee decided to
establish a Working Group with the aim of preparing and presenting a draft text of a
convention, which would be the basis for negotiation by Member States. The Group

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would take into account all previous contributions submitted to the Ad Hoc
Committee.

The Working Group, composed of representatives of Member States, non-

governmental organizations and a national human rights institution, met from 5 to 16
January 2004.

In accordance with General Assembly Resolution 58/246, the Ad Hoc Committee

started its negotiation on a draft convention at its Third Session from 24 May to 4 June
2004, based on the draft text prepared by the Working Group.

The Committee completed two readings of the draft text during its Third, Fourth (23
August to 3 September 2004), Fifth (24 January to 4 February 2005) and Sixth Sessions
(1-12 August 2005).

At its Seventh Session, from16 January to 3 February 2006, the Ad Hoc Committee
considered a draft text proposed by the Chair, reflecting the work of the Committee.

At its Eighth session from 14 to 25 August 2006, the Ad Hoc Committee adopted the
draft text of the Convention including an optional protocol, as a whole, without a vote.
The Ad Hoc Committee decided to establish an open-ended drafting group tasked
with ensuring uniformity of terminology throughout the text of the draft convention
and harmonizing the versions in the official languages of the United Nations. At its
resumed meeting of the Eighth session on 5 December 2006, the Chairman of the
drafting group presented an oral report on the results of its work and the Committee
forwarded the draft final report with the text of the Convention on the Rights of
Persons with Disabilities, as amended, and the optional protocol, to the General
Assembly for adoption. On 13 December 2006 the Plenary of the General Assembly
adopted by consensus the Convention on the Rights of Persons with Disabilities and
the optional protocol.15 Thus the Convention came into being as an international
instrument.

15United Nations. ‘Ad Hoc Committee on a Comprehensive and Integral International Convention on
the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’. 2007.
http://www.un.org/esa/socdev/enable/rights/adhoccom.htm.

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The Aims and Objectives as provided in the Preamble of the Convention are as
follows:

(i) Recalling the principles proclaimed in the Charter of the United Nations which
recognize the inherent dignity and worth and the equal and inalienable rights
of all members of the human family as the foundation of freedom, justice and
peace in the world,

(ii) Recognizing that the United Nations, in the Universal Declaration of Human
Rights and in the International Covenants on Human Rights, has proclaimed
and agreed that everyone is entitled to all the rights and freedoms set forth
therein, without distinction of any kind,

(iii) Reaffirming the universality, indivisibility, interdependence and

interrelatedness of all human rights and fundamental freedoms and the need
for persons with disabilities to be guaranteed their full enjoyment without
discrimination,

(iv) Recalling the International Covenant on Economic, Social and Cultural Rights,
the International Covenant on Civil and Political Rights, the International
Convention on the Elimination of All Forms of Racial Discrimination, the
Convention on the Elimination of All Forms of Discrimination against
Women, the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, the Convention on the Rights of the
Child, and the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families,

(v) Recognizing that disability is an evolving concept and that disability results
from the interaction between persons with impairments and attitudinal and
environmental barriers that hinders their full and effective participation in
society on an equal basis with others,

(vi) Recognizing the importance of the principles and policy guidelines contained
in the World Program of Action concerning Disabled Persons and in the
Standard Rules on the Equalization of Opportunities for Persons with
Disabilities in influencing the promotion, formulation and evaluation of the

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 policies, plans, programs and actions at the national, regional and international
levels to further equalize opportunities for persons with disabilities,

(vii) Emphasizing the importance of mainstreaming disability issues as an integral

part of relevant strategies of sustainable development,

(viii) Recognizing also that discrimination against any person on the basis of
disability is a violation of the inherent dignity and worth of the human person,

(ix) Recognizing further the diversity of persons with disabilities,

(x) Recognizing the need to promote and protect the human rights of all persons
with disabilities, including those who require more intensive support,

(xi) Concerned that, despite these various instruments and undertakings, persons
with disabilities continue to face barriers in their participation as equal
members of society and violations of their human rights in all parts of the
world,

(xii)Recognizing the importance of international cooperation for improving the

living conditions of persons with disabilities in every country, particularly in
developing countries,

(xiii) Recognizing the valued existing and potential contributions made by persons
with disabilities to the overall well-being and diversity of their communities, and
that the promotion of the full enjoyment by persons with disabilities of their
human rights and fundamental freedoms and of full participation by persons
with disabilities will result in their enhanced sense of belonging and in significant
advances in the human, social and economic development of society and the
eradication of poverty,

(xiv) Recognizing the importance for persons with disabilities of their individual
autonomy and independence, including the freedom to make their own choices,

(xv) Considering that persons with disabilities should have the opportunity to be
actively involved in decision-making processes about policies and programs,
including those directly concerning them,

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(xvi) Concerned about the difficult conditions faced by persons with disabilities
who are subject to multiple or aggravated forms of discrimination on the basis
of race, color, sex, language, religion, political or other opinion, national,
ethnic, indigenous or social origin, property, birth, age or other status,

(xvii) Recognizing that women and girls with disabilities are often at greater risk,
both within and outside the home of violence, injury or abuse, neglect or
negligent treatment, maltreatment or exploitation,

(xviii) Recognizing that children with disabilities should have full enjoyment of all
human rights and fundamental freedoms on an equal basis with other children,
and recalling obligations to that end undertaken by Signatories to the
Convention on the Rights of the Child,

(xix) Emphasizing the need to incorporate a gender perspective in all efforts to

promote the full enjoyment of human rights and fundamental freedoms by
persons with disabilities,

(xx)Highlighting the fact that the majority of persons with disabilities live in
conditions of poverty, and in this regard recognizing the critical need to
address the negative impact of poverty on persons with disabilities,

(xxi) Bearing in mind that conditions of peace and security based on full respect
for the purposes and principles contained in the Charter of the United Nations
and observance of applicable human rights instruments are indispensable for
the full protection of persons with disabilities, in particular during armed
conflicts and foreign occupation,

(xxii) Recognizing the importance of accessibility to the physical, social, economic

and cultural environment, to health and education and to information and
communication, in enabling persons with disabilities to fully enjoy all human
rights and fundamental freedoms,

(xxiii) Realizing that the individual, having duties to other individuals and to the
community to which he or she belongs, is under a responsibility to strive for
the promotion and observance of the rights recognized in the International
Bill of Human Rights,

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 (xxiv) Convinced that the family is the natural and fundamental group unit of
society and is entitled to protection by society and the State, and that persons
with disabilities and their family members should receive the necessary
protection and assistance to enable families to contribute towards the full and
equal enjoyment of the rights of persons with disabilities,

(xxv) Convinced that a comprehensive and integral international convention to

promote and protect the rights and dignity of persons with disabilities will
make a significant contribution to redressing the profound social disadvantage
of persons with disabilities and promote their participation in the civil,
political, economic, social and cultural spheres with equal opportunities, in
both developing and developed countries.

Article 1 of the Convention defines the purpose of this Convention as to promote,

protect and ensure the full and equal enjoyment of all human rights and fundamental
freedoms by all persons with disabilities and to promote respect for their inherent
dignity. This Article further defines disability as- “Persons with disabilities include those who
have long-term physical, mental, intellectual or sensory impairments which in interaction with various
barriers may hinder their full and effective participation in society on an equal basis with others.”

Article 2 specifies as to what constitutes discrimination with disabled in the following

words- “any distinction, exclusion or restriction on the basis of disability which has
the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise,
on an equal basis with others, of all human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field. It includes all forms of
discrimination, including denial of reasonable accommodation.”16

The principles on which this Convention has been based on have been embodied in
Article 3, which are:

(i) Respect for inherent dignity, individual autonomy including the freedom to
make one’s own choices, and independence of persons;

16 Reasonable Accommodation has been defined by this convention to mean – “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.”

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 (ii) Non-discrimination;

(iii) Full and effective participation and inclusion in society;

(iv) Respect for difference and acceptance of persons with disabilities as part of
human diversity and humanity;

(v) Equality of opportunity;

(vi) Accessibility;

(vii) Equality between men and women;

(viii) Respect for the evolving capacities of children with disabilities and respect
for the right of children with disabilities to preserve their identities.

According to Article 4 of this Convention, the States parties to this Convention are
bound by the following obligations:

(i) To adopt all appropriate legislative, administrative and other measures for the
implementation of the rights recognized in the present Convention.

(ii) To take all appropriate measures, including legislation, to modify or abolish

existing laws, regulations, customs and practices that constitute discrimination
against persons with disabilities.

(iii) To take into account the protection and promotion of the human rights of
persons with disabilities in all policies and programs.

(iv) To refrain from engaging in any act or practice that is inconsistent with the
present Convention and to ensure that public authorities and institutions act
in conformity with the present Convention.

(v) To take all appropriate measures to eliminate discrimination on the basis of

disability by any person, organization or private enterprise.

(vi) To undertake or promote research and development of universally designed

goods, services, equipment and facilities, as defined in article 2 of the present
Convention, which should require the minimum possible adaptation and the
least cost to meet the specific needs of a person with disabilities, to promote

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 their availability and use, and to promote universal design in the development
of standards and guidelines.

(vii) To undertake or promote research and development of, and to promote the
availability and use of new technologies, including information and
communications technologies, mobility aids, devices and assistive
technologies, suitable for persons with disabilities, giving priority to
technologies at an affordable cost.

(viii) To provide accessible information to persons with disabilities about mobility

aids, devices and assistive technologies, including new technologies, as well as
other forms of assistance, support services and facilities.

(ix) To promote the training of professionals and staff working with persons with
disabilities in the rights recognized in this Convention so as to better provide
the assistance and services guaranteed by those rights.

The Convention further warrants and obligates all the signatories from ensuring that
the persons with disability are treated equally and not discriminated against, and lays
down the following principles in this regard17:

(i) Signatories recognize that all persons are equal before and under the law and
are entitled without any discrimination to the equal protection and equal
benefit of the law.

(ii) Signatories shall prohibit all discrimination on the basis of disability and
guarantee to persons with disabilities equal and effective legal protection
against discrimination on all grounds.

(iii) In order to promote equality and eliminate discrimination, signatories shall

take all appropriate steps to ensure that reasonable accommodation is
provided.

(iv) Specific measures which are necessary to accelerate or achieve de facto equality
of persons with disabilities shall not be considered discrimination under the
terms of the present Convention.

17 Convention on the Rights of Persons with Disabilities art. 5, 3 May 2008, 2515 U.N.T.S. 3.

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While Article 5 lays down a general rule for protection against discrimination, Articles
6 and 7 specifically lays down safeguards for women and children. By providing the
following measures to be undertaken by the signatories:

(i) “To take special measures with regards to women suffering from disability.

(ii) To ensure employment among women suffering from disability.

(iii) To ensure the full enjoyment by children with disabilities of all human rights and fundamental
freedoms on an equal basis with other children.

(iv) To take into account the best interests of the child as primary consideration.

(v) To ensure that children with disabilities have the right to express their views freely on all matters
affecting them, their views being given due weight in accordance with their age and maturity, on
an equal basis with other children, and to be provided with disability and age-appropriate
assistance to realize that right.”

Apart from this Convention in 2011, ‘World Report on Disability’ was jointly
produced by the World Health Organization and World Bank. This report highlights
the best practices that have been found to remove the social barriers in integration of
the disabled into the mainstream of the society. The report contains recommendations
and good practices that the governments should adopt in order to give full
implementation of the provisions of the CRPD.

Incheon Strategy, “To make the Right Real” for Persons with Disabilities in Asia and
Pacific. The Ministers and representative of members and associate members of the
United Nations Economic and Social Commission for Asia and the Pacific (ESCAP)
assembled at the High Level Inter Governmental meeting on the final review of the
implementation of the Asian and Pacific Decade of Disabled Persons, 2003-2012 held
at Incheon, Korea from 29th October – 2nd November, 2012 and adopted the
Incheon Strategy “Make the Right Real” for Persons with Disabilities in Asia and the
Pacific. The ESCAP in its 69th Session held from 25th April – 1st May, 2013 passed
the resolution endorsing the Ministerial declaration and Incheon Strategy18.

18http://www.disabilityaffairs.gov.in/upload/57301ed5a347fDisabilities_AR_2015-
16_%20English.pdf.

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The Incheon Strategy to make the Right Real for Persons with Disabilities in Asia and
Pacific sets out the following 10 goals:-

(i) Reduce Poverty and enhance work and employment prospects;

(ii) Promote participation in political processes and in decision making;
(iii) Enhance access to the physical environment, public transportation, knowledge,
information and communication;
(iv) Strengthen social protection;
(v) Expand early intervention and education of children with disabilities;
(vi) Ensure gender equality and women's empowerment;
(vii) Ensure disability-inclusive disaster risk reduction and management;
(viii) Improve the reliability and comparability of disability data;
(ix) Accelerate the ratification and implementation of the Convention on the Rights
of Persons with Disabilities and harmonization of National Legislation with the
Convention; and
(x) Advance sub-regional, regional and inter-regional co-operation.

Further in 2014, the Human Rights Council appointed a Special Rapporteur on the
Rights of Persons with Disabilities, with the following mandate19:

 “Developing regular dialogue with States and other relevant stakeholders for the
identification, exchange and promotion of good practices related to the realization of the rights
of persons with disabilities.

 Receiving and exchanging information and communications on violations of the rights of

persons with disabilities.

 Making recommendations on how to better promote and protect the rights of persons with
disabilities, including on how to promote development that is inclusive of and accessible to
persons with disabilities.

 Technical assistance in support of national efforts for the effective realization of the rights of
persons with disabilities.

19 ‘Special Rapporteur on the Rights of Persons with Disabilities’. 1996.

http://www.ohchr.org/EN/Issues/Disability/SRDisabilities/Pages/SRDisabilitiesIndex.aspx

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  Awareness-raising of the rights of persons with disabilities.

 Close cooperation with other UN mechanisms to advance the rights of persons with
disabilities.

 Integrating a gender perspective throughout the work of the mandate.

 Reporting annually to the Human Rights Council and the General Assembly.”

The decisive push for the Disability Convention came from Mexico in 2001. The UN
General Assembly responded by establishing an Ad Hoc Committee on a
Comprehensive and Integral International Convention on Protection and Promotion
of the Rights and Dignity of Persons with Disabilities (“Ad Hoc Committee” or
“Committee”), mandated to consider proposals for a specialized disability convention.
Composed of delegates from all UN Member States, the Committee held its first two
sessions in 2002 and 2003, with the broad participation of NGOs, disabled persons
organizations (DPOs), academia, UN agencies, intergovernmental organizations, and
national human rights institutions. In August 2006, the Committee agreed by
consensus on the final texts of both the draft Disability Convention and an Optional
Protocol. Both instruments were formally adopted by the Ad Hoc Committee at a
one-day resume session on November 25, 2006, whereupon they were sent to the
General Assembly for formal adoption at the close of its 61st Session in December
2006.

The foremost guiding principle of the Disability Convention is the necessity of civil
society participation in all treaty-related processes. The first and foremost highlight
was that the NGOs became full and active partners in the negotiation process,
authorized to make substantive statements on the UN floor following discussion of
each draft article. Second, the Member States were formally encouraged by the Ad
Hoc Committee to incorporate persons with disabilities and/or other experts on
disabilities into their official delegations at meetings, as well as to consult with them at
home in the preparatory process in establishing positions and priorities. Third, to
promote equal NGO representation from the richest and poorest countries, the
Committee established a UN Voluntary Fund on Disability to support the
participation of civil society experts from the least developed countries. The

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Convention, aims to transition disability policy away from a “medical” or “social
welfare” model based on sorting and separating persons with disabilities onto “parallel
tracks” or exclusive living spaces, toward a “social” or “human rights” model that
focuses on capability and takes inclusion, individual dignity, personal autonomy and
social solidarity as the principal points of departure. The Convention will thus require
States to think strategically about accessibility and reasonable accommodation for
persons with disabilities in all of these areas of life.

Figure VI: Initiatives undertaken by United Nations and Human Rights

Agencies towards Rights of the Disabled

Date Initiative concerning persons with disabilities

1948 Universal Declaration of Human Rights

1971 UN Declaration of the Rights of Mentally Retarded Persons

1975 UN Declaration on the Rights of Disabled Persons

1981 UN International Year of Disabled Persons

1982 Adoption of the World Program of Action on disabled

persons

1983-92 UN Declaration of the Decade of Disabled Persons

1984 Appointment of the first UN Special Rapporteur on

Disability

1993 Sub-Commission on Prevention of Discrimination and

Protection of Minorities releases special report, Human Rights
and Disabled Persons

1994 Committee on Economic, Social and Cultural Rights issues

General Comment No. 5, in which disability is treated as a
human rights issue

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1998 UN Commission on Human Rights passes a series of
resolutions linking human rights and disability (citizenship
status)

2002 First meeting of the UN Ad Hoc Committee to discuss a UN

convention on the rights and dignity of people with
disabilities

2003 Second meeting of the UN Ad Hoc Committee and the

establishment of a Working Group to consider the content of
a UN convention on the rights and dignity of people with
disabilities

January, The working group met and produced a working draft of the
May/June, convention text, taking into account the numerous draft texts
August/September submitted by States and others.
2004 – Third session of the Ad Hoc Committee. The Committee
conducted a first reading of the working group draft. The Ad
Hoc Committee discussed whether it should meet in closed
session in the future or in the presence of civil society
organizations and national human rights institutions.

Fourth session of the Ad Hoc Committee. The Committee

completed the first reading of the draft text and started the
second reading. The participation of civil society
organizations and national human rights institutions in the
sessions of the Committee was confirmed although the right
to intervene was limited.

January/February The Fifth session of the Ad Hoc Committee held informal

2005, August 2005 consultations on specific draft articles. Civil society
organizations, national human rights institutions and inter-
governmental organizations were allowed to attend the

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 informal consultations although only States had a right to
intervene.

The Sixth session of the Ad Hoc Committee completed the

second reading of the draft text. The Chairperson prepared a
revised text, reflecting debate at the third, fourth and fifth
sessions for presentation at the seventh session of the
Committee.

January 2006, May- The Seventh session of the Ad Hoc Committee completed a
August 2006, first reading of the Chairperson’s text.
August 2006, Mexico led informal consultations on international
September – monitoring.
November 2006,
The Eighth session of the Ad Hoc Committee finalized
December 2006
negotiations on the draft Convention and a separate Optional
Protocol, and adopted the texts ad interim subject to a
technical review being undertaken by a drafting committee
consisting of State representatives.

Liechtenstein convened the drafting group which undertook

a technical review to ensure uniformity of terminology
throughout the text and to harmonize the versions in the six
official languages of the UN.

The resumed Eighth session of the Ad Hoc

Committee adopted the final draft of the Convention and its
Optional Protocol with the technical amendments suggested
by the drafting committee.

13 December 2006 The UN General Assembly adopted by consensus the

Convention on the Rights of Persons with Disabilities and its
Optional Protocol.

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30 March 2007 The Convention and Optional Protocol opened for signature
at the UN Headquarters in New York. States or regional
integration organizations may now sign the Convention and
Optional Protocol at any time at UN Headquarters in New
York. Signature creates an obligation, in the period between
signature and ratification or consent to be bound, to refrain
in good faith from acts that would defeat the object and
purpose of the treaty.

27-29 November Expert Group Meeting: “Making it work: civil society

2007 participation in the implementation of the Convention on the
Rights of Persons with Disabilities”, Madrid, Spain.

3 April 2008 The Convention on the Rights of Persons with Disabilities

received its 20th ratification on 3 April 2008, triggering the
entry into force of the Convention and its Optional Protocol
30 days later.

3 May 2008 The Convention on the Rights of Persons with Disabilities

and Optional Protocol entered into force. This marked a
major milestone in the effort to promote, protect and ensure
the full and equal enjoyment of all human rights and
fundamental freedoms of persons with disabilities, and to
promote respect for their inherent dignity.

12 May 2008 Public commemorative event was held at United Nations

headquarters in New York to celebrate the entry into force of
the Convention and Optional Protocol.

19-22 May 2008 The United Nations Economic Commission for Africa
(UNECA) and Leonard Cheshire Disability are organizing a
conference on the Convention in Addis Ababa, Ethiopia.

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 6 -17 September United Nations, Sports and the Paralympic Games:
2008 Promoting Human Rights, Development and the Ideals of
Humanity (Paralympic Games: Beijing, China).

15-17 September Statement of the Millennium Development Goals and

2008 Disability Africa Regional Conference, Nairobi, Kenya.

23-25 and 29-30 Focus 2008 Treaty Event Towards Universal Participation
September 2008 and Implementation - Justice For All of Us at UN
Headquarters in New York.

31 October and 3 First meeting of the Conference of States parties to the

November 2008 Convention on the Rights of Persons with Disabilities.

3 December 2008 International Day of Persons with Disabilities. Theme:

"Convention on the Rights of Persons with Disabilities:
Dignity and justice for all of us", New York.

6 February 2009 Panel Discussion on "Mainstreaming Disability in

Development Cooperation: experience, vision and future",
New York.

4 -13 February 47th Session of the Commission for Social Development,

2009 New York.

1-3 September 3rd session of the Conference of States Parties to the

2010 Convention on the Rights of Persons with Disabilities

(Source: http://www.un.org/disabilities/default.asp?id=15320)

20 ‘History of United Nations and Persons with Disabilities - The First Millennium Decade’.
http://www.un.org/disabilities/default.asp?id=125.

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2.2 Rights of the Disabled under the European Union

The European approach towards disability rights projects a very unique feature, as the
European Union is an assimilation of the social welfare state and a laissez-faire
economy. Devastated by the Second World War, the European Union was formed as
a measure of trust building and for the social and political unification of Europe. The
approaches toward disability rights have thus grown with the consolidation of this
mutual trust and socio-political unification. The European model is more interesting
in as much as it enforces welfare measures for disabled across a much diversified group
of nations.

The first effort in this regard was seen in the European Convention on Human Rights.
The European Convention on Human Rights came into force in the year 1953. It is
an international convention on human rights which binds the members of the Council
of Europe. The ratification of this treaty is the prerequisite to being admitted into the
European Union. The Treaty along with its various protocols guarantees a plethora of
certain civil, political and social rights to people residing in its member states.

Unlike other international treaties, this convention creates an obligation on the states
towards their citizens to honor the provisions of this convention. It allows the citizens
to have access to judicial remedy against any violation of the rights that have been
enumerated under this Convention, thus converting this convention into a living
document.21

The judgments and orders of the European Court of Human Rights have a binding
value on member states. Since its inception the Court has delivered 12,000 judgments
and helped create a dynamic jurisprudence in the field of human rights, which can be
adhered and imitated in the constitutional laws of other jurisdictions as well.22

In pari materia to the approach adopted by the Supreme Court of India, the European
Court of Human Rights has also strived to adopt an interpretation which gives the

21 ‘European Union Human Rights Convention’. http://www.coe.int/en/web/human-rights-

convention.
22 ‘Human Rights Convention Landmark Judgments’. http://www.coe.int/en/web/human-rights-

convention/landmark judgments.

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widest amplitude to the rights mentioned under the Articles of the European
Convention on Human Rights.

As a result of such purposive approach adopted by the Court, it has been able to touch
upon not only political rights but also addressed varies social issues. One of such issues
being the rights of the disabled persons. By reading between the lines and adopting a
practical approach and supplying the essence of equality in aid of disabled persons, the
Court has not only raised awareness and sensitize the governing structure of the
European Union towards the plight of this class, it has also provide a guidance towards
adopting best practices in dealing with disabled citizens by defining disability.

2.2.1 History of Development of Disability Rights in the European Union

The European Union’s approach towards disability has developed as the age of
European Union has progressed. The earlier approach towards disability rights owing
to the nascent stage of European Union was through soft law measures.

In this, the first concrete formal step taken by the European Union in dealing with
disability was Council Resolution Concerning a Social Action Program. By way of this
resolution, the member states had to take steps which would promote equality in
workplace employment, economic freedom was to be considered as an end to itself,
with special emphasis on seeking employment opportunities for vulnerable sections.

In pursuance to this Resolution, the member states had to make priorities while
framing any policy with regards to employment. Further another effort was made
through establishment of institutions like European Network and Rehabilitation
Centers. However these policies failed to make any impact due to the basic lacuna in
this Resolution of the absence of any binding value. In the absence of any timeline or
any binding feature, no effort was made to comply with its provision. Further it infused
an agenda of charity in dealing with disability rights.23

With the passage of time, as the ties of European Union member states begin to
cement and as members started reposing more faith in each other, an effort was made

23‘Council of the European Communities’, Council Resolution of 21 January 1974 concerning a social
action programme, http://eur-lex.europa.eu/legal-content/GA/TXT/?uri=CELEX:31974Y0212
(01).

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through passage of secondary legislations like Commission and Proposal for a Council
Directive on Minimum Requirement to Improve the Mobility and Safe Transport to
Work. This legislation recognized that equal employment opportunities also included
equal opportunities to be able to travel to workplace and made provisions for the
disabled in public transport. It focused on integration of the disabled into the
employment market and aimed at covering all individuals with reduced mobility,
whether as a result of a motor, physical, sensory or mental handicap.24 However as can
be seen with the manner in which disability has been defined in this legislation, the
focus was on addressing medical model of disability, rather than addressing social
model of disability.

But the approach from medical model to social model started shifting with the advent
of European Disability Forum.25 The forum is an NGO which represents the interests
of the disabled people in the European Union, considers disability as human rights
issue and recognizes the role played by social institutions resulting in denial of disability
rights. The forum contributed in the creation of European Union Human Rights
Agency. The group has had a substantial contribution in determining policy measures,
data collection assessment of vulnerable groups and generating awareness. The forum
is a bridge through which the American social model of disability has entered the
European Union, by emphasizing on accommodation rather than charity.26

The changing approach towards social model was further strengthened by the creation
of High Level Group of Member State’s Representative on Disability and Commission
Green Paper on European Social Policy.

This approach changed with the establishment of the European Disability Forum,
which through advocacy from the US introduced the social model, which is evident
from the report of the Commission Green Paper on European Social Policy. European

24 ‘European Commission – Press Release’ http://europa.eu/rapid/press-release_P-91-3_en.htm.

25 European Disability Forum, ‘The Voice of Persons with Disabilities in Europe’ http://www.edf-
feph.org/Page_Generale.asp?DocID=8860&langue=EN&namePage=about.
26 European Disability Forum, ‘European Disability Forum Response to the Commission

communication on the Fundamental Rights Agency’

http://ec.europa.eu/justice/news/consulting_public/0011/contributions/contribution_european_dis
ability_forum_en.pdf.

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Commission Disability Strategy in 1996 has laid emphasis on accommodation rather
than on charity.

The first major binding force in the field of disability rights came from the Treaty of
Amsterdam.27

The approach has been further consolidated by the Council Directive 2000/78/EC,
which to quote has made the following provisions for the disabled28:

“The Community Charter of the Fundamental Social Rights of Workers recognizes the importance
of combating every form of discrimination, including the need to take appropriate action for the social
and economic integration of elderly and disabled people…The Employment Guidelines for 2000
agreed by the European Council at Helsinki on 10 and 11 December 1999 stress the need to foster
a labor market favorable to social integration by formulating a coherent set of policies aimed at
combating discrimination against groups such as persons with disability. They also emphasize the need
to pay particular attention to supporting older workers, in order to increase their participation in the
labor force…Discrimination based on religion or belief, disability, age or sexual orientation may
undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high
level of employment and social protection, raising the standard of living and the quality of life, economic
and social cohesion and solidarity, and the free movement of persons…To this end, any direct or
indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the
areas covered by this Directive should be prohibited throughout the Community. This prohibition of
discrimination should also apply to nationals of third countries but does not cover differences of
treatment based on nationality and is without prejudice to provisions governing the entry and residence
of third-country nationals and their access to employment and occupation…The provision of measures
to accommodate the needs of disabled people at the workplace plays an important role in combating
discrimination on grounds of disability…This Directive does not require the recruitment, promotion,
maintenance in employment or training of an individual who is not competent, capable and available
to perform the essential functions of the post concerned or to undergo the relevant training, without
prejudice to the obligation to provide reasonable accommodation for people with disabilities…Moreover,

27 Summaries of EU Legislation, ‘Fundamental Rights and Non-Discrimination’ http://eur-

lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:a10000
28 The Council of the European Union, ‘Council Directive 2000/78/EC of 27 November 2000

establishing a general framework for equal treatment in employment and occupation’, http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0078:en:HTML

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in order that the Member States may continue to safeguard the combat effectiveness of their armed
forces, they may choose not to apply the provisions of this Directive concerning disability and age to all
or part of their armed forces. The Member States which make that choice must define the scope of that
derogation…Appropriate measures should be provided, i.e. effective and practical measures to adapt
the workplace to the disability, for example adapting premises and equipment, patterns of working
time, the distribution of tasks or the provision of training or integration resources…In very limited
circumstances, a difference of treatment may be justified where a characteristic related to religion or
belief, disability, age or sexual orientation constitutes a genuine and determining occupational
requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances
should be included in the information provided by the Member States to the Commission…The
prohibition of discrimination should be without prejudice to the maintenance or adoption of measures
intended to prevent or compensate for disadvantages suffered by a group of persons of a particular
religion or belief, disability, age or sexual orientation, and such measures may permit organizations of
persons of a particular religion or belief, disability, age or sexual orientation where their main object
is the promotion of the special needs of those persons…In its Recommendation 86/379/EEC of 24
July 1986 on the employment of disabled people in the Community(7), the Council established a
guideline framework setting out examples of positive action to promote the employment and training
of disabled people, and in its Resolution of 17 June 1999 on equal employment opportunities for
people with disabilities(8), affirmed the importance of giving specific attention inter alia to recruitment,
retention, training and lifelong learning with regard to disabled persons…This Directive lays down
minimum requirements, thus giving the Member States the option of introducing or maintaining more
favorable provisions. The implementation of this Directive should not serve to justify any regression in
relation to the situation which already prevails in each Member State…The effective implementation
of the principle of equality requires adequate judicial protection against victimization…The rules on
the burden of proof must be adapted when there is a prima facie case of discrimination and, for the
principle of equal treatment to be applied effectively, the burden of proof must shift back to the
respondent when evidence of such discrimination is brought. However, it is not for the respondent to
prove that the plaintiff adheres to a particular religion or belief, has a particular disability, is of a
particular age or has a particular sexual orientation…”

Therefore the directive aims at making positive provisions for enforcing disability
rights and makes promotion of disability rights as an alter ego of equal treatment and
equal protection guaranteed under the ECHR. The wording of Articles 5 and 10 leaves
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a very valuable clue in defining the European approach in dealing with the rights of
disabled, in so far as it makes not providing reasonable accommodation as an act of
discrimination. This is a peculiar feature of the European approach which makes
reasonable accommodation a negative right rather than a positive right, thereby
adopting an indirect approach, where while a disabled may not get preference in the
form of reservation as is the case in India, but may claim equality by ensuring that
education as well as employment conditions provide a fair ground to him/her. Further,
by putting the burden of proof on the employer, the right to be reasonably
accommodated gets strengthened.

