CHAPTER 2

CONCEPT AND HISTORICAL PERSPECTIVE OF DISABLED

PERSONS

Around the world, the ones who are physically or intellectually different from
others are viewed as inferior and should be helped and supported. It has been
noted that some individuals possess extraordinary (supernatural) abilities and
traits despite their physical, mental, or sensory impairments (God Gifted).
These people have demonstrated their abilities in a variety of spheres of life
through intelligence or a good outlook, including fine art, the arts, etc. The
world now focuses primarily on human rights for handicapped people and
their implementation because of the growing prejudice against these
individuals, their inferiority, and inequity.1

Human rights, a citizen receive from his birth, separate rights were not
announced for him, then why was the announcement of human right
separately for disabled persons? Disabled is also human; it is not an item to
be divided into primary and secondary. Therefore, the rights that an ordinary
citizen receives from his birth, likewise a disabled person also receives same
rights, since he also comes in the category of citizen of a country, not a
secondary person. Therefore, The Constitution of India is equally applicable
to every legal citizen of India, even if they are in any way (physically or
mentally) healthy or disabled. Yes, it is of course that the disabled person
needs some privileged rights rather than a normal person which should be
given them. The reason is that they are special (Special child, special person).
1
Available at (Last visited 2/02/2024)
The second reason is, we ignored disabled persons, and they are kept away
from their rights, understood as problems, and seen as burden and
abhorrence.

Due to the physical, mental, sensory deficiency, someone comes in the

category of disability. But in order to overcome that one weakness, they have
some special talents and divine qualities. For example, in one case, I met a
child who was neglected by the family due to low intelligence but he was a
genius in sketching and painting that made him special. He needed only
support, to bring his skills/ talent to the society. He was admitted to the
special school; teachers there recognized his skills and helped him. In another
case, mentally retarded person (age 35 year) who was often neglected by his
family but also had this virtue, he used to do all the work at home very well.
It meant that there was a sense in him. But unawareness and due to small
thinking, he was lost in the darkness of oblivion.

2.1 HISTORICAL BACKGROUND

Society values regularity rather than multiplicity. Thus there is a propensity to

analyse ourselves as either normal or deficient. The potential of homogeneity
lies in the possibility of redefining society's concept of 'normalcy'. When
people are given the right to belong, they are given the right to diversity.
Since India is a fusion of cultures, religions, languages, philosophies and
beliefs, customs and climates. But despite their religious, social, economic,
political and geographical differences, there are two distinct features that are
shared by most Indians. One is tolerance and the other is an engrained
conviction in tradition and socio-cultural norms. These two characteristics
have been responsible for the preservation and maintenance of a social
structure based on caste and class, and reception of injustice, discrimination,
exploitation and abuse as part of one's karma or fate.2

The problem of disability and movement for disability is as old as mankind.

In Hindu mythology, the portrayal of people with disabilities is
overwhelmingly negative, but also exhibits a strong gender bias in terms of
the perceived capacities of disabled men and women. Disabled men in the
Hindu myths are in some cases powerful and capable people. However, the
visually impaired king Dritarashtra and the orthopedically impaired Shakuni
side with the forces of evil in the Mahabharata war. Such images of powerful
but evil and cruel disabled men have been reinforced by historical figures
such as Taimur Lang. In contrast, women with disabilities in Hindu
mythology are simply irrelevant. A prime example comes in a story from the
Karthik Poornima, where Lord Vishnu refuses to marry the disfigured elder
sister of Lakshmi, saying that there is no place for disabled people in heaven.
The sister is instead married to a peepal tree 3 But at the same time, the great
holy epic of "Ramayana' also contains a female negative character of
Manthara. These created a negative impact on the mindset of people about
persons with disabilities who were seen as sin or punishment by God for
wrong done m past life.4

2
Rubina Lal, "Disabilities: Backgrounds and Perspective" Available at http://www.
infochangeindia.org/Disabilities lbp.jsp (Last visited on 03/02/2024)
3
The World Bank, “Report on People with Disabilities in India: From Commitments to Outcomes”22 (2007)
4
Kishor Bhanushali, "Changing Face of Disability Movement: From Charity to Empowerment" Available at
http://www.disabiltiyindia.org (Last Visited on 7/02/2024)
The philosophy of ‘sankya’ points out the different kinds of intellectual
disabilities. Around 1000 BC, the Garba Upanishad suggested that the
distressed parents give birth to defective babies. Society and religion looked
down upon the family members of the disabled, specially the mother. In the
Aadi Parv of the Mahabharata, Ambika, mother of blind Dhritrashtra started
lamenting in fear hut could not escape the reproach of the Brahmins and he
elders of the society. In 500 BC, the 'childish mind' model was given in the
Upanishad explaining mental retardation.5

The ancient Hindu Constitution, Manusamhita contains a number of

provisions which points out disability to be the payment for the sins one
commits in one's last birth.

Annaharttamayabitvam mekyim vanpaharakah.

