Indian Legislation: Too Little & Too Late to Transform Indian Society
Today, December 3, is the International Day of Persons with Disabilities. Since 1992, the UN is promoting international observance of the Day. I am a great fan of the International Observance. On the Day (at the least) everyone is made to think of the observance cause. It ensures that some mainstream stakeholders get involved. It also ensures recognition, if not providing dignity to the cause. However, many critics have time and again told me that these causes are not for observance by the Day or the Week or even the Year. The causes such as PwD (I would like to consider PwD = Persons with Dignity) need to be part of the DNA of any sustainable and resilient society.
I am surprised many a times that as a society, we DO NOT THINK of PwD, whenever we do anything.
Anything that we design is ought to be designed for everyone including the PwD. However, we never think of PwD when we plan things, be it SWB Mission or Smart City Mission, be it digital India or e-governance. Each of one us is responsible for Leaving Our PwD Behind. Today, we must pledge for “LEAVE NO ONE BEHIND”. No doubt all the missions that we have undertaken since 2014 are attempting to transform India, we will end up having a disabled nation ourselves if we leave PwD behind, in whatever we do.
It is not very surprising that in the Sustainable Development Goals (SDGs) undertaken by India, there is an oblique reference to PwDs in so far as Urban Development Mission are concerned. It does not figure in any other place, especially when it comes to overall development and rural focused missions and action plans. “By 2030, provide access to safe, affordable, accessible and sustainable transport systems for all, improving road safety, notably by expanding public transport, with special attention to the needs of those in vulnerable situations, women, children, persons with disabilities and older persons”.
As per Census 2011, there were 2.68 Crores (2.21% of the Population) persons with disabilities. The National Sample Survey Organization (NSSO) in its 58th rounds during July-December 2002, estimated that the number of persons with disabilities in India was 1.85 Crores (1.85% of Population).
The United Nations (“UN”) General Assembly adopted its Convention on the Rights of Persons with Disabilities (“UNCRPD”) on December 13, 2006. India ratified the UNCRPD on October 1, 2007. The objective of the UNCRPD has been to promote and protect the human rights and fundamental freedom by all persons with disabilities and to promote respect for their inherent dignity.
To give effect to the UNCRPD, the Rajya Sabha, on December 14, 2016, passed the Rights of Persons with Disabilities Bill, 2014 which repeals Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act of 1995. The Bill received the President’s assent and came into effect on December 27, 2016 as the Rights of Persons with Disabilities Act, 2016 (“Act”). Further, on June 15, 2017, the Rights of Persons with Disabilities Rules, 2017 (“Rules”) was notified by the Government of India. This will fulfil the obligations on the part of India in terms of UNCRPD.
By ratifying the convention and embodying the same in the New Act and Rules, the following principles have been laid down for promoting and ensuring the empowerment of persons with disabilities:
- Individual autonomy including the freedom to make one’s own choices and independence of persons;
- Full and effective participation and inclusion in society;
- Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
- Equality of opportunity;
- Equality between men and women; and
- Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities, amongst others.
The definition of a “Person with disability” under the Act is in line with the definition laid down in the UNCRPD to mean 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”. Further, the Act also takes within its purview the diversity of disability, be it gender, age or socio economic status.
The definition of discrimination as adopted by Act from the UN Convention states that “discrimination” in relation to disability, means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation.
The Act enshrines the UNCRPD further by expanding the number of disabilities to cover a more comprehensive list of disabilities such as acid attack victims, Cerebral Palsy to various Intellectual disability such as autism spectrum disorder and other specific learning disabilities.
Sensitive to All Genders
The Law, as per the UN Convention standards, is more gender specific or gender sensitive. It recognizes the need to provide welfare to women with disabilities. The Government is required to take measures to ensure that women and children with disabilities enjoy their rights equally with others. The Act strives to ensure reservation in allotment of agricultural land and housing in all relevant schemes and development programmes, with appropriate priority to women with benchmark disabilities.
Effect on the Private Establishments
The Act brings Private Establishments under its purview. Private Establishment under the Act means a company, firm, cooperative or other society, associations, trust, agency, institution, organisation, union, factory or such other establishment as may be notified by the Government.
