Rights Activists Want ICT To Be Made More Inclusive for Persons With Disabilities

Submissions made to the Telecom Regulatory Authority of India seek stringent, legally-binding provisions covering all players in the sector.

Gaurav Vivek Bhatnagar | The Wire | January 26, 2018

New Delhi: Disability rights activists have called for a stringent policy to ensure persons with disabilities are able to access with ease both the software and hardware when it comes using information and communication technology (ICT).

With the Telecom Regulatory Authority of India (TRAI) issuing a consultation paper on ‘Making ICT Accessible for Persons with Disabilities (PwDs)’ on December 20, 2017, and seeking comments from the stakeholders by January 22, 2018, a number of disability rights groups have made their submissions.

“For achieving a truly inclusive information society, persons with disabilities must be able to use information and communication technologies (ICTs) with equal ease. This can be made possible only if the accessibility of ICTs is on the top of the agenda of manufacturers and service providers. Though it makes business sense to attract persons with disabilities with ICTs having accessibility features, manufacturers failed to tap this opportunity. Hence, a stringent policy is required to ensure persons with disabilities get what they need,” said noted disability rights activist and director of Svayam, Subhash Chandra Vashishth.

Incidentally, the World Bank Report (2007) titled ‘People with disabilities in India: from commitments to outcomes’ had stated that “there is growing evidence that people with disabilities comprise between 4 and 8 percent of the Indian population”. Further, the population of senior citizens in the country ranges between 10-12%. Put together, these aspects raise the need for making ICT inclusive for improving the quality of life of the PwDs.

Both software, hardware not complying with guidelines

In its submission to TRAI, Svayam has noted that often the websites, software and mobile apps from vendors and service providers do not comply with accessibility guidelines. This makes them inaccessible for visually impaired persons who make use of assistive technologies like screen reading software, braille displays, etc.

It has also pointed out that “most electronic hardware products like Set-Top-Box (STB), smart home solutions, etc. are not usable for persons with disabilities as they don’t comply with international accessibility standards e.g. the buttons on most of these devices do not possess any tactile notations and audio feedback to allow visually impaired users to interact with them.

Policies lack budgeting support

Most policies are simple guidelines and often lack appropriate budgetary or funding support for implementation and penalty for non-adherence. This leads to lesser efforts towards compliance, the organisation noted.

Moreover, it said, most guidelines are made applicable only for government entities and not to all establishments. “However, needs of persons with disabilities in their day-to-day lives span beyond services and products offered by government entities.”

As for the financial support for maturity and survival of products that benefit PwDs, it said either such mechanisms “do not exist or are very low and ineffective.”

Stating that “a comprehensive plan is needed to adopt an accessible operating system for product development and service divisions to include everyone,” Vashishth said issuing of the consultation paper was a step in the right direction.

As for telecom regulator TRAI, he said, it has highlighted in the paper that an equal and inclusive society involves providing equal opportunities to all sections of society irrespective of their physical, economic, social or religious identity in all spheres of life and this covers education, skill development, economic empowerment and ensuring full participation of all persons including PwDs.

While programmes such as ‘Digital India’ envisage inclusive growth and a digitally empowered society, the benefits of ICT have not reached all the sections so far. At a time when mobile phones are also being used to access information, avail of various services, the need of the hour is promoting digital inclusion for enabling PwDs to lead independent and dignified lives.

With the new Rights of Persons with Disabilities Act, 2016 raising the disability categories from seven to 21, “this presents an opportunity for all the stakeholders (disability/accessibility activists, NGOs, etc.) to mull over the concern areas and help the government on how to make ICT accessible for persons with disabilities,” said Vashishth.

‘Include user groups in research, product development’

Founder-chairperson of Svayam, Sminu Jindal, said “there is a massive lack of awareness among the stakeholders as well as credible research on ICT for persons with disabilities. Non-inclusion of user groups in research and product development is another issue which should be addressed. We also need aggressive public campaigns for awareness and sustained advocacy to enforce stringent accessible ICT policies.”

On the key areas of concern, Svayam has noted among other things that there is an absence of periodic stakeholder coordination; lack of harmony between policies and the regulation across the world to adhere to uniform standards; lack of research and development, lack of aggressive campaigning for accessible ICTs, lack of direct involvement of PwDs in product development; high cost of specialised assistive technology; high import taxes and no subsidy or incentives being provided to the manufacturers from the government.

It has, therefore, suggested that “all establishments” should be covered by all the provisions in the policies concerning access to PwDs; the provisions should be made “mandatory” and legally binding instead of remaining mere guidelines; clauses specifying substantial penalties for non-adherence should be incorporated; definition of “everyday use products” should be clearly defined and detailed to cover products used for personal use, at home, office and in public infrastructure.

TRAI should set up a helpline for complaints

It has also suggested that TRAI set up a helpline where only complaints regarding accessibility can be received. “The data of complaints and action taken should be made available on TRAI portal as such data can help frame and reform policies in larger interest.”

For making it easier for all PwDs to access ICT products, the group has also suggested that all products that have a display screen and interactive touch screen should be made accessible. “This includes set top box, point of sale (POS) machines, scanners, everyday use products such as washing machines, microwave, air conditioners, refrigerators, all types of vending machines, self-service public devices used in shopping malls, airports, railway ticketing, printers including 3D printers, scanners, lifts, elevators, and musical instruments.”

Focus on regional languages as well

With India being culturally and linguistically diverse, the organisation has also demanded that ICT services in regional language be started for wider reach as at present most of the assistive technology and software is not available in them.

It has also called for funding “futuristic technologies”. “Recently, Microsoft was granted a patent for a brain control device that can give users mind control powers to operate apps with just their brains, without any movement. Using sensor-equipped head bands, the device could ideally interpret neurological data to have users open and use apps with thoughts instead of gestures,” it pointed out.

Stating that “accessible ICTs are very much possible, and have the potential to significantly touch many lives enhancing their productivity,” Jindal said if necessary steps are taken now, it would “enable persons with disabilities to contribute to the GDP and live a dignified and happy life.”

Source: The Wire 

DoPT Proposes to Revise Reservation Policy for Persons with Disabilities: seeks suggestions

Dear colleagues,

Ever since the enactment of the Rights of Persons with Disabilities Act 2016, particularly after it was brought in to effect on 19th April, 2017, lot of concerns have been raised by the stakeholders, various High Courts and the Supreme Court of India as to how the existing policy framework will be tuned to the requirements of the new Act. The pace has been very slow warranting the courts to issue directives. 

After the new Act, several new disabilities have been added in to the list who could now claim rights of reservations in jobs and reasonable accommodations for them to be able to perform jobs on an equal basis with others. The DoPT, which is cadre controlling authority for central civil services and other allied services has put out a notice dated 20 June 2017 seeking suggestions on the comprehensive memorandum on implementing reservations for persons with disabilities.

The notification and the draft memorandum on the subject are pasted below in accessible format for general information. It can also be directly accessed in PDF format from the link: Notification seeking suggestions dt 20.06.2017

No.36035/02/2017-Estt (Res) 

Government of India 

Ministry of Personnel, Public Grievances & Pensions 

Department of Personnel & Training

North Block, New Delhi

Dated : 20.06.2017

OFFICE MEMORANDUM

Sub: Reservation for Persons with Benchmark Disabilities – Suggestions; if any, from all concerned including general public.

The undersigned is directed to enclose a copy of draft instructions bringing them in line with THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016' with regard to reservation for Persons with Benchmark Disabilities in the posts/services Under the Central Government.

2. The issue of reservation in promotion for persons with Disabilities is sub-judice in various cases in the Hon’ble Supreme Court including Civil Appeal No.1567/2017 titled Siddaraju Vs State of. Karnataka & Ors and Review Petition (C) No.36/2017 tagged with it.

3.It is requested that the draft instructions may be examined and suggestions, if any, may be sent to this Department within 15 days of the issue of this Office Memorandum through e-mail only at q.sreenivasannic.in and debabrata.d13nic.in

(Raju Sarawat)

Under Secretary to the Govt.of India.