Vastrapaharakah shwetram pmzgutamshwa harakah.6

It means one who steals grains, suffers from indigestion. Reciting the Vedas
without the guru's consent will make him dumb: one who steals others
clothes will have white patches over his body and who steals horse shall he
born disabled. In the eighth chapter of Manusamhita, it has been mentioned
in the 93rd Section that one who gives false information shall be born blind:

Nwnnomundaha kapalen hhiksharthi kshut nipasittah

Andhah shatru kulwn gaclzheg Jah sakshat manritam vadet7

5
Available at
6
Chapter 11, The Law of Manusamhita, Section 51

7
Chapter 8, The Law of Manusamhita, Section 93
 Ayurveda, a traditional Indian system of medicine, refers to
disability, and provides guidelines for treatment. Particular mention has been
made of mental retardation. Charaka and Susruta, famous ancient
apothecaries referred to mental retardation as 'manasmandyam' or weak head
caused by genetic, nutritional and environmental factors. But both of them
maintained that these causative factors occurred as a result of 'graha' or
planetary influences. This line of thinking, in which the past, present and
future are attributed to supernatural powers, typifies Indian philosophical
thought with its belief in 'karma' and is accepted largely to this day. Indian
history provides that people with disability were either regarded as objects of
pity or ridicule. Dwarfs and hunchbacks were often employed as jesters m the
courts of Indian rulers.8 However mortifying, the royal patronage afforded the
disabled persons some measures of social security basically out of charity.
During 185-71 BC Patanjali included disabled person for yoga therapy. The
blind during the medieval period would become minstrel and sing hymns in
praise and worship of God. Surclas is the epitome. He was a blind poet who
worshipped Krishna and Spread Krishna Bhakti cult. Similarly, a blind
Muslim could memorise Quran to become a hafiz. The reign of Chandra
Gupta Maurya stands out unique in its arrangement of workshops for the
vocat10nai rehabilitation of the physically disabled as well as other socially
and economically disadvantaged members. Kautilya the renowned political
economist of the Maurya period and author of Arthashastra enjoined the king
to widen the orphans, the aged, the infirm, the inflicted and the helpless with
maintenance. For their self reliance and economic independence, he

8
Supra note 2
suggested awarding work on priority to women who were widowed, single,
crippled and abandoned. Emperor Ashoka had developed an elaborate public
health system. His edicts record that 'the king erected hospitals along the
highways and deputed physicians and made arrangements for medicines,
food and drinking water. Gopas were instituted at the village level to maintain
record of birth, death, caste and also to provide for the ill, infirm and those in
need of help.9

Islam, as a religion, makes a distinction between the person with intellectual

disability and mental disorder, but both are found legally incompetent in the
Koran and the Hadith. The society according to Islam is obliged to assess,
assist and respect the person with intellectual disability and give the person
an equal life chance. Mohammad, the Prophet, implied the importance of
child welfare, education, well-being, and supporting children

2.2 EVOLUTION OF DISABILITY LAWS

Like all human beings, individuals with disability also have varying degrees
of need. They often strive hard for a high quality of life as other normal
individuals.

Unfortunately, many a time people fail to understand that disability in simple

terms is nothing but a natural part of the human experience. A person with
disability, in spite of all limitations, can carry out of normal activities of
living if he/she has easy access to community based long term services such
as attendant care, access to buildings public transportations, side walk etc.

9
Chapter 3 : The Indian Scenario 35-36, National Human Rights Commission Disability Manual (National Human
Rights Commission, New Delhi, 2005)
Even the severely disabled when provided with quality healthcare services
and the necessary equipments are able to carry on the tasks similar to those
done by the non-disabled.

Persons with Disabilities are to be found all over the world and at all levels of
society. Their number is ever on the increase. The causes and consequences
of disability depend upon different socio-economic and medical conditions as
also upon political conditions of turmoil in various parts of the world. It also
depends upon the steps taken by different Governments as to the well-being
of persons with disability. There have been specific circumstances that have
led an impact on the living, conditions of persons with disabilities.

The role played by the United Nations in raising global awareness about the
need to care for and protect the disabled is to be found from the several
Resolutions passed by its General Assembly

United Nations General Assembly adopted a declaration in 1969, which

talked about social progress and development of the people all over the
world, it was followed by a declaration on the rights of mentally retarded
persons in 1971.

In May 1990, the United Nations Economic Social Council authorized

Commission for Social Development to elaborate standard rules on the

equalization of opportunities for disabled children, youth and adults. These
rules were developed on the basis of experience gained during United
Nations Decade of Disabled Persons

(1983-1992) and were founded on the following international instruments:

  Universal Declaration of Human Rights, 1948
 International Covenant of Economic, Social and Cultural Rights, 1966
 International Covenant on Civil and Political Rights, 1966
 Convention on the Rights of the Child, 1989
 Convention on the Elimination of All Forms of Discrimination against
Women, 1979
 World Programme of Action concerning Disabled Persons, 1982.
 The Standard Rules on the Equalization of Opportunities for Persons
with Disabilities was adopted by the United Nations General Assembly
at its 48th session on 20th December, 1993 (Resolution 48/96).
 The Economic and Social Commission for Asia and the Pacific
proclaimed at its 48th Session on 23rd April, 1992 (Resolution 48/3)
the, Asian and Pacific Decade of Disabled Persons (1993-2002).10

The World Programmed of Action called upon member states to, interalia,
create through legislation, the necessary legal bases and authority for
measures to achieve the objectives:

 assume responsibility for ensuring that disabled persons are granted

equal opportunities with other citizens;
 Undertake necessary measures to eliminate any discriminatory
practices with respect to disability.

