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INTRODUCTION

Disabilities can be physical in nature, cognitive, behavioral, or even emotional. This particular
disabilities topic center contains mostly reference to physical and sensory forms of disability, as
other forms are adequately covered in other topic centers. All human beings are born free and
equal in dignity and rights. People with disabilities all over the world experience human rights
violations, stigma and discrimination. To have a disability means that one has fundamental
difficulty accomplishing things that others take for granted. There are many social factors that
can affect whether or not individuals with disabilities are included or excluded from participation
on various activities, which in turn can affect development or esteem. Disability is thus just not a
health problem. It is a complex phenomenon, reflecting the interaction between features of a
person’s body and features of the society in which he or she lives.1

Today disabled persons' constitute the largest minority in the world; more than 650 million
individuals i.e. 10 percent of the world's total population suffer from some type of disability. 2In
the majority of countries, at least 1 out of 10 persons has a physical, mental or sensory
impairment. In India more than 50 million of the people are facing problem of disability in one
way or another. Although the Constitution of India guarantees persons with disabilities the full
range of civil, political, economic, cultural and social rights, the arrangements necessary to
translate the constitutional guarantees into reality have been conspicuously absent till recently.
They are often denied basic human rights and unwelcomed in the society. This is particularly so
when the disability is mental or psychological. Only After in the last quarter of the 20th century,
there has been growing awareness in the disability sector both at the national and international
levels. The period of 1983- 1992 which was proclaimed by the general Assembly as the U.N
Decade for disabled person, a global movement has emerged which recognises the importance of
integration of people with disabilities in the society. Today the issues relating to the disabled are
no longer mere welfare measures but have grown into fundamental human right issue, a demand

1
http://www.legalserviceindia.com/legal/article-98-rights-of-disabled-persons.html.
2
United Nations Development Programme, Official Records, U.N. Document available at
http://www.un.org/disabilities/default.asp?id=18, last seen on 16/02/2016.
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for full participation, equal opportunity and protection of rights from all perspectives have been
taking place.

The dominant social attitude towards persons with disability has been one of pity, from which
springs insidious forms of discrimination - the eventual source of their exclusion and extreme
isolation. Effects of disability- based discrimination have been particularly severe in fields such
as education, employment, housing, transport, cultural life and access to public place and
services. Despite some progress in the terms of legislation, such violations of the human rights of
persons with disability have not been systematically addressed in the society. The statistics data
on their situation in India shows that there need more reforms and policy changes for them.
Situations of person with disability often have been kept till rehabilitation and social services. A
need exist for more comprehensive legislation to ensure the rights of disabled persons in all
aspects – Political, Civil, Cultural, and economic rights- on an equal basis with persons without
disabilities. Appropriate measures are required to address the existing discrimination and to
promote thereby opportunities for persons with disabilities in social life and development.

2. CONCEPT AND MEANING OF DISABLEMENT

Disability is an impairment that may be cognitive, development, intellectual, activity, limitations,

sensory or some combination of these. It substantially affects a person’s life activities and may
be present from birth or occur during a person’s lifetime. Disability is a contested concept, with
different meanings of different communities. It may be used to refer to physical or mental
attributes that some institutions, particularly medicine, view as needing to be fixed. It may refer
to limitations imposed on people by the constraints of an ablest society. People with disabilities
have the same health needs as non disabled people for immunizations, cancer screening etc. They
may also experience a narrow margin of health both because of poverty and social exclusion and
also because they may be vulnerable to secondary conditions such as pressure sores or urinary
tract infections.3

3
See Supra note 1.

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Disabilities is an umbrella term, covering impairments, activity limitations, and participation
restrictions. An impairment is a problem in body function or structure; an activity limitation is a
difficulty encountered by an individual in executing a task or action; while a participation
restriction is a problem experienced by an individual in involvement in life situations. Thus,
disability is a complex phenomenon, reflecting an interaction between features of a person’s
body and features of the society in which he or she lives.
— World Health Organization, Disabilities4