Tel No : 011-23040279

011-23093074

---------------------

No.36035/02/2017-Estt (Res) 

GOVERNMENT OF INDIA 

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS 

DEPARTMENT OF PERSONNEL & TRAINING

North Block, New Delhi

Dated  the June,2017

DRAFT OFFICE MEMORANDUM

Subject: Reservation for the Persons with Benchmark Disabilities – reg.

With the notification of ‘THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016’ on 28th December, 2016, which took effect from 19th day of April, 2017, the following instructions are issued in line with the provisions made in this Act regarding reservation for Persons with Benchmark Disabilities in the posts/services of the Central Government. Notwithstanding anything contained in the earlier instructions issued so far on the subject, the following instructions shall prevail in case of any contradiction with previous instructions issued so far.

2. QUANTUM OF RESERVATION

(i)  In case of direct recruitment, four per cent of the total number of vacancies in the cadre strength in each group of posts i.e A, B, C and D shall be reserved for persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent, for persons with benchmark disabilities under clauses (d) to (e), namely:-

• blindness and low vision;
• deaf and hard of hearing;
• locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attacks victims and muscular dystrophy;
• autism, intellectual disability, specific learning disability and mental illness;
• multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness, 

in the posts identified for each disabilities.

(ii)  In case of promotion, four per cent of total number of vacancies in the cadre strength in each group of posts i.e Group D and C posts, in which the element of direct  recruitment if any, does not exceed 75%, shall be reserved for Persons with Benchmark Disabilities of which one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one  per cent, for persons with benchmark disabilities under clauses (d) to (e), namely:-

• blindness and low vision;
• deaf and hard of hearing;
• locomotor disability including cerebral palsy, leprosy cured,dwarfism, acid attacks victims and muscular dystrophy;
• autism, intellectual disability, specific learning disability and mental illness;
• multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness,

in the posts identified for each disabilities.

3. EXEMPTION FROM RESERVATION:

If any Department/Ministry in the Central Government considers it necessary to exempt any establishment partly or fully from the provisions of reservation for persons with benchmark disabilities, it shall make a reference to the Department of Empowerment of Persons with Disabilities giving full justification for the proposal, who having regard to the type of work carried out in any Government establishment by notification and subject to such condition, if any, as may be specified in the notification, in consultation with the Chief Commissioner of Persons with Disabilities (CCPD) may exempt any Establishment from the provisions of reservation for persons with benchmark disabilities.

4. IDENTIFICATION OF JOBS /POSTS: The Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment have identified the jobs/posts suitable to be held by persons with benchmark disabilities and the physical requirement for all such jobs/posts vide their Notification No.16-15/2010-DD-III dated 29th July, 2013. The jobs /posts given in Annexure C of the said notification to be amended from time to time shall be used to give effect to four per cent reservation to the persons with benchmark disabilities. It may, however, be noted that:

• The nomenclature used for any job/ post shall mean and include nomenclature used for other comparable jobs/posts having identical functions.
• The list of jobs/posts notified by the Department of Empowerment of. Persons with Disabilities is not exhaustive. The concerned Ministries/ Departments shall have the discretion to identify jobs / posts in addition to the jobs/ posts already identified by Department of Empowerment of Persons with -Disabilities. However, no Ministry/Department/Establishment shall exclude any identified job/post from the purview of reservation at its own discretion.
• If a job/ post identified for persons with benchmark disabilities is shifted from one group or grade to another group or grade due to change in the pay-scale or otherwise, the job/ post shall remain identified.

5. RESERVATION IN POSTS IDENTIFIED FOR ONE OR TWO OR MORE CATEGORIES:

If a post is identified suitable only for one category of benchmark disability, reservation in that post shall be given to that category of persons with that benchmark disability only. Reservation of 4% shall not be reduced in such cases and total reservation in the post will be given to persons suffering from that benchmark disability for which it has been identified. Likewise in case the post is identified suitable for two or more categories of benchmark disabilities, —reservation shall be distributed between persons with those categories of benchmark disabilities equally, as far as possible. It shall, however, be ensured that reservation in different posts in the establishment is distributed in such a way that the persons of all categories of benchmark disabilities, as far as possible, get representation to the posts identified for them.

6. APPOINTMENT AGAINST UNRESERVED VACANCIES:

In the posts which are identified suitable for persons with disabilities, a person with disability cannot be denied the right to compete for appointment against an unreserved vacancy, Thus a person with disability can be appointed against an unreserved vacancy, provided the post is identified suitable for persons with disability of the relevant category.

7. ADJUSTMENT OF CANDIDATES SELECTED ON THEIR OWN MERIT:

In the posts which are identified suitable for persons with benchmark disabilities, a person with benchmark disability cannot be denied the right to compete for appointment against an unreserved vacancy. Thus a person with benchmark disability can be appointed against an unreserved vacancy, provided the post is identified suitable for persons with benchmark disability of the relevant category.

Persons with benchmark disabilities selected on their own merit without relaxed standards along with other candidates, will not be adjusted against the reserved share of vacancies. The reserved vacancies will be filled up separately from amongst the eligible candidates with benchmark disabilities which will thus comprise persons with benchmark disability candidates who are lower in merit than the last candidate in merit list but otherwise found suitable for appointment, if necessary, by relaxed standards. It will apply in case of direct recruitment as well as promotion, wherever reservation for persons with benchmark disabilities is admissible.

8. SPECIFIED DISABILITY:

Following are the specified disabilities for the purpose of applicability of reservation for Persons with Benchmark Disabilities:

1. Physical disability:-

A. Visual impairment-

(a) “blindness” means a condition where a person has any of the following conditions, after best correction-

(i)   total absence of sight; or

(ii)  visual acuity le.ss than 3/60 or less than 10/200 (Suellen} in the better eye with best possible correction; or

(iii)    limitation of the field of vision subtending an angle of less than 10 degree,

(b) “low-vision” means a condition where a person has any of the following conditions, namely:-

(i)  visual acuity not exceeding 6/18 or less than 20/60 upto 3/60 or upto 10/200 (Snellen) in the better eye with best possible corrections; or

(ii)    limitation of the field of vision subtending an angle of less than 40 degree up to 10 degree.

B. Hearing impairment-

• “deaf” means persons having 70 DB hearing loss in speech frequencies in both ears;
• “hard of hearing” means person having 60 DB to 70 DB hearing loss in speech frequencies in both ears;

C. Locomotor disability (a person’s inability to execute distinctive activities associated with movement of self and objects resulting from affliction of musculoskeletal or nervous system or both), including-

(a) “leprosy cured person” means a person who has been cured of leprosy but is suffering from-

(i) loss of sensation in hands or feet as well as loss of sensation and paresis in the eye and eye-lid but with no manifest deformity;

(ii) manifest deformity and paresis but having sufficient mobility in their hands and feet to enable them to engage in normal economic activity;

(iii) extreme physical deformity as well as advanced age which prevents him/her from undertaking any gainful occupation,and the expression “leprosy cured” shall construed accordingly;

(b) “cerebral palsy” means a Group of non-progressive neurological condition affecting body movements and muscle coordination, caused by damage to one or more specific areas of the brain, usually occurring before, during or shortly after birth;

(c) “dwarfism” means a medical or genetic condition resulting in an adult height of 4 feet 10 inches (147 centimeters) or less;

(d) “muscular dystrophy” means a group of hereditary genetic muscle disease that weakens the muscles that move the human body and persons with multiple dystrophy have incorrect and missing information in their genes, which prevents them from making the proteins they need for healthy muscles. It is characterised by progressive skeletal muscle weakness, defects in muscle proteins, and the death of muscle cells and tissue;

(e)  “acid attack victims”  means a person disfigured due to violent assaults by throwing of acid or similar corrosive substance.

D. Intellectual disability, a condition characterised by significant limitation both in intellectual functioning (rasoning, learning, problem solving) and in adaptive behaviour which covers a range of every day, social and practical skills, including-

(a) “specific learning disabilities” means a heterogeneous group of  conditions wherein there is a deficit in processing language, spoken or written, that may manifest itself as a difficulty to comprehend, speak, read, write, spell, or to do mathematical calculations and includes such conditions as perceptual disabilities, dyslexia, dysgraphia, dyscalculia, dyspraxia and developmental aphasia;

(b)”autism spectrum disorder” means a neuro-developmental condition typically appearing in the first three years of life that significantly affects a person’s ability to communicate, understand relationships and relate to others, and is frequently associated with unusual or stereotypical rituals or behaviours.

