DISABILITY, DISCRIMINATION AND EQUALITY OF OPPORTUNITIES: A COMPARATIVE

ANALYSIS OF THE LEGAL FRAMEWORK

Author(s): Parmanand Singh
Source: Journal of the Indian Law Institute , April-June 2003, Vol. 45, No. 2 (April-
June 2003), pp. 173-199
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43953410

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 173

DISABILITY, DISCRIMINATION AND EQUALITY OF

OPPORTUNITIES: A COMPARATIVE ANALYSIS OF
THE LEGAL FRAMEWORK

Parmanand Singh*

I Introduction: Disability as a stigma

PEOPLE WITH disabilities constitute the largest minority in the

encompassing over 600 million persons of which majorit
developing countries. For a long time the disabled peop
experienced discrimination, prejudice, neglect and exclusion
walk of life. In pre modern societies the disabled people were el
through killing programmes and sterilisation and were consi
non-persons and second-class citizens.1 Systematic exclus
discrimination of people with disabilities has no rational basis, b
solely on the prejudice and indifference of the able bodied perso
Disability causes social stigma, because the condition of di
is considered as "undesired differentness" from socially defined
of "normality".2 The core aspect of stigma occurs when the pre
social norms treat disability as universally discrediting. The soc
its institutions are designed for the "normals" and not for the
with stigmatised traits. The subordinate status of the disabled in
rests on animus and prejudice. Disability discrimination is precis
to thoughtlessness and indifference of the society as a whole
with disability generally experience a "spread effect" in wh
assumed that an impairment that affects particular life functio
indicates universal disability. In the context of employment

* Dean, Faculty of Law and Professor of Law, University of Delhi, Ind

article is the outcome of the author's research stay as a Visiting Profes
Planck Institute for Comparative Public Law and International Law, H
Germany during the summer of 2000. The author is grateful to Max Planck
for the funds and facilities to conduct research on disability rights and to
J. A. Frowein and Rudiger Wolfrum, Directors of the Institute for their encou
and guidance in the preparation of this article.
1. V.K. Dixit, "Historical Foundation of Disability Discrimination in
Hindu Law" XX DLR 65-70(1998).
2. Samuel R. Bagenston, "Subordination, Stigma and "Disability va l
Rev 397 (2000).

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1 74 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 45 : 2

that the persons with disabilities are disfavoured becau

stereotypes, discomfort or misconceptions and unfounde
increased costs and decreased productivity.
Much of the society is designed without regard for the n
disabled individuals. The discriminatory effects of arch
transportation and communication barriers largely contribute
of opportunities to the people with physical and mental
For example, a person using a wheelchair cannot have a
workplace because access to the workplace is possible on
stairs. Nor can she travel by bus because buses are not eq
wheelchair lifters. She can neither go for shopping nor p
recreational activities. A person with hearing impairmen
telephone system. A visually impaired person cannot w
pavements because the pavements are not structured with r
at the edges. In all the above examples, the society has fa
modifications to the existing facilities. The social choic
made keeping in view able-bodied individuals who alone can
to major life activities. The life activities of people with
have been obstructed by both structural and institutional b
disabled people are thus stigmatised as second-class citi
inferior human beings by social norms. The effects of disa
directly in the spheres of education, transport, physical acc
built environment, social and welfare services, income a
housing, health services, recreational activities, and in emp
At the end of the United Nations Decade of Disabled Persons in
1992 a major change could be perceived on future international disability
policy. The World Programme of Action concerning Disabled Persons
adopted by the General Assembly in its 37th session demands participation
of the disabled persons in decision making. A major event was the
appointment of a special rapporteur on human rights and disability by
the Sub-Commission on Prevention of Discrimination and Protection of
Disability in 1984. The final report of Leandro Despouy which was
presented in August 1991 was endorsed by the Commission on Human
Rights and the General Assembly at their subsequent sessions. The report
shows that the human rights of the disabled persons are seriously violated
all over the world in both civil and political sphere as well as in the area
of economic, social and cultural rights. The Standard Rules on the
Equalization of Opportunities for Persons with Disabilities (UNSR) were
adopted by the General Assembly on December 20, 1993 with the purpose
of achieving positive and full inclusion of persons with disabilities in
all aspects of society under the leadership role of the United Nations.3

3. The U.N. Standard Rules on the Equalization of Opportunities for Persons

with Disabilities 1993(hereinafter referred as UNSR).

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2003] DISABILITY . DISCRIMINA TION AND EQUALITY OF OPPORTUNITIES 1 75

The standard rules are firmly built on the principles and concepts
enshrined the World Programme of Action concerning Disabled Persons
(WPA) of 1982.4 The UNSR establish that the states have a responsibility
"to create the legal bases for measures to achieve the objectives of full
participation and equality for persons with disabiliites".5 It is hoped
that the rules "can become customary rules when they are applied by a
great number of States with the intention of respecting a rule in
international law".6 Earlier, the ILO standards provided guidelines for
employment opportunities for the disabled people.7 Various instruments
of the European Community and the Council of Europe also made
inspirational reference to the objective of social integration and equality
for disabled workers.8
The purpose of this article is to explore the global disability equality
movement as well as the measures taken at domestic level to protect the
human rights of the disabled people. It will be observed that within the
European Union, Germany9 and the United Kingdom10 have passed
comprehensive legislations on disability discrimination. and in the
remaining countries the disability issues are treated as matters of social
policy. France, Luxembourg and Portugal have also enacted disability
laws. Amongst the western countries, the United States11 and Canada12
have passed disability laws. Australia13 and New Zealand14 have also
enacted laws. Among the developing third world countries, India has
enacted legislation in 1995 in response to the Beijing meeting held in

4. Bengt Lindquist, "Standard Rules in the disability field - a New United

Nations Instrument" in Degener and Koster-Dreese, Human Rights and Disabled
Persons : Essays and Relevant Human Rights Instruments 63 (1995).
5. Supra note 3, Rule 15
6. Id. Introduction, para 14
7. ILO Vocational Rehabilitation and Employment (Disabled Person Convention)
No 159 (1983)
8. European Social Charter (1961) Part-I, para 15 and Part-II Article 15, E.C.
Charter of Fundamental Social Rights of Workers (1989/ The new text of Article
15 of the Charter provides that the parties must aim to develop a coherent policy for
the people with disabilities and ensure for them a right to independent social
integration, personal autonomy and participation in the life of the community. It
also states that the disabled people should also be provided education, vocational
training and rehabilitation.
9. Schwerbehindertengesetz 1986.
10. Disability Discrimination Act, 1985.
1 1. The Americans with Disabilities Act, 1990.
12. Canadian Charter of Rights and Freedoms, (1982) S. 15. Human Rights Act
1985.
13. Disability Discrimination Act, 1992.
14. Human Rights Act, 1993.

