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Inclusion and Equality: Understanding Disability Rights Legislation in India.

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Abstract

This article delves into the progress, present status, and influence of disability rights legislation in India, highlighting the journey towards inclusivity and equality for people with disabilities (PwDs). With a population of over 26.8 million PwDs, India has made notable legislative advancements, particularly through the Rights of Persons with Disabilities Act, 2016 (RPWD Act). This Act signifies a transition from a welfare-based to a rights-based approach, broadening the definition of disability, increasing reservations in education and employment, focusing on accessibility, and imposing penalties for discrimination. Despite these legislative strides, challenges in implementation remain. Insufficient awareness and sensitization among stakeholders, limited infrastructure and digital accessibility, and systemic barriers hinder the effectiveness of reservation policies. Additionally, the lack of accurate data collection and monitoring mechanisms hampers policy improvements. Government initiatives like the Accessible India Campaign and the National Action Plan for Skill Development, along with efforts by civil society in advocacy, legal support, and community-based rehabilitation, are crucial in addressing these challenges. Technology, particularly assistive and accessible digital technologies, plays a key role in enhancing the independence and participation of PwDs.

The article presents successful implementation case studies such as Kerala’s Barrier-Free Tourism Initiative, Delhi University’s Equal Opportunity Cell, and Tata Consultancy Services’ employability programs, demonstrating the potential for inclusive development. Looking ahead, the focus should be on strengthening the enforcement of the RPWD Act, improving accessibility, promoting inclusive education, expanding employment opportunities, fostering positive societal attitudes, and leveraging technology. Achieving true inclusion and equality requires collaborative efforts from the government, civil society, and the private sector, ensuring that all individuals, regardless of their abilities, can fully and equally participate in society.

Introduction

Disability rights are fundamental human rights. Ensuring that people with disabilities (PwDs) have equal opportunities and access to various aspects of society is crucial for fostering an inclusive and equitable community. India, home to over 26.8 million people with disabilities according to the 2011 Census, has taken significant legislative steps to safeguard these rights. This article delves into the evolution, current state, and impact of disability rights legislation in India, exploring the challenges and future directions for fostering true inclusion and equality.

Evolution of the Concept of Disability

The journey towards disability rights in India has been gradual, marked by significant milestones. Historically, disability was viewed through a lens of charity and welfare, rather than rights and empowerment. This perspective began to shift in the latter half of the 20th century, influenced by global movements and changing societal attitudes.

  • Early Initiatives

In 1986, the Ministry of Welfare formulated the National Policy for Persons with Disabilities, which aimed to integrate PwDs into mainstream society. However, it was not until the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act), that a comprehensive legislative framework was established. The PWD Act was a significant step forward, focusing on education, employment, and the creation of a barrier-free environment for PwDs.

  • International Influence and the UNCRPD

India’s commitment to disability rights was further strengthened by its ratification of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007. The UNCRPD played a crucial role in shaping India’s approach to disability, emphasizing dignity, autonomy, and non-discrimination.

  • The Rights of Persons with Disabilities Act, 2016

The most significant legislative advancement in recent times is the Rights of Persons with Disabilities Act, 2016 (RPWD Act). This Act replaced the PWD Act of 1995, aligning India’s laws more closely with the principles of the UNCRPD. The RPWD Act marked a paradigm shift from a welfare-based approach to a rights-based approach.

Key Provisions

Broadened Definition of Disability: The RPWD Act expanded the categories of disabilities from Sec. 7 to 21, including conditions like autism, intellectual disability, and multiple disabilities. This inclusive definition ensures that a wider range of disabilities is recognized and protected under the law.

Reservation in Education and Employment: The Act mandates a 4% reservation in government jobs and a 5% reservation in higher education institutions for PwDs, up from the previous 3%. This provision aims to enhance educational and employment opportunities for PwDs.

Accessibility: The Act emphasizes the creation of a barrier-free environment. It mandates the formulation of accessibility standards for physical infrastructure, transportation, information, and communication technology.

Guardianship and Legal Capacity: The RPWD Act recognizes the legal capacity of PwDs and provides for the appointment of limited guardians only when necessary. This provision respects the autonomy and decision-making abilities of PwDs.

Penalties for Discrimination: The Act introduces penalties for discrimination against PwDs, ensuring accountability and legal recourse for violations.

Implementation Challenges

While the RPWD Act is comprehensive, its implementation faces several challenges:

Awareness and Sensitization: A significant gap exists in awareness and understanding of the provisions of the RPWD Act among stakeholders, including government officials, employers, educators, and the general public. Sensitization programs are essential to bridge this gap and foster a more inclusive society.

