SPECIAL ARTICLE october 10, 2009 vol xliv no 41 EPW Economic & Political Weekly 62 The present article is part of a larger project on mapping the emerging disability jurisprudence in India. What we present here is a work in progress and hence our suggestions and arguments are only tentative in nature. Renu Addlakha (addlakhar@gmail.com) is with the Centre for Women’s Development Studies, New Delhi. Saptarshi Mandal (saptman@gmail. com) is with the Lawyers Collective – Women’s Rights Initiative, New Delhi. Disability Law in India: Paradigm Shift or Evolving Discourse? Renu Addlakha, Saptarshi Mandal The inclusion of disability as a subject matter of law and policy is a relatively recent development in India. An analysis of some landmark judgments delivered by the appellate courts between 1996 and 2007 under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act highlights the central characteristics of disability jurisprudence. This analysis provides an insight into the violations faced by persons with disabilities and the nature of litigation coming under the disability laws. It draws attention to the changing understandings of the notions of disability and personhood in society. C oncerns on the rights of the disabled in India became visi- ble in the public domain in the 1990s when a cluster of legislations was enacted by the Parliament. These were: Rehabilitation Council of India Act, 1992, Persons with Disabil- ities (Equal Opportunities, Protection of Rights and Full Partici- pation) Act, 1995 and National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabi- lities Act, 1999. Earlier, the Indian Lunacy Act, 1912 had been replaced by the Mental Health Act of 1987 which came into effect in 1993. The rise of the disability rights movement and the pro- active role of the United Nations propelled these legislative deve- lopments and laid the foundation for nascent disability jurispru- dence in the country. The most dramatic development in this regard has been the adoption of the Convention on the Rights of Persons with Disabilities ( CRPD) by the United Nations General Assembly on 13 December 2006, which has been ratified by most member states including India. Prior to these legislative enactments the concept of disability largely fell within the ambit of mental health/disability, which was a recurrent issue across a range of legislative domains such as marriage/divorce, adoption/guardianship, property and criminology. A person of “unsound mind” could not adopt, marry, contract, vote or run for elected office. 1 Underlying mental disability/health legislation was the undisputed con- struction of the mentally ill/mentally disabled person as essen- tially incapable of looking after herself and acting in her best interests. Consequently, a whole array of legal categories were generated to describe, justify and solidify the legal (and by extension social) incapacity of the person labelled mentally ill or deficient. Unsoundness of mind, mental infirmity or insanity, dangerousness, legal incompetence, diminished culpability, lack of autonomy and self-determination, legal representation, sur- rogate decision-making and guardianship became the bulwark of mental health law. Ironically, what precisely constitutes un- soundness of mind or insanity in the legal context was never de- fined with the judges relying on the testimony of expert witnesses (psychiatrists) in determining its existence and impact. The courts did not distinguish between imputed disability and the resulting incapacity. There was, however, no ambiguity regarding the non-person status of the mentally disabled persons: those placed under guardianship, for instance, lost all their personal/property rights, and confinement was deemed as the most suitable solution; there could be postponement of civil and criminal trial allowed on grounds of insanity. The situation of persons with physical disabilities