Substantive equality

Two books explore how real equality can be achieved for the disabled and the marginalised.

THE two books under review share a common rationale despite their apparently different concerns: substantive equality. Debates on equality in India and elsewhere have often sought to emphasise the relevance of substantive equality as compared with formal equality. Formal guarantees of equal opportunity are centred around individual achievement, while it is only group characteristics that explain why the individual progresses or does not. Formal equality completely ignores social disparities and disadvantages; substantive equality explores measures that may be required to counter disadvantage and facilitate real equality.

In her book, Jayna Kothari takes us through the debates on equality in the context of disability. The Indian Constitution does not have any substantive equality provisions under the Fundamental Rights chapter in favour of disabled persons. There is no guarantee from the state to prevent discrimination due to disability. It is unfortunate that our founding fathers did not realise the need for such a provision. As the author explains, disability results in consequences that include marginalisation in every sphere of life, be it denial of education, employment, recreation, income, identity or social recognition. This has, in turn, led to the invisibility of disabled people as subjects of human rights law.

India began late in disability legislation. The first was the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act). The author begins her book observing that despite being on the statute book for more than 16 years, the Act is not understood well by lawyers, judges, academics, students and civil society groups.

According to the recent Census data cited in the book, there are 21.9 million people with disabilities in India, that is, about 2.13 per cent of the total population. The author suggests that this figure may be an underestimate if one accepts the World Health Organisation (WHO) argument that at least 10-12 per cent of the population in any country is likely to be disabled.

In the first chapter, the author rightly asks why disability has not been included in the Constitution as a ground for prohibition of discrimination. Taking her cue from the Delhi High Courts judgment in the Naz Foundation case, she suggests that grounds analogous to those stated in Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) should also be protected grounds for discrimination. Her plea is that disability should be included as a ground for non-discrimination under Article 15(1) as it is analogous to the protected grounds. Similarly, she suggests that the non-discrimination provision under Article 16(2) should be read to include disability as an analogous ground for non-discrimination in public employment. Article 16(2) says that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the state.

She argues that persons with disability can also be considered by the state as socially and educationally backward classes under Article 15(4), and the principle of substantive equality would require the state to make special provisions or legislation for their advancement. She makes a convincing case for the inclusion of persons with disability within backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state and therefore would qualify for special provisions in its favour under Article 16(4).

The author finds the definition of disability under the PWD Act both faulty and inadequate and because of this she regrets that we have been able to capture only a fraction of the complex reality of disablement. The PWD Act mentions only seven specific disabilities: blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation and mental illness.

Calling this a medical model (rather than a social model) of disability, Jayna Kothari argues that the Act ought to have focussed on the effect of impairment, which may prevent persons from carrying on their day-to-day activities or having access to facilities. She is in favour of a broader definition of disability, one which defines a disabled person as someone who has a disability. Such a broad definition, she claims, will empower the disabled as they will no longer have to prove that they are abnormal or focus on their deficits when they assert their rights.

Among the disabilities left out in the current definition under the PWD Act are muscular dystrophy, cystic fibriosis, and some forms of hearing and vision loss. Others such as seizure conditions, multiple sclerosis, loss of a limb, cancer, paralysis, HIV/AIDS, persons suffering from internal organ failure and epilepsy also do not find a mention in the current definition under the Act. Kothari feels that disability law should also apply to people with perceived disabilities such as stuttering, which are not disabling but create prejudice and discrimination. In an interesting judgment delivered in 2005, the Delhi High Court held that the definition of disability under the PWD Act should be broadened to include heart diseases as well.

The draft Bill to replace the PWD Act (now on the website of the Ministry of Social Justice and Empowerment) defines a disabled person as follows: Persons with disabilities are persons with any developmental, intellectual, mental, physical or sensory impairments including those mentioned in Schedule 1 of the Act, which are not of a temporary nature, and which in interaction with various barriers may hinder full and effective participation in society on an equal basis with others. Schedule 1 identifies 20 disabilities. To Jayna Kothari (as told to this reviewer over phone), however, this listing of disabilities makes no sense as it can never be exhaustive. Besides, impairments, according to her, must be long-term rather than not of a temporary nature to attract the Acts application.

Law and its limitations

While the Right to Education Act, 2009, guarantees the right to education for all children between six and 14, the PWD Act goes far beyond and mandates that all children with disability shall have the right to access free education until the age of 18 years. Jayna Kothari laments that this justiciable right is hardly being implemented as the large majority of disabled children continues to be excluded from public schools and others are placed in inappropriate programmes. Worse, the Act does not require private schools to admit children with disabilities or to provide appropriate and accessible education for them. Reservation requirements in institutions of higher education in favour of the disabled are enforced with reluctance, she points out.

