Sabka Saath, Sabka Vikaas? Diluting The Disabilities Act Is Exclusionary And Ableist

COVID-19 has hit the companies and businesses, and the Government is mulling over economy revival strategies for post-COVID reforms. To cultivate confidence in investors and to encourage ease of doing business in India, the Ministry of Corporate Affairs has already sought to decriminalise the Companies Act, 2013.

In a new move, the Ministry of Finance and the Ministry of Social Justice and Empowerment (MSJE) has come up with decriminalisation of minor offences for improving business sentiment and unclogging court processes. Superficially, it looks like a routine affair to encourage investors and to compound offences which are technical in nature as civil rather than criminal offences. Why then, is the disability sector against this move?

The Department of Empowerment of Persons with Disabilities (DEPD), under MSJE, administers the Rights of Persons with Disabilities Act (RPDA) 2016. The RPDA, despite being modelled on the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), has its own flaws. But, still, it is powerful and more rights-based in comparison to its predecessor Act. It is largely due to the provision of penalties, especially imprisonment.

The Confederation of Indian Industry examined legal provisions and penalties across various legislations and in February this year released their report proposing amendments in 37 laws. The list does not include RPDA, 2016, or the Transgender Persons (Protection of Rights) Act, 2019, both of which are social welfare legislations under MSJE. So, why was the MSJE so keen to amend the three-year-old law?

Sabka Saath

To decriminalise ‘minor’ offences, DEPD proposed amendments in the RPDA under three provisions – Section 89 (punishment for contravention of provisions of Act or rules), section 92 (Punishment for offences of atrocities) and section 93 (Punishment for failure to furnish information).

We can see none of these are minor or technical offences as people with disabilities have historically been discriminated against. Ironically the DEPD, chose to send this circular to seven select disability organisations (all Delhi-based) for their feedback on July 1. This was later shared on the departmental website for general feedback.

Unlike the Ministry of Finance, DEPD chose to suggest on its own the proposed amendment defying the autonomy of disabled people in decision making. The time frame given for suggestions is mere 10 days, unlike 15 days given by the Finance Ministry. So neither did the DEPD involve all the stakeholders nor did they empowered them to provide suggestions on their own. They seemingly only followed their predetermined agenda, their own man ki baat.

Sabka Vikas

In the middle of a pandemic, the MSJE has compounded the problems of the marginalised society first by bringing in the draft rules on the Transgender Persons Act, and now the decriminalisation process amendment (in unlock 2.0).

One of the justifications given by the Ministry is to unclog the court processes. Since the implementation of RPDA on 19 April 2017, the Court of Chief Commissioner for Persons with Disabilities (CCPD) remain without a permanent incumbent, the Capital of India remains without its State Commissioner for Disabilities, majority of states remain without State Rules to implement the RPDA, and those where rules are framed remain without functional Special Courts in each District to try the offences under this Act.

Under this backdrop, what is the need to dilute social welfare legislation on the pretext of Vikas with an amendment when it’s not even properly implemented?

Moreover, the powers entrusted to the Chief and State Commissioners for ‘compounding’ too seems a far-fetched idea as we have not seen anybody booked under the three mentioned sections above.

A day after the new law was implemented, I was the first one to file an official complaint, in 2017, to the Uttar Pradesh Govt against one of its cabinet ministers u/s 92(a).

After a long wait and no acknowledgement, I had to file an RTI to get the response from the Court of UP State Disability Commissioner, wherein they said that the verbal abuse happened towards a person who did not have a disability of 40% and above, hence the law is not applicable to him as he is technically not a disabled person.

My counter was that the accused ridiculed all people with disabilities by his statement (I attached five media reports and video footage of a TV Channel), and hence he has violated the law. But, I have still not received any reply. Time to file another RTI perhaps.

