Before, “The Rights of Persons with Disabilities Act, 2016 (RPwD)” came into existence, India’s legislation concerning persons with disabilities was dealt with under the Persons with Disability Act, 1995 (PwD) which was introduced on February 7, 1996. The PwD Act was the first law introduced by the Indian Government to expound the rights of persons with disabilities. The main motive behind this law was to provide equal opportunities and to bring equal participation of the disabled person in all aspects including education and employment to that of normal persons.
This law mainly defined 7 types of disabilities which range from blindness to mental illness. One of the main provisions of the PwD Act which created impact was that it provides a 3 percent reservation in government jobs for people with disabilities [1]. Even though this Act was landmark legislation it was highly criticized as it provided vague definitions and created difficulty in implementation. For example, a mental illness that was included in the set of disabilities was very difficult to interpret as there was only a little understanding of the nature of the disability and its development in the current field. Furthermore, this Act defines a disabled person as a person suffering from 40% or more disabilities but in the case of mental illness we can’t measure the percentage and it also does not specify whether it includes all mental disorders such as epilepsy and dyslexia [2]. The United Nations opted to the Convention on the Rights of Persons with Disabilities in 2006 and India ratified this convention in 2007. As the 1995 Act had a lot of loopholes it was eventually replaced by the Right of Persons With Disabilities Act, 2016.
Table of Contents
Key Points of RPwD, 2016 Act
- The PwD Act had only listed 7 types of disabilities but the RPwD Act has expanded the list to currently encompass 21 conditions. The 21 of disabilities are blindness, low vision, locomotor, leprosy cured, hearing impairment, intellectual disability (previously mental retardation), mental illness, cerebral palsy, dwarfism, acid attack victims, specific learning, autism spectrum disorders, muscular dystrophy, hard of hearing, speech and language, chronic neurological disorders example Parkinson and multiple sclerosis, blood disorders example haemophilia, thalassemia and sickle cell anaemia, and multiple disabilities.
- The disability mental retardation was changed to intellectual disability which is defined as the limitation in behaviour to adapt to everyday skills that include social and practical skills and intellectual functioning such as reasoning, learning, and problem-solving ability. This Act also gives an elaborate and clear definition of mental illness [3].
- The RPwD Act lays down certain principles to empower the person with disabilities they are to respect for inherent dignity, individual autonomy including the freedom to make one’s own choices and to become an independent person, non-discrimination, effective participation, equality of opportunity also equality between men and women, accessibility, respect for the children with disabilities and their rights to preserve their identities. According to this Act no person with a disability should not be treated unfairly, women and children with disabilities should enjoy their rights and the government should take necessary measures to ensure that. They also have the right to live with the community. The appropriate government should take measures to protect them from being subjected to torture, cruel, inhuman or degrading treatment, abuse, violence, and exploitation. They have also had the right to equal protection and safety in situations of risk, armed conflict, humanitarian emergencies, and natural disasters. These provisions are dealt under Section 3, 4, 5, 6, 7, 8 of the Act.
- No child should be separated from the parents on the grounds of disability except by the order of court if required, in the best interest of the child. The government should ensure that they should have access to all information regarding reproduction and family planning. The election commission of India should ensure that all polling stations are accessible and all material related to the election is made easily understandable for disabled persons. They also have access to justice without discrimination. They have the right to inherit property movable or immovable, control their financial affairs and have access to bank loans, mortgages, and other financial credits. If they are unable to take legally binding decisions on their behalf their guardian can take decisions in a manner prescribed by the State Government. These provisions are dealt under Sections 9, 10, 11, 12, 13, 14.
- Duty of educational institutions, specific measures to promote and facilitate education, adult education is dealt with Sections 16, 17, and 18. The government should also formulate skill development programmes such as vocational training and self-employment. Non- discrimination in employment, equal opportunity policy, maintenance of records, and Appointment of Grievance Redressal officer are dealt with in Sections 18, 19, 20, 21, 22, and 23. Social security, health care facilities, insurance schemes, rehabilitation, research and development, culture and recreation, sporting activities, free education for the children with bench mark disabilities, reservation in the higher educational institution not less than 5%, for government jobs not less than 4% and other reservation in the allocation of land, poverty and other schemes 5% for persons with bench mark disabilities and those in need of high support. These provisions are dealt between Section 24 to Section 38 [4].
- The Centre and State Advisory Board for persons with disabilities should be set up and serve as policy-making bodies at the Central and state level. The office of Chief Commissioner was strengthened by 2 commissioners for assistance and an Advisory Committee was set up of not more than 11 members who are experts in various disabilities. The office of State Commissioner is assisted by the Advisory board comprising not more than 5 members who are also experts in various disability fields. The Chief Commissioner and State Commissioner will act as regulatory bodies in grievance redressal and also ensure proper implementation of the Act. District-level committees will also be established and will be monitored by the State Government. The National and State Fund established to support the person with disabilities the existing National Fund and the Trust Fund will now come under the National Fund.