Another important step towards dealing with disability rights has been shown in the
European Disability Strategy 2010-2020, which is a watershed moment in dealing with
disability in European Union and therefore has been dealt separately, in this chapter.

2.2.2 Statistical analysis of Disability in European Union

The European Union Labor Force conducted a survey in 2011,29 which highlights the
trend of disability that exists throughout various members of the European Union.
The results of this survey would be helpful in better understanding of the initiatives
taken by the European Union in dealing with disability as a form of social
discrimination. For the purpose of this survey two definitions of disability was used,
the first definition defined persons with disabilities as those having basic activity
difficulty, while the second definition defined persons with disabilities as those who
are limited in the work they can do because of a longstanding health problem and/or
a basic activity difficulty.

The first definition being more apt in highlighting how disability result in social
discrimination, according to this definition at present 14.1% of the working population
of European Union suffers from disability. Therefore at present 45 million people in
European Union aged between 15 and 64 are suffering from disability in accordance
with this definition; however this data has to be seen in light of the data of the same

29Eurostat, ‘Employment of the Disabled people’

http://ec.europa.eu/eurostat/documents/3888793/6802087/KS-TC-14-007-EN-N.pdf/5c364add-
6670-4ac9-87c7-9b8838473a7b

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survey which was conducted in 2002, according to which persons suffering from
disabilities in European Union comprised 80 million of the population.30

Further according to this definition, disability was more among women in comparison
to men. 46 percent of disabled people lived with a partner, 22 percent live as a single
adult, with 32 percent people living in other types of household.

The employment rate according to this definition, was 47 percent, which was 20
percent below in comparison to persons not having any disability; as a result, 46
percent of persons with disabilities were inactive. However the effect of disability on
employment was less profound on the female workforce. The survey established that
the relation between disability and unemployment was proportional to the nature of
disability, with disabilities in which disabled person required any special working
environment, were more likely to result in unemployment. Approximately 15 percent
of the disabled persons were working from home and 26 percent were employed as
part time workers.31

As such the survey confirms the social model of disability, wherein social barriers
resulted in disability rather than medical causes. Further it also would highlight that
somehow discrimination against disabled would also depend on the economic health
of the organization as well, since economically sound organizations would be able to
make provisions for special working arrangements for persons with disability. It is in
this light only that further policy initiatives taken by the European Union would have
to be seen.

The most difficult and the most important task while dealing with rights of disabled
persons has been defining disability. In order to understand what constitutes as
disability, it would be appropriate to refer to how the European Court of Human
Rights has defined disability. Why the decision of the European Court is being referred
to is because most of the European Conventions do not define disability and hence in

30EU Labour Force Survey Ad hoc Module on Employment of Disabled people (LFSAHM 2002).
31 Eurostat, ‘Disability statistics - prevalence and demographics’,
http://ec.europa.eu/eurostat/statistics-explained/index.php/Disability_statistics_-
_prevalence_and_demographics.

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order to understand how European Union defines disability regards will have to be
made to the decision of the European Court.

In this context it would be appropriate to refer to the case of Chacon Navas32. In this
particular case the Applicant was removed from employment on account of her
sickness. Aggrieved she agitated the issue before the Spanish Court which, in turn, in
light of the fact that no definition of disability existed decided to refer the matter to
the ECJ. The Court defined disability as:

“As is apparent from Article 1, the purpose of Directive 2000/78 is to lay down a general framework
for combating discrimination based on any of the grounds referred to in that article, which include
disability, as regards employment and occupation.

In the light of that objective, the concept of disability for the purpose of Directive 2000/78 must, in
accordance with the rule set out in paragraph 40 of this judgment be given an autonomous and uniform
interpretation.

Directive 2000/78 aims to combat certain types of discrimination as regards employment and
occupation. In that context, the concept of ‘disability’ must be understood as referring to a limitation
which results in particular from physical, mental or psychological impairment and which hinders the
participation of the person concerned in professional life.

However, by using the concept of ‘disability’ in Article 1 of that directive, the legislature deliberately
chose a term which differs from ‘sickness’. The two concepts cannot therefore simply be treated as being
the same.

Recital 16 in the preamble to Directive 2000/78 states that the ‘provision of measures to
accommodate the needs of disabled people at the workplace plays an important role in combating
discrimination on grounds of disability’. The importance which the Community legislature attaches to
measures for adapting the workplace to the disability demonstrates that it envisaged situations in which
participation in professional life is hindered over a long period of time. In order for the limitation to
fall within the concept of ‘disability’ it must therefore be probable that it would last for a long time.

32 ‘Opinion in Case C-13/05 - Sonia Chacón Navas v Eurest Colectividades SA’,

http://csdle.lex.unict.it/docs/labourweb/Opinion-in-case-C-1305---Sonia-Chacn-Navas-v-Eurest-
Colectividades-SA/1112.aspx.

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There is nothing in Directive 2000/78 to suggest that the workers are protected by the prohibition of
discrimination on grounds of disability as soon as they develop any type of sickness.”

From the above, the following conclusion can be drawn as to the European approach
towards rights of the disabled persons-

(i) Disability is not merely a medical condition but a social condition.

(ii) Since disability is a social condition, the approach towards dealing with
disability has been indirect.

(iii) Affirmative action rather than being limited to providing reservation has been
targeted towards developing a non-discriminating work environment.

(iv) Affirmative action would not be limited to only work places but is also
extended to the policy making.

(v) The European Convention on Human Rights rather than placing a positive
obligation imposes a negative obligation on the policy makers to take care of
the needs of the disabled.

(vi) However, the State while making the policy may enjoy a degree of flexibility in
allocation of resources.

2.2.3 European Disability Strategy 2010-2020

The European Disability Strategy 2010-2020, is a follow up of the ‘Independent Living

of People with Disabilities’. It represents the major policy reforms to be introduced in
the modern era, to remove discrimination based on disability. The strategy is a direct
result of the European Union signing the United Nations Convention on the Rights
of Persons with Disabilities.

The Strategy aims at empowering the disabled and finding solutions to help them in
enjoying their rights and ensuring their participation, further to implement the
provisions of the UNCRPD. The policy further lays stress on funding, research and
creation of awareness.

The unique feature of this strategy has been that it has been connected with the goals
sought to be achieved under European 2020 strategy. Thus, effectively it has linked

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the development of disabled to the development of whole of European Union, rather
than isolating the interests of persons with disability. Further, it is based on a joint
commitment of the member states, hence fixing individual responsibility on each of
the member states. 33

The policy aims at increasing participation by-

 Overcoming obstacles to the mobility of people with disabilities- as

individuals, consumers, students and economic and political actors.

 Guaranteeing the quality of hospital care and accommodation in residential

institutions, finance by the Structural Funds.

 Guaranteeing accessibility of organizations, venues and services, including

those relating to sports and culture.

Participation on the above grounds ensures that a disabled person has the right to
choose where he wants to live, in as much as it aims at promoting a uniform policy to
be followed by the member states.

The Strategy emphasizes on equality and is against discrimination in matters of

opportunity of employment and work conditions. For this the policy aims at
encouraging self-employment, along with intra-job mobility, apart from concentrating
on the traditional labor market.

Thus the main focus of the strategy has been to increase more and more accessibility.
The policy sees accessibility in a very inclusive sense. According to it accessibility
includes providing subtitles by TV broadcasters, to providing cheaper machinery and
subsidizing facilities which result in inclusion of persons with disability at the
workplace. This strategy aims at providing accessibility at the following level34-

 Accessibility at social institutions by removing the stigma as well as an attitude

of charity towards a person with disability.

33 ‘European Disability Strategy’, http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=URISERV:em0047.
34 Stelios Charitakis, An Introduction to the Disability Strategy 2010-2020, with a Focus on Accessibility, (2015),

http://www.nuigalway.ie/dream/downloads/an_introduction_to_the_disability_strategy_20102020_
with_a_focus_on_accessibility.pdf.

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  Accessibility by making affordable the special facilities that are required by a
person with disability.

 Accessibility by removing any form of physical barriers that stop the integration
of person with disability with the rest of the society.

 Accessibility towards gaining information like the rest of the society, and to be
able to communicate and integrate them with the rest of the society.

Hence, it can be seen that this Strategy marks a watershed moment in dealing with
disability and brings out the European approach towards persons with disability.

2.3 United Kingdom Approach towards the Right of the Disabled

United Kingdom being a member of European Union is bound by all the directives of
the European Union, thus the approach of European Union as shown earlier would
apply to the English condition also. However, as has been shown in the previous
section, the European Courts have given a considerable margin of appreciation to the
local authorities to adopt their laws with regards to equality provisions, also some
feature which is going to be highlighted below the English approach and not covered
in the General Directive, which makes it relevant to dedicate a separate section to the
this approach.

Earlier the positive law governing the field of disability rights in U.K. was the Disability
Act, however this Act has now been replaced by the Equality Act, 2010. Equality Act
in comparison to the Disability Act, reflects steps towards adoption of social model
while dealing with disability. The Act under Section 6 defines disability to mean-

“A person (P) has a disability if:

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry
out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability.

(3) In relation to the protected characteristic of disability:

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 (a) a reference to a person who has a particular protected characteristic is a reference to
a person who has a particular disability;

(b) a reference to persons who share a protected characteristic is a reference to persons

who have the same disability.

(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a
disability as it applies in relation to a person who has the disability; accordingly (except in
that Part and that section):

(a) a reference (however expressed) to a person who has a disability includes a reference
to a person who has had the disability, and

(b) a reference (however expressed) to a person who does not have a disability includes
a reference to a person who has not had the disability.

(5) A Minister of the Crown may issue guidance about matters to be taken into account in
deciding any question for the purposes of subsection (1).

(6) Schedule 1 (disability: supplementary provision) has effect.”

Section 15 of this Act highlights conduct that may be said to constitute as

discrimination to a disabled, which reads as-

(a) “A person (A) discriminates against a disabled person (B) if:

a. A treats B unfavorably because of something arising in consequence of B’s disability,

and

b. A cannot show that the treatment is a proportionate means of achieving a legitimate

aim.

(b) Subsection (1) does not apply if A shows that A did not know, and could not reasonably
have been expected to know, that B had the disability.”

Not only does this Act prohibit discrimination which is apparent on its face, but
Section 19 of the Act also prohibits discrimination which might be subtle and not
direct, therefore the Act makes the following provision in this regard –

(a) “A person (A) discriminates against another (B) if A applies to B a provision, criterion or
practice which is discriminatory in relation to a relevant protected characteristic of B’s.

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 (b) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in
relation to a relevant protected characteristic of B’s if:

(i) A applies, or would apply, it to persons with whom B does not share the
characteristic,

(ii) it puts, or would put, persons withwhom B shares the characteristic at a particular
disadvantage when compared with persons with whom B does not share it,

(iii) it puts, or would put, B at that disadvantage, and

(iv) A cannot show it to be a proportionate means of achieving a legitimate aim.

(c) The relevant protected characteristics are:

(i) age;

(ii) disability;

(iii) gender reassignment;

(iv) marriage and civil partnership;

(v) race;

(vi) religion or belief;

(vii) sex;

(viii) Sexual orientation.”

Section 20 of the Act casts a duty on authorities to make adjustments for disabled
persons by satisfying the following requirements:

(i) To take steps to avoid a practice which puts a disabled person at a substantial
disadvantage in relation to a relevant matter in comparison with persons who
are not disabled.

(ii) To take steps to remove a physical feature which puts a disabled person at a
substantial disadvantage in relation to a relevant matter in comparison with
persons who are not disabled.

(iii) To take steps to provide for auxiliary aid that would remove discrimination
caused by the absence of such auxiliary aid.

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These requirements create a binding duty on the authorities and the employers, and
any failure to comply with these requirements would constitute discrimination and
violation of the provisions of this Act, in accordance with Section 21.

The concept of reasonable adjustment as provided under this Act has been explained
by Daniel Holt in his article Reasonable Adjustment Explained35in the following words-

“There are two types of reasonable adjustments: reactive and anticipatory.

Reactive Duty- In the context of employment and let premises, the duty is reactive in
nature as it is only triggered when the disabled person demonstrates a need for
assistance. There is no duty to anticipate difficulties and possible barriers before
receiving a request for reasonable adjustments by an interested disabled person.

This, according to the author, takes into account the following four factors-

(i) Interested Disabled Person

(ii) Substantial Damage

(iii) The Knowledge Requirement

(iv) Reasonableness

Anticipatory Duty- The anticipatory duty to provide reasonable adjustment relates

to services and public functions, education providers and associations. It does not
apply in the employment context, although it is argued that adjustments may be made
through indirect discrimination. The duty acts differently to reactive duties, as duty-
bearers are required to anticipate barriers that their operations present and take steps
to reduce or remove the obstacles. It, therefore, acts in advance of the appearance of
a disabled person. This, however, does not mean that the duty-bearers will not be
required to make additional adjustments in reaction to the appearance of a disabled
person where necessary. The distinction between reactive and anticipatory duties to
provide reasonable adjustments is not clear from the Act itself but is inferred given
the use of the phrase ‘disabled persons’ as opposed to the singular ‘a disabled person’.

35 Daniel Hold, ‘Reasonable Adjustment Explained’ Being Disabled in a Normal Society,

http://www.beingdisabledinanormalsociety.co.uk/human-rights/discrimination/reasonable-
adjustment/.

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This concept would cover the following subjects-

(i) Disabled persons

(ii) Reasonableness

(iii) Defenses

The concept of reasonable adjustment has been under a lot of scrutiny before the
English Courts, which have interpreted it in its various judgments, which are being
discussed below, so as to throw light on how the English Law with regards to
reasonable adjustment has developed in the U.K.

2.3.1 Supreme Court of United Kingdom and disability rights

I. SCA Packaging Ltd v Boyle36

Facts of the Case-

The facts of the case as outlined in the opinion of Lady Hale are37-

The Respondent was an employee working at SCA Packaging, the Appellant before
the House of Lords. The Respondent was suffering from vocal nodes and in
December 1991 she consulted an ENT surgeon who advised her to rest her voice.

The Doctor advised her follow a certain regime, which highlighted in the judgment
included –“sipping water throughout the day to counteract dry, warm and sometimes smoky
environments, increasing humidity, ceasing throat clearing, avoiding certain foods and liquids which
affect the voice adversely, reducing the length of telephone calls and staggering them, trying not to shout
or raise the voice over distance or above other noise, turning off or moving away from background noise,
refraining from singing and humming, resting the voice at key points throughout the day especially
when it had been heavily used or had deteriorated, avoiding passive smoking, exercising regularly to
improve breath support and overall well-being, and taking time to relax.”

Due to her strict observance of this condition she did not suffer from vocal nodes
again. However, in the month of September 2000, with the coming of new
management, it was decided that the partition which separated her from rest of the

36 SCA Packaging Limited v Boyle, (2009) UKHL 37.

37 ibid 55-59.

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office needs to be brought down. This according to the Respondent was likely to cause
adverse effect to her condition. It has to be appreciated that according to the
Respondent herself, she was not suffering from any disability but it was her contention
that the change in her work environment may trigger her disability. Whether such
likelihood of disability constituted disability under Section 1 of the Disability Act38,
was the question before the House of Lords?

Decision of the Court-

Lady Hale in her opinion has answered the question whether any future disability can
be termed to be a disability under the Disability Act and what should be test to
determine, this future probability. Her opinion is reproduced below as follows –

66. “Nevertheless, the English case law has until now adopted this approach. In Latchman v.
Reed Business Information Ltd [2002] ICR 1453, the Employment Appeal Tribunal
concluded that an effect was not “likely” to recur if the risk of recurrence was about 50%.
That test was simply repeated by the EAT in Swift v. Chief Constable of Wiltshire
Constabulary [2004] ICR 909, at para 28, referring both to Latchman and to the
Guidance. There is a more extended discussion in Eastern and Coastal Kent PCT v. Grey,
UKEAT/0454/08/RN, at paras 18 to 23, where the EAT considered that it meant
something other than “may” or “might” (para 22) but nevertheless concluded, somewhat
mysteriously, that the use of the word “would” by the Tribunal showed that a higher threshold
had been reached than was required by the word “likely” (para 23). Not only that, in
Cunningham v. Ballylaw Foods Limited [2007] NICA 7, para 11, the Northern Ireland
Court of Appeal also cited para B7 of the Guidance with apparent approval. So it would
appear that, until this case, the Guidance has met with an uncritical response on both sides
of the Irish Sea, although only in Latchman was it decisive of the outcome.

38 “Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he
has a physical or mental impairment which has a substantial and long-term adverse effect on his ability
to carry out normal day-to-day activities.”
Paragraph 6(1) of Schedule 1 to the 1995 Act provides:
“An impairment which would be likely to have a substantial adverse effect on the ability of the person
concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to
treat or correct it, is to be treated as having that effect.”

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67. In this House, we start with a clean slate. The Guidance has, of course, to be taken seriously
into account when it deals with the factual matters which are relevant to the application of
the legal tests. It is common for statutory Guidance to try to explain, not only how the
legislation should be put into effect by the people who have to apply it, but also what the
legislation means. But that is simply being helpful to practitioners who are not lawyers and
may never read the legal texts. Statutory construction remains a matter for the courts, not for
Departmental Guidance. If the court considers that the Guidance is a mis-statement or mis-
application of what Parliament has enacted, then it must say so.

68. It is significant that, apart from the EAT decisions cited above, our attention has been drawn
to no case in which “likely” has been held to mean “more likely than not". This is scarcely
surprising, as Parliament can always use the word “probable” if that is what it means.
In Cream Holdings Ltd v. Banerjee [2004] UKHL 44, [2005] 1 AC 253, Lord
Nicholls of Birkenhead said this, at para 12:

“As with most ordinary English words “likely” has several different shades of meaning. Its
meaning depends upon the context in which it is being used. Even when read in context, its
meaning is not always precise. It is capable of encompassing different degrees of likelihood,
varying from ‘more likely than not’ to ‘may well'.”

In that case, the House related the degree of likelihood of success at trial, required by section
12(3) of the Human Rights Act 1998, to the potential adverse effects of disclosure. This is
very similar to the position in child care cases, where the degree of likelihood of harm required
by section 31(2) of the Children Act 1989 is related to the seriousness of the consequences if
nothing is done. As Lord Nicholls said in In re H (Minors) (Sexual Abuse: Standard of
Proof) [1996] AC 563, at p 585:

“The context shows that ... likely is being used in the sense of a real possibility, a possibility
that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in
the particular case.”

69. There are very good reasons for concluding that, in this case too, Parliament did not intend
that “likely” should mean “more likely than not". We are used, in civil proceedings, to
deciding whether or not something has happened in the past “on the balance of probabilities".
We ask ourselves whether it is more likely than not that something happened. We usually

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 have a good deal of evidence to help us decide what went on. Once we have done so the event
is treated as a fact: it was probable, therefore it was certain: see, for example, in re B
(Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008]
UKHL 35, [2009] 1 AC 11, per Lord Hoffmann, at para 2.

70. But predictions are very different from findings of past fact. It is not a question of weighing
the evidence and deciding whom to believe. It is a question of taking a large number of different
predictive factors into account. There are cases, as my noble and learned friend Lord Rodger
of Earlsferry points out, in which the doctors can predict with all too much confidence what
will happen to the patient. But in many others, putting numbers on what may happen in the
future is a guessing game. Who can say whether something is more than a 50/50 chance?
That is what the doctor in Latchman found so difficult. But assessing whether something is
a risk against which sensible precautions should be taken is an exercise we carry out all the
time. As Girvan LJ put it in the Court of Appeal, at para 19:

“The prediction of medical outcomes is something which is frequently difficult. There are many
quiescent conditions which are subject to medical treatment or drug regimens and which can
give rise to serious consequences if the treatment or the drugs are stopped. These serious
consequences may not inevitably happen and in any given case it may be impossible to say
whether it is more probable than not that this will occur. This being so, it seems highly likely
that in the context of paragraph 6(1) in the disability legislation the word “likely” is used
in the sense of “could well happen”.”

It has often been emphasized in the cases that the burden of proving disability rests with the
applicant, who must bring medical evidence to establish this. Witnesses from any branch of
medicine (including the professions related to medicine such as speech therapy) will be far more
comfortable with assessing the reality of the risk rather than putting precise percentages upon
it”.

71. Furthermore, as Mr. Allen points out, the finding of disability is a threshold. In most cases,
the question is whether the employer should have made reasonable adjustments to cater for
the disability. The real issue in this case is whether it was reasonable to expect the employer
to continue to adjust the working environment to take account of Mrs. Boyle’s problems with
her voice or whether it was not. The employer needs to know this in real time, and not to
have to wait until a Tribunal has heard all the evidence and reached a conclusion about what

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 is more likely than not to happen in the future. As with the child care cases, the question
here should be, are these adverse effects sufficiently likely to require us to consider what, if
any, adjustment should be made to take account of them?”

Therefore, in the opinion of Lady Hale, the consideration here would be to see
whether there is a possibility of the event likely to occur or not? However, likelihood
shall be differentiated from probabilities and would also exclude all the possibilities
that the event may not occur, in this context the Court would adopt a welfare approach
and construe the requirement as a preemptory requirement.

At this point it would also be right to refer the opinion of Lord Brows, where he
observes as follows-

77. “If someone is a “disabled person” within the meaning of the Disability Discrimination Act
1995 others must in certain defined circumstances “make reasonable adjustments” in relation
to him. If not disabled, however, the person can look to no such consideration. Take this
respondent. No one disputes that during the relevant period, and indeed for some years
beforehand, she had on medical advice submitted herself to a strict management regime in
order to save her voice and prevent nodules recurring on her vocal cords. (Others of your
Lordships have fully recounted the facts of this appeal and no purpose whatever would be
served by my restating them, or indeed the governing legislation, again.) If disabled, she could
look to the appellants, her employers, to “make reasonable adjustments” in determining the
particular circumstances and conditions of her employment. For example, she might
reasonably have been entitled to expect the appellants to take note of her voice management
regime and not, say, subject her to changed circumstances requiring her to shout, or engage in
long or frequent telephone calls, or work in a smoky or otherwise polluted atmosphere, or
whatever else. If, however, she was not to be regarded as disabled, her employers would be free
of these constraints.

78. It is in this context that your Lordships are called upon to decide the true meaning and
application of the word “likely” where it appears in paragraph 6(1) of Schedule 1 to the
1995 Act—or for that matter in paragraph 2(2) of the Schedule although, as Lady Hale
helpfully points out, that paragraph serves a quite different purpose. Assume a serious risk
exists that, but for an employee’s observance of whatever measures are being taken to treat or
correct an impairment (in this case the management regime designed to combat the

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 respondent’s propensity to develop vocal nodules), the substantial adverse effects of that
impairment would recur, is it really to be said that, unless the risk can be shown to amount
actually to a probability, the employer (subject only to ordinary employment law
considerations) can simply ignore the employee’s condition and take no steps whatever,
however ostensibly reasonable, to accommodate the employee’s need to continue the treatment
measures? To my mind, plainly not. It is sufficient to establish that, were the treatment regime
to be materially disrupted, the severe disabling effects could well recur. Such a finding would
carry with it a requirement of cooperation on the employer’s part. So much for the substantive
issue for decision.”

The approach adopted by Lord Brown is that of reasonable accommodation, wherein

he has extended the requirement of reasonable accommodation to not only deal with
disability that exists in present but which may come if reasonable accommodation is
not made take form in future.

Relevance of the Judgment

As has been pointed above the judgment and extends the test social consequence of
disability to functional ability model of disability under the Disability Act. While the
medical model sees disability as a result of the defect of an individual the social model
would see disability more broadly and analyze how the functioning of the society
makes an individual disabled and favors the concept of disabled. To better understand
this concept the following example would be appropriate – A person on wheelchair
may not be able to climb the stairs, the medical model would thus blame the medical
condition while social model will blame the stairs as causing the disability. Applying
the similar approach to this case, the House of Lords rather than blaming the vocal
nodules as causing the disability of the Respondent has focused on the work
environment which would trigger her disability and hamper her functional mobility.

II. Mayor and Burgesses of London Borough v Malcolm39

Facts:

 The Respondent, suffered from schizophrenia.

39 London Borough of Lewisham v Malcolm, (2008) UKHL 43.

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  The Respondent was enjoying a secured tenancy from the Appellant.

 However, in contravention to the provisions of the Housing Act, 1985, he

sublet his tenancy.

 The effect of this sub-letting was that his secured tenancy terminated and
further he lost his right to buy.

 Thus, the Appellant became entitled to take back the flat.

 On 25.11.2004 the Appellant started eviction proceedings against the

Respondent.

 Against this the Respondent moved to the High Court, which dismissed its
petition.

 Aggrieved the Respondent moved the Court of Appeal, which allowed its
appeal.

 Against the judgment of Court of Appeal the Appellant preferred an appeal

before the House of Lords.

 The main contention of the Respondent, to justify his act of sub – letting was
that as he was suffering from schizophrenia, he was not mentally competent
to sub – let the flat.

 In support of his argument he tried to rely on Sections 2240 and 2441 of the
Disability Act.

Judgment of the Court:

40 "It is unlawful for aperson managing any premises to discriminate against a disabled person occupying
those premises - ... by evicting the disabled person, or subjecting him to any other detriment". Section
24(1) provides that, for the purposes of section 22, a person discriminates against a disabled person if
"(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he
treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show
that the treatment in question is justified".
41 "For the purposes of section 22, a person ('A') discriminates against a disabled person if -

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he
treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show
that the treatment is justified." Section 24(2) says that, for the purposes of the section, treatment is
justified if, and only if - "(a) in A's opinion one or more of the conditions mentioned in subsection (3)
are satisfied; and (b) it is reasonable, in all the circumstances of the case, for him to hold that opinion"

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Following were the Issues before the Court which the Court answered in the following
way

(1) Was Mr. Malcolm at the relevant time a disabled person?

The Court observed –“…Mr. Malcolm suffered, as he had for some years, from a well-known
form of mental illness which had led to a number of hospital admissions, some of them involuntary.
His illness was not disabling when controlled by appropriate medication, but when such medication
was not being given his ability to carry out normal day-to-day activities was substantially impaired, as
evidenced by his inability to do his job and his consequent dismissal. The reasoning of the Court of
Appeal is to my mind persuasive, and I need not repeat it.”

(2) To what treatment was Mr. Malcolm subjected?

Observation of the court – “In the Court of Appeal it was common ground that the treatment
alleged to constitute discrimination was Lewisham's claim to possession, although there was some
argument about whether the notice to quit would also constitute unlawful discrimination (para 35).
As Toulson LJ pointed out (para 144) the eviction process involves a number of steps (the service of
the notice to quit, the issue of a claim form, the obtaining of an order for possession and, perhaps, the
enforcement of a warrant for possession). It seems to me, however, as to him, to be artificial to break
the process down into different stages. The treatment complained of was Lewisham's conduct in seeking
possession of the flat.”

(3) What was the reason for this treatment?

Observation of the Court - “Here, it seems to me inescapable that Lewisham, as a social landlord
with a limited stock of housing and a heavy demand from those on its waiting list, acted as it did
because it was not prepared to allow tenancies to continue where the tenant was not living in the
premises demised. That, I think, was the real reason for the treatment, a reason in no way inconsistent
with that which the parties agreed. Lewisham could have been the subject of reasonable criticism, and
might even have been judicially reviewed, had it acted otherwise than it did in any ordinary case.”

(4) Did that reason relate to Mr. Malcolm’s disability?

Observation of the court – “I would accept that, but for his mental illness, Mr. Malcolm would
probably not have behaved so irresponsibly as to sublet his flat and moved elsewhere. He had, after
all, worked in Lewisham's housing department for a time, and must have been well aware of the

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ground rules. But Lewisham's reason for seeking possession - that Mr Malcolm had sublet the flat
and gone to live elsewhere - was a pure housing management decision which had nothing whatever to
do with his mental disability. With some hesitation I would resolve this issue against Mr. Malcolm.”

(5) With the treatment of what comparators should the treatment of Mr.
Malcolm be compared?

Observation of the Court – “I would accordingly, not without misgiving, hold the correct
comparison in this case (on the assumption indicated) to be with persons without a mental disability
who have sublet a Lewisham flat and gone to live elsewhere. Mr. Malcolm has not been treated less
favorably than such persons. He has been treated in exactly the same way.”

(6) Is it relevant whether Lewisham knew of Mr. Malcolm's disability?