Further, every establishment is required to maintain records of the persons with disabilities in relation to the matter of employment, facilities provided and other necessary information and every employment exchange has been required to maintain records of persons with disabilities seeking employment.
Incentives to Employers in Private Sector
In order to encourage the employment of persons with disabilities in the Private Sector, the appropriate Government and the local authorities have been directed to, within the limit of their economic capacity and development, provide incentives to employer in private sector to ensure that at least 5% of their work force is composed of persons with benchmark disability.
Mandatory Observance of Accessibility norms and Transforming Existing Infrastructure
As per the Act, the Government will formulate rules for persons with disabilities laying down the standards of accessibility for the physical environment, transportation, information and communications, including appropriate technologies and systems, and other facilities and services provided to the public in urban and rural areas.
No establishment has been granted permission to build any structure if the building plan does not adhere to the rules formulated by the Central Government. No establishment will be issued a certificate of completion or allowed to take occupation of a building unless it has adhered to the rules formulated by the Central Government.
One of the important provisions in terms of transformation of existing infrastructure is contained in Section 45 of the Act,
“Time limit for making existing infrastructure and premises accessible and action for that purpose – 1) All existing public buildings shall be made accessible in accordance with the rules formulated by the Central Government within a period not exceeding five years from the date of notification of such rules:
Provided that the Central Government may grant extension of time to the States on a case to case basis for adherence to this provision depending on their state of preparedness and other related parameters.”
Rights of Persons with Disabilities Rules, 2017
The Rights of Persons with Disabilities Rules, 2017 which came into effect on June 15, 2017, imposes certain responsibilities on the Employers to ensure the rights of the persons with disabilities.
The head of every establishment has to ensure that the rights of or benefits provided to a disabled person under the Act are not denied and Grievances are tackled with as per the provisions prescribed under the Act.
Equal Opportunity Policy
An equal opportunity policy has been established under the Act. Every establishment is required to notify the equal opportunity policy which details the measures proposed to be taken by it in pursuance of Skill Development and Employment for persons with disabilities especially such as their vocational training and self-employment.
Every establishment is required to publish equal opportunity policy for persons with disabilities which they are required to display on their websites, if not, it needs to be displayed at a conspicuous place in their premises.
Atrocity as an Offence
The Act has gone a step further by including social issues faced by persons with disabilities on a daily basis by making certain actions aimed towards such persons as a punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. Some of the offenses have been enumerated below:
- Intentionally insulting or intimidating with intent to humiliate a person with disability in any place within public view;
- Assaulting or using force to any person with disability with intent to dishonour him or outrage the modesty of a woman with disability;
- Being in a position to dominate the will of a child or woman with disability and use that position to exploit her sexually;
- Voluntarily injuring, damaging or interfering with the use of any limb or sense or any supporting device of a person with disability.
Too Late and Too Little:
By making the law and framing the rules, India has discharged its treaty obligation. It has aligned its domestic law to the UNCRPD. If in 2011 we had over 2.11 crores of PwDs growing at rapid speed, are we as a nation sensitive enough to the requirements of the PwDs. We must ask this question to ourselves, every day and not just today. Grant of a loan of Rs 50,000 to start a business sounds like an insult to PwDs. PwDs have no access to most of the government buildings, public infrastructure, utilities and information systems. With the Rules being effective, do we expect a transformation in the next five years?
I am a firm believer that it is up to each one of us and not the government to change the future. Examples such as Mirchi & Mime restaurant chain in Mumbai, Pankh of Train that empowers PwDs with sustainable employment in retail industry and of course many NGOs that work in this space are the agents of change. We need the Government to transform from the current dismal state of affairs to at least accessible infrastructure. Just facilitate us as common citizens, we will ensure sustainable future for our Persons with Dignity. Legislative enactments and rules would discharge India’s treaty obligations however, what we truly need is considerable transformation. Even if the Government decides to provide physical and digital access to our PwDs in ALL government establishments and offices, in all public toilets and transport, in all sincerity in the hearts and mind, we will see a transformed society facilitated by the letter and spirit of law.
 Niti Ayog