Guest Post by Rijul Kochhar
In the lives of the disabled, the disability certificate is a commanding entity. It is the artefact of government and the state that interprets the myriad experiences of persons dealing with disabilities, translating and transforming those experiences into a public fact. Thus, the disability certificate offers a particular form and definition of disability, with its attendant mathematical percentage, supplanting the shards of experience with bureaucratic rationality and certitude. This transformation of messy lived experience into mathematical and medical certainty, at once, also affects that larger lived experience of lives lived with a disability.
Given this centrality of the certificate to disability—and given the fact that without this certificate, no disability would be publicly recognized by the state—it is surprising that scant attention has been paid to this aspect in the otherwise spirited debate on the merits of the Rights of Persons With Disabilities (RPWD) bill (version 2013-14). This is a version of the bill that now stands before a standing committee in Parliament, having been introduced in the Rajya Sabha with perfunctory, overnight amendments, to replace the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It is also the version about which there is talk of promulgation through an executive ordinance, bypassing parliamentary and public consultation on a vital issue that affects millions of existing disabled persons and persons with disabilities yet to come. We deal here with how the promulgation of this deeply flawed version of the RPWD bill—through the ordinance route—not only keeps intact the lacunae of the version in Parliament, but also ends up harming all persons currently living with a disability in India.
To begin with, any ordinance ought to be promulgated in a scenario where it is certain that there is a viable, next-available parliamentary session in which the ordinance would be confirmed as an act of Parliament. This ensures the fundamental quality of any legislative act—a guarantee of the future, a protection against arbitrariness, and a certain measure of legislative and (pursuant to it) bureaucratic stability, till such time as Parliament, again, decides to amend, repeal or replace a legislation. The emergent election scenario in which the RPWD bill finds itself ensures a context that would lend itself to arbitrariness, an unclear future, and instability, as far as this legislation—promulgated as an ordinance—is concerned. The 15th Lok Sabha has finished its last session; unless this current political party wins the next election, there will be a political change at the helm of the executive; any ordinance must be ratified within six months by parliament, or it will cease to exist; a continuity within government usually ensures this ratification, but a change in government would bring about the emergence of a legal scene that is replete with uncertainty, arbitrariness, and instability. Within this scene, individuals would be caught up, and they would not have the existing Persons with Disabilities Act from 1995 to fall back on, nor would they have a clear status about their disability, given the opacity of the emergent RPWD legislation. So, we have a real possibility of having people certified as disabled under the Ordinance who would then be disenfranchised, again, after six months, in practice—in matters of recognition, employment, education or even loans—apropos the uncertain fate of legislation itself.
The Ordinance: A threat to persons already certified as disabled
The promulgation of the Ordinance would jeopardize the status of the existing persons with disabilities. This is because bureaucracies and offices would demand certificates from such persons as per the ordinance’s requirements, rather than accept the certificates that persons already legitimately possess through the existing law from 1995. The Ordinance would repeal this 1995 Act, and in doing so, it does not clearly state what the status of existing disability certificates would be. Bureaucrats, then, would be prone to abuse their powers, arbitrarily accepting or rejecting different classes of documents: elementary ethnographic explorations of bureaucratic work bring this to us again and again, and unless the law or the ordinance clearly moves to protect the status of existing disability certificates—say by making a specific declaration to that effect, pertaining to these documents that are central to people’s lives—then we would have a situation where all persons with disabilities would stand the danger of disenfranchisement, simply because their existing certificates would refused to be accepted by bureaucrats and offices. This is no small consequence; millions of people who possess the disability certificate—as a consequence of an act of parliament from 1995—would find that their legal status is jeopardized by the machinations of an ill-conceived ordinance that does not even enjoy parliamentary legitimacy. Thus, if you are disabled, you could be confronted by a bureaucrat who refuses to accept your existing certificate. Why? Because the proposed ordinance refuses to specify what the status of those documents is, and how they are to be included in a new legislative scenario with is own (and separate) documentation rules—rules that are yet to be formulated. Add to this the work of corruption and high-handedness that we so often witness in governmental offices, and you have a situation where the disabled would be compelled