Observation of the Court – “Section 25(1) provides that a claim based on unlawful
discrimination on grounds of disability may be made the subject of civil proceedings in the same way
as any other claim in tort, damages being recoverable (section 25(2)) for injury to feelings in addition
to other relevant heads of damage. This points, in my opinion, towards a requirement of knowledge.
Otherwise, an actionable tort would arise on the following facts. A telephones restaurant B to book a
table. He asks if he may bring a dog. B says that dogs are not allowed in its restaurant. A does not
say, and B does not know, that A is blind. It seems to me contrary to principle to hold that on such
facts B has committed an actionable tort sounding in damages. Like Toulson LJ in the Court of
Appeal, para 161, "I do not believe that Parliament would have intended to make a person liable in
tort for disability discrimination if that person had no awareness or grounds for awareness at the
relevant time that the complainant was suffering from a disability or that his disability might have any
connection with the matters giving rise to the treatment said to constitute unlawful discrimination."

The grounds of justification specified in section 24(3) of the 1995 Act assume, I think, that the
landlord has knowledge of the tenant's disability, as Arden LJ was tentatively willing to accept (para
119), although reaching a different conclusion (paras 112-118). This seems to me to reinforce the
conclusion that knowledge, or at least imputed knowledge, is necessary. It would be anomalous if a
landlord needs to know of the tenant's disability if he is to justify but not otherwise.”

(7) Has Mr. Malcolm a defence to Lewisham's claim for possession?

Observation of the Court – “I would not, however, accede to Lewisham's contention, accepted by
the judge but rejected by the Court of Appeal that a claim for possession to which there is no defense

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under housing legislation can ever be defeated even where the claim is shown to be discriminatory.
Parliament has enacted that discriminatory acts proscribed by the 1995 Act are unlawful. The courts
cannot be required to give legal effect to acts proscribed as unlawful. But I would not expect such a
defense, in this field, to be made out very often.”

Relevance of the Judgment:

This judgment of the House of Lords diluted the difference between disability related
discrimination and disability based discrimination. Therefore, what the judgment did
was equate a disabled person with a normal person, thus making it more difficult to
show discrimination. Thus, as inertia to this judgment, the legislative enacted Section
15 of the Equality Act, to deal with indirect discrimination, which forms a unique
feature of the English approach towards a disabled person.42

III. Akerman Livingstone v Aster Communities Ltd.43

Facts of the Case:

 The Appellant in this case was suffering from Prolonged Duress Stress
Disorder, which was the result of emotion and physical abuse suffered during
his childhood.

 After becoming homeless in 2010, the Respondent under Section 193(2) of the
Housing Act 1996 provided him a one bedroom flat. However, this tenancy
was to last only till he secured an alternative accommodation or refused to take
a suitable accommodation.

 During the course of his tenancy with the Respondent, the Appellant was
offered accommodation at Wells and Glastonbury, however he refused the
offer on the ground that it invoked memories of his child abuse.

 His contention was also supported by the experts.

42 Piggot, Charles, ‘Step Change Equality’ New Law Journal,

http://www.newlawjournal.co.uk/nlj/content/step-change-equality.
43 Akerman-Livingstone v Aster Communities Limited (formerly Flourish Homes Limited), (2015)

UKSC 15.

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  However, the Respondents decided that he was given an opportunity to take
accommodation elsewhere which he has refused and thus terminated his
tenancy.

Decision of the Court:

The first question before the Supreme Court was whether the ambit of Article 8 of the
European Convention on Human Rights and Section 15 of the Equality Act, 2010 is
similar?

Lady Hale in her judgment has answered this question in negative in her judgment, the
reasoning given for the same is below:

1. “The courts below took the view that whatever differences there may be between the rights
contained in article 8 and section 15, they were not such as to require a different approach to
evictions from social housing. Both depended on proportionality. The twin aims were in most
cases "overwhelming" (Court of Appeal, para 27). There was "no rational basis for saying
that the weight to be given to the social landlord's interest is somehow diminished where the
tenant is relying on disability discrimination" (para 29). These propositions, attractive
though they may appear, require some examination.

2. The first and most obvious difference between article 8 and the Equality Act is that section
35 of the Equality Act applies to both private and public sector landlords, whereas only
public authorities are obliged by section 6(1) of the Human Rights Act 1998 to act
compatibly with the Convention rights. (It has been assumed for the purpose of this case that
social landlords providing accommodation to enable local authorities to fulfil their duties
towards the homeless are public authorities.) Thus no landlord, public or private can adopt
a discriminatory policy towards eviction, for example, by evicting a black person where they
would not evict a white. Thus also no landlord, public or private, can evict a disabled tenant
"because of something arising in consequence of [his] disability" unless the landlord can show
that this is a proportionate means of achieving a legitimate aim.

3. This tells us that the substantive right to equal treatment protected by the Equality Act is
different from the substantive right which is protected by article 8. All occupiers have a right
to respect for their home. Parliament has expressly provided for an extra right to equal
treatment - for people to be protected against direct or indirect discrimination in relation to

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 eviction. Parliament has further expressly provided, in sections 15 and 35, for disabled people
to have rights in respect of the accommodation which they occupy which are different from and
extra to the rights of non-disabled people. Landlords may be required to accommodate, or to
continue to accommodate, a disabled person when they would not be required to accommodate,
or continue to accommodate, a non-disabled person.

4. This extra right is consistent with the obligations which the United Kingdom has now
undertaken under the United Nations Convention on the Rights of Persons with Disabilities.
This defines discrimination on the basis of disability to include the "denial of reasonable
accommodation" (article 2). States Parties are required, not only to prohibit all
discrimination on the basis of disability, but also "In order to promote equality and eliminate
discrimination, [to] take all appropriate steps to ensure that reasonable accommodation is
provided" (article 5(2) and (3)). By "reasonable accommodation" is meant adjustment to
meet the particular needs of a disabled person.

5. This is not an absolute obligation. The landlord is entitled to evict a disabled tenant if he
can show that this is a proportionate means of achieving a legitimate aim. The wording in
section 15, and elsewhere in the Equality Act, is not the same as that in article 8, where the
public authority has to show that its interference is "necessary in a democratic society" for one
of the specific purposes listed there, but they have come to be interpreted in the same way.”

As a result of the Supreme Court differentiating Article 8 rights from Section 15 of

the Equality Act, now the defense under Section 15 would be in addition to the rights
under Article 8 and further the disabled can claim reasonable accommodation, as in
this case the tenant has claimed by refusing to take accommodation in a locality which
might be adverse to his condition.

Further unlike in the Malcom’s Case (supra) would now be on the landlord or any other
authority as the case may be.

In addition by differentiating Section 15 from Article 8, the disabled would be able to

claim his rights even against a private operator, which has been highlighted adequately
in the concurring opinion of Lord Neuberger –

1. “The defense afforded by article 8, as considered in Pinnock and Powell, applies to an

occupier of residential property against whom possession is sought by a public sector landlord.

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 The defense afforded by section 35(1)(b), by contrast, extends to occupiers of any type of
property against whom possession is sought by any landlord - provided, of course, that the
occupier is a disabled person. While the marked distinction in the ambit of the two provisions
does not automatically undermine the notion that the same substantive and procedural
principles apply to possession claims where the two types of defense are raised, it certainly
negatives the notion that they should be expected to be the same.

2. More specifically, although both types of defense involve the court considering the
proportionality of making an order for possession, the protection afforded by section 35(1)(b)
is plainly stronger than the protection afforded by article 8. Section 35(1) (b) provides a
particular degree of protection to a limited class of occupiers of property, who are considered
by Parliament to deserve special protection. The protection concerned is founded on a desire
to avoid a specific wrong in a number of fields, not just in relation to occupation of property,
namely discrimination against disabled persons. Further, once the possibility of discrimination
is made out, the burden of proof is firmly on the landlord to show that there was no
discrimination contrary to section 15(1)(a), or that an order for possession is proportionate
under section 15(1)(b), of the 2010 Act - see section 136 of that Act. Additionally, the
proportionality exercise under section 15(1) (b) involves focusing on a very specific issue,
namely the justification for discrimination.

3. All this is very different from the home-related, but otherwise far less specific and targeted,
article 8 defense. Thus, the protection afforded by section 35(1) (b) is an extra, and a more
specific, stronger, right afforded to disabled occupiers over and above the article 8 right. It is
also worth mentioning that this conclusion ties in with what was said in Pinnock at para
64, namely that as suggested by "the Equality and Human Rights Commission, …
proportionality is more likely to be a relevant issue 'in respect of occupants who are vulnerable
as a result of mental illness, physical or learning disability, poor health or frailty', and that
'the issue may also require the local authority to explain why they are not securing alternative
accommodation in such cases'". In other words, where the occupier is disabled, it is
significantly less unlikely than in the normal run of cases that an article 8 defense might
succeed.

4. As Lady Hale says, the difference between the article 8 defense to possession and a defense
under section 35(1)(b) is further underlined by the fact that, in relation to an article 8

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 proportionality defense, the Supreme Court has expressly rejected the applicability of the sort
of structured approach which has been held to be generally appropriate to a disability
discrimination proportionality defense (and which there is no reason not to apply where
proportionality under section 15(1)(b) is in issue in a possession action) - compare Powell at
para 34 per Lord Hope and R (Elias) v Secretary of State for Defence [2006] 1 WLR
3213, para 165 per Mummery LJ.

5. Accordingly, it appears to me clear that it is wrong to equip rate, either procedurally or

substantively, a defense under section 35(1) (b) to a possession action with a defense under
article 8 to a possession action. Provided that a defendant establishes that the landlord is (or
at a summary stage, may well be) seeking to evict him "because of something arising in
consequence of [his] disability", the landlord faces a significantly more difficult task in having
to establish proportionality than does a landlord who faces an article 8 defense.

6. That does not, however, mean that a landlord whose possession claim is met with a defense
to the effect that possession is being sought "because of something arising in consequence of
[the defendant's] disability", cannot seek or obtain summary judgment for possession.
Possession could be ordered summarily if the landlord could establish that (i) the defendant
had no real prospect of establishing that he was under a disability, (ii) in any event, it was
plain that possession was not being sought "because of something arising in consequence of
[the] disability", or (iii) in any event, the claim and its enforcement plainly represented "a
proportionate means of achieving a legitimate aim".

7. The problem for a landlord seeking summary judgment for possession in such a case would
not be one of principle, but one of practice. Each of the three types of issue referred to in the
immediately preceding paragraph would often give rise to disputed facts or assessments, eg
whether the defendant suffers from a physical or mental disability, whether it has led to the
possession claim, and where the proportionality balance comes down. Summary judgment is
not normally a sensible or adequate procedure to deal with such disputes, which normally
require disclosure of documents, and oral and/or expert evidence tested by cross-examination.
There will no doubt be cases where a landlord facing a section 35(1)(b) defence may be well
advised to seek summary judgment, but they would, I suspect, be relatively rare.

8. Turning to the facts of this case, it is fair to say that the claimant landlord had a fairly strong
case before Judge Denyer QC even though it seems clear that (i) the defendant tenant is a

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 person suffering from a disability and (ii) the claimant is seeking possession "because of
something arising in consequence of [the defendant's] disability". The history as summarised
by Lady Hale suggests that the claimant and the local housing authority had gone out of
their way to accommodate the defendant, and that, if there had been a full hearing, a judge
may very well have reached the same conclusion as was reached by Judge Denyer QC at a
summary stage.”

As a result of the above observations, in order to proceed against the disabled, the
authority would have to justify its action on the following grounds44:

 Is the objective important enough to limit the rights for disabled?

 Is the method chosen connected to the objective sought to be achieved?

 Is the method the least coercive one, whether there are other alternative also
available?

Relevance of the Judgment:

The judgment highlights the English approach and how it changed from the
Disabilities Act to Equality Act, as a result of the Equality Act, the theory of reasonable
accommodation has travelled beyond the boundaries of workplace and entered the
social sector as well. Therefore while earlier the approach was to only provide financial
independence, now the approach has also been extended to providing social
independence, by imposing the obligation on public as well as private authorities to
make efforts to accommodate the disabled.

As can be seen from above, the English approach towards dealing with the disability
rights is rather a subset of the European approach, however what is unique to the
English approach is its social model approach.

Further as was shown in the Boyles case, the Courts in England have extended the
concept of disability to beyond a medical concept and tried and identified the social
conditions which creates disability.

44‘Akerman-Livingstone v Aster Communities Ltd’, 2008,

http://www.blackstonechambers.com/news/cases/akermanlivingstone.html.

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Further application of the rule of reasonable accommodation to cases beyond the work
place, is also yet another example of this approach.

What has further aggravated this approach is the way in which the Equality Act, has
dealt with discrimination against disabled, by recognizing discrimination which is
indirect.

2.4 United States of America Approach towards the Rights of the Disability

Disability law is regulated by the Americans with Disabilities Act (ADA) of 199045.
This Act prohibits discrimination against individuals with disabilities in employment,
housing, education, and access to public services.

The ADA defines a disability as any of the following:

1. A physical or mental impairment that substantially limits one or more of the

major life activities of the individual;

2. A record of such impairment; or

3. Being regarded as having such impairment.

While alcoholism is included as a disability, other socially undesirable behaviour is

excluded from the Act. For example, sexual behaviour disorders, compulsive
gambling, and pyromania are all excluded. The ADA, however, does not list all the
impairments covered. The ADA further requires that reasonable accommodation be
made so as to provide individuals with disabilities equal opportunities. Agencies and
departments charged with enforcement of the ADA include the Equal Employment
Opportunity Commission (EEOC) and the Department of Justice.

States may pass disability statutes so long as they are consistent with the ADA. Other
statutes prohibiting discrimination against individuals with disabilities include the Fair
Housing Act, Rehabilitation Act, Air Carrier Access Act, and the Individuals with
Disabilities Education Act. Under the Fair Housing Act, it is unlawful to discriminate
in any aspect of selling, renting, or denying housing because of an individual's

45Americans with Disabilities Act of 1990, as amended, last modified on August 06, 2013, available at,
available at https://www.ada.gov/pubs/adastatute08.pdf

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disability. Owners are further required to make reasonable exceptions in their housing
policies so as to afford equal housing opportunities to those with disabilities. The
Rehabilitation Act prohibits discrimination on the basis of disability in programs
conducted by Federal agencies, in programs receiving Federal financial assistance, in
Federal employment, and in the employment practices of Federal contractors. Its
standards mirror those of the ADA.

2.4.1 Supreme Court of America and disability rights

It is submitted that the approach of American Supreme Court while dealing with rights
of the disabled has rather been hazy and doubtful. Barring few exceptions, the
approach has been insensitive, absurdly textual and in one of the instance even
bordering on validating the Nazi ideology of creating a superior purer race.

The trend adopted by the Court in dealing with the rights of disabled was evident in
the case of Buck v Bell.46 The Court in this case held constitutional the validity of forced
sterilization of a person having mental illness. In deciding the case the Court reasoned
that for the purpose of creating a better race, the dignity and life of an individual can
be compromised.

Justice Holmes, one of the most revered jurists writing the majority opinion in this
case, justified the practice and observed: “We have seen more than once that the public
welfare may call upon the best citizens for their lives. It would be strange if it could
not call upon those who already sap the strength of the State for these lesser sacrifices,
often not felt to be such by those concerned, in order to prevent our being swamped
with incompetence. It is better for all the world if, instead of waiting to execute
degenerate offspring for crime or to let them starve for their imbecility, society can
prevent those who are manifestly unfit from continuing their kind. . . . Three generations
of imbeciles are enough.”

It seems that this famous quote of Justice Holmes, has been the sway song of the
Court in most of its judgments. It is interesting the Americans were most vocal in their
criticism of the same practice adopted by the Nazi regime, maybe before launching

46 Buck v. Bell, (1927) 274 U.S. 200.

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there crusade in the name of freedom, they ought to have tamed their own Supreme
Court and the States that subsequently enacted laws for forced sterilization of those
suffering from mental illness.

In its judgment in the case of Barnes v Gorman47, the Court was hearing an appeal,
wherein the Respondent who was a paraplegic was arrested by the police officer.
However, despite the pleas of the Respondent, in absence of any means to transport
a wheelchair bound prisoner, the police officer tied the Respondent at the backseat of
his car using his and the Respondent’s belt. While on the way the belt became loose
causing the Respondent to fall from the seat, which damaged his urine bag and caused
injuries to his shoulder and back. As a result of which the Respondent was unable to
work and suffered acute back pain.

While the lower courts granted him 1.2 million dollars in the form of punitive damages,
which in essence means that, the damage was granted because the municipality failed
to act against these types of discriminatory practices. However, the Supreme Court in
appeal overturned this ruling of the lower courts and held that under the Americans
with Disability Act, the government agencies would not be liable to provide any
punitive damages, no matter how discriminatory their conduct maybe. The ratio of the
judgment was not concerned with the rights of the disabled, but it was decided on the
anvil of the relation that exists between the Union and any municipality which receives
funding from the Union. According to the majority opinion of the judges, since the
municipality while receiving federal funds did not expressly state that it would be liable
for punitive damages, thus by the application of the principals of contract law it cannot
be held liable for giving punitive damages for violation of the rights of an American
citizen.

The judgment went on to answer the question on federalism, while ignoring the assault
on fundamental rights. The judgment raises a question as to whether a government
agency, by the very purpose of its existence, is not always liable to protect its citizen,
and is it not liable to make good the loss suffered by its citizens due to its conduct.
Even if the reasoning of the Court be adopted, one fails to understand how questions

47 Barnes v. Gorman, (2002) 536 U.S. 181.

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of Constitutional Law can be answered by applying the principles of commercial law
like Contract.

Maybe, if the Court was so eager to apply the principles of contract, it could have kept
in mind the rules of social contract as given by John Locke, who is regarded as one of
the influences of American Revolution. Could the Court not apply the most basic
concept of social theory as given by him, that the State exists only because the citizens
have by virtue of agreement amongst themselves resolved so and that the State is also
a party to this agreement, bound by its terms. The State being a party to the Social
Contract, if it is found has acted in breach of this contract should make do good the
loss caused to its subjects as a result of such a breach. Was the municipal council on
this basis not liable to give punitive damages to the Respondent?

However, as is the penchant of the American judicial system, it seems that their
obsession with federalism in this case overruled the essence of constitutionalism itself.

Another example of the logical fallacy that berates the U.S. Supreme Court was
demonstrated by the Supreme Court in the case of Arlington Central School District v
Murphy48. In the instant case the facts were that the Respondents successfully sued the
Public School Board to bear the cost of private tuition for their disabled son, under
the provisions Individuals with Disabilities Education Act (hereafter IDEA). While
they succeeded in their action, the controversy arose on the question of awarding cost
to them for hiring a specialized educational consultant to prove their case.

The framers of IDEA realizing that not all the families would be rich enough to incur
the cost of legal proceedings, provided that those who succeed in their claim under
IDEA would be awarded the cost of reasonable attorney. However, the statute was
silent on the cost of an expert used to prove the case of plaintiff. Therefore, a question
arose as to the width of the interpretation of the term ‘attorney’ in these matters.

The Court chose to adopt a narrow approach and held that the attorney would not
include an expert, the reasoning of the Court being on exactly the same lines as
adopted in Gorman’s Case, as explained above. The Court in its conclusion failed to take
into consideration the intention and purpose of the legislation. It failed to appreciate

48 Arlington Central School District Board of Education v. Murphy, (2006) 548 U.S. 291.

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the most germane question regarding the role of an expert in these cases. It is
impossible to prove disability without the help of these experts and in that sense they
are indispensable to support the plaintiff’s point of view. Therefore, is he not acting
on behalf of the Plaintiff? The Court even overlooked the difficulty that a plaintiff
would face in bringing a suit if such protection is not granted, effectively making the
protection available under IDEA available only to the rich, and making its provisions
nugatory to the improvised section of the society for whose benefit this Act was
enacted.

It is thus submitted that when it comes to the rights of the disabled, the American
Supreme Court has very little to offer to aid the discussion for the rights of the
disabled. If the Constitution is like a rock from which the judiciary through its
interpretation sculpts an image of law, then the American Supreme Court is like that
sculptor who gave preference to dimensions over beauty and created a lifeless
Constitution. The approach of the Court can be characterized as economic viability
will always trump the rights of the disabled.

2.5 Indian Disability Laws and Policies

In the previous Section we have seen, how the concept of “disability” has been
approached by various other jurisdictions and the stand taken by the international law
on it. However, after seeing these approaches, the study shall now highlight the Indian
approach and steps taken in India with regards to the disability rights. For this purpose,
following topics shall be covered:

(i) Disability Rights under the Constitution.

(ii) Prevention of the Disabilities Act, 1995.

(iii) Rights of Persons with Disability Bill, 2014.

(iv) Various welfare schemes made by the Government for the benefit of disabled
persons.

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2.5.1 Constitution of India

The Constitution of India was enacted in the year 1949 and brought into force in the
year 1950, and is the lengthiest Constitution in the world and is a visionary document.
While the Constitution may not directly deal with the rights of the disabled, it provides
for a welfare state. Our founding fathers were wise enough to give the Constitution
wider amplitude to even cover what was left to be said.

The Preamble of our Constitution49 which reads as follows, provides:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure
to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

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;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949,

do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.

As can be seen from the reading of the Preamble, by providing social justice along
with equality of opportunity and status and dignity of the individual, it ensures that
even the last man standing in the queue would not be left out, and the state would
endeavor to provide a level playing field to everyone. Further, Article 14 provides
equality before law and equal protection of law, which along with Articles 19 and 21
forms the Golden Triangle of the Indian Constitution.

In essence the rights guaranteed under this Article are more or less similar to its
European counterpart, in fact in some cases its effect is wider than the equality clauses

The Constitution of India- Ministry of Law and Justice, Government of India, last modified on 29
49

October 2015, available at http://lawmin.nic.in/coi/coiason29july08.pdf

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provided under the European Convention. The concept of equality stated under this
Article is that no person similarly situated should be treated differently and no
differently situated persons should be treated equally. While the right to equality in its
early form only extended to substantial law, the Hon’ble Supreme Court through
purposive interpretation has extended its application to procedural fairness as well.
Hence, the right to equality as it stands today is wide enough to even accumulate rights
specific to disabled persons, for example the right of a reasonable accommodation.

However, India is yet to witness a fully-fledged era of disability rights and therefore,
despite all its potential, the applicability of right to equality to disability rights is more
or less theoretical at present.

Article 16 of the Constitution provides equality of opportunity to all the citizens in

matter of public employment. This Article, also as would be seen in the succeeding
chapter on the role of judiciary in developing disability rights, has so far been utilized
only to enforce positive rights; the part guaranteeing negative rights is still to be
explored by the Hon’ble Courts.

Perhaps the main cause for it may be the heavy reliance placed by the Hon’ble Courts
on Articles 19 and 21 of the Constitution when dealing with disability rights under our
Constitution, wherein the Hon’ble Courts have by their interpretation developed
derivative rights under these articles.

While fundamental rights provide legally enforceable rights, it would not be out of
place to refer to the Directive Principles of State Policy, which are borrowed from the
Irish Constitution. Although these Directive Principles are not legally binding, they
nevertheless have a morally binding value attached to them and form an integral part
of our Constitution. These represent the promises that our founding fathers took from
our nation. Some of the provisions in the Directive Principles that deal with the rights
of the disabled are –

“Article 39A. Equal justice and free legal aid. – The State shall secure that the operation of the legal
system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid,
by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice
are not denied to any citizen by reason of economic or other disabilities.

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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, and in other cases of undeserved want. Besides, Eleventh Schedule to Article 243-
G and Twelfth Schedule to Article 243-W, which pertain to the powers and
responsibilities of the Panchayats and Municipalities respectively with respect to
implementation of schemes for economic development and social justice, include
welfare and safeguarding the interests of Persons with Disabilities among other weaker
sections of the society. The relevant extracts of the said schedules are reproduced
below:

Eleventh Schedule to Article 243-G: ‘Social welfare, including welfare of the

handicapped and mentally retarded.’ (Entry No. 26).

Twelfth Schedule to Article 243-W: ‘Safeguarding the interests of weaker sections of

society, including the handicapped and mentally retarded.’ (Entry No. 09)

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.”

Therefore while the Constitution may not directly deal with the rights of the disabled
in words, the Constitution in its spirit certainly encompasses the rights of the disabled
in it. While the provisions of the Constitution wait to be utilized, the policy makers
have made certain efforts to deliver on the promises made by our Constitution to the
disabled.

2.5.2 The Persons with Disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995

The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (hereafter PWD Act) is an Act enacted to give effect to the
Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian
and Pacific Region. The Act defines disability to means as- “A person with disability according
to this Act is someone has more than 40% of disability, which should be certified by a medical
authority.”

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Therefore under this Act, for a person to be classified as a disabled, he has to fulfill
the following criteria:

(i) He should have more than 40% of disability.

(ii) The same should be certified by a medical authority.

According to Section 2(i) of the Act, disability would mean –

(i) Blindness;

(ii) Low vision;

(iii) Leprosy-cured;

(iv) Hearing impairment;

(v) Loco motor disability;

(vi) Mental retardation;

(vii) Mental illness;

However, the Act provides under Section 2(b) the definition of ‘blindness’ to mean- a
condition where a person suffers from any of the following conditions, namely:

(i) “Total absence of sight.

(ii) Visual acuity not exceeding 6160 or 201200 (Snellen) in the better eye with
correcting lenses.

(iii) Limitation of the field of vision subtending an angle of 20 degree or

worse.”

Further, Section 2(l) of the Act defines hearing impairment to mean - loss of sixty
decibels or more in the better year in the conversational range of frequencies.

Further, Section 2(n) of the Act defines leprosy-cured to mean - any person who has
been cured of leprosy but is suffering from-

(i) “Loss of sensation in hands or feet as well as loss of sensation and paresis
in the eye and eye-lid but with no manifest deformity.

(ii) Manifest deformity and paresis; but having sufficient mobility in their
hands and feet to enable them to engage in normal economic activity.
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 (iii) Extreme physical deformity as well as advanced age which prevents him
from undertaking any gainful occupation, and the expression "leprosy
cured" shall be construed accordingly.”

Section 2(o) defines Loco motor disability to mean as the disability of the bones, joints
muscles leading to substantial restriction of the movement of the limbs or any form
of cerebral palsy.

The definition of cerebral palsy is further clarified under Section 2(e) to mean - a group
of non-progressive conditions of a person characterized by abnormal motor control
posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or
infant period of development.

Section 2(q) defines Mental illness to mean - any mental disorder other than mental
retardation.

Section 2(r) defines mental retardation to mean - a condition of arrested or incomplete

development of mind of a person which is specially characterized by sub normality of
intelligence.

Section 2(u) defines person with low vision to mean - a person with impairment of
visual functioning even after treatment or standard refractive correction but who uses
or is potentially capable of using vision for the planning or execution of a task with
appropriate assistive device.

Section 2(p) says that a medical authority can only be hospital or institution that has
been specified for this purpose under this Act.

Analysis of the definition- The Act defines disability from a strict medical point of
view, by not only defining what disability would mean, but also by defining the percent
of disability which would make a person suffering from disability. It thereby leans
towards the medical model of disability, which as can be seen from the European,
English and American approaches, has been discarded. Also, the definition is very
restrictive in absence of the terms ‘including’; it is expected that welfare legislation
would provide an inclusive definition.

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Thus as a result cases like Glore v Switzerland wherein a person was discriminated against
on the basis of his diabetes, or SCG Packaging v Boyle, where a lady was suffering from
vocal nodes would stand excluded under the present definition of disability as defined
under this Act.

Applicability of the Act:

Employer according to Section 2(j) of the Act is:

(i) “In relation to a Government, the authority notified by the Head of the
Department in this behalf or where no such authority is notified, the Head
of the Department; and

(ii) In relation to an establishment, the chief executive officer of that the

establishment.”

The Act further under Section 2(k) defines establishment “as a corporation established by
or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided
by the Government or a local authority or a Government company as defined in section 617 of 'the
Companies Act, 1956 and includes Departments of a Government.”

Therefore the Act in general sense is applicable only to the government departments
and is inapplicable to the private sector.

Prevention and Early detection of Disability:

The Act has made provisions for preventing and detecting disability at an early stage
by promoting research and gathering data. In this regards, Section 25 of the Act which
provides for prevention and early detection of the disability, reads as:

Within the limits of their economic capacity and development, the appropriate
Governments and the local authorities, with a view to preventing the occurrence of
disabilities, shall:

(i) Undertake or cause to be undertaken surveys, investigations and research

concerning the cause of occurrence of disabilities.

(ii) Promote various methods of preventing disabilities.

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 (iii) Screen all the children at least once in a year for the purpose of identifying "at-
risk" cases.

(iv) Provide facilities for training to the staff at the primary health centers.

(v) Sponsor or cause to be sponsored awareness campaigns and is disseminated or

cause to be disseminated information for general hygiene. Health and
sanitation.

(vi) Take measures for pre-natal, parental and post-natal care of mother and child.

(vii) Educate the public through the pre-schools, schools, primary health Centers,
village level workers and anganwadi workers.

(viii) Create awareness amongst the masses through television, radio and other mass
media on the causes of disabilities and the preventive measures to be adopted.

Further Sections 48 and 49 of the Act provide for research and development with
regards to the problems faced by the disabled persons and read as follows:

The appropriate Governments and local authorities shall promote and sponsor
research, inter alia, in the following areas:

(i) Prevention of disability;

(ii) Rehabilitation including community based rehabilitation;

(iii) Development of assistive devices including their psychosocial aspects;

(iv) Job identification;

(v) On site modifications in offices and factories.

The appropriate Governments shall provide financial assistance to universities, other

institutions of higher learning, professional bodies and non-governmental research-
units or institutions, for undertaking research for special education, rehabilitation and
manpower development.

