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