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1 76 JOURNAL OF THE ¡ND1AN LA W INSTITUTE [ Vol. 45 : 2

December 1992 to launch the Asian and Pacific Decade of Disabled

Persons 1993-2002. 15

II Goals of disability equality

Medical welfare approach

The disability rights movement arose in 1970' s as a reaction against

the then prevailing attitude towards disability, which focused on medical
treatment, physical rehabilitation, charity, welfare and public assistance.
The medical welfare approach treats disability as an inherent persona
characteristic rather than a characteristic that draws its meaning from
social context. In such an approach disability is a matter of a persona
tragedy. Such a view encourages dependence on doctors, rehabilitational
professionals and charity. Apparently the medical paradigm stigmatises
the disabled people by describing them as not "normal".
The classification of disability made by World Health Organisation
(WHO) in 1980 also supports the medical approach. WHO defines
'handicap' as a disadvantage for a given individual resulting from an
impairment or a disability, that limits or prevents the fulfilment of a role
that is normal (depending on age, sex, social and cultural factors) for
that individual. 'Impairment' is any loss or abnormality of psychological,
physiological or anatomical structure or function. 'Disability' indicates
any restriction or lack (resulting from an impairment) of ability to perform
an activity in the manner or within the range considered normal for a
human being.16 The WHO classification of "handicap", "impairment"
and "disability" overlooks the fact that discrimination experienced by a
disabled individual is the product of society's negative reaction towards
impairment and disability. The question of who is and who is not a
disabled person is a social judgment since there is no dividing line
between "disability" and "normality". It all depends upon how an
individual is labelled as such by social norms set up by the able-bodied
majority. The medical approach takes the environment for granted which
has been created for normal human beingSv Then this approach lays all
emphasis on clinical diagnosis and medical treatment rendering the
disabled individual as the recipient of public assistance and charity.

Social relations model

The contemporary disability discrimination discourse rejects

15. The Persons with Disabilities (Equal Opportunities, Protection of Rights

Full Participation) Act, 1995.
16. Internationa I Classification of Impairments, Disabilities and Handica
Geneva, WHO, 1980.

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2003] DISABILITY. DISCRIMINATION AND EQUALITY OF OPPORTUNITIES 1 77

medical welfare model and locates disability in social context. The social
relations model treats human differences as constructed by and residing
in a social relationship. Disability is not considered as a product of
limitation imposed by physical or mental impairment. Rather disability
is regarded, as a result of interaction between societal barriers and the
impairment. A person is disabled not because of his personal tragedy
but because of the disadvantages suffered by him by a disabling
environment besides the prevalence ofstereotypes, prejudices and neglect
of the so-called 'normal' individuals.1 1 The advocates of social relations
model, therefore, insist that the society as a whole has the responsibility
to eliminate social and physical structures that exclude people with
disabilities in having access to opportunities. The need, therefore, is to
create a fully accessible society so that -every major life activity is open
to all human beings. The social relations model also emphasises the
concept of "independent living" which means that the disabled persons
are the best judge about their own concern and are full citizens with
equal civil rights.

The concept of disability equality

The disability rights discourse insists on a concept of equality that

is based on the needs of all members of the society rather than on those
deemed "normal". The demand for equality is based upon the concept
of human autonomy, which consists of personal capacities to have an
access to the opportunities that society offers to all the people. As has
been observed by Joseph Raz:18
The ideal of personal autonomy is the vision of people controlling
to some degree, their own destiny fashioning it through
successive decisions throughout their lives.
John Rawls describes personal autonomy "as the ability to frame, to
revise and to pursue a conception of the good and to deliberate in
accordance with it".19 The norm of human autonomy is central to civil
rights tradition which means self governance. In the context of disability
equality the concept of "autonomy" cannot be located to the existence
of personal capacities to have an access to opportunities. The ethical
principle of equality that all human beings are equal in their self worth,
dignity and autonomy would be false for people with disabilities. The

17. Supra note 2 at 418-432. Also see, Len Barton "Sociology, Disability Studies
and Education: Some Observations" in The Disability Reader Social Science
Perspective 53-59 ( 1 998).
18. J. Raz, The Morality of Freedom 369 (1986).
19. J. Rawls, Political Liberation 72 (1993).

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1 78 JOURNAL OF THE INDIAN LA W INSTITUTE [ Vol . 45 : 2

disabled people would demand a concept of equality in whic

should undertake special efforts in order to equalize opportu
them.
The vision of "formal" equality will do nothing for the peop
disabilities. This Aristotlean concept insists that like should be
alike. Reliance on "formal" equality would be inappropriate i
of disability because the people with disabilities are not similarly
when compared to able-bodied persons. "Disability" and "a
well as "difference" and "sameness" are relational concepts
depends upon how "difference" and "sameness" are viewed. The
here is not "difference" but privileged social norm of ableb
In other words "sameness" and "difference" are nothing,
constructions. No one is "different" without a counterpart hav
other traits and nobody is "disabled" as long as there is no
compare with who is differently "abled". "Sameness" and "d
very much depends upon one's point of comparison. One m
the label "normal" to his group and then he compares his
"normals" with a counter-example, that he calls "different".20
therefore, is not a synonym for the promotion of "sameness" b
a right to be "different". The notion of formal equality e
optimistic view of individual autonomy and rationality and com
ignores the social disparities and social disadvantages and th
on free competition.
In the context of disability, the notion of substantive eq
genuine equality would be more appropriate. Substantive equali
to aid the disadvantaged or otherwise vulnerable groups by giv
special treatment in an effort to enhance their equal rights. Th
of equality takes account of both personal and environment
that may inhibit societal participation. Rawlsian concept of
justice also supports the notion of substantive equality acc
which goods should be distributed equally - as opposed to th
among the members of society unless an unequal distribution w
the advantage of less fortunate.21
According to Friedland,22 the society's obligation to create
accessible society for disabled people would be justified by
theory of justice. She argues that rational individuals behind a
like veil of ignorance23 would agree to provide benefits/accom

20. M. Oliver, "Discrimination, disability and social policy" in M. B

Jones (Ed.) Yearbook of Social Policy 74ff (1984-1985).
21. J. Rawls, A Theory of Justice 303(1971).
22. Michelle T. Friedland, "Not Disabled Enough: The ADA s Major lite
Activity" Definition of Disability" 52 Stan L Rev 171, 191 (1999).
23. Supra note 21 at 136-142.

