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Published : January 08, 2016 | Author : Nidhi Soni
Category : Constitutional Law | Total Views : 894 | Rating :

Nidhi Soni
Mrs. Nidhi Soni Research Scholar at Dr Shakuntala Misra National Rehabilitation University, Lucknow. Mb. no- 9984270906

Constitutional Disability-way forward?

Constitution of India provides the supreme authority to the government to provide a legal framework for smooth functioning of India. It is claimed to be a working Constitution for a vibrant democracy .Over a long period, it has stood the test of time and proved itself on various footings. Yet the Constitution is devoid of a commission for the disabled.

As per the 2011 Census, the number of disabled in India is 2.68 crore, which is 2.21 per cent of the population. This is marginally higher than 2001, when the disabled population was 2.19 crore, and the disabled made up 2.13 per cent of the population, which means a huge percentage of workforce. In spite of the increased number of categories, many activists and NGO, s claims that the number of disabled is underreported. The United Nations believes that the total number of disabled in India stands at five to six per cent of the total population, which is almost three times the government’s estimate. This shows that the system is erroneous. Even many years after independence, India is unable to curtail the numbers of disabled in the country .The main reason behind these disturbing numbers of cases is lack of adequate constitutional provisions and inadequate civic amenities.

Adequate Constitutional support will provide innumerable opportunities for them to come out with their true potentials and guide the nation towards new goals and objectives. The Millennium Development Goals will thus not look a distant possibility rather a clear reality.

Preamble and Disability:

The preamble sets forth the concept of justice-social, economic and political. The first priority is given to the social justice .Disability hits at this basic concept or promise of social justice which is provided in the preamble, the soul of the constitution. Providing opportune opportunity to the disabled section of the society to perform well will go on to secure the social justice of this section of the society. Absence of adequate infrastructure which is disabled friendly will actually supplement the concept of reservation provided to the disabled in higher education and public employment.
The preamble also promises to provide fraternity assuring the dignity of the individual. This dignity of a differently abled individual is hurt or violated whenever he/she has to face infrastructure hurdles in public building, offices, public conveniences ,etc. this hurts and violates the concept of fraternity, as promised by the preamble.

Disability vis-à-vis Fundamental Rights:

Fundamental Rights form the backbone of a progressive citizenry. Having the character of providing the true fabric of a secured citizenry, the Fundamental Rights are devoid of a clear provision regarding disabled or differently abled people. Even positive discrimination in terms of providing reservation does not address the problems. Reservation to disabled person is only tokenism, but what about providing them basic amenities in dealing with day to day challenges?

Despite being provided with reservation, the daily struggle which a disabled person has to go through breaks/shatters the morale/confidence of such persons. Being disabled creates a highly negative impact on the minds of such person who face direct physical, mental challenges through the daily course of their life. According to the eminent economist Amartya Sen, “people with disabilities require more resources than non-disabled people, and he termed it as “conversion handicap” because of higher costs.”

Article 21 which encompasses the aspect of right to life is a general provision. While any specific constitutional provision(s) for disabled person is missing from the ambit of fundamental rights.

Disability vis-à-vis DPSP

The Directive Principles of State Policy enshrined within our constitution makes it compulsory for the executive to follow those principles in the smooth running of the state affairs. Making disabled friendly buildings, regulating the traffic, and providing separate lanes for the disabled people will certainly help address the issues.

Article 38 of the constitution states that the state shall constantly endeavor and strive to secure social order and justice –social, economic and political. This provision is an extension of the promises made in the preamble to the constitution. By not providing ways and means of securing social justice towards the disabled people, the state would be neglecting one of the main provisions or principles which are fundamental in the governance of the country.

Article 41 provides that the state shall take steps to within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Apart from providing reservation in higher education and public employment, it is also a fundamental principle to provide public assistance to disabled .Adequate physical infrastructure in government buildings, public transport, etc. is the need of the hour.

Article 47 of DPSP provides the concept of improving public health. The welfare of the disabled leads to the safeguarding of this provision by the state.15

Inspite the fact that the constitution of India provides for so many provisions for the welfare of the disabled section of the society, yet even after so many years of independence, there is no separate commission dedicated for the disabled.

It is the humble recommendation of the researcher, that a separate commission for disabled or differently abled be established .This shall look into the needs of such class of people and regularly mandate the government to take steps in the appropriate direction. The absence of such commission and improper implementation of its constitutional safeguards for disabled makes Constitutional disability an overarching reality. Apart from commission government should also focus on outcome budget or evaluation budget. Make social auditing mandatory at every level. Overcoming the odds is the real challenge and greatness is the reward of overcoming those challenges.


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