All persons of disability face barriers, oppression, inequality, lack of capacity and therefore make them less participatory in contributing to the avenues of society and economy inadvertently makes them unsung and a minority. Approximately 10% of the global population endures some form of disability, this figure roughly sums up to a total of one billion people of the world. 80% of these people live in developing countries, with primitive scope of health care system and infrastructure, in tangible terms; and negative social outlook, stigma and discountenance in intangible terms. So persons with disabilities not only inheritably face destitution in the organized structure but also grievous rejection. In order to that, is it not the responsibility of the government of the country, as a welfare state, to equip the marginalized community with legal rights and work towards changing the social status quo?
The Finance Ministry of India, proposed to decriminalise minor offences, in June 2020, in as many as 19 legislations. In line with that, the Department of Empowerment of Persons with Disabilities under the Ministry of Social Justice and Empowerment put out a proposal to amend section 89, 92 and 93 of the ”rights of persons with disability 2016” that essentially strips away their course of legal redressal against social discrimination and abuse.
What are the historical roots and origin of the Act?
RPwD is preceded by a former Indian Act for Person with Disability drafted in 1995. However, it is not up for debate that it demanded to be revamped as its purview was very small and was draconian and although it gave legal protection to a section of the community, it did not assure social security and justice to any with its limited provisions. It limited its demographic of persons with “disability” to people suffering from Blindness, low vision, leprosy-cured, hearing impairment, locomotors disability, mental retardation and mental illness.
After over a decade, the United Nations stimulated a conference “United Nations Convention on rights of disabled persons” in New York to deliberate upon the right of persons with disability. India was one of the most prominent members to draft the treaty and a major signatory. However, the act of 1995 was not capable of ratifying it. To keep in lines with the merits of the treaty, the ministry of social justice and empowerment under the cabinet secretary Thawar C.H. introduced the “Rights of persons with disability” the lower house of the Indian Parliament on February 2016 and it was passed by the Rajya Sabha on December 30th, 2016.
Everything you need to know about this act:
Opposing to PwD, this act seeks to be more holistic, progressive and inclusive. It has additional fourteen conditions to the pre- existing seven, including, much welcomed by the community -the victims of acid attack and Parkinson’s disease.
The act declares that only those persons with at least 40% of disability will be entitled to benefits like state funds for subsides, reservation in state school and jobs, etc. The act also enforces upon all state run operations must have disable- friendly infrastructure, including staff. Although, I personally appreciate the objective and narrative of this obligation, it is also to be noted that enforcing legal and financial responsibility and social accountability over state infrastructure such as municipalities is only in the state list. Such enforcement without the special reserved process of taking up a state matter is grossly acting outside the jurisdiction of the central government and reflects upon the weak co- operative fabric of the government.
It should also be added that the act mentions the spending and installation of several amenities for the disabled, however, cites no viable financial resources which makes one ponder about the validity of the operation.
In addition, this act also introduces the novel avenue of plenary guardianship (legally immune to take all decisions for the well- being of the disabled on the behalf of the disabled) and limited guardianship (legally authorized only to take decisions regarding certain subject matter with controlled consequences)
This act, as drafted, acknowledges the social inequality, treatment meted and stigma surrounding the capabilities of disabled persons. Section 89, 92 and 93 prescribes punishment for ill- treatment and atrocities in verbal physical form that could attract fine from ten thousand upto five lakh and/or imprisonment up to six months for the violation of the act.
Why did the government want to amend this act?
In late June 2020, the Ministry of Social Justice and Empowerment wrote to seven selected NGOs, stating the need to dilute the discrimination clauses through a letter titled “Decriminalisation of Minor Offences for Improving Business Sentiment and Unclogging Court Processes – Amendment in RPwD Act, 2016.” It appeared on the Ministry’s website later with a time of 10 days for feedback.
The letter stated that decriminalisation of minor offences is one of the thrust areas of the government. The risk of imprisonment for actions or omissions that aren’t necessarily fraudulent or the outcome of malacious intent is a big hurdle in attracting investments. The ensuing uncertainty in legal processes and the time taken for resolution in the courts hurts ease of doing business. Criminal penalties including imprisonment for minor offences act as deterrents, and this are perceived as one of the major reasons impacting business sentiment and hindering investments both from domestic and foreign investors.
The ministry proposed to amend the act with a section “95A” which will essentially give the chief or state commissioner to withdraw cases at the consent of the aggrieved party.
This power, given to somebody outside the community sought to invalidate and nullify the sufferings of a disable person when acted upon or intends to. This amendment reinforces the narrative of equating disability with lack of capability by taking away the power to opt legal recourse. Oppression is not subjective to be at the discretion of an authoritative person, to decide if deserving of justice and to believe otherwise is thinking from a place of privilege. It was in the rise of discrimination, which section 89 of this act, not very long ago was that the government accorded to ensure social and legal acceptability is now seeking to withdraw legal assurance and implicitly reward and build a systematic social discrimination against disability.
The protruding objective of the government to propose this amendment was to make the Indian economy more suitable and attractive to investors, especially the foreign investors. Owing to the India- China political stand offs with the background linings of economic gains, India is trying to mark a move by decriminalizing apparent ‘minor’ offences to make investors less hesitant with legal hassles.
However, is compromising on the very existence of a marginalised community and changing the legal status quo whilst damaging the social nature to serve the economic needs and comfort the ones outside the country for the sole purpose of leap through on a geo- political conflict, worth it?
In a joint statement, around 125 disability rights organisations, civil society organisations and activists said they unequivocally register their strong protest against the proposal, by flooding the authorities with letters, mails and online activism in the form of #SaveTheRPDA on twitter majorly reflecting upon the viability and effectiveness of online means of protest and activism, which can be backed by the success of several social and legal movements. In my personal opinion, regardless of the accomplishment of the legal objective of the movement, online activism in its nature in itself makes the society better informed and more inclusive as a whole.
We, as a society, are collectively responsible for acknowledging and glorifying how the disabled community fought against a legislative halt in the middle of a pandemic- and won.
-Vriti Singhvee
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