DISABILITY

JURISPRUDENCE
- SEERAT GILL
ACADEMIC ASSISTANT, JURISPRUDENCE II
 MODELS
Over a period of time, different models have been developed to explain
the causes of disability and the causes for discrimination faced by the
disabled people. The key models are:
1. Moral model of Disability
2. Religious model of disability
3. Medical model of disability
4. Social model of disability
5. Human-rights model of disability
 TRADITIONAL MODELS

• MORAL AND RELIGIOUS MODEL OF DISABILITY

- Disability is linked to the person’s or family’s character, deeds, thoughts and karma. First, disability can be seen as a consequence of a
sin/wrongdoing.
- Religious model of disability views disability as an act of a god, usually a punishment for some sin committed by the disabled
individual or their family. In that sense, disability is punitive and tragic in nature.
- Alternatively, it can be seen as a sign of honour, faith and strength. Example: disability due to God’s faith in an individual.
• MEDICAL MODEL OF DISABILITY
- The medical model views disability as an aberration compared to normal characteristics. Disability is perceived in terms of
impairment in a body system or function that is pathological and the goal is to return to normalcy through a medical
intervention and support mechanism.
- The supporters of medical model believe that the disabled individuals are unable to participate in the society due to their bodily
impairment.
- In short, “the problem is believed to be in the person and the aim is to fix the person.”
- This model is intertwined with “ableism” ideology viewed that disabled bodies and minds are less valuable.
- For example: Specialist transport for people who are unable to access the mainstream transport.
CONTINUED: MEDICAL MODEL
Source: Inclusion London-Factsheet: The social model of Disability (2015)
 SOCIAL MODEL OF DISABILITY
• Developed in 1970s by the Union of the Physically Impaired Against Segregation (UPIAS).
• It has been defined by UPIAS [as quoted by Oliver (1996)] “In our view, It is society which disables physically impaired people.
Disability is something imposed on the top of our impairments by the way we are unnecessarily isolated and excluded from full
participation in the society. Disabled people are therefore an oppressed group in the society.”
• Barbara Lisicki, 2013 observes “Disability is created by physical, organizational and attitudinal barriers and these can be
changed and eliminated. This gives us a dynamic and positive model that tells us what the problem is and how to fix it. It takes us
away from the position of "blaming" the individual for their shortcoming.”
• The Social model treats impairment and disability as two distinct terms.
• Impairment is the lacking of all or part of a limb, or having a defective limb, organism or mechanism of the body whereas disability is
the disadvantage or restriction of activity caused by a contemporary social organization which takes little or no account of people who
have physical impairments and thus excludes them from participation in the mainstream.
• Disability is viewed in terms of inability to participate fully in home and community life. The interaction between functional
limitations or impairments and physical and social barriers to full participation create disabling environments. Disability is
therefore experienced.
• The key disabling barriers are: Attitudinal Barriers, Physical Barriers and Information/Communication Barriers.
• In the example in the previous slide, for example: making the existing mainstream transport and infrastructure as accessible.
CONTINUED: SOCIAL MODEL
Source: Inclusion London-Factsheet: The social model of Disability (2015)
 POSITIVE IMPACT OF THE SOCIAL
MODEL
• Change in the political strategy and approach: Since, disability is a form
of social oppression, “barrier” removal i.e., removing the disabling barriers
in the society to promote inclusion of people is a better strategy than
medical rehabilitation.
• This model is considered to be liberating for disabled individuals. They
were able to understand that they are not at fault, society is. Thus, it
inculcated a sense of empowerment and ability to mobilize, organise and
work for equal citizenship.
• It is a simple model and can be reduced to the slogan ‘disabled by
society, not by bodies.’
• Allows easy evaluation of policies: Did the policies use social model or
medical model?
 UNITED NATIONS: HUMAN RIGHTS MODEL OF
DISABILITY
Frequently used since 2012
• International conventions such as UN Convention on the Rights of Persons with Disabilities (CRPD) adopt a
human rights model. Article 1 of the CRPD states “The purpose of the present Convention is 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.
• Social model provides the theoretical background for CRPD. In the HR model as well , the social barriers prevent
people with disabilities from participating in society on an equal basis. It also recognizes that disability is a social
construct and impairments are not a legitimate ground for denial of human rights.
• It does not deny the role of medical interventions in people’s lives but questions societal responses reducing people
with disabilities to mere recipients of treatment, shelter and welfare. People with disabilities may need and want
medical interventions, but that is not the only way that people’s life can be enhanced. The HR model of disability
also moves beyond anti-discrimination approaches, upholding a complex substantive model of equality, which
seeks to address structural and indirect discrimination, values different layers of identity and acknowledges
intersectional discrimination.
• Quinn et al. (2002) provides that
“In essence, the human rights perspective on disability means viewing people with disabilities as subjects and not
as objects. It entails moving away from viewing people with disabilities as problems towards viewing them as
holders of rights.”
 DIFFERENCE BETWEEN SOCIAL AND HUMAN
RIGHTS MODEL
• THERESIA DEGENER (2016): Disability in a human rights context paper highlights certain key differences:
1. The social model of disability is foremost not a rights-based approach to disability but extends beyond rights to social relations in
society and to the system of inequality.
2. While the social model supports anti-discrimination policy and civil rights reforms, the human rights model of disability is more
comprehensive and it encompasses both sets of human rights, civil and political as well as economic, social and cultural rights.
3. Whereas the social model of disability neglects the fact that disabled persons might have to deal with pain, deterioration of quality of
life and early death due to impairment, and dependency, the human rights model of disability acknowledges these life circumstances and
demands them to be considered when social justice theories are developed.
