It’s a lost opportunity
In 1990, when President George H. W. Bush signed into law the Americans with Disabilities Act, he noted that, on account of the passage of the law, “every man, woman and child with a disability can now pass through once-closed doors into a bright new era of equality, freedom and independence.”
In the same way, India’s new disability law, which comes after years of debate and deliberation, it was hoped, would forever change the meaning of what it meant to be disabled in India.
The law completely lacks any robust, effective and accessible grievance redressal mechanism.
Modelled on the United Nations Convention on the Rights of Persons with Disabilities, the law was widely seen as being a harbinger of changed attitudes, a force for societal transformation and a catalyst for the meaningful integration of the disabled into the mainstream.
It is dismaying to note, however, that, far from living up to these high ideals, the law merely reiterates platitudinous phrases, articulates the rights of the disabled in a manner that appears halfhearted at best and intentionally vague at worst and, most important, completely lacks any robust, effective and accessible grievance redressal mechanism.
Consider this: the principal beneficiaries of the law are persons with benchmark disabilities. Section 2 (r) of the Act states that a person with a benchmark disability is any person who is 40% disabled, where the percentage of disability cannot be quantified in measurable terms, and, when the percentage of the disability can be ascertained, any person with a disability.
Put differently, the provision envisages the quantification of the percentage of precisely the selfsame disabilities which it explicitly regards as not being capable of quantification.
More worryingly, this provision, instead of being an aberration, is emblematic of the logical inconsistency and inattention to detail that permeate the law.
Section 3(3) of the law, while proscribing discrimination against the disabled, makes such discrimination permissible when it is a proportionate means of achieving a legitimate aim. The Minister of Social Justice and Empowerment did give an assurance in the Rajya Sabha that the rules would be designed in such a way as to circumscribe the width of these vague phrases.
However, the fact that the prohibition of discrimination against roughly 70 million people in a country that prides itself on being a bastion of diversity is contingent upon the halfhearted assurances of the minister speaks volumes about the degree of seriousness with which this law seeks to empower the disabled.
The law’s avowed objective of bringing the legal framework regulating the rights of the disabled in line with advances in technology is belied by the text of its provisions. Take, for instance, chapter 3 of the Act, which sets forth the steps that must be taken by the appropriate government and local authorities to promote inclusive education.
While the chapter recognises the need to use sign language and Braille and to provide disabled students a scribe to write their exams, it fails to recognise that, while these may be necessary conditions to enable the disabled to succeed on a footing of equality with their able-bodied counterparts, they are by no means sufficient.
Nowhere does the Act make it mandatory for schools to provide adaptive technology for the disabled… it’s a glaring omission.
Nowhere does the Act make it mandatory for schools to provide adaptive technology for the disabled such as screen reading software for the blind or transcription facilities for the deaf. Considering that access to assistive technology is the sine qua non for the disabled to thrive in today’s information age, the Act’s failure to recognise this basic proposition is a glaring omission.
Instead of building upon progressive judicial pronouncements that have opened new vistas of possibility for the disabled, the Act contains a large array of provisions that explicitly reverse or substantially dilute the impact of these rulings. This assertion is best evidenced by Section 34, which, while expanding the total number of posts that are to be reserved for the disabled from 3% under the earlier law to 4%, states that such reservation has to be against the total number of posts that are identified as being suitable for the disabled, not the total vacancies in the cadre.
This flies in the face of the apex court’s judgment in the case of Union of India versus National Federation of the Blind,in which the court noted: “Thus, after thoughtful consideration, we are of the view that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., “computing 3% reservation on total number of vacancies in the cadre strength.”
Moreover, instead of reaffirming the apex court’s landmark ruling in Rajeev Kumar Gupta versus Union of India, which accepted the proposition that reservation of seats must also be made in promotion when that is the only available means of filling up the posts identified as being suitable for the disabled, the new Act makes the exercise of this judicially guaranteed right contingent upon the issuance of instructions by the appropriate government.
Further, while the enlargement of the definition of the term “establishments” to include the private sector within its ken is a welcome move, the benefits that could have resulted from this development have been significantly whittled down by the fact that various provisions of the Act make it clear that the obligations spelled out in the Act are only applicable to government establishments.
Instead of building upon progressive judicial pronouncements… the Act contains a large array of provisions that explicitly reverse or substantially dilute the impact of these rulings.
In its report, the Standing Committee on Social Justice and Empowerment, which was tasked with the responsibility of analysing the 2014 iteration of the Bill, gave the following rationale for bringing the private sector within the ken of the term “establishments”:
“It is a present day fact that a large number of government services are outsourced/have been outsourced to or provided by private bodies/agencies and will remain inaccessible for people with disability unless these are brought under the ambit of ‘Establishment’.”
In light of the fact that the Act only casts two substantive obligations on the private sector viz. formulating an equal opportunities policy and ensuring that the buildings that it constructs are in consonance with accessibility norms framed by the Central government, it can be stated without any fear of contradiction that the intention underpinning the Committee’s recommendation stands frustrated by the government’s decision to limit the obligations whose compliance is most critical for the success of the law to government establishments.
To be sure, the law does contain some redeeming features that are a cause of celebration for certain segments of the disabled population, most notably an increase in the number of disabilities covered from seven to 21. That said, those who believe that the recognition of learning disabilities and mental disorders by the Act is emblematic of a paradigm shift in the manner in which Indian society views those suffering from these newly added disabilities need look no further than the parliamentary debate preceding the enactment of the law in the Rajya Sabha.
Instead of engaging in a substantive discussion about the ways in which the provisions of the law could be strengthened to ensure meaningful participation of those suffering from such disabilities in all walks of life, the Hon’ble members shamefully trivialised the issue, joking about how they regard each other as being intellectually disabled.
Does it provide [a disabled] person an effective remedy if she is denied a job, admission to a school or entry into a public place…?
The answer is an emphatic ‘no’.
One of the key principles that inform the working of most legal systems is that, wherever a law creates a right, it must create a corresponding remedy to punish those who infringe the right.
Not only does the law in its present form, contrary to previously circulated draft versions, not envisage a jail term for those found guilty of its contravention, but the institution of criminal proceedings for the imposition of a fine on public servants is also contingent upon a prior sanction from the appropriate government.
In sum, it would be no exaggeration to state that, by virtue of the manner in which this law has been formulated, the full realisation of the rights of the disabled will depend more on the execution of halfhearted executive assurances, a purposive and favourable interpretation of vague phrases that the law is replete with and progressive judicial pronouncements in contradistinction to statutorily guaranteed rights, clearly defined obligations and a robust enforcement machinery.
After all is said and done, there is only one yardstick against which the efficacy of a law of this kind can be measured: Does it provide an average Indian person an effective and expeditious remedy if she is denied a job, admission to a school or entry into a public place on account of her disability? The answer, unfortunately, is an emphatic ‘no’.