My second complaint was against the Union Minister of State when he allegedly threatened to break a disabled man’s leg at a program for disabled persons in Asansol, to invoke Section 92(a) which is to punish whoever intentionally insults or intimidates with intent to humiliate a person with a disability in any place within the public view.

Though it is legally mandated by CCPD to safeguard the rights of disabled people, they chose to close the matter and case by citing Section 7 of the RPDA and advised to reach out to the executive magistrate of the district.

Two more complaints followed against a member of parliament from Jharkhand (through Election Commission of India) and Director of AIIMS Rishikesh. But, the Government chose not to invoke the RPDA.

A week ago, a woman with a disability in a Government office in Nellore was attacked by a senior officer which was captured on CCTV. Neither the CCPD nor the State Commissioner took note of it, but the National Commission for Women took it up suo moto.

The amendment provides more ‘compounding’ powers to Commissioners but as we saw in this recent case, CCPD who happens to be Secretary of DEPD, as well as a woman herself, chose not to act. The indifference by CCPD is not for the first time. A former IAS officer having a disabled son questioned the incompetence of CCPD in a scathing article.

An RTI by me in 2018 revealed that CCPD has taken suo moto cognizance of just eight cases (none involving the above three sections). Similarly, another RTI by Advocate Akeel Usmani revealed that the National Crime Records Bureau does not maintain any data on crime against disabled persons and has no record till 2020.

Sabka Vishwas

The Director, DEPD, in a recent interview, justified amendments to the law on the pretext that some are colonial. What needs to be done in the 21st Century is to repeal 102 laws in India at the Centre/States/Panchayats levels that discriminate against people affected by leprosy.

In fact, it was the Law Commission of India, a quasi-judicial body of the Government of India, which proposed an anti-discrimination Bill in 2015, and later, Rajya Sabha member KTS Tulsi introduced a Private Members Bill in 2017 for the welfare of people affected by leprosy as RPDA was inadequate. It is not logical to repeal all of these 100 laws individually, the Government can do it in a single stroke if they have the will.

On the contrary, they chose to bring amendments to non-controversial clauses. Already the RPDA is weaker in comparison to the SC/ST Prevention of Atrocities Act as six offences alone are prescribed in the former in comparison to 44 in later. RPDA has a five-year maximum limit for offences unlike a maximum Punishment with life imprisonment in the SC/ST Prevention of Atrocities Act

Last year, it was the turn of India at the UN to discuss its report on the implementation of the UNCRPD. The Committee on the Rights of Persons with Disabilities highlighted significant lapses undermining the human rights of people with disabilities in the RPDA, and in its Concluding Observations, directed the Head of the Delegation (Secretary, DEPD) to ensure the State amends those provisions to amend both RPDA as well as Mental Health Care Act 2017 and harmonise National Trust and Rehabilitation council Act too with UNCRPD.

Activists in India, for long, have been demanding an amendment in the controversial section 3(3) of the RPDA which allows discrimination if its a ‘legitimate aim’. Even the UN has criticised that. We have been demanding change in  Article 14 and 15 of the Constitution of India to prohibit disability and sexual characteristic-based discrimination. It does not seem to be a priority as disabled and LGBTQ+ people are probably not a vote bank. However, at the brink of elections, political powers will amend the constitution to bring economic weaker section reservation into the foray, breaking the vishwas of the disability sector, the transgender, and the intersex community.

I have shown how these proposed amendments thwart the basic fabric of Sabka Saath, Sabka Vikas, Sabka Vishwas. There are more pressing amendments that are needed in RPDA, other disability legislation, in the Transgender Protection Act as well as in the Constitution of India.

On behalf of ‘Doctors with Disabilities: Agents of Change’, we convey our anguish and resentment on pre-fabricated, pro-corporate, exclusionary proposed amendment 95A and strongly oppose this move to dilute the RPDA.

All of us have to raise our voice to #SaveTheRPDA!

About the author: Dr. Satendra Singh is a part of Doctors with Disabilities: Agents of Change.