ARE WE DISABLING THE ABLE – A CRITICAL ANALYSIS OF THE RPWD ACT, 2016

ARE WE DISABLING THE ABLE - A CRITICAL ANALYSIS OF THE RPWD ACT, 2016

ILE Legal Blog

14 May, 2022

Author – Philip John, Student at National University of Advanced Legal Studies, Kochi.

INTRODUCTION

The World Health Organization (WHO) and the World Bank published the first-ever World Report on disability titled “Disability Inclusion”, which stated that one billion people, or 15% of the world’s population, experience some form of disability. One-fifth of the estimated global total, or between 110 million and 190 million people, experience significant disabilities. Persons with disabilities are more likely to experience adverse socioeconomic outcomes such as less education, poorer health outcomes, lower levels of employment, and higher poverty rates. [1] Even though India enacted the Rights of Persons With Disabilities Act in 2016, there is a huge lacuna we need to fill when it comes to laws governing the Rights of Persons with Disabilities, especially in relation to the laws concerning Persons with Mental Illness and Disabled students. Even though we have enacted such legislation and taken such progressive steps towards their development, the taboo related to disability is still prevalent in various parts of our country. Can this Act prove to be a turning point for its beneficiaries to improve their living standards in society to change the mentality of the people towards them?

A GLIMMER OF HOPE

The RPWD Act, 2016 [2] is one of the most important Acts India has ever enacted to ensure the inclusion and upliftment of Persons with disabilities. As it is a comparatively new Act, there is a lack of reliable studies conducted on it. The lack of data about the actual number of disabled persons further hinders activists from defending and advocating for their protection. The lack of legislation ensuring special training and education for such people is also a matter of concern. This law is a small start in the right direction, but it will not be beneficial unless all states are advised to follow it. States must join in and issue rules in accordance with the Act as soon as possible. They are not only apathetic to people with impairments, but they are also depriving them of basic human rights by not doing so.

Just like their non-disabled friends, Persons with Disabilities are also entitled to protection from abuse, exploitation and neglect. To ensure this, the Indian Parliament passed The Rights of Persons with Disabilities Act, 2016, to fulfil its obligation to the United Nations Convention on the Rights of Persons with Disabilities, which India ratified in 2007.[3]  The Act replaced the existing Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.[4] Disabled persons are classified into two according to this Act – “Person with Benchmark Disability” and “Person with Disability”. “Person with benchmark disability” under Section 2 (r) of the act is defined as a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. “Person with disability” under Section 2(s) of the act is defined as a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others. The new legislation brought a glimmer of hope for our disabled citizens since it emphasised the need for reservation in employment and promotion along with giving new definitions to many of the vague terms, including what constitutes discrimination. Mental illness, autism spectrum disorder, cerebral palsy, muscular dystrophy, chronic neurological conditions, speech and language disability, thalassemia, haemophilia, sickle cell disease, multiple disabilities such as deaf-blindness, acid attack victims, and Parkinson’s disease were all added to the Act, which had previously been largely neglected. [5] It raised the number of recognised disabilities from 7 to 21 after the amendments. Furthermore, the Government has been given the authority to announce any additional specific disability group.

WHERE IT LACKS

However, this new Act was also plagued with inefficiencies. It includes measures for accessibility, reservations, and protection, as well as a goal of empowering people with disabilities. However, until the legislation is executed, it will have no effect on the lives of the disabled.

MENTAL ILLNESS

Though the Act provides an elaborate definition of mental illness and considers it a disability, the special needs of persons with mental illness (PMI) and their families have not been properly addressed. “Mental illness”, according to the Act, is defined as a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence. Under section 7(2) of the Act, an individual or registered organisation who or which has reason to believe that an act of abuse, violence, or exploitation has been committed, is being committed, or will be committed in the future against any person with Disability may report the incident to the local Executive Magistrate, who will take immediate action to stop or prevent the occurrence and issue appropriate orders to protect the PWD. And because of it’s vagueness, Section 7(2) of the Act may result in guardians or caretakers becoming less interested in taking care of the PMI[6]. Though originally intended to protect PWDs from acts of abuse and exploitation, it needs proper modifications before it is applied in cases of PMI. An enquiry based on a PIL filed by KR Raja of Madurai, revealed that the 47 Government-run mental institutions are not enough for a country like India with a population of 1.3 Billion. [7]

REASONABLE ACCOMMODATION

Reasonable Accommodation of PWD, modelled after the definition provided by UNCRPD, was yet another paltry ideology that it encompassed when it came to implementation. “Reasonable Accommodation” means necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others. The Act does not deal with standards to be stipulated when it comes to scribes and allotment of additional time, which again leaves them at the mercy of the examiner or institution to prescribe a standard for it. It also omits the integration of Assistive Technologies [8] as a part of Reasonable Accommodation, which can make the person self-reliant. The reluctance of the Ministry of Social Justice (MoSJ) to codify these guidelines related to special provisions for Examinations and Accessibility of PWDs has significantly slowed down the process. A comprehensive and codified set of guidelines that are legally enforceable by law is the solution to this problem. The proper scrutiny and tracking of funds allocated for the welfare of PWDs should be implemented.

THE WAY AHEAD

Society has always viewed disability with negativity. The people are considered as ‘Disabled’ rather than acknowledging them as ‘Differently Abled’. They are always seen as a patient. Right to Life is a constitutional right that must be ensured to all citizens for the development of a nation. Even though the RPWD Act has its own disadvantages, Acts like these provide new opportunities and hope for PWDs. These laws need to be implemented effectively in order to achieve the desired results. A transparent and proactive approach by the Government is the only solution to this conundrum.

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REFERENCES

[1] Disability Inclusion, The World Bank (2022), https://www.worldbank.org/en/topic/disability#1  (last visited Dec 2, 2021).

[2] The Right of Persons with Disabilities Bill, 2014, PRS Legislative Research (2015), https://prsindia.org/billtrack/the-right-of-persons-with-disabilities-bill-2014  (last visited Nov 14, 2021).

[3] ChoudharyLaxmi Narayan & Thomas John, The Rights of Persons with Disabilities Act, 2016: Does it address the needs of the persons with mental illness and their families, 59 Indian Journal of Psychiatry 17 (2017), https://doi.org/10.4103/psychiatry.IndianJPsychiatry_75_17  (last visited Nov 7, 2021).

[4] The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. 1995. , Acts of Parliament, 1995

[5] Shalini Nair, Disabilities Bill passed: New conditions, revised quota and a few concerns The Indian Express (2016), https://indianexpress.com/article/india/disability-bill-passed-parliament-revised-quota-conditions-reforms-4427364/ (last visited Dec 15, 2021).

[6] The Rights of Persons with Disability Act. 2016, Acts of Parliament, 2016

[7] K.R. Raja v. State of T.N., 2019 SCC OnLine Mad 28655 [8] Indumathi Rao & Surendra Shroff, Assistive Inclusive Technology for Learning Aicte-india.org (2013), https://www.aicte-india.org/sites/default/files/AT/Assistive%20technology%20for%20learning.pdf (last visited Nov 4, 2021).