Denying the disabled

Indian courts have shown that they are ready for progressive interpretations of the law on the rights of persons with disabilities. Therefore, any new law that aims to replace the Persons with Disabilities Act, 1995, needs to be a significant improvement on it. By JAYNA KOTHARI

SINCE 1996, when the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act), came into force, by far the majority of cases taken to court have been about equal opportunity in public employment, that is, reservation of jobs for persons with disabilities and related matters such as promotions, identification of posts and eligibility. This struggle is in many ways not that different from the caste and gender battles for affirmative action in government employment. For any marginalised group, including persons with disabilities, equality in employment is a benchmark for full participation in society.

In Union of India vs National Federation for the Blind and Others, the Supreme Court passed on October 8 a landmark judgment in this battle on reservation of jobs for persons with disabilities. The PWD Act, though a restricted statute mainly concerned with providing reservation in jobs and seats in public employment and education, has slowly been nudged by courts, lawyers and disability rights activists to become far more progressive than was ever imagined. Section 33 of the Act states that “every appropriate government shall appoint in every establishment such percentage of vacancies not less than 3 per cent for persons or class of persons with disability...”. Section 32 requires the appropriate government to identify jobs for persons with disability and review the list of identified jobs every three years.

In spite of Section 32, the reality on the ground since 1996 has been that hardly any jobs were identified by the governments as suitable for persons with disabilities. A 2009 World Bank report, titled “People with Disabilities in India: From Commitment to Outcomes”, found that only 10.2 per cent of the posts in all Ministries/departments and public establishments had been identified as suitable for persons with disabilities. The situation in 2013 is not very different. In a 2010 judgment, in Govt. of India through Secretary and Anr vs Ravi Prakash Gupta & Anr, the Supreme Court held that non-identification of posts could not be a reason for the government to evade its obligation to reserve 3 per cent of posts for persons with disabilities.

In the National Federation for the Blind case, the core question was whether the 3 per cent reservation should be calculated on the basis of the cadre strength or the number of vacancies in the identified posts. Cadre strength refers to the total number of posts in the cadre. At present, if at all reservation for and appointment of persons with disabilities are made, it is only on the basis of the vacancies that arise in “identified” jobs, which are far fewer than the total number of posts in the cadre. The Supreme Court held that from a bare reading of Section 33 it was clear that the intention of the legislature was that the 3 per cent reservation was computed on the basis of total vacancies in the cadre strength. This interpretation is significant as it will lead to an unprecedented increase in the number of appointments in State and Central government jobs for persons with disabilities.

One of the most interesting observations of the court in this judgment pertains to reservation in the private sector. Section 41 of the Act states that incentives should be given to public and private establishments so that they provide 5 per cent reservation for persons with disabilities. The Supreme Court held that “on a conjoint reading of Sections 33 and 41, it is clear that while Section 33 provides for a minimum level of representation of 3 per cent in the establishments of appropriate government, the legislature intended to ensure 5 per cent of representation in the entire workforce both in public as well as private sector”.

This expansive observation of the court has gone unnoticed amid the excitement over its statement on reservation based on the cadre strength. This opens up new avenues for implementing reservation for persons with disabilities in the private sector as well. This opportunity was passed up by Justice Ravindran in the judgment in Dalco Engineering Pvt. Ltd vs Satish Prabhakar Padhye & Ors, which stated that the definition of “establishments” under the PWD Act did not include private companies. Now, however, the full Bench of Justice P. Sathasivam, J. Desai and J. Gogoi has clearly moved ahead by observing that the intention of the legislature was to ensure reservation of posts for persons with disabilities not only in the public sector but in the private sector as well.

Draft Bill, 2012 

This judgment comes at the right time as the Draft Rights of Persons with Disabilities Bill, 2012, is pending consideration. The Supreme Court even relied on the Bill for its reasoning. However, with regard to equality in employment rights for persons with disabilities, the Bill does little to improve upon the provisions of the PWD Act and does not include the exciting new possibilities that the Supreme Court judgment promises. It does not mandate reservation of jobs in the private sector at all for persons with disabilities although this was clearly included in the draft of 2011. Unless the private sector is mandated to reserve jobs for persons with disabilities, it is unlikely that their conditions of employment in the country will change significantly. If one were to review any significant disability rights legislation in other jurisdictions, one would notice that all of them contain employment obligations for the private sector as well.