10
http://www.un.org/esa/socdev/enable/comp304.hum
  give particular attention to conditions which may adversely affect the
ability of disabled persons to exercise the rights and freedoms
guaranteed to their fellow citizens:
 give attention to specific rights, such as rights to education, work,
social security and protection from inhuman or degrading treatment and
examine these rights from the perspective of disabled persons.

The above actions and declarations on the part of the United Nations caused a
paradigm shift in the understanding of disabled persons from objects of
charity to recognition of enabling them to participate in the affairs of society
at par with citizens who were not disabled Finally United Nations adopted the
Convention on the Rights of Persons with Disabilities in the year 2006 which
has been ratified by India and many other nations.

In India the Government became an involved agent for the welfare of the
disabled particularly after the Second World War. The Christian missionaries
also joined the rehabilitative ventures. This led to the setting up of a few
institutions and organizations during the pre-independence era. In the post -
independence era, disability related discrimination was never addressed in
India either in the Constitution under chapter Ill, which contains the
fundamental rights, or by any other statute. The Constitution while protecting
equality under Articles 14, 15 and 16, does not include disability as one of the
categories for non-discrimination. The only mention of protection of persons
facing disability and sickness was made in the Directive Principles of State
Policy in chapter IV of the Constitution. 11

11
MP. Jain, Indian Constitutional Law" Lexis Nexis Publisher, Gurgoan, p. 1406.
In India, the State became aware of the rights of the disabled in 1981, on the
eve of the International Year for the Disabled Persons (IYDP). Now India
formulated a national plan of action, which in turn, motivated the state plans
of action. As part of the celebration of the International Year for the Disabled
Persons some activities were undertaken by the Government for the
upliftment of the disabled. Some institutions and organizations were set up
both at the central and the state levels. Some more were promised to be
established. The loose ends of the thread were picked up during the Decade
for the Disabled (1983-1992). Integration with international organization
helped us in creating conceptual and legal bases for the welfare of the
disabled. Even at this juncture the efforts made for the welfare of the disabled
lacked proper momentum owing to limited financial resources and skeptical
attitude of the society as well as the government both at centre and state level.
All these efforts were like a drop in the ocean and still more needed to be
done. It is pity to note that even a systematic authentic census of the disabled
in India does not exist. Consequently, different sources mention different
figures. For example, population census, National Sample Survey
Organization (NSSO) and voluntary organizations have variations in the total
population of the disabled in India. 12

The Mental Health Act of 1987 was the first legislation which covered the
persons with disabilities. This Act does not address the issues of legal
capacity and rights of persons with mental disabilities but only provides for
their guardianship and institutional isolation and, therefore, cannot be

12
Parnannand Singh, "Human Rights of Persons with Disabilities Some Reflections*, Delhi Law Review. Vol,
xxini, 2001. p. 3
considered as a legislation addressing disability based discrimination. Persons
with disability were included in welfare schemes and were referred to as
'physically handicapped' or 'PH'. Token affirmative measures were taken by
the state in reserving posts in Government services that is civil services
legislations, purely as welfare measures and not as anti-discrimination
measures. However, this was very limited and the extent of reservation for
persons with disability was not uniform throughout the country.

In this context, the enactment of the Persons with Disabilities (Equal

Opportunities, Protection of Rights and full Participation) Act 1995 is
remarkable because for the first time in India since 1995, social and
economic rights of persons with disability have been recognized by any
statue. One can say that it has the potential to probably become India's first
anti-discrimination law, or an equality law. A perusal of the provisions of the
Act shows that our legislation has finally been able to perceive the problems
of the disabled. It is an attempt to remove some of the socio-legal
impediments faced by the disabled, in their day to day life. But the mere
passing of the Act is not sufficient. It is to be translated into action in letter
and spirit.13

1.2 CONCEPT AND MEANING OF DISABILITY

Oxfords dictionary defines disability as "a physical or mental condition that

limits a person's movements, senses, or activities." Every person on this earth
may respond differently to the same stimulus because everyone has his own
characteristics and abilities which make him contribute uniquely to the world
13
Know Your Rights, National Human Rights Commissions, New Delhi, 2005, p. 5
depending upon his potentials and capabilities. Sometimes these differences
are to such an extent that people may deviate from the status considered as
normal.

However, being different is not always negative but sometimes individuals

are different from other individuals of the same life age due to functional
losses in one or more areas in different proportions; this may lead to
impairment which may result into disability.

The reality of the life is that none in the world is totally disabled and none is
totally abled. With one unforeseen harsh calamity of nature, those who are
abled today could become the disabled of tomorrow. Conversely, the disabled
of today with the resistance of rehabilitation programmed acceptance by the
society and advancement in medical science could consider they belonging to
the community of able-bodied. Now disabilities emerge with new medical
developments and discoveries- genetic dispositions to certain diseases are
recent examples.14

The definition of disability has been an issue of much debate. Some

definitions of disability enumerate the type of disability and define them
exhaustively while the others set out the criteria and any person satisfying the
criteria is covered under the definition. Hence, the definitions range from the
very narrow to the very broad, from the medical to the social, from the

14
K.D.I. Am, "Orthopedic Injuries need not spell the end of a Career," International Journal of Occupational Health
and Safety, Vol. 45 (I) p. 52.
cultural to the local, from the one intended to integrate them in the society to
the one for exclusion and segregation.15

The definition of this term varies from time to time, from country to country
and within the country itself. This is because of the variations in income
maintenance, employment measures or social assistance with daily life
activities in different countries. Though legal definitions of other categories,
such as gender, ethnic background or sexual orientation also raise questions
of demarcation disability is even harder to define because it encompasses
numerous condition of mind and body and the boundary between ability and
disability seems to be less clear. Historical events, sacred texts, cultural
beliefs, social institutions, and so on, all contribute, in the social construction
of disablement.16

The phenomenon of disability is comprehended differently by different

people. Consequently every individual will have a diverse connotation for the
rehabilitation strategy to be pursued for them. The implication of disability is
different for a doctor, for an economist for a philanthropist and for a social
worker.