Disability is not a tragedy but an inconvenience. As noted above, about 650 million persons or
one-tenth of the world’s population are estimated to be disabled in one form or another, e.g.,
Visual, auditory, physical, speech, cognitive and neurological. Unlike the disability legislation in
various countries, the persons with Disabilities (Equal opportunity, Protection of Rights and Full
Participation), Act 1995 in India, recognises only limited forms of disabilities such as:

I. Blindness;

II. Low vision;

III. Leprosy-cured;

IV. Hearing impairment;

V. Locomotors disability;

VI. Mental retardation

VII. Mental illness

Disability means the state or quality of being mentally or physically disabled or weakness,
incapacity or inability to hold a certain job because of physical or mental handicap, want or legal
qualification.
In pursuance of the U.N. Charter, the General Assembly of the United Nations, adopted the
Declaration on the Rights of the Disabled Persons.5 The term "disabled person" means "any
person unable to ensure for himself or herself wholly or partly the necessities of a normal

4
https://www.who.int/topics/disabilities/en/
5
U.N.G.S, Resolution 3447 (XXX), 9th December, 1975.

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individual and or social life as a result of a deficiency, either congenital or not, in his or her
physical or mental capabilities".6The conditions of disability have been dealt with by legislations
in two kinds of situations in India. One, which determines compensation on the occurrence of
disability—whether it be on road or workplace. The Workmen's Compensation Act, 1923 and the
Motor Vehicles Act, 1988 are two major statutes which are related with compensation-related
disability legislations. The second situation of disability law making is when persons are
disqualified from educational opportunities or undertaking particular jobs due to their
disabilities. However, the important of these laws is the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995.

3. INTERNATIONAL INITIATIVES

The United Nations since its inception in 1945 is making a relentless campaign for the protection
of human rights of all in general and various deprived sections in particular. Based on the
International Bill of Rights, the U.N. formulated the first specific document regarding disabilities
in 1971 in the form of Declaration on the Rights of Mentally Retarded Persons. Basically, all
international human rights instruments, protect the human rights of persons with disabilities, as
they apply to all persons, Thus principle of universality is reinforced by the principles of equality
and non-discrimination which are included in human rights instruments. International human
rights law determines that every person has:
1. The right to equality.
2. The right to non-discrimination.
3. The right to equal opportunity.
4. The right to independent living.
5. The right to full integration.
6. The right to security
The Universal Declaration of Human Rights (UDHR)7 represents the normative basis that led to
formulating the standards concerning persons with disabilities that exist today. In Article 25 (1)

6
See at Supra note 1.
7
Adopted by United Nations General Assembly Resolution No.217 III, 10 December 1948.

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of the UDHR specifically mentions the socio-economic rights of people with disabilities: the
right to an adequate standard of living, including food, clothing, housing and medical care and
social services and the right to security in the event of unemployment, sickness, disability,
widowhood, and old age or other lack of livelihood in circumstances beyond his control. The
Universal Declaration recognises a form of equity inherent in human dignity with equal and
inalienable rights as the foundation of freedom and justice; that all men are born free, and equal
in dignity and rights; that all are equal before the law; and that all are entitled to equal protection
against discrimination and that everyone has the right to freedom of thought
International Covenant on Civil and Political Rights, 1966 (ICCPR)8 lists several rights that are
relevant to disability. Article 26 states that all people are equal before the law and have the right
to equal protection of the law. Although the International Covenant on Economic, Social and
Cultural Rights (ICESCR) does not specifically refer to disability, however it can be included
under -other status" in Article 2(2), which calls for non-discrimination on any grounds such as
race and colour, and "other status".
In 1969, the United Nations General Assembly adopted the Declaration on Social Progress and
Development,' which started the movement relating to the right of persons with disability. The
Declaration while proclaiming the right to live in dignity for all people emphasised the need to
assure disadvantaged sectors of the population equal opportunities for social and economic
advancement.

