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How The Indian Constitution Protects Rights of Persons With Disabilities

April 25, 2017

If you are denied your rights, you can either file a writ petition or a public interest litigation. Here's a guide to which procedure to opt for, how and why.
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What can you do if your rights under the disability laws are violated?

A person who has been denied their rights by the government or any government-funded authority can seek to enforce their rights by way of either a Writ Petition or a Public Interest Litigation.

What is a Writ Petition?

As discussed earlier, 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:

(i) Habeas Corpus (‘You may have the body’): This is a writ to seek the release of a person detained illegally by the State.

(ii) 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.

(iii) 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.

(iv) 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.

(iv) Quo warranto (‘By what Authority’): The Court can restrain a person from holding an office to which he was not entitled.

In the context of enforcing disability and other social welfare laws, a writ of Mandamus is the most commonly sought writ. For example, a school under the Right to Education Act refusing to grant admission to a child with a disability could be proceeded against under a writ of Mandamus.

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.

When is a law ‘unconstitutional’ and how does the Court declare it so?

When the legislature passes a law that goes against the Constitution, the Court has the power to declare it to be unconstitutional. This makes the law, or the specific part of it that is unconstitutional, null and void.

Most commonly, this is seen when laws trample upon Fundamental Rights. Unfortunately, Courts do not verify every single law that is passed, and so this needs to be brought to the attention of the Court by filing a petition drawing attention to the unconstitutional provision.

How does a law discriminating against the disabled get declared unconstitutional?

Persons with disabilities have the right to equal protection of the laws and to be treated equally before the law (Article 14) and the right to life and personal liberty (Article 21).

Therefore any law, which impinges upon these rights, can also be declared unconstitutional. We should remember that Article 21 goes beyond mere animal existence and also extends to quality of life, and so anything, which prevents persons with disabilities from living the best possible life, can and should be declared unconstitutional.

What is a Public Interest Litigation?

Public Interest Litigations are filed before the Supreme Court or High Court relating to matters which potentially impact the public at large, or a group of persons, by a public spirited individual or NGO who typically does not have any vested interest in the outcome of the litigation.

PILs involve a minimal court fee because of their importance in the role the Court plays in ensuring the rights of the individual.

When a Petition is filed before the High Court or Supreme Court, the Registrar’s office is the authority that will decide whether it is a PIL or not. If it is a PIL, it will involve subsidized Court fees and will be listed before a separate bench which specifically handles PILs. The High Court and Supreme Court have PIL Cells to which all potential PILs are forwarded.

PILs need not be filed in a strict format like other cases. The Supreme Court has even acted on postcards and inland letters sent regarding matters of public importance.

According to the latest Supreme Court guidelines on which cases come under the category of PILs, the subject matter should pertain to:

(i) Bonded Labour matters

(ii) Neglected Children

(iii) Non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of labour laws (except in individual cases)

(iv) Petitions from jails complaining of harassment, death in jail, transfer, release on personal bond, speedy trial as a fundamental right

(v) Petitions against police for refusing to register a case, harassment by police and death in police custody

(vi) Petitions against atrocities on women, in particular harassment of bride, bride-burning, rape, murder, kidnapping etc.

(vii) Petitions complaining of harassment or torture of villagers by co-villagers or by police from persons belonging to Scheduled Caste and Scheduled Tribes and economically backward classes

(viii) Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wild life and other matters of public importance

(ix) Petitions from riot-victims

(x) Family Pension

This list is not exhaustive and the registrar can take decisions to include an area not otherwise dealt with under the list.

When should you opt for a Public Interest Litigation over a Writ Petition?

An individual grievance can be a common issue for many persons, and it is therefore a strategic decision whether to make something into a PIL or a Writ Petition. PILs are extraordinarily entertained, so those cases which are individual disputes may be sent back to the appropriate forum for redressal. Therefore, it is important to frame your PIL as a larger issue.

For instance, one child being denied admission under the RTE Act warrants approaching the appropriate Court or forum for redressal. If you collect data on schools in a particular area which have not admitted a single child with disability, it is more of a public interest issue.

Since it involves public interest, Courts may take the decision to involve a larger number of stakeholders in exploring an issue. For example, if a PIL is filed with respect to sexual assaults which have taken place in a particular special school, the Court may call for reports from all special schools in the State, or from the Department of Disabilities, or other authorities, to examine the issue. This can be time consuming.

Public Interest Litigations can also invite intervention applications from other parties both for and against your petition that are routinely permitted by Courts – and if those parties have better resources, your petition can get overwhelmed. However, PILs attract more press attention and calling for reports from government bodies may provoke them into taking action independently.

Ultimately the decision is strategic and depends on various factors – the judicial trends towards Public Interest Litigations, the urgency of the matter, the resources at hand and the scale of the matter. There is no need to feel obliged to make your issue into a larger one even if you know of other persons or families facing the same issue. After all, if you receive a favourable order in your case, it can be used as a precedent for others.

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