SOME KEYNOTES ADDRESSING THE INTERNATIONAL CONVENTIONS ON

THE RIGHTS OF PERSONS WITH DISABILITIES

“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.
Persons with disabilities including 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 other”

Overall, the CRPD consists of a 25-paragraph preamble and 50 articles that address the
obligations of state parties, enumerate the rights of persons with disabilities, and outline the
implementation and monitoring processes of the Convention.2 The preamble focuses on (e)
recognizing that disability is an evolving concept, (g) the importance of disability issues, and
(w) that individuals have a responsibility to ensure others’ rights are promoted and recognized.

In addition to the CRPD, an Optional Protocol was developed to supplement the Convention’s
basic implementation mechanisms.3 This Optional Protocol empowers individuals to bring
complaints against states that have ratified the Convention to the UN Committee on the Rights
of Persons with Disabilities, and for the Committee to follow up on potential violations.4

1
This Convention is passed by the United Nations General Assembly (UNGA) in its 61st session on Dec 06, 2006.
In 2006, 82 countries signed and ratified this convention and as of March 2015, 153 countries signed and ratified
the convention.
2
Convention on the Rights of Persons with Disabilities, 61st session, UNGA, Dec 06, 2006.
3
H.A. Kaiser, Law and Psychiatry in the age of the Convention on the Rights of Persons with Disabilities, Law
and mental disorder: a comprehensive and practical approach, Toronto: Irwin Law, 2013.
4
C Phillips, S Estey, M Ennis, The convention: on paper and in practice, Forced Migr Rev 35, 23-4, 2010.
The CRPD is legally binding. It is also argued that the CRPD does not create new rights but
clarifies the application of the existing human rights provisions in the context of disability.5
Upon ratifying the document, the States Parties are obliged to amend their legislation and to
implement disability-related policies in compliance with the provisions of the CRPD and
ratifying the Optional Protocol brings about the possibility for individual or collective
complaints on issues covered by the CRPD.

Implementation of the CRPD, 2006 in India

India has a strong Constitution that guarantees fundamental rights that are justiciable to all its
citizens. Over the years, Constitutional jurisprudence has been progressive and in many
landmark judgments, upholding human right of all citizens, including persons with
disabilities.6 The Directive Principles elaborate on social and economic obligations of the state
for citizens to lead a good life. These include guidelines for the formulation of law and policies,
programmes and schemes.7

India was early to ratify the CRPD in 2007 without any reservation. The country, however, has
not signed the Optional Protocol as reported in the State report. Subsequently, the country has
formulated the Rights of Persons with Disabilities Act (RPDA) 2016 and the Mental Health
Care Act (MHCA) 2017 with the objective to implement CRPD in India.

Harmonizing other laws and policies to the CRPD has lagged behind. That significantly impacts
the full enjoyment of rights by persons with disabilities. All personal laws, contract laws,
provisions concerning holding of offices and positions across laws including laws specific to
persons with disabilities and the people’s representation Act restricts equal enjoyment of all
human rights and fundamental freedoms by all persons with disabilities on the grounds of legal
incapacity, unsoundness of mind, infirmity, physical and sensory difficulties.8

5
O.M. Arnardottir, G. Quinn, the UN Convention on the rights of persons with disabilities: European and
Scandinavian perspectives, p. xvii, EFC 2010, p. 22-3.
6
Deaf Employees Welfare Association v Union of India (2014) 3 SCC 173, Union of India v National Federation
of the Blinds (2013) 2 SCC 772, Government of India v Ravi Prakash Gupta (2010) 7 SCC 626.
7
Directive Principles of State Policy, Part IV (Article 36-51), Indian Constitution, 1950.
8
The CRPD Alternate Report for India, in response to the initial report submitted by the GoI, National CRPD
Coalition-India, towards parallel report, Feb 11, 2019. Reference to be made on Articles 12, 13, 14, 18, 23, 26 &
29 of the Report. Available at: [Link]
[Link]
 INTERNATIONAL LABOUR ORGANISATION (ILO) CONTRIBUTION IN
PROMOTING CRPD AND ITS IMPLEMENTATION

The CRPD is ratified by 177 countries, including most of ILO Member states, the CRPD
provides the global framework on the rights of persons with disabilities, including provisions
on the right to work and social protection. This year’s Conference of States Parties, which took
place from 12 to 14 June 2018, highlighted the need to “Leave no one behind” in the
implementation of the 2030 Agenda for Sustainable Development and its Sustainable
Development Goals (SDGs).

