Persons with Disabilities, and the Social Model

That last clause is the operative innovation. It converts a failure to act into an act of discrimination, which no earlier equality provision did.

What Indian law did

The Rights of Persons with Disabilities Act, 2016 replaced the 1995 legislation and did four things that mark the change.

It expanded the categories from seven to a Schedule of specified disabilities, with a power to amend the Schedule.

It made non-discrimination a right rather than a policy, in section 3, and wrote reasonable accommodation into the statute.

It replaced guardianship with support. Section 13 recognises legal capacity, and section 14 provides for limited guardianship where support is required, which is the domestic counterpart of article 12 of the Convention.

And it created enforcement, in the Chief Commissioner and the State Commissioners, a Special Court under section 84 and offences in sections 89 to 92 including a punishment for atrocities against a person with a disability.

[The 2016 Act: the Rights and Entitlements] carries the statute.

The constitutional position, which is thin

Disability appears nowhere in Part III. It is not a ground in article 15(1) or article 16(2), so a person with a disability cannot invoke either directly and must use article 14.

In Part IV it appears once. Article 41 requires the State, within the limits of its economic capacity and development, to 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.

That single directive is the whole constitutional foundation, and it is why the statutory layer carries everything. A candidate who states that plainly is making the paper's structural point: where the Constitution does not name a group, the group waits for a statute.

Worked example

Any question on the concept of disadvantaged groups, and any future perspectives question.

Say why the chapter is here, since MU set no question on it.

Give the two models, and the four-line consequence, ending on the building being in breach.

Quote article 1 of the Convention and make the interaction point.

Give article 2's reasonable accommodation and the rule that denial of it is discrimination.

Give the four changes the 2016 Act made, and close on the constitutional thinness: article 41 and nothing else.

What it does NOT mean

It does not mean the medical model has no place. Certification and treatment remain necessary; the model is about where the law locates the problem.

It does not mean article 14 is a weak substitute. It is the general guarantee and reaches any person, but the ground has to be argued rather than named.

And it does not mean the 2016 Act is fully implemented. Accessibility timelines in particular have slipped.

Quick revision

• Why here: MU sets no disability question, and Module I's label is the CONCEPT, which reaches the group; and the 2016 Act is the best Indian example of a convention enacted almost provision for provision.
• Medical model: the disadvantage is in the person; concepts are certification, benefit, institution, guardianship. Social model: the disadvantage is in the barrier; concepts are non-discrimination, accessibility, reasonable accommodation, legal capacity. Under the first a person who cannot enter a building has a problem; under the second the building is in breach.
• Article 1 of the Convention: impairments which in interaction with various barriers may hinder full and effective participation. Article 2: reasonable accommodation is necessary modification not imposing a disproportionate or undue burden, and denial of it is discrimination.
• The 2016 Act's four changes: a Schedule of specified disabilities with a power to amend; non-discrimination as a right in section 3; legal capacity in section 13 with limited guardianship in section 14; and enforcement through the Chief Commissioner, a section 84 Special Court and section 92's punishment for atrocities.
• The constitutional position is thin: disability is not a ground in article 15(1) or 16(2), so the route is article 14; and in Part IV it appears once, in article 41, on unemployment, old age, sickness and disablement.

Test yourself

1. What are the two models, and what difference do they make to the law? The medical model locates the disadvantage in the person: disability is an impairment, the impairment is a deviation from a norm, and the appropriate response is to treat, to cure, to rehabilitate or, failing those, to care for. The person is the object of the intervention. The social model locates the disadvantage in the relationship between the impairment and the environment: the impairment is real, but the disability is produced by barriers, which may be physical, informational, attitudinal or legal, and the response is to remove the barrier, with the person as the holder of a right rather than the object of a service.

The difference to the law is total. Under the medical model the operative concepts are certification, benefit, institution and guardianship; under the social model they are non-discrimination, accessibility, reasonable accommodation and legal capacity. The clearest way to state it is by example: under the medical model, a person who cannot enter a building has a problem; under the social model, the building is in breach.

2. Where is the shift visible in the treaty text? In two places, and both are worth quoting. Article 1 of the Convention on the Rights of Persons with Disabilities, 2006 provides that persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others. The impairment alone does not produce the disability; the interaction with the barrier does, and the treaty says so in its own definition, which is a drafting choice no earlier instrument had made.

Article 2 defines reasonable accommodation as necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; and it provides that discrimination on the basis of disability includes all forms of discrimination, including denial of reasonable accommodation. That last clause is the operative innovation, because it converts a failure to act into an act of discrimination, which no earlier equality provision had done: a State or an employer who simply does nothing is in breach.

3. What did Indian law do, and what does the Constitution supply? The Rights of Persons with Disabilities Act, 2016 replaced the 1995 legislation and did four things that mark the change. It expanded the categories from seven named conditions to a Schedule of specified disabilities, with a power to amend the Schedule so that the list is not frozen. It made non-discrimination a right rather than a policy, in section 3, and wrote reasonable accommodation into the statute. It replaced guardianship with support: section 13 recognises the legal capacity of a person with a disability on an equal basis with others, and section 14 provides for limited guardianship where support is needed, which is the domestic counterpart of article 12 of the Convention. And it created enforcement machinery, in the Chief Commissioner and the State Commissioners, a Special Court under section 84, and offences in sections 89 to 92 including a punishment in section 92 for atrocities against a person with a disability.

The constitutional position by contrast is thin, and stating that plainly makes the paper's structural point. Disability appears nowhere in Part III: it is not a ground in article 15(1) or article 16(2), so a person with a disability cannot invoke either directly and must proceed under article 14, whose language of any person and whose arbitrariness limb require no listed ground. In Part IV it appears once, in article 41, which requires the State, within the limits of its economic capacity and development, to 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. That single directive is the whole constitutional foundation, and it is why the statutory layer carries everything: where the Constitution does not name a group, the group waits for a statute.