Monday, December 31, 2012

Indian Air Force becomes the first Force in India to retain a para plegic combatant soldier

Dear Colleagues,

Please refer to my earlier posts titled Defence Ministry extends some disability benefits under Section 47 PWD Act.

In first incidence of its kind and thanks to Air Chief Marshal NAK Browne's insistence, the Defence Ministry  agreed to grant a commission to a cadet who became paraplegic after his trainer aircraft crashed. The cadet form Manipur has been on wheelchair for nearly 16 months.

I welcome this move from the Indian Air Force who have come forward to implement in true sense the Disabilities Act 1995 and the UN Convention on the Rights of Persons with Disabilities by respecting the inherent dignity of a person with disability and granting him the employment benefits.  We have seen in the past several cases where the promising combatant members were medically boarded out leaving them in lurch for entire life.

This I am sure will send very positive message down the ranks that they can be rest assured that the force stands behind them when they are taking risks on duty!

Sensitization is so important

Another significant point to be noted in this case is the "sensitization of the Air Chief Marshal" that came about by the Air Chief's interaction and working with Wing Commander Limaye who too had become a paraplegic after a fighter aircraft accident and the Air Chief has served in the same unit where Limaye worked. Such is the strength of the sensitization and awareness raising. This further proves how important is the Article 8 of UN Convention on the rights of persons with Disabilities and more opportunities to provide inclusive set ups where the non-disabled and disabled  interact and work together.  

Here is the news report from Telegraph India


Air force first for stricken Hero - Remorseful Defence ministry to grant never-before commission to topper cadet caught in trainer aircraft crash

New Delhi, Dec. 22: A remorseful defence ministry today bowed to pressure from the air force and accepted Air Chief Marshal N.A.K Browne’s plea to grant a commission to a cadet who became paraplegic after his trainer aircraft crashed.“I owed it to him,” Browne told The Telegraph about 23-year-old Rajkumar Herojit Singh, a youth from Manipur who was a topper at the Air Force Academy and was training to fly fighter aircraft.

The Indian Air Force has never granted commission to a physically disabled cadet in the past. The exception goes to show how desperate it has been to send out the message to its men that the top brass cares for them despite a shortage of quality equipment.

The air chief also said a defence public sector’s delivery schedules had proved “too costly” for the force and “the time for experimentation is over”.

When this newspaper telephoned Herojit this afternoon, he was preparing to go to a special swimming pool near the Military Hospital in Kirkee. He said he was much better now and that Browne had called him to convey the decision.

Although bound to a wheelchair for nearly 16 months, Herojit said he started exercises and physiotherapy at 8am every morning for five hours. After a two-hour rest, he goes swimming — Browne termed Herojit “an excellent swimmer” — and then works on his laptop.

“I am even able to stand up and walk a little now with the help of equipment and I play table tennis from my wheelchair every day,” Herojit said.

The youngest of five siblings, he will begin training for ground duties (accounts branch) on January 9. He is likely to be commissioned by June.

Browne said he was moved by Herojit’s determination when he went with the unprecedented request to the defence minister. “When I met Herojit (after his crash) I told him that this is uncharted territory (requesting for commission to a physically disabled cadet) but I will do what I can. But he was enthusiastic and convinced me that he wanted to continue in the air force,” said Browne.

Herojit had completed nearly 80 per cent of his basic training. He was adjudged “the most accomplished flight cadet” of his course before he ejected from his HAL-produced Kiran trainer aircraft, which caught fire in mid-flight on August 28, 2011.

The chords of Herojit’s parachute got caught in power transmission lines from which he dangled for a few seconds before plummeting to the ground. The fall damaged his spine and rendered him paralysed waist downwards.

On November 6, this newspaper had reported Herojit’s plight, the IAF chief’s plea to defence minister A.K. Antony, and the reason for the government’s remorse after it found funds for VVIP helicopters but not enough for basic trainer aircraft like the outdated Kiran.

Browne also said the air force did not want the defence public sector Hindustan Aeronautics’s proposal to manufacture basic trainer aircraft to be accepted.

The air force has already contracted 75 Swiss-made Pilatus aircraft, the first 14 of which are expected to be inducted by June next year for the primary stage of training fighter pilots.
HAL has proposed to the government that it will produce an aircraft called the HTT-40 (Hindustan turbo trainer) but the air force is upset with the public sector firm’s failure to meet delivery schedules.

“I can tell you that the IAF does not want it to happen. They made the proposal in 2009-2010 and they expect us to fund their R&D (research and development) by about Rs 500 crore. We do not have that kind of money. The time for experimentation is over,” Browne said.

He said the IAF would need a total of 182 Pilatus aircraft. These are expected to be delivered much before the seven-year timetable that HAL has projected.

