DESW works against Ex-Servicemen; disabled during service are worst hit.

Defence Personnel  or Ex-Servicemen are at a great disadvantage in respect of pay, pension and medical benefits compared with civilian government employees. It is none other than their own department called Department of Ex-servicemen welfare who is working against their interest. 

FRONTLINE Article

Over the past five years, ex-servicemen have been agitating against the injustice meted out to them by the Central government. They have lost faith in the Department of Ex-Servicemen Welfare (DESW), created specifically to take care of their welfare. Ex-servicemen have won 90 per cent of the cases filed in the Armed Forces Tribunals and the Supreme Court against the government, but the government has appealed in all the cases through the DESW.

The veterans have approached the Prime Minister and the Defence Minister to seek redress in numerous cases where they felt injustice had been done to them but to no avail. The Supreme Court’s judgments in their favour have either not been implemented or not been implemented in letter and spirit in cases pertaining to disability pensions, payment of arrears with retrospective effect from January 1, 2006, rank pay, and hospital charges on authorised Ex-servicemen Contributory Health Scheme (ECHS) rates for medical treatment abroad.

The government files en masse appeals against retired defence personnel whenever any case relating to pension benefits is decided in their favour by any court of law or the Armed Forces Tribunal. Facing the brunt of the government’s apathy is the category of disabled and war-disabled soldiers. Most of the special leave petitions and appeals filed by the Ministry of Defence in the Supreme Court are against the grant of disability or war injury benefits to disabled and war-disabled soldiers. As a result, the veterans are forced into expensive litigation.

Over 3,000 cases decided in favour of defence personnel by the Armed Forces Tribunal have not been implemented; the Defence Ministry has contested all these judgments in the Supreme Court. Imagine the plight of a widow of a sepoy living in a far-flung rural area. How is she going to find the resources to fight her case in the Supreme Court? The tribunals were created for delivering speedy justice to defence personnel at minimum cost. But the Ministry’s decision to appeal against the tribunal’s judgments has not only delayed justice but also made it near impossible for the defence personnel to fight their cases. The Armed Forces Tribunals do not have contempt powers to get their judgments implemented whereas Central Administrative Tribunals (CATs) are vested with such powers.

This is the biggest cause of heartburning in the military community today. Military personnel with non-service-related disabilities discharged with less than 10 years of service remaining are not entitled to any form of pension, whereas the employment of civilian employees who “acquires a disability during his service” is protected under Section 47 of the Persons with Disabilities Act, 1995.

As per the Sixth Central Pay Commission recommendations, all government servants are allowed three assured career progressions. Civilians who retire at the age of 60 are allowed promotions at 10, 20 and 30 years of service, and soldiers at eight, 16 and 24 years. However, since jawans are forced to retire early, largely between 15 and 19 years of service, to keep up the young profile of the forces, they miss out on at least one assured career progression, unlike their civil counterparts, who serve their full term until superannuation. It has been proposed to the government that the third career progression should be given to jawans automatically; they should be promoted to the rank of naib subedar at the time of retirement. Surprisingly, this demand has not been accepted.

Widow’s pension

Widow’s pension is one area of concern to the defence community that has received little attention from the government. A sepoy’s widow pension has remained a meagre Rs.3,500 a month while other sections of government employees have received periodic increases in such pension. The minimum family pension in respect of defence widows must be enhanced from Rs.3,500 to Rs.10,000 a month.

It is common knowledge that soldiers retire ahead of their time. What is not known, however, is that their life expectancy is shorter than that of civilians. The Institute of Applied Research in Manpower Analysis (IARM), which studied the lifespan of civilian employees at the behest of the Fifth Pay Commission, arrived at 77 years as the average life expectancy of a civilian government servant. The Railways conducted a similar exercise for their personnel and assessed that they achieved an average lifespan of 78 years. No such study was conducted for defence personnel since it was generally believed that soldiers lived longer than civilians. However, Major General (retired) Surjit Singh, AVSM (Athi Vishisht Seva Medal), VSM (Vishisht Seva Medal), who headed the Army Cell of the Fifth Pay Commission, carried out a detailed study in 2005 along with other experts. The study revealed that the average lifespan of defence officers was 72.5 years; that of junior commissioned officers (JCOs) 67 years; and that of other ranks was between 59.6 and 64 years.

