At a time when India is expected to witness significant judicial activism in the space of disability rights with incumbent Chief Justice of India DY Chandrachud to make courts , it is pertinent to trace the history of the disability rights movement and underscore its importance.
As we celebrate Human Rights Day, gauging the evolution of disability rights legislation and jurisprudence in India through the decades will help us appreciate how far we have come.
This article, being the first of a series of articles on disability rights, will capture the resistance faced for decades before the first disability legislation was enacted, and the many gaps that persist in implementation of these rights.
Speaking out against a history of silence
While the Constitution of India guarantees to all its citizens equality, liberty, fraternity and prohibits discrimination on the basis of caste, class, religion and sex, there is no explicit mention or recognition given to persons with disabilities (PwDs). One may trace the inception of the disability rights movement in India back to The Proclamation on the Full Participation and Equality of People with Disabilities, which led to The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
This was the result of decades of concerted efforts by Senior Advocate SK Rungta and the National Federation of the Blind.
Through the years, an incremental change one will notice is the shift from a charity-based approach to a rights-based approach adopted while spelling out and enforcing statutory rights of persons with disabilities. Another significant evolution can be attributed to the shift from the medical model of disability that was envisaged in the 1995 Act to the social model of disability coupled with the human rights approach which gained prominence after the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the resulting Rights of Persons with Disabilities Act, 2016. At the global level, the Incheon Strategy of Disability inclusiveness also played a role in giving effect to the 2016 Act.
The first-hand experiences of Rungta play a crucial role in understanding the evolution of the disability rights movement in India. Rungta, who is visually impaired, highlights the many challenges encountered in pioneering the disability rights movement in India decades before the inception of the 1995 Act. He shared that many committees were set up since 1980 to assert the need for a legislation recognizing the rights of PwDs, and shone a light on the bureaucratic difficulties that came along the way in implementing the recommendations laid down in reports by these committees.
Reminiscing the early days of the disability rights movement in India and the challenges that ensued at every step, Rungta shared,
“The national movement on disability rights dates back to 1980. For the first time, my organization, the National Federation of the Blind (NBF), organized a demonstration demanding legislation on the rights of PwD in general and blind in particular - in the areas of employment and education. The greatest challenge was shifting the basis of policies as charity to acknowledging the rights of PwDs on equal footing as others. For instance, education for children or adults with disabilities was the responsibility of the State and this was being done through the grants in aid - the NGOs, through special schools, without substantial grants. Teachers weren’t paid at par with their counterparts at other schools. Employment was considered far-fetched, as the perception was that PwDs cannot be employed in mainstream sectors.”
Rungta reminisced the many attempts made by NBF since March 1980 to draw the attention of the government to rights of PwDs.
“On March 15, 1980, we organized a large demonstration at the national level to draw the attention of the government on the International Day of Disabled Persons (3rd Saturday of March). We were to go to the Prime Minister’s house but were stopped with lathi charge - it became international headlines. Thereafter, we met Indira Gandhi, and we had a long discussion with her on March 25, 1980. Then for the first time, the government in May 1980 recognized that there is a need to explore the feasibility of legislation for rights of persons with disabilities."
Senior Advocate SK Rungta
After this, several committees were constituted. The first, under the leadership of Lal Advani, a blind officer on special duty at the Ministry of Social Welfare, never met. This led to another agitation in August 1980, which culminated into a written agreement for another committee constituted under the chairmanship of Rama Devi. Several meetings were held, and reports were shared pressing for a legislation.
“During this period in 1980, I drafted a Bill on Rights of Persons with Disabilities in employment which was introduced in Rajya Sabha as a private member bill by Prof Madhu Dhandavate. A thinking started from there in the government and there was a visible recognition of the rights of PwDs. The biggest stumbling block was that PwDs had a right to equality and non-discrimination, but it was not specifically provided in the Constitution. We recognized this in the Committee and decided that through the statute, we should extend it to PwDs so that no one will be discriminated against on the ground of disability,” Rungta recounted.
Due to resistance from the government in considering the committee’s recommendations, another committee was constituted under the chairmanship of former Supreme Court judge, Justice Baharul Islam which provided a detailed outline of the proposed law in 1989.