to scramble from pillar to post, from ‘daftars’ to courts, in order to have their existing documentation recognized by a petty bureaucrat. This is a recipe for chaos, and it includes an invitation to corrupt practices by bureaucrats, and desperation for the disabled who are already living with a recognized disability and its attendant documentation. Simply because we have a change in laws, without adequate safeguards and protections for those living under the existing law, we have an emergent scenario where those rights, that recognitions, those certificates, would lose their traction; they would become useless. And persons with disabilities would have to re-appear before the forbidding medical boards for recertification—a prospect that terrorizes any person living with a disability who has experienced the cruelties of the certification process. These cruelties deal not only with the type of invasive medical practice that they confront on their bodies, but they also extend to corrupt practices at hospitals—practices that deny, delay, or circumvent legitimate procedures of certification. Any ethnographic investigation of the experience of disability at medical hospitals in India would highlight this troubling aspect of certification—its invasive nature, its corrupt production, and its uncertain and arbitrary results in the hand of the ‘medical authority’—qualities that are a source of great stress and phenomenal anxiety for disabled persons. People with legitimate certificates would—in all possible ways—wish to avoid a repeat of the cruelties of this process, especially if specific provisions regarding certification in the 1995 law have, heretofore, shielded them from these excesses of certification beyond the necessary-poison of first time certification.
New Categories of Disabilities: False promises of recognition and resources
Any law or ordinance works only because there are bureaucratic rules to enforce them. Given that there is no possibility of a continuation of this Parliament pending election (which is only a couple of months away), if the RPWD bill is promulgated as an ordinance, then these vital rules—that would activate the legislation or ordinance—would not have been formulated. There just isn’t enough time. The 1995 law has behind it 20 years of rule-making and case law, declared variously in office-memoranda and cases dealt with by courts. In the case of this proposed ordinance, however, those rules simply don’t exist. And without these rules—which deal with everything from the protocols guiding certification at hospitals, to reservations in jobs, to accessibility in buildings etc.—nothing would be achieved for the disabled. The RPWD bill envisages extending the benefit of recognition and reservations to 19 categories of disabilities. But this recognition is a lie, a big joke. For, without the development of medical protocolswhich emerge out of the ‘rules’, following the enactment of legislation—the manuals on the basis of which doctors adjudge one’s disability, its severity, and its mathematical percentage, when one goes to claim one’s disability certificate—none of these newly included categories of disabilities would be possible to be judged by the medical authority. It took the government 6 years, from 1995 till 2001, to come up with the appropriate guidelines for evaluation of five categories of disabilities—mental retardation, Locomotor/ Orthopaedic disability, Visual disability, Speech & Hearing disability, and multiple disabilities. These guidelines form the exhaustive medical protocols which doctors use at hospitals whenever a person with a disability approaches them for the issuance of certification. These guidelines took 6 years to be formulated under various committees operating under the chairmanship of the Director General of Health Services. How many years do we think will it take to devise protocols for the 14 new categories of disabilities that the RPWD bill envisages for inclusion—new categories of disabilities that include autism spectrum disorder; cerebral palsy; ‘chronic neurological conditions’; deafblindness; haemophilia; leprosy-cured persona; low-vision; intellectual disabilities; muscular dystrophy; multiple sclerosis; learning disabilities; speech & language disabilities; thalassemia; and sickle-cell disease? Inclusion is a virtue, but its modalities need to be worked out. And remember, no lofty ideal of disability-inclusion and recognition can be achieved for the disabled, unless these respective medical protocols exist for these specific disabilities—no benefit of reservations, no recognition of one’s disabilities would be possible in practice. Thus, to say that the Ordinance would, overnight, include heretofore excluded categories of disabilities is, at best, an overestimation, and at worst, a big cruel lie. This is because the medical protocols by which the certification of these disabilities would occur, do not yet exist, and would take months, if not years, to be devised. And without certification, one receives no recognition of one’s disability by the state, and consequently, no form of benefit in the form reservations, etc. In the 1995 Act, merely five categories of disabilities took 6 years to have their respective evaluative protocols for certification; now we have an ordinance that promises to do the same for 14 other disabilities, and that too, overnight! This is a lie at the heart of the Ordinance, a lie that is deceiving all the supporters of the Ordinance, and it is a lie that needs to be exposed.
