ABSTRACT
Disability as an evolving concept set out by the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) underlines the need to adopt a flexible definition of disability. Quantifying disability, while extending rights to persons with disabilities, sacrifices the needs of the individual and seemingly advantages the group. The Indian Supreme Court in two contrary decisions has dealt with the disadvantages emerging from quantification. In one instance it held that a person with a higher level of disability could not expect to hold a judicial office, and in the other it held that the support of a scribe was to be extended even though the threshold level of disability was not present. The chapter seeks to explain the difference between the decisions. It will look at disability-based discrimination law in India, which straddles two distinct branches of law: labour law and discrimination law. Labour law has been a result of historical struggles and has been built around many normative frameworks including a rights-based framework along with frameworks of exploitation and others. It has traditionally ignored many identity-based demands, and disability is a major gap in labour law frameworks which are largely focused on able-bodied persons. International human rights such as rights emanating from the UNCRPD are being incorporated into labour law in order to transform the understanding of disability. Discrimination law, on the other hand, largely based on individual claims, has been rooted in a liberal framework not sufficiently open to group claims. The chapter uses Noah Datz’s proposition that the two branches can benefit from being read together. Datz writes that while labour law focuses on decommodification, discrimination law focuses on employer behaviour that does not treat workers strictly as factors of production but is inflected with bias. 1
The chapter examines how discrimination law can benefit from the principles that underlie labour law (e.g. questions of dignity, autonomy and citizenship) which allow it to move beyond specific acts of discrimination and look at more structural and systemic forms of discrimination. The specific context is the definition of disability as an objective exercise of quantification of disability in ensuring equal opportunities.
