Disability, transgender persons and the elderly

The first principle

A person in a wheelchair is not disabled by their legs but by the staircase, a transgender person is not excluded by their identity but by forms with two boxes, and an old person is not made dependent by age alone but by the loss of income, care and company. This is the social model of exclusion: the barrier lies in how society is built, so the remedy is to change society, not the person. The three groups in this note are protected by rights based laws resting on this idea, and the question for each law is whether it has changed the staircase or only described it.

The core

Persons with disabilities

• Size of the group. Census 2011 counted 2.68 crore persons with disabilities, 2.21 per cent of the population, a figure widely regarded as an undercount because the census used a narrow definition.
• United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), 2006. It shifted disability from charity and medicine to human rights, with dignity, autonomy, full participation and reasonable accommodation as its pillars. India ratified it in 2007.
• Rights of Persons with Disabilities (RPwD) Act, 2016. It replaced the 1995 Act to bring Indian law in line with the UNCRPD. It raised the recognised disabilities from 7 to 21, adding conditions such as autism, specific learning disabilities, acid attack, thalassaemia and Parkinson's disease, and allowed the Centre to add more.
• Benchmark disability and reservation. A person with at least 40 per cent of a specified disability has a benchmark disability, which brings 4 per cent reservation in government jobs, 5 per cent in seats in government and aided higher education institutions, and free education from 6 to 18.
• Accessibility and non discrimination. The Act makes denial of reasonable accommodation a form of discrimination, and requires public buildings, transport and digital services to become accessible within set time limits.
• Institutions and enforcement. A Chief Commissioner at the Centre and State Commissioners hear complaints and monitor the Act, Special Courts in each district try offences, and the Act punishes contravention with fines and atrocities against persons with disabilities with imprisonment of six months to five years.

Transgender persons

• National Legal Services Authority (NALSA) v Union of India (2014). The Supreme Court recognised transgender persons as a third gender, held that the right to self identify one's gender flows from Articles 14, 15, 16, 19 and 21, and directed governments to treat them as socially and educationally backward for reservation and welfare. Navtej Singh Johar v Union of India (2018) decriminalised consensual same sex relations, removing a law that had been used to harass transgender persons.
• Transgender Persons (Protection of Rights) Act, 2019. It prohibits discrimination in education, employment, healthcare, property and public services, gives a right to reside with one's family, and lets a person obtain a certificate of identity as transgender from the District Magistrate (DM). A person who undergoes surgery may apply for a revised certificate as male or female, supported by a certificate from the medical superintendent. It created the National Council for Transgender Persons to advise the Union government.
• Size of the group. Census 2011 recorded about 4.9 lakh persons in the "other" gender category, again thought to be an undercount.

The elderly

• Size and trend. Census 2011 counted about 10.4 crore persons aged 60 and above, 8.6 per cent of the population. The India Ageing Report 2023 of the United Nations Population Fund (UNFPA) and the International Institute for Population Sciences (IIPS) projects the share to rise to about 15 per cent by 2036 and just over 20 per cent by 2050.
• Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Parents and senior citizens who cannot maintain themselves may claim maintenance from children or relatives who stand to inherit, before a Maintenance Tribunal headed by an officer of the rank of Sub Divisional Officer, up to ₹10,000 a month. A transfer of property can be declared void if the person receiving it fails to look after the elder, and abandoning a senior citizen is an offence.

Source: Census of India 2011; India Ageing Report 2023, UNFPA and IIPS.

Dimensions

• Constitutional. Article 41 directs the state to provide public assistance in cases of old age, sickness and disablement, and disability and gender identity have been read into equality and dignity under Articles 14 and 21. Since disability relief is a state subject in the Seventh Schedule, Parliament enacted the RPwD Act partly to implement the UNCRPD under Article 253.
• Economic. All three groups face exclusion from paid work: employers see disability as cost, transgender persons are pushed out of school and into begging or sex work, and most elderly workers come from the informal sector with no pension.
• Social. Stigma is the deepest barrier. Families hide disabled children, disown transgender children and, as joint families shrink and young people migrate, leave old parents alone.
• Health. Persons with disabilities need rehabilitation and assistive devices, transgender persons need gender affirming care without hostility, and the elderly carry several chronic diseases at once, often paid for out of pocket.
• Gender. Older women outnumber older men and are more often widowed, poor and dependent, which demographers call the feminisation of ageing, and disabled women face both disability and gender bias.

In practice

Judgements

• Vikash Kumar v Union Public Service Commission (2021). A candidate with writer's cramp, which is not a benchmark disability, was held entitled to a scribe, because reasonable accommodation is a right of every person with a disability and denying it is discrimination.
• Rajive Raturi v Union of India (November 2024). The Supreme Court held that the accessibility rule under the RPwD Act had become merely advisory guidelines, which the Act does not permit, and directed the Union to frame mandatory minimum standards of accessibility, which may then be raised progressively.

