A Study on the Legal Rights of Persons with Disabilities in India in light of the Recent Proposed Amendment Crushed

"Obviously, because of my disability, I need assistance. But I have always tried to overcome the limitations of my condition and lead as full a life as possible. I have traveled the world, from the Antarctic to zero gravity.”~ STEPHEN HAWKING

Recently, the Department of Empowerment of Persons with Disabilities under the Ministry of Social Justice and Empowerment put out a proposal on its website for the amendments to the RPWD Act, 2016. Activists have urged the government not to go ahead with the proposed amendments to the Rights of Persons with Disabilities Act, 2016 to decriminalize minor offences, saying these will nullify the "little achievements" gained over the years and negatively impact people with disabilities. On 1 July 2020, the Ministry of Social Justice and Empowerment sent a proposal to seven NGOs proposing that penal provisions under Sections 89, 92 and 93 of the Act be amended. This move was slammed by various activists and disability population declaring such a move to be anti-disability approach.

In a major victory for disability rights groups, the government has decided not to go ahead with the proposed amendments to the Rights of Persons with Disabilities Act. The order of the Ministry of Social Justice and Empowerment stated that- Keeping in view the overall sentiments of the majority of stakeholders, the Department is now of the considered view, that going ahead with the proposed amendment for compounding of offences may not be in the interest of persons with disabilities. Therefore, it has been decided by the Department that there is sufficient ground to close the consultation process and not to pursue the proposed amendment to the RPwD Act, 2016.

It becomes quite important for us to understand the Disability Rights scenario in a Nation like India which comprises of 21 million disabled population according to the 2001 census which obviously have taken a high spike by 2020.

INTRODUCTION

The term 'Disability' can be defined as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. According to the World Health Organization, Disability is defined as a restriction or lack of ability to perform activities in the manner or which within the range considered normal for human beings.

In India, the Rights of Persons with disabilities (RPWD) Bill was passed by both the houses -Lok Sabha and Rajya Sabha which received the assent of the President of India on 27^thDecemeber, 2016 and finally became an act known as the Rights of Persons with disabilities Act, 2016 which replaced the Persons with Disabilities (PWD) Act, 1995 which was based on the medical perspective of disability which considered disability as a consequence of impairment. This new set of legislation bought a new dimension in the law governing the rights of the disabled population in India. The disability which is viewed in this legislation is more than mere disability caused as a consequence of impairment but disability now also considers a social phenomenon. In the RPWD Act, 2016, the list of disabilities has been expanded from 7 to 21 conditions which show the effectiveness of this new legislation. The preamble of this act clearly states its aim in upholding the dignity of every person with disability in the society and prevent from any forms of discrimination. This act aims in facilitating full acceptance of people with disability and ensuring full participation and inclusion of such persons in the society. This act contains 17 chapters with 102 sections. This new legislation lays complete emphasis on the right to equality and opportunity, right to inherit and own property, right to home and family and reproductive rights for the disabled persons. Unlike the 1995 Act, this new Act brings about a new ray onto the rights of the disabled in India. The Rights of Persons with Disabilities Act, 2016 was enacted under Article 253 of the Constitution of India with item no. 13 of the Union List. This legislation was a much need act as there was no comprehensive law that could define and implement rights of the persons with disabilities in the country.

SECTIONS THAT WERE TO BE AMENDED (CHAPTER XVI OF THE RPwD ACT, 2016)

Section 89 states that any person who contravenes any of the provisions of this Act shall be punishable with fine which may extend to ten thousand rupees and for any subsequent contravention with fine which shall not be less than fifty thousand but which may extend to five lakh rupees.
Section 92 provides for punishments for offences of atrocities. The punishments under this provision are –

The act of speaking to a person with disability with disrespect with the intention of making him/her feel ashamed and injuring his/her dignity in a place within public view.
A physical attack or using force on a person with disability with the intention to cause shame or disgrace, the act of physically harassing a woman with the intention of insulting her.
Having control over a person with disability and denying that person food or fluids out of one’s own free will or with full knowledge.
Being in a position of power and being able to influence the will of a child or woman with disability and using that position to exploit him/her sexually.
Voluntarily causing injuries to any limb or sense or damaging any supporting device of a person with disability.
Performing a medical procedure or directing that a medical procedure be performed on a woman for termination of pregnancy without her express agreement to the process.
People such offences shall be punishable with imprisonment for a term between six months to five years and with fine.

Section 93 deals in punishment for failure to furnish information. Any person who has the duty to provide information or a statement or answer a question or produce a book, account or other documents under this Act or as per any order or direction made under the Act must do so and if he/she either fails or refuses to provide the information or document he/she shall be guilty of an offence and shall be punishable with a fine extending up to Rs 25,000/. If a person continues to refuse the sharing of the information a further fine will be imposed up to the maximum amount of Rs 1000 for each day of the refusal after the first day of the order of punishment or a fine.

