India & Disability: Focus on Rights of Persons with Disabilities Act, 2016

There Is No Greater Disability in Society, Than the Inability to See A Person as More.

Robert M. Hensel

Social Justice and Empowerment are two of the many things that a government looks after for the development of the nation. Equality for every person is a guaranteed constitutional right. At the same time, the state must provide for the advancement of vulnerable communities. Many times, the state acts as a catalyst in providing change and in the others, communities have to raise their voice for it. Such became the case for the disabled community of India.

Up until 2001, the census of India did not see the necessity in explicitly counting persons with disability…. Also, in the first ten five year plans, there was no mention of people with disability,” says Javed Abidi, from the National Center for Promotion of Employment for disabled people[1]. He is a disabled person had put a light on issues that people with disability (PwD) face in India. He talks about equality and the fact that we are doing the same activities as others, like paying taxes and that the community is just as much worthy of all fundamental rights as other people.

India And Disability

Disability in India has been a long ongoing struggle. May it be a conception or cultural belief, disability in India has been a touchy topic. PwD tend to be treated as outcasts. They have been ignored by society, the world at large and even the government. It is even considered that disability is a “punishment of sin committed in a past life.” There is an extreme need for people with disability and those associated with them, to prove themselves in society.

The disability movement gained momentum in the 1970s in India when disability started becoming seen as a human rights issue globally. This included the UN’s proclamation of deciding 1981 the International Year of Disabled People and the decade from 1983-1992 as the UN Decade of Disabled people. That ended by declaring December 3 as the International Day of Persons with Disabilities by the UN[2]. This era, witnessed strong demands from various group organizations under a cross-disability umbrella, representing the interests of the disabled. The Government of India in 1986 set up the Rehabilitation Council of India which regulated and standardized training policies and programs for rehabilitation of persons with disabilities. The following year the Mental Health Act (1987) came into existence. However, the conditions of mentally ill persons did not see improvement[3].

Many NGOs started operating in the disability sector during this decade and this subsequently provided further momentum to the Disability Rights Movement. Finally, the government passed the Persons with Disabilities (PwD) Act, 1995[4]. This set a benchmark for the community as well as the nation. This was focused on the rights of PwD. The act looked into education, employment, free access, non-discrimination, R&D, and institutionalization. This led to a 3% reservation in education and government services. In the year 2006, India became a signatory and ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which called for a change in legislation, to fulfil obligations under the international treaty and thus, the Rights of Persons with Disability Act, 2016[5] was passed.

Rights of Persons with Disabilities (RPwD) Act (2016)

Background

The Ministry of Social Justice and welfare (Legislative Department) came up with The Right of Persons with Disabilities Bill, 2014 which would replace the 1995 act[6]. On 27th December 2016, The Rights of Persons with Disability Act (Hereon called as “The Act”) was passed. The rules that serve as a guide to implement the Act came almost 6 months later on June 15, 2017, after many months of inviting public opinion before finalization. Finally, on January 4, 2018, the Ministry of Social Justice and Empowerment provided guidelines and procedures for the certification of the various disabilities specified by the Act[7].  It contains 101 sections in 18 chapters altogether. 

Object & Reasons for the act

As mentioned earlier, the objective of the act is to enforce the provisions of the International convention, which focuses on the empowerment of PwD through respect and freedom, non-discrimination, participation, acceptance, accessibility, equality between men and women, and the respect and rights of disabled children. India is a signatory and have been ratified the convention, deemed it necessary to implement the aforesaid convention.

Salient features

  • Recognized 21 disabilities, unlike 7 in the previous act. Some newly recognized conditions included acid attacks, sickle cell, dwarfism, Parkinson’s disease, Hemophilia, leprosy etc.
  • Reservation in Government jobs went up to 4%.
  • Recognized right to free education for all children in the age of 6-18.
  • Gave way to Special courts in each district to handle cases of PwD rights violation.
  • Introduced Punishable offences for insulting, intimidating, or humiliating any person with a disability.
  • Creation of National and State funds to provide financial support to PwD.
  • Pressured on improving accessibility for both private and public buildings within the specified time frame.