Schemes and their reach

• Accessible India Campaign (Sugamya Bharat Abhiyan), 2015. Run by the Department of Empowerment of Persons with Disabilities, it set targets for accessible government buildings, transport and websites, many of which were missed and extended.
• Unique Disability Identity (UDID) card. It gives one national disability certificate and card, so a person need not prove disability afresh for each scheme. The Assistance to Disabled Persons (ADIP) scheme supplies aids and appliances.
• Support for Marginalised Individuals for Livelihood and Enterprise (SMILE), 2022. This scheme of the Ministry of Social Justice and Empowerment covers transgender persons and persons engaged in begging, and funds Garima Greh shelter homes, skilling and medical care. A national portal now issues identity certificates online.
• For the elderly. The National Programme for Health Care of the Elderly (NPHCE), 2010 creates geriatric wards and clinics from district hospitals down to health centres. Since October 2024 the Ayushman Bharat Pradhan Mantri Jan Arogya Yojana (PM JAY) covers everyone aged 70 and above regardless of income, through the Ayushman Vay Vandana card, with cover of up to ₹5 lakh a year. The Atal Vayo Abhyuday Yojana (AVYAY) of the Ministry of Social Justice and Empowerment brings together old age homes, assistive devices under the Rashtriya Vayoshri Yojana and the Elderline helpline 14567, while the Indira Gandhi National Old Age Pension Scheme pays a central pension to elderly persons below the poverty line.

Issues and way forward

• A legal document without sensitisation. The RPwD Act is strong on paper, but the clerk who refuses a scribe, the teacher who cannot teach a child with dyslexia and the doctor who certifies disability by percentage alone have rarely been trained in it. Compulsory disability training for civil servants, police, teachers and doctors, and disability awareness in school curricula, would turn the law into practice.
• Weak enforcement. Commissioners can only recommend, many states have not notified Special Courts or appointed full time Commissioners, and jobs reserved for disabled persons stay vacant. Giving Commissioners the power to enforce orders, and auditing vacancies yearly, would help.
• Accessibility deadlines missed. After Rajive Raturi, mandatory and enforceable standards with audits by persons with disabilities themselves should replace voluntary targets.
• Medical gatekeeping of gender. The 2019 Act's demand for proof of surgery before a revised certificate contradicts the self identification recognised in NALSA, offences against transgender persons carry a maximum of two years against much heavier sentences for similar offences against others, and the NALSA direction on reservation has not been implemented by the Union. Removing the medical requirement and equalising penalties would align the law with the judgement.
• Ageing before getting rich. India is ageing at a lower income than richer nations did, with weak pensions and few trained geriatric staff. Universal social pensions, home based care through community health workers and trained caregivers, and day care centres would prepare the country for the doubling of its elderly share.
• Data gaps. Census 2011 is the last count for all three groups, so plans rest on old and narrow numbers. The next census and national surveys should use the functional questions of the Washington Group on Disability Statistics and record gender identity properly.

Common confusions

• Disability and benchmark disability. Every person with a specified disability is protected from discrimination, but reservation and some benefits need a benchmark disability of at least 40 per cent.
• Medical model and social model. The medical model locates disability in the body and seeks a cure; the social model locates it in barriers and seeks their removal. The UNCRPD and the 2016 Act follow the social model.
• Transgender and intersex. Transgender describes a gender identity that differs from the sex assigned at birth; intersex describes variation in sex characteristics. The 2019 Act covers both.
• Maintenance under the 2007 Act and under criminal law. The 2007 Act gives elders a quick tribunal route and protects their property, while the general maintenance provision of criminal procedure law remains available alongside it.

For the exam

• Keyword bank: social model of disability, UNCRPD, reasonable accommodation, benchmark disability, Sugamya Bharat Abhiyan, UDID, Rajive Raturi, NALSA judgement, self identification, certificate of identity, SMILE, Garima Greh, Maintenance Tribunal, feminisation of ageing, Ayushman Vay Vandana.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "Census 2011 counted 2.68 crore persons with disabilities, and the India Ageing Report 2023 projects that more than one in five Indians will be over 60 by 2050."
  • Introduction with a judgement: "In NALSA v Union of India (2014) the Supreme Court held that gender identity is part of personal autonomy and dignity, so the state must recognise the gender a person identifies with."
  • Conclusion: "Laws for persons with disabilities, transgender persons and the elderly are now rights based; what remains is to sensitise those who apply them, so that the barrier in society, not the person, is changed."
  • Conclusion: "An inclusive society is measured not by how many laws it passes for its vulnerable citizens but by how easily they can enter a school, an office or a hospital."