Words Like "Disabled," "Physically Handicapped" & "Mentally Retarded" Offend Human Dignity Of Persons With Different Abilities: Pakistan SC [Read Judgment]

The judgment, rendered by a 3-Judge Bench of Pakistan's Top Court, makes a paradigm shift in the approach adopted by the society towards specially-abled persons. It holds that usage of such words offends human dignity of persons with different abilities, and the same must be stopped forthwith.

The ruling emphasizes that there are there are two main "threads" to the concept of disability: (i) the medical model; and (ii) the social model.

While the former refers to disability as a condition requiring medical intervention, the Bench observed, the social model looks at it as a condition that requires the transformation of societal attitudes and state policies.

"The medical model views disability as an impairment due to various health related factors which can be identified and eradicated through medical treatment. While the social model identifies systemic barriers, negative attitudes and exclusion by society and argues that societal attitudes and environment are the main barriers for people with disabilities," the Court stated regretfully.

It noted that the problems faced by persons with different abilities are two-fold:

(i) employers have the "erroneous assumption" that these people will underperform in most areas of their duties;

(ii) the majority of workplaces are not made accessible to people with disabilities and the employers may feel that they will have to make an unwarranted investment to provide facilities for people with disabilities.

The judgment deprecates such an outlook and focuses on social and economic "inclusion" of people with disabilities.

It stresses that people with disabilities must not be viewed as "objects of mercy", treatment and social protection. Rather, they should be perceived as "subjects possessing rights", which they are able to claim, make decisions and be active members of society.

"This legal act is based on values arising from fundamental human rights. It guarantees people with disabilities equal access to institutions and the possibility of pursuing social activities and fulfilling the roles on the same principles as those who are able-bodied," the Court remarked.

The observations have been made in an appeal preferred by one Malik Ubaidullah against an order of the Lahore High Court which dismissed his challenge to the selection process under Disability Quota, as prescribed under the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981.

The Ordinance allocates 2% Disability Quota for employment at an establishment. Section 10 of the Ordinance provides that not less than 2% of the total number of persons employed by an establishment at any time shall be PWDs.

In the judgment, the Pakistan Supreme Court has made a distinction between application of the quota to 'sanctioned posts' and application of the same to 'advertised posts'.

Holding the latter to be "adverse" to the interest of the PWDs, the Court held that Disability Quota for establishments should first be worked out on the basis of the total sanctioned posts and then it may be apportioned against the total sanctioned strength of different categories of posts.

The bench explained that the 2% Quota can only be actualized if there is a minimum of 50 posts advertised (2% quota amounts to 1 seat per 50 seats). Thus, if Disability Quota is calculated on the basis of the advertised posts, the fate of the PWDs would continue to "hang in the balance" and remain uncertain unless the posts advertised happen to be above 50.

It held,

"It is, therefore, in the interest of the PWDs that the Disability Quota for the establishment is first worked out on the basis of the total sanctioned posts and then apportioned against the total sanctioned strength of different categories of posts. Thereafter, the posts can be successively filled as and when the vacancies arise through advertisement, keeping the total Disability Quota in mind rather than the number of posts advertised.

…Filling the Disability Quota on the basis of advertised posts is, therefore, detrimental to the interest and welfare of the persons with disabilities; is against the letter of the law and offends their fundamental right to life and livelihood and their right to dignity."

The Court proceeded to remark that appointment of persons with disabilities under the Disability Quota is only "half the story".

The other half and perhaps the more important half, the Court observed, is to provide the infrastructure, access, support, and facilities, so that persons with disabilities, once appointed to a post, can perform their job without feeling physically or emotionally incapacitated in any manner.

"The biggest barriers to the employment of persons with disabilities is the accessibility and their social acceptability at the workplace. The Government and the concerned establishment is bound to make provisions for it, for otherwise, the Disability Quota and the purpose of the Ordinance will stand frustrated and serve no useful purpose," the Court ordered.

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