Important Elements

  • The Act gives some important definitions include “person with benchmark disability” “person with a disability” “person with a disability having high support needs”[8].
  • The Act specifies the rights and entitlements for PwD. Such rights and entitlements are those that should be given by the government so that PwD can enjoy a life of dignity, equality, respect and integrate with others[9].  It ensures that the authorities take actions for the equal treatment of women and children with disabilities.
  • It guarantees the right to community life and the protection from cruelty and inhumane treatment; Protection from abuse, violence and exploitation by providing for punishment under by the Indian Penal Code, 1860[10]. Its sections 12, 13, 14, and 15 are of the crucial role as they deal with access to justice, and provision for guardianship. It also designates authorities to support PwD.
  • It promotes vocational training and self-employment. Non-discrimination and equal opportunity policy is also encouraged. It makes mandatory the appointment of a grievance redressal officer in every government facility[11]. It encourages schemes and programs for social security, healthcare provisions, insurance schemes, rehabilitation, and R&D.  Free education for children with benchmark disabilities[12]. Provides also for Reservations in higher educational sectors, government posts, and special employment exchanges.
  • Provides for a certificate of disability, its guidelines for the issue, process, and even provision to appeal to authority if one is against the decision of the certification authority.
  • It issues to set up the Central Advisory Board on Disability a national-level consultative and advisory body on disability matters and shall facilitate the continuous evolution of a comprehensive policy for the empowerment of persons with disabilities and the full enjoyment of rights. It shall advise policies, programs, legislation, address issues, review and coordinate activities etc. in relation to PwD. The same shall be followed by a body at the state level known as State Advisory Board on disability[13]. It also suggests the appointment of a Chief Commissioner and state commissioner for Persons with Disabilities and their respective roles and duties[14].
  • The appointment for Special Courts and Special Public prosecutor for dealing with cases under this act is also made for under Chapter 13.
  • It also provides for the setting up of National and State Funds for PwD and their authorized functions.
  • Offences and penalties against PwD are heavily promoted under The Act. Any person to contravene the provisions of the act would face fines from Rs.10, 000 to Rs.5, 00,000. It also provides for various fines and imprisonment terms for the violation of PwD in different punishable offences. These include hiding information, intentionally insults, assault and force, control over the person, voluntary injury and damage, and also medical procedures on women without their consent which would lead to loss of pregnancy.

Cases

  • The first person to be booked under the provisions of the law was UP Minister Satyadev Pachauri as he insulted a Class IV employee over his disability. If convicted, he faces a six month to 5-year prison term[15]. Delhi-based disability rights activist Satendra Singh complaint to the State Commissioner for Persons with Disabilities, Lucknow, under Section 92(a) of The Act.
  • Another case by way of a writ petition, Nipun Malhotra V. Government of NCT of Delhi & Others,[16] where the Delhi high court rebuked Delhi Transport Corporation(DTC) for treating differently-abled persons as “non-existent” due to the purchase of 2000 standard floor buses which are not disability friendly. In this case, the mention of the international convention was brought up multiple times to stress on the importance of accessibility. The court thus ruled in favour of the disabled community by prevention of procuring any standard floor buses. 
  • In the combined case (a writ and PIL) of Sachin Bhaurao Chavan V. The State Of Maharashtra and Another[17] the issue was regarding an advertisement for the recruitment process for posts of Stenographer (L.G.), junior clerk and Peon/Hamal in various District Courts in the State of Maharashtra. The petitioners pleaded that the advertisement to be quashed as it did not present appropriate reservation for the blind/ visually impaired as mention in Sec.34 of The Act. However, due to the fact that keeping the vacant posts in the courts would affect the effective functioning of the courts and more than 3.5 lakhs candidates have already filed applications. The recruitment process itself is quashed and set aside, it may disturb the recruitment process and may cause prejudice to the candidates who have so far submitted on-line applications. Thus the court allowed the writ and the PIL partly. It decided to reserve 4% posts for disabled candidates.

Conclusion

Today, there are millions of people living in India that are considered disabled. Despite being such a large number, numerous difficulties are faces by PwD. One of the problems lies in the thinking of the significant masses that consider PwD a liability and thus leads to discrimination and harassment and isolation from the mainstream. Although The Act made great improvements in the disabled community, the implementation lags. This may be due to mentalities and lack of political will. There are many instances with the failure of government machinery, such as delay in granting disability certificates, the low will to place PwD in jobs reserved for them, and creating hardships in general day to day lives. The full identity of The Act can only be achieved by cleansing of intent, truly granting rights and seeing PwD as an asset rather than a liability.


[1] https://www.youtube.com/watch?v=wzACE7oTazU

[2] https://www.thehindu.com/opinion/op-ed/disability-rights-over-time/article21254946.ece

[3] https://thediplomat.com/2016/12/the-history-of-indias-disability-rights-movement/

[4] The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

[5] Bare Act: http://www.tezu.ernet.in/PwD/RPWD-ACT-2016.pdf

[6] Ibid 4

[7] Indian Journal of Psychological Medicine: Indian J Psychol Med 2019;41:119-25

[8] Sec.2, subsection (r), (s),(t)

[9] Sec.3 of The Act

[10] S.45 of The Indian Penal Code, 1860

[11] S.23 of The Act

[12] S.35 of Rights of Children to Free and Compulsory Education Act, 2009

[13] Chapter 11 of The Act

[14] Chapter 12 of The Act

[15] https://thewire.in/health/satyadev-pachauri-persons-with-disabilities-act-uttar-pradesh

[16] Nipun Malhotra V. Government of NCT of Delhi & Others., W.P.(C) 9643/2017.

[17] Sachin Bhaurao Chavan V. The State Of Maharashtra and Another, wpl-1137 & PIL-72-18

Sai Kulkarni from Marathwada Mitra Mandal’s Shankarrao Chavan Law CollegePune

“Curiosity is the engine for discovery, inquiry and learning’ Just a curious girl working to leave a mark.”

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