Visually challenged persons working in the BPO set up on the Indian Association for Blind premises in Madurai.
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Indian courts have shown that they are ready for progressive
interpretations of the law on the rights of persons with disabilities.
Therefore, any new law that aims to replace the Persons with
Disabilities Act, 1995, needs to be a significant improvement on it.
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SINCE 1996, when the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 (PWD Act), came
into force, by far the majority of cases taken to court have been about
equal opportunity in public employment, that is, reservation of jobs for
persons with disabilities and related matters such as promotions,
identification of posts and eligibility. This struggle is in many ways
not that different from the caste and gender battles for affirmative
action in government employment. For any marginalised group, including
persons with disabilities, equality in employment is a benchmark for
full participation in society.
In Union of India vs National Federation for the Blind and Others,
the Supreme Court passed on October 8 a landmark judgment in this
battle on reservation of jobs for persons with disabilities. The PWD
Act, though a restricted statute mainly concerned with providing
reservation in jobs and seats in public employment and education, has
slowly been nudged by courts, lawyers and disability rights activists to
become far more progressive than was ever imagined. Section 33 of the
Act states that “every appropriate government shall appoint in every
establishment such percentage of vacancies not less than 3 per cent for
persons or class of persons with disability...”. Section 32 requires the
appropriate government to identify jobs for persons with disability and
review the list of identified jobs every three years.
In spite of Section 32, the reality on the ground since 1996 has been
that hardly any jobs were identified by the governments as suitable for
persons with disabilities. A 2009 World Bank report, titled “People with
Disabilities in India: From Commitment to Outcomes”, found that only
10.2 per cent of the posts in all Ministries/departments and public
establishments had been identified as suitable for persons with
disabilities. The situation in 2013 is not very different. In a 2010
judgment, in Govt. of India through Secretary and Anr vs Ravi Prakash Gupta & Anr,
the Supreme Court held that non-identification of posts could not be a
reason for the government to evade its obligation to reserve 3 per cent
of posts for persons with disabilities.
In the National Federation for the Blind case, the core question was
whether the 3 per cent reservation should be calculated on the basis of
the cadre strength or the number of vacancies in the identified posts.
Cadre strength refers to the total number of posts in the cadre. At
present, if at all reservation for and appointment of persons with
disabilities are made, it is only on the basis of the vacancies that
arise in “identified” jobs, which are far fewer than the total number of
posts in the cadre. The Supreme Court held that from a bare reading of
Section 33 it was clear that the intention of the legislature was that
the 3 per cent reservation was computed on the basis of total vacancies
in the cadre strength. This interpretation is significant as it will
lead to an unprecedented increase in the number of appointments in State
and Central government jobs for persons with disabilities.
One of the most interesting observations of the court in this judgment
pertains to reservation in the private sector. Section 41 of the Act
states that incentives should be given to public and private
establishments so that they provide 5 per cent reservation for persons
with disabilities. The Supreme Court held that “on a conjoint reading of
Sections 33 and 41, it is clear that while Section 33 provides for a
minimum level of representation of 3 per cent in the establishments of
appropriate government, the legislature intended to ensure 5 per cent of
representation in the entire workforce both in public as well as
private sector”.
This expansive observation of the court has gone unnoticed amid the
excitement over its statement on reservation based on the cadre
strength. This opens up new avenues for implementing reservation for
persons with disabilities in the private sector as well. This
opportunity was passed up by Justice Ravindran in the judgment in Dalco Engineering Pvt. Ltd vs Satish Prabhakar Padhye & Ors, which
stated that the definition of “establishments” under the PWD Act did
not include private companies. Now, however, the full Bench of Justice
P. Sathasivam, J. Desai and J. Gogoi has clearly moved ahead by
observing that the intention of the legislature was to ensure
reservation of posts for persons with disabilities not only in the
public sector but in the private sector as well.
Draft Bill, 2012
This judgment comes at the right time as the Draft Rights of Persons
with Disabilities Bill, 2012, is pending consideration. The Supreme
Court even relied on the Bill for its reasoning. However, with regard to
equality in employment rights for persons with disabilities, the Bill
does little to improve upon the provisions of the PWD Act and does not
include the exciting new possibilities that the Supreme Court judgment
promises. It does not mandate reservation of jobs in the private sector
at all for persons with disabilities although this was clearly included
in the draft of 2011. Unless the private sector is mandated to reserve
jobs for persons with disabilities, it is unlikely that their conditions
of employment in the country will change significantly. If one were to
review any significant disability rights legislation in other
jurisdictions, one would notice that all of them contain employment
obligations for the private sector as well.
This has become even more urgent now as India has ratified the United
Nations Convention on the Rights of Persons with Disabilities. Perhaps,
the Supreme Court decision will prompt a revision of the relevant
provisions in the Draft Bill. The Draft Bill also needs to address the
problematic requirement of “identification of jobs”, which has been
reproduced from the PWD Act. Identification of jobs is a concept that is
considered outdated by disability rights activists the world over
because it has a history of segregating persons with disabilities into
the most menial jobs available, making it difficult for them to apply
for other jobs. In the last century, the strategy of identifying
particular professions for persons with disabilities was practised in
the United Kingdom. But, as Anna Lawson, professor at Leeds University
and author of Disability and Equality Law in Britain: The Role of Reasonable Adjustment
(Hart Publishing, 2008), points out, the occupations that were selected
were of low status such as car park attendants and lift operators. In
associating disabled people with such jobs, there is the danger of
creating or reinforcing negative stereotypes about them and their
abilities.