“The delay has already proved too costly. HAL has made zero progress,” the Air Chief Marshal said. He said HAL’s proposed HTT-40 aircraft “would also be significantly costlier” than the Pilatus.

Browne said that with the government accepting the request to grant a commission to Herojit, the air force was also telling its personnel that “we will not leave our people or equipment behind”.

Browne, who has earlier been the western air commander, has demonstrated this belief in the past. After a Mi-17 helicopter had a hard-landing at 15,000 feet in Changtash, Ladakh, he selected a team of mountaineers and engineers to travel to the rarefied heights.
The team salvaged the aircraft and repaired it. The chopper this year flew in the Air Force Day parade.

Browne said that in taking up Herojit’s case, he had been moved by a colleague, Wing Commander Limaye, who too had been left a paraplegic after a fighter aircraft accident. Limaye is based in Pune where Browne had served.

The air chief said another colleague who was a quadriplegic was now able to write by holding a pen in his mouth and was being treated in hospital.

Herojit’s family is based in Imphal where his father retired from the Manipur Fire Services. His mother is a homemaker. One brother is in Imphal while another and two sisters are either working or studying in Pune.

Source: Telegraph India


Thursday, December 13, 2012

Defence Ministry extends some Disability Benefits under Section 47 PWD Act

Dear Colleagues,

New Delhi, 12.12.2012

Please refer to my earlier post titled Non-discrimination, UNCRPD and Disabled Soldiers in India dated 15 Nov 2012. 

Hon'ble Defence Minister Mr. AK Antony, who has been known to be a very sincere Minister of UPA government,  has given following written reply in Lok Sabha today regarding Disabilty benefits to Defence Personnel on a question raised by Sh. PC Gaddigoudarin, 

"Armed Forces personnel who are retained in service despite the disability held attributable to or aggravated by military service are entitled to lumpsum compensation of disability / war injury element at the time of disability. Those who do not opt for the retention are entitled to disability pension / war injury pension on retirement / discharge. No disability pension / war injury pension is admissible on retirement / discharge once the lumpsum compensation has been obtained by the personnel. The primary factor for awarding disability benefit to disabled personnel is the establishment of a causal connection between disablement and military service by the Competent Authority. Accidents during the journey from duty station to leave station and vice-versa are also generally considered attributable to military service."



You may get afflicted by disability if you take bribes- say DDA's posters

Dear Colleagues,

Disability is a result of your past mistakes or karmas and can afflict you if you engage in corruption or bribery - says the Delhi Development Authority through brightly colured posters that are seen in DDA buildings to discourage people from taking bribes.

The posters say that wealth amassed by taking bribes is spent on diseases. To put the point across, the posters show pictures of people afflicted with leprosy, skin diseases and deformities. I am surprised by the ignorance of DDA about UNCRPD and that they still continue to reinforce the stereotypes about disability. This also shows in what light they view persons with disabilities which is bound to reflect on their actions in dealing with persons with disabilities as employees, stakeholders, consumers etc.

Here is some news coverage from Hindustan Times on such move:

DDA posters offend disability rights activists

The Delhi Development Authority (DDA), while celebrating its annual vigilance week recently, planned to do something different and put up several colourful posters across its offices in the Capital. Made to create awareness, the posters have instead ended up offending many. The brightly  coloured posters with some shocking visuals, which dot every corner of the DDA’s several offices, say that wealth amassed by taking bribes is spent on diseases. To put the point across, the posters show pictures of people afflicted with leprosy, skin diseases and deformities.

Though the idea behind the posters was to create awareness, the visuals have not gone down well with many DDA employees.

“The posters are highly objectionable as these are discriminatory and portray people with disabilities in a bad light. There are many of our colleagues who are visually or physically disabled and they are hurt by this gesture of our vigilance department, which has prepared the posters,” said Sukhbir Sharma, president, joint action committee, DDA trade unions and engineers, which is an umbrella body of all employees’ unions of the DDA.

The committee has written to the Delhi lieutenant governor Tejendra Khanna, who is also the DDA chairman, to order the immediate removal of the posters.

“To create awareness about corruption, the posters could have just given numbers of nodal officers to be contacted if asked for a bribe,” he said. “The DDA has been trying to bring people with disabilities into the mainstream, but on the other hand it is discriminating against them in such way.”

“People putting up such posters need to be sensitised first before those taking bribes. It is highly discriminatory and spread such wrong notions about people with disabilities,” said Anjalee Agarwal, director, Samarthyam.

“Such posters reinforce the stereotype that disability is a result of your past mistakes or karma. We condemn any such move and the posters should be removed immediately,” said disability rights activist Javed Abidi. “By trying to remove one evil, the DDA is promoting another,” he said.

