On 27th August 2010, a private member’s Bill was introduced in the Rajya Sabha titled “The Constitution (Amendment) Bill, 2010 (to amend articles 15 and 16).” It was moved by Smt Brinda Karat. There was not much discussion on the same. We did not find many media reports about it either. While one may feel surprised that why attempts to amend the Constitution of India did not raise any discourses in this country, when one reads the content of the Bill, the surprise disappears as disability as an issue remains invisible in India. The Bill reads,
In Article 15 of the Constitution, for clause (1), the following clause shall be substituted, namely:— “(1) The State shall not discriminate against any citizen on grounds of religion, race, caste, sex, disability, place of birth or any of them.”
In article 16 of the Constitution, for clause (2), the following clause shall be substituted, namely:— “(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, disability, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
The Constitution mentions specifically different spheres of discrimination, and mandates equality of treatment. It is only fair and just that when a large number of citizens come in the category of “disabled” and suffer from multiple discrimination, the Constitution should offer protection against any such discrimination based on disability. The amendment in articles 15(1) and 16(2) of the Constitution is proposed to remove discrimination against disabled persons. The Bill seeks to achieve the above objectives.”
Discrimination on grounds of gender, sex, religion is already enshrined in Indian Constitution but the same on the basis of disability is still missing. Interestingly, India signed and ratified UNCRPD prior to 2010 and the government accepted demands of changing existing disability law before this private member’s Bill was moved. However, the Indian government was not ready to include disability as a cause of discrimination within the Constitution. Disability activists were demanding the same for quite some time. We can imagine if any demands of amending the Constitution was raised by other marginalised groups, how much media attention it would get in this country and the debates that would follow among civil society groups. But the issue of disability remains “invisible” both to media and civil society.
A major concern that one needs to reflect in this context is Article 326 of the Indian Constitution. This Article says that every person who is a citizen of India and of legal age has the right to vote, with a few exceptions. One exception stated is “unsoundness of mind”. Representation of People’s Act of 1951 reinforces this exclusion. This law debars a person from being registered to vote if he or she is found of “unsound mind” and is found the same by a “competent court”. Since “unsoundness of mind” is not properly defined, this clause and Article 326 can debar many disabled people from taking part in the electoral processes.
This may not be limited to persons with psycho-social disabilities or developmental disabilities only. Persons with Parkinson’s Disease which is newly included categories in the Rights of Persons with Disabilities Act (RPD Act) may be affected too. Interestingly, when the drafting process of the RPD Act was going on, there were discussions about rights of the disabled in taking part in all political processes. However, when finally it was passed in the parliament, a clause on making the election process accessible was left out. The demands by the sector to take part in political activities and the right to contest in elections disappeared. There are reasons to believe that such omissions are deliberate on the part of Indian government.
An interesting development that took place three years after RPD Act was passed—in November 2019—Chhattisgarh cabinet approved nomination of at least one disabled member to each panchayat. If disabled candidate is not elected through the electoral process, one candidate will be nominated as a Panchayat member as per changes in state law. Within two days of this amendment, Rajasthan disability commissioner directed concerned departments of the state to take similar steps in both Panchayat and urban local body polls.
It is important to remember here that most grassroots level disability groups, whose membership base are from the rural areas, had been demanding reservations in Panchayat for a long time. Similar demands of nominating eminent disabled candidates in Rajya Sabha instead of film stars or cricket players has been voiced by urban disability groups.
In this context, one needs to relook at the RPD Act and the Constitution. While reservation in elections might be a welcome change, can India do it without amending discriminatory clauses of Representation of People’s Act? Because if these clauses are not amended, political reservations may help only some groups of disabled people. Disability is a complex and heterogeneous issue. We need to rethink whether we can further divide already marginalised groups by giving some rights to few categories of disabled people and denying the same to other categories even though they are under the ambit of the same law namely Rights of Persons with Disabilities.
UNCRPD Committee in its recommendation to Indian government clearly stated, “Amend the Constitution to explicitly prohibit disability-based discrimination.” It’s time the Indian government brings back amendments proposed by Brinda Karat ten years ago. Disability activists across the country need to mobilise people to support this demand and fight together against manifold discriminations faced by disabled people.