This has become even more urgent now as India has ratified the United Nations Convention on the Rights of Persons with Disabilities. Perhaps, the Supreme Court decision will prompt a revision of the relevant provisions in the Draft Bill. The Draft Bill also needs to address the problematic requirement of “identification of jobs”, which has been reproduced from the PWD Act. Identification of jobs is a concept that is considered outdated by disability rights activists the world over because it has a history of segregating persons with disabilities into the most menial jobs available, making it difficult for them to apply for other jobs. In the last century, the strategy of identifying particular professions for persons with disabilities was practised in the United Kingdom. But, as Anna Lawson, professor at Leeds University and author of Disability and Equality Law in Britain: The Role of Reasonable Adjustment (Hart Publishing, 2008), points out, the occupations that were selected were of low status such as car park attendants and lift operators. In associating disabled people with such jobs, there is the danger of creating or reinforcing negative stereotypes about them and their abilities.

For example, in India, the stereotypical jobs reserved for the blind and persons with low vision are those of music teacher and telephone operator. These difficulties were recognised in the U.K. as early as 1956 by the Piercy Committee in its report of the Committee on the Rehabilitation, Training and Resettlement of Disabled Persons, and although initially the disabled community supported the strategy of identifying certain jobs for its members, such schemes were finally abolished.

In India, the battle for reservation of jobs has often been stalled by the government’s not identifying posts as suitable for persons with disabilities. Such identification is often restrictive and arbitrary; for example, in Group A, the job of an agricultural scientist specialised in econometric analysis is identified as being suitable for an individual who is blind or has an orthopaedic disability but not for someone with a hearing disability. There is also a great variance between the Central government and different State governments on what posts are suitable for persons with disabilities, and this has led to intense litigation.

As the World Bank report says, the list of identified jobs is based on the assumption that the characteristics of impairment are the exclusive determinants of an individual’s ability to hold a position at a particular skill level and such identification ignores the potential influences of individual characteristics (motivation, age at disability onset), the person’s access to employment services, and the characteristics of the workplace and labour market. Even though there is a statutory obligation to identify posts, what posts are identified is left to the discretion of the government, which decides on the basis of the nature of the posts and its requirement. The government often conveniently denies people with disabilities jobs by not identifying enough posts in each department for them. Thus, the whole concept of identification of posts is problematic. The Supreme Court recognised this in its recent judgment, saying: “[E]xperience has shown that identification has never been uniform between the Centre and States and even between the departments of any government. For example, while a post of middle schoolteacher has been notified as identified as suitable for the blind and low vision by the Central government, it has not been identified as suitable for the blind and low vision in some States such as Gujarat and J&K, etc.”

Reasonable accommodation 

Unfortunately, the requirement of identification of jobs is retained in the Draft Bill, and Sections 32 and 33 of the PWD Act are reproduced, with the only difference being an increase in the reservation from 3 per cent to 5 per cent. If this requirement is removed from the Bill, this, coupled with the obligation the Bill places on the employer to provide “reasonable accommodation”, every job could potentially be suitable for persons with disabilities. The concept of reasonable accommodation, or adjustment, lies at the heart of civil rights advancement in the context of disability. Its significance is that it is a way of accommodating difference. A 2004 baseline study by the European Union Network of Independent Experts of Disability Discrimination, titled “Disability Discrimination Law in the E.U. Member States”, noted: “The notion of ‘reasonable accommodation’ is individualised and involves the person with a disability in an interactive dialogue with the employer to discover the right kind of accommodation needed in the overall circumstances of the case.”

Essentially, the concept stems from a realisation that the achievement of equal treatment can only become a reality when some reasonable allowance is made for disability in order to enable the abilities of the individual concerned to be put to work. In employment, it is the duty of the employer to make reasonable accommodations to any physical features of the premises or to the duties of the job which would place disabled persons at a substantial disadvantage in comparison with those who are not disabled. As stated in the E.U. report, reasonable accommodation as provided in other legislations could include adjustments to premises; reallocation of duties; redeployment to an existing vacancy; alteration of working hours; reassignment to a different place of work; allowing absence for rehabilitation; assessment or treatment; training; acquisition of equipment; modification of equipment, instructions, reference manuals and testing or assessment procedures; and provision of a reader, interpreter or supervision. Thus, the need to identify jobs would not arise at all as every job could be done by a person with a disability. With India ratifying the U.N. Disabilities Convention, the concept of reasonable accommodation has not only been brought under the Draft Bill, but also recognised by the Bombay High Court in Ranjit Kumar Rajak vs State Bank of India.