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2003] DISABILITY, DISCRIMINA TION AND EQUALITY OF OPPORTUNITIES 1 79

to individuals with disabilities in order to insure against the possibility

that they themselves would turn out to be disabled. According to her,
such a notion is the basis for Ronald Dworkin 's24 assertion that society
has a moral responsibility to assist the individuals with disabilities.25
Dworkin argues that people, if they could have done so before they
were born, would have paid into an insurance scheme to compensate
them should they turn out to be disabled and that society should,
therefore, set up the equivalent of that insurance scheme now.26
As has been stated above, in the context of disability equality, the
problem arises more in the structures (designed to reflect and
accommodate the privileged norms) and not in the persons. The notion
of substantive equality would entitle the people with disabilities a host
of social and economic rights such -as housing, health, education,
employment and also certain "market-participation rights" such as the
right to work, the right to fair conditions of employment, right to fair
remuneration, the right to organise and the right to social security. Only
through the market inspired rights the people with disabilities can achieve
economic empowerment and independence. Market aggravates socio-
economic disparity between people and tends to favour those who are
already privileged. The notion of substantive equality seeks to eliminate
these disparities by removing structural inequalities and barriers that
prevent the disabled people from equally enjoying their rights and
freedoms.
WPA adopted by the UN General Assembly in 1982 describes the
principle of equality as follows:27
The principle of equal rights for the disabled and non-disabled
implies that the needs of each and every individual are of equal
importance, that their needs must be made the basis for the
planning of societies and that resources must be employed in
such a way as to ensure, for every individual, equal opportunity
for participation.
The World Conference on Human Rights28 confirmed, "all human
rights and fundamental freedoms are universal and thus unreservedly
include persons with disabilities. The World Conference on Human

24. R. Dworkin, "What is Equality? Part 2: Equality of Resources" 10 Philosophy

and Public Affairs 283, 296-304 (1981).
25. Supra note 22 at 297.
26. Supra note 24 at 297.
27. World Programme of Action Concerning Disabled Persons, General Assembly
of the United Nation Resolution 37/52.63 December 1982, para 25.
28. Vienna Declaration and Programme of Action U. N. Doc. A/CONF. 157/23
Title II para 63 (1993).

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1 80 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 45 : 2

Rights calls on all governments, where necessary, to adopt or

legislation to ensure access to these (life, welfare, education,
living independently and active participation in all aspects of
and other rights for disabled persons."
The substantive equality concept implies affirmative ac
programmes making provisions for reasonable accommodation to
the societal participation and social integration of people with disa
These people should be protected against both direct and ind
discrimination. Direct discrimination occurs when the disabled
are singled out for differential treatment in jobs, schools, transpo
etc. Indirect discrimination occurs against persons with disabilitie
an employer or service imposes a condition or requirement that is
universally in terms of formal equality but such condition or requ
has a discriminatory impact or effect on the disabled individuals.
Reasonable accommodation goes beyond a simple equal trea
principle to require changes in some practices and structures to a
the disadvantageous effects of physical differences. The duty to
reasonable accommodation ought to be a legally enforceable duty
corresponding right of disabled persons to require positive action
the barriers that obstruct their societal participation. Reaso
accommodation may be defined as "providing or modifying d
services, or facilities or changing practices or procedures in o
match a particular person with a particular program or activity"
put it another way, reasonable accommodation is a modifica
adjustment that is effective in enabling an individual with disabi
participate in society on an equal footing with non-disabled p
Examples of "reasonable accommodation" include the instalm
ramps and elevators, the introduction of part-time work-schedul
availability of readers as well as sign translation. These accommod
seek to ensure equality and social integration by breaking
environmental barriers. Ideally, disabled people should be bestowe
an enforceable right against all forms of discrimination, in
discrimination that occurs as a result of the denial of a reasonable
accommodation.

29. For an incisive discussion of direct and indirect discrimination see, M.

David Lepofsky, "The Charter's Guarantee of Equality To People With Disabilities:
How Well is it Working?" 16 Windsor Yearbook of Access To Justice 155, 172
(1998).
30. Ch. G. Bell, R. L. Burgdorf, "Accommodating the spectrum ot individual
disabilities", United States Commission on Civil Rights Publication No 81 Washington
D. C.

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2003] DISABILITY, DISCRIMINATION AND EQUALITY OF OPPORTUNITIES 181

III Global movement for disability equality

An important first step in the global recognition of equal rights of

the disabled persons was the Declaration of the Rights of the Disabled
Persons adopted by the United Nations in 1975. 31 The declaration's
objective is to promote "the dignity and worth of the human person and
the necessity... of assisting disabled persons to develop their abilities in
most varied fields of activities and promoting in so far as possible
of... their integration into... normal life".32 The declaration proclaims
the rights of disabled persons to dignity, self-reliance, medical and
rehabilitational treatment, assistive aids, educational and vocational
training, and social integration.33 Entitlements to live with one's family,
to participate in social and recreational, activities and to freedom from
discrimination with respect to accommodation are also enumerated.34
The World Programme of Action concerning Disabled Persons
(WPA) in December 1982 and the period 1983-1992 being designed as
the United Nations Decade of Disabled Persons marked a significant
global strategy for achieving equality to the people with disabilities.35
"Equalization of Opportunities" had been the main theme of WPA. The
Standard Rules on the Equalization of Opportunities for Persons with
Disabilities were adopted by General Assembly on December 20, 1993. 36
As stated in the preamble the purpose of UNSR is:37
(a) To stress that all actions in the field of disability pre-supposes
adequate knowledge and experience of the conditions and
special needs of the people with disabilities.
(b) To emphasise that the process through which every aspect of
societal organization is made accessible to all is a basic
objective of socio-economic development.
(c) To outline the crucial aspects of social policies in the field of
disability, including as appropriate, the active encouragement
of technical and economic co-operation.
(d) To provide models for the political decision-making process
required for the attainment of equal opportunities, bearing in
mind the widely differing technical and economic levels, the

31. Declaration of the Rights of Disabled Persons 9 December 1975 U.N.G.A.

Resolution 347 (XXX).
32. Id. Preamble.
33. Id. Articles 6-8.
34. Id. Article 9.
35. Supra note 27.
36. U. N. Doc A/Res/48/96.
37. Supra note 3, Preamble.

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1 82 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol . 45 : 2

fact that the process must reflect keen understanding

cultural context within which it takes place and th
role of persons with disabilities.
The UNSR recognises four pre-conditions for equal partic
persons with disabilities in society, namely, the raised aw
society about rights, needs, potential and contributions of p
disabilities, the provision of effective medical care and r
services to people with disabilities and finally the devel
supply of support services including assistive devices for pe
disabilities.38 Eight target areas are recognised. The
accessibility, in terms of the physical environment and info
communication, education, employment, income maintenanc
security, family life and personal integrity, culture, recreatio
and religion.39
The standard rules are firmly built on the principles and
enshrined in WPA, which provided the guidelines for the U
Disabled Persons. These rules contain fundamental princ
international disability movement and are based on the socia
disability equality. The new disability policy framework
the standard rules acknowledges that an individual's ability
in society depends on the openness of the society to accomm
with their differences as on the specific functional limitations th
a person as "disabled". These rules acknowledge that env
barriers are a great impediment to participation in society th
limitations and barrier removal through legislation, univ
provision for accommodation and other means, has been
the key to equalization of opportunities for people with
The rules recommend to the governments of the member st
measures to eliminate the real causes of disadvantage and vu
and should remove all the environmental barriers that inhib
persons from exercising their human rights.
The standard rules contain a powerful message to the
message is that the concept of equality implies the not
indivisibility, interrelation and interdependence of the two s
rights: civil and political rights on the one hand and ec
social rights on the other hand. The rules proclaim:40
Equalization of opportunities means the process through
the various systems of society and environment, such as s
activities, information and documentation, are made avai
all, particularly to persons with disabilities. The prin

38. /¿/.Rule 1-4.