While the object behind these Sections is laudable, it can be seen from the opening
words of these Sections -“within the limits of their economic capacity and development” that,
these sections fail to impose any binding obligation on the Government to look after
the rights of the disabled. Further the economic capacity and development is to be

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seen with regards to the whole of society, therefore the appropriate government or the
authority will have the discretion to whether or not to give any priority to the rights of
the disabled? Further, in light of the fact that no mechanism on how to release the
funds and how to monitor the progress of utilization of these funds is prescribed, these
provisions prove of little use. In addition not only are these provisions useless, they
also reflect a sense of charity towards the rights of the disabled persons.

At this juncture it would also not be out of place to analyze the type of responsibilities
that this Act places on the government for the welfare of the disabled persons.

Responsibility to provide Education:

Section 26 of the Act imposes an obligation on the government to develop

infrastructure so as to provide educational opportunities to the disabled children. It
imposes the following obligations:

(i) Ensure that every child with a disability has access to free education in an
appropriate environment till he attains the age of eighteen years;

(ii) Endeavour to promote the integration of students with disabilities in the

normal schools;

(iii) Promote setting up of special schools in Government and private sector for
those in need of special education, in such a manner that children with
disabilities living in any part of the country have access to such schools;

(iv) Endeavour to equip the special schools for children with disabilities with
vocational training facilities.

Section 27 obliges the Government to make schemes to accommodate the disabled

students within the educational scheme, the section reads as follows:

(i) Conducting part-time classes in respect of children with disabilities who having
completed education up to class fifth and could not continue their studies on
a whole-time basis.

(ii) Conducting special part-time classes for providing functional literacy for
children in the age group of sixteen and above.

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 (iii) Imparting non-formal education by utilizing the available manpower in rural
areas after giving them appropriate orientation.

(iv) Imparting education through open schools or open universities.

(v) Conducting class and discussions through interactive electronic or other

media.

(vi) Providing every child with disability free of cost special books and equipment
needed for his education.

Section 28 obliges the appropriate Government to cause research for the purpose of
designing and developing new assistive devices, teaching aids, special teaching
materials or such other items as are necessary to give a child with disability equal
opportunities in education.

Section 29 provides for the mechanism to set up educational institutions for training
teacher and develop manpower to teach in special schools.

Section 30 which reads as follows, obliges the government to make schemes to achieve
the following purpose, as highlighted under this section:

(i) Transport facilities to the children with disabilities or in the alternative financial
incentives to parents or guardians to enable their children with disabilities to
attend schools;

(ii) The removal of architectural barriers from schools, colleges or other institution,
imparting vocational and professional training;

(iii) The supply of books, uniforms and other materials to children with disabilities
attending school;

(iv) The grant of scholarship to students with disabilities;

(v) Setting up of appropriate fora for the redressal of grievances of parent, regarding
the placement of their children with disabilities;

(vi) Suitable modification in the examination system to eliminate purely mathematical

questions for the benefit of blind students and students with low vision;

(vii) Restructuring of curriculum for the benefit of children with disabilities;

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(viii) Restructuring the curriculum for benefit of students with hearing impairment to
facilitate them to take only one language as part of their curriculum.

Section 31 obliges schools and universities to ensure amanuensis for blind students
and students with low vision.

Responsibility to provide Employment:

As the scope and application of employment under the Act has been discussed in detail
in the succeeding chapter while dealing with the steps taken by judiciary in dealing with
rights of the disabled, therefore, in this chapter for the purpose of this thesis I will
only be outlining the Sections as provided under the Act.

Section 32 of the Act obliges the Government to:

(i) Identify posts, in the establishments, which can be reserved for the persons with
disability;

(ii) At periodical intervals not exceeding three years, review the list of posts identified
and up-date the list taking into consideration the developments in technology.

Section 33 provides for three percent reservation for disabled persons and further
provides that amongst these three per cents, one per cent shall be filled by persons
having:

(i) Blindness or low vision;

(ii) Bearing impairment;

(iii)Loco motor disability or cerebral palsy, in the posts identified for each disability.

Further the Section provides: “the appropriate Government may, having regard to the type of
work carried on in any department or establishment, by notification subject to such conditions, if any,
as may be specified in such notification, exempt any establishment from the provisions of this section.”

Section 34 provides for maintaining the record of number of existing vacancies for
disabled persons in an establishment, which reads as follows:

(i) The employer in every establishment shall furnish such information or return
as may be prescribed in relation to vacancies appointed for person, with
disability that have occurred or are about to occur in that establishment to such

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 Special Employment Exchange as may be prescribed and the establishment
shall thereupon comply with such requisition.

(ii) The form in which and the intervals of time for which information or returns
shall be furnished and the particulars, they shall contain shall be such as may be
prescribed.

Section 36 of the Act provides for the carry forward rule with regards to the seats
reserved for the disabled under section 33 of the Act. It provides that if a seat remains
vacant then that vacancy would be carried to next year and even then also the seats
remain vacant, then the government shall first try and fill the vacancy amongst the
candidate specified under the three categories as mentioned in Section 33 and if still
the vacancy subsists then only can the seat be filed from the general quota.

Section 38, provides for the following steps need to be taken by the Government to
increase the chances of employment amongst the disabled:

(i) “The training and welfare of persons with disabilities;

(ii) The relaxation of upper age limit;

(iii) Regulating the employment;

(iv) Health and safety measures and creation of a non-handicapping environment

in places where persons with disabilities are employed;

(v) The manner in which and the person by whom the cost of operating the
schemes is to be defrayed; and

(vi) Constituting the authority responsible for the administration of the scheme.”

Section 39 provides: “All Government educational institutions and other educational

institutions receiving aid from the Government shall reserve not less than three per
cent seat for persons with disabilities.”

On the same lines Section 40 provides: “The appropriate Governments and local
authorities shall reserve not less than three per cent in all poverty alleviation schemes
for the benefit of persons with disabilities.”

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Section 47 of the Act provides for reasonable accommodation of disabled in their
department. However, the proviso to the section provides that if the Government
feels so it may by a notification exempt a service from the applicability of this Section.

The Act also obliges the government to take the following steps as provided under
Section 44 to ensure non-discrimination against the disabled persons:

(i) “Adapt rail compartments, buses. Vessels and aircrafts in such a way as to
permit easy access to such persons;

(ii) Adapt toilets in rail compartments, vessels, aircrafts and waiting rooms in such
a way as to permit the wheel chair users to use them conveniently.”

Further Section 45 read with Section 46 provide:

(i) “Installation of auditory signals at red lights in the public roads for the benefit
of persons with visually handicap;

(ii) Causing curb cuts and slopes to be made in pavements for the easy access of
wheel chair users;

(iii) Engraving on the surface of the zebra crossing for the blind or for persons
with low vision;

(iv) Engraving on the edges of railway platforms for the blind or for persons with
low vision;

(v) Devising appropriate symbols of disability;

(vi) Warning signals at appropriate places.

(vii) Ramps in public buildings;

(viii) Braille symbols and auditory signals in elevators or lifts;

(ix) Braille symbols and auditory signals in elevators or lifts;

(x) Ramps in hospitals, primary health centers and other medical care and
rehabilitation institutions.”

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However, as can be seen these obligation of the Government are also subjected to the
economic capacity of the appropriate government, which is a common and a recurring
feature of the Act.

Analysis of the PWD Act:

The Act while reflects on positive practices towards the disabled, however fails to
create a socially binding norm, forcing oneself to ask a question to himself as to what
can be the reason behind it?

The reason behind it is how our society looks at the disabled persons, as after all, the
legal norms to an extent are a social fact. In our society we have always looked upon
the disabled as inferior to the general people, who cannot contribute anything to our
society and thus while they are entitled to our pity they are not entitled to their rights.

This attitude is reflected the most in our definition of disability, wherein we have totally
failed to take into account the barriers in our society that create disability. In essence,
we have failed to address discrimination, as the Act at most creates a binding value but
fails to bestow a negative right to not be discriminated. Thus only when the general
public of the society will recognize the rights of the disabled, will the rights be given
to the disabled section.

To understand this problem we can contrast the Indian PWD Act with its American
counterpart the ADA (American Disability Act). While the ADA provides for time
barred enforcement of all the measures of affirmative action and non-discrimination,
the PWD Act does not prescribe any time limit; on the contrary, it says that the
appropriate government subject to its economic capacity may carry out those welfare
measures. These provisions allow the appropriate authority to rate the priority of the
disabled amongst the general public, thereby comparing the needs of two differently
situated people similarly. In this regard the judgment of European Court of Human
Rights rendered in McDowel v United Kingdom (supra) would be useful, wherein denial of
night attendant to an elderly woman was counted as an act of discrimination. The same
situation exists under ADA as well, where non-implementation of the affirmative

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action measures is itself considered to be amounting to discrimination.50 Maybe the
economical gap between our country and these countries constitutes a factor for such
a behavior.

As pointed above the PWD Act does not create any negative rights in favor of the
disabled person, because our society does not conceive any duty towards the disabled
and has ignored the barriers created by it, thus no individual feels compelled to not do
an act. Rather, as disabled are an object of pity hence, they may or may not help
someone, depending on their intention. This social norm has been transferred into the
legal norm created by the PWD Act.

Due to these facts a need has been felt to review the potency of the legislative reforms
in this area and in pursuance of this The Rights of Persons with Disabilities Bill, 2014
has been drafted.

2.5.3 The Rights of Persons with Disabilities Bill, 201451

In 2007, India became a signatory to the United Nations Convention on the Rights of
Persons with Disabilities (UNCRPD). The UNCRPD requires signatory states to make
appropriate changes in law and policy to give effect to rights of disabled persons. The
Indian Constitution under Article 253 allows Parliament to enact legislation to give
effects to international agreements. The Rights of Persons with Disabilities Bill, 2014
is being brought in to fulfill obligations under the UNCRPD that was ratified by India
in 2007. There was a Committee set up in 2009 by the Ministry of Social Justice and
Empowerment, headed by Smt. Sudha Kaul, to draft a Bill to this effect. The Draft
Bill included different people with disabilities - across disabilities as to cover the
UNCRPD suggestions. The Draft Bill of 2011 was submitted to the Ministry, and in
response to that or otherwise; the Ministry released a Draft Bill in 2012. This Bill seeks
to replace the PWD Act and fulfill the commitment of Indian under the United
Nations Convention on Rights of Persons with Disabilities.

50 ‘The Failure to Implement the Disabilities Act’, accessed May 5, 2015,

http://www.rajrojgar.nic.in/pwdact2.htm.
51 The Rights of the Persons with Disabilities Bill, 2014, as introduced in Rajya Sabha, last modified

on 6 November, 2015, available at

http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/I2014RS.pdf

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The first basic departure that this bill makes from the old regime is visible in the way
in which the Bill defines disability as, the Bill divides the disabled person into the
following three categories:-

(i) The first category is covered within Section 2(p) and is called the person with
benchmark disability, the following person are covered under this category –
“a person with not less than forty percent 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.”

(ii) The second category is covered within Section 2(q) and is called person with
disability, the following are covered under this definition – “a person with long
term physical, mental, intellectual or sensory impairment which hinder his full and effective
participation in society equally with others.”

(iii) Section 2(r) covers person with disability having high support needs which
means a “person with benchmark disability certified under clause (a) of sub-section (2) of
section 57 who needs high support.”

In addition to the above definition the Bill also defines barrier under Section 2(c) to
mean any factor including communicational, cultural, economic, environmental,
institutional, political, social or structural factors which hampers the full and effective
participation of persons with disabilities in society.

Hence, it can be seen that in a stark departure from the provisions of PWD Act, the
Bill tries to adopt a social model approach towards defining disability. While category
(i) & (iii) still rely on the medical model, the category (ii) has adopted the social model.

While category (i) and (iii) persons enjoy all the rights under this Bill, category (ii) only
enjoys a few. For example, the benefit of reservation given under Chapter VI52 is
available only to category (i) and (iii) and not to category (ii) persons.

52 Section 30 –
(1) Notwithstanding anything contained in the Rights of Children to Free and Compulsory
Education Act, 2009, every child with benchmark disability between the age of six to eighteen
years shall have the right to free education in a neighborhood school, or in a special school, if
necessary.

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 (2) The appropriate Government and local authorities shall ensure that every child with
benchmark disability has access to free education in an appropriate environment till he attains
the age of eighteen years.
Section 31 –
(1) All Government institutions of higher education and other higher education institutions
receiving aid from the Government shall reserve not less than five per cent seats for persons
with benchmark disabilities;
(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years
for admission in institutions of higher education.
Section 32 –
The appropriate Government shall—
(i) identify posts in the establishments to be reserved for the persons with benchmark
disability;
(ii) review and update the list of identified posts, taking into consideration the developments
in technology, at periodical intervals not exceeding five years.
Section 33 –
(1) Every appropriate Government shall reserve in every establishment under them, not less than
five per cent of the vacancies meant to be filled for persons or class of persons with benchmark
disability, of which one per cent each shall be reserved for the persons with following
disabilities,—
(a) blindness and low vision;
(b) hearing impairment and speech impairment;
(c) locomotor disability including cerebral palsy, leprosy cured and muscular dystrophy;
(d) autism, intellectual disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-
blindness in the posts identified for each disabilities:
Provided that the appropriate Government may, having regard to the type of work carried on
in any department or 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.
Explanation.—For the purposes of this section, the computation of reservation of vacancies
for the persons with benchmark disabilities shall be computed on five per cent of the total
cadre strength.
(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a
suitable person with benchmark disability or for any other sufficient reasons, such vacancy
shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment
year also suitable person with benchmark disability is not available, it may first be filled by
interchange among the five categories and only when there is no person with disability
available for the post in that year, the employer shall fill up the vacancy by appointment of a
person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of
person cannot be employed, the vacancies may be interchanged among the five categories with
the prior approval of the appropriate Government.
(3) The appropriate Government shall, by notification, provide relaxation of upper age limit up
to five years for employment of persons with benchmark disability.
Section 34 – The appropriate Government and the local authorities shall, within the limit of their
economic capacity and development, provide incentives to employer in private sector to ensure that at
least five per cent. of their work force is composed of persons with benchmark disability.
Section 35 – The appropriate Government may, by notification, require that from such date, the
employer in every establishment shall furnish such information or return as may be prescribed by the
Central Government in relation to vacancies appointed for persons with benchmark disability that have
occurred or are about to occur in that establishment to such Special Employment Exchange as may be
notified by the Central Government and the establishment shall thereupon comply with such
requisition.
Section 36 – The appropriate Government and the local authorities shall, by notification, make schemes
in favor of persons with benchmark disabilities, to provide,—

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Likewise category (iii) persons who have high support needs are a different category
and they enjoy separate exclusive rights along with all the rights enjoyed by category
(i) and (ii). High support needs have been defined under Section 2(j) to mean – “an
intensive support, physical, psychological and otherwise, which may be required by a person with
benchmark disability for daily activities, accessing facilities and participating in all areas of life
including education, employment, family and community life and treatment and therapy.”

Category (iii) as highlighted above is an all-inclusive group, meaning thereby it would

enjoy all the rights given to categories (i) and (ii) persons in addition to exclusive rights
given to it under Chapter VII53 of the Bill.

The common rights that have been given to all the categories covered under this Bill
have been defined under Chapter II54 which are as follows –

(a) five per cent reservation in allotment of agricultural land and housing in all relevant
schemes and development programs, with appropriate priority to women with
benchmark disabilities;
(b) five per cent reservation in all poverty alleviation and various developmental schemes
with priority to women with benchmark disabilities;
(c) five per cent reservation in allotment of land on concessional rate, where such land
is to be used for the purpose of promoting housing, shelter, setting up of occupation,
business, enterprise, recreation centers and production centers.

53 Section 37 –
(1) Any person with benchmark disability, who considers himself to be in need of high support,
or any person or organization on his or her behalf, may apply to an authority, to be notified
by the appropriate Government, requesting to provide high support.
(2) On receipt of an application under sub-section (1), the authority shall refer it to an Assessment
Board consisting of such Members as may be prescribed by the Central Government.
(3) The Assessment Board shall assess the case referred to it under sub-section (1) in such manner
as may be prescribed by the Central Government, and shall send a report to the authority
certifying the need of high support and its nature.
(4) On receipt of a report under sub-section (3), the authority shall take steps to provide support
in accordance with the report and subject to relevant schemes and orders of the appropriate
Government in this behalf.

54Section 3 –
(1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to
equality, life with dignity and respect for his or her integrity equally with others.
(2) The appropriate Government shall take special measures to protect the rights of women and children
with disability and also take steps to utilize the capacity of persons with disabilities by providing
appropriate environment.
(3) No person with disability shall be discriminated on the ground of disability, unless it is shown that
the impugned act or omission is appropriate to achieve a legitimate aim.
(4) No person shall be deprived of his or her personal liberty only on the ground of disability.

Section 4 –
(1) The persons with disabilities shall have the right to live in the community.

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(2) The appropriate Government shall endeavor that the persons with disabilities are —
(a) not obliged to live in any particular living arrangement; and
(b) given access to a range of in-house, residential and other community support services, including
personal assistance necessary to support living with due regard to age and gender.
Section 5 –
(1) The appropriate Government shall take measures to protect persons with disabilities from being
subjected to torture, cruel, inhuman or degrading treatment.
(2) No person with disability shall be a subject of any research without,—
(i) his or her free and informed consent obtained through accessible modes, means and formats of
communication; and
(ii) prior permission of an Ethics Committee constituted in the prescribed manner for the purpose by
the appropriate Government in which not less than half of the Members shall themselves be either
persons with disabilities or Members of the registered organization as defined under clause (u) of section
2.
Section 6 –
(1) The appropriate Government shall take measures to protect persons with disabilities from all forms
of abuse, violence and exploitation, and to prevent the same, shall—
(a) take cognizance of incidents of abuse, violence and exploitation and provide legal remedies available
against such incidents;
(b) take steps for avoiding such incidents and prescribe the procedure for its reporting;
(c) take steps to rescue, protect and rehabilitate victims of such incidents; and
(d) create awareness and make available information among the public.
(2) Any person or registered organization who or which has reason to believe that an act of abuse,
violence or exploitation has been, or is being, or is likely to be committed against any person with
disability, may give information about it to the Executive Magistrate within the local limits of whose
jurisdiction such incidents occur.
(3) The Executive Magistrate on receipt of such information, shall take immediate steps to stop or
prevent its occurrence, as the case may be, or pass such order as he deems fit for the protection of such
person with disability including an order—
(a) to rescue the victim of such act, authorizing the police or any organization working for persons with
disabilities to provide for the safe custody or rehabilitation of such person, or both, as the case may be;
(b) for providing protective custody to the person with disability, if such person so desires;
(c) to provide maintenance to such person with disability.
(4) Any police officer who receives a complaint or otherwise comes to know of abuse, violence or
exploitation towards any person with disability shall inform the aggrieved person of—
(a) his or her right to apply for protection under sub-section (2) and the particulars of the Executive
Magistrate having jurisdiction to provide assistance;
(b) the particulars of the nearest organization or institution working for the rehabilitation of persons
with disabilities;
(c) the right to free legal aid; and
(d) the right to file a complaint under the provisions of this Act or any other law dealing with such
offence:
Provided that nothing in this section shall be construed in any manner as to relieve the police officer
from his duty to proceed in accordance with law upon receipt of information as to the commission of
a cognizable offence.
(5) If the Executive Magistrate finds that the alleged act or behaviour constitutes an offence under the
Indian Penal Code, or under any other law for the time being in force, he may forward the complaint
to that effect to the Judicial or Metropolitan Magistrate, as the case may be, having jurisdiction in the
matter.
Section 7 –
(1) The persons with disabilities shall have equal protection and safety in situations of risk, armed
conflict, humanitarian emergencies and natural disasters.
(2) The National Disaster Management Authority and the State Disaster Management Authority shall
take appropriate measures to ensure inclusion of persons with disabilities in its disaster management
activities as defined under clause (e) of section 2 of the Disaster Management Act, 2005 for the safety
and protection of persons with disabilities.

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(3) The District Disaster Management Authority constituted under section 25 of the Disaster
Management Act, 2005 shall maintain record of details of persons with disabilities in the district and
take suitable measures to inform such persons of any situations of risk so as to enhance disaster
preparedness.
(4) The authorities engaged in reconstruction activities subsequent to any situation of risk, armed
conflict or natural disasters shall undertake such activities, in consultation with the concerned State
Commission, in accordance with the accessibility requirements of persons with disabilities.
Section 8 –
(1) No child with disability shall be separated from his or her parents on the ground of disability except
on an order of competent court, if required, in the best interest of the child.
(2) Where the parents are unable to take care of a child with disability, the competent court shall place
such child with his or her near relations, and failing that within the community in a family setting or in
exceptional cases in shelter home run by the appropriate Government or non-governmental
organization, as may be required.
Section 9 –
(1) The appropriate Government shall ensure that persons with disabilities have access to appropriate
information regarding reproductive and family planning.
(2) No person with disability shall be subject to any medical procedure which leads to infertility without
his or her free and informed consent.
Section 10 –
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.
Section 11 –
(1) The appropriate Government shall ensure that persons with disabilities are able to exercise the right
to access any court, tribunal, authority, commission or any other body having judicial or quasi-judicial
or investigative powers without discrimination on the basis of disability.
(2) The appropriate Government shall take steps to put in place suitable support measures for persons
with disabilities specially those living outside family and those disabled requiring high support for
exercising legal rights.
(3) The National Legal Services Authority and the State Legal Services Authorities constituted under
the Legal Services Authorities Act, 1987 shall make provisions including reasonable accommodation to
ensure that persons with disabilities have access to any scheme, program facility or service offered by
them equally with others.
(4) The appropriate Government shall take steps to—
(a) ensure that all their public documents are in accessible formats;
(b) ensure that the filing departments, registry or any other office of records are supplied with necessary
equipment to enable filing, storing and referring to the documents and evidence in accessible formats;
and
(c) make available all necessary facilities and equipment to facilitate recording of testimonies, arguments
or opinion given by persons with disabilities in their preferred language and means of communication.
Section 12 –
(1) The appropriate Government shall ensure that the persons with disabilities have right, equally with
others, to own or inherit property, movable or immovable, control their financial affairs and have access
to bank loans, mortgages and other forms of financial credit.
(2) When a conflict of interest arises between a person providing support and a person with disability
in a particular financial, property or other economic transaction, then such supporting person shall
abstain from providing support to the person with disability in that transaction:
Provided that there shall not be a presumption of conflict of interest just on the basis that the supporting
person is related to the person with disability by blood, affinity or adoption.
(3) A person with disability may alter, modify or dismantle any support arrangement and seek the
support of another:
Provided that such alteration, modification or dismantling shall be prospective in nature and shall not
nullify any third party transaction entered into by the person with disability with the aforesaid support
arrangement.

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 (i) Equality and non-discrimination – Right to enjoy life like with equality to
others.

(ii) Community life – Adopts the principle of reasonable accommodation to

make arrangements for disabled person to accommodate him in the
community.

(iii) Protection from cruelty and inhuman treatment – The Bill ensures that no
person due to his disability is subject to cruel, inhuman treatment which is
against his dignity.

(4) Any person providing support to the person with disability shall not exercise undue influence and
shall respect his or her autonomy, dignity and privacy.
Section 13 –
(1) Notwithstanding anything contained in any other law for the time being in force, on and from the
date of commencement of this Act, where a District Court records a finding that a mentally ill person
is incapable of taking care of himself or herself and of taking any legally binding decisions on his or her
own, it shall make an order for appointment of limited guardian to take care of such mentally ill person
and take all legal binding decisions on his or her behalf in consultation with such person:
Provided that the District Court may grant plenary guardianship to the mentally ill person under
extraordinary situations where limited guardianship could not be awarded.
Explanation.—For the purposes of this section,—
(i) “plenary guardianship” means a guardianship whereby subsequent to a finding of incapacity, a
guardian substitutes for the person with disability as the person before the law and takes all legally
binding decisions for him and the decisions of the person with disability have no binding force in law
during the subsistence of the guardianship and the guardian is under no legal obligation to consult with
the person with disability or determine his or her will or preference whilst taking decisions for him; and
(ii) “limited guardianship” means a system of joint decision which operates on mutual understanding
and trust between the guardian and the person with disability.
(2) On and from the date of commencement of this Act, every guardian appointed under any provision
of any law for mentally ill person shall be deemed to function as limited guardian:
Provided that where a guardian appointed prior to the commencement of this Act, is unable to function
as limited guardian, the concerned District Court may grant plenary guardianship afresh taking into
account all relevant records of the concerned mentally ill person within six months from the date of
commencement of this Act.
Explanation.—For the purposes of this section “District Court” means, in any area for which there is
a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and
includes any other civil court which the State Government may, by notification, specify as the court
competent to deal with all or any of the matters specified in this Act.
Section 14 –
i. The appropriate Government shall designate one or more authorities to mobilize the
community and create social awareness to support persons with disabilities in exercise of
their legal capacity.
ii. The authority designated under sub-section (1) shall take measures for setting up suitable
support arrangements to exercise legal capacity by persons with disabilities living in
institutions and those with high support needs and any other measures as may be required.

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 (iv) Protection from abuse, violence and exploitation – This right gives a
negative right which was missing under the PWD Act, to disabled person
with regards to protection from any abuse or violence.

(v) Protection and safety – The Bill ensures that all the disabled shall be given
equal protection during armed conflict or during any natural disaster.

(vi) Home and family – The Bill gives right to a disabled person to live with
his family and provides that unless and until competent court orders, said
person shall not be separated from his family.

(vii) Reproductive rights – The Bill grants reproductive rights to disabled

persons and further provides that no sterilization shall take place without
obtaining an informed consent from the said person.

(viii) Accessibility in voting

(ix) Access to justice – The Bill makes provision for giving fair representation
to disabled persons before the courts and tribunals and ensures that they
do not suffer any injustice due to their disability.

(x) Legal capacity – The Bill grants disabled persons the right to hold property
just like any normal person can.

Chapter III of the Bill further makes it a mandatory obligation on the government to
provide inclusive education to all. Inclusive education has been defined under Section
2(k) to mean – “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.”

Highlights of the Bill:

 The proposed Draft Bill shall replace the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 and
covers nineteen conditions instead of seven conditions of disabilities specified
in PWD Act. They are namely: autism spectrum disorder; low vision;
blindness; cerebral palsy; deaf blindness; hemophilia; hearing impairment;
leprosy cured person; intellectual disability; mental illness; locomotor disability;

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 muscular dystrophy; multiple sclerosis; specific learning disabilities; speech and
language disability; sickle cell disease; thalassemia; chronic neurological
conditions and multiple disability. The Bill allows the central government to
notify any other condition as a disability.

 The persons with at least 40% of a disability and above considered with
‘benchmark disabilities’ are entitled to certain benefits such as reservations in
education and employment, preference in government schemes, etc.

 The Bill confers several rights and entitlements to disabled persons such as
disabled friendly access to all public buildings, hospitals, modes of transport,
polling stations, etc.

 Persons with disabilities shall have the right to equality, personal liberty and to
live in a community. They will not be obliged to live in any specific
arrangement and shall have access to residential services and community
support.

 The Election Commission (centre and state) has to ensure that polling stations
and all electoral materials are accessible to persons with disabilities. Central
and state governments have to ensure that all public documents are in
accessible formats.

 The Disaster Management Authority (centre and state) will take necessary
steps to include disabled persons in its disaster management activities for their
safety and protection.

 In education, children between the ages of six to eighteen years, with a

benchmark disability, have the right to free education in a neighbourhood
school or special school if required. All government and government-aided
institutions of higher education are required to reserve at least five per cent of
seats for persons with benchmark disabilities. For admission in higher
education institutions, they will be allowed relaxation in the upper age limit, by
five years.

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 In employment, five per cent of government owned or controlled
establishments shall be reserved for persons with benchmark disabilities. One
per cent of this must be reserved for persons with (i) blindness and low vision;
(ii) hearing and speech impairment; (iii) locomotor disability; (iv) autism,
intellectual disability and mental illness; (v) multiple disabilities. The
government may exempt any establishment from this provision.

 The central, state and local governments shall provide incentives to the private
sector to ensure that at least five per cent of their work force is composed of
persons with benchmark disability.

 Five per cent reservation to be provided for persons with benchmark

disabilities in

(i) allotment of agricultural land and housing in all relevant schemes and
programmes;

(ii) poverty alleviation schemes (with priority to women with benchmark

disabilities); and

(iii) allotment of land on concessional rate for purposes of business, enterprise,

etc.

 In case of mentally ill persons, district courts may award two types of
guardianship.

(i) A limited guardian takes decisions jointly with the mentally ill person.

(ii) A plenary guardian takes decisions on behalf of the mentally ill person,
without consulting him.

 The central government shall constitute a National Commission, and state

governments shall constitute a State Commission each, for disabled persons.
The Commissions will be required to: (i) identify any laws, policies or
programmes that are inconsistent with the Act; (ii) inquire into matters relating
to deprivation of rights and safeguards available to disabled persons and
recommend appropriate remedial measures; (iii) monitor implementation of

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 the Act and utilization of funds disbursed by governments for the benefit of
disabled persons, etc.

 The central government shall constitute a Central Advisory Board, and state
governments shall constitute a State Advisory Board each, for disability
matters. State governments shall also constitute District-Level Committees.
The functions of these advisory boards will include: (i) advising the
government on policies and programmes with respect to disability; (ii)
developing a national/state policy concerning persons with disabilities; (iii)
recommending steps to ensure accessibility, reasonable accommodation, non-
discrimination, etc.