Finally, only token improvements to the PWD Act have been made in the Bill. Instead of the seven disabilities stated in the PWD Act, the Bill provides for 5 per cent reservation of jobs for persons with “benchmark disabilities”, which means those found with 40 per cent or more of the specified 18 disabilities. However, the provisions for reservation of jobs only mentions that out of the 5 per cent of jobs, with 1 per cent each being reserved for persons with blindness and low vision, hearing impairment, locomotor disability, autism and intellectual disability, and mental illness. These provisions do not adhere to the progressive social model of disability, which does not view disability as a medical impairment (with 40 per cent or more of a certain characteristics) but as a form of discrimination due to social and environmental barriers. If these medical models of understanding disability are reproduced in the new law, one can hardly say that the Bill is in conformity with the U.N. convention, which was supposed to be the basis for the whole drafting exercise.

The Supreme Court decision signals that Indian courts are ready for progressive interpretations of the law on the rights of persons with disabilities. These interpretations have breathed life into the PWD Act and transformed it from a limiting statute into a legislation that has been successful in changing the lives of persons with disabilities, at least in the field of public employment. This judgment bears in it the seeds for further reform. This requires a serious reconsideration of the Draft Bill, which needs to take all these concerns into account. The disability rights movement has worked hard for the last 17 years to make the PWD Act what it is today, and any new legislation that replaces it needs to make a significant improvement to it.

Jayna Kothari is an advocate practising in the Karnataka High Court and a director of the Centre for Law and Policy Research. She is the author of The Future of Disability Law in India and can be contacted at jayna.kothari@clpr.org.in

Frontline

Extend legal protetction for impairments not covered under the PwD Act 1995 - mandate of SC

Please refer to earlier post titled "SC directs the Govt. to give suitable jobs to employees with Mental Illness" dated 19 August 2012. Here is the coverage on the issue from The Hindu.

Enabling judgment from Supreme Court

The case of the 1977-batch Indian Administrative Service officer, whose compulsory retirement on grounds of  disability the Supreme Court has overturned, sets a strong precedent on the codification of protections against contingencies that arise during service. A two-judge bench upheld Anil Kumar Mahajan’s appeal against an earlier  decision that sought to curtail his tenure by five years. Interpreting the 1995 law on disabilities, the bench ruled that those who acquire an impairment while in service had to be accommodated in a position appropriate to their current condition. Where such adjustment was not available, the government was obliged to retain them in a supernumerary status, pending the identification of one, until the age of superannuation. The message emanating from the judgment is unambiguous, even if only a fraction of the disabled, estimated at nearly 10 per cent of India’s population, is in formal employment. It is relevant no less to the large numbers rendered severely impaired for life on account of the notoriously high rates of road accidents, not to mention industrial mishaps. The verdict also drives home the necessity, both within the administration and beyond, to recognize disability as a dimension of social diversity. To the extent that this is a relatively new reality, reflected in the workplace and several walks of life, public and private institutions would have to become responsive. It is hard to conceive of a more effective advocacy on disability than policies of accommodation that can potentially counter prevailing prejudice and stereotypes.

As regards recruitment under the Union Public Service Commission, a number of persons with different disabilities have begun to join the ranks in recent times. In fact, the question of identification of suitable placements across different services has come into the spotlight, illustrating the need to fashion a comprehensive approach on the absorption of new appointees. The landmark verdict, if anything, underscores yet again the urgent need for Parliament to enact fresh legislation in this area. This is imperative following India’s ratification, way back in 2007, of the United Nations Convention on the Rights of Persons with Disabilities. It is the way forward on extending legal protection for categories of impairments that are not covered under the current law and give fresh impetus to realise the goals of inclusive education. The newly constituted department of disability affairs in the Ministry of Social Justice and Empowerment should strive towards bringing the law-making process to fruition at the earliest. For, every single day lost to procedural delays affects the life prospects of millions.

Source: The Hindu

Mechanical and Rigid implementation of Disabilities Act is against the legislative intent

Dear Colleagues,

The cases as below wherein the courts as well as lawyers fail to appreciate the basic intention of the legislature behind the benevolent Persons with Disabilities Act 1995 are indicative of the ignorance in the legal fraternity on the rights of the persons with disabilities.