These findings were forwarded to the Chief of the Army Staff General J.J. Singh on July 7, 2005, by Lieutenant General (retd) M.M. Lakhera, PVSM (Param Vishisht Seva Medal), AVSM, VSM, who was Lieutenant Governor of Puducherry. The findings were reported by all national newspapers and a question was asked in Parliament on the subject. Pranab Mukherjee, who was the Defence Minister then, maintained that the issue would be examined in detail. Nothing was heard about it after that.

Stress and strain of early retirement is one of the major reasons for the lower life expectancy among the defence personnel. Their legitimate demand for an assured second career until the age of 60 through an Act of Parliament has not yet been accepted.

While the pensions of all ranks were enhanced with effect from September 24, 2012, to redress the anomaly of the Sixth Pay Commission, the request to enhance the pension of JCOs proportionately was not granted. Majors with 13 years and more of service who retired before 2004 have been denied the benefit of the rank of lieutenant colonel (that is, the benefit of pay band-4 in the revised scale of the Sixth Pay Commission).

The government’s policy to grant lieutenant colonel rank on completion of 13 years of service was made applicable with effect from 2004. It would have been only just to grant all those who retired before 2004 in the rank of major with 13 years of commissioned service (this number being finite) the benefit of pension on the scale of lieutenant colonel. The strong plea in this regard has not been accepted.

Also, the non-functional upgrade (NFU) granted to civilian employees has been denied to defence personnel, thereby putting them at a disadvantage.

One Rank One Pension

One of the major demands of veterans is same pension for same rank and same length of service, that is, same rank + same length of service = same pension, irrespective of the date of retirement. They want a legislative guarantee to this. Although all major political parties have agreed to this in principle and frequently incorporate it in their election manifestos, this 40-year-old demand has not been implemented. The bureaucratic excuses in the form of administrative, legal and financial hurdles in implementing the demand were heard in detail in 2011 by the Rajya Sabha Petition Committee set up to look into all aspects of the demand and rejected them in the strongest terms. Prime Minister Indira Gandhi had agreed to this provision in principle, but her untimely death scuttled the proposal. Successive Standing Committees on Defence and the Rajya Sabha Petition Committee have recommended this but to no avail.

Before 2006, the difference in the pensions of major general and lieutenant general was only Rs.1,400. Subsequently, it became Rs.700. With the extension of higher administrative grade (HAG) and HAG+ to the rank oflieutenant general and above, the difference in pension is more than Rs.8,000 even after the increase with effect from September 24, 2012. The government has overlooked the Sixth Pay Commission recommendations, which suggested that all government employees with a basic pay of Rs.20,000 and above be clubbed under the same pay band. Major generals retire with a basic pay of Rs.22,400 and above while lieutenant generals retire with a basic pay of Rs.23,500 and above. Non-inclusion of major generals in HAG has caused an anomaly.

On losing the case, the Defence Ministry filed a review petition in the Supreme Court, denying enhanced arrears to army pensioners as ordered by the Delhi High Court with retrospective effect from January 1, 2006, instead of September 24, 2012.

Civilian employees are provided health care under the Central Government Health Scheme (CGHS) while ex-servicemen are covered under the ECHS. The provision of budget for the CGHS is calculated (for 2013-14) at the rate Rs.10,700 for every beneficiary while for the ECHS, it has been budgeted at Rs.3,150 a beneficiary. As a result, super-speciality hospitals do not offer themselves for ECHS empanelment. Over 80 per cent of the health care units have withdrawn from empanelment in view of delayed payment of bills and inadequate rates for various medical procedures. This has resulted in unsatisfactory or poor medical care for ex-servicemen. Sophisticated procedures have not been included in the ECHS. The veterans’ request for inclusion of the latest medical procedures on the ECHS benefits list has not been accepted yet. Ex-servicemen had requested that the budget be enhanced and not be less than the CGHS rates.

Here is an example to illustrate the poor nature of health care benefits provided by the government to ex-servicemen. Non-availability of funds with the ECHS and, as a consequence, non-payment of hospital dues made an empanelled hospital in Gurgaon in the National Capital Region to stop accepting patients for cashless medical treatment. Ex-Subedar Prakash Chandra Tomar from Meerut was brought to the hospital in a serious condition on December 8, 2013, which as per the ECHS scheme is permitted. The family was asked by the hospital authorities to deposit the money for the treatment or transfer the patient to some other hospital. Since the condition of the patient was serious, the family raised a loan and deposited Rs.11 lakh for 20 days of hospitalisation and treatment.