Mental behaviour-

“mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment,behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.

E. Multiple Disabilities (more than one of the above specified disabilities) including deaf blindness which means a condition in which a person may have combination of hearing and visual impairments causing severe communication, developmental, and educational problems.

9. DEGREE OF DISABILITY FOR RESERVATION: Only “person with benchmark disability” would be eligible for reservation in posts/services with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. A person who wants to avail of benefit of reservation will have to submit a Disability Certificate issued by a Competent Authority.

10. Application for disability certificate

(1) Any person with specified disability may apply in FORM–I for a disability certificate either online through Unique Disability Identity Portal (www.swavlambancard.gov.in) or submit the physical application to –

(a) a medical authority or any other notified competent authority to  issue such a certificate in the district of the applicant’s residence as mentioned in the proof of residence in the application; or

(b) the concerned medical authority in a government hospital where he may be undergoing or may have undergone treatment in connection with his disability:

Provided that where a person with disability is a minor or suffering from intellectual disability or any other disability which renders him unfit or unable to make such an application himself, the application on his behalf may be made by his legal guardian.

(2) The application shall be accompanied by-

• proof of residence;
• two recent passport size photographs; and
• aadhar number or aadhar enrolment number, if any
• No other proof of residence shall be required from the applicant who has aadhar enrolment number.

11. Issue of disability certificate

(i)   On receipt of an online application as mentioned above, the medical authority shall, verify the information as provided by the applicant and shall assess the disability in terms of the relevant guidelines issued by the Central Government and after satisfying himself that the applicant is a person with disability, issue a disability certificate in his favour through the UDID portal.

Provided that the State Governments or UT Administration shall continue to issue certificate of disability manually for a period of six months.

(ii)For applications other than online mode, the medical authority shall ensure that application is converted to the online mode and shall follow the same procedure as mentioned above for issuing of disability certificate.

(iii) The disability certificate shall be issued within a month from the date of receipt of the application by the medical authority.

(iv) The medical authority shall, after due examination –

(a) Issue a permanent disability certificate in cases where there are  no chances of variation over time in the degree of disability; or

(b) give a temporary disability certificate and indicate the period  of validity in the certificate, in cases where there is any chance of variation over time in the degree of disability.

(v) If an applicant is found ineligible for issue of disability certificate, the medical authority shall convey the reasons to him in writing under FORM–II within a period of one month from the date of receipt of the application.

12. At the time of initial appointment and promotion against a vacancy reserved for persons with benchmark disabilities, the appointing authority shall ensure that the candidate is eligible to get the benefit of reservation.

13. COMPUTATION OF RESERVATION:

Reservation for persons with benchmark disabilities in case of Group C and Group D posts shall- be computed on the basis of total number of vacancies occurring in all Group C or Group D posts, as the case may be, in the establishment, although the recruitment of the persons with disabilities would only be in the posts identified suitable for them. The number of vacancies to be reserved for the persons with disabilities in case of direct recruitment to Group ‘C’ posts in an establishment shall be computed by taking into account the total number of vacancies arising in Group ‘C’ posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. The same procedure shall apply for Group ‘D` posts. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in Group ‘C’ and Group ‘D’ posts. Since reservation is limited to identified posts only and number of vacancies reserved is computed on the basis of total vacancies (in identified posts as well as unidentified posts), it is possible that number of persons appointed by reservation in an identified post may exceed four per cent.

14. Reservation for persons with benchmark disabilities in Group ‘A’ or Group ‘B’ posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in the cadre in all the Group A posts or Group ‘B’ posts respectively, and the computation of total vacancies shall include vacancies arising in the identified and non-identified posts.

15 EFFECTING RESERVATION – MAINTENANCE OF ROSTERS:

(a) Every Government establishment shall maintain separate 100 point vacancy based reservation roster registers in the format given in Annexure A for determining/effecting reservation for the Persons with Benchmark Disabilities – one each for Group ‘A’ posts filled by direct recruitment, Group ‘B’ posts filled by direct recruitment, Group ‘C’ posts filled by direct recruitment, Group ‘C’ posts filled by promotion, Group ‘D’ posts filled by direct recruitment and Group ‘D’ posts filled by promotion.

(b) Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into four blocks, comprising the following points:

1st Block – point No.1 to point No.25

2nd Block – point No. 26 to point No.50

3rd Block – point No.51 to point No. 75

4th Block – point No.76 to point No.100

(c) Points 1, 26, 51. and 76 of the roster shall be earmarked reserved for persons with benchmark disabilities – one point for each of the four categories of disabilities. The Head of the establishment shall ensure that vacancies identified at SI. No.1, 26, 51 and 76 are earmarked for the respective categories of the persons with benchmark disabilities. However, the Head of the establishment shall decide the placement of the selected candidate in the roster register.

(d) All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. If the vacancy falling at point no. 1 is not identified for the Person with Benchmark Disability or the Head of the establishment considers it desirable not to fill it up by Persons with Benchmark Disabilities a disabled person or it is not possible to fill up that post by the Persons with Benchmark Disabilities for any other reason, one of the vacancies falling at any of the points from 2 to 25 shall be treated as reserved for the disabled and filled as such.

Likewise, a vacancy falling at any of the points from 26 to 50 or from 51 to 75 or from 76 to 100 shall have to be filled by the Persons with Benchmark Disabilities. The purpose of keeping points 1, 26, 51 and 76 as reserved is to fill up the first available suitable vacancy from 1 to 25, first available suitable vacancy from 26 to 50, first available suitable vacancy from 51 to 75 and first available suitable vacancy from 76 to 100 by persons with benchmark disabilities.

(e)There is a possibility that none of the vacancies from 1 to 25 is suitable for any category of the Person with Disability. In that case two vacancies from 26 to 50 shall be filled as reserved for persons with disabilities. If the vacancies from 26 to 50 are also not suitable for any category, three vacancies shall be filled as reserved from the third block containing points from 51 to 75. This means that if no vacancy can be reserved in a particular block, it shall be carried over into the next block

(f)After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start.

(g) If the number of vacancies in a year is such as to cover only one block (say 25 vacancies) or two (say 50 vacancies), the category of the disabled should be accommodated as per the roster points. However, in case the said vacancy is not identified for the respective category, the Head of the establishment shall decide the category on the basis of the nature of the post, the level of representation of the specific disabled category in the concerned grade/post etc.

(h)A separate roster shall be maintained for group C posts – one for the posts filled by direct recruitment and another for posts filled by promotion. Likewise, two separate rosters shall be maintained for Group D posts.

(I) Reservation for persons with disabilities in Group ‘A’ or Group ‘B’ posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in all the Group ‘A’ posts or Group ‘B’ posts respectively, and the computation of total vacancies shall include vacancies arising in the identified and non-identified posts in the cadre. Separate rosters for Group ‘A’ posts and Group ‘B’ posts in the establishment shall be maintained.”

16. INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF DIRECT RECRUITMENT:

(a) Reservation for each of the categories of persons with benchmark disabilities identified for reservation shall be made separately. 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 categories identified for reservation. However, the Head of the establishment shall ensure that the reasons for interchange may be recorded in writing before effecting the same.

(b)Where tn any recruitment year any vacancy cannot be filled up due to non availability of a suitable person with benchmark 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 benchmark disability is not available, it may first be filled by interchange among the identified categories for reservation purpose 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. The Government establishment shall interchange vacancies only if due process of recruitment to fill up the vacancies meant for persons with benchmark disabilities has been complied with.

(c) If any vacancy reserved for any category of benchmark disability cannot be filled due to non-availability of a suitable person with that benchmark disability or, for any other sufficient reason, such vacancy shall be carried forward as a ‘backlog reserved vacancy’ to the subsequent recruitment year.

