Fundamental Rights Under the Constitution for People with Disabilities

What are your child’s fundamental rights under the Constitution?
Part III of the Constitution of India lays down the six fundamental rights guaranteed to all citizens, and in some cases, even to non-citizens in India. These are:

  1. The Right to Equality
    Article 14 says that the State shall not deny equality before the law or the equal protection of laws within the territory of India to any person.
    Article 15 prohibits discrimination between citizens on the grounds of religion, race, sex, or place of birth. It also provides special provisions for women, children and economic and socially backward classes.
    Article 16 ensures equality of opportunity in matters of public employment, and at the same time, creates the basis for reservation in employment for persons belonging to Scheduled Castes, Scheduled Tribes, and Backward classes.
    Article 17 prohibits the practice of untouchability in any form.
    Article 18 prohibits the State from conferring titles that are not military or academic upon citizens of India, and prohibits citizens of India from accepting foreign title.
  2. The Right to Freedom
    Article 19 grants all citizens the rights to

    1. the freedom of speech and expression
    2. assemble peacefully and without arms
    3. form associations or unions
    4. move freely throughout the territory of India
    5. practice any profession or to carry on any occupation, trade or business

These rights are subject to restrictions on several grounds including public order, morality, contempt of Court, threats to the sovereignty of India, and protection of the rights of scheduled tribes.

Article 20 pertains to three rights guaranteed to a person accused of committing an offence:

  1. A person can be only prosecuted for an act that was an offence on the date on which he/she committed the act. Similarly, he/she can only face the punishment that was allotted to the crime on the day he/she committed the offence even if it was increased subsequently
  2. No person shall be prosecuted and punished for the same offence more than once
  3. No person accused of any offence shall be compelled to be a witness against himself/herself

Article 21 bestows the right to life and personal liberty, and that no person shall be deprived of his/her life or personal liberty except according to procedure established by law.
Article 21A mandates that the State shall provide free and compulsory education to all children of the age of 6 to 14 years.
Article 22 lays down the rights of persons arrested and placed under preventive detention in certain circumstances.

3. The Right Against Exploitation
Article 23 prohibits human trafficking and bonded labour
Article 24 prohibits child labour in factories, mines and hazardous industries

4. The Right to Freedom of Religion
Article 25 grants freedom of conscience to all persons to practice the religion of their choice, subject to health, public order and morality considerations.
Article 26 grants the right to religious denominations to manage their own religious affairs, acquire property etc.
Article 27 protects the secular ideal of the country by prohibiting the collection of taxes to be used towards promotion of any particular religion.
Article 28 regulates mandatory religious instruction imparted in schools which are run by the State or receiving State funds.

5. Cultural and Educational Rights
Article 29 gives minorities the right to conserve a distinct language, script or culture. Towards this, Article 30 protects the right of minorities to establish and administer educational institutions.

6. The Right to Constitutional Remedies
In case there is a violation of any of these Rights by the State, either by any act or omission by an authority or by passing a law which nullifies these Rights, one can move the Supreme Court under Article 32 for enforcement of these Rights and Article 226 grants the High Court similar jurisdiction.

Non-citizens of India do not have all the above rights but they do have the rights to equal recognition before the law, and the right to life and personal liberty.

Are you protected against violations of these rights by any person or entity?
Article 12 of the Constitution defines State for the purpose of this Part of the Constitution. You are protected against violation from the government including local authorities, government run corporations and companies, schools receiving aid from the government or local authorities etc.

Where does disability figure in the Constitution of India?
Since India has a federal structure i.e. a Central Government in New Delhi and State Governments in every state, there is a division of powers between the Centre and the State to ensure that all subjects get covered adequately in terms of regulation and budgetary allocations.
Subjects are divided into three lists in Schedule VII of the Constitution of India: The Central List, The State List, and the Concurrent List (which is the list where both the Centre and State have powers to regulate).
List II, the State List, lists “Relief of the disabled and unemployable.” at entry no. 9.
List III, the Concurrent List, lists “Lunacy and mental deficiency, including places for the reception or treatment of lunatics and mental deficients.” at entry no. 16.

Though these categories are very disheartening, they are taken to now mean issues relating to persons with disabilities are essentially State subjects – including laws, policies, programmes, schemes and expenditure. On the other hand, issues relating to establishing facilities for persons with learning and psycho-social disabilities can be tackled by both the Centre and the State.

What is the Centre’s Role In Disability Laws?
The Union List at entries 12 to 14 includes exclusive legislative powers with regard to the United Nations Organisation, participation in international bodies and implementation of decisions made at those bodies, as well as implementation of treaties, agreements and conventions.

All of the disability legislation in India were borne out of decisions taken at International forums, and hence the National legislations exist. However, when it comes to implementation of the laws, they entirely depend on the State – which is why, for instance, States have such vast differences in the amount of disability pension offered to persons with disabilities.

So since disability isn’t a protected category under the right to equality, does that mean persons with disabilities have no rights?
Persons with disabilities are persons first – which means that they, like all persons, have the right under Article 14 to equal recognition before the law and equal protection of laws. While it is true that disability is not a ‘protected category’ among the grounds of discrimination under Article 15 and 16, they are equally entitled to the freedoms guaranteed under the Constitution, as well as the right to life and personal liberty under Article 21.

The right to life under Article 21 is quite vast and is not just about being able to live as opposed to being left to die. Many Supreme Court judgments have expanded the right to encompass the quality of life, including the right to dignity.

The fundamental rights have not been tested as much as they should with regard to what they mean for persons with disabilities – what does freedom of expression mean for an AAC user? Is the right to rehabilitation a necessary part of the right to life? Should the Indian Sign language community also be recognized as a linguistic minority under Article 29? These are questions which require to be explored in the context of disability and it is hoped that they will be, soon.

What to do if your child’s rights are breached?
There are rights to constitutional remedies before the High Court and the Supreme Court in case the State is either actively breaching your rights, or is failing to implement them. These are commonly sought in the form of ‘writs’. There are five writs which one can requisition:

  1. Habeas Corpus (‘You may have the body’): This is a writ to seek the release of a person detained illegally by the State
  2. Mandamus (‘We Command’): When an authority refuses to perform an act it is mandated to do, by law, or court order, for instance, the Court can command it to do so
  3. Certiorari (‘To be certified’): Where a lower court or forum (judicial or quasi-judicial i.e. a forum which has some relation to the dispensing of justice, but is not a Court) has passed an incorrect order outside its jurisdiction, the Court can quash that decision
  4. Prohibition: Similar to Certiorari, except in this case, the proceedings are yet to be completed, so the Court can prohibit the proceedings on the ground of the lower court or forum not having jurisdiction
  5. Quo warranto (‘By what Authority’): The Court can restrain a person from holding an office to which he/she was not entitled

In the context of enforcing disability and other social welfare laws, a writ of Mandamus is the most commonly sought writ. However, with the number of bodies which are constituted to regulate issues around disability and education, it is not uncommon to find challenges to appointments and jurisdiction.