M J Antony: Crippled by lame excuses

The draft of a new disability legislation has been handed out; however, the old one is still far from functioning full steam

Welfare legislations have long gestation periods. When the Bills come to Parliament at last, political parties first try to disrupt debate and then allow them to pass at the last minute. Outside, they vie with each other for claiming credit. In fact, several laws are passed because of international covenants. After parliamentary approval, the executive takes over the field and finds ample ways to stall the benefits flowing to those who are entitled to them. Social security, food security, job schemes, compensation to land losers and displaced persons, all fall into this inevitable trap.

The recent judgment of the Supreme Court in the appeal, Union of India vs National Federation of Blind, and several high courts on the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, often called the PWD Act, shows how the judiciary has to intervene incessantly on behalf of those beneficiaries, though few among the estimated 2 per cent of the population know about the benefits conferred on them. In the interiors, their position cannot be better than that in the witchcraft era.

A review of the past judgments shows that lack of clarity and casuistic interpretation of the law lead to bottlenecks in appointments, removal, pay parity, job assignments and conditions of employment. There are several pre-Constitution laws such as the Workmen's Compensation Act 1923, the Employees' State Insurance Act 1948 and a number of rules such as the Special Disability Leave Regulations that deal with disablement suffered during employment. The PWD Act followed the International Labour Organisation conventions and introduced affirmative action on behalf of the disabled people. Currently, only employment under the government is covered and while in the private sector, reservation is only recommendatory. However, all establishments, whether public or private, would get several incentives if the percentage is higher than the minimum 3 per cent, and up to 5 per cent.

The hurdles before the disabled start with Section 32 of the Act which directs the governments to identify posts that can be reserved for people with disability. The definition of disability is currently limited to blindness or low vision, hearing impairment and locomotor disability or cerebral palsy. Though the governments have been enjoined to identify the posts and review them periodically, several of them have not done it properly, leading to litigation. This is almost deliberate since lack of a reserved category list is touted as a ready defence against writ petitions in the high courts.

The Federation of Blind case again raised the question in a different form, namely whether the reservation was dependent upon the identification of posts and whether reservation should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. The judgment ruled that it should be based on the total vacancies. In order to prevent dodging of the rules, the court made the nodal officer in public sector undertakings and government entities responsible for the implementation of reservation be departmentally proceeded against for any default. Since there is no sanction specified in the law for non-implementation of the reservation rules, this is an advancement made by the judiciary where there is a statutory lacuna.

Nearly 10 years ago, the apex court had decided the case of a visually impaired girl who was not allowed to appear for a competitive examination by the banking services recruitment board. The court found that the board had not reviewed the list of posts identified for reservation. The court asked it to do so. Later, the board returned to tell the court that the post of a probationary officer had been identified as suitable for the blind. Three years ago, there was another landmark decision in the case, Govt of India vs Ravi Prakash, in which the court stated that bureaucratic inaction in not identifying posts fit for reservation should not be used as an excuse for denying the benefits to deserving candidates. Other invented disputes involve the carry-forward rule which is already in the Act, promotions, degree and sub-categorisation of disability. On the other hand, the Bombay and Madras high courts have been more affirmative than the Act and included mental disability as deserving a protective hand.

The Comptroller and Auditor General (CAG) of India had also commented in its 2004 report that the government did not accord adequate priority to monitoring and evaluation of the policies and programmes designed for achieving equality and full participation of people with disabilities. The monitoring of the utilisation of funds disbursed by the Union government was also poor, according to the report.

The draft of a new disability legislation has been handed out, widening the scope of the law. However, the old one is still far from functioning full steam. Those who are supposed to run it seem to be deaf and blind to the issues.