The release of manifestos during election season rarely occasions a discussion on the rights of persons with disabilities. However, the promise of the Congress and CPI(M) to include disability as a specific ground for discrimination under Article 15 (and Article 16) of the Constitution has sparked optimism within the disability rights movement. Currently, the provision prohibits discrimination on grounds of “religion, race, caste, sex, place of birth, or any of them” and does not expressly include disability.
Amendment as demand
A constitutional amendment of Article 15 to address this glaring omission has been a long-standing demand of the disability rights movement. In 2019, this demand was reaffirmed by the UN Committee on the Rights of Persons with Disabilities in its concluding observations while reviewing India’s compliance with the UN Convention on the Rights of Persons with Disabilities (UNCRPD). To this date, no steps have been taken in this direction.
Ever since the Constituent Assembly debates, the discourse on disability rights within the constitutional scheme has continued to overlook the concerns of the disability rights movement. However, the disability rights movement in India and across the globe has made significant strides since then. The adoption of the UNCRPD in 2006 marked a significant step, recognising that persons with disabilities are entitled to enjoy their rights “on an equal basis with others”. India ratified the Convention in 2007 and enacted the Rights of Persons with Disabilities Act in 2016. While no amendment was made to Article 15 in response to the ratification, Section 3 of the Act provided that no person with disabilities shall be discriminated against on grounds of disability. However, the law only extends a restricted notion of equality to persons with disabilities. This provision also says that if the act or omission is a proportionate way of achieving a ‘legitimate aim’, the same shall not violate the provisions of this law. As the phrase ‘legitimate aim’ is not defined, it leaves wide scope for legislative, administrative, and private action to be classified as a “legitimate aim”.
There can be an argument that the current gap can also be rectified by amending the above Act. However, even after such an amendment, the right against discrimination guaranteed to persons with disability would remain a statutory right as opposed to a constitutional right. Considering the higher normative value of a constitutional right, the amendment would not only signify a deeper commitment but would also provide a stronger remedy in the form of a fundamental right against discriminatory acts and omissions.
The Constitution of India holds deep philosophical importance in our country’s social, political, and legal structure, marking a departure from colonial rule to adopting a democratic order based on principles of liberty, equality, and fraternity. It restructured the relationship between individuals and the state by guaranteeing everyone fundamental rights against the state, and the relationship among individuals by guaranteeing equality and the right against non-discrimination. Article 15 prohibits discrimination based on certain grounds. Through these grounds, it identifies the social hierarchies amongst its citizens and how politics of exclusion can be remedied. The inclusion of disability under Article 15 will undo this historical injustice.
In 2018, the Supreme Court in Navtej Singh Johar vs Union of India extended the protection of Article 15 on grounds of ‘sexual orientation’ after recognising the same as ‘analogous’ to the other grounds mentioned under Article 15. This decision opened the possibility that the judiciary may extend the same protection on grounds of disability by treating it as analogous grounds. While treating disability as an analogous ground may extend the protection of Article 15 to persons with disabilities, it cannot be considered an alternative to a constitutional amendment that specifically includes disability as a ground under Article 15.
The analogous grounds approach poses a burden on the litigator to have the same recognised through the process of constitutional litigation and ignores the systemic marginalisation faced by persons with disabilities. It should be the responsibility of the government and not that of the judiciary to recognise this omission.
The possibility of political will
The promises made in manifestos of the Congress and the CPI(M) have signalled an era where there is a clear political will to act on the demands of the disability rights movement. Disability rights organisations in India deserve due credit for their consistent and aggressive advocacy behind this demand.
In February 2024, the National Centre for Promotion of Employment for Disabled People (NCPEDP) and the National Disability Network (NDN) launched a first-of-its-kind initiative by releasing a manifesto for and by persons with disabilities, which urged the political parties to prioritise and address the issues of the disabled community.
It is only hoped that other parties follow the example. Electoral promises are rarely followed in India’s electoral democracy. But despite that, these promises give hope that the movement will no longer face political apathy with regard to this demand and that India is ready to shift the Overton window on this topic.
Meghna Sharma is an Assistant Professor at the School of Law, RV University, Bengaluru
