Shortly after the Rights of Persons with Disabilities Bill was introduced in the Rajya Sabha in February 2014, it was referred to the Standing Committee for the Ministry of Social Justice and Empowerment for detailed scrutiny after several disabled people’s groups pointed out faulty framing of key provisions in the bill. The standing committee’s report on the bill finally came out last month. Sadly, it’s disappointing on many counts. It seems that the committee’s chief preoccupation is politically correct language, and not really the substantive issues at stake.
The committee takes issue with the term “persons with disabilities” in the title of the bill for supposedly belittling the talents and abilities of the disabled, and recommends that it be replaced with “persons with special abilities” or “persons with different abilities”. Both these suggestions are problematic. While the former smacks of condescension, the latter erases the specificity of disabled experience in the name of promoting “difference”.
Lack of legal understanding
The panel often slips in its devotion to political correctness, using the term “normal” to denote able-bodied people. Its tokenistic deployment of language is also illustrated by its take on special courts. The bill provides for designating certain session courts as special courts for trying offences committed against the disabled – it is an idea in line with the rhetoric of speedy trial that successive governments have harnessed while talking about justice delivery.
However, experience with similar courts established under other laws shows that special courts do not perform their desired function. Instead of engaging with this evidence, the only recommendation the committee makes on the subject of special courts is that these adjudicatory bodies should be called Disability Rights Tribunals, as the term “special” does not have a positive connotation.
This not only contradicts the committee’s own preference for “special” in the title of the bill, it also shows that the panel is unaware of the distinction between courts and tribunals. Tribunals, unlike courts, are quasi-judicial bodies. In a similar vein, it recommends that Special Employment Exchanges, meant for people with disabilities, be renamed “Employment Exchange for Differently Abled People”.
Expansive criteria for reservations
There are other instances too where the report reveals the committee’s misinformed approach towards crucial legal issues. As per the scheme of the bill, all the provisions are applicable to whoever has a long-term disability, though redistributive measures like free primary education or reservation in higher education and employment are restricted to a list of 19 disabilities. The committee recommends adding a number of illnesses, including kidney failure, blood cancer, type-I diabetes, to this list.
This recommendation, though arising out of concern for those with long-term illnesses, fails to understand that redistributive measures, by their very nature, must be based on tightly defined criteria. In this bill, that criterion is disablement of a certain extent caused by impairments and not disablement caused by general factors like illness or old age.
Similarly, on the question of legal capacity – legal recognition of a person’s ability to act on his or her own will – the committee recommends that the “deaf, dumb and blind” should have full legal capacity. But the legal capacity of these groups was never in question. People with vision, speech or hearing impairments have always had the legal recognition to be witnesses in trials by virtue of Sections 118 and 119 of the Indian Evidence Act. Legal capacity has been a controversial issue for people with mental disabilities, whose right to legal personhood is denied and who are placed under regressive guardianship regimes by current laws. The way the bill addresses guardianship issues leaves much to be desired. But instead of tackling those concerns, the committee washes its hands of the matter by asking the ministry to look into it.
Keeping emotions out
Again, on the issue of employment for persons with mental disabilities, the report tells us that while the Ministry of Social Justice is in favour of extending job reservation to them, the Department of Personnel and Training is not, on the ground that it would affect the administration’s efficiency. Instead of thoroughly examining the validity of such concerns and making meaningful recommendations, the committee simply notes that there is need for consensus between the ministry and the department on this issue. This is clearly an abdication of duty, as the very purpose of the standing committee system is to strengthen parliamentary role in the lawmaking process.
To be fair to the committee, it has made a number of recommendations – such as those on the equality and non-discrimination provisions – that are indeed helpful for future advocacy with parliamentarians when the bill is debated in the House. But large parts of the report are based on faulty or incomplete understanding of the legal issues involved and seem to be mobilised only by the committee’s sympathy for the disabled.
Without undermining the relevance of emotion-based responses, it must be stressed that a specially constituted body of lawmakers – whose task is to offer detailed consideration to critical issues – cannot base its recommendations on common sense and compassion alone. It is not only unfair to the marginalised people whose interests are sought to be protected, but also to the lawmaking process itself.
The author is Assistant Professor, Jindal Global Law School, Sonipat, Haryana.
