The recently passed Rights of Persons with Disability Act, 2016, aims at real respect and inclusion for persons with disabilities in the mainstream society
Dr Prerna Malhotra &
Dr Vipin Malhotra
Disability is not a synonym to inability and it is not just which is visible. Moreover, disability is not a mere medical condition but also has social and intellectual dimensions. The nomenclature of disability has been varying with times from handicapped (Viklaang) to disabled (Divyaang). It has been moving on from the societal myths and beliefs that it is an outcome of previous Karmas to its acceptance as a part of diversity in the society.
As per 2011 census, the disabled population of India stands at 2.68 crores.The definition of Disability covered seven disabilities as per the Persons with Disabilities Act, 1995 whereas it has evolved and expanded in the Rights of Persons with Disability Act 2016, passed recently in December 2016, which covers 21 disabilities. In the 1995 Act, disability shielded the following conditions—blindness, low vision, hearing impaired, leprosy cured, locomotor disability, mental retardation and mental illness, whereas the RPWD Act, 2016 has widened the scope of conditions to be covered under the Act by including some for the first time under its ambit: blindness, low-vision, leprosy cured persons, hearing impairment (deaf and hard of hearing), locomotor disability, dwarfism, intellectual disability, mental illness, autism spectrum disorder, cerebral palsy, muscular dystrophy, chronic neurological conditions, specific learning disabilities, multiple sclerosis, speech and language disability, thalassemia hemophilia, sickle cell disease, multiple disabilities including deafness and blindness, acid attack victim, and parkinson’s disease.
Key features of the RPWD Act, 2016
Indian polity initiated affirmative action in the area of disability very late as compared to the positive steps taken by the State for other disadvantaged groups, especially caste and gender groups, though the Constitution of India clearly laid down the provisions of equality among different sections of the society. The provisions under the 7th Schedule of the Constitution have rendered at social security, special insurance, special schemes aimed at rehabilitation, social education, economic empowerment of persons with disability.
As the rights of disabled people got some voice at the United Nations and other international forums, India too had to make legal safeguards for empowerment of persons with disability. In the meeting held at Beijing from December 1 to 5, 1992 to launch Asia Pacific Decade of Disabled Persons (1992-2002), India, along with other participating Asian countries, adopted the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. This Proclamation made it mandatory for India to enact the Persons with Disabilities Act (Equal Opportunities, Protection of Rights and Full Participation) 1995.
In 2007, India ratified United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which mandated all the signatory states to make changes in their disability laws to tune in with the international law. This is how the Rights of Persons with Disabilities, Bill was introduced in the Rajya Sabha on February 7, 2014. The Bill was referred to the Standing Committee on Social Justice and Empowerment and after 109 Amendments, the 2014 Bill has become an Act now, published in the Gazette of India as the Rights of Persons with Disabilities Act, 2016, replacing the 21-year-old, Persons with Disability Act (Equal Opportunities, Protection of Rights and Full Participation) 1995.
The UNCRPD had laid down the following principles for empowerment of persons with disabilities:
(a) respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(c) full and effective participation and inclusion in society;
(d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) equality of opportunity;
(g) equality between men and women;
(h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
The RPWD Act, 2016 has been designed to fulfill these obligations of the UNCRPD and provide right to equality, non-discrimination, life with dignity and respect, utilising the integrity of persons with disabilities, and their reasonable accommodation in the society by creating conducive environment for rehabilitation and inclusion.
The RPWD Act 2016 was eagerly awaited by the disabled people, the policy-makers and the NGOs working in the area of disability since it was introduced in 2014. After incorporating suggestions of the stakeholders, related NGOs and other representative groups, it has been tried to bring a comprehensively wide Act which is dynamic and evolving and covers the maximum to fulfil the laid down principles of the Constitution of India and the international obligations like that of the UNCRPD.
Some critical areas of the 2016 Act, which require further specific attention while implementing the Act are the following:
The Central Government shall notify guidelines for assessing extent of specified disability in a person and shall designate persons having required qualifications and experience as certifying authority. Utmost care will have to be taken while designating experts for issuing certificates of disability. There is much scope for fraudulent people to misuse certificates as it happens with caste certificates too. The designated experts should be competent enough to handle the important responsibility. Moreover, the process of getting a disability certificate should not be too cumbersome.
The 2014 Bill had made a provision of imprisonment and fines for non-compliance of provisions but the 2016 Act has the word ‘Imprisonment’ removed which may make the implementation of the Act difficult. More judicial power to the Commissioner of Disabilities in the Centre and States can make it more effective in implementation. The grievance redressal system should be made stringent in cases of non-compliance of the provisions of the Act.
Special recruitment drives are being run but till date the mandatory 3 per cent posts mandated for reservation two decades ago (As per the PwD Act, 1995) in educational institutions and employment have not been fulfilled.
The disinterestedness of our
parliamentarians on disability issues is reflected through the fact that no
significant discussion took place on the Bill and it was passed in a single minute. There is also the fear like in other areas of affirmative action that the most abled of the category of the disabled persons shall get the maximum advantage of the laws and the most severe shall remain
unattended and uncared.
It is said that the worst thing about disability is that people see it before they see the person. See the person first and not the disability, focus on the abilities and help them blossom. Respect for uniqueness and abilities is the way to providing dignity and inclusion to the persons with disability or differently abled people. Negative stereotypes, society’s accumulated myths and fears about disabled people and disability work as a big hindrance, more impairing than the actual disabilities. No law can change mindset and attitudes and can make society accept disability as a variety and diversity. If more than 2 per cent of the population of the country is to be supported in being productive, safe and leading a dignified life, it is essential that recognition, acceptability and accommodation of the abilities of Divyaang Jan is done.
(Dr Prerna Malhotra teaches at Ram Lal Anand College, University of Delhi and Dr Vipin K Malhotra is Joint Secretary of National Association for the Blind)