Abidi said that such an insensitive act by the DDA washes away the fight against such strongly ingrained stereotypes. Senior DDA officials couldn’t be contacted for comments despite repeated attempts.



Friday, December 7, 2012

A critique of the Draft Rights of Persons with Disabilities Bill 2012


Dear Colleagues,

The recent draft put up by the Ministry of Social Justice & Empowerment, Government of India on its website seeking comments from the states appears to be old wine bottled in a new case with a new name. To me, it is more philosophical and less implementable in the courts of law since it doesn’t give a time frame to many of the provisions. It even takes away many of the positive provisions of the existing statute, Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation Act 1995 (hereafter referred to as existing Act).

We need to understand that the whole process of ministerial consultations on amendment to the PWD Act 1995 was over when the UNCRPD came into force in 2007, and the whole process got stalled since the disability sector wanted more time to understand the UNCRPD and then suggest changes in the law.

The UNCRPD introduces a paradigm shift in the discourse relating to persons with disabilities which is based on three pillars – the presumption of legal capacity, equality, and dignity for persons with disabilities.

We as lawyers have tried and tested the existing Act in the court of law and have found it extremely helpful in restoring some of the rights of the disabled. We also found many gaps and brought them to the fore during consultations and at various other forums.

The draft RPDB 2012 is significant for having come post-CRPD and post-consultations with the stakeholders; it must, therefore, pass the test of the simple questions below:
Does the new draft fill up the gaps found in the existing Act and match the aspirations of the stakeholders?

Does the new Bill, in the light of UNCRPD, recognize that the persons with disabilities are an integral part of human diversity, who enrich it with their vision, experience and creativity and therefore, does it ensure participation of persons with disabilities in society on an equal basis with others?


My observations are:

(a) The existing Act looks at the disabled people as a special vulnerable group for which special protective measures are required, whereas the new draft advocates all human rights to persons with disabilities so that they can live in community on an equal basis with non-disabled members of community which is a welcome move.

(b) Words like “within the economic capacity & development” have been removed which previously allowed the state to be selective.

(c) Sections of persons who got left out, such as people cured of leprosy, persons with mental Illness, intellectual disablement, multiple disabilities, muscular dystrophy, etc. who always got left out have been included in the definitions and in the entitlements of reservation in jobs which is a positive step.

(d) However, it is unreasonable to add persons with autism and intellectual disabilities with persons with mental Illness in one common category, since mental illness (recovered) is a distinct disability from the other two. The act is silent on how it would compensate those who have lived with mental illness for a considerable period. There is a long way ahead since the process of identification of jobs will only happen once the draft takes the shape of a law.

(e) The draft also talks about equal opportunity polices to be adopted by every establishment, however in the age of information technology it would be advisable to also mandatorily have these documents available on the specific website of the establishment; and to have a website must be made mandatory.

(f) It has many positive provisions such as definitions of barrier, widened interpretation of the term ‘establishment’ to include even societies and trusts in its fold; prohibited grounds; public buildings, universal design and discrimination on the basis of disability – all of which were earlier subject to interpretation of courts and authorities.

(g) Guiding principles are the hallmark of the new draft which can come to the rescue of courts, policy makers and implementing authorities in case of doubt.

(h) Legal capacity and equal recognition before the law, introduction of limited guardianship, reproductive rights, access to justice, education, work & employment, creation of grievance redressal mechanisms in establishments, health and insurance, leisure & sporting activities, provisions for high support are welcome provisions.

(i) The duties of the state on accessibility, mobility, ICT, service animals, HRD, certification of disability and registration of institutions have been succinctly included.

(j) Review & revision in identification of posts: Similarly, Section 38 of the draft talks about identification of posts and to review and revise the list of identified posts taking into consideration developments in technology. However, it doesn't include a condition that specifically makes it possible for the review process to only add further posts and not reduce the posts already identified.

(k) Insurance: Insurance has been an area where the actuaries rule. All their books and views seem to underwrite the life of persons with disabilities as highly risky, vulnerable to accidents and death, though there has never been an empirical study to suggest this thought or belief. The draft talks of comprehensive insurance benefits for the disabled, but it is feared that they may be exposed to higher premiums with less maturity benefits. Actuaries have also traditionally completely denied insurance covers to those with neurological disabilities and underwritten the lives of disabled discriminating even on the basis of whether the disability was from birth or acquired after birth! We had a long battle in the Delhi high court after which the court allowed equal insurance at no extra premium for the PLI [postal life insurance policies run by the Department of Posts]. We hope this discrimination stops with the new provisions of the draft.