The PWD Act aims to offer equal opportunities in public employment by reserving 3 per cent of vacancies for persons with disabilities. In practice, however, the quota system is not enforced effectively. Jayna Kothari points out that disabled persons end up getting jobs as sweepers, cleaners, telephone attendants and music teachers (for the visually impaired). She finds that reservation and identification in the higher posts is very often not made, and people are forced to approach the courts for proper identification and reservation.

Sheer exasperation over societys ignorance of disabled persons abilities provokes the author to suggest that a complete removal of reservation and a movement towards non-discrimination in employment with the provision of reasonable accommodation might ensure greater access to employment for persons with disabilities.

The book makes a persuasive plea to apply the disability laws affirmative action requirements to the private sector and its punitive provisions against private bodies and individuals guilty of abuse of disabled persons. The draft Bill on the Ministrys website applies to the private sector, though it is not clear whether all stakeholders will endorse it.

The chapter on the U.N. Convention on Rights of Persons with Disabilities (CRPD) and its impact on the Disability Law in India in Jayna Kotharis book is especially useful to understand the future of the disabled population in the country. The CRPD came into force on May 3, 2008. India was one of the first 20 countries to sign and ratify it. As the PWD Act falls short of the gamut of rights granted in the CRPD, the Ministry of Social Justice and Empowerment agreed to draft a new law in tune with the CRPD. It, therefore, set up a committee under the chairmanship of Dr Sudha Kaul for the purpose. This committee submitted its report and a draft Bill, titled the Rights of Persons with Disabilities Bill, 2011, to the Ministry on June 30 last year. Both the report and the Bill have now been placed on the Ministrys website inviting comments from the public. As the book makes no reference to the report and the draft Bill, one wonders whether the author could have delayed the publication of the book so as to include her comments on the proposed new law.

The authors justification (as told to this reviewer over phone) for omitting any analysis of the draft Bill is that there have been several successive drafts and there have been serious objections to the draft Bill from the Law Ministry, while the Ministry of Social Justice and Empowerment has not accepted it. She has since e-mailed her detailed critique of the draft Bill to this reviewer for following up this issue further.

Affirmative action

The second book under review, Equalizing Access, is a collection of articles by eminent authors on the experience of India, the United States and South Africa with affirmative action in higher education. The essays are anchored through an insightful introduction by Zoya Hasan and Martha C. Nussbaum. The editors use Affirmative Action in the books subtitle, even though one of the contributors to the book, P.S. Krishnan, has questioned its relevance to understand the Indian experience, which, according to him, is rooted in social justice. The expression Affirmative Action, Krishnan suggests, is used by the opponents of reservation to question the clear and unambiguous provisions of the Indian Constitution in favour of substantive equality.

Readers of this review will be already familiar with the Indian experience, which Krishnan explains painstakingly in his essay. In the U.S., on the other hand, affirmative action programmes were the result of executive orders and remained outside the Constitution.

The editors tell us that the U.S. courts have rejected strict numerical quotas in both public and private sectors, and the current trend in the U.S. indicates a steady dismantling of any sort of preferential policies under pressure from the courts, although educational administrators, both public and private, tend to favour such policies strongly. The experience of South Africa with affirmative action has lessons for both the U.S. and India.

There are seven chapters from India, four from the U.S. and one from South Africa. As the editors explain, merit ought to mean potential for success in the programme to which the student is admitted, and one weak point in most existing programmes of affirmative action in all three countries is the evidence of weak performance by many admitted minority students. This is because, as the editors elucidate, acceptance in an institution is only one site of affirmative action. It must be followed up by remedial programmes to correct earlier educational deficiencies; the option of writing in a vernacular language for those whose English preparation has been subpar; and social measures designed to eradicate stigma and discrimination in the educational institution itself and make it a more welcoming place for minority students.

The Indian Institutes of Technology illustrate this phenomenon clearly. The last chapter, by D. Parthasarathy on After Reservations: Caste, Institutional Isomorphism, and Affirmative Action in the IITs, shows that the whole design of the IITs, their modes of evaluation, their pedagogy, their social environment, all impede the progress of minority students.

Prabhat Patnaiks essay on Affirmative Action and the Efficiency Argument answers the oft-repeated criticisms against quota. According to Patnaik, if we assume that talent is distributed evenly across social groups, then inefficiency is exhibited when any group is over or under-represented in any sphere. There must be a barrier. Such a barrier can be removed by affirmative measures. Although these measures may at first be relatively costly, their benefits increase with time since talent is revealed and made socially available, he says. He also adds that even if affirmative action is not efficient, it is still justifiable because it yields a socially preferable allocation of resources.

In her essay, Zoya Hasan suggests that there is a need for preferential policies and affirmative action for Muslims in India, which can be justified on the grounds of persistent disparities and inequalities. In her view, the deprivation of Muslims remains invisible because they do not fit the past discrimination mould in which much of post-Independence affirmative action is located.