Disabled soldiers are being denied their basic rights under UN convention and Disabilities Act
Col Narinder Singh Dahiya (retd)
On 10 April 2023, it was widely reported in the media that the Department of Military Affairs (DMA) headed by the Chief of Defence Staff (CDS), General Anil Chauhan, had set up a committee to study the increase in disability pensions among armed force personnel. This happened in response to the Comptroller and Auditor General’s Report (CAG) on the subject, which insinuated that something is not right in the procedure for grant of disability pension in the armed forces. Media reports suggested that the CAG commented negatively about the procedure for granting disability pension and highlighted that some categories of soldiers were benefiting disproportionately because of some loopholes.
The media reports, however, failed to carry out an in-depth analysis of the whole subject and just concentrated on creating a frenzy. The CAG, now infamous for reporting huge losses in 2G allotment and the coal scam (no one has ever been indicted by the courts in these scams even after the passage of 10 years), has raised another false red flag that can tarnish the image of the only organisation (the Indian armed forces) of the country that enjoys high reputation and respect among the citizens of the country. It seems that the CAG report is based purely on the number of soldiers getting disability pensions without studying the other laws of the land or even the various international conventions on the subject matter.
UN Convention
The United Nations’ Convention on the Rights of Persons with Disabilities (UNCRPD) is an international human rights treaty that outlines the rights of persons with disabilities and the obligations of governments to promote, protect and ensure those rights. The convention was adopted by the UN General Assembly in 2006 and came into force in 2008. India is a signatory to this convention and it ratified the convention in early October 2007.
The convention recognises that persons with disabilities are entitled to the same human rights and fundamental freedoms as everyone else and that they should be able to participate fully in all aspects of society. The convention covers a wide range of areas, including education, employment, health, accessibility and participation in political and public life.
An act to give effect to the UNCRPD and for matters connected therewith or incidental thereto was passed by parliament in 2016 and it is called the Rights of Persons with Disabilities Act, 2016 (RPWD 2016).
One of the main principles of the act, as laid down in the preamble of the act, is non-discrimination. The act lays down that a person with a disability cannot be discriminated against in any manner whatsoever. This principle is amplified further in Chapter IV of the act, which deals with Skill Development and Employment. Para 20 of Chapter IV of the act is reproduced below:
Non-discrimination in employment: (1) No government establishment shall discriminate against any person with disability in any matter relating to employment: Provided that the appropriate government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section.
(2) Every government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.
(3) No promotion shall be denied to a person merely on the ground of disability.
(4) No government establishment shall dispense with or reduce in rank an employee who acquires a disability during his or her service: Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(5) The appropriate government may frame policies for posting and transfer of employees with disabilities.”
It is clear from the plain reading of paragraph 20 of the act that a disabled soldier or a government servant cannot be denied promotion or removed from service. The government is duty-bound to either adjust such an employee to another post with the same pay scale and service benefits or even keep him on supernumerary strength until such a post is available. It should also be noted that the act nowhere mentions that to get benefits under the act, the disability has to be either attributable to or aggravated by the service. This term is the sole creation of the fertile military minds of the armed forces.
The state has extended these benefits of the act to all departments but, strangely, has excluded the armed forces of the country from the purview of this act, thus denying the benefits of the act and even the United Nations convention to the soldiers. The CAG report does not point out this fact. The armed forces were taken out of the purview of the act through an extraordinary gazette notification of the department of empowerment of persons with disabilities (divyangjan) of the ministry of social justice and empowerment dated 17 October 2018.
The notification reads as follows:
“S. O. 5370 (E). – In exercise of powers conferred by the proviso to sub section (1) of section 20 and the second proviso to sub – section (1) of section 34 of the Rights of Persons with Disabilities Act. 2016 (49 of 2016), the central government having regard to the type of work carried on hereby exempt all categories of posts of combatant personnel of armed forces from the provision of the said sections.”
The CAG as well as the armed forces should realise that the disabled soldiers of the armed forces are being denied even the basic rights of persons with disabilities through this notification. Employees of all other government departments, including the police, central police organisations and paramilitary forces enjoy these rights. The notification might be required to keep the armed forces physically fit and capable of fighting wars and winning, but the denial of rights to disabled soldiers also needs to be adequately compensated. Based on this notification, the armed forces routinely deny promotion, postings, sheltered appointments and even jobs to combatants.
