Analyzing the Disability Bill 2013 ( with special reference to increase in the reservation for the persons with disability)
Objective: The primary objective of this research paper is to analyze the pros and cons of the bill with special reference to the proposed reservation policies for persons with disabilities.
The Rights of Persons with Disabilities Bill was meant to be an enactment to codify India’s obligations under the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which it ratified without reservations. There was a committee set up in 2009 by the Ministry of Social Justice and Empowerment, headed by Sudha Kaul, to draft a bill to this effect. Like the UNCRPD says, the committee included different people with disabilities – across disabilities – to draft this bill.
The draft bill of 2011 was submitted to the ministry, and in response to that or otherwise, the ministry released a draft bill in 2012, both of which are on the ministry’s website. The 2012 draft is not as comprehensive and inclusive as the 2011 one, and there were certain serious issues raised before the ministry on the notification of the 2012 draft.
Thereafter, the draft, apparently still in its 2012 format, went to various cabinet ministries, and then circulated among states. Some version of this bill was cleared by the Cabinet in December 2013.
Following that, organizations of persons with disabilities, confident that the 2012 draft was intact, began protests for the speedy introduction and passage of the bill. These protests were largely led by groups in Delhi who had better access to information. Some pockets of regional groups demanded information on the contents of the bill. They remained unanswered. Meenakshi B of the Disability Rights Alliance, Tamil Nadu, followed up with the ministries and the general passage of the bill, and she was told the bill was “top secret”. Vaishnavi J, one of the founders of The Banyan, also received similar cryptic answers.
Nearly 30 million people in India are grappling with one or other kind of disability. Given these huge numbers, one would have expected governments and policymakers to proactively address the concerns of the differently-abled people, if not to prioritise them. The ground reality however belies such optimism. For decades, advocacy groups have been raising the concerns of the differently-abled people — demanding the rights due to them as this country’s citizens. Time and again, petitions have been sent off to successive ministers and prime ministers of successive governments, demonstrations have been staged outside different ministries, hoping in vain to draw the attention of indifferent governments to the community’s concerns.
Recently, over 15,000 differently-abled people from across the country, gathered in the hub of Delhi, demanding the incorporation of crucial amendments in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The amendments are an attempt to bring India in line with the 21st century understanding of the rights of persons with disabilities as captured in the UN Convention on the Rights of Persons with Disabilities (UNCRPD), ratified by India. Ironically, India was among the first countries to ratify the convention. That was seven years ago. Nothing since has materialised by way of aligning the bill with the UNCRPD.
The amended bill that the government has tabled in the Rajya Sabha is a diluted version of the legislation the Social Justice Ministry earlier put up on its website. The bill’s critics have accused the government of reneging on the amendments that were put together after years of nationwide consultations with advocacy groups. Activists working with differently-abled people maintain that the present legislation is not in sync with the several drafts that were widely deliberated during the pre-legislative process.
Based on the vital amendments, the bill, for the first time, would have been a rights-based legislation. Its focus on transforming the meaning of disability — expanding its definition from the existing medical framework to a social one. The amendments included hiking the quota of government jobs from three to five per cent and underlining the need to make private companies responsible for creating a friendly workplace environment for employees with disabilities.
The present bill, however, reflects very little or nothing of the original ideas which shaped the amendments. If anything, the legislation now works against such an idea. In a newspaper column, authored by Amita Dhanda, head of Centre for Disability Studies in Hyderabad’s NALSAR University of Law, wrote: “A progressive, rights-based law has been transformed into an anachronistic, welfarist legislation…” For instance among other regressive provisions, by allowing plenary guardianship, the bill denies people with psychosocial disabilities the right to make their own life decisions.
For decades, the community of persons with disability has patiently awaited a rights-based legislation. But is this the bill they have aspired for? On the eve of the general elections barely a couple of months from now, the government wanted to push through the Disability Rights Bill, regardless of its adverse implications for those it is meant to serve. For the community, it’s a tough call. They could reject the legislation that is so terribly out of sync with their aspirations and settle for a weak amended bill. It’s unlikely that the incorporation of a few progressive clauses would improve the quality of such an ill-drafted bill.
Salient features of the bill :
The Rights of Persons with Disabilities Bill, 2014,defines for the first time the meaning of disability and extended it from seven to 19 categories. It includes sickle cell disease, thalassemia and muscular dystrophy besides autism spectrum disorder, blindness, cerebral palsy, chronic neurological conditions, mental illness and multiple disability.
The reservation quota has been increased from three per cent to five per cent. Earlier, the reservation was to be distributed in ratio of 1 per cent each for physically, visually and hearing impaired, but the proposed legislation will extend the quota by 2 per cent – covering two new categories like mentally disabled and multiple disabilities.
A National Commission for Persons with Disabilities will also be set up with statutory powers, besides setting up a National Fund for Persons with Disabilities.
The new Bill provides for stringent punitive measures under which anyone violating the provisions could face from six months to five years in prison and a fine from `10,000 to `5 lakh.
The Bill will replace the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act of 1995. Rights activists have given mixed reception that several provisions have been dropped making the Bill ineffective.
The Centre has maintained that the Bill is in consonance with the UN Convention on Rights of Persons with Disabilities, which India signed in 2007.
Reservation in higher educational institutions
31.(1) All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five percent seats for persons with benchmark disabilities;
(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.
