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HUMAN RIGHTS

Research paper on:


DISABILITY LAWS IN INDIA

SUBMITTED TO:- MRS.SOUMA SARKAR

SUBMITTED BY: - MANJU JAIN & VAISHALI


KAMRA

VAISHALI KAMRA MANJU JAIN


BA.LLB (VIIth sem. [A]) BA.LLB (VIIth sem. [A])
10051103815 04951103815

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 ABSTRACT

Disability is an important public health problem especially in developing


countries like India. The problem will increase in future because of increase in
trend of non-communicable diseases and change in age structure with an
increase in life expectancy. The issues are different in developed and
developing countries, and rehabilitation measures should be targeted according
the needs of the disabled with community participation. In India, a majority of
the disabled resides in rural areas where accessibility, availability, and
utilization of rehabilitation services and its cost-effectiveness are the major
issues to be considered. Research on disability burden, appropriate intervention
strategies and their implementation to the present context in India is a big
challenge. Recent data was collected from Medline and various other sources
and analysed.
Hence, the Rights and Laws of disabled persons need to be understood
and studied from various perspectives including human rights and various other
laws in India which will ultimately fill up the differences or mitigate the gap
between the abled and the differently abled persons in their attainment of
persona and dignity in true sense of the terms.

In this research work the researchers are giving much emphasis on the
various legal provisions and Laws available in our country and make a
systematic study on how these laws have contributed towards the development
of legal status of the disabled persons in India.

The paper discusses various issues and challenges related to disability and
rehabilitation services in India and emphasize to strengthen health care and
service delivery to disabled in the community.

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 INTRODUCTION

Disability is an impairment that may be cognitive, development, intellectual,


activity, limitations, sensory or some combination of these. It substantially
affects a person’s life activities and may be present from birth or occur during a
person’s lifetime. Disability is a contested concept, with different meanings of
different communities. It may be used to refer to physical or mental attributes
that some institutions, particularly medicine, view as needing to be fixed. It may
refer to limitations imposed on people by the constraints of an ablest society.
People with disabilities have the same health needs as non disabled people for
immunizations, cancer screening etc. They may also experience a narrow
margin of health both because of poverty and social exclusion and also because
they may be vulnerable to secondary conditions such as pressure sores or
urinary tract infections.

According to the World Health Organisation, a disability is…

"Any restriction or lack (resulting from any impairment) of ability to perform an


activity’’

Hence, the Rights and Laws of disabled persons need to be understood and
studied from various perspectives including human rights and various other
laws in India which will ultimately fill up the differences or mitigate the gap
between the abled and the differently abled persons in their attainment of
persona and dignity in true sense of the terms.

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 Declaration On The Rights of Disabled Persons:

The Declaration of the Rights of Disabled persons was a declaration of the


General Assembly of the United Nations made on 9 Dec 1975. It is the 3447th
resolution made by the Assembly.

The disabled person shall enjoy all rights contained in this declaration without
distinction or discrimination. The disabled persons have inherent rights to
respect for their human dignity and irrespective of the origin, nature and
seriousness of their handicaps and disabilities, have same Fundamental Rights.
Disabled persons have the same civil and political rights as other human beings.
Disabled persons are entitled to the measures designed to enable them to
become as self-reliant as possible. Disabled persons have the right to economic
and social security, including the right, according to their capabilities, to secure
and retain employment or to engage in a useful, productive and remunerative
occupation and to join trade unions. Disabled persons have the right to live with
their families or with foster parents and to participate in all social, creative or
recreational activities. Disabled persons shall be protected against all
exploitation and treatment of a discriminatory, abusive or degrading nature.

Provisions of the Declaration include:

1) The definition of “disabled person" as anyone who cannot ensure the


necessities of a normal individual and or social life as a result of deficiency in
physical or mental capabilities.

2) A non-discrimination clause applying the Rights to all disabled persons


regardless of “race , colour, sex, language, religion, political or other opinions ,
national or social origin , state of wealth, birth " or other situation

3) Another statement regarding disabled persons is right to respect for their


human dignity.