The ILO statement9 at the conference underlined the importance of disaggregation of labour
market information by disability status, using the questions of the Washington Group on
Disability Statistics.10 A disaggregation by disability status will allow countries to appropriately
measure their progress in achieving the SDGs, including for SDG 8 on decent work. Disability-
disaggregated data will be also one of the key issues discussed at the Global Disability
Summit on 24 July 2018, hosted by the UK Department for International Development, the
International Disability Alliance and the Government of Kenya.

In the area of social protection, the ILO informed the conference that, together with more than
15 partner organizations, the ILO has endorsed a joint statement on how to make social
protection systems inclusive of persons with disabilities.11 The ILO, in collaboration with the
International Disability Alliance and other key partners, will increase its efforts to provide
technical advice on how to design and implement social protection systems that provide an
adequate standard of living for persons with disabilities as well as benefits and services that are
designed to support the labour market participation of persons with disabilities.12

9
Promoting the right to decent work of persons with disabilities through Sustainable Development Goals (SDGs),
11th Conference of States Parties to the CRPD, International Labour Organisation (ILO), June 11-14, 2018.
10
Labour market Statistics on persons with disabilities, International Labour Organisation (ILO), Aug 2015. Also
available at: [Link]
11
Technical Meeting on Inclusive Social Protection for Persons with Disabilities, International Labour Office &
International Disability Alliance, Geneva, Jan 22-23, 2015. Also available at:
[Link]
gender/documents/meetingdocument/wcms_566528.pdf
12
Ibid.
 SOME KEYNOTES ADDRESSING THE FEATURES OF THE RIGHTS OF
PERSONS WITH DISABILITIES ACT

The Constitution of India under Chapter III guarantees fundamental human rights to all persons.
The right to equality is enshrined in Article 14 of the Constitution and recognizes that all
persons are equal before the law. Persons with disabilities are entitled to this guarantee to not
be discriminated against in any manner and to be treated equally, which includes the
requirement for special treatment where required. Similarly, Article 15 and 16 prohibits
discrimination on the grounds of "religion, race, caste, sex, place of birth or any of them and
guarantees equal opportunity in matters of public employment. Article 16 (3) & (4) provides
that the State can make provision for the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State, is not adequately represented in
the services. It is on the basis of Article 16, that the guarantees to reservation and equal
opportunity in public employment are made under the PWD Act. The right to equality has been
upheld for persons with disabilities not to be discriminated and to be provided equal opportunity
in recruitment to the civil services.13 Article 21 of the Constitution guarantees the right to life
to all persons, which has been interpreted by the Supreme Court to include the right to live with
dignity14, the right to livelihood,15 and the right to education.16 Article 21A guarantees the right
to free and compulsory education for all children between the ages of 6-14 years.

 To set the context, Rights of Persons with Disabilities (hereinafter referred as the ‘RPWD’)
Act, 2016, first introduced in the Rajya Sabha as “The Rights of Persons with Disabilities Bill,
2016”. After it passed by the Rajya Sabha, on 16th December, 2016, the Lok Sabha passed the
bill which later came into effect and replaced the existed PwD, Act, 1995.
 In the present Act, Disability has been defined based on an evolving and dynamic concept.17
 The types of disabilities have been increased from existing 7 to 21.
 The Central Government will have the power to add more types of disabilities.18
 With respect to education, every child with benchmark disability will get free education from
6 to 18 years of the age.19