- Any person who violates the provisions of any rule under this Act will be imprisoned up to 6 months or will be fined Rs. 10,000 or both. For Future violation and offences, he/she will be imprisoned for a period of 2 years or will be fined Rs. 50,000. If a person intentionally insults or intimidates a person with a disability or sexually exploits women and children with disability will be imprisoned for a period of 6 months which may extend up to 5 years and will be fined. Special courts will be established in each district to handle cases related to violation of rights of persons with disabilities [5].
https://legalreadings.com/nature-meaning-and-elements-of-crime/
Case Laws
- In Disabled Rights Group v. Union of India[6], this petition was filed to seek judicial intervention in admitting persons with disabilities in law college. The apex court directed all government and higher education institutions to immediately comply with S. 36 of the RPwD Act. The RPwD Act providing reservations in higher education for people with benchmark disabilities does not limit the study in a particular discipline. So, the apex court highlighted this and widened the coverage of its direction to all educational institutions. The apex court not only directed in compliance with the reservation scheme but also stated that it is equally essential to impart education in a fruitful manner. Unless the students with disabilities have easy access to all sections of education the main motive behind this law will not be achieved. The court observed that there were inadequate provisions to facilitate proper education to persons with disabilities and this would amount to discrimination. The apex court directed UGC to set up a committee and consider the feasibility of ‘Guidelines for Accessibility for Students with Disabilities in Universities/Colleges’ to make a progressive move, the apex court further directed the UGC to weigh the feasibility to set up an in-house body to help persons with disability in educational institutions. The Supreme Court will oversee the effective implementation of the Act.
- In Rajive Raturi v. Union of India & Ors.[7], the apex court also acknowledged another petition that proposes all accessibility requirements to meet the needs of visually impaired persons. The Court recognized the concerns of visually impaired people in accessing the obstacle-free walking areas and ease in using transportation facilities. The court stated that without these facilities the visually impaired persons will face difficulties in moving from one place to another, this can also be treated as a violation of fundamental rights of the Indian Constitution under Article 19.
Conclusion
Recently in July 2020, The Union Ministry of Social Justice and Empowerment proposed notification for the amendment of the RPwD Act to decriminalise minor offences to improve business sentiment and to unclog the court process. This created an uproar and eventually led to protests from the disabled person community, activists, and organisation. The disabled community contended that the 2016 Act has given the marginalised community robust protection and it should not be amended.
The Department of Empowerment of Persons with Disability under the Ministry stated that decriminalisation of minor offence will considerably lessen the risk of imprisonment for those who do not have malafide intention. Further, they stated that the risk of jail acts as an obstacle in attracting both foreign and domestic investors and it also became pertinent after the pandemic in order to revive the economy. Delhi-based activist Satendra Singh stated that if the government removes penal provision it means diluting the Act and also going against the Commitments it made internationally [8]. Amendments should be made only to strengthen the Act by including Penal Provision and not by removing it. If the penal provisions are removed the perpetrators will no longer be afraid of law which will ultimately lead to an increase in offences and we can’t stop the injustice happening to the disabled communities.
REFERENCES
[1] The Slow March of Progress: An Overview of The History of Disability Legislation in India, available at: https://aif.org/the-slow-march-of-progress-an-overview-of-the-history-of-disability-legislation-in-india/ (last visited Jan. 26, 2021).
[2] Critiques the Persons with Disability Act, 1995, available at: https://www.indiatogether.org/health/opinions/pwd95crit.htm (last visited Jan. 26, 2021).
[3] The Rights of Persons with Disabilities Act, 2016: Does it address the needs of the persons with mental illness and their families, available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5419007/ (last visited Jan. 26, 2021).
[4] The Rights of Persons with Disabilities Act, 2016, available at: https://legislative.gov.in/actsofparliamentfromtheyear/rights-persons-disabilities-act-2016 (last visited Jan. 27, 2021).
[5] The Rights of Persons with Disabilities Act, 2016, available at: https://vikaspedia.in/social-welfare/differently-abled-welfare/policies-and-standards/rights-of-persons-with-disabilities-act-2016 (last visited Jan. 27, 2021).
[6] Writ Petition (Civil) No. 292 of 2006.
[7] Writ Petition (Civil) No. 243 of 2005.
[8] Govt looks to ‘amend’ parts of Disabilities Act, community protests, available at: https://indianexpress.com/article/india/govt-looks-to-amend-parts-ofdisabilities-act-community-protests-6490577/lite/ (last visited Jan. 28, 2021).
BY JOTHI POORNA S | BHARATH INSTITUTE OF LAW