A doctor views disability as a pathology which deprives the person of his

capability to take care of his own life as compared to the able-bodied persons.
According to a philanthropist, disability is a subject of tragedy, pity and
charity. However a economist defines disability as a social burden because of
the economic dependence of the disabled persons on their families and their
15
Anand Gupta, "Definition of Disability: A Critical Stula," Indian Bar Review, Vol. xxxix (2), 2012, p. 145

16
http://dsq-sds.org/article/view/696/873
limited contribution towards the society and their families. On the other hand,
a social worker considers disability as a condition for social exclusion of
disabled persons. As a result, different models of disability have progressed
from disability worldwide. Models of disability are hence, tools for defining
impairment and eventually, for providing a base upon which Government and
society can formulate policies for meeting the needs of disabled people.17

Disability As Defined Under United Nations Organizations (UNO)

According to the Standard Rules on the Equalization of Opportunities for

Persons with Disability United Nations, 1994 the term 'disability' summarise
a large number of diverse functional limitations occurring in any population
in any country of the world. People may be disabled by physical, intellectual
or sensory impairment, medical conditions or mental illness. Such
impairments conditions or illnesses may be permanent or transitory in nature.
A distinction has been made between disability and handicap. A handicap is
considered a loss or limitation of opportunities to take part in community life
on an equal level with other. The purpose of this distinction is to emphasize
the focus on the shortcoming in the environment and in many organized
activities in society that handicap a disabled person.18

Hence, it can be said that Standard Rules have defined disability from a
perspective that emphasizes social conditions which disable a group of
individuals by ignoring their needs of accessing opportunities in a manner
conducive to their circumstances.

17
Disability Manual, "Approaches to Disability", NHRC Government of India 2005, p. 46.
18
Guidance for human rights monitost Monitoring the Convention on the Rights of Persons with Disabilities".
United Nations Humar,Fights. New York and Geneva, 2010, p. 15
Definition of Disability Prevailing In India

The legal definition of disability has been provided under Persons with
Disabilities (Equal Opportunities Protection of Rights and Full Participation)
Act, 1995. The said statute has been enacted with a view to implement the
proclamation on the Full Participation and Equality of People with
Disabilities in the Asian and Pacific Region, which was adopted at the
meeting to launch the Asian and Pacific Decade of Disabled Persons 1993
2002 convened by the Economic and Social Commission for Asia and Pacific
at Beijing on I December 1992 and to which India was a signatory. 19 The
word disability is defined in section in section 2 (i) so as to mean (i)
blindness, (ii) low vision (iii) leprosy cured, (iv)hearing impairment (v)
locomotors disability, (vi) mental retardation, and (vii) mental illness. 20
Further according to section 2 (t) a person with disability means a person
suffering from not less than forty percent of any disability as certified by a
medical authority.21 As can be observed from the above, the criterion for
classification of disability is the medical model of disability By defining
disability in an inclusive manner the India law has avoided considering of
persons with disabilities as abnormal or inferior Section 32 of the Disabilities
Act gives effect to the direction under article 41 of the Indian Constitution.
Under section 32, the social model/functional model mandates the
appropriate authorities to identify posts to be held by persons with disabilities
in Governmental establishments.22

19
http://socialjustice.nic.in/pwdact1995.php
20
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995,s.2(i)
21
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, S.2 (t).
22
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995S.32
The National Trust for Welfare of Persons with autism, cerebral palsy, mental
retardation and multiple disabilities Act, 1999 under section 2 enumerates
some more disabilities like autism, cerebral palsy, mental retardation and
multiple disabilities.23

INTERNATIONAL DISABILITY DEFINITIONS

In 1980, the World Health Organisation (WHO) prepared the International

Classification Impairments, Disabilities and Handicaps (ICIDH). ICIDH
provides a conceptual framework for disability with three parts:

1. Impairment is "any loss or abnormality of psychological, physiological, or

anatomical structure or function". Impairments are disturbances at the level of
the organ, which includes defects in or loss of a limb, organ or other body
structure, as well as defects in or loss of a mental function. Examples of
impairments include blindness, deafness, loss of sight in an eye, paralysis of a
limb, amputation of a limb; mental retardation, partial sight, loss of speech,
mutism, cerebral palsy and learning difficulties.

2. Disability is a "restriction or lack (resulting from an impairment) of ability

to perform an activity in the manner or within the range considered normal
for a human being". It describes a functional limitation or activity restriction
caused by impairment. Disabilities are descriptions of disturbances in
function at the level of the person. Examples of disabilities include difficulty
in seeing, speaking or hearing; learning, difficulty in moving or climbing
stairs; difficulty in grasping, reaching, bathing, eating, and toileting etc.

