Over the last two decades, there has been a paradigm shift in the way the society views persons with disabilities. This difference in approach i.e. viewing disability not as an individual pathology but as a social construct not only finds expression in the legal instruments that have been enacted for their social, economic and educational advancement, but also, more importantly, in the initiatives that governments and private organizations – schools, universities, employers – have taken for allowing them to compete on a footing of equality with their non-disabled counterparts. In most countries, persons with disabilities are no longer treated as mere objects of charity and sympathy; instead, they are viewed as equal members of society who may be different, but are not any less capable or competent than their counterparts. Several examples can be cited to illustrate this point – from T. V. Raman, an Indian-born blind computer scientist who is currently viewed as one of the most influential people at Google to Stevie Wonder, one of the most famous musicians and singers in the world who is blind; from Stephen Hawking, the world-famous physicist and mathematician to Lenin Moreno, a famous politician who was disabled in a shooting before becoming the Vice President of Ecuador in 2007. In most progressive legal instruments, the definition of disability does not emphasize the abnormality or limitation that persons with disabilities face; instead, it focuses on asserting the essential humanness of every individual and on viewing disabled persons as a reflection of human diversity and then identifies the special characteristics that distinguish them from other members in the society. Against this backdrop, this article seeks to analyze the efficacy of laws mandating access to public places to persons with disabilities in India. It analyzes the challenges that persons with disabilities still continue to face in accessing different environments and discusses some possible solutions.
A brief overview of the status of persons with disabilities in India
According to a report by the World Health Organization, approximately 15% of people across the world are disabled. This would translate to more than 150 million persons with disabilities in India. In other words, almost one amongst every six persons in India has some form of disability. When a society recognizes any physical or mental condition as a disability, it accepts, by implication, its social obligations toward fully integrating those whom it considers disabled into the society. Despite this, disabled persons in India lack access to basic amenities such as educational material in an accessible format, accessible medical prescriptions, etc. There can be no better example of the discriminatory treatment that is meted out to persons with disabilities than the problem of lack of access to public places. More specifically, public places such as hotels, restaurants, shopping malls, airports/ railway stations, etc are not equipped with the facilities necessary for addressing the unique needs of persons with disabilities. The problem is more a technical/ attitudinal than a legal one. The problems include dearth of height-adjustable examination tables in hospitals for persons with physical disabilities, lack of clearly understandable signposts or Braille marks for persons with hearing/ visual impairments, absence of well lit and obstruction-free paths for persons with visual disabilities, absence of properly constructed ramps, slippery and unevenly constructed surfaces among others.
Laws mandating access to public places
Even though the Constitution of India does not contain any explicit provisions for preventing discrimination on the basis of disability, a 7 judge constitutional bench of the Supreme Court in the famous case of Indira Sawhney vs. Union of India 1992 Supp (3) SCC 217 explicitly stated that the spirit of Article 14 [right to equality], Article 15 (1) [right against discrimination] and Article 16 [right to equality in employment] allows for progressive discrimination and affirmative action for the benefit of persons with disabilities. Justice Krishna Iyer, in the case of Dr. Jagdish Saran & Ors. Vs. Union of India 1980 AIR 820, held, “equality is not degraded or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit.” Moreover, implicit in Article 21, which guarantees to all persons resident within India the right to live with dignity and respect, is the belief that persons with disabilities should be entitled to enjoy all liberties that are granted to everyone else. Furthermore, Article 41, which forms a part of the Directive Principles of State Policy, reiterates the responsibility of the government to take all appropriate measures to provide certain classes of people, including the disabled, equal access to employment, education and other fields of human endeavour. Similarly, Article 46 states that it is the duty of the state to do everything within its power to prevent social injustice against historically deprived and marginalized sections of society. In furtherance of this goal, Sections 44-46 of the Persons with Disabilities Act, 1995 emphasize the importance of providing non-discriminatory access by removing all physical barriers. More specifically, they seek to provide access to public places in the following ways:
A. Suitably altering buses, airplanes, train compartments and vessels to make them accessible to persons with disabilities;
B. Adapting toilets in these aforementioned vehicles and waiting rooms to make them accessible, especially for wheelchair users;
