Deciphering the rights of Persons with Disabilities in India

INTRODUCTION

On December 30, 2016, the government of India enacted the Rights of Person with Disabilities Act, 2016 (RPWD Act), intending to replace 21 years old legislation, Person with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995. The act was passed to fulfil the obligations of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The UNCRPD was adopted by UN General Assembly on December 13, 2006, and presented for signatories on March 30, 2007. India is one of the few first countries that ratified the Convention. After signing the Convention on March 30, 2007, India ratified the Convention on October 01, 2007. The Convention was enforced on May 3, 2008. In addition to the act, The Rights of Persons with Disability Rules, 2017 (Rules) were notified on June 15, 2017, to bolster the mechanism. The act aims to establish a disabled-friendly environment through its various provisions. The act of 1995 was restricted to government-controlled/aided establishments but this Act has also taken private establishments within its ambit. Although the Act or the Rules do not compel private establishments to appoint Persons with Disabilities (PWD), there are certain conditions imposed on private institutions.[1]


BRIEF INTRODUCTION OF 1995 ACT

In a meeting of the Economic and Social Commission for Asia and the Pacific Region in December 1992 at Beijing, the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region was adopted to launch the Asian and Pacific Decade of Disabled Persons.[2] To implement the rules of this proclamation, the Person with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995, was enacted. The Act included seven different disabilities[3] and focussed on prevention and early detection of disabilities, education, and employment of the PWD. 3% reservation in educational institutions and Government jobs was also allowed by the act to create barrier-free situations as a measure of non-discrimination.[4]


SALIENT FEATURES OF 2016 ACT

This comprehensive act provides equal opportunities to the person with disabilities in India by stating that “the appropriate Government shall ensure that the PWD enjoy the right to equality, life with dignity, and respect for his or her integrity equally with others.”[5] According to the act, the government will take steps to use the capability of PWD by providing a conducive environment to them. It is also mentioned in Section 3 of the act that no PWD shall be discriminated against based on disability unless the impugned act or omission is a proportionate means to achieve a legitimate aim, as well as no person, shall be deprived of his liberty only on the ground of disability.[6] Measures should be taken by the government to protect the PWD by preventing inhuman, and degrading treatments, cruelty, and all forms of abuse, violence, and exploitation.[7]


In the 2016 act, the list has been expanded from seven to twenty-one disabilities including dwarfism, cerebral palsy, muscular dystrophy, the hardness of hearing, speech and language disability, acid attack victims, specific learning disabilities, chronic neurological disorders such as multiple sclerosis, autism spectrum disorders, and Parkinson's disease, blood disorders such as haemophilia, thalassemia, and sickle cell anaemia, and multiple disabilities.[8] Under clause 2 of section 7 of the Act, registered organization or person, who or which has reason to believe that an act of abuse, violence, or exploitation has been, is being or likely to be committed against any PWD, may give information to the local Executive Magistrate who shall take immediate steps to stop or prevent its occurrence and pass appropriate order to protect the PWD.[9] The police officer will have a duty to inform about the right to free legal aid, the right to file a complaint under the provisions of this Act (or any other law dealing with such offense), and information of nearest working organization for the rehabilitation of the PWD.

The age limit for free education is increased to 18 years as well as the reservation in government institutions of higher education[10] and government-aided institutions mandated to reserve at least 5% of seats for the persons with benchmark disabilities[11] i.e., affected with at least 40% disability stated in the act. Four percent reservation is to be provided in all government establishments’ posts for benchmark disabled persons with differential quotas for different forms of disabilities. Employers in private sectors will get incentives if they too abide by these rules. The act also provides the access to vocational training, inclusive education, and self-employment without discrimination.[12] Buildings, campuses, and different facilities should be made accessible to them and their special needs should be addressed as well. Accessible healthcare measures, rehabilitation programs, and insurance schemes should also be provided to them by the Government. The government and the appropriate local authorities are directed to take care of the children and women with disabilities by safeguarding their interests.[13]


Mental Retardation in the act, is replaced by Intellectual disability defined as “a condition characterized by significant limitation both in intellectual functioning (reasoning, learning, problem-solving) and in adaptive behaviour which covers a range of everyday social and practical skills including specific learning disabilities and autism spectrum disorders.”[14] The Act also comprehensively defines mental illness as “a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behaviour, and capacity to recognize reality or ability to meet the ordinary demands of life but does not include retardation which is a condition of arrested or incomplete development of mind of a person, especially characterized by sub-normality of intelligence.”[15] No children with disabilities should be separated from their parents except on the order issued by a competent court. Information about reproductive rights and family planning as well as accessibility in voting and access to justice without discrimination is to be ensured to them.[16]