When the family was in no position to arrange further funds, Tomar’s son, Raj Kumar Tomar, approached the Indian Ex-Servicemen’s Movement (IESM) and the case was taken up with the Managing Director of the ECHS, who promised to get cashless treatment. But he did not succeed. The family deposited another Rs.2 lakh in the hospital. On January 1, Subedar Prakash died. The hospital did not accede to the request of the ECHS to release the body and insisted that the family clear the hospital bills.

In November 2008, the government had announced that in future there would be a separate pay commission for the defence forces. The defence fraternity feels betrayed as the government has not constituted a separate pay commission, and, as in the case of the previous commissions, there is no representation for defence forces in the newly constituted Seventh Pay Commission. Some 39 anomalies in defence pensions are yet to be resolved and with no defence representation in the new pay commission, more anomalies are likely to appear thereby increasing the magnitude of injustice already done to defence pensioners.

Denial of voting rights

It is surprising that serving defence personnel are denied the right to get themselves registered as voters at the place of posting. In spite of a clear judgment by the Supreme Court in 1971, this basic right has not been extended to soldiers. The option of postal ballot and proxy voting available to serving soldiers has not proved effective. There is no restriction imposed in the Representation of the People Act, 1950, to deny this right to defence personnel. There is an urgent need to restore this right immediately to allow serving soldiers to vote at their place of posting in the coming Lok Sabha elections.

The prevailing security environment calls for strong measures to upgrade the country’s defence preparedness in terms of manpower, equipment and weapon systems. Equally important are measures to keep the soldier’s morale high.

Source: Frontline

Ordinance Route to push Disability Bill 2014 is against the Constitution

Dear Colleagues,

If we believe the news making headlines in today's newspapers, that the Congress leadership is trying to push the flawed disability bill of 2014 through promulgation of an ordinance - a backdoor entry, this is a disturbing trend  and must be desisted.

Firstly, without repealing the existing Act of 1995 the government - which is days away from the Declaration of fresh Elections for 16th Lok Sabha- they can not enforce this ordinance to benefit people even if brought in haste like this. Keeping in mind that even today, there are some states that do not have full time Disability Commissioners, over 50% persons with disabilities do not have disability certificates as admitted by the Minister himself in the parliament- do those who are supporting this bill claiming to be representing disabilities not covered in the present Act believe that all institutions promised in the ordinance would be constituted within 6-7 months and start to function to give them relief....?

If they believe so... they are grossly mistaken. And then, this ordinance will die its natural death, if the next government doesn't favour it.  Conventionally, it is the next government that should decide the fate of such pending bills which couldn't be passed by the parliament. At least I am sure that the present dispensation is not going to come back.... for the voter is now more aware! 

I strongly feel that ideally since the bill has been referred to the standing committee, we should await a better consensus bill. An ordinance will create huge confusion and will work counter productive for the existing rights available under the Act of 1995.  If the pressing needs of the disabilities not covered under the existing act are so overpowering, then the only prudent option  available in such a scenario is to bring in an ordinance improving the existing Act of 1995 to add the disabilities and extend the benefit to those who remain unrepresented. The existing Act had held the forte for close to two decades and a strong case law has been developed which shouldn't be lost sight of.  

Meanwhile let the Standing Committee do its work in partnership with the disability sector and let them bring in a consensus bill through democratic means. Will the Congress listen to the viable option or do they just want RaGa to play super government to score some brownie points?

Here is the writeup by Dr. Dhanda in Indian Express

A policy of activism and restraint

February 24, 2014 11:38 pm

Amita Dhanda

Government should use the ordinance route, not to push the 2014 disabilities bill, but to make the 1995 act more inclusive.

In the realm of disability rights, the events of the last month have been controversial. The government obtained cabinet approval for the Rights of Persons with Disabilities Bill, 2014, which does not meet the standards prescribed under the UN Convention on the Rights of Persons with Disabilities (CRPD), as it reinforces popular stereotypes instead of challenging  them, and permits discrimination rather than prohibiting it.