In 1971 General Assembly adopted the declaration on the rights of mentally disabled persons.
The Declaration states that: "The mentally retarded person has, to the maximum degree of
feasibility, the same rights as other human beings". The Declaration calls for national and
international guidance as would enable him to develop his maximum potential. Proper medical
care and such education, training, rehabilitation and the rights of disabled persons. The mentally
retarded person has a right to action to ensure that it will be used as a common basis for the
protection and international action to ensure that it will be used as a common basis for the
protection of the rights of disabled person. He will also have the right to economic security and
to a decent standard of living to do productive work or engage in other meaningful occupations
to the fullest extent of his capability

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Adopted by United Nations General Assembly Resolution No 2200 A XXI, 16th December 1966.

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In 1975, the General Assembly adopted the "Declaration on the Rights of Disabled Persons.” It
was the first international document that tried to define the term "disability". Like the
Declaration on Mentally Retarded Persons, this Declaration also stresses that disabled persons
have the inherent right to respect for their human dignity and the right to enjoy a decent life, as
normal and full as possible. They are entitled to measures designed to enable them to become as
self-reliant as possible, and that their special needs must be taken into consideration at all stages
of economic and social planning.
The Declaration on the Rights of Deaf-Blind Persons, 1979 also guarantees universal human
rights to all deaf-blind persons. Article 1 of the Declaration states that “….. every deaf-blind
person is entitled to enjoy the universal rights that are guaranteed to all people by the Universal
Declaration of Human Rights and the rights provided for all disabled persons by the Declaration
of the Rights of Disabled Persons".
In a landmark resolution adopted on 16 December 1976, the United Year' of Nations General
Assembly proclaimed 1981 as the "international Disabled Persons" with the theme "Full
Participation and Equality". Two international human right treaties, namely the convention on
the Elimination of All forms of Discrimination Against Women, 1979 (CEDAW), and the
Convention on the Rights of the Child (CRC) highlighted particular vulnerability of women and
children to right abuse.

Thus, the United Nations and its various agencies are contributing substantially towards the
integration of persons with disabilities by adopting various conventions, declarations and
recommendations.

4. International Human Rights:

UN Charter:

The charter of the United Nations of 1945 is the foundational treaty of the United Nations, an
intergovernmental organization. Article 55 says that With a view to the creation of conditions of
stability and well being which are necessary for the peaceful and friendly relations among
nations based on respect for the principle of equal rights and self determination of people's, the
United Nations s shall promote:

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a. Higher standard of living , full employment and conditions of economic and social progress
and development;

b. solutions of international economic, social, health, and related problems and international
cultural and educational cooperation

c. Universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion.

4.1.Declaration On The Rights of Disabled Persons:

The Declaration of the Rights of Disabled persons was a declaration of the General Assembly of
the United Nations made on 9 Dec 1975. It is the 3447th resolution made by by the Assembly.
The disabled person shall enjoy all rights contained in this declaration without distinction or
discrimination. The disabled persons have inherent rights to respect for their human dignity and
irrespective of the origin, nature and seriousness of their handicaps and disabilities, have same
Fundamental Rights. Disabled persons have the same civil and political rights as other human
beings. Disabled persons are entitled to the measures designed to enable them to become as self-
reliant as possible. Disabled persons have the right to economic and social security, including 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. Disabled persons have the right
to live with their families or with foster parents and to participate in all social, creative or
recreational activities. Disabled persons shall be protected against all exploitation and treatment
of a discriminatory, abusive or degrading nature.

Provisions of the Declaration include:

1) The definition of " disabled person" as anyone who cannot ensure the necessities of a normal
individual and or social life as a result of deficiency in physical or mental capabilities.

