Whether international Human rights conventions support the classification as made by the

Union Government?

- Article 1 of the UNCRPD under the UNHR convention states The purpose of this
Convention is to promote, protect and ensure the full and equal enjoyment of all
human rights and fundamental freedoms by all persons with disabilities, and to
promote respect for their inherent dignity. Persons with disabilities include those who
have long-term physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective participation in
society on an equal basis with others.

- The act also makes a provision of “person with benchmark disability” under Section 2
(r), which means a person with not less than forty per cent of a specified disability as
certified by the certifying authority. Categorization of disability on the basis of
percentage is again limiting the definition of disability and hence defeating the
purpose of the RPWD Act and subsequently of UNCRPD.
-

- In the case of Net Ram Yadav vs The state of rajasthan on 11 August 2022 the court
observed that UNCRPD has been ratified by India. The State is obliged to give effect
to the UNCRPD. All Statutes, Rules, Regulations, Bye-laws, Orders and Circulars for
the benefit of the Physically Disabled necessarily have to be given a purposive
interpretation in harmony with the principles of UNCRPD.

- Rule 5 (f) states that up to a maximum of 10 years in the case of candidates belonging
to Persons with Benchmark Disabilities (PwBD) categories viz.
- (i) blindness and low vision;
- (ii) deaf and hard of hearing;
- (iii) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid
attack victims and muscular dystrophy;
- (iv) autism, intellectual disability, specific learning disability and mental illness;
- (v) multiple disabilities from amongst person under clauses (i) to (iv) including
deafblindness.

- In the case of Jeeja Gosh vs Union of India, Writ Petition (Civil) No. 98 of 2012, it
was held that noted a key component of equality is a principle of reasonable
differentiation and specific measures must be undertaken , recognising the different
needs of persons with disabilities, to pave the way for substantive equality. “In
international human rights law, equality is founded upon two complementary
principles: non-discrimination and reasonable differentiation. The principle of
non-discrimination seeks to ensure that all persons can equally enjoy and exercise all
their rights and freedoms. Discrimination occurs due to arbitrary denial of
opportunities for equal participation. Equality not only implies preventing
discrimination but goes beyond in remedying discrimination against groups suffering
systematic discrimination in society. In concrete terms, it means embracing the notion
of positive rights, affirmative action and reasonable accommodation.”.

- According to sec 20 and 21 of the RPwD act, it states the provisions of

non-discrimination in the matter of employment and Equal Opportunity Policy. Under
the CSE Rules 2023. It provides reservation for the Benchmark Disability only, this is
a clear violation of sec 20 of the RPwD act and hence violating the purpose of the
convention by categorising the disability and making provisions of specified disability
and benchmark disability.

- The act also makes a provision of “person with benchmark disability” under Section 2
(r), which means a person with not less than forty per cent of a specified disability as
certified by the certifying authority. Categorization of disability on the basis of
percentage is again limiting the definition of disability and hence defeating the
purpose of the RPWD Act and subsequently of UNCRPD.

-
- the procedural technicalities like 40% criteria for calculating disability and
categorizing 21 specified disabilities under The Rights of Persons with Disability Act,
2016, defeats the social as well as human rights approach to disability. The study
found a major lacuna in the RPWD Act which provides for a narrower definition of
disability defeating the purpose of UNCRPD which describes disability as an
evolving concept.

- The definition of discrimination and reasonable accommodation under Section 2(h)

and 2(y) is parallel to the definition mentioned in the UNCRPD therefore according to
2(h) “discrimination” in relation to disability, means any distinction, exclusion,
restriction on the basis of disability which is the purpose or effect of impairing or
nullifying the recognition, enjoyment or exercise on an equal basis with others of all
human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field and includes all forms of discrimination and denial of
reasonable accommodation; and 2(y) “reasonable accommodation” means necessary
and appropriate modification and adjustments, without imposing a disproportionate or
undue burden in a particular case, to ensure to persons with disabilities the enjoyment
or exercise of rights equally with others;
- In this case the petitioner Rajat was discriminated on the grounds of unreasonable
disqualification of his candidature in public employment,therefore his legal rights of
of profession and occupation was violated .

- In the case of Ranjit Kumar Rajak v. State Bank of India, 55 the Bombay High Court
held that incorporating reasonable accommodations into Article 21 of the Indian
Constitution, which guarantees the right to life and is based on the convention for
people with disabilities, would not conflict with municipal law but rather add new
dimensions to the concept of life and its true enjoyment

