Persons with disabilities, transgender persons and senior citizens

Detail

1. Why disability is a matter of rights, not charity

• Natural vs social inequality (NCERT, Class 11 "Equality"): some differences look "natural", like a physical disability. Technology can now change many of them.
• Examples: Stephen Hawking worked through assistive technology. A ramp lets a wheelchair user enter a building.
• So: if society can remove the barrier and refuses to, the inequality is a social choice, and it is unjust.

• The chapter's "Let's Do It" activity asks students to check what facilities their own school has for disabled students.

• Constitutional anchors:

• Article 41 (a Directive Principle, so courts cannot enforce it directly): the State must provide public assistance in cases of unemployment, old age, sickness and disablement. The same Article covers both persons with disabilities and senior citizens.
• Entry 9, State List (Seventh Schedule): "relief of the disabled and unemployable" is a state subject.

• Articles 14, 15 and 21 are the base used by the Supreme Court for dignity, accessibility and non-discrimination.

• UN Convention on the Rights of Persons with Disabilities (UNCRPD): a UN treaty adopted in 2006. India ratified it in October 2007.

• It moved disability from charity to rights.
• It uses the social model of disability: a person is "disabled" mainly by barriers in society (stairs, missing Braille, attitudes), not only by their own body.
• Article 9 of the Convention makes accessibility a duty. States must set minimum accessibility standards and check that they are followed [3].

2. From the 1995 Act to the RPwD Act 2016

Feature	PwD Act 1995	RPwD Act 2016
Disabilities covered	7	21
Job reservation (government)	3%	4%
Higher education seats	—	5%
Approach	Welfare	Rights (follows UNCRPD)
Enforcement	Weak	Special courts, penalties, accessibility deadlines

• Rights of Persons with Disabilities (RPwD) Act 2016: Parliament passed it in 2016 and it came into force on 19 April 2017, replacing the 1995 Act [2].
• 21 disabilities: these include acid-attack survivors, autism spectrum disorder, thalassaemia, specific learning disabilities (such as dyslexia), cerebral palsy, dwarfism, muscular dystrophy, Parkinson's disease, haemophilia and sickle-cell disease.
• Benchmark disability: a certified disability of at least 40%. Only a person with a benchmark disability gets reservation and some other benefits.
• Reservation:
• 4% of government jobs for persons with benchmark disabilities.

• 5% of seats in government and government-aided higher education.

• Accessibility duties with deadlines:

• Section 40: the Centre "shall" frame rules that set accessibility standards for buildings, transport and information and communication technology (ICT) [2][3].
• Section 44: a new building gets no completion certificate unless it follows the accessibility rules [3].
• Section 45: existing public buildings must be made accessible within five years of the rules being notified. The Centre can give states more time case by case [3].

• Section 89: fines for breaking the Act [3].

• Institutions (statutory bodies, meaning bodies created by a law of Parliament and not by the Constitution):

• Chief Commissioner for Persons with Disabilities at the Centre and State Commissioners in the states. They hear complaints and watch over how the law is applied.

• Special courts in each district try offences under the Act quickly.

• Accessible India Campaign (Sugamya Bharat Abhiyan): launched on 3 December 2015 (International Day of Persons with Disabilities). It aims to make three things accessible: the built environment (buildings), transport, and the ICT ecosystem (websites, documents).

• Data: Census 2011 counted 2.21% of India's population as persons with disabilities.

3. Disability rights in the courts

• Jeeja Ghosh v. Union of India (2016): an airline forced Jeeja Ghosh, a disability-rights activist with cerebral palsy, off a flight. The Court held that this broke her right to dignity under Article 21 and awarded compensation.
• Rajive Raturi v. Union of India (first judgment, 15 December 2017): the Court gave eleven action points. They covered government buildings, railways, airports, transport and ICT. Most states did not file their compliance reports [3].
• Vikash Kumar v. UPSC (2021): the candidate had writer's cramp, which is not a benchmark disability, and the Court still allowed him a scribe (a person who writes the exam for the candidate) in the civil services exam.

• Reasonable accommodation means the changes or adjustments needed so that a disabled person can use a right equally with others, as long as they do not put an unfair burden on others. It is a right in itself, not a favour.