It also moves backwards on questions of autonomy, choice and liberty. Due to these regressive features, segments of the disability sector have criticised the bill. The bill’s supporters pointed to its inclusion of 13 new impairments and the enhanced percentage of job reservation. Since the losses were outweighing the gains and many provisions required fixing, the chairperson of the Rajya Sabha referred the bill for consideration by a House committee — the most appropriate solution.

The dust had barely settled on this decision before another controversy engulfed the disability rights legislation. There are rumours that the government is planning to enact the bill as an ordinance. Two questions are being raised: one, can the government enact the bill through an ordinance after referring it to a House committee? And two, should the government take this route?

Under Article 123 of the Constitution, the president has the power to make law through ordinances, provided that first, both Houses are not in session and second, the president is satisfied that circumstances exist which render it necessary that immediate action should be taken. Insofar as the two Houses are not in session, the first condition is satisfied. However, the second condition is not met. The bill was sent to a House committee because it needed more work. It was only introduced in the House and sent to the committee, and no urgency to enact the bill was expressed or shown.

Any effort now to enact the bill as an ordinance, after it has been referred to the House committee, would, in light of the Supreme Court’s ruling in D.C. Wadhwa vs State of Bihar, be seen as a colourable exercise of power and a fraud on the Constitution. On a plain reading of the Constitution and by relying on judicial decisions, it can be stated that the president cannot enact the bill by promulgating an ordinance.

It is also important to ask whether the government should enact the bill by using an ordinance. While considering this question, we should appreciate that disability rights is not an unoccupied field. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 already controls the area. If the new bill is promulgated as an ordinance, it cannot become operable unless the act of 1995 is repealed. The act of 1995 has empowered a series of individual bodies and authorities to implement the statute.

All these entities would become dysfunctional if it is repealed. But there would be no time to establish and render functional new authorities, because an ordinance can be operable for a maximum of seven and a half months without obtaining parliamentary approval. Going the ordinance route would not benefit the freshly included impairments, but would create an enforcement vacuum even for the disabilities already included in the 1995 act. Enacting the disabilities bill through the ordinance route would usher confusion and chaos, and could cause all disabilities to lose legislative protection.

With the bill referred to the House committee, the newly included disabilities are at a special disadvantage. Since 1999, when a committee set up to suggest amendments to the 1995 act highlighted the need for inclusion, the battle has been on to recognise excluded impairments. The disabilities included in the 1995 act await the passage of the new law while continuing to obtain the benefits and entitlements provided earlier. But the disabilities not so included get nothing.

It is important that all disabilities are similarly positioned so that they can work on the passage of a robust CRPD-consonant legislation. This is a situation of inequity which needs to be remedied. Since the two Houses are not in session and the enactment of the new law will necessarily take some time, the government should use its power under Article 123 to amend the 1995 act to include the new impairments that would have obtained inclusion if the new bill were passed. At the same time, the inadequacies of the new bill should be rectified by the House committee. By adopting this policy of activism and restraint, the government could do right by all sections of the disability community.

The writer is professor and head, Centre for Disability Studies, NALSAR, Hyderabad.

Source: Indian Express

Guidelines for Comments - Facilities for Govt. Employees with Disabilities for efficient performance of duties

Dear Colleagues,

Some of you would know that the Office of Chief Commissioner - Disabilities had organised a workshop titled "Consultative Workshop for framing draft guidelines for creation of non-disabling work environment for Government Employees with Disabilities to enable them to function smoothly in Government service."  on 28 May 2013 at IIC, Delhi. 

After the day long deliberations, wherein delegates from the disability sector, NGOs, government employees, national institutes etc.  participated. I had the opportunity to compile the draft on behalf of the CCPD office which was subsequently sent to the DoPT. Click here for a copy of the said draft hereinafter called CCPD's June 2013 Draft

Now, almost after 8 months, the DoPT has come out with the final version of the document titled "Guidelines for providing certain facilities in respect of persons with disabilities who are already employed in Govt. for efficient performance of their duties" dated 14th Feb 2014 which is also uploaded on their website inviting comments from Ministries/ Departments. Click here for a copy of the said DoPT draft dt 14 Feb 14

I can with reasonable credibility, having been a participant at the CCPD's Workshop on 28 May 2013, and having contributed and compiled the CCPD's draft can safely conclude today that the draft has been diluted to a great extent. Despite that, I believe notification of the guidelines is a good step and it will not only help integrating employees with disabilities at workplace in govt but also and offer guidance to private players. However, here is a brief evaluation of the guideline.

