Since the very beginning of the Covid-19 crisis, it has repeatedly been argued that persons with disabilities (PWDs) are particularly vulnerable to contracting the virus and therefore are more prone to succumb to the infection, apart from being more likely to suffer from the economic and social effects of the nationwide lockdown and other ablest policies.
While the disability rights activists were pointing out the exclusionary nature of India’s pandemic response, the state struck another blow on the celebrated Rights of Persons with Disabilities (RPWD), 2016, Act.
The department of empowerment of persons with disabilities or DEPWD and the Ministry of Social Justice and Empowerment (MSJE) have sought suggestions and comments on an amendment which is aimed at to decriminalise offences given in sections 89, 92 and 93 of the act.
Section 89 imposes a Rs.10,000 fine on those who contravene the act once and Rs.50,000 or Rs.5,00,000 for repeated contraventions. Section 92 provides for a punishment of six months which can go up to five years plus a fine against anyone who insults or humiliates persons with disabilities in public view. Section 93 provides for a fine of Rs.25,000 against someone who refuses to furnish legally mandated information.
The DEPWD wishes to add another provision, that is section 95A, as per which all the aforementioned offences can be compounded (or condoned) either before or after proceedings under the act begin. This can be done by the Chief Commissioner or State Commissioner for PWDs, after the consent of the aggrieved is secured. It further says that if any of these offences are compounded, the offender can be released if they are in custody and the proceedings can be dropped thereafter.
The RPWD Act is a rights-based legislation which, it was thought, could restore the dignity of PWDs who had been denied equal opportunities in employment and education. Some of the most celebrated features of the act are that it enjoins reservation of seats in government jobs and educational institutions, provides accessible infrastructure and a conducive environment for PWDs and generally facilitates their growth and inclusion. Importantly, this law also imposes certain obligations on private entities, such as creating equal opportunity policies, prohibiting discrimination and providing for reasonable accommodation.
Given all this, nullifying section 89 of the act, which provides for punishments and penalties for its contravention, is a very dangerous step, especially because its substantive provisions were not being taken at all seriously by both government and private entities.
This is clear from the fact that more than half the states have not even notified the act, twelve out of 22 National Law Universities do not provide for 5% reservations for PWDs (as mandated by section 32), only nine states have set up the state advisory boards on disability mandated by section 72 and only six states have made some progress with regard to maintaining state funds for disability (section 88).
In the private sector, the statutory obligations such as prohibiting discrimination and providing reasonable accommodation are seldom taken seriously. This can be easily gauged from how many PWDs hold jobs in the top firms in India: their participation is as low as 0.5%.
Now if the penalties are removed altogether, government and private entities would not be deterred from violating the act in any way. This will make all the rights given under the act redundant.
Further, allowing for the compounding of offences that fall under section 92 (punishment for atrocities against PWDs in public view) is highly detrimental to the interests of the disabled. The words “public view” restrict the scope of this section in any case. This means that privately or surreptitiously-committed offences—insults, intimidation, and so on—are already excluded under this law. This provision already violates the spirit and purpose of the act, which is to promote the rights and dignity of PWDs. Allowing for ablest or insensitive statements to be made or for atrocities to be committed in person adds an additional burden on PWDs, who are already weighed under by emotional or mental pressures due to infrastructure barriers and social discrimination.
Thus an already-limited provision that militates against the act is now being diluted further to practically allow private and government players to commit atrocities.
A peculiar aspect of the suggestions from the DEPWD and MSJE is that the NCRB has never published any specific data pertaining to atrocities against PWDs. Thus, the law is being amended without any concrete empirical data, based on just an assumption that such atrocities do not take place or are insignificant. To effectively decriminalise the penal provisions of an act that protects the PWDs is rather illogical on part of the state.
Further, the proposal to compound the offences with the “consent” of the aggrieved PWD does not take into account the gravity of the offences and the principle that such offenders should not be allowed to go scot-free. Worse, it also ignores how securing “consent” might not be 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, the proposal to add section 95A can be seen as 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. Such a trade-off would be constitutionally impermissible.
Even the method of notifying the amendment is problematic on many counts. The letter was sent out to seven disability rights organisations, arbitrarily selected, as the grounds for their selection have not been disclosed.
Consulting stakeholders is a critical step while framing inclusive policies. The lived experiences of PWDs cannot be understood by the able-bodied. The government, instead of choosing platforms to air its views, should notify the public at large and the disabled community in particular about such amendments and make the proposals accessible in all formats and multiple languages. But the DEPWD has created the amendments in English, thus failing the test of accessibility itself.
The state is effectively denying the PWDs their right to a fair hearing, that too when the very essence of the sole statute that protects their rights is under threat. We cannot replicate the UNCRPD model unless we understand that nothing can be done for the PWDs without their own input. The proposed section 95A should be dropped in the interest of justice and fairness.
The author is a student at the National Law School of India University (NLSIU), Bangalore. The views are personal.