Showing posts with label Article 14 of Constitution of India. Show all posts
Showing posts with label Article 14 of Constitution of India. Show all posts

Monday, December 29, 2014

Armed Forces must respect Section 47 of Disabilities Act as a non-discrimination provision

Its an old article from Indian Express published on 15 Nov 2012, however, is very pertinent given a large number of soldiers being discriminated on ground due to acquired disabilities whether attributable to service or otherwise.

Its cruel to see that while a civilian government employee (with a contributory pension) is retained in service and paid his salary in full as a social protection, a soldier who dedicates his life in to the service of nation and ready to sacrifice it on call of duty (eligible for lifelong pension) is left to fend for himself without any social protection in case of acquired disability. This itself means a big discouragement to join the defence forces as a combatant  in comparison to a similar post as a civilian. 

Isn't this nullification of the provisions of Section 47 of the Persons with Disabilities and the spirit of Article 14 of Constitution of India? Its absurd since the section 47 comes under the chapter on Non-Discrimination in the Act! The defence minister must look in to it and consider retaining the provisions of Section 47 to encourage more young minds joining the defence forces at all levels.

Here  goes the article: 

Fighting for a fair deal

M.P. Anil Kumar : Thu Nov 15 2012, 02:54 hrs

The armed forces must do more for differently abled personnel

Generals Ian Cardozo, Pankaj Joshi and Vijay Oberoi are luminaries of the Indian army, for they attained that rank and served in the frontline toughing it out on prosthetic legs.

Soldiers, sailors and airmen, by the very nature of their occupation, are prone to physical injuries, the severest form being spinal cord injury. The conditions — paraplegia (paralysis waist down) and quadriplegia (paralysis neck down) — sentence the victim to lifelong wheelchair mobility.

Given the nature of the profession, the armed forces need to maintain a fit profile. However, not every soldier needs to be in the trenches; the organisation has to deploy a mini-army in the offices to oil the wheels. So, instead of sidelining hors de combat soldiers, they can be retrained for sedentary tasks and made useful cogs in the machine, especially in a computer-driven workplace.

While the norm in the armed forces was to out the spinal-cord-injured personnel, in the early 1990s, realising the worth of his experience and utility to the service, the air force reversed its policy and retained Wing Commander Ashok Limaye, a paraplegic. The army followed suit, thus setting in motion the employment and rehab of wheelchair-bound officers within the services itself.

Beginning with amputees, it expanded to embracing worse-off paraplegics, and this initiative came years before Parliament gave the differently abled community its first sniff of empowerment through the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

Section 47 of the disability act, its high-water mark, is an enabling measure that proactively protects the employment of differently abled government staff. In a nutshell, it states that any employee who acquires a disability during his service has to be retained in the rolls with full pay and other dues till the age of superannuation (pension thereafter), even if he cannot be accommodated in any post. He cannot be denied promotion on the ground of his disability.

One need not wade through the legalese to distil the spirit of this section, which is to enable persons with disabilities to remain employed, thus ensuring their sustenance and restoring their dignity and self-worth. From the vantage point of a paraplegic soldier, all the fizz of this act went flat with the issuance of a statutory notification (SN) via the gazette of 13 April 2002. By exercising the powers conferred by the proviso to section 47, the Union government exempted, prospectively, all categories of posts of combatants of the armed forces from the protective shield of section 47. Since fighting fettle is a requisite, this exclusion does look reasonable. But only on the surface.

While the differently abled civilian employee is looked after, the paraplegic soldier in the prime of life would be wheeled off to fend for himself and his family on peanuts packaged as a disability pension. The government consigns the paraplegic soldier to a far lower quality of life vis-à-vis the differently abled civilian employee. The SN therefore discriminates and does a grave wrong to those who risk life and limb in the line of duty. The irony is that section 47 is unfurled in the act under the rubric of “non-discrimination”. It would be a surprise if the SN was not found to fall afoul of Article 14 (right to equality before the law and equal protection of the law) of the Constitution.

If the government doesn’t rescind the SN to restore parity, then equality demands the enhancement of disability pension to match full emoluments . If not, one expects our lawmakers to restore equal rights among various differently abled employees when the new legislation to attune the disability act to the UN Convention on the Rights of Persons with Disabilities comes up in Parliament. But that could mean a long wait.

While the army struck the right note in the beginning, and one presumed the inclusion of paraplegics had evolved into an imperative, it was inconsistent in absorbing even pre-SN paraplegics. A major invalided out in February 2002 had appealed against his expulsion. The Armed Forces Tribunal upheld his contention and reinstated him. The army, readying to challenge that order, indicated its reluctance to welcome paraplegics back to the fold.

The IAF has a history of compassion, but its test comes in the form of a flight cadet who sustained spinal injury while ejecting from a jet trainer last August. Then four months short of becoming an officer, this paraplegic lad wants to serve the IAF in any non-flying capacity. A change of branch and commission will mean setting a precedent. The lazy option is to throw the rulebook at him and bid him goodbye. That will be a waste of his training and cruel, to boot. Will the IAF choose to be a pioneer by commissioning him? By some coincidence, the navy too will be asked to take a call as for the first time, a wheelchair-bound officer has sought retention.

Perhaps Defence Minister A.K. Antony, who lays great store on fairness, can step in to tell the services to consider the spirit of the disability act to be their lodestar when called upon to decide the fate of a paraplegic soldier.

The writer was a fighter pilot in the IAF

Source: Indian Express