• Rajive Raturi (second judgment, 8 November 2024):

• Background: the Court asked the Centre for Disability Studies, NALSAR University of Law to study the situation on the ground. Its report was titled "Finding Sizes for All" [3].
• Holding: most standards under Rule 15 of the RPwD Rules 2017 were only recommendatory guidelines, not binding rules. So Rule 15(1) was ultra vires the Act. "Ultra vires" means beyond the power the Act gives, and therefore invalid [3].
• Key idea: guidelines set an aspirational "ceiling", but the Act needs a non-negotiable "floor". "A ceiling without a floor is hardly a sturdy structure" [3].

• Direction: the Union must frame mandatory accessibility rules within three months, with NALSAR-CDS involved. After that, the penalties in Sections 44, 45, 46 and 89 must be enforced, including holding back completion certificates and imposing fines [3].

• Omkar Ramchandra Gond v. Union of India (2024): a benchmark disability alone cannot shut a student out of medical courses (MBBS). A disability board must check what the student can actually do.

4. Related rights-based health laws

• Mental Healthcare Act 2017:
• It gives a right to access mental health care paid for by the government.
• An advance directive is a written statement made in advance on how a person wants to be treated if they later lose the capacity to decide.
• A nominated representative is a person chosen by the patient to support their decisions.

• Section 115: a person who attempts suicide is presumed to be under severe stress and must not be tried or punished. In effect, this decriminalised attempted suicide even though Section 309 of the IPC stayed in the law books.

• HIV and AIDS (Prevention and Control) Act 2017:

• It bans discrimination against people living with HIV in jobs, education, health care, housing and insurance.
• HIV testing and treatment need informed consent, and test results must be kept confidential.
• An ombudsman (an official who hears complaints) in each state deals with complaints under the Act.

5. Transgender persons

• NALSA v. Union of India (15 April 2014):
• The Court legally recognised a "third gender".
• Every person has a right to self-identify their gender, without any need for surgery. This flows from Articles 14, 15, 16, 19(1)(a) (expression of gender identity) and 21 (dignity and autonomy).
• It told governments to treat transgender persons as socially and educationally backward classes, so they could get reservation in admissions and jobs.

• For the later decriminalisation of same-sex relations, see Navtej Singh Johar (2018) in the Fundamental Rights note.

• Transgender Persons (Protection of Rights) Act 2019: it was notified on 10 January 2020, and the Rules came in 2020 [4].

• Bans discrimination in education, jobs, health care, property and access to goods and services.
• Certificate of identity (Sections 6–7): the District Magistrate issues it on an application. No medical examination is needed for the first certificate [5].
• Revised certificate after surgery (Section 7): a person who has surgery to change gender to male or female must apply again, with proof of the surgery. Criticism: this sits uneasily with the NALSA principle of self-identification.

• Offences (Section 18): abuse, forced labour and denial of public places are punishable with imprisonment of up to 2 years and a fine [5]. Criticism: these penalties are lighter than the penalties for similar offences against women.

• National Council for Transgender Persons: constituted by notification on 21 August 2020 [4].

• It is chaired by the Union Minister of Social Justice and Empowerment.

• It advises the government on policy, monitors how the Act is applied, and handles grievances [4].

• SMILE scheme (Support for Marginalised Individuals for Livelihood and Enterprise): launched on 12 February 2022 by the Ministry of Social Justice and Empowerment [4].

• Garima Greh shelter homes give food, medical care and skill training to transgender persons in need.

• 21 Garima Grehs have been set up in 17 states [4].

• Supriyo @ Supriya Chakraborty v. Union of India (17 October 2023):

• The Court held that there is no fundamental right to marry. Recognising same-sex marriage is a matter for Parliament.
• The Union promised to set up a committee chaired by the Cabinet Secretary. The committee was constituted in April 2024 [8].

• It must suggest steps so that queer persons are not denied goods, services or welfare entitlements, do not face violence or coercion, and are not forced into medical treatment [8].

• State example: Karnataka (2021) gives 1% horizontal reservation to transgender persons in state government jobs.

• Horizontal reservation means the quota cuts across the vertical categories (SC, ST, OBC, General). A transgender person selected under it is adjusted within their own vertical category.

6. Senior citizens

• Constitutional anchor: Article 41 covers public assistance in old age.
• Maintenance and Welfare of Parents and Senior Citizens Act 2007:
• Duty: children and relatives who will inherit the property of a childless senior citizen must maintain parents and senior citizens (aged 60 or above). Maintenance covers food, clothing, housing and medical care [7].
• Maintenance Tribunal: headed by an officer of at least Sub-Divisional Officer (SDO) rank. It can order up to ₹10,000 a month, and no lawyer may appear before it [6].
• Section 23: if a senior citizen transfers property on the condition of being cared for and is then denied care, the transfer can be declared void (cancelled).