Good things that have been accepted in the DoPT draft:

1. Placing the employee with an experienced employee for at least a month on resuming responsibilities of a post - that will allow him to pick up required skills to perform the job and also explore the adaptations needed in individual cases.
2. Provision of assistive devices/ aids - good quality assistive devices, special chairs, software etc to improve the efficiency has been accepted in principle with a review every three years for upgraded versions. It requires the departments to provide for the cost of equipment or its reimbursement to the employee.
3. Special casual leave of 15 days per annum - mainly for inpatient treatment in CGHS.  I hope this is in addition to the existing sick leaves and all other leaves.
4. Every ministry/department to arrange training in "Disability Equality and Etiquette" for their liaison officers in consultation with CCPD. 

Some glaring issues that are visible on a cursory reading in the DoPT draft are:

1. At the outset, the document doesn't come across as a rights giving document, it looks more like a doles giving document to the employees with disabilities.
2. There are no budgetary provisions made nor there is any system created to evaluate or assess the needs of employees with disabilities. Hence the entire "amenities" are likely to be more subjective.
3. It is seeking comments from ministries and not from general public or associations of employees with disabilities.
4. It gives no legal sanctity to the disabled employee unions to discuss their issues as mandated by the UNCRPD.
5. When compared with the CCPD draft,  you will realise how 21 page draft has been reduced in to 4 pager policy. This has resulted in either things getting  left out or made so vague that it may be difficult to seek its implementation.
6. It misses out the reasonable accommodations needed for employees with disabilities to perform to the fullest.
7. Due to limited applicability, it is feared by some quarters that it may not help employees in Banks etc. though I feel these would be equally applicable to employees in scheduled banks as well as those working under Ministry of Finance. 
8. Also it is not indicated as a guiding document for the State governments who may have a job identification list for persons with disabilities different from the one notified by the Union of India. 
9. The DoPT has sought comments from the ministries and is likely to be finalised without any final involvement of the stakeholders..... which is against the basic theme of UNCRPD - "nothing about us without us". That is what the government had done even with the RPD Bill 2013 when it was quietly pushed in to parliament in utmost secrecy without involving the stakeholders.
10. In the Identification of jobs, there is inherent bias visible in the guidelines when  it says that each ministry ..... should identify the types of jobs which could be easily performed by them specially for group B, C & D...... Why should Group A be excluded? Do they think that disabled employees are not capable of holding Group A post or performing functions of Group A posts?

Conclusion

I am leaving it to you to compare the two drafts available on the links above, and see for yourself how can a well meaning document be turned into a weak policy document nurtured with a charity mindset!

Here is the coverage in The Hindu on the subject today:

Centre’s guidelines moot facilities for disabled government staff

18 Feb 2014, AARTI DHAR

Proposals include preferences in transfers, postings and accommodation, reimbursement for assistive devices and special casual leave

The Central government has come up with a set of draft guidelines on providing certain facilities to its employees with disabilities to help them perform their duties efficiently.

The guidelines, released on Monday, include proposals such as preferences in transfers, postings and accommodation, reimbursement for assistive devices and special casual leave. Additionally, all ministries and departments, subordinate offices, PSUs, government companies, and cantonment boards would also have to identify the type of jobs that such employees may easily perform.

As far as possible, persons with disabilities will be exempted from rotational transfer and will be allowed to continue in the same job where they would have achieved the desired performance. Preference in place of posting at the time of transfer or promotion may be given to the persons with disability.

The induction training — an essential component of an employee’s service requirement — of all employees should take place together. Job-specific post-recruitment and pre- promotion training programmes are required to be organised for persons with disabilities.

The guidelines instruct ministries and departments to provide or reimburse, within a specific time frame, the cost of special assistive devices in accordance with the prices fixed by them in consultation with various national institutes specialising in disability care.

Can bad law be good: Faizan Mustafa

Can bad law be good?

17 Feb 2014

The vision is to have a society where all categories  of  disabled  persons  are valued and respected as equal citizens and partners in the development and progress of  society and they are no longer looked upon either as burdens or  liabilities  or  targets  for  pity  and charity

FAIZAN  MUSTAFA

Why is NALSAR University of Law, the country’s best law school, opposing the Disability Bill introduced a few days back in the Rajya Sabha?  Can the latest amendments rectify the defects in the Bill? What can be done to help  persons with disability at this stage?  These are some of the questions which call for objective and critical analysis.