Infrastructure and Accessibility: Despite the mandates, physical and digital accessibility remains a major challenge. Many public buildings, transportation systems, and digital platforms are not fully accessible, limiting the participation of PwDs in various aspects of life.

Education and Employment: The implementation of reservation policies in education and employment often falls short due to systemic barriers, lack of adequate support systems, and societal attitudes. Ensuring that educational institutions and workplaces are equipped to accommodate PwDs is crucial.

Data and Monitoring: Accurate data collection and monitoring mechanisms are essential to assess the effectiveness of the RPWD Act. Currently, there is a lack of comprehensive data on the implementation and impact of the Act, hindering policy planning and improvement.

Government and Civil Society Initiatives

Both the government and civil society organizations play a crucial role in addressing these challenges and promoting disability rights.

Government Initiatives

  • Accessible India Campaign (Sugamya Bharat Abhiyan):Launched in 2015, this campaign aims to make public spaces, transportation systems, and information technology accessible to PwDs. The campaign focuses on creating a barrier-free environment through infrastructure development and awareness programs.
  • National Action Plan for Skill Development:This plan focuses on enhancing the skills and employability of PwDs through vocational training programs, aiming to increase their participation in the workforce.
  • Inclusion in Education Policies: Various policies and schemes, such as the Sarva Shiksha Abhiyan (SSA) and the Integrated Education for Disabled Children (IEDC) scheme, aim to promote inclusive education and provide support services for children with disabilities.

Civil Society Initiatives

  • Advocacy and Awareness:Numerous non-governmental organizations (NGOs) and advocacy groups work towards raising awareness about disability rights, advocating for policy changes, and providing support services to PwDs.
  • Legal Support and Counseling: Organizations like the National Centre for Promotion of Employment for Disabled People (NCPEDP) provide legal support and counseling to PwDs, helping them navigate the legal system and fight for their rights.
  • Community-Based Rehabilitation (CBR):CBR programs, run by NGOs and community organizations, focus on empowering PwDs at the grassroots level, providing healthcare, education, and livelihood opportunities.

The Role of Technology

Technology plays a pivotal role in advancing disability rights and inclusion. Assistive technologies, such as screen readers, hearing aids, and mobility devices, enhance the independence and participation of PwDs. The proliferation of digital platforms and online services also offers new opportunities for education, employment, and social interaction.

However, ensuring digital accessibility remains a challenge. Websites, mobile applications, and digital content need to be designed with accessibility in mind, adhering to standards like the Web Content Accessibility Guidelines (WCAG). The government and private sector must invest in accessible technology to bridge the digital divide.

Case Studies

Examining real-life examples of successful implementation of disability rights can provide valuable insights and inspiration.

  • Case Study 1: Kerala’s Barrier-Free Tourism Initiative

Kerala’s initiative to make tourist destinations accessible to PwDs is a commendable example of inclusive development. The state government, in collaboration with various stakeholders, has worked to make popular tourist spots, hotels, and transportation systems accessible. This initiative not only promotes tourism but also highlights the potential of inclusive infrastructure to boost economic development.

  • Case Study 2: Inclusive Education at Delhi University

Delhi University’s Equal Opportunity Cell (EOC) has been instrumental in promoting inclusive education. The EOC provides various support services, including assistive devices, accessible study materials, and special accommodation during exams. These efforts have significantly improved the academic experience and success rates of students with disabilities.

  • Case Study 3: Employability Initiatives by Tata Consultancy Services (TCS)

TCS has implemented various initiatives to enhance the employability of PwDs, including skill development programs, accessible workplace infrastructure, and sensitization workshops for employees. These efforts have not only increased the number of PwDs in their workforce but also fostered a more inclusive corporate culture.

Future Directions

While significant progress has been made, there is still much to be done to achieve true inclusion and equality for PwDs in India. Future efforts should focus on:

  • Strengthening Implementation and Enforcement: Robust mechanisms for monitoring and enforcing the provisions of the RPWD Act are crucial. This includes regular audits, penalties for non-compliance, and transparent reporting.
  • Enhancing Accessibility: Continued efforts to improve physical and digital accessibility are essential. This includes updating infrastructure, promoting universal design principles, and ensuring that new developments are accessible from the outset.
  • Promoting Inclusive Education: Inclusive education should be a priority at all levels, from primary to higher education. This requires adequate training for educators, accessible learning materials, and support services for students with disabilities.
  • Expanding Employment Opportunities: Beyond reservation policies, there is a need for inclusive hiring practices, workplace accommodations, and support for self-employment and entrepreneurship among PwDs.
  • Fostering Societal Attitudes and Awareness: Changing societal attitudes towards disability is fundamental. Public awareness campaigns, community engagement, and education can help reduce stigma and promote a culture of inclusion.
  • Leveraging Technology: Investment in accessible technology and innovation can significantly enhance the independence and participation of PwDs. This includes both assistive technologies and ensuring that mainstream technologies are accessible.

