Draft Provisions for RPWD Act, 2016

Recently, the Department for Empowerment for Persons with Disabilities of Ministry of Social Justice and Empowerment dispatched invites for recommendation to seven select organisations, in pursuance of their feedback regarding its proposal to revise the penal provisions in the Rights of Persons with Disability Act, 2016 (the “Act”).

The manner in which the representatives of the disability sector were chosen was perceived as discriminatory and it was challenged by the National Platform for the Rights of the Disabled (NPRD).  The Act acknowledges 21 forms of disability, but comments from delegates of just seven select disability organisations were invited. The organisations were all based in Delhi which goes to show the exclusionary nature of the establishment as regards to the suggestions. However, the draft was shared on the departmental website for general feedback, afterwards. The deadline for the recommendations was set to July 10. Owing to the indefatigable efforts of the disability rights activists and NGOs, the proposed changes in the legislature were ultimately shelved.

The modus operandi of the government to put forth its proposal, encountered tangible disapprobation and discomfiture. The NPRD issued out a communiqué at vehement variance with the amendments which was backed by 467 disability rights groups, activists and people. Multitudes of personal petitions were also sent to the department, besides articles and social media crusades, which vociferously controverted the amendments.

THE SECTIONS IN FOCUS

The sections of RPwD Act, 2016, at the centre of attention, are as follows:

Section 89 makes provisions for the contravention of the terms of the Act or any directives or regulations provided thereunder. If someone is found in violation of any of terms scheduled in the act, he shall be liable to pay a fine which can be extended to ten thousand rupees on committal of the first offence and for any subsequent transgression with fine, the quantum of which shall not be set lower than fifty thousand rupees which can be extended to five lakh rupees..

Section 92 of the act sets the punishment for committal of acts of cruelty against persons with disability. The imprisonment provided under the statute in such atrocities is 6 months, which can be extended to 5 years with or without fine. 

The acts of cruelty stated are (a) deliberately insulting or intimidating with the purpose to mortify within public view, (b) attacking with the intention to humiliate or outrage the modesty of a woman with a disability, (c) denying food and essential nutrition to a PwD deliberately, (d) sexually molesting a woman or child afflicted with any disability, (e) injuring, damaging or interfering with the employment of any limb, sense or any auxillary device of a PWD, on one’s own volition and (f) performing/conducting/directing any medical treatment on a woman with disability which culminates or has the possibility to lead to her miscarriage, in absence of her or her guardian’s communicated consent, and also in absence of the advice of a registered medical professional,

Section 93 lays down punishment for failure to furnish information on anyone who’s bound by law to present any book, exposition ,documents, particulars or anything that’s mentioned thereunder. The offence shall be punishable with fine which can be extendable to twenty-five thousand rupees as regards to each offence. In event of subsisting failure or refusal to comply, the fine may be further extended to one thousand rupees for each day of continued failure or refusal after the date of original order stipulating the punishment of fine. 

By way of its draft proposal, the DEPwD had tabled the proposal to advance a new section ’95A’ in the existing framework of the law to substantiate that any violative deed which comes under the ambit of sections (89, 92 (a) and 93), can be considered as compoundable offences. The offences can be compounded by the chief commissioner for PwD or the state commissioner for PwD. The same can’t be done without the consent of the person with disability who has undergone mental distress advented by the perpetration of such action. The proceedings shall be carried out as scheduled by the Central Government through notification.

ANALYSING THE PROPOSED AMENDMENTS

Invalidating Section 89 of the RPwD Act, which sets provisions for punishments and penalties in event of its transgression, would’ve rendered the statute toothless as on both public and private firmaments, its statutory terms were not being followed to its spirit.

In the private sector, the state of statutory provisions like prohibition of discrimination and facilitation of inclusion of the PWD employees provide for a pitiable statistic as the participation of the PWDs in the top Indian firms is as minuscule as 0.5%

In addition, providing for compounding the offences that come under Section 92 (punishment for atrocities against PWDs in public view) would have been highly detrimental to the interests of the disabled.

What would have made the approval of the proposed amendments more unfortunate was the fact that the section, on the enforcement of the RPWD Act, 2016, brought into fruition the terms of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which was ratified by India in 2007.

Section 93 had been brought to existence to make certain the spirit of answerability of the legally invested authority as it authorises pecuniary fines to the limit of Rs. 25,000 on the occurrence of the first offence and Rs. 1,000 for each day, of subsisting inability to make provisions for any relevant modes of information under the Act. It would have led to an unfortunate state of affairs if the proposals had been approved. The Disability Commissioners would have been in charge of compounding the transgressions of the Act’s provisions, at a time when many states have not even made appointments of the State Commissioners and at the Central level, the post is unoccupied since a span of over two years. Currently, lawsuits concerning the RPwD Act are heard by special courts at the district echelon. 

The actuality of the failure of many states to create a legal framework, in spite of the Act being enforced since 2016, notwithstanding the Act setting a six-month deadline, aggravates the palpable indifference of the administration across hierarchies.

Through the rationale of the plea of compounding minor offences, the intrinsic aim of the RPwD Act would have been changed in an acute manner and was sought to be drastically altered. The disregard of the erstwhile Persons with Disabilities Act, 1995 was owed to the dearth of penalty clauses.

The reasoning put forth in defence of the proposed changes were that they would be conducive for an investment centric atmosphere but it turned out the RPwD Act was not included in the list of the 37 legislations as regards to which Indian industry lobby, Confederation of Indian Industry, was desirous of reforms in February this year. The laws were mainly concentrated in the financial sector. No less than 19 such statutes were subjected to the government’s proposal for reforms, and the same rationale of decriminalising the supposedly minor offences to facilitate the removal of deterrents that impact investments were employed.

It would have been highly laudable if the government had demonstrated a similar steadfastness in putting to effect the recommendations suggested by the UN Committee on the Rights of Persons with Disabilities. In September 2019, the UN Committee put forward, among other proposals to carry out the emendation of the ‘Indian Constitution to explicitly prohibit disability-based discrimination and repeal section 3.3 of the Rights of Persons with Disabilities Act 2016….’ The Indian Constitution’s citation was made as regards to Article 15(1) and 16(2), which, whilst specifying other grounds on which discrimination is forbidden, do not entail disability. Section 3(3) of the RPwD Act is a contentious segment which states, “No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.”

CONCLUSION

The creation of an economically conducive ecosystem cannot be done by jeopardising the rights of the marginalised which were secured after a protracted struggle. In the times of the COVID-19 pandemic, the disabled along with the general populace are struggling for their subsistence. The consequence of an ill-planned lockdown has led to large swathes of the working population being deprived of their sources of livelihood. It poses serious questions on the government’s intentions.

The proposals for amending the RPwD Act, 2016 have been rolled back through the persistent efforts of disability activists and NGOs. The necessity of solidarity and unity among all sections of the marginalised is paramount in strengthening their resistance. Therefore, their assemblage to intensify their crusade to reform the RPwD Act to see the back of its discrepancies, and execution of various statutory clauses in the Act, is indispensable.

 

Devarshi Singh


Author
Devarshi Singh, Government Law College, Mumbai  

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