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Section 1: Constitutional Position

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 1 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.

Note #1
1992 Supp (3) SCC 217

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.

In Article 15(2) states that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to- access to shops, public restaurants, hotels and places of public entertainment; or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. The overarching object of this Article is to guarantee access without discrimination.

Articles 15(3) and 15(4) of the Constitution establishes a very positive role for the State. They encourage introduction of special measures in favour of women, children, Scheduled castes and Scheduled tribes, and other members of socially and educationally backward classes.

Although the Supreme Court in Indra Sawney and Ors vs. Union of India 2 held that 15(1) covers persons with disabilities while 15(2) (3) 8 (4) do not, the latter can be interpreted as conditioning the application of 15 (1) in matter of unhindered access.

Note #2
1992 Supp (3) SCC 217
Note #3
Under Article 326 of the Indian Constitution

However there is also a constitutional denial of the right to vote for persons with psychiatric and intellectual disabilities3

There is a clearly discernible disjuncture between the treatment of persons with disabilities other than mental disability on the one hand, where the focus is on affirmative action, and persons with mental disability on the other, where protections and special measures tend to take the form of custody and negation ranging from mild to severe methods. The denial of suffrage to persons with mental disabilities under Article 326 of the Constitution is one specific example that betrays a basic inequality between legal protections provided.

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