13
NFB v UPSC (1993) 2 SCC 411, Amita v Union of India (2005) 13 SCC 721
14
Francis Coralie Mullin v Union Territory of India (1981) 1 SCC 608
15
Olga Tellis and Ors. v Bambay Municipal Corporation and Ors. (1985) 3 SCC 545
16
Unnikrishnan J.P. and Ors. v State of Andhra Pradesh and Ors. (1993) 1 SCC 645
17
The Preamble, the Rights of Persons with Disabilities Act, 2016.
18
Section 100, the Rights of Persons with Disabilities Act, 2016.
19
Section 17 (g), Specific measures to promote and facilitate inclusive education, the Rights of Persons with
Disabilities Act, 2016.
 When it comes to the reservation, Reservation to the differently abled person in the education
and government jobs has been increased from 3% to 4%.20
 An important distinguishing feature of the 2016 Act is that it provides for time limits within
which existing infrastructure and premises should be made disabled friendly. The obligations
laid down in the Act are mandatory for both government and private establishments.21
 Special Courts will be designated in each district to handle cases concerning violation of rights
of PwDs.22
 Additional benefits such as reservation in higher education, government jobs, reservation in
allocation of land, poverty alleviation schemes etc. have been provided for persons with
benchmark disabilities and those with high support needs.
 The new RPWD Act, 2016 empowers the right to equality, preservation of dignity and personal
liberty which was absent in the PwD Act, 1995.23
 The 1995 Act’s focus on social security was limited to financial assistance and insurance
coverage-community participation. The recreational approaches were ignored.24
 Gender specific clauses make the new Act gender sensitive, a significant development over the
1995 Act.25

Implementation of the provisions of the RPWD Act, 2016 in Practicality

A study done by Disability Rights India Foundation (DRIF), which was done across the 24
states regarding the implementation of the provisions of the RPWD Act, 201626, shows that
Majority of the States (58.3%) have not notified the State Rules, in spite of the Act mandating
that it should be notified within six months of the enforcement of the Act. Only 10 out of 24
states have notified the State Rules. A few States have mentioned that they have drafted the
Rules but haven’t notified them. As per Section 101 (1) of the Act, State Governments are
required to notify the State Rules within six months from the date of commencement of this
Act. Notifying State Rules is the first the step towards implementing the Act in the State. The
Rules provide the manner in which the committees/boards have to be constituted, the
procedures for transaction of business in the meetings of the Boards/Committees, the salaries

20
Section 34, the Rights of Persons with Disabilities Act, 2016.
21
Section 45, Time limit for making existing infrastructure and premises accessible and action for that purpose,
the Rights of Persons with Disabilities Act, 2016.
22
Chapter VIII, sections 84 & 85, the Rights of Persons with Disabilities Act, 2016.
23
Section 3, the Rights of Persons with Disabilities Act, 2016.
24
Section 24, the Rights of Persons with Disabilities Act, 2016.
25
Section 4, the Rights of Persons with Disabilities Act, 2016.
26
Two Years of the RPWD Act, 2016- Status of implementation in the States & UTs of India, DRIF, NCPEDP &
NCRPD, Dec 03, 2018.
and allowances of Commissioners and staff and other members and several other aspects. 50%
of the States and UTs have not constituted State Advisory Boards (SAB) and 83.3% have not
constituted the District Committees as mandated by the Act.27

It is seen that only 10 States (41.7%) have notified Special Courts in the Districts for the purpose
of trying offences under the Act and only 3 States have appointed Special Public
Prosecutors/advocate. As per Section 84 of the Act, for the purpose of providing speedy trial,
the State Government shall, with the concurrence of the Chief Justice of the High Court, by
notification, specify for each district, a Court of Session to be a Special Court to try the offences
under this Act.

As per Section 85, for every Special Court, the State Government should specify a Public
Prosecutor or appoint an advocate who has been in practice as an advocate for not less than
seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court.
The Special Public Prosecutor is entitled to receive fees or remuneration as prescribed by the
State Government. Every District having a Special Court and a Special Public Prosecutor is a
significant provision in The RPWD Act as it makes it easier for people to access the justice
system.

Where the reservation in the government and public sector jobs are concerned the Act provides
for 4% reservation28. The earlier Act (Disability Act 1995) only provided for 3% reservation. It
was restricted to people with locomotor disability, visual disability and hearing disability. The
1% increase in the present Act is for people with intellectual disabilities, mental illness, multiple
disabilities, autism and specific learning disabilities. As of 2018, only 11 states have issued
notifications for increasing the reservation quota from 3% to 4%. In the absence of such
notifications, establishments may not adhere to the new provision or interpret in their own way,
like it happened with State Bank of India (SBI) when they advertised for recruitment for
probationary officers. They increased the percentage, but they did not include reservation for
people with learning disabilities, mental illness, multiple disabilities, etc. as per the provision
of the Act.29

27
Section 66, the Rights of Persons with Disabilities Act, 2016.
28
Supra note 20.
29
Announcement for the recruitment for probationary officers by State Bank of India for 2018-19, (Advertisement
No.: CRPD/ PO/ 2018-19/ 01)