Disability Discourse In Indian Legal System- Dimension Of Higer Education Right Of Persons With Disability (By- Sakyasuddha Sarkar)

Disability Discourse In Indian Legal System- Dimension Of Higer Education Right Of Persons With Disability

Authored By- Sakyasuddha Sarkar

Qualification- B.A (Hons.) LL.B, LL.M, West Bengal Set.

Abstract

 Disable population in India constitute a considerable portion of the population and just like other so called normal human beings they possess all the fundamental rights, legal rights and also the human rights (as envisaged in several international instruments). Though, the Indian Constitution on a clear terms tries to protect and safeguard the interest of marginalized peoples of the land through various provisions of the Constitution, via both Fundamental Rights and Directive Principles of State Policy, but on the other hand, even the Grundnorm of the land do not contain any express provision for Persons with Disabilities (PWD). A close scrutiny of the legislations regarding education of disable persons is required for a better cognizance of this issue, as this is more necessities due to the paradigm shift from medical model to social model, though only scrutinizing the laws will not be enough. The jurisprudential analysis of this issue is also required and we must take into cognizance that, only enacting a statute is not enough and a periodical review of the legal framework, from the legal perspective is required to ensure that the disable persons shall get the opportunity of higher education which is the most important impediment in realizing the rights of disable persons.

In the common parlance, the term ‘Disability’ denotes the inability to do those works which a so called ‘Able’ person can do, as the term ‘Disability’ is derived from the word ‘Disable’ (a verb) which means according to Cambridge Dictionary, ‘to cause someone to have an illness, injury or condition that makes it difficult for them to do the things that other people do’.[1]

Again, according to Cambridge Dictionary, the term ‘Disability’, which is a noun denotes, ‘an illness, injury or condition that makes it difficult for someone to do some things that other people do, and that is usually permanent or lasts for a long time’.[2] The thing which is common in these two definitions is that, both of them tries to decide whether a person is able or disable by the way of comparison with a person who is ‘normal’ or at least as per the definitions itself, which ‘other people do’, which inevitably denotes the so called ‘able person’ though not in verbatim. The stigma of disability, which revolved around the entire Disability Discourse at least in Indian society is this mode of comparison between a so called ‘Able Person’ and a ‘Disable Person’. Actually, whenever we imagine an ‘Individual’, it invariably lead our imagination and perception to an individual, who is in perfect shape both physically and psychologically and this, sometime subconscious imagination, of a normal/able individual leads to severe discrimination and marginalization of a disable person, as the society at large find it difficult to accommodate these different individuals in the fabric of the society, though these different individuals i.e. a Person with Disability invariably shall stand in the same plane, both socially and legally, with their ‘able’ counterparts. Though this rigor of comparison and its associate unacceptability of a Disabled Persons, is possible to reduce, though not abolish altogether, by adopting the definition of disability as provided by the Centers for Disease Control and Prevention which define Disability as, “A disability is any condition of the body or mind(impairment) that makes it more difficult for the person with the condition to do certain activities(Activity limitation) and interact with the world around them(participation restriction)”[3] as this definition emphasizes on the ‘difficulty’ aspect of the Person with Disability and not construct the definition solely on the ‘comparison’ basis.

Though, the Indian Constitution on a clear terms tries to protect and safeguard the interest of marginalized peoples of the land through various provisions of the Constitution, via both Fundamental Rights[4] and Directive Principles of State Policy,[5] but on the other hand, even the Grundnorm[6] of the land do not contain any express provision for Persons with Disabilities (PWD),

like it contain for women and children (in Art. 15(3), 24 etc.)[7], and for Schedule Casts(SC) and Schedule Tribes(ST) and other backward classes  (like Art. 15(5), 15(6), 16(4),  16(4A), 16(4B), 335, 340, 341,342)[8]  and even for religious and linguistic minorities (like Art. 29, 30).[9] But astonishingly, the Indian Constitution is silent, so far as express provision is concerned for the protection of the rights of Persons with Disabilities (PWD).

Though, Art. 14, 15, 16 (in the Fundamental Rights)[10] and Art. 38,39,41,42,43,45,46 and partially Art.47 (in the Directive Principles of State Policy)[11] and Art. 51A (e), Art. 51A (j) and Art. 51A (k) (in the Fundamental Duty i.e. Part. IV A)[12] of the Indian Constitution speaks about overall development of every individual and naturally that shall include ipso facto  Persons with Disabilities also, but the Indian Constitution on a speaking term do not mention any express right for Persons with Disabilities, which in the course of time, the legislature tries to incorporate through legislative framework i.e. by enacting statutes.