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 Constitutional Rights of Disabled Persons:

1. Prohibition of Discrimination:
Article 15 is a manifestation of “Right to Equality” under article 14, as it
enshrines a specific dimension of the principles of equality relating to
discrimination by state or various grounds. Under article 15 the protection
extends only to citizens, unlike article 14 which protects ‘anyperson’. Thus in
application article 15 protects from discriminatory state activities but the ambit
of article 15 is narrower than that of article 14.
Article 15 of the Indian constitution deals with “prohibition of discrimination”
on the grounds of religion, race, caste, sex or place of birth.
It runs as follows:
Article 15(2) says, no citizen shall on the grounds only of religion, race, caste,
sex, place of birth or any of them, be subjected to any disabilities liability
restriction or condition with regard to:
(a) Access to shops, public restaurants, hotels and places of public
entertainment; or
(b) The use of wells, tanks, bathing Ghats, roads and places of public resort
maintained wholly or partly out of the state funds dedicated to the use of the
general public.
2. Equity in Social, Economic and Cultural Rights:
Article 25 of the CRDP recognizes the “right of a person with disabilities to
education. With a view to realizing this right without discrimination and on the
basis of equal opportunity, state parties shall ensure an inclusive education
system at all levels and lifelong learning.” They considered constitution to grant
education to children with disabilities if they explicitly guarantee the right to
education, the right to free education, or the right to compulsory education to
children with disabilities or prohibit discrimination in education on the basis of

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disability. Globally only 28% of the countries provide some type of
constitutional guarantee of educational rights or the children with disabilities.
3. Right to Work:
Article 27 of the CRDP instructs states to “recognizes the right of persons with
disabilities to work, on an equal basis with others; this includes the rights to
opportunity to gain a living by work freely chosen or accepted in a labour
market and work environment that is open, inclusive and accessible to persons
with disabilities.

4. Right to Liberty:
Article 14 of the CRPD instructs state parties to guarantee people with
disabilities the right to liberty and security of person. We considered the right to
liberty to be guaranteed to persons with disabilities if they were explicitly
granted the right to freedom or liberty. Globally, only 9% of the constitution
explicitly guarantee the right to liberty to persons with disabilities. However
19% of the constitution specifies that the right to liberty can be denied to
persons with the mental health condition.

5. Right to Freedom of Expression:


In article 21, the CRPD states that to “take all appropriate measures to ensure
that persons with disabilities can exercise the right to freedom of expression and
opinion include the freedom to seek, receive and impart information and ideas
on an equal basis with others and through all forms of communications of their
choice.”

6. Rights of Disabled Persons In India:


Persons with disabilities are one of the most neglected sections of our nation.
This is due to the sheer indifference of the society which subjects such people to
disapproval and antipathy. Such people have several rights under various Indian
laws as well as UN conventions that are followed in India. Under section 2(i) of
Persons with Disabilities Act, 1995,"disability" includes blindness, low vision,
leprosy cured, hearing impairment, loco motor disability, mental retardation and
mental illness.

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7. Disability Certificate:
It is the most basic document that a disabled person should possess in order to
avail certain benefits and concessions. The State Medical Boards established
under the State governments can issue a disability certificate to any person with
more than 40% disability.

9. Disability Pension:
People who are above 18 years of age, suffering with more than 80% disability
and are living below the poverty line are entitled to the disability pension under
the Indira Gandhi National Disability Pension Scheme. Various NGOs are
dedicated to this because i.e. they help such persons with disabilities to get their
disability pension.

10. Employment:
In government jobs, 3% of the seats are reserved for persons with disabilities.

11. Income Tax Concession:


Under sections 80DD and 80U of Income Tax Act, 1961, persons with
disabilities are also entitled to certain income tax concessions.

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 Education Law for the Disabled

The right to education is available to all citizens including the disabled.


Article 29(2) of the Constitution provides that no citizen shall be denied
admission into any educational institution maintained by the State or receiving
aid out of State funds on the ground of religion, race, caste or language.
Article 45 of the Constitution directs the State to provide free and compulsory
education for all children (including the disabled) until they attain the age of 14
years. No child can be denied admission into any education institution
maintained by the State or receiving aid out of State funds on the ground of
religion, race, and casteor language.