23
National Trust for Welfare of Persons with Autism, Cerebral Palsy. Mental Retardation and Multiple Disabilities
Act, 1999, s.2
 3. Handicap is a "disadvantage for a given individual, resulting from an
impairment or disability that limits or prevents the fulfilment of a role that is
normal (depending on age, sex and social and cultural factors) for that
individual". Handicap describes the social and economic roles of impaired or
disabled persons that place them at a disadvantage compared to other
persons. These disadvantages are brought about through the interaction of the
person with specific environments and cultures. Examples of handicaps
include being bedridden or confined to home; being unable to use public
transport; being socially isolated, being forced to remain illiterate.

According to United Nations (1994) ‘disability' summarizes a great number

of different functional limitations occurring in any population in any country
of the world. People may be disabled by physical, intellectual or sensory
impairment, medical conditions or mental illness. The term 'handicap' means
the loss or limitation of opportunities to take part in the life of the community
on an equal level with others. It describes the encounter between the persons
with a disability and the environment. The purpose of this term is to
emphasize the focus on the shortcomings in the environment and in many
organised activities in society, e.g., information, communication and
education, which prevent persons with disabilities from participating on equal
terms.

The Convention on the Rights of Persons with Disabilities (2006), the first
legally binding disability specific human rights convention, adopted by the
United Nations gives two descriptions of disability. The Preamble to the
Convention states that “Disability results from the interaction between
persons with impairments and attitudinal and environmental barriers that
hinder their full and effective participation in society on an equal basis with
others.” Again it emphasizes that “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.” Although definitions
of disability vary over time and space, essentially it is considered to be a
condition, or function, judged to be significantly impaired relative to the
usual standard of the general population. Disability is often used to refer to
individual functioning, including physical impairment, sensory impairment,
cognitive impairment, intellectual impairment or mental health problems. A
variety of conceptual models have been proposed to explain disability.

Defining disability is difficult to accommodate the expectations of all

disabled groups. Every society has a section of people who suffer from some
kind of physical or mental disabilities, which may be congenital, acquired or
result from the process of ageing. There are hundreds of different disabilities
and there are, as many causes for these disabilities. Some people are born
with disabilities; others become disabled later on in their lives. Some
disabilities exhibit themselves only periodically like fits and seizures; others
are constant conditions and are lifelong. The severity of some stays the same,
while others get progressively worse like muscular dystrophy and cystic
fibrosis. Some are hidden and not obvious like epilepsy or haemophilia
(impairment of blood clotting mechanism). Some disabilities can be
controlled and cured while others still baffle the experts. Thus, finding a
consensus on the different and frequently varying definitions of disabilities,
whether sophisticated or practical, has never been easy. Some include total or
partial impairment of senses and physical and intellectual capacities while
defining disability. Others refer to a handicap or deviation of a social nature,
injury or illness or incapacities to accomplish physiological functions or to
obtain or keep employment. ‘Disability’ is a term which has many different
uses in various places and is therefore impossible to define objectively.
Disability may refer to a considerable range of human differences-including
those defined by age, health, physical and mental abilities, and even
economic status-that have been associated with some form of social
restriction or material deprivation. These definitions also reflect the
consequences for the individual - cultural, social, economic and
environmental- that stem from the disability. In India different definitions of
disability conditions have been introduced for various purposes, essentially
following the medical model and, as such, they have been based on various
criteria of ascertaining abnormality or pathologic conditions of persons. In
absence of a conceptual framework based on the social model in the Indian
context, no standardisation for evaluating disability across methods has been
achieved.

Causes of Disability

A disability is an impairment that impedes with the bodily function at a given

age in given social environment. Persons with disability are to be found in
every bit of the globe as well as at all ranks of the social structure. Their
number is ever on the increase. Disabled Persons are most marginalized and
suffer from social deviance, stigma and social exclusion and oppression.
Persons with Disabilities are far away from the expectations of their families’
community and their own hopes.

Hence they become an undesirable part of the community their birth is

considered as a curse to the family in which they are born and mishap in the
society. Such persons become a disturbance for the course of progress of the
society and state that are under an obligation to make effective provisions for
the rehabilitation of the disabled. Something which is viewed as so deadly by
all has to be prevented by all means. But before we can make an effort to
prevent it, it becomes very imperative to gauge the factors or causes giving
rise to disabling conditions.

The Would Programme of action (WPA), 1982 in Article 40 provides for an

all encompassing range of causes of disability that includes factors like ware,
civil conflicts, poverty, overcrowding and unhygienic living conditions;
constraints of resources, geographical distance and physical and social
barriers, industrial agricultural, and transportation related accidents, natural
disasters stress and psychosocial problems.

1.3 TYPES OF DISABILITY

The question on disability was canvassed in the censuses since 1872 to 1931.

The question on disability was not canvassed in the censuses from 1941 to
1971. In census 1981, information on these types of disability was collected.
The question was dropped in census 1991. Meantime, Government of India
penned Persons with Disabilities Act, 1995, in which seven different types of
disabilities were enumerated. In 2001, the information on five types of
disability was collected. In order to work at parlance with Persons with
Disabilities Act 1995, in census 2011 information on eight types of the
disability has been collected. The new category introduced at census 2011 to
ensure the complete coverage. This option enabled respondents to report
those which are not listed in Persons with Disabilities Act,

1995. In such cases, where informant was not sure about the type of disability
this option of reporting disability as any other was available to him/her.24

There are seven categories of disability as mentioned in Persons with

25
Disabilities Act of 1995. In this part of the chapter the researcher will
discuss in detail each category of disability.