In the subsequent recruitment year the ‘backlog reserved vacancy’ shall be treated as reserved for the category of disability for which it was kept reserved in the initial year of recruitment. However, if a suitable person with that benchmark disability is not available, it may be filled by interchange among the categories of benchmark disabilities identified for reservation. In case no suitable person with benchmark disability is available for filling up the vacancy in the succeeding year also, the employer may fill up the vacancy by a person other than a person with benchmark disability. If the vacancy is filled by a person with benchmark disability of the category for which it was reserved or by a person of other category of benchmark disability by inter se exchange in the subsequent recruitment year, it will be treated to have been filled by reservation. But if the vacancy is filled by a person other than a person with benchmark disability in the subsequent recruitment year, reservation shall be carried forward for a further period upto two recruitment years whereafter the reservation shall lapse. In these two subsequent years, if situation so arises, the procedure for filling up the reserved vacancy shall be the same as followed in the first subsequent recruitment year.

17. In order to ensure that cases of lapse of reservation are kept to the minimum, any recruitment of the disabled candidates shall first be counted against the additional quota brought forward from previous years, if any, in their chronological order. If candidates are not available for all the vacancies, the older carried forward reservation would be filled first and the current vacancies would be carried forward if not filled up.

18. CONSIDERATION ZONE, INTERSE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF PROMOTION

(a)  While filling up the reserved vacancies in Group C or Group D by promotion by selection, if any, the candidates with benchmark disabilities, who are within the normal zone of consideration, shall be considered for promotion. Where adequate numbers of the candidates with benchmark disabilities of the appropriate category of disability are not available within the normal zone, the zone of consideration may be extended to five times the number of vacancies and the candidates with Benchmark disabilities falling within the extended zone may be considered. In the event of non-availability of candidates even in the extended zone, the reservation can be exchanged so that vacancy can be filled by a person with other category of benchmark disability, if possible. If it is not possible to fill up the post by reservation, the vacancy in the post may be filled by a person other than a Person with Benchmark disability and the reservation shall be carried forward for upto three subsequent recruitment years, whereafter it shall lapse.

(b) In posts filled by promotion by non-selection in Group C or Group D, the eligible candidates with benchmark disabilities shall be considered for promotion against the reserved vacancies and in case no eligible candidate of the appropriate category of disability is available, the vacancy can be exchanged with other categories of benchmark disabilities identified for it. If it is not possible to fill up the post by reservation even by exchange, the reservation shall be carried forward for upto three subsequent recruitment years, whereafter it shall lapse.

19. HORIZONTALITY OF RESERVATION FOR PERSONS WITH BENCHMARK DISABILITIES:

Reservation for backward classes of citizens (SCs, STs and OBCs) is called vertical reservation and the reservation for categories such as persons with benchmark disabilities and ex-servicemen is called horizontal reservation. Horizontal reservation cuts across vertical reservation (in what is called interlocking reservation) and persons selected against the quota for persons with benchmark disabilities have to be placed in the appropriate category viz. SC/ST/OBC/General candidates depending upon the category to which they belong in the roster meant for reservation of SCs/STs/OBCs. To illustrate, if in a given year there are two vacancies reserved for the persons with benchmark disabilities and out of two persons with benchmark disabilities appointed, one belongs to a Scheduled Caste and the other to general category, then the benchmark disabilities SC candidate shall be adjusted against the SC point in the reservation roster and the general candidate with benchmark disability against unreserved point in the relevant reservation roster. In case none of the vacancies falls on point reserved for the SCs, the benchmark disability candidate belonging to SC shall be adjusted in future against the next available vacancy reserved for SCs.

20. Since the persons with benchmark disabilities have to be placed in the appropriate category viz. SC/ST/OBC/General in the roster meant for reservation of SCs/STs/OBCs, the application form for the post should require the candidates applying under the quota reserved for persons with benchmark disabilities to indicate whether they belong to SC/ST/OBC or General category.

21. RELAXATION IN AGE LIMIT:

(i)  Upper age limit for persons with benchmark disabilities shall be relaxable (a) by ten years (15 years for SCs/STs and 13 years for OBCs) in case of direct recruitment to Group ‘C’ and Group ‘D’ posts; (b) by 5 years (10 years for SCs/STs and 8 years for OBCs) in case of direct recruitment to Group ‘A’ and Group ‘B’ posts where recruitment is made otherwise than through open competitive examination; and (c) by 10 years (15 years for SCs/STs and 13 years for OBCs) in case of direct recruitment to Group A and Group B posts through open competitive examination.

(ii)  Relaxation in age limit shall be applicable irrespective of the fact whether the post is reserved or not, provided the post is identified suitable for persons with benchmark disabilities.

22. RELAXATION OF STANDARD OF SUITABILITY:

If sufficient number of person with benchmark disabilities candidates is 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 benchmark 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.

23. MEDICAL EXAMINATION:

As per Rule 10 of the Fundamental Rules, every new entrant to Government Service on initial appointment is required to produce a medical certificate of fitness issued by a competent authority. In case of medical examination of a person with benchmark disabilities for appointment to a post identified as suitable to be held by a person suffering from a particular kind of disability, the concerned Medical Officer or Board shall be informed beforehand that the post is identified suitable to be held by persons with benchmark disabilities of the relevant category and the candidate shall then be examined medically keeping this fact in view.

24. EXEMPTION FROM PAYMENT OF EXAMINATION FEE AND APPLICATION FEE:

Persons with benchmark disabilities shall be exempted from payment of application fee and examination fee, prescribed in respect of competitive examinations held by the Staff Selection Commission, the Union Public Service Commission etc. for recruitment to various posts. This exemption shall be available only to such persons who would otherwise be eligible for appointment to the post on the basis of standards of medical fitness prescribed for that post (including any concession specifically extended to the persons with benchmark disabilities) and who enclose disability certificate from a competent authority with the application form in support of their claim of disability.

25. NOTICE OF VACANCIES:

In order to ensure that persons with benchmark disabilities get a fair opportunity in consideration for appointment to a vacancy in an identified post, the following points shall be kept in view while sending the requisition notice to the SSC, the UPSC etc. and while advertising the vacancies:-

(i) Number of vacancies reserved for SC/ST/OBC/Ex-servicemen/Persons with Benchmark Disabilities should be indicated clearly. As regards Persons with Benchmark Disabilities, the vacancies shall be further reported separately for the following four categories of benchmark disabilities.

First category

• blindness and low vision;

Second category.

• deaf and hard of hearing;

Third category

• locomotor disability including cerebral palsy, leprosy cured,
• dwarfism, acid attacks victims and muscular dystrophy;

Fourth category

• autism, intellectual disability, specific learning disability and mental illness;
• multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness,

in the posts identified for each disabilities.

(ii)      In case of vacancies in posts identified suitable to be held by persons with benchmark disabilities, it shall be indicated that the post is identified for: –

First category

• blindness and low vision;

Second category

• deaf and hard of hearing;

Third category

• locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attacks victims and muscular dystrophy;

Fourth category

• autism, intellectual disability, specific learning disability and mental illness;
• multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness,

in the posts identified for each disabilities, as the case may be, and that the persons with benchmark disabilities belonging to the category/categories for which the vacancy in the post is identified shall be allowed to apply even if no vacancies are reserved for them. Such candidates will be considered for selection for appointment to the post by general standards of merit, if the post identified suitable for them.

(iii) In case of vacancies in posts identified suitable for persons with benchmark disabilities, irrespective of whether any vacancies are reserved or not, the categories of disabilities viz

• blindness and low vision;
• deaf and hard of hearing;
• locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attacks victims and muscular dystrophy;
• autism, intellectual disability, specific learning disability and mental illness;
• multiple disability from amongst persons under clauses (a) to (d) including deaf-blindness,

for which the post is identified suitable alongwith functional classification and physical requirements for performing the duties attached to the post shall be indicated clearly.

(iv) It shall also be indicated that the above-mentioned four categories of persons with benchmark disabilities shall alone be eligible for the benefit of reservation under the category of persons with benchmark disabilities. Persons with benchmark disabilities means a person with not less than forty percent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority.

26. Notification of vacancies to the Special Employment Exchange:–

(i) The following vacancies shall be notified by the establishments to the special employment exchange namely:-

(a) vacancies in posts of a technical and scientific nature carrying a basic pay in Level 6 or more per month occurring in Central Government establishments; and

(b)  vacancies which the employer of the Central Government establishment may circulate to the special employment exchange outside the State or Union territory in which the establishment is situated, as may be notified in the Official Gazette.