International Cognizance Of The Issues Of Persons With Disabilities

A nutshell view of the international framework regarding Persons with Disabilities is required for the purpose of better understanding of the disability discourse in the Indian legal plateau, but at the same time another dimension of international cognizance of disable’s right shall be considered with equal attention, those are the basic Human Rights, which are both summum bonum as well as omnipresent, like Universal Declaration of Human Rights 1948(UDHR),[13] International Covenant on Civil and Political Rights 1966(ICCPR),[14] International Covenant on Economic, Social and Cultural Rights 1966(ICESCR)[15] etc. which are applicable on an equal footing to Persons with Disabilities as well if not in a greater extend as Persons with Disabilities comprise a marginalized section of the society.

The basic initiative in this regard was taken by the United Nations Organization (UNO) which, by the way of adopting several conventions, up to a great extend tries to codify and formalize the basic rights of every individual on the planet and Persons with Disabilities are not exception. On the line of the above mentioned argument, the basic human right instruments are equally applicable to Persons with Disabilities. Few of them, though not exhaustive are-

 i) Universal Declaration of Human Rights 1948(UDHR) - Though it provide the basic Human Rights but can equally applicable to Persons with Disabilities like, Right to life (Art. 3)[16], Right to be recognized as a person before law (Art. 6)[17], Equality before law (Art. 7)[18], Right to free choice of employment (Art. 23, Para 1)[19], Right to education (Art. 26, Para 1)[20] etc.

ii)International Covenant on Civil and Political Rights 1966(ICCPR)- Though not provide directly any right regarding education of disable persons, but impliedly provide some rights which can invoked to substantiate the right of disable persons viz. Right to life (Art. 6)[21], Equality before law (Art. 26)[22] etc.

iii) International Covenant on Economic, Social and Cultural Rights 1966(ICESCR) -  On an unequivocal term it provide several rights which are equally applicable to Persons with Disabilities like Right to work freely chosen (Art. 6)[23], Right to education- including compulsory and free primary education (Art. 13)[24], Undertaking to implement the principle of compulsory education free of charge of all within a reasonable number of years (Art. 14)[25] etc.

Apart from these, few conventions are there which are totally dedicated for the protection of disables rights viz.

Convention on the Rights of Persons with Disabilities- This Convention was adopted on 13th December, 2006 and entered into force on 3rd May, 2008. It provide inter alia, right to education of disable persons under Art. 24.[26]

ii) Declaration on the Rights of Mentally Retarded Persons, 1971- This also inter alia provide for proper education for mentally retarded persons, which also is a type of disability.[27]

iii) Declaration on the Rights of Disabled Persons, 1975- This also speaks for self-reliance of disable persons (Para- 5). [28]

iv) Beijing Declaration on Disability-inclusive Development, 2012- This also provides for inclusive education for disable persons along with proper quality.[29]

                        Apart from these conventions, International Labour Organization (ILO) adopt few conventions viz.  ILO Vocational Rehabilitation and Employment (Disabled Persons) Convention (No. 159), 1983[30] and ILO Vocational Rehabilitation and Employment (Disabled Persons) Recommendation (No. 168), 1983[31] which provides for proper Vocational Rehabilitation for disables to incorporate them in the mainstream society.

Indian Legal Scenario Regarding Rights Of Persons With Disabilities

Apart from the Constitution, Parliament enacted several laws for protection of disable persons like The Rights of Persons with Disabilities Act 2016[32], The Rehabilitation Council of India Act 1992[33], and Mental Healthcare Act 2017[34] etc. Also the Right of Children to Free and Compulsory Education Act, 2009[35] also indirectly provide for the education opportunity for disable children.

Disability discourse in Indian legal system and higher education- As per World Health Organization’s (WHO) definition, as stated by the International Classification of Functioning, Disability and Health(ICF) in 2002, the term ‘Disability’ denotes impairment, activity limitation

and participation restriction[36]. Hence this definition of disability clearly solicit for the ‘Social Model’ of disability, which is a clear paradigm shift from the ‘Medical Model’ (i.e. International Classification of Impairments, Disabilities and Handicaps (ICIDH) as published by WHO in 1980)[37] of understanding disability, which was the dominant discourse before 2002. Among these three components, the last one i.e. participation restriction is somehow the impact of activity limitation, which in turn emerge as the sizeable obstacle for disable students to pursue higher education as higher education demands higher degree of direct and indirect participation in the education process as well as demand more and more access to higher education resources which in turn demand more participation of the students which is vehemently hampered in case disable students due to their activity limitation.

