Worse, it has acted as a medical doctor and laid down the medical percentage of disability for one kind of the disabled and entitled them to concessional domestic air travel. Even this is subject to this category of the disabled clearing a medical bureaucracy set up by the apex court. The net result of the judgment in the case of Javed Abidi vs Union of India is that the disabled have been further disabled.

According to the apex court judgment, Javed Abidi complained that though the Act had come into force from February 7, 1996, no effective steps had been taken by the Union and state governments forits implementation. The apex court issued notices to the Central and state governments which responded by stating on affidavit that they had set up the Coordination Committees required by Sections 8 and 13 of the Act.

The judgment faithfully records this and states that "we do not think any further direction is necessary in this regard." The court did not take judicial notice of the fact that a handicapped petitioner was appearing in person for whom the relief had to be moulded in terms of effective action or that all that the Centre and the state had done was to set up committees headed by the respective ministers of welfare.

The court paid no attention to the key provisions of the Act requiring the governments and, more importantly, the local authorities to prepare a comprehensive education scheme for the disabled by providing for transport, scholarships, books, uninforms, other necessary facilities, restructuring of curriculum, modification of the examination system and removal of architecturalbarriers from educational institutions. Similarly, it paid no attention to the special provisions for employment of the disabled and of equal opportunity in the matter of transport, roads and buildings.

The Coordination Committees which have been set up are only policy making bodies. Their executive committees, required to be set up by the Act, are the crucial factor. But the court judgment now here mentions this or tries to find out whether they have been set up or not.

Its judgment lays down no time schedule for the Coordination Committee, the setting up of which has required litigation of about one year in the apex court, to discharge its functions and report to the court itself. Instead, the court has disposed of the matter by stating ``we hope and trust that the respective Committees will discharge the obligation under the Act''. The fate of the disabled have been left to the Coordination Committee consisting of the very ministers and secretaries who did not even bother to set up the Committee in thefirst place.

Javed then sought an air concession from Indian Airlines as defined in the Act. The court set itself up as a doctor and declared that it will not be given to all the disabled but only to those having locomotor disability upto 80 percent. The rest of the disabled can travel by train or bus.

According to the Act, locomotor disability includes cerebral palsy. Wherever the Act has to define a degree of disability it has done so as in the case of the blind and the leprosy cured specifically, and a forty percent disability in general. Justices K. Venkataswami and G. B. Pattanaik have without any basis or reasoning shifted the level to 80 percent and confined it to locomotor disability thereby leaving out the mentally ill, the mentally retarded and the leprosy cured.

Worse, while the Act treats all cerebral palsy cases uniformly without any percentage of locomotor disability the apex court now requires them to have 80 percent affliction. Even those suffering from 80 percent locomotor disabilityhave been thrown to the medical bureaucracy of a specialist board to be set up by the district medical officer without any time limit laid down within which they must give the certificate to the 80 percent locomotor disabled. Are such specialists available in the districts?

The judicial dole does violence to the Act as well as the disabled without holding the politician and the bureaucrat accountable for the disabled. It is a sad commentary on judicial compassion that accepts statutory limitations of economic capacity of state institutions vis-a-vis fundamental rights of the disabled and that too without examining its empirical basis in terms of the disabled.

The Directive Principle of the Constitution does state that the state shall provide relief against disability to the extent of its ``economic capacity''. But can the fundamental rights be so limited? The Supreme Court in Ratlam Municipality two decades ago had answered in the negative. But that issue is not even examined by the apexcourt.