BRIEF BACKGROUND OF THE RIGHTS OF PERSONS WITH DISABILITIES IN INDIA

In 2007, India signed and ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCPRD). The UNCRPD is an international human rights treaty of the United Nations which intends to protect the Rights and Dignity of Persons with disabilities. The parties which signed and ratified this convention is required to protect, promote and ensure the full enjoyment of human rights by persons with disabilities and to promote an environment which is safe and secured for them. The UN Charter proclaims that inherent dignity and equal rights of all members is the foundation of freedom and justice in the society. The Convention on the Rights of Persons with disabilities deals with matters such as general principles on the basis of which the rights of the disabled people are protected and promoted. It provides obligations that have been undertaken by the State parties to adopt measures to ensure equality for the disabled people.

Before the Rights of Persons with Disabilities Act, 2016, India enacted its first legislation long back in 1996 known as the Persons with Disabilities Act, 1995 which had come into enforcement on 7^th Feb, 1996. It was a significant step which ensured equal opportunities for the people with disabilities and their full participation in the nation building. The Act provided both preventive and promotional aspects of rehabilitation like Education, Employment, Vocational Training, Reservation, etc in order to encourage persons with disabilities to look forward. The Supreme Court and High Courts across India took landmark judgments in the favor of persons with disabilities in India providing them with equal representation and equal opportunity for them to grow and encouraging them in participating in various competitive activities. This legislation was implemented effectively by the judiciary and that many cases were given mandate in favor of the persons with disabilities.

Few Landmark cases prior to RPWD Act, 2016

In the case of Government of India v Ravi Prakash Gupta, the respondent was a visually challenged person who appeared for the civil services examination conducted by the UPSC and was declared successful. However, he was not given an appointment even though he was at Sl. No. 5 in the merit list of visually impaired candidates. The respondent approached the Central Administrative Tribunal which refused his application and thereafter the respondent approached the high court. The high court directed the government to accommodate the Respondent in the merit list, against which the state filed an appeal in the Supreme Court. The state contended that since the post for which the respondent was applying was not identified for persons with disabilities and therefore not reserved for them, the government could not make reservations in the same. The Supreme Court refused the state government’s contention that identification of jobs was a pre-requisite for reservation and appointment under section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The legislature never intended the provisions of section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. [1]
Deaf Employees Welfare Association v Union of India, a writ petition was filed seeking a writ of Mandamus directing the Central and State governments to grant equal transport allowance to its government employees suffering from hearing impairment as given to the blind and other disabled government employees. The allowance given to the hearing impaired employees was lower than the allowance of other employees with disabilities. The Supreme Court allowed the petition and directed the respondents to grant transport allowance to hearing impaired persons also on par with blind and other employees with disabilities.[2]
In the case of Suchita Srivastava v. Chandigarh Administration, the Supreme Court took regard of the reproductive rights of a woman with mental retardation residing at a government welfare institution in Chandigarh who became pregnant due to a rape by an in-house staff and who wanted to keep the baby. The Chandigarh Administration filed a petition before the high court seeking permission to terminate her pregnancy under the Medical Termination of Pregnancy Act, 1971 on the ground that she was not capable of carrying on with pregnancy and would not be able to look after a child. Although she was found that she expressed her will to keep her child, the high court directed termination. The woman through an amicus appealed before the Supreme Court. Supreme Court clearly held that the MTP Act required the consent of a mentally retarded woman for termination of pregnancy. Following this, the Court concluded that the Appellant was mentally retarded, had not consented to the termination of her pregnancy and in fact, had expressed her willingness to bear the child. Therefore it could not permit the termination of her pregnancy.[3]

DISABILITY RIGHTS IN INDIA - A CONSTITUTIONAL PERSPECTIVE

The Constitution of India is premised on the principle of social justice and human rights. The Preamble, the Directive principle of State Policy and the Fundamental Rights enshrined in the Constitution, stand testimony to the commitment of the State to its people. The Constitution of India does not specifically prescribe discrimination on the ground of disability, but it does contain non-discriminatory provisions that guarantee equality and equal opportunities for citizens as in Articles 14 and 16. Few of the most important constitutional cases throwing light upon the rights of persons with disabilities in India are –