Conclusion

Inclusion and equality for people with disabilities in India are not just legal mandates but moral imperatives. The legislative framework, particularly the RPWD Act, provides a strong foundation for safeguarding the rights of PwDs. However, the journey towards true inclusion requires concerted efforts from the government, civil society, and the private sector. By addressing implementation challenges, promoting awareness, and leveraging technology, India can move closer to a society where all individuals, regardless of their abilities, can participate fully and equally.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By- Shramana Sengupta

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Bombay High court passes judgement through video conference, considering petitioner’s unique circumstance.

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Case Title: Ashwini Kumar Sharma Mansotra vs State Of Maharashtra And Anr 

Case No: WP ST. NO. 134 OF 2024

Decided on: 08.01.2024

CORAM: Hon’ble Ms. Justice Karnik

 

 Facts of the Case

The present Writ Petition is filed being aggrieved by an order dated 30/10/2023, passed by the Special Court for CBI.

Accused in a CBI case pending since 2013, the petitioner, due to a recent accident, is bedridden and suffers memory issues related to his brain injury. As his health impedes travel, he opposes the court’s directive to visit AIMS Hospital in Delhi for a medical assessment. Instead, he proposes recording his evidence remotely through video conferencing available at the Mumbai court. Recognizing jurisdictional limitations, the High Court urges the Panipat Principal District Judge to consider allowing video conferencing for the petitioner’s evidence recording in Mumbai. The Mumbai court will inform Panipat of the scheduled date. The AIMS Hospital visit is deemed unnecessary and the order is quashed. The petitioner’s lawyer can be present during the remote evidence recording. With these conditions, the petition is granted. Section 313 statement has been recorded through video conferencing and now the case is posted for judgment.

Legal provisions

Section 353 of CrPC –

This section details the pronouncement of judgments in criminal trials. It states that judgments must be announced in open court by the presiding officer, either through full reading, reading only the operative part and explaining the rest in understandable language, or delivering the entire judgment.

This section emphasizes transparency and accessibility of judgments for all parties involved.

Issue

Whether a judgment can be pronounced remotely through video conferencing, even though Section 353 of the CrPC mandates the accused’s physical presence?

Court Decision and analysis

Chapter XXVII of the CrPC, covering judgments, in response to the petitioner’s absence, the trial court issued a non-bailable warrant.

While the accused is normally expected to be present in court for judgment, considering the petitioner’s unique circumstances, the court allowed him to attend through video conferencing.

Reasons for this exception:

  • The petitioner has an 83% physical disability and has consistently attended previous hearings remotely since 2010.
  • Medical evidence supports his limited mobility.
  • He promises to abide by any judgment and offers no risk of absconding.

Conditions for remote attendance:

  • The petitioner’s son will arrange his video conference presence at the Panipat District Court.
  • CBI officers escorting him will ensure no tampering.
  • The petitioner accepts any potential consequences of the judgment.

This decision prioritized justice over technical requirements, recognizing the individual’s situation while upholding legal procedures.

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Written by- Bhawana Bahety

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Discrimination solely based on disability is Unsustainable : High Court of Delhi

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Title: National Federation Of The Blind V Kendriya Vidyalaya Sangthan & Ors

 W.P.(C) 9520/2018 & CM APPL. 37096/2018

Decided On: 16.10.2023

Coram: HON’BLE THE CHIEF JUSTICE & HON’BLE MR. JUSTICE SANJEEV NARULA

Introduction:

The present case is filed by the National Federation of the Blind against the Advertisement of Kendriya Vidyalaya Sangathan which did not follow the proper reservation guidelines according to the Rights of Persons with Disabilities Act, 2016.

Facts of the Case:

Advertisement number 14 published by the respondent Kendriya Vidyalaya Sangathan3 in August 2018 for recruitment has been challenged as certain subjects have vacancies for one category of disability only and certain subjects have no vacancy at all for any disability. It is contended that the minimum 4% reservation bar is also not met by Kendriya Vidyalaya in the advertisement.

further submitted that the respondent has not been maintaining a vacancy-based roster despite specific directions. Instead, the respondent has been maintaining a post-based roster. Also, the respondent didn’t take any steps to fill the vacancies by undertaking a special recruitment drive.

Respondent submitted that the decision to provide vacancies for certain disabilities at certain posts is a well-examined decision based on the acts the person will have to do at the particular post.