(ii) The Government establishment shall send the copy of the notification of vacancies to the concerned Vocational Rehabilitation Centre for persons with disabilities.

(iii) The vacancies other than those specified in sub-rule (1) shall be notified to the local special employment exchange concerned and the Government establishment shall send a copy of the notification of vacancies to the concerned Vocational Rehabilitation Centre for persons with disabilities.

27. Form and manner of notification of vacancies to the Special Employment Exchange:-

(1) The Government establishment shall notify the vacancies in writing to the concerned special employment exchange, and furnish the following particulars in respect of each type of vacancy, namely:-

(a) Name and address of the employer;

(b) Telephone number of the employer;

(c)   Nature of vacancy, namely;-

(i)  Designation of workers required;

(ii)  Description of duties

(iii)   Physical requirements for the job, namely, visual accuracy, frequent movement or walking, continuous long hours sitting and other physical requirements;

(iv)  Qualification requirements, namely:-

i. essential;

ii. desirable;

(v)   Age limit, if any;

(vi)  Whether women are eligible?

(d)  number of vacancies reserved for persons with disabilities, that is, persons with physical, visual, hearing, intellectual and mental illness-

(i)  regular;

(ii) temporary;

(e)   pay and allowances;

(f)  place of work, that is, name of town and village and district in which it is situated;

(g)  probable date by which the vacancy will be filled;

(h)  particulars regarding interview/test of applicants, namely;-

(i)   date of interview or test;

(ii) time of interview or test;

(iii) place of interview or test;

(iv) designation and address of the person to whom applicants should report;

(v) any other relevant information,

(2) The appropriate Government shall re-notify the vacancies to the concerned special employment exchange, if there is any change in the particulars already furnished to the special employment exchange and vocational rehabilitation centre for persons with disabilities under this rules.

28. Time limit for the notification of vacancies:–

(i) The vacancies, required to be notified to the local special employment exchange, shall be notified at least thirty days before the date on which the applicants are to be interviewed or tested, where interview or test held, or the date on which vacancies are intended to be filled, if no interview or test is held.

(ii) An employer of the Government establishment shall furnish to the concerned special employment exchange, the result of the selection within fifteen days from the date of selection.

29. Submission of Returns:–

(i) An employer of the Government establishment shall furnish to the local special employment exchange returns once in every three months in Form PDER-I and once in every two months in Form PDER­- II.

(ii) The return shall be furnished within thirty days of the respective dates that is, 31st March, 30th June, 30th September and 31st December.

(iii)The two months return shall be furnished within thirty days of the due date as may be notified by the appropriate Government in the Official

30. Form in which record to kept by en employer:–

Every employer of the Government establishment shall maintain the record of employees with disabilities in Form PDER III.

31.CERTIFICATE BY REQUISITIONING AUTHORITY:

In order to ensure proper implementation of the provisions of reservation for persons with benchmark disabilities, the requisitioning authority while sending the requisition to the UPSC, SSC etc. for filling up of posts shall furnish the following certificate to the recruiting agency:-

“It is certified that the requirements of the THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016′ on 28th December, 2016, which took effect from 19th day of April, 2017 and the policy relating to reservation for persons with benchmark disabilities has been taken care of while sending this requisition. The vacancies reported in this requisition fall at points no  of cycle no  of 100 point reservation roster out of which  number of vacancies are reserved for persons with benchmark disabilities.”

32. ANNUAL REPORTS REGARDING REPRESENTATION OF PERSONS WITH BENCHMARK DISABILITIES:

(i) The Ministries/Departments shall continue to upload data on representation of Persons with Benchmark Disabilities along with data on SCs, STs, OBCs in respect of posts/services under the Central Government on the URL i.e, rrcps.nic.in as on 1st January of every year. All Ministries/Departments have been provided respective usercocle and password with guidelines for operating the URL.

(ii)Soon after the 1st January of every year, each appointing authority shall send on-line data relating to Persons with Disabilities along with SCs, STs and OBCs to its administrative Ministry/Department, which shall scrutinize the information received from all appointing authorities under it and upload the same on the URL. Ministry/Department shall consolidate information in respect of all attached and subordinate offices under its administrative control and submit the same through the URL to the Department of Personnel and Training immediately. The hardcopy of data uploaded on the URL need not to be sent to Department of Personnel and Training.

(iii)The following points may be kept in view while uploading the data on the URL:-

(a) The data sent to the DOPT should not include information in respect of public sector undertakings, statutory, semi-Government and autonomous bodies. Statutory, semi-Government and autonomous bodies which shall furnish consolidated information to the administrative Ministry/Department concerned, who may scrutinize, monitor and maintain it at their own level.

(b) The attached/subordinate offices shall send data to their administrative Ministry/Department only through the URL and shall not send it directly to the DOPT.

(c)The figures in respect of Persons with benchmark Disabilities shall include persons appointed by reservation as well as appointed otherwise.

(d)The data relates to persons and not to posts. Therefore, while furnishing data, the posts lying vacant etc. should not be taken into Persons on deputation should be included in the establishment of the borrowing Ministry/Department/Office and not in the parent establishment. Persons permanent in one grade but officiating or holding temporary appointment in the higher grade shall be included in the figures relating to the Class of service to which the higher grade belongs.

33. Grievance Redressal Mechanism:

(1) Every Government establishment shall appoint one or more Grievance Redressal Officer not below the rank of a Gazetted Officer:

Provided that where it is not possible to appoint any Gazetted Officer, an officer of reasonable seniority shall be appointed as a Grievance Redressal Officer.

(2)The grievance redressal officer shall maintain a register of complaints and soft copy specifically maintained for the purpose and separate page shall be allotted for each complaint.

(3)The grievance redressal officer shall record the following particulars in the register, namely:-

• date of complaint;
• name of complainant;
• name of the person who is enquiring the complaint;
• place of incident;
• the name of the establishment or person against whom the complaint is made;
• gist of the complaint;
• any additional information;
• documentary evidence, if any;
• date of disposal of by the grievance redressal officer;
• details of disposal of the appeal by the district level committee; and
• any other information.

34. LIAISON OFFICER FOR PERSONS WITH BENCHMARK DISABILITIES:

Liaison Officers appointed to look after reservation matters for SCs/STs shall also work as Liaison Officers for reservation matters relating to persons with benchmark disabilities and shall ensure compliance of these instructions.

35. All the Ministries/Departments are requested to bring the above instructions to the notice of all appointing authorities under their control.

Sd/-

(G. Srinivasan)

Deputy Secretary to the Govt. of India

Ph.No.23093074

 (i) All Ministries/Departments of the Govt. Of India.

(ii) Department of Financial Service, Ministry of Finance, Jeevan Deep Building, Parliament Street, New Delhi.

(iii)Department of Public Enterprises, CGO Complex, Lodhi Road, New Delhi

(iv) Railway Board, Rail Bhavan, Delhi.

(v)Union Public Service Commission/Supreme Court of India/ Election Commission of     India/     Lok   Sabha      Secretariat/     Rajya     Sabha Secretariat/Cabinet Secretariat/Central Vigilance Commission/President’s Secretariat/ Prime Minister’s Office/Planning Commission.

(vi) Staff Selection Commission, CGO Complex, Lodi Road, New Delhi.

(vii)Office of the Chief Commissioner for Disabilities, Sarojini House, 6, Bhagwan Das Road,New Delhi – 110001

(viii) Office of the Comptroller & Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi.

(ix) All Officers and Sections in the Ministry of Personnel, Public Grievances and Pensions and all attached/subordinate offices of this Ministry.

Revised Code of Bank's Commitment to Customers: 2014 integrates needs of Seniors & Disabled

Dear Colleagues,

After the recent guidelines of Reserve Bank of India (RBI) & Indian Bank's Association (IBA) detailing on accessibility of banks and its services for the disabled and elderly, needs of certain disabilities under the National Trust etc, the Banking Codes and Standards Board of India (BCSBI) which lays down the voluntary codes adopted by banks has in its 2014 revised version of the code has prominently dedicated a section on Senior Citizens and Differently abled.

This is a voluntary Code of Customer Rights, which sets minimum standards of banking practices member banks have to follow while they deal with individual customers. It provides protection to customers and explains how banks are expected to deal with customers in their day-to-day operations.