39. Id. 5-12.
40. Id. Introduction, para 24-27.

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2003] DISABILITY. DISCRIMINA TION AND EQUALITY OF OPPORTUNITIES 1 83

equal rights implies that the needs of each and every individual
are of equal importance, that those needs must be made the
basis for planning of societies and that all resources must be
employed in such a way as to ensure that every individual has
equal opportunity of participation. People with disabilities are
members of society and have the right to remain within their
local communities. They should receive the support they need
within the ordinary structures of education, health, employment
and social services."

It is hoped that the standard rules will "become customary rules

when they are applied by a great number of states with the intention of
respecting a rule in international law".41 The United Nations is at present
building up monitoring system to encourage and assist member states in
their efforts to implement the recommended measures under the rules.
The states still have the final responsibility to take measures in conformity
with the standard rules. The discussions that follows would show that
very little has happened so far in the legal systems of the members
states in implementing the norms set up by these rules.

IV Developments at regional level

Europe

The European community has largely failed to provide a

supranational imposed solution to unequal treatment of disabled people.
Within the European Union the most significant event has been the
amendments to the Treaty of Rome 1957 on October 1997 which took
effect from May 1, 1999 by which the member states have been enabled
to pass legislations to protect the human rights of the disabled people.
However, the potential provided by the Treaty of Amsterdam for the
advancement of disability rights within the European Community is
substantial. The system of the law of the European Union is unique in
the sense that the protected rights are made accessible to the individual.
The role played by the European Court of Justice in developing disability
jurisprudence would be of great significance.42

4 1 . Id. para I 4.
42. Richard Whittle, "Disability Rights After Amsterdam: The Way Forward" I
F,ur HRL Rev 33-48 (2000). Whittle argues that the newly introduced Articles 13
and 137 to the Treaty of Rome 1957 at Amsterdam in 1997 provide legislative bases
for disability discrimination legislations within the European Union. However, these
Articles do not create any effective enforceable rights to the individuals with
disabilities but are in the nature of enabling provisions urging the community
institutions to introduce secondary legislations conferring enforceable rights to the
disabled individuals before the national courts.

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1 84 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol .45:2

In most of the countries of the European Union the pr

human rights of the disabled people is a matter of social po
than a matter of social legislation. In Belgium, the disa
focuses on education, social integration, entry into labour m
improvement of living conditions and greater independence
with disabilities.43 There is no direct legislation on d
Denmark,44 the government accords high priority to the U
national handicap planning of activities. The governmen
Equal Opportunities Centre For Disabled Persons in 1993
an action plan for disabled people was adopted in 1996 f
integration of people with disabilities. In Austria,46 the Fede
for Labour, Health and Social Affairs defends the interests
people and implements the constitutional commitment t
with disabilities. In July 1997, Article 7 of Austria's Federal
was extended to include the prohibition of discrimination o
disability. Article 7 of the Constitution also include
commitment to ensure that people who are disabled are trea
same way as non- disabled people. Sweden47 has designated t
ombudsman to evaluate the measures adopted by the gov
implement the UNSR. The disability ombudsman can hea
of disabled people, but has no power to take action befor
The policies for vocational rehabilitation, employment, acce
social integration of disabled people have also been adopted.
the disability rights are laid down in two basic texts namel
June 1975 on guidance for people with disabilities and t
July 1987 on the promotion of the employment of disabled
principle underlying French policy is priority for integr
disabled people into an ordinary environment. The Gree
has ratified WPA by Act No.2430 of 1996 and a committee
up to prepare a national action plan for the people with dis
Ireland,50 the government has undertaken a number of ini
1993 for promoting equal opportunities for people wit
including the establishment of the Commission on the S

43. Compendium On Member States' Policies On Equality of Opp

People With Disabilities: Employment and Social Affairs: Europea
(1998). This information can be accessed through the Europa s
europa. eu. int). For Belgium, see 11-61.
44. Id . at 17-21.
45. Id. at 35-40.
46. Id. at 71-76.
47. Id. at 89-94.
48. id. at 41-46.
49. Id. at 29-33.
50. Id. at 47-52.

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2003] DISABILITY, DISCRIMINA TION AND EQUALITY OF OPPORTUNITIES 1 85

People with Disabilities and Irish Council of People with Disabilities.

The government has also promised to pass a Disability Act. Italy51 has
issued a statement of policy under the title "Framework Law On the
Care, Social Integration and Rights of the Disabled People" (Law 104/
92) encompassing matters relating to prevention and diagnosis, treatment
and rehabilitation, right to educational, vocational and social integration.
In Luxembourg,52 the Minister for Disabled People' coordinates disability
policies in the field of education, employment and social integration of
the people with disabilities. Disabled Workers Act of 12 November
1991 seeks integration of disabled people in the labour market. In
Netherlands,53 The Vocational (Re) integration of Disabled People Act
came into force on 1 July 1998 which seeks vocational rehabilitation of
people with a disability. The facilities for the Disabled Act takes care of
social integration of disabled people. Portugal54 has passed Law
No. 35. 96 of 2 May 1996 for implementation of policies relating to
rehabilitation and integration of people with a disability. In Finland,55
the National Council on Disability published a national disability
programme in 1996 on empowerment of disabled people in the fields of
education, employment and social integration.
In 1996, the European Union made a crucial policy shift to
right-based approach in the disability field. The present policy focuses
on integration of people with disabilities. The disability policy goes
beyond the provision of social and medical services in ořder to reduce
functional limitations and increase independence of people with
disabilities.

United Kingdom

In the United Kingdom the disabled workers were protected by

Disabled Persons (Employment) Act, 1944 by which a system of statutory
job quota prevailed upon employers of twenty or more employees. With
some exception this quota was fixed at three percent. In effect, however,
the quota system did not work well and has not produced tangible results.
The latest legislation in U.K. is Disability Discrimination Act,
1995(DDA).56 DDA prohibits discrimination against disabled persons
in respect of provision of goods, services, and facilities and in relation

51. Id. at 53-58.

52. Id. at 61-63.
53. Id. at 65-70.
54. Id. at 77-82.
55. Id. at 83-87.
56. Brian Doyle, " Disabled Workers Rights, the Disability Discrimination Act
and the U.N. Standard Rules" 25 Ind LJ 1-14 (1996).