(l) Reservation in jobs for persons with disabilities: Prior to the existing Act, almost from 1985, the reservations in jobs – both in recruitment as well as in promotion were allowed to Group C & D. After the existing Act, it stood extended to Group A & B as well, in light of Department of Personnel & Training’s (DoPT) memorandums dated 04 July ’97 & 16 Jan ’98. However, over the years, the government took a stand that it was only meant to clarify for Group C&D and not for Group A & B and put this exclusion in black and white vide a consolidating  DoPT’s memo dated 29 Dec 2005, completely going against the mandate of the existing Act. The matter is sub-judice, and it challenges this interpretation of the government.

(m) Reservation in promotion: After the Sixth Pay Commission the Group D posts have been dissolved and Group C are being merged with Group B. In such scenario, the restrictive provision that reservation is only allowed from Group D to C has actually become redundant to persons with disability unless it is extended to all the groups i.e. A & B too.
(n) The current draft thus is a huge disappointment on this front. By making changes in the language it has taken away what was available to the stakeholders in the existing Act. It says “every appropriate government shall reserve, in every establishment under them, not less than 5% of the vacancies meant to be filled by direct recruitment”. Whereas the existing Act says “Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from….”

(o) All forms of appointments should be included in the purview of reservation viz. direct and indirect appointments, promotion, vacancies filled by deputation, contractual appointments etc.

(p) Similarly the reservation in all categories i.e. A, B, C & D has not been based on total existing cadre strength and merely on the number of vacancies being filled at a particular point of time. This is very restrictive and they may not bring forth proper representation of PWDs in the government services in next several decades.

(q) The vacancies continue to lapse in favor of non-disabled in the new draft also. This has to be stopped completely. We have seen in our practice that often posts are kept vacant in the garb of not finding a suitable candidate. The employer seems to have no responsibility to fill up the post and no duty is cast on him to fill up the post in the draft. The employer’s role to fill up the post must be widened by arranging Pre-recruitment training/coaching in all forms of employment and then fill up the posts positively.

(r) The draft seems to pardon the defaulting establishments from the purview of the existing Act by not addressing the issue of backlog vacancies. Filling the backlog vacancies in a given time frame for the period effective from year 1996 for the three disabilities, and for five disabilities from the day of promulgation of the new draft should be specified to form part of draft. [The three categories mentioned in the existing Act are blindness and low vision; hearing impairment; loco motor disability and cerebral palsy. The new Draft Bill proposes, in addition, the categories of autism, intellectual disability and mental illness; and multiple disabilities including deaf-blindness]

(s) There is no time-frame in the affirmative clauses in the draft. We have seen with our experience that to get a scheme under a section of the existing Act, we had to seek intervention of the court and then only several schemes were notified. Scheme for education in Section 30 is just one example. And we continue to see that despite the Census 2010-11 completed a long time ago, the data related to disability has not yet been released. The draft retains the Special employment exchanges which have been so far dysfunctional. These are simply a drain on the disability budget. It would be advisable to have these included in the general employment exchanges with special facility for the persons with disabilities in areas near their residences. Often special employment exchanges are just one or two in the entire state which put undue burden on the persons with disability to travel far distances to just get registered.

If the draft addresses the above concerns, it can, in my view reflect the aspiration of several disabled people. Otherwise, this would be termed as same old wine in a new bottle and with a new label!

The above critique has also been carried by Retina India Newsletter 

Tuesday, December 4, 2012

Making Mounuments accessible to Visually Impaired

Dear Colleagues,

A group of students at the School of Planning and Architecture (SPA) along with NGO Saksham, have come up with 12 miniature models of monuments from across the world to help blind children touch and try and understand for themselves by touching and feeling what the monuments looks like.  Till now,  a mere description of what a monument looks like was the closest they could come to seeing the real thing.

The students and design workshop faculty at SPA undertook the project to develop to-scale architectural models of well-known monuments and structures from around the world for the visually-impaired children at Saksham. The idea was floated by the NGO and quickly taken up by Vikrant Sharma, a guest faculty at the school.

"I heard about the idea that Saksham had and spoke to the first year students of the Workshop and Design class at SPA about it. It is a process that will benefit the visually-impaired children as well as the students as it will make them more socially aware and compassionate citizens," said Sharma.

The 70 students have worked in groups for 6 weeks and come up with 12 miniatures that go on display on Saturday at the school.

"If we had to indicate a water body, students have used wet sponge to recreate the effect since this project is more about the feel. Durability has also been kept in mind and the students have used materials such as plastic, plaster of Paris, PVC pipes and paints to recreate different textures," Sharma added.

According to members at Saksham, learning about heritage structures is very important for visually-impaired students.

"A visit to a museum, whether of art, local history or technology, or to a site of historical importance, is just as worthwhile for the blind and partially sighted as it is for visitors without visual impairments. They learn about their culture and past history," said Rumy Seth, member, Saksham.