1, BLINDNESS

Practically, blindness means total absence of vision. In India, a person is

considered blind who cannot count the fingers of an outstretched hand held at
yard's distance. So blind persons are those who cannot perform their daily
activities like seeing, reading, walking etc. due to loses of vision.26

The Persons with Disabilities Act, 1995 defines blindness in 2 (b) as follows:

'Blindness' refers to a condition where a person suffers from any of the

following conditions, namely:

a) Total absence of sight; or

24
http://www.mospi.nic.in
25
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, S.2 (i)
26
Planning Commission, "Plans and prospects of Social Welfare in India, 1951-61, Government of India. New
Delhi, 1963, p. 48.
b) Visual acuity not exceeding 6/60 or 20/200 (Snellen) in the better eye with
correcting lenses; or

c) Limitation in the field of vision subtending an angle of 20 degree or worse.

A person whose degree of vision falls within the range of 20/200 snellen in
the better eye is considered to be blind. If the vision in the better eye is 20/70
or less he is considered to have impaired vision with substantially reduced
visual ability.

This would mean that the affecter's better eye can see only at 20 feet.27

The above definitions are given in the Persons with Disabilities Act for
blindness and low vision. These definitions have come to the courts for
interpretation when the applicants seek certain benefits under the Persons
with Disabilities Act, either for recruitment on the reserved category of
persons with disability or in the case of non-discrimination when one
acquires disability during employment.

In DIC v. Balram Sharma,28 the Delhi-High Court had to consider the

definition of low vision. In this case, the respondent who was working as a
conductor in the Delhi Transport Corporation (DTC) had suffered an injury
during the course of employment and lost one eye. He was then prematurely
terminated from service by the DC due to his visual impairment. It was
contended by the Counsel for the DTC that the injury sustained by the
respondent does not come within the definition of low vision. The Division
27
"Rules to Regulate Scholarships for the Disabled," Ministry of Social Welfare, Government of India Publications,
1987, p. 56.

28
101 (2002) DLT 499.
Bench of the Delhi High Court, however, upon a joint reading of sections 2
(i) and 2(u) of the Persons with

Disabilities Act, held that it leaves no room for doubt that the disability
suffered by the respondent falls within the purview of section 2 () of the
Persons with Disabilities Act. The Court held that The Respondent, as a result
of the injury to one of the eyes, acquired low vision. Low vision is covered
by the definition of disability as given in section 2 (i) of the Act. According to
section 2 (u) of the Act, a person with low vision means a person with
impairment of visual blindness may be congenital or it may arise at the later
stage of the life due to traumatic injuries, viral, bacterial or fungal infections,
degenerative changes, neoplastic changes, diabetes hypertension &
sometimes axiology may be idiopathic. 29

2. LOW VISION

Low vision is defined in section 2 (u) as follows: 'person with low vision'
means any 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 an appropriate
assistive device.

Visual impairment under the Persons with Disabilities Act has only been
defined to mean blindness as given in section 2 (b) or low vision as given in
section 2 (u) No other kind of visual impairment has been included.
Conditions such as colour blindness or night blindness, which also affect a
person's visual functioning, have not been included as disabilities.
29
B.M. Chatterjee, "Hand Book of Ophthalmology." CBS Publishers and Distributors, Delhi, p. 48.
In the case of Parmesh Pachar v. Convener,30 Central Undergraduate
Admission Board and Principal and Controller of S.M.S Medical College and
Attached Hospitals the question that came up for consideration before the
Division Bench of the Rajasthan High Court was whether the petitioner, who
was suffering from colour vision deficiency, could be debarred from pursuing
the MBBS course.

The petitioner's admission was cancelled on the basis that he suffered from
severe colour blindness and that since medical studies require laboratory and
clinical work where colour differentiation is an important criteria, his
deficiency would hamper his normal MBBS studies. The Rajasthan High
Court held that such a requirement could not stand the test of reasonableness
and denying admission on the basis of this deficiency was arbitrary. The court
noticed that in case the petitioner is given admission and qualifies as a doctor
and is registered as such, he could engage himself in private practice as a
general physician. As a general physician in private practice he could treat
patients and prescribe medicines and this deficiency would not be a handicap
for his practice. The court held that the test applied by the admission board to
exclude student with colours blindness therefore was arbitrary and in
violation of the equality clause. It was correct that in some of the areas of
medicine a student suffering from colour blindness would encounter
difficulty. But there were other disciplines of medicine where colour
blindness would not be a hurdle such as psychiatry, anesthesiology, and
preventive community medicines.

30
RLW 2003 (4) Raj 2284
The petition was allowed and the respondent was directed to grant admission
to the petitioner to the MBBS course.

However, in the recent case of Union of India v. Devendra Kumar Pant and
others,31 the Supreme Court had to decide on a matter where a person having
colour blindness was promoted to a post which required him to clear a
medical fitness test, which included a requirement of colour perception as a
minimum standard. In a disappointing decision, the Supreme Court failed to
find this as an issue of discrimination under Section 47 (2) of the Act. It held
that lack of colour perception is neither blindness nor low vision and is
therefore, apparently not a disability under the Act. The Supreme Court held
that it is doubtful whether a person lacking colour perception can claim to be
a person entitled to any benefit under the Act. In giving such a ruling, the
Supreme Court has taken an extremely narrow view of the Persons with
Disabilities Act, when it had the opportunity to include the definition of
colour blindness as a disability, as was done by the Rajasthan High Court.