 Any person, who violates provisions of the Act, or any rule or regulation made
under it, shall be punishable with imprisonment up to six months and/or a
fine of 10,000, or both. For any subsequent violation, imprisonment of up to
two years and/or a fine of 50,000 to 5,00,000 can be awarded. Whoever
intentionally insults or intimidates a person with disability, or sexually exploits
a woman or child with disability, shall be punishable with imprisonment
between six months to five years and fine. State governments shall notify a
Sessions Court to be a Special Court, in each district, to try offences under the
Act. This shall be done with the concurrence of the Chief Justices of the
relevant High Courts.

Key Issues with the current Disability Bill:

 The Bill, in Section 2(q), curtails the definition under the UNCRPD, and limits
the definition of “persons with disabilities” to “long term physical, mental,
intellectual or sensory impairment which hinder (sic) his full and effective
participation in society equally with others”. By removing the reference to
barriers, the focus is on the impairment of the person, which goes entirely
against the purport of the UNCRPD, while the focus should be on removal of
the barriers that exist in society, and not focusing on the impairment. The facts
that the drafting committee misunderstands the definition of disability are

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 further exemplified by the scheduling of “specified disabilities” under Section
2(x) of the Bill.

 The Draft Bill does a great disservice by the inclusion of Section 24(2) and the
stress on “Prevention of Disabilities” in sub clauses (a) and (b). While there is
no doubt that many disabilities are preventable, this becomes the prerogative
of the Ministry of Health and associated bodies, and not that of the Ministry
of Social Justice and Empowerment which is responsible for the well-being of
persons with disabilities. Similarly, disability is not a curse or an ailment that a
person “suffers from” – unlike what the Bill states while defining “Special
Employment Exchanges” under Section 2 (w).

 Section 64, lays down the Functions of the Central Advisory Board on
Disability, which is to “advise the Central Government and State
Governments on policies, programmes, legislation and projects with regard to
disability.” Another function is to “review and coordinate the activities of all
Departments…dealing with persons with disabilities”. The wording of these
sections create a very limited role, and the Advisory Board will not be
empowered to recognize the needs of accessibility and reasonable
accommodation in other mainstream legislations. Thus, there is no effective
engine of implementation of the rights under the Convention.

 In the Draft Bill of 2012, the Right to Equality is curtailed under Section 3 (3),
which says that the right against discrimination exists “unless it can be shown
that the impugned act or omission is a proportionate means of achieving a
legitimate aim”. The terms “proportionate means” and “legitimate aim” are
highly subjective, and this could be a means of perpetuating discrimination. As
a matter of fact, the term “discrimination on the basis of disability”,
comprehensively defined under the UNCRPD, does not even find mention in
this Bill.

 In Section 39 of the Bill, standards of accessibility are delegated to the National

Commission for the physical environment, transportation, information and
communications, including appropriate technologies and systems, and other

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 facilities and services provided to the public in urban and rural areas. The
Section only speaks of standards, and not enforcing them.

 In Section 40, the facilities for persons with disabilities at bus stops, railway
stations and airports appear to require to conform to the accessibility standards
(presumably laid down by the National Commission) relating only to parking
spaces, toilets, ticketing counters and ticketing machines. The limiting of
accessibility standards to these 4 areas is inexplicable. Secondly, the access to
public transport is also severely limited. It is only mandated wherever
technically feasible and safe for persons with disabilities, economically viable
and without entailing major structural changes in design. This is extremely
vague and means that in practice, it would never actually be implemented.

 Section 43, which deals with “mandatory observance of accessibility norms”,

violates the UNCRPD extension of accessibility measures to all services and
places “open or provided to the public”. However, the Section limits
mandatory observance of accessibility norms only to “establishments”, defined
under Section 2(h) to mean “a corporation established by or under a Central
Act or State Act or an authority or a body owned or controlled or aided by the
Government or a local authority or a Government company as defined in
section 2 of the Companies Act, 2013 and includes Department of a
Government”. Thus, all other buildings are excluded from its purview, which
makes the provision meaningless to persons with disabilities.

 Section 44 refers to “all existing public buildings” having to be made

accessible. The term “public building” is not defined under the Bill. However,
reading Section 43 and 44 together, it appears that Section 44 extends again
only to “establishments”, and Section 43 refers to before commissioning,
completion and occupation, and Section 44 refers to those already in existence.
Again therefore, anything, which is not, an “establishment” will be outside the
purview of the Bill.

 The use of terms like transport, roads, and reference to completion certificates
for possession of buildings etc. indicates that stress is on the built environment

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 and therefore physical access. However, the question of assistance which is
outside the physical movement requirements, like sign language interpretation,
or Braille/large print signage, or other forms of specialized and/or live
assistance, is excluded from this, which are expressly provided for in Sub-
clause 2 (d) and (e) of the Article.

 Section 45 deals with “service providers”. “Service providers” is not defined

under the Bill.

 UNCRPD’s hallmark is the recognition of legal capacity for all persons with
disabilities. Two clauses may be reiterated here: 1. States Parties reaffirm that
persons with disabilities have the right to recognition everywhere as persons
before the law; and 2. States Parties shall recognize that persons with
disabilities enjoy legal capacity on an equal basis with others in all aspects of
life. Neither of these statements have been reflected in the Bill in Section 12.
The Section also refers to “support arrangements” without making any
mention of safeguards, unlike the protocol mandated under the UNCRPD.

 The safeguards in the Bill with regard to appointment and power of guardians
for mentally ill persons are lower than those in the Mental Health Act, 1987.
Under the Bill, a plenary guardian has no legal obligation to determine the will
and preference of the mentally ill person while taking decisions on his behalf.
Such a provision could allow circumstances in which the guardian misuses his
power and acts against the interest of the mentally ill person.

In contrast, the Mental Health Act, 1987 specifies the reporting requirements
to be fulfilled by the guardian when taking care of the mentally ill person or
managing his property. For example, Sections 59, 60 and 71 of the 1987 Act
require the guardian (a) to give maintenance to the mentally ill person and his
dependent family; (b) submit annual reports to the district court of the financial
accounts of the mentally ill person; and (c) to obtain permission of the district
court if the guardian wants to mortgage, lease, sell, exchange immovable
property of the mentally ill person.

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 The Bill does not envisage such safeguards. The appointment of a plenary
guardian is dependent on finding of an extraordinary situation by the district
court. However, the Bill does not provide the principles to be used in
determining what could qualify as an extraordinary situation. Therefore,
different district courts could use different criteria to award plenary
guardianship. This implies that similar cases may be awarded either limited or
plenary guardianship depending on the district court.

 Mental illness or incapacity can prevail in a person temporarily or for short

periods of time. The Bill does not provide for the removal or termination of
guardianship in case the mentally ill person develops the capacity to take
decisions. This is different from the provisions of the Mental Health Act, 1987.
Section 69 of that Act provides for removal of guardians by the district court,
if it finds sufficient cause to do so.

 The Bill defines appropriate government in terms of ownership of

establishments. If an establishment is financed by the Centre, then the central
government is the appropriate government and if it is financed by the state,
then the state government is the appropriate government. This definition
presents no difficulty in terms of obligations related to employment and
education envisaged in the Bill. However, the Bill places certain other
obligations on the appropriate government which could lead to ambiguity in
terms of which government would discharge these obligations.

 The Bill punishes the offence of outraging the modesty of a woman with
disability, with imprisonment of six months to five years and a fine. Section
354 of the Indian Penal Code, 1860 penalises the offence of outraging the
modesty of any woman with imprisonment of one year to five years and fine.
This implies that the Bill is lowering the minimum penalty for offenders against
women with disability, as compared to any other woman.

 The Bill penalises anybody who performs, conducts or directs any medical
procedure to terminate the pregnancy of a woman with disability, without her
consent. However, the Bill makes an exception in the cases of severe disability.

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 It states that in such cases the woman’s consent is not mandatory as long as
the opinion of a registered medical practitioner and the consent of her guardian
have been taken. Section 3(2)(b) of the Medical Termination of Pregnancy
(MTP) Act, 1971 allows for the termination of pregnancy of any woman
between 12 to 20 weeks of pregnancy provided that two registered medical
practitioners are of such opinion. It could be argued that the safeguards against
termination of pregnancy existing in the MTP Act, 1971 (requirement of
opinion of two medical practitioners) are being lowered by the Bill
(requirement of one medical practitioner only).

 The Bill requires every institution for persons with disabilities to register with
a competent authority appointed by the state government. It also specifies the
process for applying, receiving a certificate of registration, grounds for the
revocation of registration and an appeals procedure. However, the Bill
exempts institutions established or maintained by the central or state
government from registration requirements. It is unclear why government
institutions do not need to adhere to registration norms applicable to others.

2.5.4 Comparison of the Bill 2014 with PWD Act, 1995 and Draft Bill, 2011

The table below provides a comparison of some of the key features of the PWD Act,
Draft Bill and the Rights of Persons with Disabilities Bill:

Figure VII: Comparison between 1995 Act, 2011 Draft Bill and Rights of
Persons with Disabilities Bill, 2014

Provision/clause PWD Act, Draft Bill, 2011 Rights of Persons

1995 (prepared by with Disabilities
Sudha Kaul Bill, 2014
Committee)

Number of 7 20 (includes 19
disabilities dwarfism which is
covered

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 not covered in the
2014 Bill).

Extent of At least 40% of Rights and benefits Rights apply to all

disability to be a disability to apply to all persons with
covered under the specified in the persons with disabilities
law Act. disabilities irrespective of
irrespective of extent extent of disability.
of disability Benchmark
disability: Person
with 40% of a
specified disability
can avail of benefits
such as reservation
in education,
employment, other
schemes, etc.

High support No provision. Intensive physical or Same as Draft Bill

needs psychological (only persons with
support, which may benchmark
be required by a disabilities may
person with disability have high support
for participating in needs).
daily activities of life,
etc. Care-giver
allowance to persons
with disabilities
having high support
needs.

Reservations in Employment: Employment: 7% in Employment: 5%

education and 3% in government in government

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employment in government organisations (bands organisations
govt. institutions organisations created amongst all (within that 1% for
(within that 1% disabilities and each specific disabilities).
for specific entitled to 1% within Education: 5% in
disabilities). this). Education: 6% higher education
Education: 3% in each course in institutions (and
higher education. upper age
relaxation of five
years) and free
elementary
education for those
between six to 18
years of age (six to
14 years under
Right to Education
Act, 2009).

Guardianship No provision All existing plenary Addresses

in PWD Act. guardians to be guardianship of
Guardianship converted to limited mentally ill persons
covered under guardians for all in terms of limited
the National persons with and plenary
Trust Act, 1999 disability. guardianship. For
and the Mental other categories of
Health Act, disability, existing
1987. laws will apply.

Legal provisions Chief Disability Rights National

Commissioner, Tribunals to be set Commission to
and up at Centre, and have powers of a
Commissioners each state and Civil Court. Session
for persons district. Courts to be

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 with notified as Special
disabilities, Courts by state
redress governments.
complaints by
aggrieved
parties and act
as Civil Courts.

(Source: PWD Act, 1995; Draft Bill, 2011; RPD Bill, 2014; PRS55)

2.6 Welfare Schemes, Programmes and Measures for The Benefit of Disabled
Persons

As we have already seen that the PWD Act provides for implementation of welfare
scheme for the betterment of the disabled and thus in order to implement the same
the government comes out with different schemes to further the social integration and
rehabilitation of the disabled into the society.

Section 2(w) defines rehabilitation to mean a process aimed at enabling persons with
disabilities to reach and maintain their optimal physical, sensory, intellectual,
psychiatric or social functional levels.56 Further the Act envisages the formation of the

55 Legislative Brief - the Rights of Persons with Disabilities Bill, 2014, (2015),
http://www.prsindia.org/uploads/media/Person%20with%20Disabilities/Legislative%20Brief%20%
20-%20Disabilities%202014.pdf.
56 ‘PWD ACT, 1995 THE PERSONS WITH DISABILITIES’, accessed March 14, 2014,

http://www.unipune.ac.in/dept/education_extension/www/pwd.htm.

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Central Co-ordination Committee57. The function of the Central Co-ordination
Committee is to58:

57Section 3–
(1) The Central Government shall by notification constitute a body to be known as the Central
Co-ordination Committee to exercise the powers conferred on, and to perform the functions
assigned to it, under this Act.
(2) The Central Co-ordination Committee shall consist of-
(a) The Minister in charge of the Department of Welfare in the Central Government,
Chairperson, ex officio;
(b) The Minister of State in-charge of the Department of Welfare in the Central
Government, Vice-Chairperson, ex officio;
(c) Secretaries to the Government of India in-charge of the Departments of Welfare,
Education, Woman and Child Development, Expenditure, Personnel, Training and
Public Grievances, Health, Rural Development, Industrial Development, Urban
Affairs and Employment, Science and Technology. Legal Affairs, Public
Enterprises, Members, ex officio;
(d) Chief Commissioner, Member, ex officio;
(e) Chairman Railway Board, Member, ex officio;
(f) Director-General of Lab our, Employment and Training, Member, ex officio;
(g) Director, National Council for Educational Research and Training, Member, ex
officio;
(h) Three Members of Parliament. of whom two shall be elected by the House of the
People and one by the Council of States, Members;
(I) Three persons to be nominated by the Central Government to
represent the interests, which in the opinion of that Government
ought to be represented, Members;
(II) National Institute for the Visually Handicapped, Dehradun;
(III) National Institute for the Mentally Handicapped, Secundrabad;
(IV) National Institute for the Orthopaedically Handicapped, Calcutta;
(V) Ali Yavar Jung National Institute for the Hearing Handicapped,
Bombay,
1. Members, ex officio;
(i) Four Members to be nominated by the Central Government by rotation to represent
the States and the Union territories in such manner as may be prescribed by the
Central Government:
Provided that no appointment under this clause shall be made except on the recommendation
of the State Government or, as the case may be, the Union territory;
(j) Five persons as far as practicable, being persons with disabilities. to represent non-
governmental Organizations or associations which are concerned with disabilities,
to be nominated by the Central Government, one from each area of disability,
Members:
Provided that while nominating persons under this clause, the Central Government shall
nominate at least one woman and one person belonging to Scheduled Castes or Scheduled
Tribes;
(k) Joint Secretary to the Government of India in the Ministry of Welfare dealing with
the welfare of the handicapped, Member-Secretary, ex officio.
(3) The office of the Member of the Central Co-ordination Committee shall not disqualify its
holder for being chosen as or for being a Member of either House of Parliament.
Section 4 –
(1) Save as otherwise provided by or under this Act a Member of Central Co-ordination
Committee nominated under clause (i) or clause (l) of sub-section (2) of section 3
shall hold office for a term of three years from the date of his nomination:
Provided that such a Member shall, notwithstanding the expiration of his term,
continue to hold office until his successor enters upon his office.

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 (2) The term of office of an ex officio Member shall come to an end as soon as he
ceases to hold the office by virtue of which he was so nominated.
(3) The Central Government may if it thinks fit remove any Member nominated under
clause (i) or clause (1) of subsection (2) of section 3, before the expiry of his term of
office after giving him a reasonable opportunity of showing cause against the same.
(4) A Member nominated under clause (i) or clause (1) of subsection (2) of section 3
may at any time resign his office by writing under his hand addressed to the Central
Government and the seat of the said Member shall thereupon become vacant.
(5) A casual vacancy in the Central Co-ordination Committee shall be filled by a fresh
nomination and the person nominated to fill the vacancy shall hold office only for
the remainder of the term for which the Member in whose place he was so
dominated.
(6) A Member nominated under clause (i) or clause (l) of subsection (2) of section 3
shall be eligible for (7) Members nominated under clause (i) and clause (1) of sub-
section (2) of section 3 shall receive such allowances as may, be prescribed by the
Central Government.
Section 5 –
(1) No person shall be a Member of the Central Coordination Committee, who-
(a) Is, or at any time has been, adjudged insolvent or has suspended payment of his
debts or has compounded with his creditors, or
(b) Is of unsound mind and stands so declared by a competent court, or
(c) Is or has been convicted of an offence which, in the opinion of the Central
Government, involves moral turpitude, or
(d) Is or at any time has been convicted of an offence under this Act. or
(e) Has so abused in the opinion of the Central Government his position as a Member
as to render his continuance in the Central Coordination Committee detrimental to
the interests of the general public.
(2) No order of removal shall be made by the Central Government under this section unless the
Member concerned has been given a reasonable opportunity of showing cause against the
same.
(3) Notwithstanding anything contained in sub-section (1) or sub-section (6) of section 4, a
Member who has been removed under this section shall not be eligible for renomination as a
Member.

6. If a Member of the Central Coordination Committee becomes subject to any of the

disqualifications specified in section 5, his scat shall become vacant.
Section 7 – Lie Central Coordination Committee shall meet at least once in every six months and shall
observe such rules of procedure in regard to the transaction of business at its meetings as may be
prescribed by the Central Government.
Section 8 –
(1) Subject to the provisions of this Act, the function of the Central Coordination Committee
shall be to serve as the national focal point on disability matters and facilitate the continuous
evolution of a comprehensive policy towards solving the problems faced by persons with
disabilities.
(2) In particular and without prejudice to the generality of the foregoing, the Central Coordination
Committee may perform all or any, of the following functions, namely:-
(a) Review and coordinate the activities of all the Departments of Government and
other Governmental and non-Govemmental Organizations which are dealing with
matters relating to persons with disabilities;
(b) Develop a national policy to address issues faced by, persons with disabilities;
(c) Advise the Central Government on the formulation oil policies, programmes,
legislation and projects with respect to disability,
(d) Take up the cause of persons with disabilities with the concerned authorities and the
international organizations with a view, to provide for schemes and projects for the
disabled in the national plans and other programs and policies evolved by the
international agencies;

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 (e) Review in consultation with the donor agencies their funding policies from the
perspective of their impact on persons with disabilities;
(f) Take such other steps to ensure barrier free environment in public places, work
places, public utilities, schools and other institutions;
(g) Monitor and evaluate the impact of policies and programs designed for achieving
equality and full participation of persons with disabilities;
(h) To perform such other functions as may be prescribed by the Central Government.
Section 9 –
(1) The Central Government shall constitute a Committee to be known as the Central Executive
Committee to perform the functions assigned to it under this Act.
(2) The Central Executive Committee shall consist of-
(a) The Secretary to the Government of India in the Ministry of Welfare, Chairperson,
ex officio;

(b) The Chief Commissioner, Member, ex officio;

(b) The Director-General for Health Services, Member, ex officio;
(c) The Director-General, Employment and Training, Member, ex officio;
(d) Six persons not below the rank of a Joint Secretary to the Government of India, to
represent the Ministries or Departments of Rural Development, Education. Welfare,
Personnel Public Grievances and Pension and Urban Affairs and Employment,
Science and Technology, Members, ex officio;
(e) The Financial Advisor, Ministry of Welfare in the Central Government, Member, ex
officio;
(f) Advisor (Tariff) Railway Board, Member, ex officio;
(g) Four members to be nominated by the Central Government, by rotation, to
represent the State Governments and the Union territories in such manner as may
be prescribed by the Central Government;
(h) One person to be nominated by the Central Government to represent the interest,
which in the opinion of the Central Government ought to be represented, Member;
(i) Five persons, as far as practicable, being persons with disabilities, to represent non-
governmental organizations or associations which are concerned with disabilities, to
be nominated by the Central Government, one from each area of disability,
Members:
Provided that while nominating persons under this clause, the Central Government
shall nominate at least one woman and one person belonging to Scheduled Castes
or Scheduled Tribes;
(j) Joint Secretary to the Government of India in the Ministry of Welfare dealing with
the welfare of the handicapped, Member-Secretary, ex officio.
(3) Members nominated under clause (i) and clause (j) of sub-section (2) shall receive such
allowances as may be prescribed by the Central Government.
(4) A Member nominated under clause (i) or clause (i) of sub-section (2) may at any time resign
his office by writing under his hand addressed to the Central Government and the scat of the
said Member shall thereupon become vacant.
Section 10 –
(1) The Central Executive Committee shall be the executive body of the Central
Coordination Committee and shall be responsible for carrying out the decisions of the
Central Coordination Committee.
(2) Without prejudice to the provisions of sub-section (1), the Central Executive Committee
shall also perform such other functions as may be delegated to it by the Central Coordination
Committee.
Section 11 –
The Central Executive Committee shall meet at least once in three months and shall observe such rules
of procedure in regard to the transaction of business at its meetings as may be prescribed by the Central
Government.
Section 12 –

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 1. To serve as a focal point on all disability related matters.

2. To help in analyzing and evolving the law related to disability.

3. To co-ordinate between Governmental departments and government and

non-governmental department on matters relating to disability.

The Central Executive Committee, which is constituted under Section 9 of the Act, is
the body which is responsible for implementation the decisions of the Central Co-
ordinate Committee.

The Act further provides for a Chief Commissioner59 who shall, according to Section
58:

(1) The Central Executive Committee may associate with itself in such manner and for such
purposes as may be prescribed by the Central Government any person whose assistance or
advice it may desire to obtain in performing any of its functions under this Act.
(2) A person associated with the Central Executive Committee under sub-section (1) for any
purpose shall have the right to take part in the discussions of the Central Executive Committee
relevant to that purpose, but shall not have a right to vote at a meeting of the said Committee,
and shall not be a member for any other purpose.
(3) A person associated with the said Committee under sub-section (1) for any purpose shall be
paid such fees and allowances, for attending its meetings and for attending to any other work
of the said Committee, as may be prescribed by the Central Government.

58 ‘Central Coordination Committee (CCC) (page 1) - Committees: Ministry of Social Justice and
Empowerment, Government of India’, 2009, accessed March 14, 2015,
http://socialjustice.nic.in/cccdd.php.
5957. (1) The Central Government may, by notification appoint a Chief Commissioner for persons with

disabilities for the purposes of this Act.

(2) A person shall not be qualified for appointment as the Chief Commissioner unless he has special
knowledge or practical experience in respect of matters relating to rehabilitation.
(3) The salary and allowances payable to and other terms and conditions of service (including pension,
gratuity and other retirement benefits of the Chief Commissioner shall be such as may be prescribed by
the Central Government.
(4) The Central Government shall determine the nature and categories of officers and other employees
required to assist the Chief Commissioner in the discharge of his functions and provide the Chief
Commissioner with such officers and other employees as it thinks fit.
(5) The salaries and allowances and other conditions of service of officers and employees provided to
the Chief Commissioner shall be such as may be prescribed by the Central Government.
58. The Chief commissioner shall ---
(a) Coordinate the work of the Commissioners;
(b) Monitor the utilization of' funds disbursed by the Central Government;
(c) Take steps to safeguard the rights and facilities made available to Persons with disabilities;
(d) Submit reports to the Central Government on the implementation of the Act at such intervals as
that Government may prescribe.
59. Without prejudice to the provisions of section 58 the Chief Commissioner may of his own motion
or on the application of any aggrieved person or otherwise look into complaints with respect to matters
relating to --
(a) Deprivation of rights of persons with Disabilities.

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(b) Non-implementation of laws, rules, byelaws, regulations. Executive orders, guidelines or instructions
made or issued by the appropriate Governments and the local authorities for the welfare and protection
of rights or persons with disabilities. And take up the matter with the appropriate authorities.
60. (1) Every State Government may, by notification appoint a Commissioner for persons with
disabilities for the purpose of this Act.
(2) A person shall not be qualified for appointment as a Commissioner unless he has special knowledge
or practical experience in respect of matters relating to rehabilitation.
(3) The salary and allowances payable to and other terms and conditions of service (including pension
gratuity and other retirement benefits) of the Commissioner shall be such as may be prescribed by the
State Government.
(4) The State Government shall determine the nature and categories of officers and other employees
required to assist the Commissioner in the discharge of his functions and provide the Commissioner
with such officers and other employees as it thinks fit.
(5) The officers and employees provided to the Commissioner shall discharge their functions under the
general superintendence of the Commissioner.
(6) The salaries and allowances and other conditions of service of officers and employees provided to
the Commissioner shall be such as may be prescribed by the State Government.
61. The Commissioner within the State shall-
(a) Coordinate with the departments of the State Government for the programmes and schemes, for
the benefit of persons with disabilities;
(b) Monitor the utilization of funds disbursed by the State Government;
(c) Take steps to safeguard the rights and facilities made available to persons with disabilities.
(d) Submit reports to the State Government on the implementation of the Act at such intervals as that
Government may prescribe and forward a copy thereof to the Chief Commissioner.
62. Without prejudice to the provisions of section 61 the Commissioner may of his own motion or on
the application of any aggrieved person or otherwise look into complaints with respect to matters
relating to---
(a) Deprivation of rights of persons with disabilities;
(b) Non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or
instructions made or issued by the appropriate Governments and the local authorities for the welfare
and protection of rights of persons with disabilities, And take up the matter with the appropriate
authorities.
63. The Chief Commissioner and the Commissioners shall, for the purpose of discharging their
functions under this Act, have the same powers as are vested in a court under the Code of Civil
Procedure, 1908 while trying a suit, in respect of the following matters, namely:-
(a) Summoning and enforcing the attendance of witnesses;
(b) Requiring the discovery and production of any documents;
(c) Requisitioning any public record or copy thereof from any court or office;
(d) Receiving evidence on affidavits; and
(e) Issuing commissions for the examination of witnesses or documents.
(2) Every proceeding before the Chief Commissioner and Commissioners shall be a judicial proceeding
within the meaning directions 193 and 228 of the Indian Penal Code and the Chief Commissioner, the
Commissioner, the competent authority, shall be deemed to be a civil court for the purposes of section
195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
64. (1) The Chief Commissioner shall prepare in such form and at such time for each financial year as
may be prescribed by the Central Government an annual report giving a full account of his activities
during the previous financial year and forward a copy thereof to the Central Government.
(2) The Central Government shall cause the annual report to be laid before each House of Parliament
along with the recommendations explaining the action taken or proposed to be taken on the
recommendation made therein in so far as they relate to the Central Government and the reasons for
non-acceptance, if any, of any such recommendation or part.

65. (1) The Commissioner shall prepare in such form and at such time for each financial year as may be
prescribed by the State Government an annual report giving a full account of his activities during the
previous financial year and forward a copy thereof to the State Government.

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 (i) Submit reports to the Central Government on the implementation of the Act
at such intervals as that Government may prescribe.

(ii) Monitor the utilization of funds disbursed by the Central Government.

(iii) Coordinate the work of the Commissioners.

(iv) Take steps to safeguard the rights and facilities made available to Persons with
disabilities.

(v) He shall also prepare report giving full details of the activities undertaken by
him during the previous financial year.

(vi) The annual report prepared by the Commissioner would be tabled before the
Parliament.

Apart from the above the Central Government has also framed the National Policy
for Persons with Disabilities, 2006; the policy treats disabled as a valuable asset and
aims at60 –

(i) Economic Rehabilitation, by making the disabled financially independent.

(ii) Educational Rehabilitation, by making education accessible to disabled and to

provide meaningful and vocational education as well.

(iii) Physical Rehabilitation to early detect and prevent any disability and provide
medical care to the disabled.

(iv) Special care towards women and children with disability.

(v) Creating of barrier free environment.

(vi) Promote Non – Governmental Organization.

The nodal agencies for implementation of the policy are –

The State Government shall cause the annual report to be laid before each State Legislature along with
the recommendations explaining the action taken or proposed to be taken on the recommendation
made therein in so far as they relate to the State Government and the reasons for non-acceptance, if
any, of any such recommendation or part.
60 ‘National Policy for Persons with Disabilities (page 1) - Acts / Rules & Regulations / Policies /

Guidelines / Codes / Circulars / Notifications - Empowerment of Persons with Disabilities: Ministry

of Social Justice and Empowerment, Government of India’, 2009, accessed March 14, 2015,
http://socialjustice.nic.in/nppde.php.

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 (i) The Ministry of Social Justice & Empowerment is the nodal Ministry to
coordinate all matters relating to implementation of the Policy.

(ii) The Central Coordination Committee, with stakeholder representation,

coordinates matters relating to implementation of the National Policy. There
is a similar Committee at the State level. The Panchayati Raj Institutions and
Urban Local Bodies are associated in the functioning of the District Disability
Rehabilitation Centers.

(iii) They are required to play a crucial role in the implementation of the National
Policy to address local level issues.

(iv) The Ministries of Home Affairs, Health & Family Welfare, Rural
Development, Urban Development, Youth Affairs & Sports, Railways,
Science & Technology, Statistics & Program Implementation, Labor,
Panchayati Raj and Women & Child Development and Departments of
Elementary Education & Literacy, Secondary & Higher Education, Road
Transport & Highways, Public Enterprises, Revenue, Information
Technology and Personnel & Training are also identified for implementation
of the policy.

Apart from the above the Central Government and the State Government have from
time to time come up with different schemes to deal with the rehabilitation of the
disabled and it becomes essential to outline the government’s approach in this regard,
in order to better appreciate the scope of interference of Non-Governmental
Organizations, in this field. The chapter would thus highlight the same by focusing on

(i) The schemes of Central Government for disabled.

(ii) The schemes of the Government of Gujarat

(iii) Different Government Institutions working for disability rights.

2.6.1 Central Government Schemes

India being the welfare state always protected the rights of the vulnerable sections of
the society. In this regard, the Central government devised various schemes and

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programmes with regards to the disability rights. A separate Department of Disability
Affairs was carved out of the Ministry of Social Justice and Empowerment on May 12,
2012. The Department was renamed as Department of Empowerment of Persons with
Disabilities on December 08, 2014. The Department acts as a Nodal Agency for
matters pertaining to disability and Persons with Disabilities including effecting closer
coordination among different stakeholders: related Central Ministries, State/UT
Governments, NGOs etc. in matters pertaining to disability.

The purpose of highlighting these schemes is to show the direction in which the
Government has been discharging its positive duty under the PWD Act. Following are
the various schemes provided by the Central Government for the rights of disabled
people.