For example, in India, the stereotypical jobs reserved for the blind and
persons with low vision are those of music teacher and telephone
operator. These difficulties were recognised in the U.K. as early as
1956 by the Piercy Committee in its report of the Committee on the
Rehabilitation, Training and Resettlement of Disabled Persons, and
although initially the disabled community supported the strategy of
identifying certain jobs for its members, such schemes were finally
abolished.
In India, the battle for reservation of jobs has often been stalled by
the government’s not identifying posts as suitable for persons with
disabilities. Such identification is often restrictive and arbitrary;
for example, in Group A, the job of an agricultural scientist
specialised in econometric analysis is identified as being suitable for
an individual who is blind or has an orthopaedic disability but not for
someone with a hearing disability. There is also a great variance
between the Central government and different State governments on what
posts are suitable for persons with disabilities, and this has led to
intense litigation.
As the World Bank report says, the list of identified jobs is based on
the assumption that the characteristics of impairment are the exclusive
determinants of an individual’s ability to hold a position at a
particular skill level and such identification ignores the potential
influences of individual characteristics (motivation, age at disability
onset), the person’s access to employment services, and the
characteristics of the workplace and labour market. Even though there is
a statutory obligation to identify posts, what posts are identified is
left to the discretion of the government, which decides on the basis of
the nature of the posts and its requirement. The government often
conveniently denies people with disabilities jobs by not identifying
enough posts in each department for them. Thus, the whole concept of
identification of posts is problematic. The Supreme Court recognised
this in its recent judgment, saying: “[E]xperience has shown that
identification has never been uniform between the Centre and States and
even between the departments of any government. For example, while a
post of middle schoolteacher has been notified as identified as suitable
for the blind and low vision by the Central government, it has not been
identified as suitable for the blind and low vision in some States such
as Gujarat and J&K, etc.”
Reasonable accommodation
Unfortunately, the requirement of identification of jobs is retained in
the Draft Bill, and Sections 32 and 33 of the PWD Act are reproduced,
with the only difference being an increase in the reservation from 3 per
cent to 5 per cent. If this requirement is removed from the Bill, this,
coupled with the obligation the Bill places on the employer to provide
“reasonable accommodation”, every job could potentially be suitable for
persons with disabilities. The concept of reasonable accommodation, or
adjustment, lies at the heart of civil rights advancement in the context
of disability. Its significance is that it is a way of accommodating
difference. A 2004 baseline study by the European Union Network of
Independent Experts of Disability Discrimination, titled “Disability
Discrimination Law in the E.U. Member States”, noted: “The notion of
‘reasonable accommodation’ is individualised and involves the person
with a disability in an interactive dialogue with the employer to
discover the right kind of accommodation needed in the overall
circumstances of the case.”
Essentially, the concept stems from a realisation that the achievement
of equal treatment can only become a reality when some reasonable
allowance is made for disability in order to enable the abilities of the
individual concerned to be put to work. In employment, it is the duty
of the employer to make reasonable accommodations to any physical
features of the premises or to the duties of the job which would place
disabled persons at a substantial disadvantage in comparison with those
who are not disabled. As stated in the E.U. report, reasonable
accommodation as provided in other legislations could include
adjustments to premises; reallocation of duties; redeployment to an
existing vacancy; alteration of working hours; reassignment to a
different place of work; allowing absence for rehabilitation; assessment
or treatment; training; acquisition of equipment; modification of
equipment, instructions, reference manuals and testing or assessment
procedures; and provision of a reader, interpreter or supervision. Thus,
the need to identify jobs would not arise at all as every job could be
done by a person with a disability. With India ratifying the U.N.
Disabilities Convention, the concept of reasonable accommodation has not
only been brought under the Draft Bill, but also recognised by the
Bombay High Court in Ranjit Kumar Rajak vs State Bank of India.
Finally, only token improvements to the PWD Act have been made in the
Bill. Instead of the seven disabilities stated in the PWD Act, the Bill
provides for 5 per cent reservation of jobs for persons with “benchmark
disabilities”, which means those found with 40 per cent or more of the
specified 18 disabilities. However, the provisions for reservation of
jobs only mentions that out of the 5 per cent of jobs, with 1 per cent
each being reserved for persons with blindness and low vision, hearing
impairment, locomotor disability, autism and intellectual disability,
and mental illness. These provisions do not adhere to the progressive
social model of disability, which does not view disability as a medical
impairment (with 40 per cent or more of a certain characteristics) but
as a form of discrimination due to social and environmental barriers. If
these medical models of understanding disability are reproduced in the
new law, one can hardly say that the Bill is in conformity with the U.N.
convention, which was supposed to be the basis for the whole drafting
exercise.
The Supreme Court decision signals that Indian courts are ready for
progressive interpretations of the law on the rights of persons with
disabilities. These interpretations have breathed life into the PWD Act
and transformed it from a limiting statute into a legislation that has
been successful in changing the lives of persons with disabilities, at
least in the field of public employment. This judgment bears in it the
seeds for further reform. This requires a serious reconsideration of the
Draft Bill, which needs to take all these concerns into account. The
disability rights movement has worked hard for the last 17 years to make
the PWD Act what it is today, and any new legislation that replaces it
needs to make a significant improvement to it.
Jayna Kothari is an advocate practising in the Karnataka High Court
and a director of the Centre for Law and Policy Research. She is the
author of The Future of Disability Law in India and can be contacted at
jayna.kothari@clpr.org.in
Source : Front-line , Print Edition will be on 15th November 2013
