CNT214 | Navigating The Law Of Physical And Mental Disability In India : Contemporary Trends

Physical and mental disability as a protected characteristic has not been either recognised or identified in the text of the Indian Constitution. However Indian constitution is explicit in labelling physical incapacity and intellectual disability by way of unsound mind as a disqualification from either holding or continuing certain public offices after the onset of the same. In this connection, reference may be made to Articles 102(1)(b), 191(1)(b), 326, 124(4) & (5) and 317(3)(c). In this clause, namely, 317(3)(c), physical and mental disability has been addressed as “infirmity of mind or body”. Another interesting feature of Indian constitution is that it affords fair amount of constitutional recognition to social disability by recognising caste, religion and sex as protected characteristics and by abolishing untouchability. Article 46 mandates the State to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes. In sharp contrast Article 41 provides that “the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement…”. This provision clearly shows the influence of ability privilege on Indian Constitution as not only disablement is placed alongside sickness and unemployment but the obligation of the State is also subject to its economic capacity and development.

In respect of distribution of powers between Centre and the States again the story is not any different. In List II, entry 9 (Relief of the disabled and unemployable.) is awkwardly sandwiched between entries on intoxicating liquor and burial grounds. It would therefore not be an exaggeration to assume that Indian Constitution postulates a negative ontology of disability and endures medical model of disability by locating disability in the body of an individual.

Against this backdrop, this course is introduced, to have a critical look on Indian legal regime qua physical and mental disability from the perspective of disability studies. Inter alia, the course would grapple with the following germinal questions:

1. Why disability legal theory must be mainstreamed as part of academic curriculum rather than as a fragment or a specialized course?

2. Why Constitution of India is completely indifferent and neutral on the cause of physical and mental disability?

3. Whether the enactment of legislations like the Persons with Disabilities Act, 1995 and Rights of Persons with Disabilities Act, 2016, have salvaged the Constitution of India from the charge of perpetuation of ability privileges?

4. Is it plausible to argue that with the ratification of UNCRPD, 2006, enactment of Rights of Persons with Disabilities Act, 2016 is analogous to entrenchment of Indian legal order with a super-statute i.e., whether latter is a super-statute?

5. To what extent RPwD Act, 2016 has enabled Indian legal order to embrace social model of disability?

6. What is the role of judiciary in giving a phillip to the rights discourse while pursuing the mandate of RPwD Act, 2016, and whether the approach of judiciary in doing so is consistent?

7. Are there any textual, semantic and ideological gaps in RPwD Act?

8. Whether there is any tension between the credos of RPwD Act and Trust Act, 1999?

9. Can government of India be held liable under international law for not upholding its ratifying duty imposed on her under UNCRPD?

10. What are the core concepts and principles involved in disability legal theory?

These and several other allied questions will be taken up during this course. The

pedagogy of the course is predominantly lecture-cum-presentation based to have a

better idea for making constructive interventions for having improvements in the regime for the empowerment of people with physical and mental disabilities in India. Students would also be encouraged to make reference to developments in other jurisdictions for developing comparative perspective.