The extract of Section 11 from the recently revised Code is reproduced for your information below:

Extract from Code of Bank’s Commitment to Customers – January 2014

11. SENIOR CITIZENS AND DIFFERENTLY ABLED PERSONS

a. We will make our best efforts to make it easy and convenient for our special customers like senior citizens, differently abled and illiterate persons to bank with us. This will include making convenient policies, products and services for such applicants and customers.

b. We will endeavour to develop systems and procedures to improve access to banking services by you.

c. We will endeavour to make physical access to our branches and ATMs convenient for you.

d. We will sensitise our staff interacting with you to assist you in carrying out your banking transactions.

e. In addition to all the other commitments made in this Code –

i. We will accord due priority to you. We will endeavour to provide you personalized services for banking transactions and redressal of grievances.

ii. We will endeavour to provide seating arrangements in the banking hall.

iii. We will endeavour to provide you our services through a Single Window mechanism.

iv. We will permit withdrawal of your funds, up to limits set by you, by persons authorized by you on production of the authorization letter and passbook.

v. We will endeavour to provide ‘Doorstep’ banking (pick up of cash /instruments for credit to the account or delivery of cash / demand drafts against issue of cheque / requisition in writing) in special circumstances like ill health, inability to come to the branch, etc.

vi. We will issue a pension slip to you (pensioners) containing details of the pension credited to your account.

vii. We will endeavour to arrange to disburse the pension at the doorstep, in special circumstances.

viii. We will accept the Life Certificate that is required to be submitted by you (pensioners) at any branch of our bank.

ix. We will guide relatives / parents of disabled persons on how to appoint a legal guardian, under the National Trust Act, 1999, for disabled persons with autism, cerebral palsy, mental retardation and multiple disabilities who can then open and operate accounts for such persons.

x. We will ensure that all the banking facilities such as cheque book facility, ATM facility, Net banking facility, locker facility, retail loans, credit cards etc., are invariably offered to the visually challenged without any discrimination.

xi. We will render all possible assistance to the visually challenged for availing various banking facilities.

xii. We will endeavour to arrange regular meetings so that you may voice your concerns and benefit from collective experience.

To read the entire code, please click the link: Code of Bank’s Commitment to Customers – January 2014

Rights of Prisoners with Disabilities

The rights of prisoners with disabilities

Kalpana Kannabiran

Where prison facilities are not equipped to deal with the specific needs of persons with disabilities, arrest and detention in custody should be a measure of last resort

We have a slew of cases around prisoners’ rights that emphasise their right to dignity and their right against cruel and degrading punishment, which have been understood to violate the right to life, guaranteed by Article 21 of the Indian Constitution. In complying with the standards set out in constitutional jurisprudence on this matter, the offence for which the person has been apprehended or convicted is immaterial. The standard is clear. No person shall be subjected to degrading, inhuman or cruel punishment that is violative of human dignity; the duty of care to be exercised in this matter during pre-trial custody is of a much higher order. These are standards applicable to all custodial situations and to all persons, irrespective of caste, sex, race, religion, or place of birth.

Treatment in custody

The Veena Sethi case in the early 1980s brought to light the treatment of prisoners with mental illnesses and their prolonged incarceration for periods ranging from 16 to 30 years in custody. This is far in excess of sentences given to them in most of these cases, without bringing them any substantive relief beyond release from illegal custody and transport and food expenses till they reached home. That was long before there was a consciousness or political articulation of the rights of persons with disabilities, which, importantly today, includes civil and political rights for prisoners with disabilities.

We have seen some reports on the arrest of Dr. G.N. Saibaba and the conditions under which he is being held in custody. The fact that needs close and urgent examination here is not whether he has Maoist “links” or whether he is a “sympathiser” or even whether a university professor can be harassed in this manner (although we must separate his troubles in the university from his treatment by the officers of the criminal justice system.) What needs our immediate attention is even more fundamental: as a person with disabilities who requires constant assistance and support, what are the standard minimum rules that must temper the decision to take him into custody, in order that the treatment meted out to him is not construed as cruel, degrading and inhuman?

It would be useful for the authorities who have taken Dr. Saibaba into custody to be informed of India’s commitment to the UN Convention on the Rights of Persons with Disabilities (UNCRPD). Article 4(d) enjoins States Parties “to refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention.” What are the specific protections for persons with disabilities in relation to state custody? Article 15(1) of the UNCRPD is immediately relevant: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 15(2) of the Convention places an obligation on the state to protect persons with disabilities from cruel degrading or inhuman treatment and punishment. It says, “States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”

The norm of substantive equality, well established through constitutional jurisprudence in India, speaks of the principle of equality that necessarily includes special treatment for persons who are vulnerable. The denial of special provisions, appropriate assistance and specialised health care access to a person with disabilities in custody, who uses a wheelchair and has special health care needs arising from chronic illness, comes firmly within the meaning of degrading, inhuman and cruel treatment in derogation of the state’s obligation under the UNCRPD.

Particularly where a prisoner with disability requires support and assistance for daily living, placing such a prisoner in solitary confinement and denying the right to accessible facilities for personal care and hygiene is violative of the right to dignity and bodily integrity — both guaranteed under Article 21 of the Constitution, but also under Article 17 of the UNCRPD. The latter simply and pertinently states that “every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.”

The Rights of Persons with Disabilities legislation that ought to set out these standards in clear and unequivocal terms has been ever in the making in India. The absence of specific legislation, however, need not deter us from the path of justice. Article 14 of the Constitution that sets out the substantive right to equality before law, and Article 21 that sets out the framework for the right to life (with dignity) — as it specifically applies to prisoners — should at this time be read with the UNCRPD which India has ratified. This is till the time that we put in place policies and national legislation that mandatorily provide for special services and basic needs that prisoners with disabilities might require, and prioritise the conditional and compassionate release of prisoners with high support needs.

Vulnerability of women

Recognising the vulnerability of women in custodial situations, the Criminal Procedure Code (CPC) provides very different standards for their involvement in criminal investigation. There are also special standards for the treatment of women prisoners and pregnant women in custody. The demand for treatment that is sensitive to the rights of persons with disabilities to dignity and physical integrity and to their specific needs is therefore not unprecedented. Where prison and custodial facilities are not equipped at all to deal with the specific needs of persons with disabilities, arrest and detention in custody should be a measure of last resort, clearly not the case where Dr. Saibaba is concerned. The investigating authorities must release him from custody forthwith and carry out any investigations they may require, without infringing on his right to human dignity and fundamental freedoms, and in full compliance with the CPC, the Constitution and the UNCRPD.

(Kalpana Kannabiran is Professor and director, Council for Social Development, Hyderabad.)

Source: The Hindu

Double Cruelty of Rights of Persons with Disabilities- Rijul Kochhar, Kafila.org

Source: Kafila 

The Double Cruelty of the Rights of Persons With Disabilities bill: Rijul Kochhar

FEBRUARY 28, 2014

by Lawrence Liang

Guest Post by Rijul Kochhar

In the lives of the disabled, the disability certificate is a commanding entity. It is the artefact of government and the state that interprets the myriad experiences of persons dealing with disabilities, translating and transforming those experiences into a public fact. Thus, the disability certificate offers a particular form and definition of disability, with its attendant mathematical percentage, supplanting the shards of experience with bureaucratic rationality and certitude. This transformation of messy lived experience into mathematical and medical certainty, at once, also affects that larger lived experience of lives lived with a disability[1].

Given this centrality of the certificate to disability—and given the fact that without this certificate, no disability would be publicly recognized by the state—it is surprising that scant attention has been paid to this aspect in the otherwise spirited debate on the merits of the Rights of Persons With Disabilities (RPWD) bill (version 2013-14)[2]. This is a version of the bill that now stands before a standing committee in Parliament, having been introduced in the Rajya Sabha with perfunctory, overnight amendments[3], to replace the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995[4]. It is also the version[5] about which there is talk of promulgation through an executive ordinance, bypassing parliamentary and public consultation on a vital issue that affects millions of existing disabled persons and persons with disabilities yet to come. We deal here with how the promulgation of this deeply flawed version of the RPWD bill—through the ordinance route—not only keeps intact the lacunae of the version in Parliament[6], but also ends up harming all persons currently living with a disability in India.

