This Act was enacted to give effect to the “Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region”, which was adopted at the meeting to launch the Asia and Pacific Decade of the Disabled Persons 1993-2002, convened by the Economic and Social Commission for Asian and Pacific, and held at Beijing on 1st to 5th December 1992. India is a signatory to this proclamation, hence, complied with the obligation set forth in it by enacting this legislation. This article focuses on the reservations provided in government and government aided educational institutions for persons with disabilities by way of various cases decided by the courts in India.
Firstly, let us look at a few definitions. "Person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority . And "Disability" means-
(ii) Low vision;
(iv) Hearing impairment;
(v) Loco motor disability;
(vi) Mental retardation;
(vii) Mental illness;
However, this definition of disability needs to be modified. The current definition does not cover all categories of disability. The Madurai Bench of the Madras High Court has ruled that the benefits conferred on a Government employee, who is disabled during his/her service period, under Section 47 of Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995 cannot be confined only to seven types of medical conditions defined as `disability' in the Act. The complainant in this case was a bus driver who was sacked because he had color blindness, which is not defined as a disability under the section 2(i) definition.
Also, deciding the quantum of disability as 40 per cent is not practically possible in case of Mental Illness. Thus, patients suffering from mental illness will be unable to obtain a certificate from a qualified medical practitioner stating that he suffers from 40 percent mental illness. This brings about discrimination amongst disabled persons prejudicing the interests of mentally ill persons.
Reservations in Education: Is section 39 wrongly placed in the scheme of the Act?The Act provides that all Government educational institutions and other educational institutions receiving aid from the Government shall reserve not less than three per cent seat for persons with disabilities . However, this particular section appears under the chapter VI “Employment”, and not in Chapter V “Education”. This anomaly in drafting has caused considerable confusion while deciding cases relating to reservations in higher education.
In the case of Kumari Rekha Tyagi vs. Vice Chancellor, University of Delhi and others , the main issue was the scope and ambit of Section 39 of the Act, i.e., whether this section is applicable to educational institutions or to service/employment. It was held that Section 39 was not applicable for reservation of ‘seats’ for admission, its ambit was limited to ‘posts’ for employment in Government or Government-aided educational institutions for persons with disabilities.
Also, in the case of Smt. Binita Senapati vs. State of Assam , the Court held that Chapter V of the 1955 Act titled "Education" nowhere provides for reservation of seats for candidates in educational institutions including institutions of scientific, technical and super technical areas, and that extending the benefit of the Act for the purpose of admission to medical college may not be in conformity with the intention of the legislature.
However, this position was clarified by the Supreme Court in All Kerala Parents Association vs. State of Kerala. The Court stated that “We fail to understand as to how and on what principles of construction, the High Court has given a construction to the provision of Sec. 39 not only by doing violence to the language of Sec. 39 but also rewriting the provisions of Sec. 39". Discarding the error in drafting, the court affirmed the reservation of 3 per cent of available seats in government educational institutions for students with disabilities.
This view of the court upheld in The Deputy Secretary (Mart) Dept of Health & Family Welfare vs. Ms Sanchita Biswas & Ors, where the Supreme Court, in its judgment dated 18th September, 2002, upheld the judgment of the Calcutta High Court for extending 3% reservation in admissions in educational institution for persons with disabilities. The judgment of the Delhi High Court in the case of Rekha Tyagi was reversed.
Problems of percentage of disabilitySince the definition of person with disability prescribes a minimum percentage of disability above which reservations and benefits are available, predictably, a lot of dispute has arisen regarding such percentage.
In P. Rajaprabharan rep. by Mr. D. Pugazhenthi vs. Secretary to Government, Higher Education Department , a physically disabled person with 48% disability, applied for admission to the M.B.B.S Course for the academic year 2004-05 against the seats reserved for the physically handicapped candidates. His claim was rejected on the ground that the prospectus issued by the Director of Medical Education provided, that candidates with 50% to 70% disability alone were entitled for consideration under the reserved quota.