No matter what the Ordinance may claim or declare, without the formulation of rules and protocols for the production of disability certificates—rules and protocols that take years to be formulated—no new categories of disabilities would receive certification, and consequently, none will either receive recognition, or the seductive charms of things like reservations. For this recognition to be effectively carried out, and for provisions like reservation to be made available at all, we need a legislation that offers guarantee, stability, and rational actions. Ordinances, by virtue of their fixed lives, offer none of this, and in the context of the RPWD bill, where there is no further scope for parliament to convene, there is certainty that a vacuum would emerge after the ordinance lapses. Thus, no new categories would have received certification, and the benefits of recognition and reservations, for the Ordinance has no scope for devising medical protocols for the evaluation of these new categories of disabilities. And a step further, existing disabled persons, with recognized disabilities, would once again be at the mercy of bureaucrats who may choose to accept or reject their legitimate documents and certificates. They would, once again, be disenfranchised.
There are many monstrosities that the RPWD bill (version 2013-14) is haunted by. These pertain, variously, to the abortion of foetuses without the expecting-disabled woman’s consent; doubts about the extension of the Right to Education to children with ‘benchmark disabilities’, given anon obstante clause within the RPWD bill; the questionable provenance of full legal capacity for disabled individuals, along with doubts about plenary, as against limited, guardianship; the dangerous suggestion that parents or children may be separated from one another and families broken on the basis of disability; the dilution of full political participation; the ridiculous suggestion—in a time of increasing privatization of enterprises and services—that accessibility ought to be provided only by ‘establishments’ (read, government-run enterprises); the contravention of the Supreme Court’s judgment against the ongoing practice of ‘identification of posts’ for reservations, as against reservation regardless of the post; and the horrifying clause under section 3(3) of the RPWD draft that there shall be no discrimination against persons with disabilities solely on the basis of their disabilities, “unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim” (which basically invites the institutionalization of discrimination, by allowing persons and entities to get away with discriminating practices under one pretext or another, leaving the disabled individual to seek redressal, for every small act of another’s commissions and omissions, from the courts or the non-existent disability rights commission). These problems, in a word, are extensive. And they are catastrophic to substantive disability rights in the country. These have been discussed in detail, elsewhere, and they point to the absolute disregard for the United Nations Conventions on the Rights of Persons with Disabilities (UNCRPD), 2008, the international treaty that India ratified, and that has mandated an overhaul of the 1995 Act in the first place. As NALSAR has declared, in its contrast of the RPWD draft with the consultative version of the draft formulated in 2011 by the Sudha Kaul Committee, “Overall, the trend is that all rights and entitlements have been reduced to mere declarations of ‘the appropriate government shall’, with very little detailing of what the appropriate government shall, in fact, do”.
The Ordinance Way: Problems, Perplexities, Solutions
Passing an ordinance in a scenario where the 15th Lok Sabha has no possibility of being convened, again, to transform that executive action into legislation has its own ethical dilemmas, its own issues of impropriety, which get exacerbated when one considers the fact that a bill is being passed as an ordinance while it resides with a standing committee of the house for much-needed consultation, and when there are no pressing urgencies that demand the promulgation of the bill as an ordinance. Passing the RPWD bill 2014 as an ordinance would not only recuperate the horrors of the draft bill, a bill that is now before a standing committee of parliament for the exorcism—through consultation—of those horrors. The bill, as Ordinance, would also endanger the legal status of existing and recognized persons with disabilities, because it does not specify what the fate of their disability certificates (procured under the aegis of the 1995 act and its 20-odd years worth of engendered rules and case-law) will be. Consequently, they will be at the mercy of the wanton actions of bureaucrats, variously situated in numerous situations across the country. Avenues of employment and education for those disabled persons would be endangered simply because there is no clarity either on their existing legal status, or their future legal status, as disabled persons. Would they be given jobs or admissions on the basis of a law that is absent, and an Ordinance—functioning without the activating rules—that is limited by time to a mere six months? This ambiguity of present and future status, under the sign of the Ordinance, would preclude such persons from all of the avenues of reservations and other benefits—like loans—that the state has on offer, simply because the fate of the legislation and the ordinance itself is uncertain, and there are no rules or protocols to replace what the Ordinance will repeal in the 1995 Act.