“Even this was being considered at a slow pace. The real challenge was that the government was taking refuge in Entry 9 of the State List (relief to the disabled and unemployable). So, they were trying to postpone the enactment of that law under the pretext of this entry in the State List, and therefore, said that we cannot have a Central legislation."
Coincidentally, during the same period, the global movement on disability rights picked up, and in 1993, the United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP) declared the 90s as the ‘Asian-Pacific Decade of Disabled Persons’ with the Proclamation on the Full Participation and Equality of People with Disabilities.
“That gave us a chance to rebut the government and hold them accountable by virtue of India being a signatory of this proclamation, and that is how in 1995, we succeeded in getting the first legislation,” Rungta said.
Roadblocks that still exist
In, Rungta shared his challenges in restoring the reservations for persons with disabilities in employment at the judicial level. He also shared his efforts before the Supreme Court, which led to reservation for PwDs in Group A and B posts. Through the persons with visual impairment were allowed to write the civil services examination in Braille-script or with the help of a scribe.
“Despite getting reservation in all posts recognized in the 1995 Act, this was not implemented. So, I had to file a contempt petition. The Government of India filed a response, stating that there was a backlog of about 18,000 vacancies and a time schedule was given to fill it up by undertaking a special recruitment drive,” Rungta shared.
A challenge that persists is the implementation of rights of PwDs in the face of executive resistance, a feeling Rungta is all too familiar with, in the context of the struggle to introduce the laws.
“All this happened up to 2016. However, we are still fighting many cases of non-implementation in various High Courts with respect to different state governments - J&K, Uttarakhand, UP, Bihar, Delhi, name any state, we are fighting it…The implementation is still an issue, and not only in employment, even education, rehabilitation, social security."
Senior Advocate SK Rungta
Rungta also shared that he was privy to stereotypical comments as a lawyer with disability who was representing the cause of the community.
“At the outset, I must tell you that by and large, our judiciary has been very proactive in favour of persons with disabilities from day one… Since we are from a society which perceives the situation of every individual from his/her own viewpoint, I would not blame anyone for this stereotyping... I would say that society did not create that environment where we could prove ourselves, for the non-disabled population to realize that we can also work together and be equal partners.”
Rahul Bajaj, another visually impaired lawyer, shared his experiences as a lawyer with disability asserting the rights of the community. On some of the key issues that persist at the judicial level, Bajaj said,
“Our judicial system is clogged with a lot of cases. So, disability rights cases end up simply not reaching, in their due course, before the relevant benches. For instance, we have a case in the Bombay High Court against the Ministry of Corporate Affairs for their inaccessible online platform that has been pending for more than a year now. The case simply hasn’t been registered. When matters ultimately reach, sometimes judges don’t have the practical understanding of how much a disabled person can do in today’s day and age with the help of technology and also the social model of disability that holds the field today.”
Citing examples of attitudinal barriers in courts, Bajaj shared,
“During the hearing in the case of National Platform for the Rights of the Disabled v. DPWD & Ors, the judges made some rather unfortunate observations about how sympathy and practicality are two different things. First of all, no one is seeking sympathy. It is empathy and understanding that’s being asked for.”
Referring to an incident which formed the basis of the judgment in V Surendra Mohan v. State of Tamil Nadu case that upheld the ceiling limit of impairment as eligibility to become a judge, Bajaj said,
“There is a tendency for judges to over-generalize based on the experiences of one negative experience with a disabled person. One negative example should not serve as a basis to paint an entire class of the citizenry with the same brush. One cannot generalize and say that if someone is unable to realize their full potential as a disabled person, the employer must also bear the burden for that. Long story short, you have to understand the social model in action. Having to make the judges appreciate that is a challenge.”
Speaking about compliance with the 2016 Act, or lack thereof, Bajaj said,
“What really pains me sometimes in disability rights is sometimes people take very myopic views of what their obligations are. When obligations set forth under the Act are not complied with, it is absolutely unacceptable… One aspect is having clearer legal mandates, so there is not substitute for compliance. Secondly, businesses and the law firms that are advising them, the lawyers who argue for them, are sensitized to these aspects, so that they know what are morally and ethically appropriate arguments to make and what is not.”
The next article in this series will focus on the barriers faced by persons with disabilities in the arena of legal education.