• Abandonment of a senior citizen is punishable with up to 3 months in jail or a ₹5,000 fine, or both [6].

• 2019 Amendment Bill: introduced in the Lok Sabha on 11 December 2019. The Standing Committee reported on 29 January 2021. The Bill lapsed [6]. Its main proposals were:

• remove the ₹10,000 ceiling and link maintenance to the parents' standard of living and the children's earnings [6];
• include step-children, adoptive children, children-in-law and guardians of minors in the definition of children [6];
• raise the penalty for abandonment or abuse to 3–6 months in jail or a fine of up to ₹10,000 [6];

• cut the time to pay maintenance from 30 to 15 days [6].

• Other measures:

• National Policy on Older Persons (1999).
• AVYAY (Atal Vayo Abhyuday Yojana): the umbrella scheme for senior citizens.

• IGNOAPS (Indira Gandhi National Old Age Pension Scheme), under the National Social Assistance Programme.

• Ayushman Bharat PM-JAY for everyone aged 70 or above:

• The extension came in October 2024, whatever the person's income [7].
• The Ayushman Vay Vandana Card gives ₹5 lakh of free health cover [7].

• About 6 crore senior citizens in 4.5 crore families are covered [7].

• Ageing data: the India Ageing Report 2023 projects a sharp rise in the share of older persons by 2050.

Prelims Hooks

• Article 41 names "old age, sickness and disablement". It is a DPSP, not a Fundamental Right.
• RPwD Act 2016: 21 disabilities (the 1995 Act had 7); 4% reservation in jobs, 5% in higher education; benchmark disability is ≥40%; in force from 19 April 2017 [2].
• Trap: acid-attack survivors, thalassaemia, autism and specific learning disabilities are all among the 21 disabilities under the 2016 Act, not under the 1995 Act.
• Sugamya Bharat Abhiyan began on 3 December 2015 and covers buildings, transport and ICT.
• Rajive Raturi (8 November 2024): Rule 15(1) of the RPwD Rules 2017 is ultra vires; the Centre must frame mandatory rules within 3 months [3].
• Case–principle pairs: Vikash Kumar v. UPSC (2021) → reasonable accommodation and a scribe for a non-benchmark disability; Jeeja Ghosh (2016) → dignity under Art. 21.
• Mental Healthcare Act 2017, s.115 → presumption of severe stress in a suicide attempt.
• NALSA (2014) → third gender and self-identification under Arts. 14, 15, 16, 19(1)(a), 21.
• Transgender Act 2019: the certificate of identity comes from the District Magistrate; the National Council (2020) is chaired by the Union Social Justice Minister [4].
• Senior Citizens Act 2007: tribunal cap of ₹10,000 a month, no lawyers, s.23 voids property transfers; the 2019 amendment bill lapsed [6].

Mains Points

• Rights vs welfare: the UNCRPD and the RPwD Act moved disability policy to the social model. Raturi (2024) shows the gap between law and practice.
• Most states did not file compliance reports after 2017 [3].
• The Centre relied on soft guidelines.

• Reform: mandatory floor standards, audits, and enforcement of Sections 44–45 through completion certificates.

• Self-identification vs state certification: the 2019 Act requires a District Magistrate certificate and a fresh certificate after surgery. Its penalties are also lighter. This dilutes NALSA.

• The SEBC (socially and educationally backward classes) reservation direction is still largely not applied at the Centre.

• Karnataka's 1% horizontal quota (2021) is a model that other states could adopt.

• Senior citizens: family duty vs state duty. The 2007 Act makes care by children legally enforceable. But the ₹10,000 cap, weak tribunals and the lapsed 2019 amendment limit its effect [6].

• India is ageing fast, so the stronger answer is universal health cover (PM-JAY for those aged 70+, October 2024) [7], better pensions under IGNOAPS, and geriatric care.

• Reasonable accommodation as part of equality: Vikash Kumar (2021) and Omkar Gond (2024) treat reasonable accommodation as a right, not a favour. This links to Article 14's idea of substantive equality (equality in real outcomes, not just equal rules).