On May 12, a single-judge bench of Justice G.R. Swaminathan of the Madras High Court held that persons suffering from mental retardation or mental illness are entitled to have their assessment done at the place where they reside for the purpose of issuing certificates under the Rights of Persons with Disabilities Act, 2016 without any hassle or difficulty. The Leaflet breaks down the decision and its implications for the welfare of differently-abled persons.
Saikumar suffers from severe anxiety disorder and can neither speak nor move freely. The petitioner, being on the verge of becoming a nonagenarian, wanted his mentally disabled son to avail the family pension benefits after his death. To obtain the said benefit, a disability certificate would be needed to be issued; the same can be issued after the disabled person undergoes assessment at a prescribed institute.
In the present case, disregarding a “permanently mentally disordered” certificate issued in favour of Saikumar by the Madras Medical College, the Institute of Mental Health at Kilpauk insisted that Saikumar must be brought to the premises of the institute for assessment. Consequently, Saikumar was taken to the institute via an ambulance after a group of paramedical staff literally bundled him into the vehicle. Post assessment, it was noted that he was mentally retarded but this was deemed insufficient for issuance of a certificate. The institute insisted on conducting a few more tests and asked for Saikumar to be brought back.
Talking about the assessment process, Justice Swaminathan observed that it must be as simple as possible. It must not cause any difficulty or trauma or even the least burden to the individual concerned.
Since he was traumatized by what happened the first time around, he developed severe anxiety and the petitioner’s daughter informed the concerned officials that it was not possible to bring Saikumar for further assessment. The institute declined to pay heed to the same. Left with no other option in sight, the present writ petition was filed at the high court to direct the respondents to issue the certificate.
What was the question before the court?
The single-judge bench of Justice G.R. Swaminathan of the Madras High Court was faced with the question of whether the certifying authority can insist that the person for whom the certificate of disability is sought should physically come to the premises of the institution for the purpose of assessment even though they may be unable to come.
Deploring the rigid stand of authorities in issuing documents for the differently-abled, Justice Swaminathanwrote in his order: “Inverting the old phrase, I must observe that if Mohammed will not come to the mountain, the mountain must go to Mohammed.”
Talking about the assessment process, Justice Swaminathanobserved that it must be as simple as possible. It must not cause any difficulty or trauma or even the least burden to the individual concerned. He also took judicial notice of the fact that bringing such persons to a crowded place like a government hospital would trigger considerable stress and anxiety in them. One does not know what can trigger panic and anxiety, given that there are children who see an ordinary balloon and go berserk. In light of these observations, the court ordered:
“It is clinically appropriate that assessment for issuing such certificates is done at their homes. I, therefore, hold that persons suffering from mental retardation or mental illness are entitled to have the assessment done at the place where they reside.
It is true that dignity of the individual is the fundamental notion underpinning all the fundamental rights guaranteed under Part III of the Constitution. Thus, obtaining a certificate of disability under Section 58 of the Rights of Persons with Disabilities Act, 2016, without any hassle or difficulty is a right of the disabled person under Article 21. Without obtaining the certificate, the disabled will be denied access to certain fundamental rights and facilities which are necessary for leading a quality life.
Section 18(5)(d) of the Mental Healthcare Act, 2017 states that the appropriate government shall ensure that no person with mental illness (including children and older persons) shall be required to travel long distances to access mental health services, and such services shall be available close to a place where a person with mental illness resides.
Providing an easy model to implement the order, the bench observed that in a state such as Tamil Nadu where the state government has already introduced the Illam Thedi Kalvi (Education at doorsteps) scheme, the same model could be applied to the case at hand. The court remarked: “The bureaucracy of the Indian State is described as its steel frame. It must be malleable enough to reach out and address the needs of the last person.”
The present order brought to the fore many constitutional provisions available to Persons with Disabilities. For instance, under Article 41 of the Constitution, the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to public assistance in cases of sickness and disablement, and in other cases of undeserved want. In furtherance of the same, the Supreme Court has held that any statute has to be interpreted so as to advance Article 41. Moreover, the State has a special obligation to provide special treatment to the differently-abled, depending on the special needs of the concerned category of disabled.
The court also stated that persons with disabilities have a right to happiness and to lead a happy life. Article 14 of the Constitution guarantees that the State shall not deny to any person equality before the law or the equal protection of laws. As unequals cannot be treated equally, special provisions have to be made to enable the integration of persons with disabilities into the social mainstream, and they will have to be treated on a different footing altogether.
In the backdrop of such legislation and the fact that the disabled people are still facing difficulties, as highlighted in the present case, the reasoning of the high court could not have come at a more opportune time. The ruling that mentally disabled persons are entitled to have assessment done at their homes for a disability certificate goes a long way in addressing the administrative challenges faced by people with mental disabilities.
Does India have any international obligations to advance the rights of the disabled?
According to a government report, as per the 2011 Census, the differently-abled population in India is a whopping 26.8 million. In percentage terms, this stands at 2.21 per cent of the total population. The percentage of men with disabilities is 2.41 percent as against 2.01 for women.
Total Population and the population of disabled persons in India – Census 2011
An analysis from the lens of social groups shows 2.45 per cent of the total disabled population belong to the Scheduled Castes (‘SC’), 2.05 percent to the Scheduled Tribes (‘ST’), and 2.18 percent to the rest of the population.
Percentage of disabled population by social groups in India – Census 2011
The percentage of persons with disability who were living alone was 3.7 per cent. The percentage of persons with disability who received aid/help from the government was 21.8 per cent, while 1.8 per cent received aid/help from organisations other than the government; worryingly, a massive 76.4 per cent did not receive any external aid/help. Another matter of concern is that among persons with disability, only 28.8 per cent had a certificate of disability.
As per the 2011 Census, the differently-abled population in India is a whopping 26.8 million. In percentage terms, this stands at 2.21 per cent of the total population.
These figures highlight the significance of the high court’s order and showcase the sheer number of lives that would be benefited by it, since their path towards obtaining a disability certificate for obtaining public or private aid would now become easier. Further, while there could be various purposes behind obtaining a disability certificate, scholarships schemes and pension benefits form a major part of it, making students (falling within the 20-29 years age bracket, constituting 16 per cent of our disabled population) and the elderly (60+ years, constituting slightly over a fifth of our disabled population) the most important stakeholders.
These figures also serve as an incentive for governments to delve into the issue, and establish a standard protocol for such cases and address the needs of the disabled.
What is the paradigm shift in disability jurisprudence that the decision refers to?
A paradigm shift is defined as an important change that happens when the usual way of thinking about or doing something is replaced by a new and different way. Justice Swaminathan noted that the shift from “welfare” to “rights” is a paradigm shift in disability jurisprudence. To back this up, he cites American journalist Joseph P Shapirowho, 30 years ago, in his book ‘No Pity: People with Disabilities, Forging a New Civil Rights Movement’ made a case for welfarism. However, according to the bench, that is no longer the case.
He quotes German jurist and academic Theresia Degener, who has written:
“Human dignity is the anchor norm of human rights. Each individual is deemed to be of inestimable value, and nobody is insignificant. People are to be valued not just because they are economically or otherwise useful but because of their inherent self-worth.”
Justice Swaminathan noted that the shift from “welfare” to “rights” is a paradigm shift in disability jurisprudence.
Thus, the paradigm shift in the present case is a shift in the discourse on the rights of the disabled. The current discourse correctly focuses on disabled people getting their share of rights because they form a part of basic human rights, and not because they deserve it on account of State welfare, which was the case earlier.