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186 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 45 : 2

to disposal and management of premises.57 The quota syste

repealed. DDA demands new accessibility standards for d
of taxis, public service vehicles and rail vehicles.58
institutions have been placed under a duty to encourage acc
the integration of the disabled pupils and students at
education.59 The Act also prohibits disability related discrim
respect of employment and contract work60 or by tra
employer's associations and trade or professional organisati
DDA makes it unlawful for employers to discrimina
disabled individuals in recruitment and selection, in terms of
employment62 and in employment opportunities generally.63 According
to DDA, discrimination means "for a reason which relates to the disabled
person's disability" the employer "treats or would treat others to whom
that reason does not or would not apply".64 However, the employer can
take the plea of justification where it can be shown that the less
favourable treatment of a disabled person is a reason that "is both material
to the circumstances of a particular case and substantial".65 The
employers have also a duty to make reasonable accommodation.66 The
examples of reasonable accommodation include making adjustment to
premises and alteration or adjustment to policies and practices. An
employer discriminates, if it unjustifiably fails to comply with the duty
to make reasonable adjustments.67 The employment provisions of DDA
are enforceable by litigation in the industrial tribunal system. The tribunal
can make an award of unlimited compensation to a successful
complainant. The tribunal can also make recommendations to prevent
future discrimination.68 DDA applies to all employers with 20 or more
employees. From 1998, the employment provisions have been extended
to employers employing 15 or more employees. The Act defines disabled
person as "a person who has (or has had) a disability" and a person has
a disability "if he has a physical or mental impairment which has

57. Supra note 10, Ss. 19-24.

58. Id. ss. 32-49.
59. Id. ss. 29-31.
60. Id. ss. 4-12.
61. Id. ss. 13-15.
62. Id. ss. 17-18.

63. Id. ss. 4(1) and (2).

64. Id. ss. 5 (1) (a).
65. Id. s. 5 (1) (b).
66. Id. s. 6.
67. Exclusion of employers employing less than 20 employees from tne purview
of DDA is regarded as a flaw in the law. See, Brian Doyle supra note 56 at 14.
68. Supra note 10, S. 8 (2) and (b).

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2003] DISABILITY, DISCRIMINA TION AND EQUALITY OF OPPORTUNITIES 1 87

substantial and long term adverse effect on his ability to carry out day
to day activities".69
According to Brian Doyle, DDA falls short of social model of
disability recognised by the UNSR and reflects the medical model of
disability which has been totally rejected by disability rights activitists.70
The DDA makes no reference to the UNSR although it meets many
objectives of the rules. Nevertheless, DDA creates a strong moral
commitment for equalization of opportunities for disabled persons.

Germany

Since the birth of the present post world war II German Government,
the Federal Republic of Germany, the Federal Parliament ( Bundestag )
has approved comprehensive legislations protecting disabled persons in
195371 , 196172, 197473 , 197674 and 1986.75 In world war II, thirty
two million German soldiers and more than 500,000 civilians lost their
lives and many were rendered physically handicapped. Thousands of
disabled people remained unemployed. The impact of two world wars
was so devastating for German people that the German government was
the first to take initiative to pass disability laws.76
In 1986, the German Parliament or " Bundestag " approved a major
amendment to its existing comprehensive law affecting the disabled, the
Schwerbehindertengesetz or SchwbG. The main aim of SchwbG is to
eliminate employment discrimination and prejudices against the disabled
and to promote their employment opportunities. Even the German
Constitution, called Basic Law (Grundgesetz) contains clause (3) in
article 3 to the effect that "no person shall be disadvantaged on account
of his or her disability".77 The extension of the disability discrimination
provision in the Basic Law has consolidated the position of the people

69. Id. Ss. 1-2, Schedules 1-2. The term "important" has, however, not been
defined in the Act.
70. See, Brian Doyle supra note 56 at 12-13.
71. Gesetz uber die Beschäftigung Schwerbeschädigter 1953, BGBl I 389.
72. Neufassung des Schwerbëschadigiengesetzes 1961, BGBl I 1233.
73. Gesetz zur Weiterentwicklung des Schwerbeschadigtenrechts 1974, BGBl 1
1481.
74. Das Achte Gesett uber die Anpassung der Leistungen des
Bundesversorgunesetzes 1976, BGBl I 1481.
75. Schwerbehindertengesetz or Schwb G BGBl : I 1 1 10
76. For a brilliant comparison between American and German legislation see
Carol D. Rasnic, "A Comparative analysis of Federal Statutes For the Disabled
Worker in the Federal Republic of Germany and the United States" 9 (2) Ariz J of
Int'l&CompL 283 (1992).
77. The amendment to the Basic Law was introduced in 1994.

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188 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 45 : 2

with disabilities because it contains a provision that it is the

state to take steps to ensure that people with disabilities can
in the life of the society on equal footing. In Germany, e
with a physical, mental or psychological disability is entitled
social right to the assistance necessary to prevent the disa
remove it. The 'social right' is the legal and guiding prin
Germany's rehabilitational and disability policy. The gove
provided a comprehensive social benefit system to achieve eq
the disabled people.
The German disability law (SchwbG) is completely coheren
encompassing leaving very little for judicial law making, wh
alien in a civil law system. According to SchwbG any public
business which has atleast 16 positions for employees is requ
6 percent of those places with disabled persons.78 Failure
with the quota obligations entails civil penalty of DM 200
(since 1990) for every job not filled by a disabled person
serious case of breach, criminal fine upto DM 5000 might
The proceeds of this penalty are spent on disabled employme
A disabled person is an individual who suffers from a
disability (Behinderung), which affects his or her capacit
integration, as a consequence of the effects of an irregula
mental or psychological condition. The disability must have d
at least six months and limits functional freedom of ability b
per cent. To qualify under the quota law as a disable
(Schwerbehinderter), disability is measured at 50 per ce
whatever the actual effect upon life activities. A disabled per
unable to find or retain employment, without assistanc
disability is measured at 30 per cent or more is also treated
(Gleichgestellte). Disputes about a person's disability are
social court rsther than a labour court. The German law provi
safeguards to a disabled worker against wrongful dismissal.
The SchwbG is a classical affirmative action law which mandates
every employer to comply with the provision of the statute. The employers
are not only bound by 6 per cent quota but also by the procedure
prescribed in the statute for terminating a disabled worker. As stated by
Carol D. Rasnic, the development of German disability law has been
influenced by three major factors; (1) Germany' s extensive obligatory
involvement with European regional and international organizations;
(2) the German government's basic assumption of responsibility to make
amends for most of the social ills of its people and, (3) the impact of the

78. Schwb G. 5 Abs.l

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2003] DISABILITY . DISCRIMINA HON AND EQUALITY OF OPPORTUNITIES 1 89

two world wars fought in large part of German soil.79 One of the basic
principles set forth in the Grundgesetz declares Germany to be a
democratic and social welfare state80 , a principle to protect the weaker
members of Germany's society. "The federal government has undertaken
a parens patriae task of sorts, bearing the responsibility of caring for its
people in nearly all areas of need".81
The basic flaw in German law* however, lies in its methodology in
determining disability. The determination of disability has been left to
the non-medical administrative personnel. The other flaw is its statistical
nature. Once a business has hired its 6 per cent quota of disabled workers,
it has no remaining duties. This method does not accord any benefit to
those disabled workers who have been denied jobs. The non-compliance
of law simply entails monetary punishment, which goes to the
government; the proceeds do not actually benefit the disabled people.82
The German law treats disabled people as a class to be statistically
assisted. The disabled people do not receive individualized treatment
and relief. And in Germany affluent businessman will prefer to pay a
paltry sum of DM200 per month per violation instead of complying the
statutory quota.83

United States of America

The Americans with Disability Act, 1990 (ADA) states that its
primary purpose is "to provide a clear and comprehensive mandate for
the elimination of discrimination against individuals with disabilities".84
ADA also articulates the goal of ensuring that individuals with disabilit
have "equality of opportunity".85
The term "disability" means with respect to an individual: (A)
a physical or mental impairment that substantially limits one or more of
the major life activities of such individual, (B) a record of such an
impairment, or (C) being regarded as having such an impairment.86 If
an individual cannot demonstrate that she meets this definition of
disability, then she receives no protection of ADA. Dismissal of claims
brought by a plaintiff whose conditions fail to qualify as a disabled
individual under ADA has led to a widespread critique of the American

79. Supra note 76 at 325.

80. Basic Law Article 20 Abs. 1.
8 1 . Supra note 76 at 331.
82. Id at 327.
83. Id at 329.
84. The Americans with Disabilities Act, 1990 (ADA) 42 U.S.C. S. 12101(b)(1).
85. Id. 42 U.S.C. S. 12101 (a)(8).
86. Id . 42 U.S.C. S. 12102 (2).

