Rights of people with disabilities: Another attack on people with disabilities

Ever since the Covid-19 crisis began, it has been repeatedly argued that persons with disabilities (PwDs) are particularly vulnerable to contracting the virus and more prone to succumbing to the implications of the pandemic, the lockdown and other policies for the able.

Just as disability rights activists were pointing out the exclusionary nature of the pandemic response, the State has struck another blow against the Rights of Persons with Disabilities (RPwD) Act.

The Department of Empowerment of Persons with Disabilities (DEPwD) and the Ministry of Social Justice and Empowerment (MSJE) have sought suggestions and comments, from a select few organisations, on an amendment to decriminalise offences mentioned in Sections 89, 92 and 93 of the RPwD Act.

Section 89 provides for a fine of Rs 10,000 if one contravenes the Act once and Rs 50,000 to Rs 5 lakh in case of repeated contraventions; Section 92 provides for a punishment of six months, which can go up to five years, for insulting or humiliating a PwD in public view; Section 93 provides for a fine of Rs 25,000 in case someone refuses to furnish information.

The DEPwD wishes to add another provision, Section 95A, as per which all the aforementioned offences can be compounded either before or after the institution of proceedings. This can be done by the chief commissioner for PwDs or state commissioner for PwDs after obtaining the consent of the aggrieved person. It further says that if any of these offences are compounded, the offender can be released if they are in custody and the proceedings dropped thereafter.

The RPwD Act was considered to be a rights-based law that could salvage PwDs who had been denied equal opportunities in employment and education. One of the most celebrated features of the Act was that apart from obligating the appropriate government to provide reservations in government jobs and educational institutions, provide accessible infrastructure and conducive environment for PwDs and generally facilitate their growth and inclusion, it also imposed certain obligations on private entities, such as creating equal opportunity policies, prohibiting discrimination and providing for reasonable accommodation. Given this, nullifying Section 89, which provides for punishment if one contravenes the provisions of the Act, effectively nullifies the Act itself.

As it is, more than half the states have not even notified the Act, 12 out of 22 National Law Universities do not provide for 5% reservations for PwDs as mandated by Section 32, only nine states have advisory boards on disability, mandated by Section 72, and only six states have made some progress with regard to maintaining state funds for disability, mandated by Section 88. In the private sector, statutory obligations, like prohibiting discrimination and providing for reasonable accommodation, are seldom taken seriously. This can be easily gauged from the presence of PwDs in India’s top firms, which is as low as 0.5%.

In such a situation, if the penalty for contravening the provisions of the Act is removed altogether, governments and private entities need not bother about punishment for violating the law at all, thus negating the rights provided to PwDs.

Allowing for the compounding of Section 92 would be detrimental to the disabled community. The usage of the expression “in public view” restricts the scope of the provision, thereby only punishing the offender if they insult or intimidate the victim in public and not in private. Such a provision goes against the spirit of the Act, which is to promote the rights and dignity of PwDs.

Thus, Section 89 is already limited in its application and somewhat goes against the spirit of the Act. Now, diluting the provision further by making it compoundable practically allows private and government players to commit atrocities against PwDs.

What is particularly peculiar about the suggestions of the DEPwD and MSJE is that the National Crime Records Bureau has never published any specific data pertaining to atrocities against PwDs. Thus nullifying the charging provision for atrocities against PwDs without any concrete empirical data and just assuming that such atrocities are non-existent or minuscule in number and thereby can be effectively decriminalised is somewhat illogical and farfetched on the part of the State.

Further, the proposed amendment, as per which the offences can be compounded with the consent of the aggrieved PwD, is detrimental because atrocities against PwDs or contravention of other substantive provisions of the Act which ensure the dignity and rights of the PwDs, are such grave offences that the offender ought not to be allowed to go scott-free.

Moreover, obtaining the “consent of the aggrieved person” might not be that difficult when the victim is a PwD with limited resources and the perpetrator is the State or a private entity with enormous economic capital and muscle power. Therefore, it can be argued that the proposal to add Section 95A is an attempt by the ablest State to render the Act toothless. If this amendment gets legal effect, it would certainly increase the “ease of doing business” at the cost of the rights of the PwDs, who are equal rights-holders. But it can be said with utmost certainty that such a trade-off would be constitutionally impermissible.

The idea of bringing in Section 95A should be dropped and the State needs to be mindful that law-making for the disabled needs to be consultative in nature. We cannot replicate the UN Convention on Rights of People with Disabilities (CRPD) model unless we understand that nothing about the PwDs can be done without inputs from PwDs themselves.

(The writer is a student at NLSIU, Bengaluru)