Article 41 of the Indian Constitution and the United Nations Convention on the Rights of People with Disability (UNCRPD), to which India is a signatory, secures the right to work of the visually disabled, along with the larger disabled community. However, these laws are fleeting for visually disabled people who continue to be discriminated against at the workplace. An ILO report from 2011 suggests that approximately 90% of blind people and 80% of low vision people are unemployed. This rate is much higher than the average unemployment for physically handicapped people. Therefore, the visually disabled community and the discrimination towards them warrants special attention. In particular, the present article will focus on reservations provided to visually disabled people under Section 32 and 33 of the Persons with Disability Act, 1995 (PwD Act).
Section 32 and 33 of PwD Act, 1995
Section 32 of the PWD Act, 1996 imposes a duty on governmental authorities to identify posts that can be reserved for persons with disabilities. In pursuance of the same, an expert committee was set up under the Ministry of Social Justice and Empowerment. However, the identification of posts by the Committee is not exhaustive. In Government of India Vs. Ravi Prakash Gupta and Another, the Supreme Court specified the onus on government bodies to proactively identify posts suitable for disabled people, and their lack of initiative in doing the same.
Section 33 reserves 3% of total vacancies for disabled people who have been identified suitable for a job, out of which 1% is for visually disabled people. The newly enacted Rights of Persons with Disabilities Act, 2016, which was brought in to give effect to UNCDPR by replacing the PwD Act, renumerates Section 32 and Section 33 as Section 33 and 34 respectively, with little changes in content. For the sake of clarity, the article has referred to Sections 32 and 33 of the erstwhile Act.
Despite the enactment of the PwD Act, the number of disabled people in government jobs remains low due to various problems ascribed to the law.
Problems with Section 32 and 33 of the Act:-
Proviso to Section 33
The proviso to Section 33 reads:
“Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”
While the Proviso allows the government to be exempted from reservation, in Ravi Prakash Gupta V. another /V. UOI and National Federation of Blind case where section 32 and 33 was widely discussed, it was found that the exemption power are not utilised widely.
Non-implementation of Section 33
Most of the seats reserved under section 33 are for orthopedically handicapped people. In Ravi Kumar V. Union of India, the Court observed how the expert committee in 1999 had identified posts for low vision people in UPSC however, even in 2003, the cadre controlling authorities (in charge of conducting the exams) failed to provide reservation. In 2013, the court observed that even after eighteen years of the act’s existence, blind and low vision persons are virtually excluded from the process of recruitment to the Government posts as stipulated under the said Act.
Low vision people are not allowed to compete under the general category
Given that there is often no reservation or the limited number of seats reserved, visually disabled people often apply under the general category where, too, they are denied opportunities for frivolous reasons. In the aforesaid Ravi Kumar case, the authorities denied giving reservation to the UPSC (Union Public Service Commission) candidate on the ground that he had failed to mention his low vision in the application format even when the same application form had no specific column for the said purpose except a general column for handicapped persons.
In some cases, recruitment advertisements declare that blind/partially blind candidates need not apply and that separate examinations would be conducted for visually disabled candidates, indicating that they cannot compete under the general category. If a low vision person applies for unreserved seats, they are rejected during the medical examination. This practice was prohibited by the courts in 2013.
Ableist attitude
The exclusion of visually challenged people in reserved and unreserved seats is no surprise given that the singular focus is on the disability of a person. In M. Dinesan vs State Bank Of India, the bank found the petitioner to be medically unfit for a supervisory role in the bank not because there was any defect detected during the medical examination but because of the policy of the Bank that mentions not to employ persons with only one eye.
Likewise, V. Surinder Mohan V. State of Tamil Nadu serves as a good example of how agencies while being empathic to the visually challenged, demonstrate an ableist attitude. In this case, the Supreme Court recognised the need to reserve seats for the visually disabled. However, meanwhile, it also held that any person who is more than 50% visually disabled is unfit to become a judge even though the post of a judge has been identified to be suitable under Section 32. This judgement has since been held to not be a binding precedent, but it serves as an important reminder of the ableist attitude that many government agencies show.
To be inclusive, the focus must be placed on their ability to do a job, or on adopting a system or technology that might help them overcome impairments arising out of their disability. Amita v. UOI is one of the rare cases where the court held that blind people can be effective bank officers when the right set of technology is made available to them. In this case, emphasis was placed on reasonably accommodating visually disabled people in the workplace.
Arbitrariness
The non-implementation of Section 33 creates a system where although the nature of duties discharged under the two jobs is similar or same, a disabled person has a reservation in one job, and not in another. In N. Manjushree V. UOI, the Court noted how a low vision woman has successfully discharged administrative duties under the Karnataka Public Service Commission, however, was found unfit to discharge similar functions by UPSC on account of her disability. The Court said that since the candidate has successfully been able to discharge her duties under a state public service commission, she could do the same under UPSC.
Similarly, while Rajasthan and Himachal Pradesh provide reservations to visually disabled people while recruiting judges, other states such as Punjab, Haryana, and Odisha don’t reserve seats with prescribed medical standards for visually disabled, barring them from being judges. It begs to question how visually disabled candidates can be judges in one state and not in another when the nature of the disability is the same.
Another interesting observation is how reservation for visually disabled people is provided in one year and not in another year. The 2016 notification for public prosecutors by UPSC reserved one seat for visually disabled people but in 2020 recruitment for public prosecutors by UPSC, reservation was not provided to low vision people.
Conclusion
This article serves as a tiny snippet of the discriminatory attitude towards the visually disabled. It has been observed that employment, either in the private sector or in the public sector, still remains a distant dream for visually challenged aspirants despite the existence of Section 32 and Section 33 of the PwD Act. Government agencies, being public instruments, have the constitutional obligation to create a more inclusive society. They have failed their obligation despite numerous interventions from the courts and still at the stage of improving, which they surely can. The reservation system for the visually challenged, thus, needs to be revisited and rectified to ensure proper implementation.
Adrija Dutta, a fourth-year student at Kirit P. Mehta School of Law, NMIMS
Picture Credits: Business Standard.
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