 Health Laws

Article 47 of the constitution imposes on the Government a primary duty to


raise the level of nutrition and standard of living of its people and make
improvements in public health - particularly to bring about prohibition of the
consumption of intoxicating drinks and drugs which are injurious tone’s health
except for medicinal purposes.
The health laws of India have many provisions for the disabled. Some of the
Acts which make provision for health of the citizens including the disabled may
be seen in the Mental Health Act, 1987.

 Family Laws

Various laws relating to the marriage enacted by the Government for


DIFFERENT communities apply equally to the disabled. In most of these Acts it

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has been provided that the following circumstances will disable a person from
undertaking a marriage. These are:

1. Where either party is an idiot or lunatic,


2. Where one party is unable to give a valid consent due to unsoundness of mind
or is suffering from a mental disorder of such a kind and extent as to be unfit for
‘marriage for procreation of children’
3. Where the parties are within the degree of prohibited relationship or are
sapindas of each other unless permitted by custom or usage.
4. Where either party has a living spouse
The rights and duties of the parties to a marriage whether in respect of disabled
or non-disabled persons are governed by the specific provisions contained in
different marriage Acts, such as the Hindu Marriage Act, 1955, the Christian
Marriage Act, 1872 and the Parsi Marriage and Divorce Act, 1935. Other
marriage Acts which exist include; the Special Marriage Act, 1954 (for spouses
of differing religions) and the Foreign Marriage Act, 1959 (for marriage
outside India). The Child Marriage Restraint Act, 1929 as amended in 1978 to
prevent the solemnization of child marriages also applies to the disabled. A
Disabled person cannot act as a guardian of a minor under the Guardian
andWards Act, 1890 if the disability is of such a degree that one cannot act as a
guardian of the minor. A similar position is taken by the Hindu Minority and
Guardianship Act, 1956, as also under the Muslim Law

 Succession Laws for the Disabled

Under the Hindu Succession Act, 1956 which applies to Hindus it has been
specifically provided that physical disability or physical deformity would not
disentitle a person from inheriting ancestral property. Similarly, in the Indian
Succession Act, 1925 which applies in the case of intestate and testamentary
succession, there is no provision which deprives the disabled from inheriting an
ancestral property. The position with regard to Parsis and the Muslims is the
same. In fact a disabled person can also dispose his property by writing a ‘will’
provided he understands the import and consequence of writing a will at the
time when a will is written. For example, a person of unsound mind can make a

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Will during periods of sanity. Even blind persons or those who are deaf and
dumb can make their Wills if they understand the import and consequence of
doing it.

 Labour Laws for the Disabled

The rights of the disabled have not been spelt out so well in the labour
legislations but provisions which cater to the disabled in their relationship with
the employer are contained in delegated legislations such as rules, regulations
and standing orders.

 Judicial procedures for the disabled

Under the Designs Act, 1911 which deals with the law relating to the protection
of designs any person having jurisdiction in respect of the property of a disabled
person (who is incapable of making any statement or doing anything required to
be done under this Act) may be appointed by the Court under Section 74, to
make such statement or do such thing in the name and on behalf of the person
subject to the disability. The disability may be lunacy or other disability.

 Income Tax Concessions Relief for Handicapped

Section 80 DD: Section 80 DD provides for a deduction in respect of the


expenditure incurred by an individual or Hindu Undivided Family resident in
India on the medical treatment (including nursing) training and rehabilitation
etc. of handicapped dependants. For officiating the increased cost of such
maintenance, the limit of the deduction has been raised from Rs.12000/- to
Rs.20000/-.
Section 80 V: A new section 80V has been introduced to ensure that the parent
in whose hands income of a permanently disabled minor has been clubbed
under Section 64, is allowed to claim a deduction up to Rs.20000/- in terms of
Section 80 V.
Section 88B: This section provides for an additional rebate from the net tax
payable by a resident individual who has attained the age of 65 years. It has

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been amended to increase the rebate from 10% to 20% in the cases where the gross total
income does not exceed Rs.75000/- (as against a limit of Rs.50000/- specified earlier).