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1 90 JOURNAL OF THE INDIÁN LA W INSTITUTE [Vol. 45 : 2

disability law.87
The definition of "disability" under ADA is identical
definition of ""handicap" under the provisions of Rehabi
1973 (RA 1973). The ADA is intended to supplement not s
RA 1973. The RA 1973 affected government contractors
entities that are the beneficiaries of federal financial aid but
even to private employers. Thè Equal Employment O
Commission (EEOC) has defined "'major life activity
walking, seeing, hearing, speaking, breathing, learning, wor
for oneself and carrying out manual tasks. A ""substantia
means significant restriction in the ability to perform eith
jobs or a broad range of jobs in various classes as compa
average person having comparable training, skills and a
inability to perform a single particular job does not constitut
limitation in the major life activity of working.88 The EEO
have also defined physical or mental impairment.89
The ADA prohibits discrimination on the ground of d
employment, housing, public accommodation, education
communications, recreation, institutionalisation, health serv
etc. It requires all new public transport to be accessible to t
people and existing public rail system must be made acce
the course of time. Architectural barriers in existing build
removed and new construction projects must be designed an
accessible to individuals with disabilities.
Under title I of the ADA no employer may discriminate against a
qualified individual with a disability because of disability of such
individual.90 This anti-discrimination law applies to all aspects of

87. For a critique of some controversial decisions of the Supreme Court [Bragdon
v. Abbot, 524 U.S. 624 (1998); Sutton v. United Airlines, 1 19 S. Ct. 2139 (1999);
Albertsons Inc. v. Kirkingburg, 119 S. Ct. 2162 (1999); Murphy v. United Parcel
Service, 119 S. Ct. 2133 (1999)] see, Samuel R. Bagenstos, supra notę 2. See also,
Elizabeth A. Crawford, "The Court's Interpretation of ą Disability under the
Americans with Disabilities Act: Are They Keeping Our Promise To The Disabled?
35 (4) Hons L Rev 1207 (1998); Michelle T. Friedland, supra note 22 ADA leaves
many terms within the definition of "disability" ambiguous. It excludes several
conditions such as illegal drug users, homosexuals, bisexuals etc.
88. 29 CFRS .S 1630 2(i) (1998).
89. Physical or mental impairment means (1) any physical disorder or condition,
cosmetic disfigurements, or anatomic loss affecting one or more of the following
body systems, neurological, muscular-skeletal, special sense organs, respiratory,
including speech organs, cardiovascular, reproductive, digestive, genitourinary,
haemic' and lymphatic, skin and endocrine or (2) any mental or psychological disorder
such as mental retardation, organic brain syndrome, emotional or mental illness and
specific learning disabilities.

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2003] DISABILITY, DISCRIMINATION AND EQUALITY OF OPPORTUNITIES 191

employment as well as pre-employment hiring process.?1 The ADA is

binding on all employers with at least 15 employees. These employers
are required to provide reasonable accommodation for qualified
individuals with a disability unless they can show that it would impose
an undue hardship on that business.92 The term reasonable
accommodation may include (1) making existing facilities used by the
employees easily accessible to and useable by individuais with disabilities
and (2) job restructuring, part-time or modified work schedules, re-
assignment to a vacant position, acquisition or modification of equipment
or devices, appropriate adjustment or modification of examinations,
training materials or policies, the provision for qualified readers or
interpreters, and other similar accommodations for individuals with
disabilities.
The ADA incorporates the same powers, remedies and procedures
employed in title VII of the Civil Rights Act, 1964. An aggrieved
individual under ADA can file a charge with EEOC within 1 80 days of
the alleged discriminatory act. EEOC has no enforcement powers but
may allow the aggrieved individual "a right to sue". The aggrieved
individual can then file a suit against the employer in a federal district
court within 90 days from the issuance of the letter from EEOC.93
Remedies available under ADA include equitable relief requiring hire,
reinstatement, back pay, and seniority, cessation of unlawful employment
practice and such affirmative action as may be appropriate.94 A plaintiff
who proves intentional discrimination shall be entitled to compensatory
and punitive damages from 50,000 US dollars to 3,00,000 US dollars
depending upon the number of employees. These damages are in addition
to any back pay already awarded in conjunction with equitable relief.
Rasnic95 in his comparative study of the US and German systems
states that the ADA refers to number of employees (15 or more) as the
determining factor for coverage whereas the German law is governed by
the number of positions (16 or more). Thus Jinder German law the
employer has to fulfil the quota obligation even if out of 16 employees,
three are on leave. But under ADA if a business does not have requisite

90. 42 U.S.C. S. 121 12 (a).

91. Id. S. 121 12 "(b) (6).
92. Id. S. 121 12 (b) (5) (A). A qualified individual with a disability is one who
with or without reasonable accommodation can perform the essential function of the
employment position that such individual holds or desires id. S. 121 12 (8). If the
individual cannot perform such essential functions of the employment position then
in deciding what job functions are essential, ADA gives deference to the employer's
judgement.
93. Id. S. 2000 e-5 (f) (I) (1988).
94. Id. S. 2000 e-5 (g) (1991).
95. Supra note 76 at 325-330.

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192 JOURNAL OF THE INDIAN LAW INSTITUTE |Vol. 45 : 2

number of employees it would not come under ADA's

ADA, however, does not provide for job quota for the di
case with German law.
Secondly, ADA excludes persons with psychosis or personality
disorders but German law includes such persons under its protective
provisions. Users of illegal drugs are excluded in USA but would be
covered under German law. Rasnic suggests the German Bundestag to
remedy this flaw.
Thirdly, the purpose of ADA is to provide individualised treatment
to the disabled individuals and afford them equal opportunity by
reasonable accommodation. ADA burdens the employer with a less
productive worker. The German lawr-oiTthe other hand, simply requires
the hiring of 6 percent quota of disabled workers with no obligation of
the employer to reasonably accommodate the disabled workers.
Finally, under ADA the equitable relief is granted to the particular
plaintiff but in Germany the business would pay a penalty to the
government for non-compliance. The regard of the disabled as a class
by the German law and on an individual case-by-case basis by the US
law reveals the essential distinction between the two laws.