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2) A non discrimination clause applying the Rights to all disabled persons regardless of " race ,
colour, sex, language, religion, political or other opinions , national or social origin , state of
wealth, birth " or other situation

3) Annual statement regarding disabled persons right to respect for their human dignity.

4.2.The Convention On The Rights of Persons With Disabilities:

The Convention on the Rights of Disabilities is an international human rights treaty of the United
Nations intended to protect the Rights and dignity of persons with disabilities. Parties to the
convention are required to promote , protect and ensure the full enjoyment of human rights by
persons with disabilities and ensure that they enjoy full equality under the law.

In the charter of the United Nations it is proclaimed that the inherent dignity and worth and the
equal and inalienable rights of all members of the human family is the foundation of freedom,
justice and peace in the world. Similarly, the United Nations, in the universal declaration of
human rights and in the International covenants on Economic, Social and cultural rights. It is
supposed that the convention would make a significant contribution to redressing the profound
social disadvantage of persons with disabilities and promote their participation in the civil,
political, economic, and social and cultural spheres with equal opportunities, in both developing
and developed countries. The convention on the Rights of Persons with disabilities deals with
matters such as, general principles on the basis of which the rights of the disabled persons are to
be promoted and protected, the obligations that have been undertaken by the State parties to
adopt measures. The protocol has been added to the present convention authorizing the
Committee on the Peron with Disabilities to receive and consider communications from or on
behalf of individuals or groups of individuals, who claim to be victims of a violation by a State
party of the provisions of the present convention.

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5. NATIONAL LEGAL FRAMEWORK
“Law, is a pledge that the citizens of a state will do justice to one another”.

5.1.CONSTITUTION OF INDIA

Equality, dignity, autonomy and liberty are the founding principles on which international human
rights law is premised. These values have sufficiently influenced the fundamental law of
democratic polity and are reflected in Constitutions of most democratic States including India..
The Preamble to the Constitution of India while giving a structure and philosophy of governance
clearly proclaims 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.
Equality
Under right to equality the Constitution of India guarantees to all citizens equality before law and
equal protection of law (Article 14); and it prohibits discrimination on grounds of ‘religion, race,
caste, sex, place of birth or any of them’ (Articles 15 and 16). Further, to ensure equality in the
outcome, it encourages the State, under Articles 16(3) and 16(4), to frame any law or make
provision for the reservation of appointments or posts in favour of any backward class of
citizens, which, in the opinion of the State, is not adequately represented in its services.
Non-Discrimination

The formal recognition of discrimination on grounds of disability is a recent phenomenon and

laws enacted even twenty years ago generally did not include disability in the list of prohibited
discriminations. For instance, the Constitution in Articles 15 and 16 prohibits discrimination in
the matter of employment and access to public facilities on grounds of religion, race, caste, sex
and place of birth, but is silent on disability. In fact, the service rules until 1995 prevented entry
of persons with disabilities in higher grades of service. These rules gave the employer the
authority to force premature retirement in public interest and often employees who acquired

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disability during service were either forced out of job or got their rank reduced. In most cases
their opportunity for career enhancement was suspended forever.
Directive Principles of State Policy and the Fundamental Rights

The Preamble, the Directive Principles of State Policy and the Fundamental Rights enshrined in
the Constitution, envisage a very positive role for the State towards its disadvantaged citizens.
Article 41 declares that, ‘(T)he 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.’
Article 46 lays down an obligation on the State ‘(T) to promote with special care the educational
and economic interests of the weaker sections of the people, and … protect them from social
injustice and all forms of exploitation.’

5.2. PROTECTION OF HUMAN RIGHTS ACT, 1993

After ratification of International Covenant on Economic, Social and Cultural Rights (ICESCR)
and International Covenant on Civil and Political Rights (ICCPR), India brought into force the
Protection of Human Rights Act, 1993. This Act provides for the establishment of National
Human Rights Commission and States Human Rights Commissions for better protection of
human rights. Section 2(d) of this Act defines ‘human rights’ as: ‘the rights relating to life,
liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in
international covenants and enforceable by courts in India’. Thus, the Act provides a mechanism
to monitor the implementation of various constitutional provisions and obligations under
international covenants on different rights, including economic, social and cultural rights. This
also indicates India’s readiness to implement non-justiciable rights.