4. The social model also has been criticized for neglecting identity politics as a valuable component of emancipation. Identity politics
can be defined as politics which values and cares for differences among human beings and allows persons to identify positively with
features that are disrespected in society. Gay pride, black pride, feminism, or disability culture are manifestations of these identity
politics. Human rights instruments are at least partly the political response to collective experiences of injustice.
• Focus is on persons with impairments (as right holders) whereas the social model’s concept of barriers is reduced to a subset of
discrimination against such persons.
• Waddington and Priestley (2020): HR model places more emphasis on persons than the social model. The Social model
acknowledges people with impairments but focuses on the barriers. The HR model focuses on persons but acknowledges barriers.
• CRPD though reflecting social model is not fully consistent with this approach. For instance, it uses the term “persons with
disabilities” rather than “disabled people” which is used in social model construct and better reflects the role of societal and
environmental factors.
 SUPREME COURT OF INDIA’S REFERENCES TO
THEORETICAL MODELS
VIKASH KUMAR V. UNION PUBLIC SERVICE COMMISSION AND ORS., (2021) 5 SCC 370
Matter dealing with the appointment of a scribe to write UPSC exams. The Court made extensive reference to the
Social Model. It is evident from the following observations of the Court:
“As a social construct, disability encompasses features broader and more comprehensive than a medical
condition. The RPwD Act, 2016 recognizes that disability results in inequality of access to a range of public and
private entitlements. The handicaps which the disabled encounter emerge out of disability’s engagement
with the barriers created by prejudice, discrimination and societal indifference. Operating as restraining
factors, these barriers have origins which can be traced to physical, social, economic and psychological
conditions in society. Operating on the pre-existing restraints posed by disability, these barriers to development
produce outcomes in which the disabled bear an unequal share of societal burdens. In the specific context of
disability, the principle of reasonable accommodation postulates that the conditions which exclude the disabled
from full and effective participation as equal members of society have to give way to an accommodative society
which accepts difference, respects their needs and facilitates the creation of an environment in which the societal
barriers to disability are progressively answered.”
 JEEJA GHOSH V. UNION OF INDIA, (2016) 7 SCC 761
The Court referred to both the rights-based model as well as social model of disability and observed that:
1. The subject of the rights of persons with disabilities should be approached from human rights perspective, which
recognizes that persons with disabilities are entitled to enjoy the full range of internationally guaranteed rights and
freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to
take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights.
2. The rights that are guaranteed to differently abled persons under the 1995 act are founded on the sound principle of
human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty.
Such a right, now treated as human right of the persons who are disabled, has it roots in Article 21 of the Constitution
3. It is the common experience of several persons with disabilities that they are unable to lead a full life due to
societal barriers and discrimination faced by them in employment, access to public spaces, transportation etc.
Persons with disability are most neglected lot not only in society but also in the family. Most often, they are an
object of pity. There are hardly any meaningful attempts to assimilate them in the mainstream of the nation’s
life.
4. The Court concluded that ”to most disabled persons, the society they live in is a closed door which has been
locked and the key to which has been thrown away by the others.”
 RAJIVE RATUERI V. UNION OF INDIA (2018) 2
SCC 413
• PIL filed for proper access to public places for visually disabled
• Some pertinent observations by the Court were
“The move from the patronizing and paternalistic approach to persons with disabilities
represented by the medical model to viewing them as members of the community with equal
rights has also been reflected in the evolution of international standards relating specifically to
disabilities, as well as in moves to place the rights of persons with disabilities within the category of
universal human rights.”
“Earlier the traditional approaches to disability have depicted it as health and welfare issue, to
be addressed through care provided to persons with disabilities, from a charitable point of view.
The disabled persons were viewed as abnormal, deserving of pity and care, and not as
individuals who were entitled to enjoy the same opportunities to live a full and satisfying life as
other members of the society. This had resulted in marginalizing the disabled persons and their
exclusion both from the mainstream of the society and enjoyment of their fundamental rights and
freedoms.”
 DISABLED RIGHTS GROUP AND ANR. V. UNION OF
INDIA, 2017, SC
The Court explained the social model of disability as well as referred to the rights-based approach. It was inter
alia observed that
• The Disabilities Act, 2016 is premised on the fundamental idea that society creates the barriers and
oppressive structures which impede the capacities of person with disabilities.
• The Social Model of Disability locates disability as being socially constructed through the creation of
artificial attitudinal, organizational and environmental barriers.
• Disabled people are defined as being people who experience the unnecessary barriers created by society
within their daily life. Social Model of disability has gained ground in international debate. This views
disability as a social construct and emphasizes society's shortcomings, stigmatization and
discrimination in its reaction to persons with disability. It distinguishes between functional impairments
(disability) both of a physical and psychological nature, and the loss of equal participation in social
processes that only arises through interaction with the social setting (handicap).
• This rights-based approach is an inclusive approach which class for the participation of all groups of the
population, including disadvantaged persons, in the development process. Inclusive development builds on
the idea of ‘Society for All’ in which all people are equally free to develop their potential, contribute their
skills and abilities for the common good and to take up their entitlements to social services.