(i) Central Sector Scheme of Pre-matric scholarship and Post matric

scholarship for students with disabilities61

General Overview- The situation of the disabled people worsened with the changes in
the economic conditions of most of the Indian families. Most of the times the
additional cost of medical expenses and other expenses is so high that an average
Indian family cannot also bear the cost of education and other amenities related to it.
Thus, adding intellectual and social disability to the natural disability, which already
existed for the disabled people. While the act of god cannot be changed, however the
artificial difficulties can be fought and it is for this purpose only that this scheme has
been enacted.

The scheme covers the expenses of pre-matric as well as post-matric expenses along
with the ancillary expenses.

1. The scheme came has been enforced since 1.04.2014.

2. This scheme strives to achieve the following objectives:

(a) To reduce the drop-out rate amongst disabled students and to increase
their participation in the education process.

61‘Scholarship Schemes: Ministry of Social Justice and Empowerment, Government of India’, 2009,
accessed March 11, 2015, http://socialjustice.nic.in/scholarships.php.

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 (b) The scheme aims at overcoming the psychological, mental, financial
and physical barriers faced by disabled students. It aims to help them
find a dignified position in society through education and skill
development.

3. Scope:

(a) Under this scheme every year pre-matric scholarship of 46,000 and
post-matric scholarship of 16,650 is sanctioned.

(b) The number of candidates to be given scholarship is divided across the

States and UTs on the basis of number of disabled students in a
respective state.

(c) Out of the total number of slots, 50 percent is reserved for girl
students, provided if due to some reason these slots remain vacant the
same are given to male students.

(d) The scheme covers only Indian nationals.

(e) The scheme is applicable to those who are studying in classes IX, X,
XI, XII, post-matriculation diploma/certificates and Bachelors Degree
of Diploma in India.

(f) These students should be covered under the PWD Act, 1995 and the
National Trust for the Welfare of Persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities Act, 1999.

4. Conditions for both pre-matric and post-matric scholarship schemes:

(a) The students having less than 40% disability (Certified by competent
medical authority of the state Governments/UTs.) are not eligible.

(b) Unless and until the second child is twin, not more than two disabled
children of the same parents will be entitled to receive benefits of the
scheme.

(c) For pre-matric scholarship the annual income of the

parents/guardians should not exceed 2,00,000/- and for post – matric
scholarship the annual income does not exceed 2,50,000/-.
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(d) The scholarship would not be given for repeat year.

(e) The beneficiary under this scheme should not be availing the benefit
of any other scholarship. However the beneficiary would not be
precluded from availing from accepting free lodging or a grant or ad-
hoc monetary help from the State Government or any other source for
the purchase of books, equipment or for meeting the expenses on
board and lodging in addition to the scholarship amount paid under
this scheme.

(f) Any student who is receiving financial assistance from Central

Government/State Government will not be eligible under the
coaching schemes for the duration of the coaching programme.

(g) In addition to the above the following conditions need to be met for
post-matric scholarship:

(h) The scholarship does not cover the following course: Aircraft
Maintenance Engineer’s Courses and Private Pilot license Courses.
Courses at Training-Ship Dufferin (now Rajendra), courses of training
at the Military College, Dehradun, courses at Pre-examination Training
Centers of all India and State levels.

(i) Only those candidates who have passed the Matriculation or Higher
Secondary or any higher examination of a recognized University or
Board of Secondary Education will be eligible.

(j) Courses at the level of post-graduate degree/diploma/certificate are

not covered under this scheme.

(k) Candidates who after passing one stage of education are studying in
the same stage of education in different subject e.g. B.Com., after B.A.
in other subject will not be eligible.

(l) Students who are pursuing two different courses of study

simultaneously can avail the scholarship for any one course only

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 provided pursuance of such courses are permissible under the
rules/regulations of the Educational Authority concerned.

(m) Students studying in Class XI of the Higher Secondary School courses

of the Class XII of the Multipurpose High School will not be eligible
for it being a continuous school course. However, in cases where Class
X examination of such courses is treated as equivalent to Matriculation
and students who after passing Class X join other courses, such
students will be treated as post-matric students and will be eligible for
the award of scholarships.

(n) Students who after failing or passing the under graduate examinations
in Arts/Science/Commerce join any recognized professional or
Technical certificate/diploma/degree courses will be awarded
scholarships if otherwise eligible. No subsequent failure will be
condoned except courses in Group-I.

(o) Students who pursue their studies through correspondence courses are
also eligible. The term correspondence includes distant and continuing
education.

(p) Employed students whose income combined with the income of their
parents/guardians does not exceed the maximum prescribed income
ceiling are made eligible to post-matric scholarships to the extent of
reimbursement of all compulsorily payable non-refundable fees.

5. The value of Post-matric scholarship includes the following for complete

duration of the course:

(a) Maintenance allowance;

(b) Additional allowance for students with disabilities, for the complete
duration of the course;

(c) Reimbursement of compulsory non – refundable fees;

(d) Study tour charges;

(e) Typing/printing charges for preparing Reports/projects;

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 (f) Book allowance for students pursuing correspondence courses; and

(g) Book bank facility for specified courses.

6. The scholarship is dependent on the satisfactory progress and conduct of the

scholar. If it is reported by the Head of the Institution at any time that a scholar
has by reasons of his/her own act of default failed to make satisfactory
progress or has been guilty of misconduct such as resorting to or participating
in strikes, irregularity in attendance without the permission of the authorities
concerned etc., the authority sanctioning the scholarship may either cancel the
scholarship or stop or withhold further payment for such period as it may
think fit.

7. If a student is found to have obtained a scholarship by false statements, his/her

scholarship will be cancelled forthwith and the amount of the scholarship paid
will be recovered, further the student concerned will be blacklisted and
debarred for scholarship in any scheme forever.

8. A scholarship awarded may be cancelled if the scholar changes the subject of

the course of study for which the scholarship was originally awarded.

9. A scholar is liable to refund the scholarship amount at the discretion of the

Department of Disability Affairs, Government of India, if during the course
of the year, the studies for which the scholarship has been awarded, is
discontinued by him/her.

10. Maintenance allowance is payable from 1st April or from the month of
admission, whichever is later, to the month in which the examinations are
completed, at the end of the academic year (including maintenance allowance
during holidays), provided that if the scholar secures admission after the 20th
day of a month, the amount will be paid from the month following the month
of admission. In case of pre-matric scholarship maintenance allowance shall
be payable only up to ten months in an academic year.

11. In case of renewal of scholarships awarded in the previous years, maintenance

allowance will be paid from the month following the month up to which
scholarship was paid in the previous year, if the course of study is continuous.

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 12. Scholarship will not be paid for the period of internship/houseman ship in the
M.B.B.S. course or for a practical training in other courses if the student is in
receipt of some remuneration during the internship period or some
allowance/stipend during the practical training in other course.

13. Merit Criteria for Selection:

(a) Fulfillment of eligibility conditions as given in the scheme.

(b) Recommendation of the State Education Department.

(c) Number of slots available to the State.

(d) Merit of the candidate in terms of percentage of marks obtained in the

qualifying examination.

(e) In case of a tie in percentage of marks, the percentage of disability will

be considered i.e. the candidate with higher percentage of disability will
get preference. In case there is there is still a tie, the age will be
considered i.e. the older candidate will get preference.

(ii) Scheme of National Scholarships for Persons with Disabilities62

General Overview- While the above scheme covered the pre-matric and post-matric
studies in all the field, this scholarship is aimed to promote disabled students to take
up professional courses and stand on their legs.

The main motive of the scheme is to aim for financial independence of the disabled
students; the scheme also makes provision for bearing expenses for extra educational
requirements which a disabled student may need to pursue these courses, owing to his
special circumstances.

(a) Under this scheme the applicant should have at least 40% disability, which is
certified according to the criteria laid down by the Persons with Disabilities
Act 1995.

(b) Scholarship under this scheme will be given for pursuing one course only.

62‘Scheme of National Scholarships for Persons with Disabilities (page 1) - Schemes / Programmes -
Empowerment of Persons with Disabilities: Ministry of Social Justice and Empowerment, Government
of India’, 2009, http://socialjustice.nic.in/nsawardadv0809.php.

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 (c) Financial assistance is given to those who are pursuing post-Matric/Post-
Secondary technical and professional courses including Ph.D & M.Phil from
recognized institutions. However, for students with disabilities of Cerebral
Palsy, Mental Retardation, Mental Disabilities, and Profound or Severe
Hearing Impaired, the minimum educational qualification will be class VIII
pass and scholarship will be awarded to them for pursuing general, technical,
vocational or professional courses.

(d) Financial assistance can be given for computer with editing software for
blind/deaf graduate and postgraduate students pursuing professional courses
and for support access software for cerebral palsied students.

(e) Continuation/renewal of the award for next year will depend on successfully
completing the course in the preceding year with minimum 50(fifty) percent
marks.

(f) The Assistance under this Scheme is not intended for Post-Matric/Post-
Secondary Technical/Professional courses having duration of less than one
year.

(g) A scholarship holder under this scheme will not concurrently hold any other
scholarship/stipend. If already any other scholarship/stipend awarded, the
student is required to exercise his/her option for choosing the scholarship that
he/she proposes to avail and inform awarding authority about the same.

(h) The monthly family income should not be more than Rs. 15,000/- from all
sources.

(iii) Deendayal Disabled Rehabilitation Scheme to promote Voluntary

Action for Persons with Disabilities63

General Overview- Under this scheme the Government tries to develop an inclusive
educational system. The aim of this educational system is to identify and encourage

63 ‘Deendayal Disabled Rehabilitation Scheme to Promote Voluntary Action for Persons with
Disabilities (revised DDRS Scheme) (page 1) - Deendayal Disabled Rehabilitation Scheme (DDRS) -
Schemes / Programs - Empowerment of Persons with Disabilities: Ministry O’, 2009,
http://socialjustice.nic.in/ddrs.php.

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disabled students to join the mainstream education system at a young age, further to
develop techniques to provide education to these students, provide special schools and
carry out research to further find ways to rehabilitate the disabled students with the
mainstream of the society. The scheme aims to include the key players of the society
in this endeavor. Further the scheme realizes the shortcomings of the government
schemes in understanding and addressing the problems of these students and hence
promotes establishment of self-help groups for this purpose.

1. The objectives of this scheme are to:

(a) To make real the provisions enshrined under the PWD Act of 1995.

(b) To achieve an environment of equal treatment, equity and social justice

for disabled persons.

2. Approach and Strategy:

(a) To enhance educational opportunities at all levels and in all forms and
enlarge the scope of vocational and professional opportunities, income
generation and gainful occupations.

(b) To support all such measures as may be necessary for promoting

formal as well as non-formal employment and placement
opportunities.

(c) To implement outreach and comprehensive Community Based

Rehabilitation programs in urban and rural environments.

(d) To support manpower development activities to train required

personnel at different levels for all programs/ projects/activities for
persons with disabilities.

(e) To support the development, publication and dissemination of

information, documentation and training materials.

(f) To set up well equipped resource centers at different levels. To

promote and support the development of self-help groups, parent
organizations and independent living.

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 (g) To encourage coordination, cooperation and networking and multi-
sector linkages.

(h) To support people with disabilities in projects which are environment

friendly.

(i) To support construction and maintenance of buildings, provision of

furniture and fixtures and installation and maintenance of machinery
and equipment.

(j) To establish and support facilities for sport, recreation, leisure-time

activities, excursions, creative and performing arts, cultural and socially
inclusive activities.

(k) To support and facilitate the availability of appropriate housing, homes

and hostel facilities.

(l) To support the conduct of surveys and other forms of epidemiological

studies.

(m) To promote research in various development areas, innovative

strategies, assistive devices and enabling technologies and support
production of such devices ensuring quality control.

(n) To support effort to ensure protection of human, civil and consumer

rights of persons with disabilities.

(o) To support legal literacy, including legal counseling, legal aid and
analysis and evaluation of existing laws.

(p) To support such other measures, which may meet the needs of the
persons with disability and fulfill the obligations as prescribed in the
PWD Act of 1995.

3. The scheme covers the following projects:

(a) Project for Pre-School and Early Intervention and Training:

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 (i) The primary objective is to prepare infants and children upto
6 years of age for schooling in special schools and/or
integration at the appropriate stage in regular schools.

(ii) The project also provides for therapeutic services, day care
and counseling of parents.

(b) Special Schools:

(i) Special school projects for the mentally challenged, the

hearing and speech impaired and the visually challenged are
supported.

(ii) The main thrust of special education is to develop

communication skills and other sensory abilities, with the end
objective varying from acquiring daily living skills to
integration in regular institutions of learning and society in
general.

(iii) Residential facilities can also be covered under the grant.

Continuing projects for special schools for Orthopedically
Handicapped children are being funded, but there is no model
project.

(c) Project for Cerebral Palsied Children:

(i) The objective is similar to projects for special schools, with

more emphasis on catering to the therapy needs of the
individual.

(d) Vocational Training Centers:

(i) These projects are meant for persons with disabilities in the
age group of 15-35 years and are expected to provide skills to
enable such persons to move towards economic independence.

(ii) An illustrative list of trades and the maximum period of

training has been specified in the scheme.

(e) Sheltered Workshops:

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 (i) The objective is similar to vocational training centers and the
projects are meant for creating income generation
opportunities.

(f) Project for Rehabilitation of Leprosy Cured Persons:

(i) The basic aim of this project is to empower leprosy cured

persons with skills to enable them to improve their socio-
economic condition.

(ii) The projects can include vocational training units and homes
(only for severely disabled).

(g) Half way home for Psycho-Social Rehabilitation of Treated and

Controlled Mentally Ill Persons:

(i) The objective of this project is to provide a facilitating

mechanism for rehabilitation of persons whose mental illness
is treated and controlled, after their discharge from mental
hospitals/asylums.

(ii) The project provides vocational training for such persons and
counseling for them and their families to facilitate reintegration
with the family/society.

(iii) Medical advice/treatment relating to their illness is also

provided so that periodic psychiatric disturbances can be
managed.

(h) Home Based Rehabilitation Program/Home Management Program:

(i) The objectives of this project include guidance and provision

for mobility skills, development of basic communication skills
and daily living skills, training and sensitization of families of
children with disabilities, in the context of the home
environment.

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(i) Project for Community Based Rehabilitation:

(i) The objective of this project is to rehabilitate and train

disabled individuals and integrate them into their communities.

(ii) The focus is on partnership between the disabled persons,

families, and community and health professionals to provide
needed services in a non-institutional setting, in an
environment where services for disabled persons are seriously
limited or absent.

(iii) These projects are particularly relevant in rural areas

(j) Project for Low Vision Centers:

(i) These projects provide facilities for medico-rehabilitation of

persons with low vision.

(ii) The centers provide identification, assessment, rehabilitation

and counseling services and assist individuals with low vision
to reach their maximum potential through guidance and
improvement of visual efficiency.

(k) Projects for Human Resource Development:

(i) These projects provide training for trainers in special

education; develop resource centers and networking of
resources in the field of rehabilitation of the disabled.

(l) Seminars/Workshops/Rural Camps

(i) Lump-sum grant is provided under this project to support

seminars/workshops/rural camps with specified objectives,
outcomes and tangible outputs.

(m) Environment Friendly and Eco-Promotive Projects for the

Handicapped

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 (i) Environment friendly and eco-promotive projects by the
disabled like gardening, horticulture, raising of nurseries and
planting of trees are supported.

(n) Grant for Computer

(i) Computers of appropriate configuration as per requirement

can be provided under this project. Grant for computers is also
an admissible component under various other projects under
this scheme.

(o) Construction of Building

(i) Support for construction of class rooms, vocational training

or employment centers and hostel buildings is provided under
this project.

(p) Project for Legal Literacy, including Legal Counseling, Legal Aid and
Analysis and Evaluation of Existing Laws.

(i) Support for such projects is provided in the form of

honoraria for para-legal trainers and other staff, contingencies
and court expenses.

(q) District Disability Rehabilitation Centers:-

(i) The objective is to support the functioning of District

Disability Rehabilitation Centers set up by the Government,
after these are handed over to voluntary agencies. These
Centers are involved in awareness generation, rehabilitation
and training at the grassroots level.

4. The following organizations are eligible to get the benefit under this scheme:

(a) A registered society registered under the Societies Registration Act,

1860 or any relevant Act of the State/Union Territory.

(b) A Public Trust

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 (c) A charitable company licensed under Section 25 of the Companies Act,
1952

(d) The above mentioned bodies should also satisfy the following
additional requirements:-

(i) They should have been registered for at least 2 years at the
time of applying for grant under this scheme.

(ii) The bodies should have a properly constituted managing

body with powers, duties and responsibilities defined in
writing.

(iii) The objective of the body shall not be to earn profit and
should function as a not for profit entity.

(iv) Should possess the requisite skills and experience for

undertaking the program.

(v) Its financial position should be sound.

(vi) It should ordinarily have existed for a minimum period of 2

years.

5. The benefits under this scheme would be given in the following manner:

(a) Recurring Expenditure:

(i) Honorarium against staff deployed for the project by the

voluntary organization

(ii) Transportation for beneficiaries

(iii) Stipend for beneficiaries/hostel maintenance

(iv) Cost of Raw Materials

(v) Contingencies to meet office expenses, electricity and water

charges, etc.

(vi) Rent

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 (b) Non-Recurring Expenditure:

(i) Furniture

(ii) Equipment

(iii) Building construction

(iv) Books

(iv) Scheme for Awareness Generation and Publicity64

General Overview- One of the reasons that unlike America and Europe, the disability
rights have failed to gather steam is the lack of awareness. Generating awareness about
any topic can be difficult in a country like India whose social and economic diversity
is unmatched. Through this scheme the government tries to achieve this difficult task.
To raise awareness the scheme provides for using multimedia and providing help lines.
The focus group of this scheme is employers and people living in the rural area, whose
co-operation is essential in removing the social barriers that exists for the disabled in
the society.

1. The objective of the scheme is to:

(a) To give wide publicity, including event based publicity etc. through
electronic, print, film media, and multimedia, to the schemes,
programs being run by the Department of Disability Affairs and other
Central Ministers, State Governments etc. for the welfare of disabled
including their social, economic and educational empowerment.

(b) To create an enabling environment for social inclusion of the Different

Abled in all fields of life by providing equal opportunities, equity &
social justice and to ensure confidence building in the disabled persons
so that, they can realize their aspirations.

(c) To bring to the notice of all stake holders including disabled and civil
society about the legal rights of the disabled as enshrined in the

64‘Schemes / Programmes - Empowerment of Persons with Disabilities: Ministry of Social Justice and
Empowerment, Government of India’, 2009, http://socialjustice.nic.in/schemespro3.php.

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 constitution, international conventions, Persons with Disabilities Act,
1995 and subordinate legislations.

(d) To sensitize the employers and other similar groups on the special
needs of the especially abled persons.

(e) To promote awareness and to sensitize society with focus on remote

and rural areas, on causes leading to disability and prevention through
early detection etc.

(f) To encourage volunteer action for ensuring effective implementation

of the legal provisions and welfare schemes meant for the disabled
persons.

(g) To develop content for rehabilitation of different types of disabilities.

(h) To provide for help lines.

(i) To provide for effective grievance redressal.

(j) To extend financial support for National & International events

organized by reputed organizations on disabilities.

(k) To create or to facilitate creation of facilities conducive to the

recreation of disabled which may include inter alia tourism, educative,
medical and religious tourism.

(l) To extend financial support for participation in the Community Radio

Programmes/Scheme of the Ministry of I&B.

2. Approach and Strategy:

(a) The schemes shall spread awareness through social networking and
maintain accessible website etc.

(b) Conducting seminars, workshops, cultural activities, fairs, exhibitions

etc. either directly or through socially active groups/organizations.

(c) Participating in national and international initiatives in the field of

disability.

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(d) Conducting studies, surveys, enumeration and evaluation programs on
the special needs of disabled including availability of technology,
assistive aids and appliances etc.

(e) Coordinating and consolidating efforts made in the field by different

departments, organizations.

(f) Financial assistance to self-help groups, parent’s organizations etc.

working for development of ‘social good’ and ‘community welfare’.

(g) To support activities like showing of programs exclusively prepared

and performed by disabled persons on TV, by bearing the cost
involved on honoraria to performers, boarding, lodging and
transportation and payments due to the electronic media.

(h) Organizing special events, celebration of special days etc.

(i) Lack of co-ordination between different service providers in the field

health education, housing and equipment undermines their
effectiveness. Ministries of Health, Education, Labour and Rural
Development are also doing some work in the field of disability. For
successful implementation of all such initiatives, an Inter-Ministerial
Committee which may co – ordinate across organizations to improve
distribution of services and referral system, promote joint ventures,
joint negotiations, sharing knowledge and expertise, sharing specialist
educator, and disseminating system may be setup under the
Department.

(j) Panchayati Raj Institution may be involved wherever expedient.

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(v) Central Sector Plan Scheme of National Overseas Scholarship for Students
with Disabilities65

General overview – The scheme aims to promote disabled to pursue masters and PhD
from overseas universities by covering all in and out expenses that a student needs to
incur in pursuing his education.

1. Under this scheme twenty scholarships per year are given to disabled students,
for pursuing Master’s level courses and Ph.D abroad in the following
discipline:

(a) Engineering & Management;

(b) Pure Sciences & Applied Sciences;

(c) Agricultural Science & Medicine;

(d) Commerce, Accounting & Finance and

(e) Humanities, Social Science & Fine Arts.

2. Out of the twenty scholarships, six are reserved for women candidates and, if
for any specific year eligible candidates are not available to the extent
prescribed for any of the above mentioned discipline, the remaining
scholarship shall become open for candidates belonging to other categories of
disabled groups or subjects as per merit grades attained by such candidates.

3. Eligibility:

(a) For Ph.D- First class or 55% marks or equivalent grade in relevant
Master’s Degree. Preference is given to the experience candidates,
especially to those who are on lien with their existing post and
employer.

(b) For Master’s Degree- 55% marks or equivalent grade in relevant

Bachelor’s Degree. Preference is given to experienced candidates,

65‘Scholarship Schemes: Ministry of Social Justice and Empowerment, Government of India’, 2009,
accessed March 11, 2015, http://socialjustice.nic.in/scholarships.php.

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 especially to those who are on lien with their existing post and
employer.

(c) The age of the applicant should be less than 35 years, as on first day of
the month of the advertisement of the scheme.

(d) The total sources of the income of applicant shall not exceed
6,00,000/- per annum.

(e) The benefits of this scheme are not available to more than two children
of the same parents/guardians.

4. Assistance given under this scheme is provided in the following manner:-

(a) Annual Maintenance Allowance:

(i) For United State of America and other countries except

United Kingdom, the annual maintenance allowance of US $
15,400/- is given.

(ii) For United Kingdom an annual maintenance allowance of

GBP 9,900/- is given.

(b) Annual Contingency Allowance:

(i) For countries except for United Kingdom contingency

allowance for books/essential apparatus/study tour/travel
cost for attending subject related conferences, workshops etc./
typing and binding of thesis etc. is US$ 1500/-

(ii) For United Kingdom the amount is GBP 1100/-

(c) Incidental Journey Allowance:

(i) The Incidental Journey allowance is US $ 20/-(twenty only)

or its equivalent in Indian Rupees.

(d) Equipment Allowance: An equipment allowance is 1500/-(Rupees one

thousand five hundred only).

(e) Poll Tax- Actual expense incurred in paid under this head.

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 (f) Visa Fees: Visa fees incurred in Indian Rupees is paid.

(g) Fees: Tuition fees as incurred is paid.

(h) Medical Insurance Premium: Actual as charged is admissible.

(i) Cost of Air Passage: Cost of air travel to and fro to the nearest place
of educational institution is given.

(j) The above mentioned financial assistance for PhD program is available
for 4 years and for Masters’ Degree for 3 years.

5. Selection Procedure:

(a) Application from the candidates would be called through newspaper

advertisement.

(b) The application would be scrutinized by the Screening Committee,

after which the applicants would be called for personal interview
before the Selection Committee.

(c) The Selection Committee will finally and decisively complete the
selection procedure to decide the merit.

(vi) Scheme of Assistance to Disabled Persons for Purchase/Fitting of

AIDS/Appliances (ADIP Scheme)66

General Overview – An essential ingredient in removing the barriers from society is

to help make the field level for both disabled and the normal people of the society. An
essential part in this is played by aids and appliances which to a substantial extent
remove the disability that exists in the eyes of the society. This scheme is an attempt
by the government to provide these aids at marginal costs to a large number of
beneficiaries, who by the use of these equipment can overcome their disability. The
scheme for this tries to provide a procedure for authorizing an agency to carry out this
task on behalf of the government.

66‘ADIP Scheme’, accessed March 11, 2015,

http://pib.nic.in/newsite/PrintRelease.aspx?relid=113992.

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1. Objectives of the Scheme:

(a) The main objective of the Scheme is to assist the needy disabled
persons 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
benefits under this scheme are implemented through an implementing
agency.

2. Eligibility of Implementing Agency under the Scheme:

(a) Societies, registered under the Societies Registration Act, 1860 and
their branches, if any, separately.

(b) Registered charitable trusts.

(c) District Rural Development Agencies, Indian Red Cross Societies and
other Autonomous Bodies headed by District Collector/Chief
Executive Officer/District Development Officer of Zila Parishad.

(d) National/Apex Institutes including Artificial Limbs Manufacturing

Corporation (ALIMCO) functioning under administrative control of
the Ministry of Social Justice and Empowerment/Ministry of Health
and Family Welfare.

(e) State Handicapped Development Corporations.

(f) Local Bodies- Zila Parishad, Municipalities, District Autonomous

Development Councils and Panchayats.

(g) Nehru Yuvak Kendras.

(h) Apart from the above-mentioned criteria the implementing agency

would also have to satisfy the following conditions:

(i) The implementing agency will be fully competent to satisfy

about the monthly income of the beneficiary and shall obtain
a certificate from the concerned competent authority. The
identification of the beneficiaries has to be done by an expert
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 in accordance with guidelines issued by Ministry of Social
Justice and Empowerment in this regard.

(ii) The implementing agency will maintain a register in the

prescribed pro forma about the beneficiaries assisted under the
Scheme.

(iii) The implementing agency shall maintain a separate accounts

of funds received and utilized from the Ministry of Social
Justice and Empowerment under the Scheme. The fund should
be kept in a separate bank account to be operated under ADIP
scheme.

(iv) A certificate from the Head of the Implementing Agency to

the effect that the funds have been utilized.

(v) The final accounts for a financial year will be rendered

through utilization certificate and audited accounts signed by
chartered accountant within six months of the close of the
financial year.

(vi) The agency implementing the scheme will obtain an

undertaking from the beneficiary that he/she has not obtained
such aid from any other agency/source during last two years
and that he/she not obtained such aid from any other
agency/source during last three years and that he/she will keep
it for his/her bona fide use.

(vii) The agency implementing the scheme will be open to

inspection by an officer/agency authorized by Union Ministry
of Social Justice and Empowerment or the State
Government/UT Administration/National Institutes/DRCs
etc.

(viii) When the Government of India has reasons to believe that

the sanction is not being utilized for the approved purpose the
amount would be recovered from the implementing agency

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 with interest and no further assistance would be given to the
agency.

(ix) The quantum of assistance to be given to an implementing

agency during a particular year will be decided by the
Government of India. The implementing agencies would,
therefore, not incur any liability under the Scheme unless the
funds have been sanctioned to them for the purpose.

(x) At least 25% beneficiaries should be girl child/women.

3. Eligibility of the Beneficiaries

(a) The applicant should be an Indian citizen.

(b) The applicant should be certified by a Registered Medical Practitioner

that he/she is disabled and fit to use prescribed aid/appliance.

(c) Person who is employed/self-employed or getting pension and whose

monthly income from all sources does not exceed 10,000/- per month.

(d) In case of dependents, the income of parents/guardians should not

exceed 10,000/- per month.

(e) Persons who have not received assistance from the Government, local
bodies and Non-Official Organizations during the last 3 years for the
same purpose. However, for children below 12 years of age this limit
would be 1 year.

4. Types of AIDS/Appliances to be Provided:- AIDS/Appliances are provided

keeping in mind the disability suffered by the applicant, the disabilities and
their relief are provided as follows:-

(a) Locomotor Disabled:

(i) All types of prosthetic and orthotic devices.

(ii) Mobility aids like tricycles, wheelchairs, crutches walking

sticks and walking frames. Motorized tricycles for persons with
locomotor disability that are likely to cost more than ` 6,000/-

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 may be procured and provided in exceptional cases subject to
prior approval of Ministry of Social Justice and Empowerment
on case to case basis. Extent of subsidy would however
continue to be ` 6,000/- for all other devices ceiling is ` 6,000/-

(iii) All types of surgical footwear’s and MCR chapels.

(iv) All types of devices for ADL (activity of daily living)

(b) Visually Disabled:

(i) Learning equipment’s like arithmetic frames, abacus,

geometry kits etc. Giant Braille dots system for slow-learning
blind children. Dictaphone and other variable speed recording
system. CD player/Tape recorder for blind student from X
standard.

(ii) Science learning equipment’s like talking balances, talking

thermometers, measuring equipment’s like tape measures,
micrometers etc.

(iii) Braille writing equipment’s including Braillers, Braille

shorthand machines, typewriters for blind students from X
class. Talking calculators, Geography learning equipment like
raised maps and globes.

(iv) Communication equipment’s for the deaf-blind. Braille

attachments for telephone for deaf- blind persons.

(v) Low vision aids including hand-held stand, lighted and

unlighted magnifiers, speech synthesizers or Braille
attachments for computers.

(vi) Special mobility aids for visually disabled people with

muscular dystrophy or cerebral palsy like adapted walkers.