 “The Persons with Disabilities (Equal Opportunities, Protection of


Rights and Full Participation) Act, 1995” had come into enforcement on
February 7, 1996. It is a significant step which ensures equal
opportunities for the people with disabilities and their full participation
in the nation building. The Act provides for both the preventive and
promotional aspects of rehabilitation like education, employment and
vocational training, reservation, research and manpower development,
creation of barrier- free environment, rehabilitation of persons with
disability, unemployment allowance for the disabled, special insurance
scheme for the disabled employees and establishment of homes for
persons with severe disability etc.

 Main Provisions of the Act;-

Prevention and early detection of disabilities

1. Surveys, investigations and research shall be conducted to ascertain the


cause of occurrence of disabilities.
2. Various measures shall be taken to prevent disabilities. Staff at the Primary
Health Centre shall be trained to assist in this work. - All the Children shall
be screened once in a year for identifying ‘at -risk’ cases.
3. Awareness campaigns shall be launched and sponsored to disseminate
information. - Measures shall be taken for pre-natal, peri natal, and post-
natal care of the mother and child.

Education

1. Every Child with disability shall have the rights to free education till the
age of 18 years in integrated schools or special schools.

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2. Appropriate transportation, removal of architectural barriers and
restructuring of modifications in the examination system shall be ensured
for the benefit of children with disabilities.
3. Children with disabilities shall have the right to free books, scholarships,
uniform and other learning material.
4. Special Schools for children with disabilities shall be equipped with
vocational training facilities.
5. Non-formal education shall be promoted for children with disabilities.
6. Teachers’ Training Institutions shall be established to develop requisite
manpower. - Parents may move to an appropriate forum for the redressal
of grievances regarding the placement of their children with disabilities.

Employment

1. 3% of vacancies in government employment shall be reserved for people


with disabilities, 1% each for the persons suffering from:
· Blindness or Low Vision
· Hearing Impairment
· Locomotors Disabilities & Cerebral Palsy
·
2. Suitable Scheme shall be formulated for
- The training and welfare of persons with disabilities
- The relaxation of upper age limit
- Regulating the employment
- Health and Safety measures, and creation of a non-handicapping,
environment in places where persons with disabilities are employed.
3. Government Educational Institutes and other Educational Institutes
receiving grant from Government shall reserve at least 3% seats for
people with disabilities.
4. No employee can be sacked or demoted if they become disabled during
service, although they can be moved to another post with the same pay
and condition. No promotion can be denied because of impairment.

Research and Manpower Development

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1. Research in the following areas shall be sponsored and promoted:
 Prevention of Disability · Rehabilitation including community based
rehabilitation
 Development of Assistive Devices.
2. 2. Job Identification

3. On site Modifications of Offices and Factories


4. Financial assistance shall be made available to the universities, other
institutions of higher learning, professional bodies and non-government
research- units or institutions, for undertaking research for special
education, rehabilitation and manpower development.
Social Security

1. Financial assistance to non-government organizations for the


rehabilitation of persons with disabilities.
2. Insurance coverage for the benefit of the government employees with
disabilities.
3. Unemployment allowance to the people with disabilities who are
registered with the special employment exchange for more than a year
and could not find any gainful occupation.

 THE RIGHTS OF PERSONS WITH DISABILITIES ACT,


2016 AND PERSONS WITH MENTAL ILLNESS

On perusal of the Act, it is observed that though mental illness has been
included as a condition of disability, special needs of persons with mental
illness (PMI) and their families have not been properly addressed. PWD with
mental illness require special and different types of attention and care due to the
nature of their illnesses. Frequently, persons with severe mental illness are not
in a position to be aware of their illness because of the lack of insight. In these
circumstances, their families are great asset in providing them care and support.
In our country, where personnel resources in mental health care are extremely
scarce, family is a very important asset in the management of mental illness.
Family members need to be involved to the greatest extent in the mental
healthcare and family support should be encouraged as it provides moral,
emotional, and physical support to the PMI.

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However, the provisions of the section 7(2) of the Act may result in a situation,
in which the family members and other caregivers may be less willing to be
proactive and rather be scared to provide the required help. Anyone who steps
in and tries to do something for such a PWD having mental illness can be
reported against by any person walking on the street as violating this law and
can be held to be doing as such by the law enforcing authorities.

