On July 2, 2020, the disability sector in India received a shock as the Ministry of Social Justice and Empowerment (MSJE) came out with a draft proposing amendments to the Rights of Persons with Disabilities (RPWD) Act of 2016 to ‘decriminalise minor offences’.
Further, only select disability rights organisations were asked by MSJE to send their recommendations by July 10. As of July 9, people with disabilities can breathe a sigh of relief, thanks to the efforts of disability rights activists and organisations as the proposed amendments have been rolled back.
But we can’t be too joyful just as yet.
It is still astonishing to see the sheer audacity and gall of the MSJE, who tried to take blatant advantage of the COVID-19 situation to amend the RPWD Act of 2016 in the garb of ‘improving business sentiment and unclogging court processes’. They did this slyly by trying to insert Section 95(a) which allowed the State and Chief Commissioner for Persons with Disabilities to ‘compound offences’.
It also sought to propose in the same section that ‘where an offence has been compounded, the offender, if in custody shall be discharged and any proceeding in respect of such offence, shall be dropped’. This insertion completely diluted the existing penal system of the RPWD Act undermining Sections 89, 92(a) and 93.
Breaking down the law and explaining the insertion of Section 95(a) is an important aspect for truly understanding how decadent the RPWD Act would have become.
Section 89 is a basic necessity of the RPWD Act which ensures that there are penalties for those who break any provisions of this law. Upon first infringement, entailing a maximum amount Rs 10,000, upon subsequent contravention would be any sum between Rs 50,000 and Rs 5 lakh.
Section 92(a) clearly lays down what will happen if anyone insults or humiliates a person with disability within public view, such an individual would be punishable if proven guilty for a minimum jail-time of 6 months which may extend upto 5 years and with a fine. This is similar to Section 3 of The Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Lastly Section 93 has been put in place to ensure accountability of the competent authority as it mandates a maximum fine of Rs. 25,000 on the first offence and Rs. 1,000 for each day, of continued failure to provide any book, account, document, statement, information under the RPWD Act. The above penalty under Section 93 is also applicable to an answer for any question put in pursuance of the provisions of this law.
Rather than holding businesses accountable for exploitation, discrimination, misinformation and not providing reasonable accommodations to the specific needs of people with disabilities, the Ministry would have allowed the Chief or State Commissioners of disability to withdraw cases with the consent of the person who filed the case, leading to the accused being acquitted without a punishment.
Even if it were to be just an addition it would have still diluted the process of punishment and penalties as prescribed by the RPWD Act.
Being the nephew of the late Javed Abidi who was a pioneer in the field of disability rights, successfully advocating for the first persons with disabilities act of 1995 and who subsequently advocated for the second law (RPWD Act of 2016), this proposed amendment angered me.
The amendments would have rendered this law the same as the previous one: toothless.
Some may argue that amending three sections, by introducing the new section 95(a) would not have greatly affected the comprehensive law but I am of the strong belief that it would have given multiple opportunities to offenders to further marginalise people with disabilities.
People with disabilities certainly did not ask for this amendment and in the garb of improving investment opportunities for business the government is attacking the civil liberties of people with disabilities. This is a cause of concern for people without disability as well.
The government is radically targeting civil liberties of people in India. Just as the draft Environmental Impact Assessment Notification 2020 seeks to create a permanent setup to regularise industrial processes, which is making it easier for industries to avoid environmental accountability.
This move cements the same fact that the government may want to show that it is pro ‘divyangjan’. This is a title prescribed by the central government that all self-respecting disability rights activists abhor but in reality, the government perceives this community (people with disability) just as a testing ground for how far they can push civil society.
This is mainly because politicians don’t believe that people with disabilities are a big enough vote bank and the sector is fragmented having almost very little to no consensus on what should be done.
How is it that in the case of humiliation and insulting; Section 3 of The Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act 1989, has the same consequence as RPWD Act Section 92(a) which is that ‘a person shall be punishable with imprisonment for a term which is not less than six months but which may extend to five years and with a fine’?
Why isn’t there any talk to amend Prevention of Atrocities Act then?
Further, if this amendment were to be tabled and passed, would it lead to a subsequent change in all laws which read like section 92(a)? How can discrimination against different communities be subjected to different standards of law?
It is a well-known fact that there are states where there isn’t even a state commissioner for persons with disabilities, and where the post of chief commissioner itself was vacant for quite some time. Plus, most commissioners are not full time, neither do they have independent charge.
Ultimately, this is not just a disability rights issue. This proposed amendment to the RPWD Act of 2016 is an assault on civil liberties of people across India. Today it is people with disabilities who have been saved from an inch of their breath to have their rights diluted, tomorrow it may be women and children and the day after that it may be another group, marginalised community.
Shameer Rishad is the Convenor of Javed Abidi Foundation (JAF). He can be reached on twitter @RishadShameer