The Ordinance repeals without replacing; it makes declarations but has no rules or medical protocols to enforce those declarations; it takes away everything from the penumbra of the 1995 Act, including case-law, progressive and hard-fought office-memoranda, and very crucially, the heretofore-unambiguous legal status of existing disability certificates that are not sought to be given express protection under the new legal dispensation; therein lies the cruel rub for millions of recognized disabled persons in this country, and this cruelty (of the non-recognition of their legitimate documents) is to be witnessed at the level of the petty-bureaucrat and the office: contexts in which the law, any law, is activated as practice. Finally, the ordinance would do nothing for the newly-included categories of disabilities because it does not have the time or the resources—given the looming elections—to specify what the medical protocols are, by use of which these new categories of disabilities, and persons occupying those categories, ought to be certified. Those rules and medical protocols, which would ensure recognition and the availability of resources by the state—can emerge only when they are nested in context of fixed, stable and non-arbitrary legislation—an act of parliament—and that will take time. The ordinance has no resources or time to devise these rules for enforcement of intent or the medical protocols for certification, simply because the life of the ordinance itself is limited. And as we know, in contemporary India, without certification, one’s disability has no scope of recognition by the state, and one has no hope of partaking of benefits such as reservations, a fact recently agreed to by the union government. That recognition and these benefits, under the seductive (but ultimately illusory promises of the Ordinance) would remain just that—an illusion that is alsocruel.
Given the effective end of the 15th Lok Sabha—there are no more sessions—what needs to be donefirst is the work of elections. From there, the RPWD bill, currently before a Standing Committee, would emerge, and hopefully, with some of its damaging provisions suitably contained through consultations with all stakeholders. After a consultative passage of the RPWD bill—something that only the next Lok Sabha can do—we would have the evolution of the requisite rules for the activation of the new legislation. This will allow for adequate time, for the generation of medical protocols that would allow for the certification of all 19 categories of disabilities that the new law seeks to recognize, and for the protection of already certified disabilities. Only will those rules, those protocols, and their consequent use in certification, allow for substantive recognition and availability of resources to disabled persons in India. And it is hoped, sincerely, that this new certification-regime will already recognize the legal and legitimate status of existing disability certificate and their possessors. These are people and bureaucratic artefacts that are a legacy of the 1995 Act. Our legal and official status—as legitimate, document-bearing citizens of India who happen to be disabled—ought to be expressly safeguarded under an emergent, consultative law, not a capricious ordinance.
(With thanks to Amba Salelkar, for inputs)
Rijul Kochhar is a Junior Research Fellow in Sociology at the Delhi School of Economics. He has, recently, submitted an MPhil dissertation, titled “The Analytics of Disability: Bodies, Documents, and the Order of the State”. He also lives with a disability.
 Amba Salelkar lists some of these “landmark rulings – on the reproductive rights of women with intellectual disabilities (Suchita Srivastava vs. Chandigarh Administration, 2009), interpretation of the 3% reservation rule in Government Sector Jobs (Union of India vs. National Federation for the Blind, 2013), and political participation (Disabled Rights Group vs. Chief Election Commissioner, 2007) being examples at the Supreme Court level”. There are other judgments at the level of lower courts, including some judgments pertaining to accessibility, education and reservations delivered by the Delhi High Court.