- According to The International Classification of Functioning, Disability and Health,

the concept of disability are the facts that disability is multidimensional and the
product of an interaction between an individual’s certain conditions and his or her
 physical, social, and attitudinal barriers.Similarly, the World Health Organization
recognizes that Disability is not just a health problem but a complex phenomenon,
reflecting the interaction between features of a person’s body and features of the
society in which he or she lives.
-
- The Act is still inadequate in addressing some of the major problems of disabled
people. Moreover, it is also worthy to mention that the Government of India has not
signed the optional protocol of the Convention. According to which the person who
believes their rights as per the convention have been violated can bring their
complaints to the UN Disability Committee after they have exhausted the option of
seeking redress from their respective country.This act of not signing the optional
protocol makes the convention weaker as the Indian people cannot seek legal remedy
at International level for the violation of their rights.
-

To implement the provisions of the Convention, Right of Persons with Disability Act, 2016 is
passed in the country and number of schemes and policies have been launched by
Government of India for protecting the rights of disabled persons. Yet, the concept of
disability rights as a movement in India is still very new and evolving. On the ground level,
persons with disabilities are facing discrimination and inequality because of various
economic, socio-psychological, cultural, political, and administrative reasons.

RESPONDENT :

● The Rights of Persons with Disabilities (RPwD) Act 2016 was implemented to uphold
the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
It calls for providing fundamental rights and equal opportunities and preventing
discrimination based on disability for individuals suffering from 21 disabilities,
including intellectual disabilities, mental illnesses, autism spectrum disorders, and
specific learning disorders.
 ● United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in
effect from May 2008, has an international obligation to comply with the convention
which promotes, defends and reinforces human rights of the disabled.

● Article 1 of the UNCRPD provides that “Persons with disabilities” include those who
have long-term physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective participation in
society on an equal basis with others..The purpose of the present Convention is to
promote, protect and ensure the full and equal enjoyment of all human rights and
fundamental freedoms by all persons with disabilities, and to promote respect for their
inherent dignity.

● In the case of V. Surendra Mohan vs State Of Tamil Nadu 2019 the high court came to
the conclusion that prescription of disability to the extent of 40%-50% for recruitment
for the post of Civil Judge (Junior Division) was valid and does not contravene any of
the provisions of the Act or any other statutory provision.

● According to article 3 of the UNCRPD, states the general principles

The principles of this Convention shall be:

1. Respect for inherent dignity, individual autonomy including the freedom to make
one's own choices, and independence of persons;
2. Non-discrimination;
3. Full and effective participation and inclusion in society;
4. Respect for difference and acceptance of persons with disabilities as part of human
diversity and humanity;
5. Equality of opportunity;
6. Accessibility;
7. Equality between men and women;
8. Respect for the evolving capacities of children with disabilities and respect for the
right of children with disabilities to preserve their identities.

● In the case of Kunal Singh vs Union Of India & Anr, 2003 the writ petition was
dismissed by the High Court holding that he had been permanently invalidated on the
 basis of the medical opinion and as such there was no scope for him to continue any
further in service of any kind in the SSB.

● The purpose of this Convention is to promote, protect and ensure the full and equal
enjoyment of all human rights and fundamental freedoms by all persons with
disabilities, and to promote respect for their inherent dignity.The Convention focus on
two important pillars of human rights i.e. Equality and Non-discrimination.India is
duty-bound to bring the domestic legislation relating to the persons with disabilities in
accordance with the provisions of the Convention.

● Article 27: Work and employment –1. States Parties recognize the right of persons
with disabilities to work, on an equal basis with others; (a) Prohibit discrimination on
the basis of disability (b) Protect the rights of persons with disabilities(e) Promote
employment opportunities and career advancement for persons with disabilities in the
labour market(g) Employ persons with disabilities in the public sector;(i) Ensure that
reasonable accommodation is provided to persons with disabilities in the workplace;

● In the case of Ravinder Kumar Dhariwal v. Union of India the Court also pointed out
that there is an international consensus that persons with mental health disorder have a
right against workplace discrimination and that the CRPD has been instrumental in
shaping mental health legislation in many countries.

● The definition of discrimination and reasonable accommodation under Section 2(h)

and 2(y) is parallel to the definition mentioned in the UNCRPD therefore according to
2(h) “discrimination” in relation to disability, means any distinction, exclusion,
restriction on the basis of disability which is the purpose or effect of impairing or
nullifying the recognition, enjoyment or exercise on an equal basis with others of all
human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field and includes all forms of discrimination and denial of
reasonable accommodation; and 2(y) “reasonable accommodation” means necessary
and appropriate modification and adjustments, without imposing a disproportionate or
undue burden in a particular case, to ensure to persons with disabilities the enjoyment
or exercise of rights equally with others;
In this case the petitioner Rajat was not discriminated on the grounds unreasonable
disqualification but rather purely on medical grounds as per rule 18 Note V under
CSE rules 2023 that In order to be aware of their medical fitness condition, candidates
may consider having themselves examined by a Government Medical Officer of the
standing of a Civil Surgeon, before applying for admission to the Examination. The
prescribed Medical Examination as per these Rules is mandatory and only the results
of the prescribed Medical Examination will be deemed valid for assessing whether a
candidate meets the requirements to be appointed.