Empowering persons with disabilities

The Rights of Persons with Disabilities Bill -2016 was passed in Lok Sabha on December 16, 2016, under 'Fundamental Rights' and the Bill will replace the existing PwD Act,1955, which was enacted 21 years ago. The Rajya Sabha has already passed the bill on December 14, 2016. The types of disabilities have been increased from 7 to 21 and the Central Government will have the power to add more types of disabilities.

Parliamentarians passed the historic Rights of Persons with Disabilities Bill, 2016, in the just-concluded winter Session of Parliament.

Actually, the Bill was introduced in the Rajya Sabha on February 7, 2014 by the Minister of Social Justice and Empowerment, Mallikarjun Kharge.

The Bill was introduced in the Rajya Sabha on February 7, 2014 and referred to the department-related Standing Committee for its recommendations.

It could not be taken up then as general elections were held soon after. On December 14 this year, the Bill was tabled with official amendments and passed in the Rajya Sabha. The Lok Sabha cleared it on December 16. It now awaits the Presidential assent for it to become law.

Several official amendments were adopted in both the houses to usher in a law that will bestow rights and entitlements to an estimated 2.68 crore people with disabilities in the country.

For disabled rights groups it has been a long-drawn struggle for the Bill to see the light of the day in this form and shape.

The passage of the Bill-which is in line with the United Nations Convention on the Rights of Persons with Disabilities, (UNCRPD) - has been hailed by disability rights groups as a huge improvement on the earlier Act.

It replaces the previous Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with several amendments.

Highlights

• The Bill replaces the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Instead of seven disabilities specified in the Act, the Bill covers 19 conditions.
• Persons with at least 40% of a disability are entitled to certain benefits such as reservations in education and employment, preference in government schemes, etc.
• The Bill confers several rights and entitlements to disabled persons. These include disabled friendly access to all public buildings, hospitals, modes of transport, polling stations, etc.
• In case of mentally ill persons, district courts may award two types of guardianship. A limited guardian takes decisions jointly with the mentally ill person. A plenary guardian takes decisions on behalf of the mentally ill person, without consulting him.
• Violation of any provision of the Act is punishable with imprisonment up to six months, and/or fine of Rs 10,000. Subsequent violations carry a higher penalty.
• Key features
• The Bill replaces the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
• The Bill includes the following 19 conditions under disability: autism spectrum disorder; low vision; blindness; cerebral palsy; deaf blindness; hemophilia; hearing impairment; leprosy cured person; intellectual disability; mental illness; locomotor disability; muscular dystrophy; multiple sclerosis; specific learning disabilities; speech and language disability; sickle cell disease; thalassemia; chronic neurological conditions and multiple disability. The Bill allows the central government to notify any other condition as a disability.
• Persons with “benchmark disabilities” are defined as those certified to have at least 40 per cent of the disabilities specified above.
• On the downside it reduces job reservation for persons with disabilities from five to four per cent in establishments including government and private sector.
• Private sector employers shall be incentivised to ensure that at least five per cent of their work force is composed of persons with disabilities.

Rights

• Persons with disabilities shall not be discriminated on grounds of their disability unless it is shown that the specific act is appropriate to achieve a legitimate aim. Persons with disabilities shall have the right to equality, personal liberty and to live in a community. They will not be obliged to live in any specific arrangement and shall have access to residential services and community support.
• The Election Commission (centre and state) has to ensure that polling stations and all electoral materials are accessible to persons with disabilities. Central and state governments have to ensure that all public documents are in accessible formats.
• The Disaster Management Authority (centre and state) will take necessary steps to include disabled persons in its disaster management activities for their safety and protection.