Identification of posts for reservation
The appropriate Government shall–
(i) identify posts in the establishments to be reserved for the persons with benchmark disability;
(ii) review and update the list of identified posts, taking into consideration the developments in technology, at periodical intervals not exceeding five years.
33.(1) Every appropriate Government shall reserve in every establishment under them, not less than five per cent, of the vacancies meant to be filled for persons or class of persons with benchmark disability, of which one per cent, each shall be reserved for the persons with following disabilities,-
(a) blindness and low vision;
(b) hearing impairment and speech impairment;
(c) locomotor disability including cerebral palsy, leprosy cured and muscular dystrophy;
(d) autism, intellectual disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deafblindness in the posts identified for each disabilities:
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.
Explanation: For the purpose of this section, the computation of reservation of vacancies for the persons with benchmark disabilities shall be computed on five per cent, of the total cadre strength.
(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with bench mark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:
Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.
(3) The appropriate Government shall by notification, provide relaxation of upper age limit upto five years for employment of persons with bench mark disability.
The Cabinet on 6 February, 2014 approved the proposal of the Department of Disability Affairs to incorporate amendments in the proposed Rights of the Persons with Disabilities Bill, 2014, which are:-
– Definition of person with disability in terms of interaction with barriers also;
– High support needs person enabled to take independent and inform decision also;
– Definition of low vision will be notified by the Government;
– The appropriate Government to take necessary steps to ensure reasonable accommodation for persons with disabilities;
– No person with disability will be discriminated on grounds of disability;
– Appropriate Governments to ensure that the persons with disabilities enjoy legal capacity on an equal basis with others, in all aspects of life to have equal rights as any other person before law;
– Recognizing legal capacity of person with disability, limited guardianship would be the norm, to enable the person with disability to take joint decision with legal guardian;
– Person with disability would also have the right to appeal against the decision of appointment of legal guardian;
– Disability Certificate to be valid across the country;
– Educational institutions funded and recognized will have to provide inclusive education for children with disability;
– The appropriate Governments to constitute to expert committee with representation of persons with disabilities for identification of posts for Government employment for persons with disabilities;
– Review period shortened from 5 years to 3 years in case of identified posts;
– 5 per cent vacancies reserved for persons with disabilities will be computed against the total number of vacancies in the cadre strength;
– National Commission and State Commission will have power to exempt any post in an establishment from the purview of reservation for persons with disabilities;
– For greater coverage and employability in Government sector, the appropriate Governments to prescribe relaxation for upper age limit for employment of PwDs;
– National Commission shall formulate and enforce regulations.
Criticism of the bill
The Nalsar Law University, legal consultant for the committee which drafted the Disability Rights Bill of 2011, announced that it was dissociating itself from the bill approved by the Union Cabinet, as it had no resemblance to the original draft.
Vice-Chancellor of the University Faizan Mustafa called the bill a “breach of trust” and an “act of impropriety” on part of the Central government, and alleged that it was sought to be passed in secrecy without consultations
The bill does not match the draft displayed on the website of the Ministry of Social Justice and Empowerment, and lacks the spirit of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) ratified by India.
The bill negated the benefits of the existing law as interpreted by the Supreme Court, by restricting the definition of the ‘establishments’ only to the institutions aided, funded or owned by the government, and excluding private institutions. Further, the bill uses the term ‘identified posts’ in relation to job reservations for the disabled, thereby empowering the government to exempt any industry just by a notification.
The approved bill does not have any mention of a separate tribunal or regulatory authority to redress the grievances of the persons with disabilities and their families, as envisaged by the 2011 draft, Prof. Mustafa alleged.
Amita Dhanda, professor in Law from the university, who had been active in drafting the original bill, noted that even while increasing the quota to five per cent instead of the existing three, and the number of disabilities to 19 from eight, the bill does not override the existing laws which prevent persons with certain disabilities from contracting or taking up employment.
Instead, it says the bill’s provisions are in addition to the existing laws. Hence, all the laws which hitherto have been exclusionary of the persons with mental disabilities will continue to be in force despite the latest enactment.
The existing bill does not address some important issues and a few provisions that it contains are even discriminatory in nature. “For instance, the bill does not give a child with disability the choice to decide if she can join special school or regular school. Not just that, the political participation of a person with disability ends with voting.
“The bill cannot assign some jobs for people with certain disabilities. They have to give a detailed explanation and specify the degree of disability that allows or disallows each individual from taking up any job.
“Under the Bill, reservation for persons with disabilities has been increased from the current three per cent to five per cent. However, this is restricted to establishments, and the term establishment is defined as the government, or companies established by the government. It does include any private companies, and so, there is no onus upon them to provide employment,” said Meenakshi Balasubramanian, a member of the Disability Rights Alliance (DRA).
Also, the provison to clause 2 under section 33 of the Bill could deny people a fair chance at reservation. “An establishment can, if it gets permission from the appropriate authority, switch between disabilities for reservation, if the nature of vacancies is such that a given category of person cannot be employed. So theoretically, an establishment can fill up its five per cent with just visually-impaired people. They may not even have to consider those with cerebral palsy,” said Amba Salelkar, of the Inclusive Planet Centre for Disability Law and Policy.
The Bill has evoked strong criticism from some activists who have called it discriminatory and regressive. For instance, activists said one section states the Bill will not override any other law in existence, which is problematic.