The DoPT memorandum dated 29 Dec 2005 categorically states in para 22 as under:

22. RELAXATION OF STANDARD OF SUITABILITY: If sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for

them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for persons with disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up the deficiency in the reserved quota subject to the fitness of these candidates for appointment to the post / posts in question. 

However, rigid cut off marks as 90% would defeat the very purpose of the Disabilities Act and the courts must look at the legislative intent before dismissing such petitions mechanically. An appeal against this order must be preferred in the next superior court to set the things right.

Here is the news coverage from Indian Express 16 Jul 2013

No quota job if cut-off isn't met

The Madras High Court on Monday rejected a plea from K Kumaravelu of Marudhur South village in Nagapattinam district, praying for a direction to Teacher Recruitment Board (TRB) to appoint him as a secondary grade teacher under the priority quota for physically-disabled persons.

After passing the higher secondary examination, Kumaravelu, belonging to a backward class community, completed diploma in teacher education, in 2009. During his school days, he met with an accident and his right leg below the knee had been amputated.

He was issued a certificate by the Joint Director, Medical and Rural Health and Family Welfare in Nagai, fixing his disability at 60 per cent. He also appeared for the TET and obtained 83 per cent marks.

The petitioner contended that against the total vacancy of 12,000 posts, 3 per cent of 360 posts had to be earmarked for the disabled under Sec 33 of the Person with Disability Act, 1995.

Very few candidates were selected under this section. Hence, he must be given accommodation, after giving relaxation in the requirement of 90 per cent marks, he pleaded.

Additional Government Pleader P Sanjay Gandhi submitted that the minimum eligibility marks under the Act was 90 per cent.

No person could claim any relaxation in the matter, he added.

Indian Express 16 July 2013

Madrash High Court questions Commissioner Disability on unfilled backlogs and shoddy implementation of PWD Act

Dear Colleagues,

I am very pleased to inform you that Hon'ble Justice S. Manikumar of  Madras High Court has taken the State Government and even the Commissioner Disabilities to task for not implementing reservations in employment and not clearing the backlog in employment of Persons with Disabilities. Hon'ble Justice has further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

One wonderful intitiative on the part of the Hon'ble Justice! And mind you, almost all dailies today are singing about what Ms. Jaylalita's Government has done for the disabled, to name a few:

(a) 20 early intervention centres for Visually Impaired childrein in age group of 0-6 years in 20 districts at 2 crores rupees cost

(b) Age limit of 45 reduced to 18 years to avail pension.

(c) Free vocational training in all 32 districts benefiting 2400 disabled

(d) Cash awad to pursue high education to Hearing impaired students

(e) Monthly maintennace allowance from Rs. 500 to 1000 to severally disabled

 You will appreciate there is nothing about employment for the disabled and filling up the backlog vacancies reserved for them under the Persons with Disabilities Act 1995. The Government seems only wanted to keep the disabled alive on some paltry sum of pensions an some vocational training. The education grants of no use if the Government is not serious in including them in the employment which is evident from the records.

I welcome this step and congratulate the residents with disabilities of Tamilnadu to have such a progressive Justice in the High Court of Madras.

Here is the media coverage from the Hindu:

Court takes on the role of messiah

MOHAMED IMRANULLAH S

Thousands of physically challenged people awaiting government jobs could heave a sigh of relief now as the Madras High Court has taken upon itself the task of making every State Government department, undertaking, university and other such organisations follow the statutory reservation of 3 per cent in letter and spirit.

Passing interim orders in a batch of writ petitions, Justice S. Manikumar has directed the Commissioner for Differently Abled to submit in court by June 9 an exhaustive list of details including the backlog vacancies that need to be filled up in every government institution ever since the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act came into force in February 1996.

The judge also wanted the Commissioner to explain why the reservations for the physically challenged had not been implemented uniformly across all government controlled institutions even after 16 years since the Central enactment was passed.

He further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

Expressing deep concern over this attitude of the government officials, the judge said: “If some vacancies meant for Scheduled Castes or Scheduled Tribes or Most Backward Classes are left unfilled, many organisations, associations and even political parties would raise their voice, protest and agitate. But it is not so in the case of the differently abled. May be because, they do not command such a position in politics.”