To begin with, any ordinance ought to be promulgated in a scenario where it is certain that there is a viable, next-available parliamentary session in which the ordinance would be confirmed as an act of Parliament. This ensures the fundamental quality of any legislative act—a guarantee of the future, a protection against arbitrariness, and a certain measure of legislative and (pursuant to it) bureaucratic stability, till such time as Parliament, again, decides to amend, repeal or replace a legislation. The emergent election scenario in which the RPWD bill finds itself ensures a context that would lend itself to arbitrariness, an unclear future, and instability, as far as this legislation—promulgated as an ordinance—is concerned. The 15^th Lok Sabha has finished its last session; unless this current political party wins the next election, there will be a political change at the helm of the executive; any ordinance must be ratified within six months by parliament, or it will cease to exist; a continuity within government usually ensures this ratification, but a change in government would bring about the emergence of a legal scene that is replete with uncertainty, arbitrariness, and instability. Within this scene, individuals would be caught up, and they would not have the existing Persons with Disabilities Act from 1995 to fall back on, nor would they have a clear status about their disability, given the opacity of the emergent RPWD legislation[7]. So, we have a real possibility of having people certified as disabled under the Ordinance who would then be disenfranchised, again, after six months, in practice—in matters of recognition, employment, education or even loans—apropos the uncertain fate of legislation itself.

The Ordinance: A threat to persons already certified as disabled

The promulgation of the Ordinance would jeopardize the status of the existing persons with disabilities. This is because bureaucracies and offices would demand certificates from such persons as per the ordinance’s requirements, rather than accept the certificates that persons already legitimately possess through the existing law from 1995. The Ordinance would repeal this 1995 Act, and in doing so, it does not clearly state what the status of existing disability certificates would be. Bureaucrats, then, would be prone to abuse their powers, arbitrarily accepting or rejecting different classes of documents: elementary ethnographic explorations of bureaucratic work bring this to us again and again, and unless the law or the ordinance clearly moves to protect the status of existing disability certificates—say by making a specific declaration to that effect, pertaining to these documents that are central to people’s lives—then we would have a situation where all persons with disabilities would stand the danger of disenfranchisement, simply because their existing certificates would refused to be accepted by bureaucrats and offices. This is no small consequence; millions of people who possess the disability certificate—as a consequence of an act of parliament from 1995—would find that their legal status is jeopardized by the machinations of an ill-conceived ordinance that does not even enjoy parliamentary legitimacy. Thus, if you are disabled, you could be confronted by a bureaucrat who refuses to accept your existing certificate. Why? Because the proposed ordinance refuses to specify what the status of those documents is, and how they are to be included in a new legislative scenario with is own (and separate) documentation rules—rules that are yet to be formulated. Add to this the work of corruption and high-handedness that we so often witness in governmental offices, and you have a situation where the disabled would be compelled to scramble from pillar to post, from ‘daftars’ to courts, in order to have their existing documentation recognized by a petty bureaucrat. This is a recipe for chaos, and it includes an invitation to corrupt practices by bureaucrats, and desperation for the disabled who are already living with a recognized disability and its attendant documentation. Simply because we have a change in laws, without adequate safeguards and protections for those living under the existing law, we have an emergent scenario where those rights, that recognitions, those certificates, would lose their traction; they would become useless. And persons with disabilities would have to re-appear before the forbidding medical boards for recertification—a prospect that terrorizes any person living with a disability who has experienced the cruelties of the certification process. These cruelties deal not only with the type of invasive medical practice that they confront on their bodies, but they also extend to corrupt practices at hospitals—practices that deny, delay, or circumvent legitimate procedures of certification. Any ethnographic investigation of the experience of disability at medical hospitals in India would highlight this troubling aspect of certification—its invasive nature, its corrupt production, and its uncertain and arbitrary results in the hand of the ‘medical authority’—qualities that are a source of great stress and phenomenal anxiety for disabled persons. People with legitimate certificates would—in all possible ways—wish to avoid a repeat of the cruelties of this process, especially if specific provisions regarding certification in the 1995 law have, heretofore, shielded them[8] from these excesses of certification beyond the necessary-poison of first time certification.

New Categories of Disabilities: False promises of recognition and resources

Any law or ordinance works only because there are bureaucratic rules to enforce them. Given that there is no possibility of a continuation of this Parliament pending election (which is only a couple of months away), if the RPWD bill is promulgated as an ordinance, then these vital rules—that would activate the legislation or ordinance—would not have been formulated. There just isn’t enough time. The 1995 law has behind it 20 years of rule-making and case law, declared variously in office-memoranda and cases dealt with by courts. In the case of this proposed ordinance, however, those rules simply don’t exist. And without these rules—which deal with everything from the protocols guiding certification at hospitals, to reservations in jobs, to accessibility in buildings etc.—nothing would be achieved for the disabled. The RPWD bill envisages extending the benefit of recognition and reservations to 19 categories of disabilities. But this recognition is a lie, a big joke. For, without the development of medical protocols[9]which emerge out of the ‘rules’, following the enactment of legislation—the manuals on the basis of which doctors adjudge one’s disability, its severity, and its mathematical percentage, when one goes to claim one’s disability certificate[10]—none of these newly included categories of disabilities would be possible to be judged by the medical authority. It took the government 6 years, from 1995 till 2001, to come up with the appropriate guidelines for evaluation of five categories of disabilities—mental retardation, Locomotor/ Orthopaedic disability, Visual disability, Speech & Hearing disability, and multiple disabilities. These guidelines form the exhaustive medical protocols which doctors use at hospitals whenever a person with a disability approaches them for the issuance of certification. These guidelines took 6 years to be formulated under various committees operating under the chairmanship of the Director General of Health Services. How many years do we think will it take to devise protocols for the 14 new categories of disabilities that the RPWD bill envisages for inclusion—new categories of disabilities that include autism spectrum disorder; cerebral palsy; ‘chronic neurological conditions’; deafblindness; haemophilia; leprosy-cured persona; low-vision; intellectual disabilities; muscular dystrophy; multiple sclerosis; learning disabilities; speech & language disabilities; thalassemia; and sickle-cell disease? Inclusion is a virtue, but its modalities need to be worked out. And remember, no lofty ideal of disability-inclusion and recognition can be achieved for the disabled, unless these respective medical protocols exist for these specific disabilities—no benefit of reservations, no recognition of one’s disabilities would be possible in practice. Thus, to say that the Ordinance would, overnight, include heretofore excluded categories of disabilities is, at best, an overestimation, and at worst, a big cruel lie. This is because the medical protocols by which the certification of these disabilities would occur, do not yet exist, and would take months, if not years, to be devised. And without certification, one receives no recognition of one’s disability by the state, and consequently, no form of benefit in the form reservations, etc. In the 1995 Act, merely five categories of disabilities took 6 years to have their respective evaluative protocols for certification; now we have an ordinance that promises to do the same for 14 other disabilities, and that too, overnight! This is a lie at the heart of the Ordinance, a lie that is deceiving all the supporters of the Ordinance, and it is a lie that needs to be exposed.

No matter what the Ordinance may claim or declare, without the formulation of rules and protocols for the production of disability certificates—rules and protocols that take years to be formulated—no new categories of disabilities would receive certification, and consequently, none will either receive recognition, or the seductive charms of things like reservations. For this recognition to be effectively carried out, and for provisions like reservation to be made available at all, we need a legislation that offers guarantee, stability, and rational actions. Ordinances, by virtue of their fixed lives, offer none of this, and in the context of the RPWD bill, where there is no further scope for parliament to convene, there is certainty that a vacuum would emerge after the ordinance lapses. Thus, no new categories would have received certification, and the benefits of recognition and reservations, for the Ordinance has no scope for devising medical protocols for the evaluation of these new categories of disabilities. And a step further, existing disabled persons, with recognized disabilities, would once again be at the mercy of bureaucrats who may choose to accept or reject their legitimate documents and certificates. They would, once again, be disenfranchised.