Canada

Section 15 of the Canadian Charter of Rights and Freedoms gr

constitutional protection to the people with disabilities.96 Disabili
one of the forbidden grounds of discrimination in section 15's eq
guarantee clause. The goal of the Canadian Constitution is to ac
right to full inclusion and participation of the people with disabi
a barrier- free. society. Discrimination is prohibited both on grou
mental and physical disability. The right to full participation inc
the right of a disabled individual to have his needs accommodated
necessary.97
The Canadian Human Rights Act, 1985 prescribes a number of
grounds for discrimination and prohibits certain discriminatory
practices.98 Disability is one of the prescribed grounds of
discrimination 99 Disability denotes "any previous or existing mental or
physical disability and includes disfigurement and previous or existing

96. The Canadian Charter of Rights and Freedoms came into force in April
1982.
97. Supra note 29 at 155-214. In Eaton v. Brant County Board oj Education
(1997) 142 DLR 385 (SCC) the Canadian Supreme Court has offered important
protection to the disabled children.
98. Human Rights Act, 1985. S.2
99. Id. S. 3(1).

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2003] DISABILITY. DISCRIMINATION AND EQUALITY OF OPPORTUNITIES 193

dependence on alcohol or a drug".100 The Act addresses both direct and

indirect discrimination in all aspects of life including employment.101 It
also describes discriminatory employment practices and policies.102 The
Canadian Human Rights Commission is charged with making general
recommendations to the employers to provide reasonable accommodation
to the people with disabilities.

Australia

The Disability Discrimination Act, 1992 seeks to eliminate disability-

based discrimination in all walks of life including employment. The Act
applies throughout Australia and to both public and private sector
employment and recognises the principle that people with disabilities
have the same fundamental rights as the rest of the community.103 The
Act prohibits both direct and indirect discrimination on the ground of
disability. The definition of disability includes past, present and even
imputed disability and disability, which may exist in future. HIV positive
individuals are also covered. Disability discrimination is prohibited in
recruitment, selection, employment offers, terms and conditions,
opportunities for promotion, transfer, training, dismissal, etc.104
However, the disabled person must be able to carry out the "inheren
requirement of the job".105

New Zealand

In New Zealand, the Human Rights Act, 1 993 aims to empow

people with disabilities by providing legal protection agains
discrimination on the ground of disability .The employment provisio
prohibit discrimination against disabled people in all aspects
employment process including hiring, training, compensation a
benefits. The Act also requires an employer reasonably to accommoda
a qualified individual with a disability to perform a job. Su
accommodation is not required if it would be unreasonable or th
individual would pose a direct threat to the health and safety of
individual or other employees in the workplace. Disability inclu
physical disability or impairment, physical illness, psychiatric illn
intellectual or psychological disability or impairment, any loss

100. Id. S.25.

101. Id. S 7.
102. Id. Ss.10,1 2&44.
103. Disability Discrimination Act, 1992. S.3 (b) and (c).
104. Id. S.I5 (1) and (2).
105. Id. S. 15 (4)(a).

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194 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 45 : 2

abnormality of psychological, physiological or anatomical

function, reliance on guide dog, wheelchair or other
etc.106 The Act prohibits both direct and indirect discrim
ground of disability. In New Zealand, the Employ
Workbridge Programme assists the employers for provid
accommodation to the disabled workers. Human Rights A
in open employment. Those disabled people who fail to qu
in open employment can seek job in labour market. For th
Persons Employment Protection Act, 1960 provides f
workshops where disabled people are employed.107

V The Indian disability law

The Constitution of India, like the German Constitu

contain any provision in the chapter on fundamental right
shall be disadvantaged on account of his or her disabil
person shall be subjected to disability discrimination.1
persons with disabilities are the most neglected and least
of the society. The root causes of disability in this count
ignorance, superstition, poor housing, lack of health care,
level and lack of political will. It occurred only in 1995 to
to pass a law entitled The Persons With Disabilities (Equal
Protection of Rights and Full Participation) Act, 1995, w
force on February 7, 1996.
The Persons with Disability Act simply requires th
government to "endeavour", "ensure" and "promote" e
people with disabilities.109 The government is also expec
"schemes" for the rehabilitation of the disabled people
the promised affirmative or equalizing measures are
economic capacity and development of the Indian state.
The Act provides that the state shall "ensure that ever

106. Human Rights Act, 1993. S.21.

107. See, Stephanie Cowdell, "Employment Law And People w
8(3) Te Tata Koi Auckland ÛL Rev 806 (1998).
108. Constitution of India, Seventh Schedule, List 11, Entry 9
heading "Relief of the Disabled and Unemployable." Article 41,
directive principle contains a reference to the 'public assi
disablement'.
109. In India, more than 60 million people suffer from physical, mental or other
kinds of disabilities out of which 80 percent live in villages.
110. The Persons with Disabilities (Equal opportunities, Protection ot Kignts
and Full Participation) Act, 1995. S.2 (i) defines disability, which means blindness,
low vision, leprosy cured, hearing impairment, locomotor disability, mental
retardation, and mental illness.

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'20031 DISABILITY , DISCRIMINATION AND EQUALITY OF OPPORTUNITIES 1 95

disability has access to free education in appropriate environment till he

attains the age of 18 years" and "promote setting of special schools" for
such children.111 The state shall also frame schemes "which shall make
provisions for transport facilities to children to enable them to attend
schools" and "for removal of architectural barriers from schools, colleges
and other institutions imparting vocational and professional training."1 12
Schemes shall be made to provide aids and appliances to disabled people
and also to allot land to them on concessional rates for house, setting up
business etc.1 13
There are numerous disability friendly schemes envisaged under the
Act which will be accomplished within the limits of economic capacity
and development of the state. For example, measures to be taken by the
government for prevention and early detection of disabilities,114 for
adaptation of rail compartments, buses, vessels, air crafts to make them
accessible to wheel chair users,115 for installation of auditory signals at
red lights on the roads for the visually handicapped people116 will be
subject to the economic capacity and development of the state. Similarly,
the ramps in public buildings, adaptation of toilets to wheelchair users,
braille symbols and auditory signals in elevators and lifts, ramps in
hospitals etc. shall be subject to the economic resources. The arguments
of economic constraints will always be available with the government
for denying reasonable accommodation to the people with disabilities.
Chapter V of the Act is titled 'Education' and it deals with all
aspects relating to the rights and privileges guaranteed to the persons
with disabilities. It starts from section 26 and ends at section 3 1 . Chapter
VI, the title of which is 'Employment' starts at section 32 and ends at
section 41. Section 39 falling in the chapter on 'Employment' provides:
"All Government educational institutions and other educational
institutions receiving aid from the government shall reserve not le
than three percent seats for persons with disabilities". In Kumari Rekh
Tycigi v. Vice Chancellor , University of Delhi ,117 the High Court
Delhi held that section 39 has no application for reservation of seats in
educational institution for persons with disabilities. The court reasoned
that since section 39 fell under chapter VI dealing with "employment"
the word "post" has to be used in place of seats. Thus, three percent of
posts can be reserved for these categories in educational institutio

111 .Id. S.26.

