Over the last two decades, the protection of persons with disabilities was made mandatory with the passing of certain legislations including the PWD Act (1995) and the Mental Health act (1987). Employment, education and creating a non-discriminating environment for all persons with disabilities were some of the rights that are given special attention here.
It is known that other general legislations also contain provisions that deal with persons with disabilities within the ambit of that law. However, these provisions are not necessarily sensitive. Thus, protection against abuse, social security, custody of children, provision of basic needs such as shelter within the family and marital home are issues that still need to be adequately addressed.
There have been instances of people with disabilities and/or their care- and service-providers approaching various grievance redressal forums (primarily the Courts) to realize these provisions. But the numbers are few. It is believed that one of the reasons is the inaccessibility of the information.
This section documents the battles of those who have approached the Courts and the ensuing results in simple language under the following broad heads:
- Scope of Disability Laws
- Education and Disability
- Employment and Disability
- Divorce, Nullity and Maintenance
- Pension and Disability
- Barrier-Free Environment
- Criminal Liability and Disability
- Guardianship
- Directions to State Institutions and Disability
- Adoption and Inheritance by Persons with Disabilities
- Violations and Misuse
Scope of Disability Laws
In this section, we have cases that involve debates relating to definitional issues under the PWD Act and other laws. The courts have played a key role in settling controversial issues in several cases. Although the scope of the law is very vast, it appears that only a few of its dimensions have been explored. The PWD Act is one such example where difficult situations were successfully resolved with court intervention.
Some of the issue that surfaced were – Whether the PWD Act would apply to those incidents that took place before the Act was passed? Should there be any perceived difference between disabilities that was present from birth or early childhood, and those that were acquired at a later age while fulfilling the demands of the disability quota? What are different ways in which disability can be interpreted? And so on…
Education and Disability
The main issues that come up before the Courts revolve around reservation of seats in educational institutions. People have approached the Courts questioning non-reservation of seats, improper reservations (unequal distribution of seats for all categories of disabilities), procedure in selecting candidates within reserved category, relaxation of examination timings and provision of scribe for visually impaired candidates etc. The related questions which come up include – who should get reservation? Which are the institutions that are expected to reserve seats? In most of these judgments, the Courts have passed orders in favour of the disabled people.
Employment and Disability
The Right to employment of persons with disabilities is protected under the Persons with Disabilities Act. Issues involved in this area include creating and reserving posts under the disability category, protecting rights on acquiring disability, reinstatement, promotion, compassionate employment, concessions, compensation, and alternate employment. Within this broad scope, questions that have been examined by the Courts include – Who or which organizations are bound to make reservations under the Act? To what extent and in what manner should the reservation be made? Does an employer have the right to dismiss or withhold the promotion of an employee if he/she acquires a disability? What options does a person have if he/she acquires a disability while in service?
Divorce, Nullity, Marriage and Maintenance
The cases relating to marriage of mentally disabled people have come up before the Court either for annulling their marriage or for dissolution of marriage or divorce on grounds of mental disorder. The basic questions that arise in a case of annulment of marriage are – whether the mental disorder was concealed before the wedding?
In a case of divorce, degree of mental illness, duration and intensity of the illness are the main issues addressed.
Furthermore, people have on several occasions made attempts to impose false charges of mental illness for annulment and divorce. However, since the Courts do not generally allow any petition for divorce without scrutinizing each and every issue raised in the petition, most such attempts fail to achieve their objectives.
Pension and Disability
This section looks at cases relating to disability pension to those in service. Cases relating to the grant of pension to persons in military service, circumstances under which pensions are granted, the quantum of pension to be paid etc, are also included here. This section also looks at pension in other areas such as family pension for a mentally retarded child of a retired government servant.
Most cases relate to instances where disability was acquired during military service. There are also a few stray cases where family pension was involved.
Barrier-Free Environment
This section looks at cases in the areas of access and for the creation of a barrier free environment for persons with disabilities. The PWD Act lays down provisions to achieve the above objective. Some of the cases also relate to implementation of the above provisions in the Act.
The cases that are covered here also include certain concessions and privileges in airfare and railways – relaxation of examination hours for blind students etc. Related issues are those of providing scribe and controversy on the educational qualification of the scribe.
Criminal Liability and Disability
The main issue in criminal law is the ‘soundness of mind’ of the person accused of a crime. Court trial and its outcome is heavily dependent on the mental status of the accused at the time of the crime is committed, at the time of arrest, and when presented before the Court. Depending on whether the person was found to be insane or not at the time of committing the crime, the Courts look into other related issues such as – availability of protection and rehabilitation services if the person is found to be of unsound mind; and then deciding who should be given the responsibility of the treatment and care of such person.
Guardianship
This section deals with cases filed by or on behalf of persons with disabilities for the appointment of a guardian. It is observed that a large of number of cases relate to persons with mental retardation, and fewer instances that relate to the other disabilities – speech and hearing impairment. In general, the questions raised are – who can be appointed as a guardian? what are the basic requirements for grant a guardianship? what are the responsibilities of the Court before granting guardianship? the validity of a transaction made by a person with mental disability? does a deaf person need a guardian? and so on…
Directions to State Institutions and Disability
This section deals with cases filed by or on behalf of persons with disabilities for the appointment of a guardian. It is observed that a large of number of cases relate to persons with mental retardation, and fewer instances that relate to the other disabilities – speech and hearing impairment. In general, the questions raised are – who can be appointed as a guardian? what are the basic requirements for grant a guardianship? what are the responsibilities of the Court before granting guardianship? the validity of a transaction made by a person with mental disability? does a deaf person need a guardian? and so on…
Adoption and Inheritance by Persons with Disabilities
This section deals with cases relating to adoption and inheritance rights of persons with disabilities and the limitations put on such rights. Hence, the issues covered here are primarily relating to the validity of adoptions made by such persons and their implications on the rights of the adopted child etc.
Violations and Misuse
Many a time’s people have tried to take refuge under false claims to take help of the law to escape punishment or break their matrimonial ties but they don’t always succeed. These are some instances that have come up before the Court in this context.