There are many monstrosities that the RPWD bill (version 2013-14) is haunted by. These pertain, variously, to the abortion of foetuses without the expecting-disabled woman’s consent; doubts about the extension of the Right to Education to children with ‘benchmark disabilities’, given anon obstante clause within the RPWD bill; the questionable provenance of full legal capacity for disabled individuals, along with doubts about plenary, as against limited, guardianship; the dangerous suggestion that parents or children may be separated from one another and families broken on the basis of disability; the dilution of full political participation; the ridiculous suggestion—in a time of increasing privatization of enterprises and services—that accessibility ought to be provided only by ‘establishments’ (read, government-run enterprises); the contravention of the Supreme Court’s judgment against the ongoing practice of ‘identification of posts’ for reservations, as against reservation regardless of the post; and the horrifying clause under section 3(3) of the RPWD draft that there shall be no discrimination against persons with disabilities solely on the basis of their disabilities, “unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim” (which basically invites the institutionalization of discrimination, by allowing persons and entities to get away with discriminating practices under one pretext or another, leaving the disabled individual to seek redressal, for every small act of another’s commissions and omissions, from the courts or the non-existent disability rights commission). These problems, in a word, are extensive. And they are catastrophic to substantive disability rights in the country. These have been discussed[11] in detail, elsewhere[12], and they point to the absolute disregard[13] for the United Nations Conventions on the Rights of Persons with Disabilities (UNCRPD), 2008, the international treaty that India ratified, and that has mandated an overhaul of the 1995 Act in the first place. As NALSAR has declared, in its contrast of the RPWD draft with the consultative version of the draft formulated in 2011 by the Sudha Kaul Committee, “Overall, the trend is that all rights and entitlements have been reduced to mere declarations of ‘the appropriate government shall’, with very little detailing of what the appropriate government shall, in fact, do”[14].

The Ordinance Way: Problems, Perplexities, Solutions

Passing an ordinance in a scenario where the 15^th Lok Sabha has no possibility of being convened, again, to transform that executive action into legislation has its own ethical dilemmas, its own issues of impropriety, which get exacerbated when one considers the fact that a bill is being passed as an ordinance while it resides with a standing committee of the house for much-needed consultation, and when there are no pressing urgencies that demand the promulgation of the bill as an ordinance. Passing the RPWD bill 2014 as an ordinance would not only recuperate the horrors of the draft bill, a bill that is now before a standing committee of parliament for the exorcism—through consultation—of those horrors. The bill, as Ordinance, would also endanger the legal status of existing and recognized persons with disabilities, because it does not specify what the fate of their disability certificates (procured under the aegis of the 1995 act and its 20-odd years worth of engendered rules and case-law[15]) will be. Consequently, they will be at the mercy of the wanton actions of bureaucrats, variously situated in numerous situations across the country. Avenues of employment and education for those disabled persons would be endangered simply because there is no clarity either on their existing legal status, or their future legal status, as disabled persons. Would they be given jobs or admissions on the basis of a law that is absent, and an Ordinance—functioning without the activating rules—that is limited by time to a mere six months? This ambiguity of present and future status, under the sign of the Ordinance, would preclude such persons from all of the avenues of reservations and other benefits—like loans—that the state has on offer, simply because the fate of the legislation and the ordinance itself is uncertain, and there are no rules or protocols to replace what the Ordinance will repeal in the 1995 Act.

The Ordinance repeals without replacing; it makes declarations but has no rules or medical protocols to enforce those declarations; it takes away everything from the penumbra of the 1995 Act, including case-law, progressive and hard-fought office-memoranda, and very crucially, the heretofore-unambiguous legal status of existing disability certificates that are not sought to be given express protection under the new legal dispensation; therein lies the cruel rub for millions of recognized disabled persons in this country, and this cruelty (of the non-recognition of their legitimate documents) is to be witnessed at the level of the petty-bureaucrat and the office: contexts in which the law, any law, is activated as practice. Finally, the ordinance would do nothing for the newly-included categories of disabilities because it does not have the time or the resources—given the looming elections—to specify what the medical protocols are, by use of which these new categories of disabilities, and persons occupying those categories, ought to be certified. Those rules and medical protocols, which would ensure recognition and the availability of resources by the state—can emerge only when they are nested in context of fixed, stable and non-arbitrary legislation—an act of parliament—and that will take time. The ordinance has no resources or time to devise these rules for enforcement of intent or the medical protocols for certification, simply because the life of the ordinance itself is limited. And as we know, in contemporary India, without certification, one’s disability has no scope of recognition by the state, and one has no hope of partaking of benefits such as reservations, a fact recently agreed to by the union government[16]. That recognition and these benefits, under the seductive (but ultimately illusory promises of the Ordinance) would remain just that—an illusion that is alsocruel.

Given the effective end of the 15^th Lok Sabha—there are no more sessions—what needs to be donefirst is the work of elections. From there, the RPWD bill, currently before a Standing Committee, would emerge, and hopefully, with some of its damaging provisions suitably contained through consultations with all stakeholders. After a consultative passage of the RPWD bill—something that only the next Lok Sabha can do—we would have the evolution of the requisite rules for the activation of the new legislation. This will allow for adequate time, for the generation of medical protocols that would allow for the certification of all 19 categories of disabilities that the new law seeks to recognize, and for the protection of already certified disabilities. Only will those rules, those protocols, and their consequent use in certification, allow for substantive recognition and availability of resources to disabled persons in India. And it is hoped, sincerely, that this new certification-regime will already recognize the legal and legitimate status of existing disability certificate and their possessors. These are people and bureaucratic artefacts that are a legacy of the 1995 Act. Our legal and official status—as legitimate, document-bearing citizens of India who happen to be disabled—ought to be expressly safeguarded under an emergent, consultative law, not a capricious ordinance.

(With thanks to Amba Salelkar, for inputs)

Rijul Kochhar is a Junior Research Fellow in Sociology at the Delhi School of Economics. He has, recently, submitted an MPhil dissertation, titled “The Analytics of Disability: Bodies, Documents, and the Order of the State”. He also lives with a disability.

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[1] http://socialjustice.nic.in/disabrules.php?pageid=2

[2] http://in.news.yahoo.com/no-piecemeal-change-can-fix-our-terrible-disability-bill-061219451.html

[3] http://pib.nic.in/newsite/PrintRelease.aspx?relid=103259

[4] http://socialjustice.nic.in/pwdact1995.php

[5]http://www.prsindia.org/uploads/media/Person%20with%20Disabilities/The%20Right%20of%20Persons%20with%20Disabilities%20Bill.pdf

[6] https://drive.google.com/file/d/0B8m2OUsqwUZLSFVpZkZRZHhWV00/edit?usp=sharing

[7] http://kafila.org/2014/02/03/a-critqiue-of-the-draft-rights-of-persons-with-disabilities-bill-2014-amba-salelkar/

[8] http://kafila.org/2012/06/06/disability-law-violations-in-delhi-university-admissions-notes-from-the-margins-rijul-kochhar/

[9] http://www.ccdisabilities.nic.in/page.php?s=large&t=yb&p=guide_others

[10]http://www.pbhealth.gov.in/pdf/DISABILITY%20GUIDELINES_With%20TOC_Version%204.pdf

[11] http://scroll.in/article/why-people-with-disabilities-want-to-kill-the-new-disability-rights-bill?id=655880

[12] http://www.thehindu.com/opinion/op-ed/a-retrograde-and-incoherent-law/article5657802.ece

[13] http://www.dnaindia.com/analysis/standpoint-why-you-should-care-about-the-disabilities-bill-1958100

[14] https://drive.google.com/file/d/0B8m2OUsqwUZLSFVpZkZRZHhWV00/edit?usp=sharing

[15] Amba Salelkar lists some of these “landmark rulings – on the reproductive rights of women with intellectual disabilities (Suchita Srivastava vs. Chandigarh Administration, 2009), interpretation of the 3% reservation rule in Government Sector Jobs (Union of India vs. National Federation for the Blind, 2013), and political participation (Disabled Rights Group vs. Chief Election Commissioner, 2007) being examples at the Supreme Court level”. There are other judgments at the level of lower courts, including some judgments pertaining to accessibility, education and reservations delivered by the Delhi High Court.

[16] http://pbhealth.gov.in/pdf/act2.pdf