1 12. Id. S.30.
1 13. Id. Ss. 42-43.
1 14. Id. S.44.
115. Id. S. 66-68.
116. Id. S.45.
117. XC III DLT 813 (2001).

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1% JOURNAL OF THE INDIAN LAW INSTITUTE | Vol. 45 : 2

under section 39. In Smt. Binila Senapati v. State of Assam

High Court took a similar view. Here also the court ruled
cannot be claimed by a disabled person in matter of admis
college by stretching the language of section 39. T
according to the court, would have never intended to
institutions of scientific, technical and super technic
Vijai Kumar Agarwal v. State of Raj as than, x 19 the Rajas
took a contrary view. It held that under section 39,
disabilities were entitled to reservation of three percent
graduate medical courses. The court agreed that sectio
have been placed under chapter V but its effect could no
be nullified simply because instead of placing it und
Parliament had placed it under chapter VI of the Act. Th
Court in Deputy Secretary (Mart), Dept. of H & F Wel
Biswas 120 has also held that the state is bound to. provid
of the total seats in an educational institution for th
candidates. In the author's view the approach taken by
Calcutta High Courts is more convincing than the view t
and Gauhati High Courts. Merely because a chapte
'Employment'it cannot change the legislative intent. The t
cannot be used to restrict the plain meaning of an enactm
that the Supreme Court would soon resolve this controve
Section 33 provides121 :
Every government shall appoint in every establish
percentage of vacancies not less than three percent, f
or class of persons with disability of which one per
shall be reserved for persons suffering from (i) blindn
vision, (ii) hearing impairment (iii) locomotor disa
cerebral palsy in the post identified for each disabilit
The state within its economic capacity and developm
provide incentives to employers both in public and pr
"ensure that at least five percent of their workforce
persons with disabilities".122 Then, no promotion sha
person merely on the ground of disability- and no di
shall be removed or reduced in rank who acquired a d
his or her service.123 However, three percent reservation

1 18. AIR 2000 Gau. 1.

1 19. AIR 2001 Raj. 261.
120. AIR 2000 Cal. 202.
121. Supra note 1 10, S.4I.
122. Id. S.4I .

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20031 DISABILITY. DISCRIMINA TION AND EQUALITY OF OPPORTUNITIES 1 97

a microscopic minority among the .disabled persons from the well-to-do

families who have acquired prior accomplishment due to congenial home
environment. The reservation provision applies only to the identified
jobs that account for one-third of all categories of jobs. Thus, in actual
practice, three percent becomes one percent of the total vacancies. The
Act does not cover employees in private sector. The position is gloomy
even in educational field. As the disabled persons can hardly reach the
level of higher education, the reservation of three percent in government
and government aided educational institutions is of no avail.
Shockingly, the committees which have identified jobs for the three
categories of disabled - the visually impaired, hearing impaired and the
orthopaedically challenged have effectively excluded disabled persons
from more than 95 percent of jobs available in the government sector.
Despite the provisions enshrined in the Act for barrier free
environment in the buildings, lifts and other places, the architects and
builders have paid scant regard for making reasonable accommodation
for the disabled persons. The buildings, rail compartments, buses, vessels,
public toilets, are not accessible to wheelchair users. The road crossings,
zebra crossings etc. do not have audio-signals to inform the hearing and
visually impaired persons. The transport system is not at all disabled
friendly. A disabled person is still being considered to be an object of
pity and charity. Paucity of funds remains the standard answer for
inaction of the authorities in implementing the provisions of the Act.
The Indian disability law does not offer any hope of constituting a
shift from charity and welfarism to civil rights and social integration of
people with disabilities. The Act suffers from some major flaws. Firstly,
unlike German, American and United Kingdom's laws, it does not cover
employment in private sector. Secondly, there is no enforcement of the
rights of the disabled people through any disability tribunal or special
disability court to provide relief to the individuals against disability
discrimination. Thirdly, there is no provision in the Act for imposing
sanctions or fine for non-compliance of the provisions of the Act.
Fourthly, it is not mandatory for the government to remove structural
and environmental barriers for the integration of the disabled people.
Finally, the definition of disability is still based on medical approach
outrightly rejected by UNSR.

123. Id. S.47. In Pushkar Singh v. University of Delhi, XXXVI D LT 90(200 1 )

the High Court of Delhi issued directions to Delhi University to implement its 1994
decision to reserve 3% of teaching posts for blind and orthopaedically handicapped
candidates.

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1 98 JOURNAL OF THE INDIAN LA W INSTITUTU ' Vol. 45 2

VI Conclusion

The persons with disabilities are also human beings entitled to o

respect and concern. The effects of disability are felt directly in
medical and health dimensions and then indirectly in the spheres
education, transport, physical access and the built environment, socia
and welfare schemes, housing, health services, leisure activities a
social interaction and above all in the field of employment. The
disadvantages suffered by the people with disabilities are largely
product of prejudice, ignorance, neglect and sheer thoughtlessness.
The disabled persons need strong laws and strong remedies to achiev
the goal of their social integration. The domestic legislations addressi
the rights of the disabled people have to be measured against the yardst
of the UNSR. The UNSR enshrine the "principle that persons wi
disabilities must be empowered to exercise their human rights" a
recognize that the "equalization of opportunities for persons wi
disabilities is an essential contribution in the general and worldw
effort to mobilize human resources."124 The UNSR accord priority
employment rights of the disabled people. This is reflected in t
requirement that "laws and regulations in the employment field mus
not discriminate against persons with disabilities and must not r
obstacles to their employment" and that "any discriminatory provisio
against persons with disabilities must be eliminated."125 The rules als
address the problem of harassment and victimization of the employe
with disabilities.126 The duty to make reasonable accommodation
been recognised as an example of affirmative action.127
The rules also require state support for measures to design a
adapt work places and work premises and to provide auxiliary aids an
equipment.128 Most importantly, the UNSR place nation states "un
an obligation to enable persons with disabilities to exercise th
rights... on an equal basis with other citizens" and "national legislation
should provide for appropriate sanctions in case of violations of
principles of non- discrimination." ,2y The UNSR recognises a soc
model of disability, a concept that indicates "the close connectio
between limitation experienced by individuals with disabilities, the des
and structure of their environment and the attitude of gene
population."130 Disability embraces "a great number of function

124. Supra note 3, Rule 7, Introduction, para 15.

125. Id. Rule 7.1 and 15.2.
126. Id. Rule 15.2.
127. /¿.Rule 15.3.
128. Id. Rule 7.3.
129. Id. Rule 15.1 and 15.2.
130. /¿.Introduction, para 5.

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2003 1 DISABILITY. DISCRIMINATION AND EQUALITY OF OPPORTUNITIES 1 99

limitation" and individuals "may be disabled by physical, intellectual or

sensory impairment, medical conditions or mental illness (which may
be) permanent or transitory in nature."131 It is hoped that the domestic
legislations would meet the standards set by the UNSR in every respect
so that the rules really becomes international customary rules as envisaged
by the rules. The main objective of the nation states should be to remove
the obstacles to achieving equal opportunities for people with disabilities.

131. /</. Introduction, para 7.

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