Monitoring the Human Rights of Persons with Disabilities. Laws, Policies and

Monitoring the Human Rights of Persons with Disabilities: Laws, Policies and Programs in India

Disability Rights Promotion International

This report collates and summarises the findings of the Disability Rights Monitoring Project that attempted a detailed assessment and mapping of policy relating to persons with disabilities in India.

What is the constitutional position on disability in India? While the Indian Constitution prohibits discrimination per se, it does not explicitly prohibit discrimination on grounds of disability. However, a seven judge constitutional bench of the Supreme Court of India in Indra Sawhney vs. Union of India held that the “spirit of Articles 14 [right to equality] 15(1) [right against discrimination] and 16 [right against discrimination in public employment]” allowed for discrimination and affirmative actions for persons with disabilities. As a result of
this decision, the Constitution may be read as explicitly prohibiting discrimination against persons with disabilities. The fundamental right to life enshrined in the Indian Constitution provides the guarantee of life with liberty and dignity to all persons resident in India.
The right of persons with disabilities to respect, dignity and freedom is part of this generic right to life. However, the recognition of disability as part of a larger terrain of human diversity is something that has not
yet entered official discourse on disability rights. Article 21 of the Constitution of India protects the Right to Life and Personal Liberty, which are inclusive of the principles of inherent dignity and individual autonomy for all persons resident in India. This, together with Article 14, the Right to Equality before law provide the
conditioning environment for specific laws and policies that uphold fundamental rights for different classes of individuals.
The range of provisions and mechanisms that have been put in place consequent on legislation and policy with reference to special measures demonstrates the constitutional commitment to strengthen nondiscrimination
through affirmative action. With reference to persons with disabilities this has taken the form of incentives, reservations and targeted schemes for inclusion into the mainstream. The view that special measures are necessary to combat inequality, and an expression of the equality principle, is one that has a very long
legislative history in India, originating in the demand of a special measures for “depressed classes” prior to independence.