Special provisions

• Education: Children between the ages of six to 18 years, with a benchmark disability, have the right to free education in a neighbourhood school or special school if required. All government and government aided institutions of higher education are required to reserve at least five per cent of seats for persons with benchmark disabilities. For admission in higher education institutions, they will be allowed relaxation in the upper age limit, by five years.
• Employment: Five per cent of government owned or controlled establishments shall be reserved for persons with benchmark disabilities. One per cent of this must be reserved for persons with (i) blindness and low vision; (ii) hearing and speech impairment; (iii) locomotor disability; (iv) autism, intellectual disability and mental illness; (v) multiple disabilities. The government may exempt any establishment from this provision.
• The central, state and local governments shall provide incentives to the private sector to ensure that at least five per cent of their work force is composed of persons with benchmark disability.
• Five per cent reservation to be provided for persons with benchmark disabilities in (i) allotment of agricultural land and housing in all relevant schemes and programmes; (ii) poverty alleviation schemes (with priority to women with benchmark disabilities); and (iii) allotment of land on concessional rate for purposes of business, enterprise, etc.

Guardianship of mentally ill persons

• If a district court determines that a mentally ill person is unable to take care of him or of taking legally binding decisions, it may assign limited guardianship for such a person. A limited guardian will take joint decisions with the mentally ill person.
• In extraordinary situations, where limited guardianship cannot be awarded, the district court can award plenary guardianship where the guardian takes legally binding decisions for the mentally ill person. The guardian need not consult with, or determine the will or preference of the mentally ill person.

Authorities established

• National and State Commissions for persons with disabilities: The central government shall constitute a National Commission, and state governments shall constitute a State Commission each, for disabled persons. The Commissions will be required to: (i) identify any laws, policies or programmes that are inconsistent with the Act; (ii) inquire into matters relating to deprivation of rights and safeguards available to disabled persons and recommend appropriate remedial measures; (iii) monitor implementation of the Act and utilization of funds disbursed by governments for the benefit of disabled persons, etc.
• Central and State Advisory Boards on disability: The central government shall constitute a Central Advisory Board, and state governments shall constitute a State Advisory Board each, for disability matters. State governments shall also constitute District-Level Committees. The functions of these advisory boards will include: (i) advising the government on policies and programmes with respect to disability; (ii) developing a national/state policy concerning persons with disabilities; (iii) recommending steps to ensure accessibility, reasonable accommodation, non-discrimination, etc.
• Penalties
• Any person, who violates provisions of the Act, or any rule or regulation made under it, shall be punishable with imprisonment up to six months and/or a fine of Rs 10,000, or both. For any subsequent violation, imprisonment of up to two years and/or a fine of Rs 50,000 to Rs five lakh can be awarded.
• Whoever intentionally insults or intimidates a person with disability, or sexually exploits a woman or child with disability, shall be punishable with imprisonment between six months to five years and fine.
• State governments shall notify a Sessions Court to be a Special Court, in each district, to try offences under the Act. This shall be done with the concurrence of the Chief Justices of the relevant High Courts.
• Key Issues
• The Bill is being brought in to fulfill obligations under an international treaty. The question is whether it is appropriate for Parliament to impose legal and financial obligations on states and municipalities with regard to disability, which is a State List subject.
• The Financial Memorandum does not provide any estimate of the financial resources required to meet obligations under the Bill.
• The Bill states that violation of any provision in the Act will attract imprisonment and/or fine. Given the widespread obligations (such as making all polling booths accessible to the disabled), many acts of omission or commission could be interpreted as criminal offences.
• In “extraordinary situations” district courts may appoint plenary guardians for mentally ill persons. The Bill does not lay down principles for such determination, in a consistent manner, across various courts. The Bill overrides the Mental Health Act, 1987 but the safeguards against misuse of powers by guardians are lower.
• The Bill is inconsistent with other laws in some cases. These include conditions for termination of pregnancy and the minimum penalty for outraging the modesty of a woman.
• The Bill fills a much-felt need for a rights-enabled legislation for persons with disabilities. This was apparent from the unanimous support it got in both Houses of Parliament. It not only empowers persons with disabilities but also provides mechanism for redress of their grievances. However, the challenge is to implement it, both, at the central and state government level.