Vikash Kumar Discourse: A Missed Opportunity in the Realm of Policy Formation

by | Jan 10, 2022

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About Sanjay Jain

Dr. Sanjay Jain presently holds additional charge as Principal, ILS Law College, Pune, India. He is a disability rights activist and also takes keen interest in social theory and comparative public law. Amongst his publications, most prominent is Basic Structure Constitutionalism-Revisiting Kesavananda Bharati ED. Dr. Sanjay Jain and Sathya Narayan, EBC 2011. Recently, his scholarship has been cited by the Supreme Court of India in Vikash Kumar v Union of India.

Image description: Parliamentarians at a consultation in India.

The judgment pronounced by Justice D.Y. Chandrachud in Vikash Kumar v. UPSC in February 2021 is significant for its norm-setting impact in the area of disability rights. Unlike most of the judgments pertaining to persons with disabilities [PWDs] wherein the court adopts the fire-fighting approach of confining its adjudication to the facts of the case at hand, Vikash Kumar stands apart. This is because, in addition to resolving the dispute at hand, the Court offered a detailed blueprint for the effective realisation of the rights of PWDs.

In particular, Justice Chandrachud foregrounded the need for effective and full participation of PWDs in all facets of decision making processes implicating them and stressed on effective consultation with them in respect of initiation of policies, schemes and programme in the realm of their empowerment. The judgment continuously emphasised on the mantra “Nothing about us without us”. He also directed the competent authorities to evolve a scribe policy for PWDs within a period of three months from the date of the pronouncement consistent with the principles for policy formulation outlined by him. Notable was his reliance on General Comment 7 of the UNCRPD Committee which deals with inclusive policy-making on disability rights issues.

The question arises whether the government has lived up to the expectations of the court in the realm of policy making? In my opinion, the answer has to be in the negative. Neither has the department of Empowerment for Persons with Disabilities circulated any draft scribe policy in public domain for comments and suggestions, nor has it responded with acknowledgment mails to the draft proposal sent by various stakeholders including the author himself. As a matter of fact, despite clarion call of the Supreme Court in Vikash Kumar to meaningfully include the disabled in making policies about them, some recent examples indicate how this guidance remains unimplemented. Illustratively, the Union Ministry of Civil Aviation, Ministry of Information and Broadcasting and Ministry of Home Affairs released accessibility standards (here, here and here) that were themselves inaccessible to the disabled in some shape or form. The Ministry of Home Affairs document, for instance, had in the cover letter a picture which the visually challenged cannot access. This goes to show that even in terms of presentation of the documents, the government is not accounting for the needs of the disabled at the outset, let alone the fulfilment of the most legitimate expectation of the PWDs to involve them in decision making processes.

When policies about the disabled are made without consulting the disabled, it is no surprise that these policies are sometimes regressive. For instance, as this report explains, a panel of the Controller and Auditor General of India recently recommended the exclusion of persons with certain disabilities – muscular dystrophy, autism, learning disorders or intellectual disability and mental illnesses – from recruitment in Indian Civil Accounts Services. In the same vein, in August last year, the Department of Empowerment for Persons with Disabilities granted a blanket exemption to the employment of the disabled in three categories of police services. Justice Chandrachud had very painstakingly cautioned in Vikash Kumar against such backward-looking policies and lack of coordination between the arms of government machinery. However, the same appears to have gone unheeded.

Thus, in summing up, I have to say that although in Vikash Kumar, the court initiated an inclusive interpretative praxis for fostering evolution of better policy-making processes by the executive, there seems to be a yawning gap between the cup and the lip. This gap must be soon remedied if the judgment is to not remain merely of euphoric value.

 

This post is part of the blog series titled ‘The Development of Disability Rights in the Indian Supreme Court’. 

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