July 19, 2020

Regressive Proposals Defeated; Struggle Far From Over


COMING from a nondescript village in rural Chhattisgarh, poverty and destitution forced Shakeel in his early twenties to migrate to Delhi. Though not having much of an education to claim, when in December 2016 the Rights of Persons with Disabilities Act (RPD Act) was passed, Shakeel was ecstatic. A person afflicted by polio early in life, he was subjected to ridicule and abuse because of his impaired mobility. Not that he would have actually lodged a case against anyone who abused him, but the sheer sense of empowerment that flowed from penal provisions contained in the RPD Act was astounding. Tears rolled down his eyes when at one such meeting, which he attended, we shared that as per law, now, anybody insulting the disabled could be jailed.

And this flowed from Section 92 (a) of the Act which laid down that whosoever, “intentionally insults or intimidates with intent to humiliate a person with disability in any place within public view” shall be punishable with imprisonment for a term which shall not be less the six months but which may extend to five years and with fine”.

For the first time, after facing centuries of stigma, insult, humiliation and discrimination, the disabled in the country had a law which had equality and non-discrimination as its guiding principles. This was to give effect to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which India ratified in 2007. This law unlike its earlier version the PwD Act of 1995 had teeth in the form of penal provisions. For the crores of disabled in India tampering with this particular section of the law was blasphemy.

But that was exactly what the Modi government sought to do. And it backfired. What followed was a wave of protests on various platforms which had the potential to inflict huge damage to the government. Faced with unprecedented unity and resolve displayed by the disabled community represented by their organisations and activists, the government buckled and declared that “Keeping in view the overall sentiments of the majority stakeholders, the department is now of the considered view that going ahead with the proposed amendment for the compounding of offences may not be in the interests of persons with disabilities…… and not to pursue the proposed amendment to the RPwD Act, 2016”. It withdrew the proposal within a week of it being floated. This was unprecedented as far as the record of the Modi government goes. It had totally miscalculated the amount of backlash that this proposal would generate.

The story is like this. On July 1 that the Department for Empowerment for Persons with Disabilities sent invites to seven select organisations to send their responses to its proposal to amend the penal provisions in the RPD Act. This selective manner of choosing representatives of the disability sector itself was challenged by the National Platform for the Rights of the Disabled (NPRD).  While the Act recognises 21 conditions, representatives of only three were invited, besides two cross-disability NGOs. The non-representative character apart, the manner in which the government sought to go about it, was met with disapproval, discomfort and suspicion. The NPRD initiated a statement opposing the amendments which was endorsed by 467 disability rights groups, activists and people. Hundreds of individual petitions were also sent to the department, apart from articles and social media campaigns, opposing the amendments.

Incidentally, a day prior to that, on June 30, a video was shared extensively on social media of a disabled woman employee being brutally beaten up by her superior in an office of the Andhra Pradesh Tourism at Nellore. Though after an uproar, the official was arrested and suspended, Sec. 92 (a) of the RPD Act was not invoked. This is not an isolated instance. Police are either unaware of the provisions of the Act or refuse to invoke them even when the complainant demands.

In March 2019, dozens of people responding to the NPRD’s call went to police stations to register complaints against no less a person than the prime minister after Modi during the ‘Smart India Hackathon 2019’ had sought to make fun of those with dyslexia. That none of these were converted into FIRs is a telling commentary on our criminal justice system. But the disabled had a weapon in their hand which they presumed they could use even against people occupying high offices if they erred. It was this weapon they were sought to be disarmed of.

The proposed amendments also sought to dilute Section 89 of the Act which provides for punishment for “any person who contravenes any of the provisions of this Act, or of any rule made thereunder”, and section 93 which provides for a fine “which may extend to twenty-five thousand” for failure “to produce any book, account or other document…….which under the Act….. it is duty bound to produce…”.

All these offences were sought to be made “compoundable” by the commissioner of disabilities either at the centre or the states. Compounding would imply settling the case. And when that happens, as per the proposed amendment, the offender is discharged and no offence is deemed to have been committed. The lady employee who was brutally beaten by her superior in the AP Tourism office at Nellore could have been coerced to consent to compounding the offence had the amendment gone through. It could have been done effortlessly given her multiple vulnerabilities. She was a woman, a woman with disability, and on top of it, on contract employment. With various hierarchies in place, one can very well imagine what would happen.

Under the plea of “decriminalising” “minor offences” the very nature of the RPD Act was sought to be drastically altered. It is the lack of penal provisions, in the first place, that contributed in no small measure to non-compliance of the now repealed Persons with Disabilities Act, 1995. The attempt was to defang the current RPD Act and condemn it to the same fate.

If the amendment had got through, it would have been a pitiable state. Offences were to be compounded by the disability commissioners. This in a situation where many states have not yet appointed state commissioners. The post has been lying vacant at the centre also for the past more than two years. Currently, such cases are to be tried before special courts at the district level. The insensitivity is compounded by the fact that many states are yet to frame rules, even three years after the Act coming into force, despite the Act setting a six month deadline.

While the ruse peddled for such dilution is for providing an investor friendly climate, it fails in justifying the categorisation of some offences as “minor”. By no stretch of imagination can offences listed under the sections that were proposed to be amended, be considered “minor”. It also makes a fictitious claim that “given the nature of pendency in Courts at all levels and the time taken for resolution of disputes, legislative matters are required to be considered to restore thrust in doing business”.  Data, or the lack of it, however, belies the government’s claim.

Surprisingly, the RPD Act was not among the 37 legislations for which the Confederation of Indian Industry sought amendments in February this year. They were mainly in the realm of finance. For at least 19 of them the government has come up with proposals for amendments. And in all of them the same rubric of “decriminalisation” of “minor” offences has been used. And these are to serve the purpose of removing “deterrents” that “impact investments”. How a social protection legislation falls in this category is intriguing. On the contrary, worldwide, best practices are encouraged for inclusion.

Lastly, had the government displayed the same zeal in implementing the recommendations made by the UN Committee on the Rights of Persons with Disabilities, things would have been different. The UN Committee had in September 2019 recommended among other things, amending the Indian “Constitution to explicitly prohibit disability-based discrimination and repeal section 3.3 of the Rights of Persons with Disabilities Act 2016….” The reference to the Indian Constitution was to Article 15(1) and 16(2) which while specifying other grounds on which discrimination is prohibited does not include disability. Sec. 3(3) of the RPD Act is a controversial clause which legitimises disability based discrimination.

Ease of doing business or providing an investor friendly climate cannot be at the cost of depriving and negating hard won rights of the marginalised, which the amendments sought to do. And these proposals where made when the disabled are fighting for their very survival in a pandemic situation and the impact of an unplanned lockdown that saw large sections losing their sources of livelihood, with hundreds queuing up before “hunger centres”, an insensitive euphemism used by the Delhi government to connote food distribution camps.

The proposal has been defeated for the time being in the face of the stiff resistance that it encountered. But it is also a warning that we have to be on guard and that the need of the hour is unity among all sections of the marginalised to defeat such manoeuvres. Having said that it is also time that we step up the campaign to amend the RPD Act to get rid of its weaknesses as also for implementation of the various provisions contained in the Act.