The 2006 United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)  makes the progressive and bold assertion that the disabled have the right to recognition as persons. They have full legal capacity on an equal basis with fellow human beings. Thus the Convention makes a fundamental shift from the  “incompetence model” of the disability law to the “universal capacity model”. The Convention challenges the irrational connection between impairment and incompetence.

The UNCRPD also guaranteed the right of participation and effective consultation to persons with disabilities. The Government of India implemented this obligation in letter and spirit when it launched the most extensive pre-legislative process, by first establishing a government-civil society committee to prepare a working draft with inputs from all relevant stakeholders, translating the draft into 14 languages and obtaining public opinion on it by travelling across the country.  This widely consulted Rights of Persons with Disabilities Bill was submitted to the Ministry of Social Justice and Empowerment, Government of India, in June 2011. The ministry worked on this draft and came out with its version in 2012. Both the 2011 and 2012 Bills were placed on the ministry’s official website. In the face of this elaborate process of consultation, when cabinet approval was obtained on the current Bill in December 2013, it was presumed that the cabinet had approved the same drafts on which civil society and persons with disability were consulted. This belief was belied. The Rights of Persons with Disabilities Bill 2014 has little or no relationship with the Bill of 2011. People and institutions like NALSAR, which had been closely involved with the 2011 consultative process, feel betrayed  and hugely disappointed. A  government, which had started the legal reform process by creating due space for the right to participation of persons with disabilities, just lost its way.

The outrage of the leakage was soon substituted by the pragmatism of  experienced realities. A number of disability rights groups tried to retrieve the situation by stringing together a group of amendments which they contended would salvage the Bill and enable the enactment of a long delayed legislation. Since the amendments were circulated to members of Parliament on 8 February 2014, it is important to consider whether the inadequacies found in the 2014 Bill are fully addressed by the proposed amendments. A large number of persons with disabilities are unable to obtain their just due not so much because of their impairments but because of the prejudicial attitudes of people. It is these prejudicial attitudes which form barriers to their participation. Disability is social not physical. The medical model is an outdated concept. It is for this reason that raising of awareness was included as one of the critical obligations of state parties in the UNCRPD.  To arouse awareness,  the Bill of 2014 needed to unequivocally state that no person with disability shall be discriminated against on the basis of disability. The Bill does not, unlike the UNCRPD, spell out what constitutes such  a discrimination and furthermore, allows the discrimination of persons with disabilities if required for a legitimate purpose, provided that proportionate means are employed. Thus a piece of legislation, intended to afford protection against discrimination, itself permits discrimination and this permission has not been withdrawn or amended by the amendment.

In the manner of discrimination, the Bill allows the deprivation of liberty of persons with disabilities provided  there are additional reasons for doing so. What is prohibited is discrimination “only on the ground of disability.” A person with disability, who is a vagrant or destitute or considered to be dangerous, could be deprived of liberty because the requirement of equality operates only if liberty is deprived on the basis of disability. The multiplicity of standards again come to the fore when the Bill allows abortions on women with severe disability… without their consent. The wide scope of the power can be seen from the fact that the Bill does not define a woman with severe disability. This is in spite of the Supreme Court’s  decision on accepting the right of a mentally challenged woman to sustain  her pregnancy. While the apex court had acknowledged the importance of exercise of choice by the persons with disabilities in matters concerning their life, the Bill proposes to turn the clock back.

The Bill makes the inviolable and non-derogable rights, such as liberty and equality, negotiable; at another remove,  it fails to adopt principles which are required to obtain the full inclusion of all persons with disabilities. The Bill makes the matter of lifting the legal disqualifications which subsist in existing laws against persons with intellectual, psycho-social and development disabilities a matter of enforcement by the appropriate government. If the government fulfils its enforcement duties then persons with disabilities can enjoy the legal capacity on an equal basis with others. If it fails, then persons with disabilities can continue to be denied the right to enter into contracts, manage  their own properties, marry according to their choice or the right to sue a negligent service provider.