(vii) Software for visually handicapped persons using computers

that are likely to cost more than ` 6,000/- may be procured and
provided in exceptional cases subject to prior approval of

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 Ministry of Social Justice and Empowerment on case to case
basis. For all other devices ceiling is ` 6,000/-.

(c) Hearing Disabled:

(i) Various types of hearing aids.

(ii) Educational kits like tape recorders/CD players etc.

(iii) Assistive and alarming devices including devices for hearing

of telephone, TV, doorbell, time alarm etc.

(iv) Communication aids, like portable speech synthesizer etc.

(d) Mentally Disabled: Any suitable device as advised by Rehabilitation

Professional or treating physician.

vii. Scheme for Providing Employment to Persons with Disabilities in the

Private Sector67

General Overview – A very big lacuna in the PWD Act that has already been pointed
out is that it is inapplicable to the private sector. This scheme of the government,
although not in a coercive way but in a persuasive way, tries and involve the private
sector into the welfare of the disabled persons.

(a) The scheme is applicable to the employees with disabilities:

(b) Employees covered under the PWD Act, 1955 and the National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and
Multiple Disabilities Act, 1999.

(c) Under this scheme the employers would submit a copy of the disability
certificate, issued to the disabled employee by the Competent Authority
under the PWD Act, 1995 and the Persons with Disabilities (Equal

67‘Scheme for Providing Employment to Persons with Disabilities in the Private Sector - Incentives to
the Employers (page 1) - Schemes / Programmes - Empowerment of Persons with Disabilities: Ministry
of Social Justice and Empowerment, Government of India’, 2009, accessed March 11, 2015,
http://socialjustice.nic.in/incentdd.php?format=print.

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 Opportunities, Protection of Rights and Full Participation) Rules, 1996,
first time when such benefit under EPF and ESI is claimed.

(d) The Government will directly provide employer’s contribution for the
schemes covered under the Employees Provident Fund & Miscellaneous
Provisions Act, 1952 and the Employees State Insurance Act, 1948. This
will be done in respect of employees for a maximum period of three years.
The administrative charges of 1.1 percent of the wages of the employees
covered under the EPF Act will continue to be paid by the respective
employers.

(e) The Ministry of Social Justice & Empowerment would make available to
the Employees Provident Fund Organization and Employees State
Insurance Corporation lump sum funds by way of advance. These would
be used for the purposes of adjustment of individual claims received from
the employers under the scheme. The amount with the organizations
would be replenished periodically. Initially both the organizations would
be provided ` 5 crore each and considering the requirement, the amount
would be subsequently enhanced.

(f) The advance amount would be subject to quarterly review by the high level
committee to be set up.

After going through the above schemes, it can be concluded that the schemes of the
central government are focused mainly on-

(a) To provide inclusive education.

(b) To connect all the stakeholders.

(c) Providing access to education to disabled students.

(d) Promote the disabled students to take up professional courses.

(e) Bridge the gap between the disabled and the private sector.

(f) Create awareness about disability rights.

The following schemes were launched by Hon’ble Minister of Social Justice &
Empowerment on 24-11-2015:
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(i) DISHA (Early Intervention and School Readiness Scheme):- This is an
early intervention and school readiness scheme for children in the age group
of 0-10 years with the four disabilities covered under the National Trust Act
and aims at setting up Disha Centres for early intervention for Persons with
Disabilities (PwDs) through therapies, trainings and providing support to
family members. RO should provide day-care facilities to PwDs for at least 4
hours in a day (between 8 am to 6 pm) along with age specific activities. There
should be a Special Educator or Early Intervention Therapist, Physiotherapist
or Occupational Therapist and Counsellor for PwDs along with Caregiver and
Ayas in the centre. The revised Early Intervention Scheme will have provision
to cover 0 to 10 year age group of children in place of 0 to 6 age group as
envisaged in the earlier scheme. The set up cost has been increased from Rs.
50,000 to Rs. 1.55 lakh. Similarly, the yearly grant has been increased form Rs.
1.55 lakh to Rs. 5.40 lakh.
(ii) VIKAAS (Day Care):- This is a Day care scheme, primarily to expand the
range of opportunities available to a person with disability for enhancing
interpersonal and vocational skills as they are on a transition to higher age
groups. The centre will also offer caregiving support to Persons with
Disabilities (PwDs) during the time the PwDs are in the Vikaas centre. In
addition it also helps in supporting family members of the Persons with
disabilities covered under the National Trust Act to get some time during the
day to fulfil other responsibilities. RO should provide day-care facilities to
PwDs for at least 6 hours in a day (between 8 am to 6 pm) along with age
specific activities. Day care should be open for at least 21 days in a month.
(iii) SAMARTH (Respite Care):- The objective of Samarth scheme is to provide
respite home for orphans or abandoned, families in crisis and also for Persons
with Disabilities (PwDs) from BPL & LIG families including destitute with at
least one of the four disabilities covered under the National Trust Act. It also
aims at creating opportunities for family members to get respite time in order
to fulfil other responsibilities. This scheme aims at setting up Samarth Centres
for providing group home facility for all age groups with adequate and quality

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 care service with acceptable living standards including provision of basic
medical care from professional doctors.
(iv) GHARAUNDA (Group Home for Adults):- The objective of Gharaunda
scheme is to provide an assured home and minimum quality of care services
throughout the life of the persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities with adequate and quality care service
with acceptable living standards including provision of basic medical care from
professional doctors. Gharaunda Centre should provide vocational activities,
pre-vocational activities and assistance for further training.
(v) ‘NIRAMAYA’ Health Insurance Scheme:- The scheme is to provide
affordable Health Insurance to persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities. The enrolled beneficiaries get a health
insurance cover upto Rs.1.0 lakh, by paying a nominal fee of Rs.250/- p.a. for
family income upto Rs.15,000/- per month and Rs.500/- for others having
income above Rs.15,000/- per month.
(vi) SAHYOGI (Caregiver training scheme):- This scheme aims at setting up
Caregiver Cells (CGCs) to provide training and create a skilled workforce of
caregivers to provide adequate and nurturing care for Persons with Disabilities
(PwDs) and their families who require it. It also seeks to provide parents an
opportunity to get trained in care giving, if they so desire. This scheme will
provide a choice of training through two levels of courses primary and
advanced to allow it to create caregivers suited to work both with Persons with
Disabilities (PwDs) families and other institutions catering to the needs of the
PwDs (NGOs, work centres etc.).
(vii) GYAN PRABHA (Educational support):- Gyan Prabha scheme aims to
encourage people with Autism, Cerebral Palsy, Mental Retardation and
Multiple Disabilities for pursuing educational courses like graduation courses,
professional courses and vocational training leading to employment or self-
employment. The National Trust will provide a specific amount per course to
a PwD which will generally cover fees, transportation, books, out of pocket
expenses (OPEs) etc.

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 (viii) PRERNA (Marketing Assistance):- Prerna is the marketing assistance
scheme of the National Trust with an objective to create viable and widespread
channels for sale of products and services produced by Persons with
disabilities (PwDs) covered under the National Trust Act. This scheme aims
at providing funds to participate in events such as exhibitions, melas, fairs, etc.
to sell the products made by PwDs. The scheme also provides an incentive to
the Registered Organisations (ROs) based on the sales turnover of the
products made by PwDs. The National Trust shall fund RO participation in
national, regional, state and district level events such as fairs, exhibitions, melas
etc. for marketing and selling products and services prepared by PwDs.
(ix) SAMBHAV (Aids and Assisted Devices):- This is a scheme to setup
additional resource centres, one each in each city of the country with
population greater than 5 million (As per 2011 census), to collate and collect
the Aids, software and other form of assistive devices developed with a
provision of display and demonstration of the devices. The scheme also
includes maintaining information, pertaining to aids and assistive devices
present at Sambhav centre, on the National Trust website. These centres aim
to provide information and easy access to devices, appliances, aids, software
etc. for betterment and empowerment of PwDs of the National Trust
disabilities.
(x) BADHTE KADAM (Awareness and Community Interaction):- This
scheme shall support Registered Organisations (ROs) of The National Trust
to carry out activities that focus on increasing the awareness of The National
Trust disabilities. Aim of scheme is to create community awareness,
sensitisation, social integration and mainstreaming of Persons with Disabilities.

Accessible India Campaign (Sugamya Bharat Abhiyan):

The Department of Empowerment of Persons with Disabilities, Ministry of Social

Justice & Empowerment has launched the Accessible India Campaign68 (Sugamya
Bharat Abhiyan) on 3rd December, 2015 on the occasion of International Day for
Persons with Disabilities, as a nationwide flagship campaign for achieving universal

68 http://accessibleindia.gov.in/content/innerpage/about-accessible-india-campaign.php.

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accessibility for Persons with Disabilities and to create an enabling and barrier free
environment, with a focus on three important components: Built Environment
Accessibility; Public Transportation System Accessibility and Information &
Communication Eco-system Accessibility.

(i) Built Environment Accessibility: There is a need for accessible physical

environment is beneficiary for all including the persons with disabilities. The
measures should be undertaken to eliminate obstacles and barriers to indoor
and outdoor facilities including schools, medical facilities, and workplaces.
These would include not only buildings, but also footpaths, curb cuts, and
obstacles that block the flow of pedestrian traffic by constructing steps and
ramps, corridors, entry gates, emergency exits, parking – as well as indoor and
outdoor facilities including lighting, signages, alarm systems and toilets.
(ii) Public Transportation System Accessibility: Transportation is an
important component for making ones as empowered in today’s era. The
transportation includes buses, railways, air travels, taxis etc. There is a
requirement of accessible airports without any kind of barriers for the persons
with disabilities. This covers the built environment – surfaces, steps and ramps,
corridors, entry ways, emergency exits, parking – as well as indoor and outdoor
facilities including lighting, signage, alarm systems and toilets.
(iii) Information & Communication Eco-system Accessibility: In the
information age, everyone should get equal opportunity to access the
information such as to read price tags, to physically enter a hall, to participate
in an event, to read a pamphlet with healthcare information, to understand a
train timetable, or to view webpages.

2.6.2 Gujarat Government Welfare Scheme for Disabled Persons

Chapter III69 of the PWD Act provides for State Level Co-ordinate Committee whose
main aim is to as provided under Section 18(2)-

1. 69Every State Government shall, by notification, constitute a body to be known as the State
Co-ordination Committee to exercise the powers conferred on, and to perform the function
assigned to it, under this Act.
2. the State Coordination Committee shall consist of

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 a. The Minister-in-charge of the Department of Social Welfare in the State
Government, Chairperson, ex officio;
b. the Minister of State in charge of the Department of Social Welfare, if any, Vice-
Chairperson, ex officio;
c. Secretaries to the State Government in charge of the Departments of Welfare,
Education, Woman and Child Development, Expenditure, Personnel Training and
Public Grievances, Health, Rural Development, Industrial Development, Urban
Affairs and Employment, Science and Technology, Public Enterprises, by whatever
name called, Members, ex officio;
d. Secretary of any other Department, which the State Government considers
necessary, Member, ex officio;
e. Chairman Bureau of Public Enterprises (by whatever name called) Member, ex
officio;
f. five persons, as far as practicable, being persons with disabilities, to represent
nongovernmental organizations or associations which are concerned with disabilities,
to be nominated by the State Government, one from each area of disability,
Members:
Provided that while nominating persons under this clause, the State Government shall nominate at least
one woman and one person belonging to Scheduled Castes or Scheduled Tribes;
g. three Members of State Legislature, of whom two shall be elected by the Legislative
Assembly and one by the Legislative Council, if any;
h. three persons to be nominated by that State Government to represent agriculture,
industry or trade or any other interest, which in the opinion of State Government
ought to be represented, Members, ex officio;
i. The Commissioner, Member, ex officio;
j. Secretary to the State Government dealing with the welfare of the handicapped,
Member-Secretary, ex officio.
3. Notwithstanding anything contained in this section, no State Co-ordination Committee shall
be constituted for a Union territory and in relation to a Union territory, the Central
Coordination Committee shall exercise the functions and perform the functions of a State
Coordination Committee for the Union territory:
Provided that in relation to a Union territory. The Central Coordination Committee may delegate all or
any of its powers and functions under this sub-section to such person or body of persons as the Central
Government may specify.
14. Terms and Conditions of Service of Members. -
1. Save as otherwise provided by or under this Act, a Member of a State Co-ordination
Committee nominated under clause (f) or clause (h) of subsection (2) of section 13 shall hold
office for a term of three years from the date of his nomination:
Provided that such a Member shall, notwithstanding the expiration of his term, continue to hold office
until his successor enters upon his office.
2. The term of office of an ex officio Member shall come to an end as soon as he ceases to hold
the office by virtue of which he was so nominated.
3. The State Government may, if it thinks fit, remove any Member nominated under clause (f)
or clause (h) of sub-section (2) of section 13, before the expiry of his term of office after giving
him a reasonable opportunity of showing cause against the same.
4. A Member nominated under clause (f) or clause (h) of sub-section (2) of section 13 may, at
any time, resign his office by writing under his hand addressed to the State Government and
the seat of the said Member shall thereupon become vacant.
5. A casual vacancy in the State Co-ordination Committee shall be filled by a fresh nomination
and the person nominated to fill the vacancy shall hold office only for the remainder of the
term for which the Member in whose place he was so nominated.
6. A Member nominated under clause (f) and clause (h) of sub-section (2) of section 13 shall be
eligible for renomination.
7. Members nominated under clause (f) and clause (h) of sub-section (2) of section13 shall receive
such allowances as may be prescribed by the State Government.
15. Disqualifications. -

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 1. No person shall he a Member of the State Co-ordination Committee, who -
a. is, or at any time, has been adjudged insolvent or has suspended payment of his debts or has
compounded with his creditors; or
b. is of unsound mind and stands so declared by a competent court, or
c. is or has been convicted of an offence which in the opinion of the State Government involves moral
turpitude, or
d. is or at any time has been convicted of an offence under this Act, or
e. has so abused, in the opinion of the State Government, his position as a member as to render his
continuance in the State Coordination Committee detrimental to the interests of the general public.
2. No order of removal shall be made by the State Government under this section unless the
Member concerned has been given a reasonable opportunity of showing cause against the
same.
3. Notwithstanding anything contained in sub-section (1) or sub-section (6) of section 14, a
Member who has been removed under this section shall not be eligible for renomination as a
Member.
16. Vacation of Seats. - If a Member of the State Co-ordination Committee becomes subject to any
of the disqualifications specified in section 15, his seat shall become vacant.
17. Meetings of the State Co-ordination Committee. - The State Co-ordination Committee shall
meet at least once in every six months and shall observe such rules of procedure in regard to the
transaction of business at its meetings as may be prescribed.
18. Functions of the State Co-ordination Committee. -
1. Subject to the provisions of this Act, the function of the State Co-ordination Committee shall
be to serve as the state focal point on disability matters and facilitate the continuous evolution
of a comprehensive policy towards solving the problems faced by persons with disabilities.
2. In particular and without prejudice to the generality of the foregoing function the State
Coordination Committee may, within the State perform all or any of the following functions,
namely:-
a. (a) review and coordinate the activities of all the Departments of Government and
other Governmental and Non-Governmental Organizations which are dealing with
matters relating to persons with disabilities.,
b. (b) develop a State policy to address issues faced by persons with disabilities;
c. (c) advise the State Government on the formulation of policies, Programmes,
legislation and projects with respect to disability;
d. review, in consultation with the donor agencies, their funding from the perspective
of their impact on persons with disabilities;
e. take such other steps to ensure barrier-free environment in public places, work
places, public utilities, schools and other institutions;
Provided that while nominating persons under this clause, the State Government shall nominate at least
one woman and one person belonging to Scheduled Castes or Scheduled Tribes;
f. monitor and evaluate the impact of policies and programmes designed for achieving
equality and full participation of persons with disabilities;
g. to perform such other functions as may be prescribed by the State Government.
19. State Executive Committee. -
1. The State Government shall constitute a committee to be known as the State Executive
Committee to perform the functions assigned to it under this Act.
2. The State Executive Committee shall consist of
a. the Secretary, Department of Social Welfare, Chairperson, ex officio;
b. the Commissioner, Member, ex officio;
c. nine persons not below the rank of a Joint Secretary to the State Government, to
represent the Departments of Health, Finance, Rural Development, Education,
Welfare, Personnel Public Grievances, Urban Affairs Labor and Employment,
Science and Technology, Members, ex officio;
d. one person to be nominated by the State Government to represent the interest,
which in the opinion of the State Government ought to be represented. Member;
e. five persons, as far as practicable being persons with disabilities. to represent
nongovernmental organizations or associations which are concerned with disabilities,

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 1. “Review and coordinate the activities of all the Departments of Government and other
Governmental and non-Governmental Organizations which are dealing with matters relating
to persons with disabilities;

2. Develop a State policy to address issues faced by persons with disabilities;

to be nominated by the State Government, one from each area of disability,

Members:
Provided that while nominating persons under this clause, the State Government shall nominate at least
one woman and one person belonging to Scheduled Castes or Scheduled Tribes;
f. Joint Secretary dealing with the disability division in the Department of Welfare,
Member-Secretary, ex officio.
3. Members nominated under clause (d) and clause (e) of sub-section (2) shall receive such
allowances as may be prescribed by the State Government.
4. A Member nominated under clause (d) or clause (e) may at any time resign his office by writing
under his hand addressed to the State Government and the seat of the said Member shall
thereupon become vacant.
20. Functions of the State Executive Committee. -
1. The State Executive Committee shall be the executive body of the State Co-ordination
Committee and shall be responsible for carrying out the decisions of the State Co-ordination
Committee.
2. Without prejudice to the provisions of sub-section (1), the State Executive Committee shall
also perform such other functions as may be delegated to it by the State Co-ordination
Committee.
21. Meetings of the State Executive Committee. - The State Executive Committee shall meet at
least once in three months and shall observe such rules of procedure in regard to the transaction of
business at its meetings as may be prescribed by the State Government.
22. Temporary association of Persons with State Executive Committee for particular purposes.
-
1. The State Executive Committee may associate with itself in such manner and for such
purposes as may be prescribed by the State Government any person whose assistance or advice
it may desire to obtain in performing any of its functions under this Act.
2. A person associated with the State Executive Committee under sub-section (1) for any purpose
shall have the right to take part in the discussions of the State Executive Committee relevant
to that purpose, but shall not have a right to vote at a meeting of the said Committee, and
shall not be a member for any other purpose.
3. A person associated with the said Committee under sub-section (1) for any purpose shall be
paid such fees and allowances, for attending its meetings and for attending to any other work
of the said Committee, as may be prescribed by the State Government.
23. Power to give directions. - In the performance of its functions under this Act,-
a. the Central Co-ordination Committee shall be bound by such directions in writing, as the
Central Government may give to it; and
b. the State Co-ordination Committee shall be bound by such directions in writing, as the Central
Co-ordination Committee or the State Government may give to it:
Provided that where a direction given by the State Government is inconsistent with any direction given
by the Central Coordination Committee, the matter shall be referred to the Central Government for its
decision.
24. Vacancies not to invalidate proceedings. - No act or proceeding of the Central Coordination
Committee, the Central Executive Committee, a State Co-ordination Committee or a State Executive
Committee shall be called in question on the ground merely on the existence of any vacancy in or any
defect in the constitution of such Committees.

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 3. Advise the State Government on the formulation of policies. Programs, legislation and
projects with respect to disability;

4. Review, in consultation with the donor agencies, their funding from the perspective of their
impact on persons with disabilities;

5. Take such other steps to ensure barrier free environment in pupil’s places. Work places,
public utilities, schools and other institutions;

6. Monitor and evaluate the impact of policies and programs designed for achieving equality and
full participation of persons with disabilities;

7. To perform such other functions as may be prescribed by the State Government.”

It is in this backdrop that the State Governments frame their policies to deal with the
rights of the disabled persons. While each state has its own unique set of policies, it
would be extremely difficult to cover all of them. Therefore, for the purpose of this
study, I would only concentrate on some of the schemes framed by the Gujarat
Government in this regard.

(i) Scheme of giving Handicapped Identity Card to handicapped (Blind,

Short-sighted, Deaf, Bone – related deficiency, Psychological
deficiency, Psychological illness) persons.70

(a) Under this scheme, a Handicapped Identity Card is issued to disabled.

This scheme covers disabled persons who are a permanent resident of
Gujarat. By means of this card the disabled would be able to utilize the
benefit of different schemes launched by the Government for their
benefit.

(b) This scheme covers the following category of citizens:

i. Any handicapped person with more than 40 percent disability.

ii. Deaf and Blind persons.

70‘Disability Identify Card Scheme: Gujarat’, Resources, July 31, 2014, http://enabled.in/wp/disability-
identify-card-scheme-gujarat/.

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 iii. Mentally retarded persons which brilliancy rate with 70 percent
or below.

(ii) Scheme of giving material assistance to handicapped persons71

(a) This scheme aims at minimizing the hardships faced by the disabled to
secure employments and to promote self-employment amongst this
class.

(b) This scheme is for the benefit of deaf and blind persons or any persons
who suffers with more than 40 percent disability.

(c) Under this scheme the following help is given to disabled:

i. For artificial limbs – Ghodi, Calipers, Tricycles, Bicycles,

Wheel Chairs are given to disabled persons.

ii. For self-employment, Hand Cart, Sewing machine, material

for shoe making, carpentry, electric repairing, tools for
Computer repairing, embroidery machine are given.

iii. Hearing Aid and other material assistance to Deaf persons.

iv. Musical instruments for Blind persons.

(d) The financial benefits under this scheme is given upto a limit of
5,000/-.

(e) The following requirements are to be satisfied to avail the benefits of

this scheme:-

i. The applicant should be between the ages of five to fifty

years.

ii. The total annual income should not be more than 25,000/-

iii. The applicant should be domiciled in the state of Gujarat.

iv. The applicant should be the holder of handicap identity card.

71‘Scheme for Posthetic Aid and Appliance to Disable Persons (Dir., Social Defence)’, accessed March
14, 2015, http://www.sje.gujarat.gov.in/dsd/showpage.aspx?contentid=1567&lang=English.

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(iii) Scheme for giving handicapped scholarships to handicapped persons72

(a) Education is the most important tool in fighting against any kind of
oppression and for the progress of any class. However, many citizens
and specially the disabled are deprived of this opportunity because of
lack of resources. The objective of this scheme is to fill up this gap
between talent and opportunity. The scheme aims at helping disabled
children of economically weaker class by helping them in purchase of
books and other necessary items and sharing with them the economic
burden of education.

(b) Under this scheme a disabled student studying from Class I to VII are
paid a scholarship of Rs. 1,000/- per annum, which is deposited to
respective primary school by the Taluka Development Officer.

(c) For those students studying in higher classes a scholarship of 1,500/-

to a maximum of ` 5,000/- per annum is paid, which is deposited
directly with the Principal of the School or College.

(d) Under this scheme the power to sanction the scholarship is vested with
the District Social Security Officer.

(e) In order to be eligible to avail the benefits of this scheme the following
conditions must be met by the applicant:

i. The applicant must be suffering from more than 40 percent

disability.

ii. The applicant should have cleared the predeceasing

examination with at least 40 percent marks.

iii. The annual income of the family should not exceed beyond
50,000/- and if the applicant is a studying in Class VIII and
above he should also have a Handicapped Identity Card in
order to be eligible to receive scholarship.

72 ‘National Handicapped Finance and Development Corporation, India’,

http://www.nhfdc.nic.in/registration_form.aspx.

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 iv. For the purpose of receiving benefits under this scheme the
applicant must be a regular student.

(f) The benefits of this scheme cannot be availed if:

i. The applicant is not a regular student.

ii. The applicant has decided to discontinue his studies.

iii. The applicant becomes deceased.

iv. The applicant is already receiving benefits under the

Scholarship of Backward Class or Scheduled Tribes.

v. The disability is less than 40 percent.

(iv) Scheme of free traveling in the GSRTC buses to the handicapped persons.73

(a) Freedom to move freely throughout the territory of India is an

essential fundamental right guaranteed to every citizen of India. But
the disabled due to their special circumstances cannot take the benefit
of this right. Therefore, in order to place them on equal footing with
other individuals and aid them in travelling from point to another, the
Gujarat government has introduced this scheme.

(b) Under this scheme a disabled can travel intrastate at free cost in the
GSRTC buses.

(c) To be covered under this scheme, the applicant must be suffering from
disability which is 40 percent or more or should be 100 percent blind
or deaf.

(d) The scheme will also be applicable to any person with brilliance rate of
70 percent or less than 70 percent.

(e) The person claiming benefit under this scheme must be a permanent
resident of Gujarat and should have an income which is below
2,50,000/-.

73‘Free Travel in State Road Transport Buses (GSRTC) for Disable Persons. (Director, Social
Defence)’, http://www.sje.gujarat.gov.in/dsd/showpage.aspx?contentid=1573&lang=English.

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 (f) This scheme also covers a co-traveler accompanying a disabled person,
having disability of 75 percent or more, with concession upto 50
percent of the fare.

(g) For a co-traveler accompanying a blind person a 100 percent relief is

available.

(h) 50 percent relief is giving to co-traveler accompanying a mentally

retarded person.

(v) Indira Gandhi National Disability Pension Scheme (INDPS) and Saint
Surdas Scheme74

(a) This scheme has been in existence since 22.11.2000 and provides for
finance assistance to severely handicapped persons.

(b) Under this scheme 200/- per month is paid to any disabled person
who is below 17 years of age.

(c) 400/- per month is paid to those who are in the age of between 18 to
64 years.

(d) This assistance is paid through a money order or in some cases it is

credited to bank or post office given by the applicant.

(e) The benefits of this scheme can be availed by anyone who has not
completed the age of 64 years or does not have a son who is 21 years
old or when the income of the applicant or his/her family surpasses
the stipulated limit.

(f) The stipulated limit of income under this scheme would be upto the
score of 16 in the BPL for rural areas and to the beneficiaries of urban
areas, on who possesses the BPL beneficiary mark as per the guidelines
of Urban Development.

74 ‘Indira
Gandhi National Disability Pension Scheme (IGNDPS) and Saint Surdas Scheme (for Severely
Handicapped), http://www.sje.gujarat.gov.in/dsd/showpage.aspx?contentid=1577&lang=English.

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 (g) The applicant should have a disability of 80 percent or above. The
certification of disability should be obtained from the Civil Surgeon.

(h) Further to be eligible the applicant should be a permanent resident of

Gujarat since 10 years and be a holder of Handicapped Identity card
of issued by the Government of Gujarat.

(vi) Maharshi Ashtavakra Community Based Scheme 75

(a) This is a community based scheme, wherein the main purpose is to

cater data of the disabled persons and act as a means to help them avail
different facilities given by the Government for them.

(b) Under the purview of this scheme, 1 Supervisor and 12 Field Workers
are appointed to ensure that the disabled persons are able to access the
Government schemes, thus facilitating interaction between the
disabled and the government sector.

(vii) Gujarat Social Group (Public) Accidental Insurance Scheme76

(a) Pursuance to the Insurance Assistance Scheme effected vide Social

Justice and Empowerment Department Resolution No. APG –
102005 – N.I. 4 – CHH – 1, dated 28.03.2007

(b) Under this scheme beneficiaries are identified by Nodal Officers of

respective Departments, who are appointed as per the provisions of
the Resolution passed under this Scheme by the concerned
Department.

(c) Under this scheme insurance is paid to permanently disabled, when

disablement is caused in anyway other than suicide attempt.

(d) In case of any dispute the decision of the Authorized

Officer/Committee of the Government is deemed to be conclusive
and binding on the person claiming.

75 ‘Maharshi Ashtavakra Community Based Scheme (director, Social Security)’,

http://www.sje.gujarat.gov.in/dsd/showpage.aspx?contentid=1579&lang=English.
76 ‘Scheme of Family Insurance Disable Persons (director, Social Defence)’, accessed March 11, 2015,

http://www.sje.gujarat.gov.in/dsd/showpage.aspx?contentid=1581&lang=English.

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(e) Benefits that can be claimed under this scheme is as follows:

i. Compensation to the limit of 1,00,000/- is payable under this

scheme to a disabled person covered under this Policy.

ii. 100 percent amount is paid in case of permanent disability.

iii. 100 percent is case of loss of two eyes, 2 body parts or limbs
due to accident.

iv. 100 percent in case of loss of 1 eye and one body part each due
to accident.

v. 50 percent in case of loss of one eye or one body part due to

accident.

(f) The following persons can act as nominee of the beneficiaries under
this scheme:-

i. Husband or Wife.

ii. His/her young son/daughter

iii. His/her parents

iv. His/her grandson/granddaughter (if the person mentioned in

the above three category is non – existent).

v. Unmarried or widowed sister who lives with the beneficiary.

vi. In any other case or in case of a dispute a nominee declared

under the Nominee Act would be considered to be eligible.

vii. For a nominee who is a minor, his/her natural/legal guardian

would be paid the insurance amount.

(g) The following documents should be attached along with the claim
application:-

i. Handicapped Identity Card

ii. F.I.R.

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 iii. Certificate issued by the Civil Surgeon/Authorized Local
Doctor of the concerned District.

iv. Proof of Age.

vii. Scheme of Higher Education Assistance to the handicapped students77

(a) The scheme has been enacted to help the disabled students pursue
higher education and becoming self-reliant.

(b) To avail the benefit of this scheme the following condition has to be
met:

(i) The applicant’s age must be more than 18 years and below 35
years.

(ii) The disabled studying for SSC, HSC and Graduate are entitled
for the benefit of this scheme.

(iii) The annual income of the beneficiary or his/her family should

not be more than 24,000/-

(iv) The applicant must be a permanent resident of Gujarat for 10

years.

(c) Under this scheme, 50 percent of the course fee or 2,500/- whichever
is less, is given for higher education and all types of vocational and
technical courses.

