The contentious clause allows establishments to discriminate against persons with disabilities if there is a “legitimate aim”.
Even before it has been implemented, the Rights of Persons with Disabilities Bill, 2016, which was notified by the parliament in the winter session, has run into a major controversy with the primary stakeholders – persons with disabilities – questioning the clause that allows establishments to discriminate against them provided there is a “legitimate aim” and for taking the private sector out of the purview of the Act. Moreover, while the Centre had promised to address the issue while framing the rules under the Act, the same has not been reflected in the draft rules circulated earlier this month.
Asserting that this clause had no business to remain in the Act, the disability rights activists allege it was only introduced by the bureaucracy to keep a window for denying any rightful claim. With disability activists protesting against the subjective nature of this clause and two MPs of the CPI(M) in Rajya Sabha, K.K. Ragesh and C.P. Narayanan, moving amendments to notify the Rights of Persons with Disabilities (RPwD) Act, 2016, the minister for social justice and empowerment welfare, Thawar Chand Gehlot, had assured that necessary changes to the clause would be made through the rules to ensure that it was not misused against the persons with disabilities.
Why have a regressive clause in an Act?
As disability rights activist and practicing doctor at the University College of Medical Sciences and Guru Tegh Bahadur Hospital, Delhi, Satendra Singh, said, “a major concern with regard to the RPwD Act is Clause 3 (3) which states that ‘No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim'”.
This clause, he said, gives unfettered power to the implementing agencies to discriminate against persons with disabilities as it leaves open the interpretation to the bureaucracy.
Singh recalled how in his own case he had to fight a four-year-long battle to unlock his own and 1,700 other posts after he was discriminated against, due to a similar regressive rule, on the ground of disability, even though he had cleared a central health services examination conducted by the Union Public Service Commission. “These things will continue to happen if this rule is not changed. It is ironical that some leading disability activists never highlighted this and were so adamant on passing this Bill,” he lamented.
Draft rules ignored the contentious clause
Noting that a committee was constituted to frame the rules and it had uploaded the draft rules on March 10 for seeking objections and suggestions after the same were approved by the legislative department of the Ministry of Law & Justice, Singh said what is bothersome is that the draft rules made no mention of the controversial clause. He also claimed that the government was in a hurry to make a big show of the rules by publishing them in the gazette on Ambedkar Jayanti on April 14 in order to show how much it cares. “But the question of discrimination remains as the ministry rules do not include anything circumventing 3.3 despite the assurance of the minister in parliament,” he said.
‘Legitimate aim’ is not defined
Agreeing that the time to act was now, former chief commissioner for persons with disabilities (CCPD) P.K. Pincha, said the rules need to do away with the provision of Clause 3 (3). “In the first place, what constitutes “legitimate aim” has neither been defined in the Act nor has it been explained anywhere in the Act. This, therefore, means by necessary implication that what constitutes legitimate aims has been left to the collective interpretation of the bureaucracy. And this is where our apprehensions as persons with disabilities lie.”
He said there are judgments of the Supreme Court in various other cases where it has stated that reasonable classification is permissible. “If reasonable classification is permissible vide the rulings of the apex court then where was the need to put this rider; it was not necessary.”
However, Pincha, who was part of certain consultations held on the issue and organised by the All India Disability Alliance, insisted that “in the draft rules there is some provision to deal with Clause 3 (3); they are proposing something, but whether it is adequate or not is another thing.”
Though not absolutely clear how the issue would be addressed, he said, “They have probably said that if there is an act or omission which any authority intends to resort to then they would have to first refer it to the chief commissioner or something to that effect.”
Representation of persons with disabilities a must as per UN charter
Pincha demanded that “there should be representation of persons with disabilities also in deciding if a particular act or omission was permissible or not because the UN convention on the rights of persons with disabilities, with which this law is sought to be made compatible, explicitly mandates that you cannot take a decision which affects the lives of persons with disabilities without consulting their representative organisations. So consultation with the primary stakeholders is indispensable.”
Noted disability rights advocate Subhash Chandra Vashishth is concerned that while the Act has become a “fait accompli”, since it was notified on December 28, even the draft rules do not address the concerns about the discriminatory clause explicitly.
All cases should be heard by CCPD and 11-member panel
“I suggest that some kind of mechanism should be devised which states that whenever such an issue of discretion arises then both the person seeking employment and the employer should be heard by a nodal authority comprising the chief commissioner of persons with disabilities, of the Centre or the state as the case may be, along with the 11 member advisory committee which the Act provides. Otherwise, if you would leave it only to the commissioners, who are usually bureaucrats and picked by the government, they may speak the language of the government,” he pointed out.
Seeking repealing of the contentious clause, he said while an amendment would require going through the whole parliamentary process, the rules can be changed accordingly till the time that happens.
Private sector left out of purview of Act
“At least in the rules they should make the necessary changes. They want to issue the rules on Ambedkar Jayanti on April 14. But in the week after the last day for inviting the suggestions on April 6, it is unlikely that much change would happen. Also, this draft has come after the law ministry had screened the earlier draft and had removed the areas where private establishments were concerned and many other areas,” said Vashishth.
Similarly, he said, while the equal opportunity policy was there for all the establishments under the law, the rules only call upon the government establishments to implement it. They are silent on the role to be played by the private establishments.
Within the Act, the establishments have been defined as government establishments and just establishments. But the rule has not legislated anything on private employers. But now the rules are silent on that. So now when the law would be implemented on April 14, it would not be applicable to private employers.
The lawyer-activist also pointed out that the private sector has been left out of the purview of the draft rules even though the Act had provided for their inclusion. “So in effect, it could well mean that the Act would not apply to the private sector at all,” he said.
An amendment to the Act is needed urgently
Vashishth demanded that ideally, the Act needs to be amended. “The employers are generally governed by the law and the rules made thereunder. The issue is that right now the rules are being made for the central government and the state governments would be doing it separately. The worry is they may do it differently or not do it at all. So if there is an amendment to the Act it is better because then it applies to all the states too. This would also ensure that the provision does not become subjective in the states.”