Standards of accessibility that should be followed in a physical environment, public building, and areas, different modes of transports are defined in the act. A 5-year time limit is stipulated to make the existing public building accessible.[17] The Advisory Boards at the Centre and State level are established to perform different functions assigned under the Act. State governments are directed to constitute a District level Committee under the act.[18] Chief Commissioner and two other Commissioners for PWD are to be appointed at the central level by the government of India to serve the purposes of the Act.[19] Likewise, State Commissioners are to be appointed by the respective State Governments.[20] Different Funds for PWD are to be set up at the central and state level, by the respective governments.[21]


Another crucial feature of this Act is the provision of special courts in each district. These special courts will handle cases related to the violation of the rights of PWD.[22] Violation of the provisions of the Act will lead to punishment with fines up to ten thousand for the first time and fifty thousand extendable up to five lakhs for repeated offenders[23]. Atrocities committed on PWD were made punishable with 6 months imprisonment extendable up to 5 years along with a fine.[24] Fraudulently availing of the benefits of this act also been made punishable under this act.[25]


CONCLUSION

Although the act covers most of the aspects of the social welfare PWD, its vague language especially in sections about discrimination and guardianship creates a huge concern. Disabilities in the act were increased to 21 but still, there are many people left out. This list should be extended more to cover those who were suffering from lesser-known types of disabilities.


Rights of Persons with Disabilities Act, 2016 is a good start but the rights of PWD will get protected only if this Act gets enforced in its true spirit. Government as well as the society at large needs to be sensitized towards the rights of PWD. The only passage of any legislation does not make it successful; it is the duty of the society to abide by it to make its implementation effective.



[1] Trilegal, 2017. The Rights Of Persons With Disabilities Act, 2016 - Extended To Private Employers - Employment And HR - India. [online] Mondaq.com. Available at: <https://www.mondaq.com/india/discrimination-disability-sexual-harassment/620940/the-rights-of-persons-with-disabilities-act-2016--extended-to-private-employers> [Accessed 2 January 2021]. [2] Gupta, S., 2019. The Interpretations For The Rights Of Persons With Disabilities Act, 2016 In Context Of Mentally Ill. [online] Indian Journal of Psychiatric Nursing. Available at: <https://www.ijpn.in/article.asp?issn=2231-1505;year=2018;volume=15;issue=2;spage=61;epage=65;aulast=Gupta> [Accessed 2 January 2021]. [3] The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 2(i). [4] The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 33. [5] The Rights of Persons with Disabilities Act, 2016. 3(1). [6] The Rights of Persons with Disabilities Act, 2016. 3(3). [7] The Rights of Persons with Disabilities Act, 2016. 6,7. [8] Vikaspedia.in. 2016. Vikaspedia Domains. [online] Available at: <https://vikaspedia.in/social-welfare/differently-abled-welfare/policies-and-standards/rights-of-persons-with-disabilities-act-2016> [Accessed 2 January 2021]. [9] The Rights of Persons with Disabilities Act, 2016. 7(2). [10] The Rights of Persons with Disabilities Act, 2016. 32. [11] The Rights of Persons with Disabilities Act, 2016. 34. [12] The Rights of Persons with Disabilities Act, 2016. 16,18,17. [13] The Rights of Persons with Disabilities Act, 2016. 4. [14] The Rights of Persons with Disabilities Act, 2016. 2(zc)(2). [15] The Rights of Persons with Disabilities Act, 2016. 2(zc)(3). [16] The Rights of Persons with Disabilities Act, 2016. 10. [17] The Rights of Persons with Disabilities Act, 2016. 45. [18] The Rights of Persons with Disabilities Act, 2016. 72. [19] The Rights of Persons with Disabilities Act, 2016. 74. [20] The Rights of Persons with Disabilities Act, 2016. 79. [21] The Rights of Persons with Disabilities Act, 2016. 86,88. [22] The Rights of Persons with Disabilities Act, 2016. 84. [23] The Rights of Persons with Disabilities Act, 2016. 89. [24] The Rights of Persons with Disabilities Act, 2016. 92. [25] The Rights of Persons with Disabilities Act, 2016. 91.


Submitted by,

Kaustubh Kumar,

National University of Study and Research in Law, Ranchi.

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