In December 2017, the Supreme Court of India directed the Union Government to take adequate measures for proper and safe access to public spaces, roads, transport facilities, and movement on footpaths for visually disabled persons. The case of Rajive Rature v. Union of India and Ors is a landmark judgment for persons with disabilities, because it sets out clear obligations in a redefined focus of the right to equality in India. This post evaluates the position of the judgment in light of the international human rights law framework on equality in access and opportunity for persons with disabilities.
The international human rights corpus was slow to develop in respect to the rights of persons with disabilities. The Universal Declaration on Human Rights, International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights (ICESCR) failed to explicitly mention disability as a protected ground of discrimination. In fact, the 1975 UN General Assembly Declaration on the Rights of Disabled Persons was the first inclusive recognition of disability within an international rights-based model. In particular, the Declaration provided that disabled persons had the ‘same civil and political rights as other human beings’, with special regard to ‘measures designed to enable them to become self-reliant’. Subsequent to marking 1981 as the International Year of Disabled Persons and organizing the World Programme of Action concerning Disabled Persons in 1982, the UN General Assembly drafted the 1993 Standard Rules on the Equalisation of Opportunities for Persons with Disabilities, Rule 5 of which particularly targets accessibility as a condition precedent for equal participation with regard to physical environment, information, and communication. The 1993 ICESCR General Comment No. 5 on Persons with Disabilities crystallised the international commitment to securing, in method and substance, equality and liberty to persons with disabilities. The General Comment expressly locates the purpose of anti-discrimination measures in the principle of equal rights for persons with disabilities, which entails, inter alia, access to all community services and employment of resources to ensure equal opportunity for participation. It further acknowledges that various civil and political, and socio-economic rights cannot be effectively realised without the removal of certain barriers.
Diffuse international efforts to incorporate disability as a human rights concern culminated in the form of the Convention on the Rights of Persons with Disabilities in 2008 (CRPD), which sought to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities’ and expressly mentioned accessibility (Art 9) and equality of opportunity as core principles of the Convention. Against an arguably robust international human rights context, let us now evaluate India’s commitment to equality guarantees for persons with disabilities through the prism of Rajive Rature.
India has both international and domestic obligations to protect and secure the rights of persons with disabilities: as a State party to the CRPD, India enacted a statute to concretise its principled commitment to barrier-free access to facilities, which takes the present form of the Rights of Persons with Disabilities Act 2016. The deliverables in the recent judgment meticulously elaborate on what constitutes access to public spaces, and range from installation of auditory signals at traffic lights to drafting of bus route maps and schedules in Braille. Pertinently, however, the Court premises the justificatory duty imposed upon the State in a reimagined understanding of equality, that transcends mere equality in treatment to entail ‘remedying of discrimination against groups suffering systematic discrimination in society’. The substantive content of the State obligation then is not only negative, ie ‘protection of individuals against unfavourable treatment’, but also positive, in addressing and alleviating disadvantage, stigma, exclusion, and social neglect. The Supreme Court foregrounded this positive duty of the State in three constitutional imperatives. First, it relied upon the fundamental right to life under Article 21, which has been interpreted to mean a dignified and meaningful life, to frame the need for active measures to enable persons with disabilities to lead a life with dignity. Second, it invoked Article 19(1)(d) that guarantees to every citizen the fundamental right to move freely throughout the territory of India, which cannot be effectively realised without taking active steps to remove barriers to free movement for persons with disabilities. Lastly, the Court cited Article 41, a Directive Principle of State Policy, which requires the State to make effective provisions for securing the right to work, to education, and to assist, inter alia, the disabled. In so doing, the judiciary was able to comprehensively locate positive duties of the State in a matrix of constitutional and statutory provisions.
Admittedly, Rajive Raturi is not the first case that directed access to amenities for persons with disabilities in India: the judiciary has previously guaranteed deliverables such as accessible amenities in voting stations, disabled-friendly work environments, and accessible amenities in railway stations in what seems to be a growing reservoir of disability rights jurisprudence. However, the recent judgment’s uniquely mature appreciation of substantive equality and positive obligations of the State will leave an indelible mark in India’s equality jurisprudence in specific respect to disability rights.