Thus, the Act criminalizes the service provider and the family for providing
treatment of persons with severe mental illness even though the person may be
at a clear risk to himself or to others. The section 7(2) has been inserted for a
good cause of protecting PWD from acts of abuse, violence and exploitation.
But its application to those with mental illness needs proper modification to
address this problem. The existing state of affairs of scarcity of mental health
services very appalling in our country.
The Government run mental health services are not available in most of the
districts and in about one-third of the districts in the country, there are no
mental health services at all. Vast number of PMI with high support needs have
no support available to them except that of their family members. Strong family
and social bond that exist in our country are of great help for these PMI. If the
importance of family for this purpose is discouraged, persons living with mental
illness and intellectual impairments may get abandoned and may be left to roam
on the streets.
Section 38 provides that any person with benchmark disability, who considers
himself to be in need of high support, or any person or organization on his or
her behalf, may apply to an authority to provide high support. Thus, the Act
puts the onus to seek support upon the PWD, relies excessively on the NGOs,
and fails to see the importance of the family.
Moreover, it denies the possibility that a person living with mental illness or
with intellectual disability may not be able to seek support at all or may not be
able to take a decision even when all the supports are made available. While
ignoring the role and importance of family in the care of PMI, the Act is silent
on how the vast support system would be built for such a large country with
millions of persons suffering from severe mental illness. Even if any support
system is actually built in urban and semi urban areas.
After going through all these provisions, it seems that a universal legal capacity
in all PWD has been presumed including in those with severe mental illness and
the existence of mental impairment in mental illnesses is denied. However, the

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Act itself, in some of its sections, presumes lack of legal capacity in respect of
the PMI.
Sections 62(1) and 68(1) disqualify “a person of unsound mind and stand so
declared by a competent court” from becoming the member of the Central and
State Advisory Boards respectively.

Disproportionately, lower number of jobs reserved for persons living with


mental illness, persons with intellectual impairment, autism, specific learning
disability and multiple disability (1% for all five taken together) also suggest an
assumption of incapacity of the PMI. Chapters of education, vocational, and
self-employment are silent on the specific measures that need to be taken to
ensure the realization of the rights for PMI. An assumption of incapacity to
some extent or other in PMI seems to work here too.

Moreover, considering the attitudinal and environmental barriers faced by PMI,


there should have been special emphasis and social welfare measures to bring
them into mainstream.

Law recognizes the impairment of mental state and understanding in severe


mental illness, sometime giving benefit to the PMI (like section 84 of the IPC
absolving them from the criminal responsibility), and sometime to the detriment
for them (like disqualification clauses in holding various public offices
including holding the offices of membership of advisory boards as above). The
subsection 3 of the Act as above has a exception clause of “a proportionate
means of achieving a legitimate aim.” Recognition of impairment of mental
state and understanding in the process of treatment and care would be a
legitimate aim and some special provision in this respect may be in fact highly
beneficial for proper care for the PMI and ultimately, the society at large would
be benefitted.

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 JUDICIARY & DISBILITY

The Indian Judiciary has played a very significant role in developing the human
rights of the disabled persons. In a number of cases the Supreme Court and the
High Courts interpreted the disability legislations furthering the objectives
contained therein. The extraordinary powers vested in the Supreme Court under
Articles 32 and 142, and the High Courts under Article 226 of the Constitution
of India, have ensured that the rights of the citizens, and more specifically, that
of the disabled citizens, are not trampled upon.

CASE 1:-Jawed Abidi v. Union of India AIR 1999


While directing Indian Airlines to provide concessions for passengers suffering
from locomotors disability, the Supreme Court keeping in view the object of the
persons with disabilities Act, 1995, directed creation of various free
environment for person with disabilities and making special provisions for their
rehabilitation, medical care, education, employment, training and protection of
their rights. The supreme Court bearing in mind the discomfort and harassment
suffering by a person of locomotor so disability would face while travelling by
train particularly too far off places issued directions to the Indian Airlines to
grant persons suffering from locomotor so disability to the extent of 80%.

CASE 2:- D.N. Chanchala v. State AIR 1971


The Supreme Court advocating the right based approach to disability extended
the equitable principle of preferential treatment under Art 15 (4) to persons with
disabilities to bring them to the mainstream of the society by giving them equal
opportunity in the field of education. The Allahabad High Court in National
Federation of Blinds UP Branch v. State of UP ordered the Luckhnow
Development Authority not only to give preference in the matter of allotment of
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land houses to handicapped persons, but also to provide concessional rates to
them.