Rajaprabharan filed a Writ Petition challenging the same. The petition was dismissed stating that the State government had the power to prescribe higher level of disability than the one prescribed by the said Act. Aggrieved, Rajaprabharan filed an appeal. The Court analyzed the relevant provisions of the Persons with Disabilities Act to see if Prabhaharan’s disability fell within the definition of disability under the Act. The Court observed that the Section 2(t) of the Act lays down the minimum percentage of any disability to enable a person to claim and avail the benefits of reservation.
The Court disagreed with the previous order, and held that the State Government could not prescribe a higher level of disability than the one prescribed under the said Act. The Court held that Prabhaharan was entitled to the benefits of reservation and that the prospectus prescribing a higher level of disability for consideration under seats reserved for the physically disabled persons was invalid.
The case of Dr. Raman Khanna vs. University of Delhi and Ors addressed a similar issue. Dr. Raman Khanna was suffering from partial loco motor disability of the upper limbs. He applied for admission to the MBBS Course conducted by the Delhi University and was selected on merit. Thereafter, he graduated and completed one year of internship. He then applied for post-graduate studies where he was denied admission. Thus, he filed a Petition against the decision of the University of Delhi refusing him admission
In the case of physical handicap, Medical Council of India (MCI) had clearly provided guidelines for the eligibility criteria of candidates suffering from loco motor disability. According to these guidelines only individuals suffering from a 40% to 60% impairment of lower limbs could be considered for admission to medical educational institutions. This limit was later changed to 50% to 70% limit.
It was argued that the disability suffered by Raman was of the upper limbs and furthermore his impairment was only 40% so he was not eligible for admission to the Postgraduate medical education. The Court held that Raman's disability had been certified by a hospital that was especially designated by the Government of NCT (National Capital Territory) for the purpose of assessing the disability level of persons with disabilities, hence, the certificate was completely valid and the University of Delhi would have to accept it.
The MCI and University of Delhi were directed to reconsider the policy of disqualifying candidates with disability of upper limb. Hence, it can be seen that in most cases, the Court has been sympathetic towards persons with disabilities, and have upheld the provisions of the Act. However, in certain cases limits have been set. For example, where there are only 2-3 seats of certain specializations in post-graduate medical courses, the decisions do not support provision of reservations to disabled persons, as reservation of even a single seat would amount to more than 50% reservation, which exceeds the stipulated amount. The courts have also made it clear that section 39 of the Act only mandates reservation of 3 percent of seats in government or government aided educational institutions , and not to provate educational institutions.
In conclusion, it can be said that the Persons with Disabilities Act, 1995 has proved to be a successful instrument with regard to provision of reservations in higher education. The anomaly in drafting of section 39 has been ignored by the Court by way of decided cases, and hence the same may now be overlooked. However, the legislature must take due care while drafting important legislations and avoiding such anomalies which result in some loss to persons already disadvantaged.
Persons with Disabilities- Rights, Rehabilitation and Resource Development:
Disability refers to the disadvantage or restriction of activity caused by the way society is organized which takes little or no account of people who have physical, sensory or mental impairments.
Basic Primer on the Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995:
As observed by the Hon'ble Supreme Court of India in Kunal Singh v. Union of India, the need for a comprehensive legislation for safeguarding the rights of persons with disabilities, for enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time, and the Act provides some sort of succor to the disabled persons.
Right To Employment of Disables:
Human rights are the fundamental or basic rights, which should not be taken away by any individual or government. They comprise within its gamut the right to life and liberty, equality, right to freedom of speech and expression and movement, trade, profession or business freedom of movement, thought, conscience and religion, right to work, right to education etc.
Right of Disabled
The unanswered Social and Legal Issues Relating To Differently abled Persons in India
Vulnerable Groups in India - Status, Schemes, Constitution of India
Human Rights of Vulnerable Sections
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