Main Provisions of the Act:

1) Prevention and Early Detection of Disabilities
2) Education
3) Employment
4) Non discrimination
5) Social Security

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6 ) Research and manpower development
7) Grievance Redress

In Jared Abiding v. Union of India9 the supreme Court bearing in mind the discomfort and
harassment suffering by a person of locomotor so disability would face while travelling by train
particularly to far off places issued directions to the Indian Airlines to grant persons suffering
from locomotor so disability to the extent of 80%

5.3.DISABILITY LAWS:
During the 1970s a distinct self-advocacy movement of people with disabilities started a
sustained campaign demanding protection and recognition of their human rights. Towards this
end, it sought enactment of a comprehensive legislation having a rights based approach with
special emphasis on social and economic rights. Though the government recognised the need for
such a legislation as early as 1980, it was enacted only in 1995. The delay could be attributed to
the fact that the Indian Constitution while distributing legislative powers between the Centre and
States kept the disability issue in the State list at Entry 9 of Schedule 7. The Parliament of India
gained competence to legislate on disability issues with the signing of the Proclamation of
Equality and Full Participation of People with Disabilities in Asian and Pacific Region. Article
249 of the Constitution empowers the Parliament to legislate on any subject falling in any list in
order to fulfil its international obligations.
Some of the other important Acts are

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995

This Act is a combination of service-oriented and rights-based legislation, based on the following
approaches: prohibition of discrimination on the ground of disability in different spheres of life;
positive discrimination in favour of people with disabilities; grant of relaxation in their favour to
overcome respective disabilities; and their inclusion in mainstream programmes. The Act
provides for both preventive and promotional aspects of rehabilitation like education,

9
Id.

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employment and vocational training, reservations, research and manpower development and
creation of a barrier-free environment.

5.4.National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999
The Act was passed by the Parliament with a very progressive objective, namely to enable
persons with disability to live as independently and as fully as possible within and close to the
community to which they belong. The idea is not to push people out of the society and keep them
in residential institutions but to encourage them to live within their family. They have the right to
live with their family. Another objective is to evolve procedures for appointment of guardians
and trustees for persons with disabilities requiring such protection. The Act also provides for
creating conducive environment in the community and also envisages counselling and training of
family members of persons with disability.

6. INDIAN JUDICIARY

“Laws are a dead letter without courts to expound and define their true meaning and
operation”

The role of judiciary in protection and empowerment of persons with disabilities is an important
one. In recent times, the Indian judiciary has emerged as the protector of human rights and its
responses towards violation of human rights have been optimistic. Though initially scanty,
judicial activism in the field of human rights is beginning to emerge as a new hope for the
vulnerable groups. The Supreme Court in a number of cases has progressively interpreted the
Disabilities Act 1995 for the benefits of disables persons. In Javed Abidi v. Union of India, 10 the
Supreme Court, keeping me view the objectives of the Act, hold that the Court cannot ignore the
true spirit and object of the Act to create a barrier free environment for persons with disabilities
and to make special provisions for the integration of persons with disabilities into the social

10
AIR 1999 SC 512

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mainstream. In Chandan Kumar Banik v. State of West Bengal11 The Supreme Court had to
intervene in order to provide respite to mentally challenged inmates of hospital in Hooghli
district who were being kept chained by the hospital administration to control their unruly or
violent behaviour.