(viii) Scheme of assistance for house construction to handicapped widows78

(a) The scheme has been formulated with an aim to help disabled widows
having disability of 40% or more, to live a dignified life.

(b) Under this scheme housing assistance is given to the disabled widows,
whereby pucca house are provided to them in a time bound manner.

77‘Scheme of Higher Education Assistance to the Handicapped Students (director, Social Defence)’,
http://sje.gujarat.gov.in/dsd/showpage.aspx?contentid=1583&lang=English.
78 ‘Assistance to Disable Widows for House Construction (director, Social Defence)’,

http://sje.gujarat.gov.in/dsd/showpage.aspx?contentid=1585&lang=English.

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(c) Priority is given to those applicants who belong to the BPL category.

(d) The conditions to be satisfied in order to be eligible for benefits under

this scheme are:

(i) Even if the disabled widows possess a kacha, mud-house,

grass roofed houses which are registered in the books of Gram
Panchayat, and are not suitable for living, are entitled for the
benefit of this scheme. Which means that the person who does
not possess a house, which is not included in the definition of
pucca house made of bricks, stone and cement is entitled for
this benefit.

(ii) The applicant or her late husband should necessarily have a

plot registered in the records of the Gram
Panchayat/Revenue/City Survey or any other competent
office and the applicant must be in possession of that plot.

(iii) A receipt of the property tax is also be adduced in addition

to the above documents.

(iv) However, the disabled widows, who may not have a plot
with the Revenue/City Survey etc. but have possession of a
plot in their name and registered through documents, would
be eligible for assistance.

(v) Even those applicants possessing plot area compatible with

requirements provided under other schemes would also be
qualified.

(vi) The benefit of this assistance can also be given to the

nominee applicant, who holds perceptible possession of the
total plot, which is inherited and not registered in
Revenue/City Survey records, with the permission of all the
nominees for construction of a house on that plot.

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 (vii) The applicant should be a resident of the urban/rural area
for 5 continuous years, where she wants to build the house.

(viii) The applicant should not be in prior receipt of benefit

under this scheme or Rural Housing Scheme/Dr. Ambedkar
Housing Scheme, Pandit Deendayal Upadhyay Housing
Scheme, Sardar Awas Yojana of any Department or Scheme
for housing of any Department of the Government.

(ix) The disabled woman should submit the Certificate by a

competent Officer showing the date of death of her husband.

(x) The certificate issued by the District Civil Surgeon regarding

the extent of disability and the Handicapped Identity Card
issued on that basis by the District Social Security Officer shall
be valid.

(xi) The definition of family in this scheme includes the person

herself, her children, and children of step-mother, and also
parents or mother-in-law, father-in-law who are living with
her.

(e) The financial assistance is divided into three installments and is given
in the following manner:

(i) The housing assistance under this scheme will be of 40,000/-

(Rupees Forty Thousand only).

(ii) The housing assistance under this scheme would be payable

in three installments.

(iii) Payment of the amount of installment would be made on

approval of the application.

(iv) 25 percent amount would be paid as first installment of the

housing assistance.

(v) 50 percent amount towards second installment of the

housing assistance would be paid on submission of Certificate

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 showing the construction upto terrace level. (This Certificate
must be issued by the competent officer mentioned at Sr. No.
7 of the terms and conditions).

(vi) The third and last installment of housing assistance would be

paid on submission of Certificate showing the completion of
construction work.

(vii) The amount of third installment would be paid, after

completion of construction work, on submission of Certificate
by Overseer of Taluka Panchayat, Additional Assistant
Engineer - for rural areas and State Government, Municipal
Corporation, Dy. Assistant Engineer or the competent officer
or his higher officer whom the Government has fixed for this
purpose for urban areas.

(viii) The basis for approval of the applications received in the

concerned District is kept in proportion to the availability of
grant.

(f) Time frame for completion of the construction:

(i) The houses under this scheme shall be completed within the
time period of two years of the approval of the application.

(ii) The District Social Security Officer shall be the responsible

authority to recover back the amount of installment of housing
assistance from those beneficiaries who have failed to
complete the construction within the stipulated time period.

(iii) Any delay can only be condoned by the District Social

Security Officer only after giving written reasons.

(g) Nodal Offices responsible for implementation:

(i) The implementation of this scheme shall be done by the

concerned District Social Security Officer.

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(ii) The work of complete examination as to whether the
beneficiary is entitled for the benefit as per the stipulated terms
and conditions and provisions of the Resolution, would be
done by the District Social Security Officer.

(iii) The application for housing assistance should be arranged

serial number-wise.

(iv) If the applications are of the applicants who live below the
poverty line, then the applications should be approved on
priority basis as per the BPL Registration number.

(v) At the time of implementation of housing assistance on

individual basis, the estimate and basis approved for Sardar
Patel Housing Scheme should be adopted, if possible. The
basis fixed by the Resolutions of the Panchayat, Rural Housing
and Rural Development Department of the government from
time to time, be adopted. Even though, attention should be
paid to the local situation of the plot held by the applicant with
a view to accomplish the scheme. Likewise, the Officer should
see that reasonable decision is taken on the basis of completion
certificate and expenditure made on the house in the cases
where the house is constructed as per the approved plan and
partial difference in the measurement and size is occurred; so
as to avoid unnecessary loss to the beneficiary.

(vi) As per the revised provision of the Sardar Patel Housing

Scheme, the assistance in this scheme can be given to the
slanted roofed houses of Mangalore tiles in place of RCC Slab.

(vii) Director, Social Security Department will take a surprise

spot examination of the 5% of the houses constructed under
this scheme every year and make arrangements to submit the
report of the eligibility of the houses so constructed, to the
Government.

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(ix) Scheme of Operation and subsequent program for Polio patients79

(a) The scheme has been enacted with the aim of tendering to the health
of Polio affected children, so as to help prevent its occurrence.

(b) The scheme has been implemented with the help of Voluntary
Organizations.

(c) In order to be a beneficiary under this scheme, the income of the

parents/guardians should not be more than 11,000/-.

(d) Under this scheme maximum financial benefit of upto 3,500 can be
availed, this sum would further be divided into 2,000 for medical
expenses and 1,500 for Calipers.

(x) State Awards for working towards welfare of disabled80

(a) The awards under this scheme is divided into two sections,
organization and individual.

(b) For Organizations an award of 50,000/- cash and a citation is given

for the first position and award of 45,000/- cash and citation is given
to runners up.

(c) In individual category an award of 20,000/- cash and citation is given

for first position, and 15,000/- cash and citation is given to second
position.

(d) A salaried person is not eligible under this scheme.

(e) Apart from the above mentioned award, state award is also given to
parents/guardians of the disabled children, the details of which are as
follows:

79 ‘Scheme for Operation and Subsequent Programme to the Polio Affected Patients (director, Social
Defense)’, http://sje.gujarat.gov.in/dsd/showpage.aspx?contentid=1587&lang=English.
80 ‘State/national Awards (director, Social Defence)’,

http://sje.gujarat.gov.in/dsd/showpage.aspx?contentid=1737&lang=English.

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Figure VIII: Various state awards for the guardians of the disabled children

Sr. Type of Disability Details of the Award

No.

1. For Psychological disorder (Autism, C.P., 10,000/- cash and a

Severe disability and Mentally retarded) for Citation to the
any one cadre Guardian/parents

2. For Deaf & Dumb 10,000/- cash and a

Citation to the
Guardian/parents

3. For Blind (Any one cadre of short – sighted, 10,000/- cash and a
complete Blind) citation to the
Guardian/parents

4. Bone – related disability (For a disability 10,000/- cash and a

persons having bone – related disability of citation to the
above 60 percent) Guardian/parents.

(Source: ‘sje.gujarat.gov.in/dsd)

2.7 Government Institutions Working for the Rights of the Disabled

Chapter XI of the PWD Act, provides that the appropriate government if it deems fit
may establish institutes for the disabled. In order to satisfy the requirements of this
chapter and on realizing the need for specialized institutes which can work towards
removing barriers in the society by engaging in research and development, the
Government of India has established institutes of excellence to achieve this purpose.
For the purpose of this study, it becomes necessary to see the working and
achievements of these institutions to properly appreciate the contribution of BPA in
the field of disability rights. The following institutes are being covered under this study:

 Institute for the Physically Handicapped, New Delhi.

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  National Institute of Visually Handicapped, Dehradun

 National Institute for Orthopedically Handicapped, Kolkata

 National Institute for Mentally Handicapped, Secunderabad.

 National Institute for Hearing Handicapped, Mumbai

 National Institute of Rehabilitation Training & Research, Cuttack.

 National Institute for Empowerment of Persons with Multiple Disabilities,

Chennai.

 National Handicapped Finance and Development Corporation

 Rehabilitation Council of India

 National Institute of Speech and Hearing, Thiruvanthapuram.

 Establishment of Indian Sign Language Training and Research Centre

(ISLRTC)

(i) Pandit Deendayal Upadhyaya Institute for the Physically Handicapped

(a) It is an autonomous institute functioning under the Ministry of Social Justice

& Development, Government of India.81

(b) The institute offers various courses on treatment of disabled persons and
providing them medical help, to reduce their sufferings.

(c) According to the information provided on its website, the institute strives to
achieve the following aims and objectives82:

(a) To undertake the training of Physiotherapists, Occupational

Therapists and other such professionals needed for providing services
to the disabled persons.

81 ‘Pt. Deendayal Upadhyaya Institute for the Physically Handicapped - about Institute’,
http://www.iphnewdelhi.in/UserView/UserView.aspx?TypeID=1126.
82 ‘Pt. Deendayal Upadhyaya Institute for the Physically Handicapped - Aims and Objectives 2014’,

http://www.iphnewdelhi.in/UserView/UserView.aspx?TypeID=1127.

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 (b) To offer education, training, work-adjustment and such other
rehabilitation services as the society may deem fit to orthopedic
disabled persons with or without associated mental retardation.

(c) To undertake the manufacturing and distribution of such aids and

appliances as are needed for the education, training and rehabilitation
of the disabled persons.

(d) To provide such other services as may be considered appropriate for

promoting the education and rehabilitation of the disabled persons,
including organizing meetings, seminars and symposia.

(e) To undertake, initiate, sponsor or stimulate research aimed at

developing more effective techniques for the education and
rehabilitation of the disabled persons.

(f) To co-operate with national, regional or local agencies in research or

such other activities as may be designed to promote the development
of services for the disabled persons.

(g) To undertake or sponsor such publications as may be considered

appropriate.

(h) To do such other things as may be necessary or incidental to the

realization of the above objectives.

(ii) National Institute of Visually Handicapped, Dehradun

(a) The National Institute of Visually Handicapped came into existence when the
Government of India took over St. Dunstan’s Hostel and handed over its
functioning to Ministry of Education.

(b) In the year 1982, it got registered under the Societies Registration Act, 1860
and became an Autonomous Body.

(c) The aims and objectives of the Institute are as follows83:

83‘About NIVH’, 1959,

https://www.nivh.gov.in/index.php?option=com_content&view=article&id=46&Itemid=28.

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 a. To conduct, sponsor, co-ordinate and/or subsidize research in
collaboration with other NGOs and research organizations including
Universities into various dimensions of the education and
rehabilitation of the visually impaired.

b. To undertake, sponsor, co-ordinate or subsidize research into

biomedical engineering leading to the effective evaluation of special
appliances/instruments or suitable surgical or medical procedures or
the development of new special appliances/instruments.

c. To undertake or sponsor the training of trainees and various

specialized professionals including Teachers, Employment Officers,
Psychologists, Vocational Counselors and such other personnel as
deemed necessary.

d. To distribute, promote, or subsidize the manufacture of prototypes

and to manage distribution of any or all devices designed to promote
any aspect of the education, rehabilitation or employment of the
Visually Impaired.

(iii) National Institute for the Orthopedically Handicapped

(a) This Institute is an autonomous body function under the Ministry of Social
Justice and Empowerment, Government of India and was established in the
year 1978.

(b) The Institute aims to work for the benefit of the disabled persons suffering
with locomotor disability.

(c) The Institute provides training of Physiotherapists, Occupational Therapists,

Orthotists & Prosthetists, Employment & Placement Officers and Vocational
Counsellor etc. The Institute sponsors research in the area of rehabilitation of
the Orthopedically handicapped and provide services in the area of

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 rehabilitation, restorative surgery, aids & appliances and vocational training to
the persons with disability.84

(iv) National Institute for the Mentally Handicapped

(a) NIMH is an autonomous body established in the year 1984 at Secunderabad

and having its regional centers at New Delhi, Kolkata & Mumbai.

(b) The University functions under the control of Ministry of Social Justice &
Empowerment, Government of India.

(c) The Institute believes that the quality of life of any person with mental
retardation is equivalent to the life of any normal person and thus strives to
attend equality for them and ensure their independent survival to the
maximum possible extent.

(d) The Institute works towards the welfare of the mental retardation by providing
education, therapeutic help, vocational training, employment, sports and other
cultural programs.

(e) The objectives of NIMH are85:

(i) Human Resources Development

(ii) Research and Development

(iii) Development of models of care and rehabilitation

(iv) Documentation and dissemination

(v) Consultancy services to voluntary organizations

(vi) Community Based Rehabilitation

(vii) Extension and Outreach programs.

(f) In order to achieve these objectives NIMH conducts the following courses:
Early Intervention, Rehabilitation Psychology, Special Education and
Disability Rehabilitation.

84 ‘National Institute for the Orthopaedically Handicapped’, 2013,

http://www.niohkol.nic.in/aboutus.html.
85 ‘National Institute of Mentally Handicapped’ 2013, www.nimhindia.org/abtmain.html

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(v) Ali Yavar Jung National Institute for the Hearing Handicapped

(a) AYJNIH is an autonomous institute functioning under Ministry of Social

Justice and Empowerment, Government of India in the year 1983.

(b) AYJNIHH has regional centers at Kolkata, New Delhi, Secundarabad and
Bhubaneshwar.

(c) The objectives and the area of work of the AYJNIHH are86:

a. Manpower Development: To deal with the various aspects of

rehabilitation of the Hearing Handicapped, various undergraduate and
post graduate courses are being offered. The Institute is rated excellent
by the RCI.

b. Research: Research in the areas of identification, intervention,

educational approaches, remedial teaching methods, jobs for the
hearing handicapped and technology development have been carried
out.

c. Educational Program: By studying the existing school for the deaf,

curriculum followed, methods of teaching etc. and supplementing or
strengthening them by way of improving existing educational facilities
and developing new strategies wherever required, newer measures such
as open school for the illiterate/drop out is being conducted as model
activity.

d. Service Facilities: Strategies for early identification and rehabilitative

procedures. Films and audio visuals on vocational training and job
placement, etc. are being developed.

e. Community Program: Identification and intervention, home bound

training; correspondence training and also tele–rehabilitation services
are being rendered and evolved with emerging needs.

86‘About Us: Ali Yavar Jung National Institute for the Hearing Handicapped, Mumbai, India’, 2010,
http://ayjnihh.nic.in/aboutus.asp.

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 f. Material Development: Required for (a) education, like teaching aids,
audio–visuals etc. (b) public awareness and community education,
literacy program for adult deaf, Parent Counseling and Program for
strengthening voluntary organizations.

g. Information and Documentation: - Documenting and disseminating

the latest information and developments in the science of hearing,
speech and related technology is being done.

(vi) Swami Vivekanand National Institute of Rehabilitation Training and

Research

(a) It is an autonomous body acting under the umbrella of Ministry of Social

Justice and Empowerment, Government of India.

(b) This institute carries out the following function for the betterment of the
patients suffering from locomotor disability87:

a. Human Resource and Development: To undertake, sponsor or co-

ordinate the training of personnel such as Doctors, Engineers,
Prosthetists, Orthotists, Prosthetic and Orthotic Technicians,
Physiotherapists, Occupational Therapists, Multipurpose
rehabilitation therapists and such other personnel for the rehabilitation
of the physically handicapped.

b. Research: To conduct, sponsor, co-ordinate or subsidize research on

biomechanical engineering leading to the effective evaluation of the
mobility aids for the orthopedically disabled persons or suitable
surgical or medical procedures or development of new aids.

c. Aids and appliances: To promote, distribute and subsidize the

manufacture of prototype designed aids and to promote any aspects of
the education and rehabilitation therapy of physically handicapped.

d. Service delivery programs: To develop models of service

delivery program for rehabilitation.

87 ‘Aims and Objectives’, http://svnirtar.nic.in/?q=node/3.

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 e. Vocational training: To undertake vocational training, placement and
rehabilitation of the physically handicapped.

f. Information: To promote and disseminate information on

rehabilitation in India and abroad.

g. Promote the use of products of Artificial Limbs Manufacturing

Corporation of India.

(vii) National Institute for Empowerment of Persons with Multiple Disabilities

(a) National Institute for empowerment of Persons with Multiple Disabilities was
established in the year 2005.

(b) It works for the elevation of people having low vision, blindness, locomotor
disability, hearing impairment, mental retardation, mental illness, leprosy cured
person, as defined under the Persons with Disabilities Act, 1995.

(c) The main function of the Institute is to88:

a. To undertake development of human resources for management,

training rehabilitation, education, employment and social development
of persons with Multiple Disabilities.

b. To promote and conduct research in all areas relating to Multiple

Disabilities

c. To develop trans-disciplinary models and strategies for social

rehabilitation and to meet the needs of diverse groups of people with
Multiple Disabilities.

d. To undertake services and outreach programs for the persons with

Multiple Disabilities.

(viii) National Institute of Speech and Hearing (NISH), Thiruvananthapuram

In the Budget Announcement for the year 2015-16, the National Institute of Speech
and Hearing (NISH), Thiruvananthapuram (presently owned by Government of

88‘National Institute for Empowerment of Persons with Multiple Disabilities, NIEPMD, India’, 2011,
http://niepmd.tn.nic.in/.

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Kerala) has been upgraded to a National University for Rehabilitation Sciences and
Disability Studies (NURSDS). The Task Force comprising of representatives from
Government of Kerala, NISH, Ministry of Finance, Ministry of Human Resource and
Development, Chairman RCI and this Ministry was constituted.

The main objectives of NURSDS are:

 Provide the best inclusive and integrated educational environment for PwDs
to pursue higher education.
 Create and prepare a pool of world class professionals.
 Carry out cutting-edge research in the disability sector.
 Provide prevention, screening, detection and key intervention models in
disability services.
 Provide leadership in formulating policies for PwDs.

(ix) National Handicapped Finance and Development Corporation

(a) NHFDC is a company registered under Section 25 of the Companies Act,

1956.

(b) It is a government company having a paid up share capital of Rs. 400 crores.

(c) NHFDC provides financial assistance to disabled citizens to help start their
own business venture and educational loans.

(d) The objective of this company is to:89

a. Promote economic development activities for the benefit of the

persons with disabilities.

b. Promote self-employment and other ventures for the

benefit/economic rehabilitation of the persons with disabilities.

c. Assist individuals with disabilities or group of individuals with

disabilities by way of loans and advances for economically and
financially viable schemes and projects.

89‘NHFDC: Schemes & Facilities - Page 1: Ali Yavar Jung National Institute for the Hearing
Handicapped, Mumbai, India’, 2010, http://ayjnihh.nic.in/awareness/schemes3.asp.

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d. Grant concessional finance in selected cases for the persons with
disability in the country in collaboration with Government
Ministries/Departments at State level to the extent of the budgetary
assistance granted by the Government of India to the company.

e. Extend loans to the persons with disability for pursuing

general/professional/technical education for training at graduate and
higher levels.

f. Assist in the up gradation of technical and entrepreneurial skills of

persons with disability for proper and efficient management of
production units.

g. Set up training, quality control, process development, technology,

common facility centers and other infrastructural activities for the
proper rehabilitation/upliftment of the handicapped persons in
support of their economic pursuits.

h. Assist the State level organizations to deal with the development of the
persons with disability by way of providing financial assistance and in
obtaining commercial funding or by way or refinancing.

i. Work as an apex institution for channelizing the funds through State

Finance Corporation for the Handicapped or through corresponding
Corporations authorized by State Govts./Boards set up by Union
Government/State Government/Union Territory Administrations
and Voluntary Organizations. The NHFDC will receive proposals for
financial assistance through above mentioned organizations and
sanction loans and margin money to the beneficiaries for disbursement
through these organizations.

j. Assist self-employed individuals/group of individuals or registered

factories/companies/cooperatives of disabled persons in marketing
their finished goods and assist in procurement of raw materials.

k. To develop, operate and implement specific pilot programs, projects

and schemes in India in support of promotion of the self-employment,

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 economic activities of the handicapped persons with a view of
introducing innovations, technological up-gradation and bridging the
critical gaps of infrastructure, input supply, output processing and
marketing.

l. To undertake and/or support technically, managerially or financially

research and evaluation studies, techno-economic and related surveys,
preparation and appraisal of project reports and documents, feasibility
and other studies for developing viable programs, projects, schemes
for the benefit of handicapped.

m. To establish, maintain, subscribe or to subsidize or become member

of training institutions, research laboratories research institutions and
experimental experiments.

(e) NHFDC carries out the following scheme for the benefit of disabled persons90:

a. For setting up small business in Service / Trading sector:- Loan up to

3.0 lakh for sales / trading activity and 5.0 lakh for service sector
activity

b. For purchase of vehicle including auto rickshaw for commercial hiring:

- Loan upto 10 lakh.

c. For setting up small industrial unit: - Loan upto 25 lakh. Loan

assistance is provided to disabled persons for manufacturing,
fabrication and production.

d. For Agricultural activities: - Loan upto 10 lakh Loan assistance is

provided to disabled persons for agricultural production, irrigation,
horticulture, sericulture, purchase of agricultural machinery /
equipment for agricultural services, marketing of agricultural products
etc.

90‘National Handicapped Finance and Development Corporation (NHFDC) - Concessional Loans for
Economic Activities: Ministry of Social Justice and Empowerment, Government of India’, 2009,
http://socialjustice.nic.in/nhfdcnew.php.

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 e. For self-employment amongst persons with mental retardation,
cerebral palsy and autism: Loan upto 5 lakh, in such cases, the financial
assistance is extended through parents or spouse or legal guardian of
the dependent mentally disabled person.

f. Loan for Professional / Educational / Training courses: Loan

upto 7.50 lakh for studies in India and upto 15 lakh for studies abroad.

g. Micro Credit Scheme by State Channelising Agencies implemented

through NGOs: Loan upto 5 lakh for each NGO and ` 25,000/- for
each beneficiary.

h. Parents' Association of mentally retarded persons: Loan upto 5 lakh

i. Financial Assistance for Skills & Entrepreneurial Development (in the

form of grant to channelizing agencies/reputed training institutions
for imparting skills and entrepreneurial development training to
disabled persons)

(x) Rehabilitation Council of India

(a) RCI was established as registered society in the year 1986, before being
established as a Statutory Body by an Act of the Parliament in the year 1993.

(b) The Objectives with which RCI has been enacted are91:

a. To regulate the training policies and programs in the field of

rehabilitation of persons with disabilities.

b. To bring about standardization of training courses for professionals

dealing with persons with disabilities.

c. To prescribe minimum standards of education and training of various

categories of professionals/ personnel dealing with people with
disabilities.

91 Rehabilitation Council of India, ‘Objective’,

http://www.rehabcouncil.nic.in/forms/Sublink1.aspx?lid=798.

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d. To regulate these standards in all training institutions uniformly
throughout the country.

e. To recognize institutions/ organizations/ universities running master's

degree/ bachelor's degree/ P.G.Diploma/ Diploma/ Certificate
courses in the field of rehabilitation of persons with disabilities.

f. To recognize degree/diploma/certificate awarded by foreign

universities/ institutions on reciprocal basis.

g. To promote research in Rehabilitation and Special Education.

h. To maintain Central Rehabilitation Register for registration of

professionals/ personnel.

i. To collect information on a regular basis on education and training in

the field of rehabilitation of people with disabilities from institutions
in India and abroad.

j. To encourage continuing education in the field of rehabilitation and

special education by way of collaboration with organizations working
in the field of disability.

k. To recognize Vocational Rehabilitation Centers as manpower

development centers.

l. To register vocational instructors and other personnel working in the

Vocational Rehabilitation Centers.

m. To recognize the national institutes and apex institutions on disability

as manpower development centers.

n. To register personnel working in national institutes and apex

institutions on disability under the Ministry of Social Justice &
Empowerment.

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(xi) Establishment of Indian Sign Language Training and Research Centre
(ISLRTC)

The Government has approved establishment of Indian Sign Language Research and
Training Centre (ISLRTC) as a Society under the Societies Registration Act, 1860,
under the aegis of this Department initially, to be located at Pt. Deendayal Upadhayay
Institute for Physically Handicapped, 4, Vishnu Digamber Marg, New Delhi.

The main objectives of the Centre are:

i. To promote the use of Indian Sign Language (ISL) in India,

ii. To carry out research in ISL and create linguistic record/analysis of the
language,

iii. To train persons in Sign linguistics and other related areas at various levels,

iv. To design, promote and offer programs in ISL, interpreting and bilingual
education, at various levels, through various modes including the distance
mode,

v. To collaborate with other institutions and organizations of the Deaf to

promote and propagate ISL and

vi. To create and promote literature in and about ISL.

2.8 Summary

For this purpose the researcher has first analyzed the role of the UN which becomes
significant, established as a consequence of the Second World War; the mandate of
the UN apart from peace has been to better the lives of the human civilization. It is a
result of this only that when the nations were busy building economies, the UN was
concentrating on the rights of the neglected sections of the society, rights of the
disabled being one of them. The United Nations Convention on Rights of Persons
with Disabilities is one such effort made by the UN in this field. Under this section,
the researcher has highlighted the development of disability rights at the UN and
further highlighted the provisions of the UNCRPD. While the provisions of this

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Convention are utopian, nevertheless, it has proved to be a guiding light while framing
laws and policies for the disabled persons.

Next, the researcher has discussed how disability rights have developed in the
European Union. The reason for selecting European Union for my study is because
of the diversity that European Union offers. European Union is a union of many
countries, who not only differ in their culture but have a diverse economic spectrum.
Although these nations initially came together with the purpose of economic unity,
they have slowly consolidated themselves towards unification of socio-political rights.
The European Union example is also significant in showing the impact of economic
development on the rights of the disabled. While initially the European Union like
India enacted soft law measures to promote rights of the disabled, gradually with its
economic consolidation, it has now passed binding resolutions and conventions
dealing with the rights of the disabled, however all these resolutions and conventions
have been curiously been silent in defining disability and have left this task to the
Courts. This in my view might be a very prudent approach. By allowing the definition
to develop with changing social and political structure, disability rights have been given
a breathing space to evolve, since definition of disability forms the corner stone of any
welfare measure for persons with disability.

Next the researcher has dealt with the English approach towards disability rights. The
reason for including U.K. has been the similarity in our legal culture that we share with
England. Yet, another reason for studying English legal system in this regards is
because the U.K., just like us, had a predated statutory provision in the form of the
Disability Act, which like the Indian P.W.D. Act was based on medical model.
However, unlike India it has sought it better to repel the Disability Act and replace it
with the Equality Act. Apart from its name, the Equality Act is a more potent weapon
in dealing with discrimination faced by disabled persons. The U.K. rather than making
a separate Act, like the E.U. has enacted a common statutory instrument dealing with
all forms of discrimination, in which it has also included disability, thus leading to a
more intelligent debate and taking out the concept of charity and pity from this subject.
Yet another feature of the U.K. that I seek to cover is the concept of reasonable
adjustment, while this concept in prevalent in other jurisdictions also, however the

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interpretation granted by the Courts of England, while defining reasonable adjustment
are enlightening, which in my view should be studied an incorporated in our laws also.

While the E.U. and the U.K. present disability rights from the perspective of a welfare
state, the U.S. shows an example of a capitalist society. In my view, while it is true that
U.S. approach borders on insensitivity, the same insensitivity has result in lack of
charity and pity and surplus of infusing independence amongst persons with
disabilities. However, due to wide differences between the social structure of America
and India, the American model is of less relevance from Indian perspective. In
America disability rights have developed through effective lobbying and volunteer
work, which in India is lacking and would continue to lack, until India becomes a
developed economy. Hence, any volunteer action or lobbying seeking to copy the
American approach should be mindful of this approach. However, having said that I
think the American approach does stress on the importance of including NGO’s and
experts working in the field of disability rights and specially disabled persons
themselves in policy making. The American experience shows that how view perceived
disability rights and how a person with disability perceives disability rights can be miles
apart and often be surprising.

This approach seems to be definitely lacking in India; the disability rights in India are
still in nascent stage. After gaining independence, the governments have been busy
balancing various rights, correcting various wrongs, improving the social structure and
repairing the society; somewhere however in this commotion, the rights of the disabled
persons seems to have been lost. The current law on disability does not have any
binding authority and is more or less is in the form of a sermon then a command.
However, the government has made certain policies and schemes for persons with
disability, but due to lack of awareness they remain unenforced. Therefore, the role of
NGOs becomes more prominent; while they are not consulted at the stage of framing
a policy, they play a huge role in implementation of these policies, which is a unique
feature of our system. In this regard we may mirror the initial approach adopted by
the European Union, but time has come that we slowly move towards greater
accommodation and involvement of NGOs at policy framing stage rather than
implementation stage. However, as the involvement of NGOs at policy making stage

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is still at nascent stage, the role of NGOs is being discharged by the Courts, which
shall be discussed in the succeeding chapter.

In regard to the second hypothesis laws, policies and programmes in India are in
accordance and in adherence to various international conventions and treaties
pertaining to persons with disabilities. The above analytical discussion shows that even
though India is at the nascent stage in making and implementing laws, policies and
programmes for the disabled exist. India is along the path of international approaches
by remaining and adhering to various international conventions and treaties on
persons with disabilities and also in line of practices followed in various countries.

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