The new RPD Act is a big advance over the 1995 Act but the battle now is for its implementation. And the going will be tough says Muralidharan & Shampa Sengupta who work with the National Platform for the Rights of the Disabled
Joyanta Mondal ran from pillar to post to get a disability certificate for his daughter. His daughter, Ranu, now ten years old, had mobility problems as well as learning disabilities. The government aided school in Sodepur of North 24 Parganas in West Bengal, where Ranu was enrolled told him that she will have to discontinue as they do not have provisions for teaching such children. Though under Sarba Shiksha Mission, there is provision for special educators but without a disability certificate even they can’t help her. Joyanta Mondal, who works as an electrician lost several work days as well as wages as he ran from offices to hospitals to determine the category of his daughter’s disability.
There are hundreds of such stories throughout the country. Delays and confusion are part of getting disability certificates for majority of India’s population. One of the demands of DPO (Disabled People’s Organisation) from rural areas is they at least get a place to sit when they go to hospitals to procure a certificate because they have to wait under the sun or rain for long hours after travelling great distances to reach there. Chances are that they have to visit the hospital for years before they can get a certificate.
According to the 2015-16 Annual Report of the Department of Empowerment of Persons with Disabilities, only 49.5 per cent of the disabled population, identified by the 2011 census, have been issued certificates as of August 31, 2015. Under the Persons with Disabilities Act, 1995, just seven conditions are recognised. A disability certificate is a basic document for any entitlement.
Until now, a person who was both deaf and blind could not procure a certificate that showed him as deafblind, as deafblindess was not recognised as a disability under the law. He was certified either as deaf or blind. So that person could not avail benefits which a person with deafblindness required. With 21 conditions, including deafblindness being listed in the new Rights of Persons with Disabilities Act, the task before certifying authorities is enormous. Conditions like haemophilia, multiple sclerosis, autism, thalassaemia, Parkinson’s disease, sickle cell disease, dwarfism and acid attack victims are some of the other conditions that are now recognised. The Act also empowers the government to notify any other condition as a disability in future.
Possessing a certificate by itself does not ensure entitlement. Coming from Madhubhani in Bihar, Mohd. Waris discovered that the certificate issued by the local authorities was not valid in Delhi. With the new Act, Waris and others like him will not have to procure multiple documents and their documents will be valid anywhere in the country.The RPD Act provides that henceforth such certificates “will be valid across the country”. This provides the legal backing for a universally valid card for the disabled. The card, a long standing demand of ours, will be rolled out soon, initially in ten states.
A paradigm shift was brought in the disability discourse with the adoption of the United Nations Convention on Rights of Persons with Disabilities (UNCRPD). India was one of the first countries to sign and ratify the treaty in 2007. But it took seven long years for a Bill compliant with the UNCRPD to be introduced and another nearly three years to get in passed.
The Act makes specific provisions for social security, health, rehabilitation and recreation. This is a big step forward given the fact that until now affirmative action for the disabled meant only reservations, apart from a dole erroneously called “pension” and a few concessions thrown in.
Though the Civil Services were officially opened for the disabled in 2005, on one pretext or the other the bureaucracy blocked many disabled civil service aspirants. We had taken up the cases of a batch of nine civil services aspirants who even after clearing the exams and getting favourable orders from courts, were denied induction. It took two years after making a representation to the then PM Manmohan Singh, for seven of them to get inducted. Civil Services topper of 2014, Ira Singhal, was denied a posting after she cleared the exams in 2010. If penal provisions for non-compliance existed in the 1995 Act, it could have acted as a deterrent.
The RPD Act tries to make amends by providing for punishment for the first contravention with a fine upto ten thousand rupees and for any subsequent contravention with a fine “which shall not be less than fifty thousand rupees but which may extend to five lakh.” The original clause in the Act was much more stringent with provision for imprisonment for a term of upto six months, with a fine of rupees ten thousand on first contravention and upto two years and fine of upto five lakhs for any subsequent contravention. However it is important to remember here that till now there had not been any penalty provision in the 1995 Act which this law replaces. So such a provision is more than welcome for majority of the disability sector.
Another dilution has been with regard to the provision for reservation in employment. Whereas the original draft of the Act provided for 5 per cent it has now been reduced to 4 per cent. Though this is definitely an increase from the 3 percent of the 1995 law, categories of disabilities have increased from seven to twenty one now.
At the same time, there are various other amendments that have strengthened the Act. Private entities have now been brought within the purview of the definition of “establishment”. A definition of what would constitute “discrimination” based on disability was another glaring inadequacy in the Act, which has now been introduced as an official amendment. The definition with regard to communication has been changed to include “sign language” as well as video and visual displays. Another amendment provides for sign language interpretation and captioning in TV programmes. Reservations in promotions, a long-standing demand of employees with disabilities has also been provided for in the new Law.
Another significant amendment made is the inclusion of specific provisions for women and children with disabilities. The gender component also finds place in various clauses that deal with poverty alleviation schemes, health etc. As Criminal Law Amendment Act of 2013 has already included several clauses regarding violence on women with disabilities, inclusion of gender component in the Disability Law, which was completely absent in the 1995 one, is definitely a huge step forward for the disabled women in India.
However, one of the major concerns that we had was with regard to the Clause 3(3), which states, “No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is appropriate to achieve a legitimate aim.” This clause we opined gives unfettered power to the implementing authorities to discriminate against persons with disabilities, on the pretext of serving a “legitimate aim”. In response to amendments moved by the CPI(M)s Sitaram Yechury and others the Minister for Social Justice & Empowerment, Shri Thawar Chand Gehlot assured that provisions will be made in the rules to ensure that this clause is not misused to the disadvantage of persons with disabilities.
The Minister has also assured the House on the amendment moved by CPI(M) MPs to Clause 33 that the provision with regard to reservation in employment will be ensured in the Act against the total number of vacancies in the cadre strength and not against identified posts. They had moved amendments to delete the words “posts meant to be filled by persons with Benchmark disabilities”. A similar provision in the 1995 Act was misinterpreted by governments to restrict the quota to identified posts only, with the Supreme Court having to intervene to give a correct interpretation.
Overall, it is a big advance over the 1995 Act and brings in the rights based perspective, despite some disability rights activists wishing for a much more UNCPRD compliant law. Notwithstanding that, the battle now is for its implementation. And the going will be tough.