In Sheela Barse v. Union of India12 directions were issued by the Supreme Court that physically
and mentally retarded children and abandoned or destitute children shall be lodged in protective
or observation homes and if such children are accused of any offence, the investigation and trial
against them be expedited by setting up juvenile courts in each district and a cadre of trained
magistrates for dealing with such cases be formed.
In National Federation of Blind v. Union Public Service Cornmission13, the Supreme Court was
activated so that the Public Service Commission may be directed to allow blind persons to
compete in the exams for the Indian Administrative and Allied services. The petition was
allowed by the Court. The Court also acceded to the petitioners request to write the examination
in Braille scripts or with the help of scribe.

7. SUGGESTIONS AND RECOMMENDATIONS

All the attempts made till to date in India for providing equal rights and opportunities for the
persons with disabilities are purely based on medical model and lack the social, economic, and
legal perspective making such protection discriminatory. However, the future of the disabled
individuals is not all that gloomy there is lot of scope for amendments to the existing legislation
PD Act 1995 in conformity with UN Convention on the Rights of Persons with Disabilities
(2006) to which India a signatory in the following areas:

Inclusion of a new definition on ‘persons with disabilities that endorses the social model of
disability as it locates the problem of disability outside the individual person.

11
(1995) Supp (4) SCC 505.
12
(1986) 3 SCC 632.
13
(1993) 2 SCC 411.

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 Inclusion of Right to Barrier free environment in order to ensure proper accessibility to the
persons with disability in all buildings and facilities both in rural and urban areas. In this regard
the State must formulate suitable Accessibility Standards from time to time by adapting
prevailing international standards on physical environment information and communication
technologies and develop systems that are suitable to Indian conditions.

Promotion of Right to Equality and Non-Discrimination and ‘reasonable accommodation’ by

the State would enable them to have access to, participate in, or advance in employment, to enjoy
legal capacity on an equal basis with others in all aspects of life right.

As women and girls with disabilities are more vulnerable to all kinds of exploitation, abuse
and violence, they must be taken care off in all settings at all places including, home, care-
houses, educational institutions, institutions, workplaces.

The Right to access court is an essential component of guaranteeing the enjoyment of any
right therefore, all buildings which are related to the justice system, including courts and police
stations, should be made accessible to persons with disabilities.

To promote, protect and enforce the rights of the persons with disability on an equal basis with
others a Disability Rights Authority (DRA) must be constituted

CONCLUSION
It is evident from the review given in the preceding paragraphs that the worldwide disabilities
rights movement has initiated a new thinking among non-disabled persons that people with
disabilities must also be provided with equal opportunities and equal treatment by society.
Despite international and national movements, it is evident from the various data that the existing
facilities are extremely inadequate. In certain cases, the foundation has been laid while in others,
a beginning has to be made. Even though, laws have been passed for the protection of the rights
of persons with disabilities, enforcement of the same has been tardy. However, the new laws
cannot bring the rights of the disabled until we as human beings, thinks that in addition to access,
education, health care, rehabilitation services and employment, all people with disabilities need a

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safe, secure and accessible environment which is respectful of their dignity. We need to learn to
care for all human beings as human beings, with due respect for all their differences.

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REFERENCES:-
Books
1. ANTHONY, M J: Rights of persons with disabilities. (Indian Social Institute, New Delhi,
1999)
2. AWADHESH KUMAR SINGH, Rights of the Disabled: Perspective, Legal Protection
and Issues.(Serials Publication, New Delhi, 2002)
3. DESPOUY, Leandro: Human rights and disabled. (United Nations, New York, 1993)
4. KRISHNA.V.R, Human rights in India. (Central Law Agency,Lucknow,2008)

Web links:

1. http://nhrc.nic.in/
2. http://www.un.org/disabilities/index.asp
3. http://www.deafadvocacy.org
4. http://www.ohchr.org/EN/Issues/Disability/Pages/DisabilityIndex.aspx
5. https://www.who.int/topics/disabilities/en/
6. http://www.legalserviceindia.com/legal/article-98-rights-of-disabled-persons.html.

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