Socio-Legal Inclusion of Persons with Disabilities : A Substantive Equality Approach

Socio-Legal Inclusion of Persons with Disabilities : A Substantive Equality Approach Sneha Kumari* Disabilities are a matter of perception, because when a person has some disabilities at a time at the same time, he has the ability to work perfectly like a normal person. But in our society, it is an existing stereotype that a person with disability is someone who does not have the ability to do such a thing with his disability and he is a worthless person on earth. These things exist when policy, legal, and judicial developments have been transpiring to uplift the status of persons with disabilities who have special power to do a job regardless of their disabilities. These create exclusion and discrimination for persons with disabilities. Therefore, the present study tried to cover the socio-legal inclusion of persons with disabilities. It sponsors the conceptual and legal framework and comprehensively analyses statutory provisions and judicial interpretation through judgements. This study scrutinizes the issues related to social exclusion and discrimination on the basis of one’s disabilities. It examines how substantive equality under Articles 14, 15, & 16 of the Constitution of India and RPwD Act protects equal rights, dignity, and freedom, and gives equal opportunity to persons with disabilities. Further, It has seen the sights of substantive equality in socio-legal inclusion of a person with disabilities. It can help to make changes that could improve things, such as opportunities in access to employment, education, healthcare, redistribution, recognition, participation or representation, access to justice, and others. Lastly, this study encourages how substantive equality fosters equal and full participation by suppressing discrimination and exclusion. This study examines socio-legal inclusion through the principle of substantive equality. KEYWORDS: Socio-Legal Inclusion, Persons with Disabilities, Substantive Equality, Discrimination, Perception of Society. I. INTRODUCTION : “Disability is a matter of perception. If you can do just one thing well, you needed by someone[i].” By Martina Navratilova When we look into the above quote in the context of the social inclusion of the person with disabilities, it is said by Martina Navratilova in relation to disability that how one perceives others’ disability, and it is nothing but a matter of perception. In society, it is an existing stereotype that a person with disability is who does not have the ability to do such a thing with his disability. That means our society has a wrong perception and society perceives that a person with disability is someone who is poor, helpless and does not have any productive capability. Awfully, our society has dominant perception of such types of stereotypes. Such stereotypes are the starting point for discrimination and elimination of persons with disabilities. But in due course if they have a disability, although in the same time they have another ability to do something and work perfectly in comparison to normal people. Fortunately, the provisions of the Constitution and the Rights of Persons with Disabilities Act, 2016, together protect the rights of persons with disabilities and give equal opportunities. But society totally neglects the abilities of a person with disabilities, even they have ability to do something, they are discriminated and eliminated in society, and discriminated in accessing justice in the complex administrative and judicial system. While we go through the Constitutional provisions, the framers of the Constitution of India implanted equal rights and equal opportunity provisions to enable real participation in society for every citizen, including the inclusion of the persons with disabilities. Articles 14, 15 & 16 of the Constitution ensure substantive equality to persons with disabilities who are discriminated on the basis of disabilities, such as long-term physical, mental, intellectual, or sensory impairment[ii], which are the interferences to equal and real participation in society and in the democratic institutions compared with normal people. In regard to consideration of all obstructions and hinderances of a person with disabilities in society or the system, a new approach can be adopted to prevent the root cause of all these obstructions and hindrances so that the real and equal participation of disabled persons can be achieved. Here, the new attempt by which the root cause can be prevented and can be achieved real equality that is known as a substantive equality principle. Substantive equality affirms the principle which sponsors real equal opportunity for the disadvantaged groups of society, and it does not propose the formal principle of equality. It deals with the main cause of inequality predominant in society, such as disparity in the name of gender, caste, religion, race or place of birth, etc., including inequality based on disabilities of a person. Disability produces obstacles and hindrances in the development of persons with disabilities, even though they have special abilities to work with normal people. The principle of constitutionalism guarantees a substantive approach for the development of persons with disabilities under Articles 14, 15 & 16, but it is failing to protect the rights of persons with disabilities. Despite the constitutional and other legal provisions, persons with disabilities face historically systemic barriers to opportunity in access to employment, education, healthcare, redistribution, recognition, participation or representation, access to justice, and others, and the principle of Indian Constitutionalism is failing to provide equal opportunity and access to justice. This study aims to explore why the Constitutional and statutory mechanisms and policies of the government are failing to protect the rights of persons with disabilities, and the need for effective implementation of a substantive approach to equality. I.I. Scope Of The Study : This study primarily sponsors the socio-legal inclusion of a person with disabilities and how substantive equality approach can be an effective tool for inclusion. It sponsors the conceptual and legal framework and comprehensively analyses statutory provisions and judicial interpretation through judgements. It can assist in delving into what is missing in the provisions of the Constitution and RPwD Act. It can help to make changes that could improve things, such as opportunities in access to employment, education, healthcare, redistribution, recognition, participation or representation, access to justice, and others. I.II. Methodology : This study works towards the implementation of a doctrinal approach to understand how a substantive equality approach under Articles 14, 15, & 16 of the Constitution of India protects equal rights, dignity, and freedom, and gives equal opportunity to persons with disabilities. Further, this study relies on secondary sources, such as the Constitutional provisions, statutory enactments, judgements of the Supreme Court and High Courts, existing articles of scholars, reports and policies of the government, and international statutory instruments to understand the conceptual and legal framework in the background of persons with disabilities. I.III. Objectives Of The Study : To recognise how substantive equality under Articles 14, 15, & 16 of the Constitution of India and RPwD Act protects equal rights, dignity, and freedom, and gives equal opportunity to persons with disabilities. To see the sights of substantive equality in socio-legal inclusion of a person with disabilities. II. SOCIAL EXCLUSION AND DISCRIMINATION: THE ISSUE STILL PRESISTS : In this era of policy, legal, and judicial developments which have been transpiring to uplift the status of persons with disabilities who have special power to do a job regardless of their disabilities. In fact, when his disabilities create hindrances for a particular job, although at the same time he has special power to do another or a particular job. But problem of our society is that the wrong perception for disabled persons, and society perceives a person with disabilities is facing more challenges in doing a job in comparison to normal person and has no capabilities to do job like a normal person while he has special powers. Here, total ignorance of the special power of a person with disabilities and the result of this is that a person with disabilities is discriminated on the basis of his disabilities and excluded from the group of normal persons for a particular purpose. These things undermine the rights of a person with disabilities and curtail equal participation in the democratic society. This exclusion is violation of the provisions of fundamental rights under the Constitution of India and the RPwD Act. Eventhough these big changes occurred but there has not been seen in the improventments in the status of persons with disabilities. It is clarified by the Ministry of Statistics and Programme Implementation (MoSPI), the population of disabled persons is around 2.68 crores which constituting 2.21 percentage of total population in India[iii]. This is the registered data of the disabled persons. Many disabled persons are not registered themselves due to fear of social exclusion, stereotypes and stigma. Result of it, many persons with disabilities are not counted in the record of government and they are excluded from the system. And also, they are underrepresented in participation in the system and remain marginalised without taking proper assistance from the government. In this case they would not get the advantage of the opportunities which are given by the government to the persons with disabilities. In the case of Anmol v Union of India[iv] the Supreme Court said that it should be mandatory to give equal opportuniti