Adjudicating Disability: Some Emerging Questions

The high courts are increasingly b eing called upon to address the question: why should conditions which are disabling in effect not be i ncluded within the ambit of the Persons with Disabilities Act 1995 (PWD Act or the Act), given the similarity between them and the categories of impairment covered by the Act? Claimants with conditions ranging from learning disabilities to heart attack and cancer have approached the courts arguing that they should be accorded the same protection and benefits that the law provides to those with visual or l ocomotor impairments.

The question of what constitutes “disability” has always been an issue of debate and disagreement among disability scholars (Barnes and Mercer 1996), activists and even government committees charged with suggesting changes to the disability law. The courts in India are, in a way, relative newcomers to this debate. Interventions by the courts can only take place within a limited framework set by the text of the legislation. But even as the legislative text promises “objectivity” and “certainty” by defining disability so as to limit the chances of varying interpretations, judgments discussed in this article illustrate exactly the opposite. It is therefore instructive to examine the factors that are taken into consideration by the judges while interpreting the statutory definition of disability. Examining the judicial discourse is all the more crucial at this point, as the government intends to replace the PWD Act with a new law, in conformity with the United Nations Convention on the Rights of Persons with Disabilities (CRPD) that it had ratified in 2007. Some of the questions that emerge from the judicial trends discussed in this article have a bearing on how disability may be defined for the purpose of the new law.