In the case of National Federation of Blind v. Union Public Service Commission, a Writ petition was filed against discrimination of visually impaired persons in competing for the coveted civil services of the country, and for the government to be directed to permit otherwise qualified blind candidates to appear in the selection examination. The Supreme Court not only allowed the petition, but also directed the government to allow them to write the examination in Braille or with the help of a scribe. It is under this Constitutional mandate of equality that even before the disability statutes were passed, many persons with disabilities, their organizations and petitioners in public interest successfully approached the Supreme Court and High Courts in the country for their right to equality and right against arbitrary discrimination.[4]
The Mandal verdict is a milestone for the persons with disabilities in India. In the case of Indra Sawhney Etc. v. Union Of India And Others, Etc, an application was filed by the National Federation of Blind. The prominent question raised was whether backward classes included the person with disabilities or not. The majority judgment advocated that although Articles 14, 15(1) and 16 did include within its scope the persons with disabilities, yet the Constitutional spirit permitted Articles 14, 15 and 16 to make reservations in favour of the persons with disabilities. Even the dissenting judges agreed and upheld the rights of the persons with disabilities.[5]
In the case of Dhawal S. Chotai v. Union of India & Ors, of time relaxation for written examination, the petitioner was a person with cerebral palsy who, despite having difficulties with functioning of bones, muscles and joints and also communication skills, had completed his graduation in commerce and had also passed the examination for the foundation course for the Chartered Accountants examination. Further, he wanted to appear for the Intermediate Examination, for which he made a representation asking for three hours extra time in the examination. The respondent institution only granted him extra half an hour. The High Court directed the respondent institution to permit the petitioner to write the particular examination and all the future examinations for the Chartered Accountants course with extra three hours. The institution was also directed to provide all cooperation to the petitioner, in continuing with the examination for the three extra hours.[6]

COMPARISON BETWEEN PWD ACT, 1996 AND RPWD ACT,2016

The Definition in the Persons with Disabilities Act, 1995 doesn’t cover a proper set of definitions however the new legislation Rights of Persons with Disabilities Act, 2016 defines various terms like discrimination, barrier, caregiver, person with benchmark disability, rehabilitation and so on.
The number of disabilities has increased from 7 to 21 and the government is allowed to add more if found feasible. This shows the effective mechanism of the legislation which is comprehensive and transparent and dynamic in nature.
There is a whole new chapter based on the offences and penalties in the new legislation of 2016 which was not available in the previous legislation of 1995.
The Rights and Entitlements mentioned in the previous legislation was fewer in number while the new legislation of 2016 mentions a whole new set of rights with special mention of women, and children, legal capacity being explained , with better rules on ensuring accessibility to vote, right to education, job reservation etc.
The definition of mental illness in the previous legislation was defined in a narrow manner while the new legislation gives a comprehensive definition of the term mental illness.
Reservation at workplace in the Pwd Act, 1995 was 3% in every establishment while the new legislation i.e., the RPWD Act, 2016 provides 4% reservation in government institutions.

CRITICAL ANALYSIS OF THE RPWD ACT, 2016

The Rights of Persons with Disabilities Act, 2016 is considered as a comprehensive and a broad legislation which has brought a big change in the lives of persons with disabilities in India. The provisions which were lacking in the Persons with Disabilities Act, 1995 is taken into consideration while preparing this whole new set of law. This legislation gave a vast ambit to include 21 disabilities which was merely 7 in the previous legislation which shows how comprehensive it is in nature. The government is given the power to add more disabilities if found feasible shows the transparency of the act. The inclusion of definitions like discrimination, caregiver, and rehabilitation gives us an overview of how this new legislation will bring about changes and will reduce the growing discrimination against people with disabilities. There is a whole big chapter talking about the rights and opportunities which this new legislation is going to help encourage the persons with disabilities. Making special references like that of the rights of women and children with disabilities is a notable mention here. We are aware of the growing atrocities and abuse against women in the society today and women who are mentally and physically not normal in nature is more prone to such evil incidents. Also children with disability face trouble in getting admission in a school because of his/her disability. Such points were taken into consideration by the makers of this new legislation and tried to provide a law which will lay emphasis on the rights of women and children with disabilities so as to ensure that they can enjoy their rights equally with others. The reservation policy of 4% in government jobs is a significant provision of this act which shows the government making efforts in bringing people with disabilities to come forward and help in the nation building. Also the mention of inclusive education is noteworthy here as it helps children with disabilities to engage in learning process as equal as others who are not considered to be disabled. The Act asking teachers and institutions to acquire effective teaching learning methods for the disabled students is also a good effective step by the makers of this legislation. The setting up of advisory boards both at Central and State level is also a significant step by this legislation makers. This new legislation also includes a chapter in penalties that can be imposed against person who do wrong against the persons with disabilities and also against companies who refuses to comply with the provisions mentioned in this act and shows discrimination against employees who are disable or became disabling during the employment period.

