In India, home to one of the world’s largest populations of disabled people, the Government has taken a number of concrete measures in recent times to erect a robust legal architecture for the protection of their rights and freedoms. Most notably, last April, the Government brought into force a new disability law (“the Act”) and, in June, issued a set of forward-looking rules to imbue the skeletal structure of the law with flesh and blood.
Modeled on the lines of the United Nations Convention on the Rights of Persons with Disabilities, the Act is replete with a number of progressive measures. These include an expansion of the number of disabilities covered, increase in the percentage of seats reserved for the disabled, providing an impetus to inclusive education, a mandate to make information and communication technology accessible to the disabled and the creation of a grievance redressal mechanism to deal with discrimination by educational institutions.
Notwithstanding its strengths, as critics have noted, a large number of guarantees created by the Act in favour of the disabled have been crafted in ways that appear “halfhearted at best and intentionally vague at worst.” This being the case, it would be no exaggeration to state that the success of the Act is contingent, in large part, upon favourable judicial rulings that construe the law in ways that help further its beneficent objects.
Against this backdrop, it is heartening to note that the Indian Supreme Court (“Court”) has taken on this responsibility in earnest, as evidenced by two landmark judgments delivered by it last month.
In the first judgment, Rajive Raturi versus Union of India, the Court issued a slew of bold and sweeping directions aimed at making the country’s physical infrastructure accessible to the blind. Notably, the 11 directions issued by the court are very capacious in scope, inasmuch as they cover everything from accessibility of railway stations to the accessibility of government websites. Further, one distinctive attribute that sets these directions apart is the fact that each of them has to be complied with within the timeframe spelt out by the Court.
In the second judgment, Disabled Rights Group versus Union of India, the Court directed all educational institutions run or aided by the Government to comply with their obligation to reserve 5% steats for the disabled and directed them to report their compliance with the same to authorities set up under the Act. Further, the Court also ordered the setting up of a committee to suggest measures on how the physical infrastructure and methods of pedagogy adopted by educational institutions can be made accessible to the disabled within the stipulated time-frame.
Moving out of the weeds, there are at least three larger ramifications of these judgments that merit emphasis.
First, while a large portion of the directions issued by the Court in these judgments are a reaffirmation of the provisions contained in the Act, the jurisprudential approach adopted by the Court can serve as the lodestar for the interpretation of the Act in future cases. More specifically, as the Court notes in the Disabled Rights Group judgment, its interpretation of the Act must be informed by the principle that the barriers and impediments faced by the disabled are socially constructed and can, therefore, be broken down by following a rights-based approach.
Second, in the Rajive Raturi judgment, the Court grounded the rights of the disabled, most notably the right to accessibility, in the fundamental rights chapter of the Indian Constitution. Constitutionalizing these rights in this fashion not only helps insulate them from the vicissitudes of legislative and executive action, but also helps invest the rights-based approach that the Act is premised upon with greater vigour and vitality.
Finally, the directions issued by the Court in both judgments are premised on the idea that, sans an appropriate enforcement mechanism, the rights outlined by the Act cannot be made real for the disabled. As a result, in order to ensure strict adherence to its directions, the Court was at pains to define clear timelines and fashion appropriate reporting mechanisms.
Going forward, one hopes that these judgments turn out to be emblematic of the way the Indian judiciary handles cases involving India’s burgeoning disabled population which exceeds the total population of many countries.