Court’s analysis and Judgement:

The Hon’ble High Court of Delhi held that The impugned advertisement distinguishes the persons with disabilities from others, and puts a restriction on their potential to participate in the recruitment process to their full ability. The distinction is purely on the basis of disability. advertisement has the effect of excluding persons with disabilities from the race of recruitment, in complete violation of the mandatory reservation provision. The advertisement was held unsustainable as it is violative of the Rights of Persons with Disabilities Act, 2016.

The Hon’ble High Court further directed the Kendriya Vidyalaya Sanghatan to create a vacancy-based roster within 3 months and adjust the vacancies according to the Rights of Persons with Disabilities Act, 2016.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into the category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written By: Sushant Kumar Sharma

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Delhi High Court Set aside the order passed by the Motor Accidents Claims Tribunal and held that appellant cannot be saddled with contributory negligence merely on the basis of his cross-examination.

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Title: DILIP KUMAR SAH versus PARSHOTAM ALIAS PURSHOTAM LAL (SINCE DECEASED) THROUGH LRS & ANR.

Date of decision:18thJuly, 2023

+ MAC.APP. 133/2021

CORAM: HON’BLE MR. JUSTICE NAVIN CHAWLA

Introduction

Delhi High Court set aside the order passed by the Motor Accidents Claims Tribunal and held that there was no contributory negligence on the part of appellant and granted him the benefits of permanent disability and also held that appellant cannot be saddled with contributory negligence merely on the basis of his cross-examination.

Facts of the case

In MACT case number 174/2017, captioned Sh.Dilip Kumar Sah v. Sh. Parshotam @ Purshotam Lal & Anr., the learned Motor Accidents Claims Tribunal issued an award on January 13, 2021, which is being challenged in this appeal.

The appellant’s two grounds for the limited challenge to the contested award are as follows:

  1. a) Despite neither the owner of the at-fault vehicle nor the insurance company having submitted a written statement alleging any contributory negligence on the part of the appellant, the learned Tribunal has assigned the appellant 40% contributory negligence, reducing the compensation granted to the appellant;
  2. b) Despite the fact that the appellant’s right lower limb was deemed to have a 41% permanent handicap, the appellant has not received any compensation for his future possibilities.

Analysis of the court

It is undisputed that neither the owner nor the insurance company provided the learned Tribunal with a written statement. The significance of pleadings cannot be understated, even if the learned Tribunal will only conduct an inquiry rather than a full-fledged trial as in a civil complaint. Therefore, the respondent did not blame the appellant for any contributory carelessness in their arguments. Only during the cross-examination of the appellant was the appellant prompted to describe how the accident occurred. The appellant vehemently refuted any allegation that he may have contributed to the catastrophe.

Reading the cross-examination of the appellant would reveal that he claimed to be riding a rickshaw across the main road from left to right. The same cannot, in my opinion, be regarded as contributory carelessness. Although the offending vehicle was being driven at a high speed and the driver was unable to control the vehicle or apply the brakes at the appropriate moment, the learned Tribunal, influenced by the foregoing, in the impugned Award assigned 40% of the negligence to the appellant.

The learned Tribunal manifestly erred in assuming that the appellant might be charged with contributory carelessness only on the basis of his cross-examination in the absence of any pleading assigning contributory fault to the appellant.

Therefore, the contested award is revoked to this degree.

On the subject of the appellant’s future prospects not being granted, reliance has once more been put on the appellant’s cross-examination, which has been reported above. Reading the cross-examination will reveal that the appellant was not questioned about whether the accident he sustained had any impact on his ability to earn money or do his job. According to his disability certificate, the appellant’s right lower limb has a 41% permanent impairment. The learned Tribunal determined that the appellant’s entire body had a 20% functional impairment. There is no argument against the erudite Tribunal’s conclusion.

In Pappu Deo Yadav (supra), the Supreme Court allowed for a 40% reduction in future possibilities. In my opinion, the appellant should be allowed that fair degree of loss of future chances under the circumstances of the current case as well. The appellant used to pedal the rickshaw by himself while conducting business at a weekly market selling clothing. The appellant is deemed entitled to compensation under the heading of loss of future prospect at the rate of 40% due to a permanent handicap to his lower limb. As a result, the impugned Award, to the extent that it denies the appellant compensation for the loss of future prospects, is set aside, and is modified granting such compensation. 

The learned Tribunal is required to reassess the amount of compensation due to the appellant under the provisions of the contested award as amended by the current ruling. On August 20, 2023, the parties must appear before the knowledgeable Tribunal. The awarded amount, including the augmentation directed under the current judgement, along with interest thereon, shall be disbursed in favour of the appellant in line with the schedule set down by the learned Tribunal upon deposit of the re-determined/enhanced amount.

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Written By – Shreyanshu Gupta

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