Plausible Scenario
Just to highlight this fact of discrimination, let’s consider two citizens of the country. One joins a government job and the other decides to don the uniform and serve the motherland. The soldier is respected by society and kept on a pedestal. In return, the soldier serves in extreme terrain and adverse weather conditions and has a round-the-clock job with no fixed working hours. He stays away from his family most of the time and eats whatever food is served in remote areas.
The person who joins any other government job serves at good stations, stays with his family and eats wholesome food cooked at home. Both citizens unfortunately meet with accidents while on leave and become disabled. The civil government employee will continue to serve and complete his service even if he is not capable of undertaking any productive work for the organisation, as per the RPWD Act 2016. He will be granted promotion in his regular role without any adverse impact from his disability. He will also get his full pension after retirement.
However, his military counterpart will be invalidated out of service immediately and he will be denied a disability pension as the military authorities will classify his disability as NANA (Neither Attributable to Nor Aggravated by Military Service).
To extend the argument further, both will meet the same fate even when they contract any disease. A civil employee diagnosed with cancer will be given due sympathy and full benefits of his service as well as pension while a soldier will be shunted out of the job without even granting him a disability pension as cancer is classified as NANA by military medical authorities.
It has been established through wide-ranging studies that the life span of soldiers is much shorter than that of civilian employees. Their life span is cut short because of the hardships faced by them during their service. Such citizens need better love and care, but our country and the armed forces authorities continue to treat soldiers unfairly.
The grant of a disability pension is one such compensation for this denial of basic rights. Even most of the authorities in the armed forces are not aware of this gross injustice that is being meted out to the combatants and that is why the organisation keeps finding ways and reasons to deny the disabled soldiers of their basic rights.
NANA—A Quirk
One such ill-conceived concept is classification of some of the disabilities as NANA and denying all the benefits to the disabled soldiers. The military authorities must realise that there is no such classification in the RPWD Act 2016. In almost all democratic countries, disabilities arising while in service or during authorised leave are considered ‘attributable to or aggravated by military service’ except in cases of criminal activities or substance abuse.
The United States, Code Title 38, Section 105 states:
‘Pensionary and Retiral Matters
(a) An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty and not the result of the veteran’s own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active duty or on authorised leave, unless such injury or disease was a result of the person’s own wilful misconduct or abuse of alcohol or drugs. Venereal disease shall not be presumed to be due to wilful misconduct if the person in service complies with the regulations of the appropriate service department requiring the person to report and receive treatment for such disease.
(b) The requirement for line of duty will not be met if it appears that at the time the injury was suffered or disease contracted the person on whose account benefits are claimed:
- was avoiding duty by deserting the service or by absenting himself or herself without leave materially interfering with the performance of military duties;
- was confined under sentence of court-martial involving an unremitted dishonourable discharge; or
- was confined under sentence of a civil court for a felony (as determined under the laws of the jurisdiction where the person was convicted by such court).
(c) For the purposes of any provision relating to the extension of a delimiting period under any education-benefit or rehabilitation program administered by the Secretary, the disabling effects of chronic alcoholism shall not be considered to be the result of wilful misconduct.
It is disheartening to see disabled soldiers fighting for their rights in court. These disabled soldiers have done their bit for the nation, but the nation is not coming forward to help them in their time of need. It is unimaginable that the military authorities routinely deny disability benefits to their soldiers out of some false sense of justice. Why have our generals become so heartless?
Have Sympathy
The time has now come when the military should become sympathetic towards the condition of the disabled soldiers. It is an age of human rights and animal rights and certainly the soldiers need basic rights. It is also time the society and the political leadership of the country took note of the injustice being done to the soldiers and right this obvious wrong at the earliest.
It is important to remember that disability is not a choice. People who are disabled often have no control over their condition. As a result, it is unfair to judge them for their lifestyle choices. Some senior officers feel that the easy grant of disability pension will encourage soldiers to make poor lifestyle choices and might encourage some of them to become disabled for the sake of getting disability pension. Some might misuse the system, but that is no justification for denying the benefits to the most deserving cases.
In fact, the better way is to convince the government to give incentives, both tangible and intangible, to soldiers who serve a full term in service and retire in SHAPE1. The tangible benefits could be grant of additional allowance like the ‘High Ability Allowance’ in addition to service pension to such soldiers and the intangible incentive could be the grant of a ‘BHIM Medal’ to all soldiers who retire in highest medical category SHAPE1. These measures will provide the right incentive to the soldiers to strive hard to remain physically fit and retire in medical category SHAPE1.
(The writer is an advocate with the Armed Forces Tribunal, Delhi)