                                                    According to the annual report for the year 2021-2022 of the Department of Empowerment of Persons with Disabilities (Divyangjan) under the Ministry of Social Justice and Empowerment, Government of India, total number of literate disable individual in the land is 1,46,18,353 whereas only 12,46,857 came up to the level of graduation or above.[38]

                        A close scrutiny of the legislations regarding education of disable persons is required for a better cognizance of this issue, as this is more necessities due to the paradigm shift from medical model to social model, though only scrutinizing the laws will not be enough.

                        For this purpose, at the very outset two enactments must be considered viz. THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016[39] and THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009[40], though it shall be kept in mind that, the RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009[41] do not directed to address the issue of higher education, but it must be considered, if not entirely for the purpose of better understanding of this issue.

THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009- Sec. 2(ee) read with Sec. 3[42] of this Act provides that, children with disability are entitled on an equal footing with their normal (so called) counterparts for elementary education. But again this enactment do not address the issue of higher education of disable persons.

THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016- This very enactment, as it is entirely dedicated for the disable persons provide provisions for higher education of disable persons, both directly and indirectly viz.

 a) Sec. 2(m) of this Act, in conformity with the social model, clearly provides the definition of inclusive education for students with and without disability in the same education system[43].

b) Sec. 3 also unequivocally provide that, disable persons shall not be discriminated[44].

c) Sec. 16 is clearly dedicated for the education of disables without mentioning the level of education and for this reason it can be safely presumed that, this provision is applicable to all levels of education and higher education is not an exception[45].

d) Sec. 32(1) provides for minimum 5% reservation in higher education for persons with benchmark disabilities, but again it is silent for those disable persons who do not come within the definition of benchmark disability within the meaning of Sec. 2(r) of this Act[46].

e) Sec. 47 accept the socio-legal aspect of this issue, as it provides for human resource development by inter alia, research and orientation on this issue[47].

It is clear that, only enacting statues will not be enough, as the issue of rights of disable persons is a socio-legal phenomena which must be dealt in that way, by effective implementation of legal protections as well as by the way of proper orientation of the stakeholders in higher education via proper legal framework.  The prevalent attitude of the society must also be taken into cognizance, while enacting laws for persons with disabilities and the corresponding policies thereof and higher education rights of disable persons is not an exception. Hence while dealing with the problems of disable persons in the field of higher education, the jurisprudential discourse shall not be limited to

the principle of ‘SALUS POPULI EST SUPREMA LEX’ and the corresponding concept of affirmative discrimination,[48] but it shall extend in the arena of socio-legal analysis to banish the jeopardy regarding higher education rights of disables and for the purpose of effective realization of the jurisprudential concept of ‘AEQUITAS EST QUASI ACQUALITAS’[49] and the Fundamental Rights of the land. 

Bibliography

BOOKS

Dr. S.K. KAPOOR, INTERNATIONAL LAW & HUMAN RIGHTS (18th ed. CENTRAL LAW AGENCY 2011).
Dr. U.CHANDRA, HUMAN RIGHTS, (8th ed. ALLAHABAD LAW AGENCY PUBLICATION 2010).
LLOYD’S INTRODUCTION TO JURISPRUDENCE (9th ed., South Asian edition, M.D.A. Freeman ed., SWEET AND MAXWELL, Reprinted in India by THOMSON REUTERS 2021).
HERBERT BROOM, A SELECTION OF LEGAL MAXIMS (10th ed., R.H. KERSLEY ed., UNIVERSAL LAW PUBLISHING Co. Pvt. Ltd 2010).
Dr. ANIRUDH PRASAD, OUTLINES OF LEGAL LANGUAGE IN INDIA (5th ed. CENTRAL LAW PUBLICATION 2009).
OCDF-001, BLOCK. 2, FOUNDATIONS OF EARLY CHILDHOOD DEVELOPMENT AND DISABILITY (SCHOOL OF CONTINUNING EDUCATION, INDIRA GANDHI NATIONAL OPEN UNIVERSITY, JUNE 2009).

Websites

https://dictionary.cambridge.org
https://www.cdc.gov
https://www.unescap.org
https://www.ilo.org
https://www.wbpspm.gov.in
https://www.ohchr.org
https://disabilityaffairs.gov.in