Overall the new legislation is a boon for the people with disabilities to come forward and enhance themselves and look forward for making their future bright and secured. But every law comes with some or a few loopholes. This legislation is nowhere an exception. Few of its loopholes which I think should be noted are –

Exclusion of Psychiatrists who are clinicians related to management of mental behavior aspects from assessing and issuing a certificate of disability is a point which should be noted because the growing situation in India shows psychiatric disorders in a big toll and exclusion of the doctors treating them can have far reaching consequences as other medical practitioners may not be experienced in considering such disorder as a disability.
‘Mental illness’, by its nature, can remain invisible and go undetected. Mentally ill persons often are not aware of the actual nature of their illness and depend on their families for assistance. This difference between ‘mental illness’ and other disabilities needs highlighting so that provisions can be made in a more sensitive way such as the provision under s.38 which provides higher support to persons with disabilities.

FEW CASES ON RPWD ACT, 2016

In the case of Mohammed vs. Kerala State Road Transport Corporation, the petitioner was a driver in Kalpetta Depot, K.S.R.T.C., who approached the court challenging the order of the managing directing declining his request for category change. The petitioner has locomotor disability as his case was referred to the Appellate Medical Board by Ext. P7 proceedings. Thereafter, noting that the petitioner had acquired this disability while he was employed under a foreign employer, his request for category change was declined by the impugned proceedings. This order was challenged. The acquisition of disability while in service or outside cannot be a reason for declining such request. If the petitioner cannot drive the vehicle as he could have done otherwise, necessarily, K.S.R.T.C. should take a decision to allow category change by engaging him in any other duty other than as a driver. The Court held that K.S.R.T.C. needs to be concerned about safety of the passengers as well as that of public. K.S.R.T.C. cannot ignore the disability of the driver which may render him incapable of-driving the vehicle. The provisions of the Rights of Persons with Disabilities Act, 2016 do not discriminate an employee who acquired disability relatable to the employment or outside the employment. Section 20 of the Act mandates that there shall be no discrimination in employment. The category change should be allowed to such person in the interest of the public as well. Accordingly, the impugned order was set to be in violation of Sec.20 of RPWD, Act, 2016.[7]
In the case of Rajive Raturi v. Union of India, a petition was filed in public interest on behalf of the disabled persons for proper and adequate access to public places. The petition seeks to provide all accessibility requirements to meet the needs of visually disabled persons in respect of safe access to roads and transport facilities. This petition was filed in the year 2005 and the various measures taken by the Government has been monitored in the status report filed before the Court. The Appellant filed an affidavit in response of the status report depicting ten actions that remains to be done at the end of the Respondents. The Court held that 10 action points which were enumerated by the Petitioner, for providing proper access to public facilities to the persons suffering from visually disability, are now statutorily recognized under the Disabilities Act, 2016. The Legislature has casted a duty on the executive wing for making provisions in this behalf. This legal position was accepted by the Union of India in its affidavit. In this affidavit, the Respondent had itself mentioned various provisions under the Disabilities Act, 2016 which mandate the Respondents to make provisions for these facilities. Thus, it becomes a statutory obligation on the part of the Central Government as well as the State Governments to do the needful by the target dates. Though, Central Government had taken various measures, many State Governments have not responded at all.[8]

CONCLUSION CUM SUGGESTIONS

Our Constitution in considered to be one of the most comprehensive Constitution in the Word. The Constitution of India provides the fundamental right of “right to equality” under Article14. It is not always the judiciary to take into consideration of the right to equality and that we being a part of this nation have a duty in ensuring a safe place for the persons with disabilities to come forward and engage themselves in the nation building activities. It is our duty and responsibility being a prudent citizen of India to encourage persons with disabilities to help them come out of their fears of unacceptance and indulge in different activities that will help them grow as a skillful person. Few of the suggestions that we as citizens can follow for the persons with disabilities are –

There should be a separate student body in schools and colleges where the students with disabilities can come forward and accept leadership qualities so that they can further help other persons with disabilities by reaching out to them.
There should be special sports academy for persons with disabilities in every district so that the persons with disabilities can train themselves in different sports activities.
There should be special facilities for children with disabilities in schools by taking up inclusive education system.
The curriculum of children should also include a chapter on rights of disables under moral education so that children from an early age can learn how to respect persons with disability and should not discriminate them based on their disability.

[1] Government of India v Ravi Prakash Gupta, (2010) 7 SCC 626.

[2] Deaf Employees Welfare Association v. Union of India, Civil Petition 107 of 2011, decided on December 12, 2013.

[3] Suchita Srivastava v. Chandigarh Administration, 2009 (9) SCC 1.

[4] National Federation of Blind v. Union Public Service Commission, (1993) 2 SCC 411

[5] Indra Sawhney Etc. v. Union Of India And Others, Etc, 1992 Supp (3) SCC.

[6] Dhawal S. Chotai v. Union of India & Ors, AIR 2003 Bom 316.

[7] Mohammed vs. Kerala State Road Transport Corporation (04.11.2019 - KERHC): MANU/KE/5907/2019.

[8]Rajive Raturi vs. Union of India (UOI) and Ors. (15.12.2017 - SC) : MANU/SC/1618/2017