3. LEPROSY CURED

The leprosy cured persons are included within the definition of persons with
disability, due to high magnitude of this disease prevailing in India and social
stigma associated with leprosy. For decades it has been treated as a fatal
disease, the very word invoking shame and disgust and for many sufferers,
the stigma is the hardest part of the disease. Negative attitude of the society
towards such person damages their physical, psychological & social health.
Consequently people are scared and start hiding their problems from others
31
JT (9) SC 552 (2009)
and there is a delay in seeking treatment until significant disability has
occurred. Those who have cured are never accepted back into the society. 32

Section 2 (n) defines 'leprosy-cured person' as any person who has been cured
of leprosy but is suffering from -

a) Loss of sensation in hands or feet as well as loss of sensation and paresis in

the eye and eyelid but with no manifests deformity;

b) Manifest deformity and paresis; but having sufficient mobility in their

hands and feet to enable them to engage in normal economic activity, and

c) Extreme physical deformity as well as advanced age which prevent him

from undertaking any gainful occupation and the expression leprosy cured'
shall be constructed accordingly.

4. HEARING IMPAIRMENT

Section 2 (i) of Persons with Disabilities Act, 1995 define hearing

impairment as follows: Hearing impairment means loss of sixty decibels or
more in the better ear in the conversational range of frequencies. The above
definition would include persons who are deaf and those who are hard of
hearing. Deafness is the most serious of all handicapping condition because it
is invisible. Sound is the basis of human speech. The basis indications of
language are sound symbols. Deaf person are those in whom the sense of
hearing is non-functional for the ordinary purpose of life. Dumb is a person
who cannot speak.33

32
Joy Raferty, "Curing the Stigma of Leprosy , Leprosy Review, Vol. 76. 2005, p. 119.
33
D.S Mehta, "Handbook of Disabled in India.* Allied Publishers Pr. Lid, Delhi, 1983, p. 67
Hearing impairment may be congenital. It may arise at the later stage of life
due to otits media, acute infectious disease, chronic rhinitis, eruptive fevers,
malaria mumps, meningitis etc.

Certain members of the hearing-impaired community view hearing

impairment or deafness as an individual experience rather than a disability.
This view has become a part of a culture known as the Deaf Culture which
relies on the belief that deaf communities are not disabled but only have a
different way of life based on the use of sign- language. Deaf community
using sign-language is a culture similar to any other language-based
community and, therefore, the deaf community may fight for language-based
rights rather than disability rights. So, deaf community should be empowered
through the use of sign language to strengthen its identity and culture.34

5. LOCOMOTOR DISABILITY

Locomotor disability is defined in section 2 (0) of Persons with Disabilities

Act, 1995 as follows: Locomotor disability means disability of the bones,

joints or muscles leading to substantial restriction of the movement of the
limbs or any form of cerebral palsy.

Locomotor disability under the Persons with Disabilities Act has been taken
to encompass within its ambit what is traditionally understood as orthopedic
disability that is, impairment in the limbs, bones, joints, muscles, tendons etc.
It is inability of a person to perform day to day activities associated with
moving both himself and objects. This disability may be congenital caused

34
Jayna Kothari, "The Future of Disability Law in India", Oxford University Press, New Delhi, 2012, р. 41.
due to genetic factors or acquired later in life because of infections or
accidents. Congenital disability may arise due to abnormal development of
the embryo in the mother's womb, infection during pregnancy, gross
malnutrition, excessive exposure to radiation, etc. is defined in section 2 (0)
of Persons with Disabilities Act, 1995 as follows: Locomotor disability
means disability of the bones, joints or muscles leading to substantial
restriction of the movement of the limbs or any form of cerebral palsy.

Locomotor disability under the Persons with Disabilities Act has been taken
to encompass within its ambit what is traditionally understood as orthopedic
disability that is, impairment in the limbs, bones, joints, muscles, tendons etc.
It is inability of a person to perform day to day activities associated with
moving both himself and objects. This disability may be congenital caused
due to genetic factors or acquired later in life because of infections or
accidents. Congenital disability may arise due to abnormal development of
the embryo in the mother's womb, infection during pregnancy, gross
malnutrition, excessive exposure to radiation, etc.

6. MENTAL RETARDATION

Mental Retardation as defined in Section 2 (r) of the Persons with Disabilities

Act, 1995 means a condition of arrested or incomplete development of mind
of a person, which is specially characterized by sub-normality of intelligence.

Mental retardation involves significantly sub-average general intellectual

functioning resulting in or associated with concurrent impairments in
adaptive behavior.35
35
Harrison, "Principles of Internal Medicine", McGraw-Hill Inc, New York, 1991, p. 43.
Mental retardation is often referred to as "intellectual disability. Intellectual
disability is characterized both by a significantly below-average score on a
test of mental ability or intelligence and by limitations in the ability to
function in areas of daily life, such as communication, self-care, and getting
along in social situations and school activities. Mental retardation is often
coupled with other disabilities like cerebral palsy, seizure disorders, vision
impairment, hearing loss, etc. Mental retardation is not a single clinical
ending but a social construct. The disability has been for long carried a deep
stigma with it. Mental retardation has been mentioned as a separate category
in the PWD Act, 1995, it will serve to reinforce the stigma, instead of
removing it.