These negotiable formulations are all the more problematic in the light of the fact that the enforcement authorities established by the Bill have been primarily accorded mere “persuasive powers.” The rights guaranteed under the Bill are formulated in disputable terms. Courts are generally inaccessible to persons with disabilities and the authorities who are closer to them can provide little relief in most situations. If the commonly used aphorism in relation to rights is employed in this situation, then it can be said there are no rights as there are no remedies.  Such inadequacies of form and substance, which are only illustrative in nature, led NALSAR University of Law, to disassociate itself from the 2014 Bill. However, when the university examined the case of those who were supporting the Bill, we realised that the collapse of the Bill would hit those with disabilities that are not included in the 1995 Act.    Such persons can obtain the benefit of disability certificate, or pension, or travel concessions only if they are considered persons with disabilities. Since the 2014 Bill included them, they were willing to ignore  the glaring inadequacies of the Bill, consoling themselves with the thought that there is no such thing as “perfect law”.

A realistic acknowledgement of legal imperfection is acceptable; however, to accept a bad law considering it to be good, if not perfect, is undesirable. The new Bill will apply to all  forms of disabilities ~  “old and new”. The  “new disabilities”, so-called, in order to obtain inclusion are inadvertently submitting to a discriminatory regime. The only way out is to include by legislative amendment or promulgation of Ordinance all the disabilities which were going to be included in the 2014 Bill and extend to them all the benefits which are presently extended to disabilities included in the 1995 Act. Such an amendment would create a level playing field between all disabilities and enable all groups to uncompromisingly demand their just due.

We want to have a society which is truly inclusive and egalitarian, where every individual including persons with disabilities have equal opportunities. The vision is to have a society where all categories of disabled persons are valued and respected as equal citizens and partners in the development and progress of  society and they are no longer looked upon either as burdens or liabilities or targets for pity and charity.

The writer is Vice-Chancellor of the NALSAR University of Law, Hyderabad

Source: The Statesman

A hurried disabilities bill will serve no purpose

A hurried disabilities Bill will serve no purpose : Amita Dhanda

TNN | Feb 18, 2014, 01.40 AM IST

The Rights of Persons with Disabilities Bill was introduced in the Rajya Sabha to universal criticism and till now, 16 amendments have been circulated to members of the upper House in an effort to save the Bill. The objective of the legislation was stated as "a Bill to give effect to the United Nations Convention on the Rights of Persons with Disabilities" (UN CRPD). Hence it must be in consonance with the requirements of the Convention to fulfill its primary purpose. The CRPD mandates an absolute prohibition on discrimination on grounds of disability, but this Bill permits discrimination provided it is to achieve any legitimate aim, in clear violation of the CRPD!

The CRPD prohibits deprivation of liberty on grounds of disability. The Bill cleverly inserts one word to change the guarantee altogether: it says that no person shall be deprived of his or her personal liberty only on grounds of disability. This formulation was rejected while drafting the CRPD since it permits the deprivation of liberty when a person with disability is destitute or considered to be 'dangerous'. For thousands, the addition of 'only' could mean being forced to live in institutions for the rest of their lives.

The other core CRPD principle that remains to be examined is the right to exercise legal capacity on an equal basis with others in all aspects of life. Presently scores of laws disqualify persons with disabilities from marrying, inheriting, voting, etc. The CRPD seeks to offset disqualifications imposed upon people with intellectual, psychosocial and developmental disabilities by recognising their right to live their lives according to their will and preference.

However, the 2014 Bill did not even mention the right to legal capacity. In the amendment, legal capacity has been recognised as an obligation of the government, not a right of persons with disabilities. If the government fails to ensure legal capacity, then the person with disabilities can do nothing but bemoan the poor implementation of Indian laws. Consequently, entitlement of reservations in jobs becomes meaningless for persons with disabilities. If it were possible to make things worse, section 110 of the legislation states categorically that the Bill will not override any existing laws, which means all discriminatory laws will continue to be valid!

However, despite the many flaws in the Bill, people with the newly-included disabilities are pressing for its enactment because these disabilities have been waiting for inclusion in the Act since 1999 and feel they cannot wait any more. This grievance is undeniably genuine. The correct way to address this concern would be to amend the Act of 1995, whether by Act or ordinance to include the long-excluded disabilities.

Let us not hurriedly enact a retrograde legislation for all disabilities, which would be impossible to amend for the next 25 years. In order to correct the injustice of exclusion, let us not create an equality of oppression.

(The author is professor and head, Centre for Disability Studies, Hyderabad)

Times of India