CASE 3:-Chandan Kumar Banik v. State of West Bengal AIR


1990
The Supreme Court rescued mentally challenged inmates of a hospital in
Hooghly District who were being kept chained by the hospital administration to
control their unruly and violent behaviour. Absence of reservations for persons
with a physical handicap in medical colleges was found by the Calcutta High
Court to be an infringement of Persons with Disabilities Act and the
Constitution as well in Dy. Secy. (Mart), Dept. of Health and Family Welfare v.
Sanchita Biswas. This view of the Calcutta High Court finds support in a fluty
of judgments [Raman Khanna (Dr.) v. University of Delhi, (2003) Vijay Kr.
Agarwal v. State of Rajasthan, A.P. Federation of the Blind v. Registrar, Andra
University, Benny v. State of Kerala, pronounced by deferent High Courts of
the country. In Sheeela Bharse v. Union of India, the Supreme Court held that
mentally ill non-criminal persons cannot be kept in jail and opined that keeping
the non-criminals in jail along with other convicts is unconstitutional. Like this
in a plethora of cases, the Indian judiciary has shown its concern towards the
protection of the human rights of the disabled persons and played a vital role in
the realm of disability rights in India

CASE 4:- National Federation of blind v. UPSC AIR 1993


The Supreme Court held that, UPSC may be directed to allow blind persons for
appearing the examinations for Indian administrative and allied Services.

CASE 5:-Government of NCT of Delhi v. Bharath Lalmeena AIR


2017
The Delhi High court held that people with disabilities can be appointed as
physical education teachers provided they have passed the qualifying
examination undergone the requisite training.

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 Conclusion

Disability refers to the disadvantage or restrictions of activity caused by the way


society is organised which takes little or no account if people who have
physical, sensory or mental impairments. Disability is an unfortunate part of
human life which can affect not only the natural way of a living but also despair
component strength and power. The Government needs to launch more social
security schemes for disabled sections and generate more employment
opportunities for them. Several schemes and benefits conference on the disabled
persons has come up as relief and has successfully served to provide equal
opportunities to the disabled section.

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REFERENCES

Books referred

1. Disabled Definitions, Impaired Policies: Reflections on Limits of Dominant


Concepts of Disability; Nandini Ghosh, Associate Professor of Sociology
Institute of Development Studies Kolkata (IDSK), Salt Lake, Kolkata, May 2012

2. The UN Convention on Rights of persons with Disabilities, Originally


published: 2009, Author: Gerard Quinn

3. Disabilities Rights, originally published: 2005, Author: Peter Blanck

4. People with Disabilities, originally published: 2013,Authors: Peter Blanck,


Lisa schur, Douglas Kruse

Links referred
http://combatlaw.org/wp-content/uploads/Combat_Law_Jan-Feb_2008

http://planningcommission.nic.in/reports/sereport/ser/stdy_dsbty.pdf

http://vikaspedia.in/education/parents-corner/guidelines-for-parents-of-
children-with-disabilities/legal-rights-of-the-disabled-in-india

http://disabilityaffairs.gov.in/content/viewpage/notification-rights-of-persons-
with-disabilities-act--2017.php

http://www.newindianexpress.com/opinions/2018/jan/01/disability-rights-get-
a-judicial-boost-1741367.html

https://www.india-briefing.com/news/the-disabilities-act-india-what-employers-
need-to-know-15755.html/
http://www.legalserviceindia.com/legal/article-98-rights-of-disabled-
persons.html
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5419007/

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Statutes referred

1. The constitution of India 1949


2. Income Tax Act 1961
3. Mental health act 1987
4. Hindu Succession Act 1956
5. Designs Act 1911
6. The person with disabilities (Equal opportunities, protection of rights and full
participation) Act 1995
7. Disabilities Act 2016

Case laws referred

1. [(1999) 1 SCC, 467]


2. [AIR 1971 SC 1762]
3. [AIR 1990 All 258]
4. [1993 Supp (4) SCC, 505]
5. [AIR 2017 All 202]

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THANKYOU

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