Guest Post by AMITA DHANDA
The Rights of Persons with Disabilities Bill 2014 has got caught in the crossfire of different disability groups. Whilst one body of opinion holds that the Bill is regressive, incoherent and needs to be heavily reworked before it can be enacted; the other perspective is that the Bill may not be perfect but at least it provides something to those who are not included in the 1995 Act. People propounding the something is better than nothing logic, also pertinently point out, that while persons with disabilities who are included in the 1995 Act can afford to wait, that luxury is not available to them.
Thus, the strongest case for passing a less than perfect legislation comes from persons with impairments which are not covered by the 1995 Act. Significantly, the Bill of 2014 has changed the definition but other provisions, which need to be incorporated in theBill, to ensure that the freshly inducted persons with disabilities obtain all the entitlements (including job reservations) have not been included. It is submitted that without those provisions being included the expanded definition is going to be of little benefit to the freshly included disabilities.
To explain: the contract, employment and service laws question the legal capacity of persons with psychosocial , intellectual and developmental disabilities. These laws in both rule and practice hold that persons with the aforementioned disabilities do not possess the cognitive capacities to enter into contracts, or sign employment agreements or be recruited into service. The new Bill does not unequivocally recognize that all persons with disabilities have the capacity to act on an equal basis with others in all areas of life. The original Bill accords no recognition to legal capacity and the proposed amendment requires the “appropriate Governments to ensure that the persons with disabilities enjoy legal capacity on an equal basis with others, in all aspects of life to have equal rights as any other person before law”. This formulation makes legal capacity not a right of persons with disabilities but a duty of the appropriate government. Thus the legal capacity has been made dependent on how effectively the government ensures it; whereas what was required was for the statute to state that notwithstanding anything stated in any other law all persons with disabilities have legal capacity on an equal basis with others in all aspects of life. Without an unqualified recognition of legal capacity, all the freshly included disabilities will not be able to obtain the benefit of job reservation. This vulnerability is further enhanced by the fact that the legislation permits departments to seek exemption for particular posts from the purview of reservation. In the face of the social stigma faced by psychosocial, intellectual, developmental and multiple disabilities, it is not great leap of imagination to deduce which are the disabilities that would most face the axe of exemption.
Keeping in view the large scale diversity which exists within the freshly included disabilities be it autism or multiple disabilities, it was necessary that the denial of reasonable accommodation should have been recognized as discrimination. This was needed because unlike accessibility which speaks about how the built and virtual architecture, goods and services, transport and communication become disabled friendly; reasonable accommodation addresses the needs of individual persons with disabilities be it a particular kind of work furniture or flexibility of time and workplace. The Bill of 2014 only places an obligation on the appropriate government to ensure reasonable accommodation. It confers no right on the person with disability. The question of reasonable accommodation has been a hugely disputed question even in developed countries. The American disability jurisprudence is full of cases on the meaning of ‘undue burden’ and a ‘disproportionate cost’. This was in the context of an Act where the applicability of the concept was clearly provided. In the Bill of 2014 on the other hand the applicability of the principle itself has been rendered disputable. Reasonable accommodation has been defined but very sparingly used in the legislation. The right to education chapter is the only place where the legislation speaks of reasonable accommodation (and there too, as something the state shall ‘endeavour’ to provide, not a right); otherwise it only mandates appropriate environment. There is no mention of reasonable accommodation in the employment chapter. Without recognition of the rights of legal capacity and reasonable accommodation reservation one of the strongest rights created for the freshly included disabilities has been placed on shaky foundations
The non recognition of the right to legal capacity and reasonable accommodation in the Bill of 2014 is further endangered by the fact that the new law does not override existing disqualifications in other laws. Instead it states that the provision of the law will be in addition and not in supersession of existing laws. This means that all the existing laws by which persons with disabilities are disqualified from exercising their rights to contract would survive, and in the face of those provisions, the freshly included persons with disabilities would be hard put to avail their new work and livelihood entitlements.
The above analysis shows that the rights of the freshly included disabilities would be disputed and not self executing. With such a large number of unclear provisions, persons with the freshly included disabilities would need to continually activate the courts to obtain their entitlements. Since the equality and non discrimination provisions of the legislation are most meagre, what interpretations the courts will make, could be anybody’s guess. . It is important to appreciate that the task of creating positive jurisprudence under the persons with disabilities Act 1995 was an uphill task. Before the good judgements started to be pronounced a large number of regressive ones were also made. The Courts have helped save a weak 1995 Act but the process of strengthening the law with the aid of the courts was not an overnight affair. In the face of this reality it is pertinent to ask whether it is desirable to go ahead with an evidently flawed law and then take the next 20 years to strengthen it by using the courts; or bring out a sound law and then use courts wherever required to ensure that it is duly enforced.
It could be contended that even if the rights parts of the 2014 Bill is weak, inclusion would assist the freshly included disabilities to obtain benefit of the programmatic part of the legislation. With the number of chronic conditions that have been included a strong scheme of medical insurance was required. However there is no such mention in the Bill. The jurisprudence built under the 1995 Act has not restricted the benefits of reservation in higher education institutions to the specified disabilities alone and same holds for disabilities acquired at place of work. Thus the social security schemes are the only possible benefit which the freshly included disabilities may obtain; but the question is whether the possible benefit could offset the costs that the community would incur with an incoherent law? If the people for whom the case for accepting a weak law is being made, would make no real gain, then is it fair to ask them to accept a deficient law even when models for self enforcing strong laws exist.