He pointed out that as of March 31, 2011, a whopping number of 98,295 physically challenged people were in the ‘live register' of Employment Exchanges awaiting their chance for a government job. But unfortunately, they have been denied of their statutory right despite many court orders including the one passed by the First Bench of the High Court in a public interest litigation petition on February 17, 2011.

Mr. Justice Manikumar pointed out that the State Government had taken 10 years, since the legislation was enacted, even to begin identifying the posts meant for the physically challenged in Group A and B categories in the State Civil Services. The work began only in 2005 though it should have been kick started in 1996 itself and reviewed at periodic intervals not exceeding three years.

Thereafter, a series of meetings were held by the Union Ministry of Social Welfare and details were called from heads of various departments and boards, corporations and companies owned and controlled by the government. But many of them evaded from submitting the details.

It was also found that certain universities and educational institutions, in particular, had not followed the reservation policy.

“Right to live with dignity is a human right. Many of the disabled in India live in poverty and without employment, though educationally qualified. Delayed implementation of the statute is a deprivation of their statutory and Constitutional rights… Let us not forget that even a differently abled person would earnestly believe and expect that the words spoken and written be honoured,” the judge said.

He concluded by quoting Hellen Keller who said: “Science may have found a cure for most evils; but it has found no remedy for the worst of them all — the apathy of human beings.”

Though the present batch of writ petitions related to approval of three teachers appointed in C.S.I. High School for the Deaf at Kottaram in Kanyakumari district, the judge went beyond the scope of the case in order to ensure strict implementation of the 1996 Act.

Source: The Hindu

Nagpur University challenged for discriminating against Persons with Disabilities

Dear Colleagues,

My dear friend Rajesh Asudani who works with Reserve Bank of India has moved Mumbai High Court (Nagpur Bench) against Nagpur University's open discrimination against persons with disabilities by earmarking only four posts for PH Persons that too making it "subject to availability". That indicates their intention to keep the posts unfilled and then lapse them in favour of general categories on the pretext that suitable candidates were not available! This has become the modus operandi of several Government departments which needs to change.

Here is the coverage in Times of India, Nagpur:

HC stays Nagpur University hiring over blind man's plea 


NAGPUR: A blind man has moved the high court here alleging flouting of rules by Nagpur University in appointment of lecturers. A division bench of chief justice Mohit Shah and justice Prasanna Varale, on Wednesday, stayed the entire recruitment process of the university. The court also issued notices to the respondents including UGC chairman Ved Prakash, NU vice-chancellor Vilas Sapkal and state secretary for higher and technical education, directing them to file reply within two weeks.

Rajesh Asudani (35), a meritorious candidate who aspired to be a lecturer, had argued in-person during first hearing but taking into consideration his blindness, the court appointed Ashutosh Dharmadhikari as amicus curiae to plead his case. He claimed that NU violated Persons with Disabilities (Equal opportunities, protection of rights and full participation) act, 1995, in its advertisements for recruitment of professors, associate and assistant professors. He said these advertisements provided reservation for the disabled but "subject to availability" and stated that preference would be given to physically handicapped. He added that advertisements failed to specify the exact nature of disability and were against various circulars issued by UGC, Government of Maharashtra, Ministry of Social Justice and Empowerment, and also against the settled laws established by judgments of Supreme Court and various high courts.

Asudani, working with RBI as Class-I officer, pointed out that NU had issued advertisements for lecturers' recruitment three times in five years - on July 13, 2007, March 26, 2008 and August 30, 2011. The petitioner contended that reservation of posts for disabled persons under Sections 32 and 33 were binding on all the establishments but NU disregarded them in letter and spirit while reserving only four posts for physically handicapped persons, that too making it "subject to availability". He took strong objection to this rider terming it as patently illegal and militating against the letter and spirit of law.

Asudani argued that same rider had not been placed for filling up posts for SC/ST candidates, even though some posts have been advertised numerous times. He cited examples of head of NU post graduate law department Shirish Deshpande and retired sociology lecturer Prof Lakshman Khapekar who earned distinction for their unmatched academic success despite blindness from this very university. He prayed for cancelling the advertisements and directives to NU to come up with new one with proper reservations for disabled.

Source: http://timesofindia.indiatimes.com/city/nagpur/HC-stays-Nagpur-University-hiring-over-blind-mans-plea/articleshow/12270803.cms