C. Installing auditory feedback in traffic signals for the benefit of the visually impaired;
D. Making necessary curb cuts and slopes in pavements for wheelchair users;
E. Engraving the surface of zebra crossings for the visually impaired;
F. Engraving the edges of railway platforms for the benefit of the visually impaired;
G. Designing appropriate symbols of disability (for identification of reserved parking spaces, etc);
H. Providing warning signals at necessary places;
I. Building ramps in all public places;
J. Providing auditory feedback in lifts; and
K. Providing ramps in all healthcare facilities including, inter alia, hospitals and rehabilitation centres.
The most glaring inadequacy of the existing disability law in India is that it asks all authorities to build accessible systems and structures in accordance with their economic ability. This provision clearly reflects the low level of importance that the legislature attaches to the welfare of the disabled. The upshot of this rider that finds expression in most sections is that authorities can seek immunity from their responsibilities merely by claiming that they do not have adequate economic resources to bear the expenditure involved in making their facilities disabled-friendly. It is pertinent to note that India is a signatory to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and was among the first few nations to ratify it. Article 9 of the UNCRPD imposes an obligation on all states to make all indoor and outdoor facilities such as roads, modes of transport, hospitals, etc. barrier-free. In addition, it also imposes a duty on all private organizations whose facilities are widely used by the public to remove all impediments and barriers. It not only requires states to train employees working in public places so as to enable them to meet the needs of the disabled, but also asks them to appoint special guides and assistants for helping the disabled. Finally, Article 30 (1) (C) reaffirms the special importance accorded by the UNCRPD to providing equal access to education by requiring all states to make libraries accessible.
Examples of accessible and barrier-free environments
Even though a substantial portion of public places continue to remain inaccessible in India, it is heartening to note that some examples of fully accessible buildings that are worth emulating have appeared in the last few years. The Delhi Metro is perhaps the first large scale project in India, at least in the transport sector, that adheres to all accessibility standards and embraces a large array of best practices for the welfare of the disabled. Similarly, as this article indicates, the Chhatrapati Shivaji Maharaj Vastu Sangrahalaya, formerly known as the Prince of Wales Museum, in Mumbai is equipped with ramps, hydraulic lifts as well as Braille signage for the benefit of the disabled. Similarly, as this article indicates, the Archaeological Survey of India has been able to make many monuments accessible to persons with disabilities in India by installing Braille signboards and other necessary facilities. This prevents tour guides from unduly exploiting disabled tourists by supplying incorrect information. Similarly, in Bangalore, two mainstream parks i.e. Coles Park and Gayathri Park have been made fully accessible with the assistance of NGOs working for the disabled. More details can be found here
Suggestions for making public places barrier-free
In order to effectuate the principles underpinning the Constitution and the provisions of the PWD Act, the following measures should be undertaken for removing obstacles that prevent the disabled from accessing public places:
1. Making the gates to public places accessible by incorporating necessary accessible standards. More specifically, they must be made wide enough to allow wheelchairs to pass easily and must provide enough space for the wheelchair to turn around after entering inside.
2. Stairs must be marked with a broad yellow line to allow the visually impaired to understand the difference in gradient.
3. At places like airports, railway stations, etc passengers must be clearly informed about the details of their flight/train such as the gate number for boarding, etc via public announcement systems (this practice is, surprisingly, gradually declining).
4. A minimum of 3-5 parking spaces near the entrance must be reserved for persons with disabilities. This must be clearly indicated by showing the international symbol for disability i.e. the wheelchair symbol.
5. All unnecessary obstructions must be removed, and all access ways must be well lit. Moreover, clear signposts, along with their Braille equivalents should be put up.
6. Elevators must have clear Braille signs and auditory feedback. The buttons of elevators must be accessible from a wheelchair. Pictograms must be put up near elevators and other important places such as toilets.
7. Employees working at public places must be provided necessary training to enable them to understand the unique set of challenges that persons with disabilities face. They should be informed about the best practices for dealing with these challenges.
8. At least 5-7 wheelchairs and mobility scooters should be available at every public place.
The way in which persons with disabilities are treated in India is in consonance with the definition of disability propounded by the British Council which is as follows: “disability is the disadvantage or restriction of activity caused by a society which takes little or no account of people who have impairments and thus excludes them from mainstream activities.” It is dismaying to note that, even though India claims to recognize disability as part of a larger terrain of human diversity, very few substantive measures have been taken to usher in de jure or de facto equality in the context of persons with disabilities. The inability to create an environment that fosters universal access and the utter disregard to the unique needs of the disabled has been the main cause for the handicap of the disabled in India. While this can largely be attributed to the lackadaisical approach of policymakers in undertaking tenacious and effective exercises for promoting the rights of the disabled in India, it can also be attributed to the fact that a large number of persons with disabilities still view themselves as passive recipients of care and sympathy instead of becoming active agents of change. The powers that be in India would do well to remember the words of Marcia H. Roux: “People with disabilities provide us with a means to understand the way in which social life can be organized to be fair, to be just, to be humanitarian, to be equal. They provide us an opportunity to go beyond finding the roots of charity and to look instead for the roots of justice. Equality and non-discrimination, which are the very basics of human rights law, can be brought into clear focus by reflecting on the place of people with disabilities in our societies.”