A CLOSER LOOK: RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016

“I have not been handicapped by my condition. I am physically challenged and differently able.” – Janet Barnes – recognised as the longest living quadriplegic incomplete (Guinness World Records)

Introduction

According to the United Nations factsheet, the world’s most significant minority is that of differently-abled persons. India, with its massive population, is home to a vast number of differently-abled people. Along with numerous inspirational stories are also the stories of woe about the poor infrastructure facilities, inadequate laws and unfathomable obstacles. Not only are persons with disabilities (PWD) discriminated against, but they also face innumerable hardships and struggle to seek acceptance in society. Considering kids with disabilities as children with special needs was seen as an inclusive programme, but rather, it has led to their isolation. The main argument against recognising them as people with special needs and providing them provisions for necessities is that they cannot be protected forever. However, the legislative protections granted to them are also insufficient considering the increase in the number of differently-abled people over the years. Another issue that needs to be addressed immediately is the poverty associated with the plight of these individuals. 

Impact of COVID 19

Against the COVID-19 pandemic, India went into a lockdown, which limited the movement of the entire country. Persons with disabilities have been one of the worst hit by the lockdown in the country; since they have to visit hospitals and rehabilitation centres frequently. Additionally, they depend on others for their day-to-day activities, and social-distancing norms and lockdown instructions have proven difficult for them. Under the National Social Assistance Programme (NSAP), the Central government has agreed to provide three months’ pension to senior citizens and the disabled. It is advisable that during such times, stranded PWDs be provided rehabilitation. They must also be provided with adequate facilities since the legislation is insufficient during such times. In such unprecedented times, it is imperative for us to give equal importance to the healthcare of the disabled. WHO has also confirmed that PWDs might be at greater risk of contraction of the virus as their accessibility to resources and information has drastically decreased due to the lockdown. Under RPWD Act, departments in States and Union territories have been mandated to disseminate information on COVID-19 to people with disabilities. 

The pandemic in the country has proven to be more detrimental to the vulnerable sections of the society, one of which is the differently-abled. The alarming rate at which it has hit this section of the society calls for better implementation of the existing laws. 

Legislative progress – RPWD Act, 2016

After a four-decade-long battle, the government finally passed the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Later in 2016, the new legislation, namely, the Rights of Persons with Disabilities Act was passed by Parliament. The Rights of Persons with Disabilities Act, 2016 has 21 categories under the meaning of disability, is more social and friendly and has increased the cap on reservations in government jobs for the differently-abled.

The old Act needed to be revised because India is a signatory to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) since the year 2007. The RPWD Act was enacted in December 2016 and aims to promote and protect the rights of PWD in different aspects of their life. The Act mandates establishments to ensure infrastructure and services. Section 13 of the Act ensures that all persons with disabilities enjoy legal capacity on an equal basis[1]. Section 14 enables a limited guardian to take legally binding decisions on his behalf of the person with a disability as may be prescribed by the State Government, and Section 17 has provisions for the facilitation of education for the differently-abled. 

Some of the changes brought about by the PWD Act are inclusive provisions like the right to education to all, responsibility upon the government to ensure equal treatment of PWD and increase in the percentage of reserved seats in government jobs and higher education. The Act also talks of setting up of Central and State Advisory Boards on Disability, Grievance Redressal Agencies, and creation of State and National Funds for PWD. Under the Act, special courts will be set up to address the concerns of PWDs. The Act penalises the offences committed against PWDs with imprisonment or fine or both. Moreover, the Act also ensures access to public buildings and provides for the grant of guardianship by District Court under which there will be a joint decision making process between the guardian and the persons with disabilities.[2]

Issues with the RPWD Act

The Rights to PWD Act, 2016 has several pitfalls despite its advantages since it still does not provide a comprehensive cover for disabilities. Further, there is no clarity with respect to its implementation, grievance redressal mechanism and training for PWD. Society’s attitude needs to change, and private establishments must be given some incentives to foster inclusivity. RPWD Act, 2016 fails to recognise the family as an essential asset in the management of mental health of PWD[3]. The terrible State of affairs in the country with respect to mental health has not been kept in mind while drafting the legislation. The legislation includes disability as a result of attitudinal barriers which hinders active participation in society on an equal basis[4]

In addition to this, all mental disorders have not been recognised, and the Act is insufficient with respect to the provisions related to them. The Act mandates 4% reservation for PWDs in government establishments under different heads, one of which is mental illness. Recognising the changing mental functioning of the persons with mental illness is of importance to provide for legal guardianship. At the same time, the Act is silent on the implementation of the provisions mentioned, nor does it cater to the support system being built in the country. For people who depend on others for a living, not receiving help can be challenging. Additionally, during such unprecedented times of COVID-19, mental health of PWDs is put at greater risk. 

The RPWD Act, 2016, makes a provision for the issue of temporary disability certificates in certain situations. The certificate is assumed to have value for 5 years, but it is not widely known, and such certificates have not been honoured, and patients are denied their rights. Additionally, there are also irregularities between the Act and the regulations. All shortcomings considered, ultimately the RPWD Act is a rights-based legislation, the State governments will have to take active steps to ensure its success. 

The Central government needs to bring out more social schemes and legal policies, which would allow flexible working hours for the disabled so that they get ample time to take care of their health and well-being. It should be made mandatory for the corporate sectors to recognise the capability of the disabled. The disability law mandates the inclusion of PWDs across sectors; however, there must be special rules in place to make sure they get all the rewards and opportunities, like paid leave and equal pay. The objectives of the RPWD Act, 2016 can only be achieved if the government takes proactive measures. There must also be systems in place to ensure PWDs have access to transportation facilities, the right to vote and opportunities to avail and excel at fields like sports. Public places like hospitals, theatres, restaurants must be made more accessible to PWDs with the necessary infrastructure in place to facilitate their access. Further, educational institutions should be provided with some incentives so that students with disabilities are not denied their right to education. 

Conclusion

India, being a diverse country, it is imperative to educate the stakeholders so that they can take initiatives with the State and address the concerns of persons with disabilities. They require medicines, aids and other equipment that might be out of their reach. Poverty and lack of resources are other hindrances to the implementation of the legislation on a large-scale. There should include an effective plan, and its implementation should be monitored. Hence, ensuring they have special rights and making them feel included might still be a challenge. The irregularities in the Act must be addressed at its earliest. The Act nevertheless recognises the human rights of people with disabilities and has provisions to ensure they are treated equally and with respect. We should remember not to isolate them when we recognise them as people with special needs.



[1] Rights of Persons with Disabilities Act, 2016, No. 49, Acts of Parliament, 2016 (India).

[2] Supra, note 1. 

[3] Kala A. Time to face new realities; mental health care bill-2013. Indian J Psychiatry. 2013;55:216–9.

[4] Lakshmi Narayana N (2012). Rights of Persons with Disabilities–Challenges & Opportunities for Inclusion. Cauvery Books Agency. Trichy. ISBN No: 978-81- 909199-4-4.

 

TS SNEHA


Author
TS Sneha, NUALS, Kochi  

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