Mental retardation can result from many causes. These may include
conditions which may be pre-natal, netal, post-natal. During pregnancy, the
development of foetal brain may be affected by infections and diseases of the
mother, too much X-Ray and screening exposure, low oxygen, malnutrition
and anaemia, excessive drugging, etc. At the time of birth, delayed and
difficult delivery may affect the child's brain cells. After birth there are a
number of factors such as injury from falls and accidents, dehydration,
jaundice, malnutrition, poliomyelitis tuberculosis, encephalitis, meningitis.
bacterial and viral infections etc.36

7. MENTAL ILLNESS

Mental illness as defined in Section 2 (c) of the Persons with Disabilities Act,
1995 means any mental disorder other than mental retardation. The very
36
Amita Dhanda, "Legal Order and Mental Disorder", Sage Publications, New Delhi, 2000, p. 61.
definition of mental illness in the Persons with Disabilities Act is by
elimination rather than explanation. Since no clear definition has been given
to mental illness, all mental disorders can come within the ambit of 'mental
illness'. It includes it in its meaning all psychiatric problems ranging from
schizophrenia to psychosomatic disorders. It impairs person's ability to think,
feel and behave in the manner that loses optimum functioning of any day to
day life.37

Chronic alcoholism, bipolar effective disorder, schizophrenia and obsessive

compulsive disorder, depression are some of the common causes of mental
illness. This disability affects negatively on person's academic, occupational,
social and family functioning. Such persons continue to lead a poor quality of
life even after completion of the treatment. Often the disabilities associated
with chronic mental illness are invisible, but the impact on the person and the
family members is considerable. Policy makers are skeptical about disability
in persons with chronic mental illness. Their status in society can improve
only with the consorted efforts of Governmental and NGO and the
community itself.38

8. DISABILITY NOT RECOGNIZED BY PERSONS WITH

DISABILITIES ACT, 1955

There are hundreds of different disabilities affecting people and not just the
seven disabilities such as blindness, low vision, hearing impairment,
locomotor disability, mental retardation, and mental illness that are

37
"The World Health Report 2001: Mental Health: New Understanding. New Hope". World Health Organization,
Geneva, 2001, p. 38.
38
http://www.thehindu.com/thehindu/mag/2003/11/30/index.htm
recognized under the Persons with Disabilities Act. Some disabilities are
congenital, and some come later in life. Some are progressive such as
muscular dystrophy, cystic fibrosis, and some forms of vision and hearing
loss. Others such as seizure conditions are episodic.

Multiple sclerosis is episodic and progressive. Some conditions are static,

such as the loss of a limb. Still others such as cancer and occasionally
paralysis can even go away. Some disabilities are hidden such as epilepsy.
None of these disabilities are covered under the Persons with Disabilities Act.
Disability law should also apply to people with perceived disabilities such as
stuttering, which are not disabling but create prejudice and discrimination.
Each disability comes in differing degrees of severity. By laying down such
strictly defined impairments as disabilities in section 2, the Persons with
Disabilities Act excludes several other kinds of illnesses and disabilities,
which are socially discriminatory, thus excluding several thousands of people
from coverage under the legislation. Some of these are HIV/AIDS, cancer,
and multiple sclerosis among other. Justice Shah of the Bombay High Court
even remarked that the definition is not adequate when he stated that the
definition of disability as given in 1995 Act needs to be widened to protect
the rights of people suffering from HIV, leprosy, and internal organ failure.

1.4 CONCLUSION

Disability is not a newly emerged concept and even not a result of increasing
number of people affected. Rather, disability is an ancient concept and has
existed as long as people have existed. Persons with disabilities have the right
to enjoy the human rights to life, liberty, equality, security and dignity as
human beings. However, due to social apathy, psychological barriers, a
limited definition of “disability” entitled to the protection of the law and lack
of proper data, persons with disabilities in India remain an invisible category.
Although many laws set out to ensure their full and effective participation in
society, they remain inadequate as they are based primarily on the discretion
of the government. Also, the judiciary acts as the real protector of persons
with disabilities whenever an opportunity arises, but it is not possible to
approach the judiciary for every request. Unless the foundation of the law is
strengthened, persons with disabilities cannot fully exercise their rights. The
present research paper mentions the contemporary situation of people with
disabilities with the current laws and concepts, and also the researcher
believes that it is not only the law that will provide a solution to this problem,
it is the change in the outlook of the society which may provide a solution to
this problem. Thus, the horizons of the law should be expanded to provide a
“human friendly environment” for all persons with disabilities to remove the
barriers that impede their development. With timely implementation the time
has come for effective legislation to protect their interests and empower their
capabilities which are based on “rights–based approach” rather than charity,
medical or social approach. Despite the Acts that have been implemented in
various states through bold judicial and political decisions there remain
certain challenges to it, in some cases, state governments are sometimes
answerable for the counter-arguments and not able to perform their
responsibilities. Even NGOs, pressure groups, advocacy groups have worked
hard to spread awareness about the Act, still, active participation of disabled
people is important for the movement.