Disability Rights

Disability Rights

(Rights of Persons with Disabilities Act)

Written by Naveen Pratap 2nd Year LLB Student, Prof. Rajendra Singh (Rajju Bhaiya) University, Prayagraj

RIGHTS OF PERSONS WITH DISABILITIES (RPwD) ACT, 2016

An Act to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto. 

WHEREAS the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities on the 13th day of December, 2006. 

AND WHEREAS the aforesaid Convention lays down the following principles for empowerment of persons with disabilities,—

(a) respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons; 

(b) non-discrimination; 

(c) full and effective participation and inclusion in society; 

(d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; 

(e) equality of opportunity; 

(f) accessibility; 

(g) equality between men and women; 

(h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities; 

AND WHEREAS India is a signatory to the said Convention; 

AND WHEREAS India ratified the said Convention on the 1st day of October, 2007; 

AND WHEREAS it is considered necessary to implement the Convention aforesaid

The Rights of Persons with Disabilities (RPwD) Act was enacted in the year 2016 and came into force from 19th April, 2017. It replaced the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The objective of the RPwD Act is to ensure that all persons with disabilities can lead their lives with dignity, without discrimination and with equal opportunities. The Act lays down specific provisions to uphold such rights. It incorporates the rights of persons with disabilities covered under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), to which India is a signatory.

SOME RIGHTS GUARANTEED UNDER THE RPwD ACT 

Persons with disabilities have the right to equality, dignity and respect for integrity: 

Section 3(1) of the RPwD Act requires the appropriate government to ensure that persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.

 The Act ensures the rights of women and children with disabilities: 

Section 4 states that the appropriate government and local authorities shall take measures to ensure that women and children with disabilities enjoy their rights equally with others. The section further states that all children with disabilities have the right to freely express their views on all matters affecting them and that, for this, support will be provided to keep in view their age and disability.

Persons with disabilities have the right to live in the community. 

Section 5(2) of the Act states that appropriate government shall endeavour that persons with disabilities are not forced to live in any particular living arrangement and are given access to a range of inhouse, residential and other community support services, including personal assistance necessary to support living with due regard to age and gender. 

The Act provides protection to persons with disabilities from being subjected to torture, cruel, inhuman or degrading treatment: 

Section 6 of the Act requires the government to take measures to prevent torture, cruel, inhuman or degrading treatment and ensure that no person with disability shall be a subject of any research without his or her free and informed consent. This is to be obtained through accessible modes, means and formats of communication and prior permission of a Committee for Research on Disability. 

The Act ensures protection of persons with disabilities from abuse, violence and exploitation: Section 7 of the Act states that victims of violence, abuse or exploitation shall be rescued, protected and rehabilitated. The government is also obligated to create awareness about the provisions and make it available to the public. 

Any person or registered organization who or which has reason to believe that an act of abuse, violence or exploitation has been, is being, or is likely to be committed may inform the Executive Magistrate of the incident who thereafter is obligated to rescue, protect, rehabilitate and provide maintenance to the victim. 

The police on receipt of complaint or knowing about such incidents are obligated to inform the victim of their rights to apply for protection, free legal aid, right to file a complaint and the particulars of the Executive Magistrate and the nearest organization/institution working for the rehabilitation of persons with disabilities.

Persons with disabilities are entitled to equal protection and safety in situations of risk, armed conflict, humanitarian emergencies and natural disasters: 

Section 8 of the Act requires the National and State Disaster Management Authorities to ensure the inclusion of persons with disabilities in its disaster management activities for their safety and protection. 

Children with disabilities not to be separated from their parents: 

Section 9 states that no child with disability shall be separated from his or her parents on the grounds of disability except on an order of a competent court, if required, in the best interest of the child. 

The Act recognizes the reproductive rights of persons with disabilities: 

Section 10 states that the appropriate government shall ensure that persons with disabilities have access to appropriate information regarding the reproduction and family planning and that no person with any disability is subjected to any medical procedure which leads to infertility without his or her free and informed consent. 

The Election Commissions to ensure that persons with disabilities can cast their vote: 

Section 11 states that the Election Commission of India and the State Election Commissions shall ensure that all polling stations are accessible to persons with disabilities and all materials related to the electoral process are easily understandable by and accessible to them. 

The Act addresses challenges faced by persons with disabilities in accessing the justice system: 

Section 12 states that persons with disabilities have the right to access any court or anybody with judicial or quasi-judicial or investigative powers without discrimination and steps will be taken to provide suitable measures to support persons with disabilities, especially those living without a family and those requiring high support for exercising legal rights.

Further, the Section states that the National and State Legal Services Authority shall make provisions, including reasonable accommodation, to ensure access to any scheme, programme, facility or service offered by them. It is to make all public documents available in accessible formats and for this, all filing departments, registry, etc, will be supplied with necessary equipment. All necessary facilities and equipment to facilitate the recording of testimonies, arguments or opinions given by persons with disabilities in their preferred language and means of communication will be made available. 

Legal rights of person with disabilities: 

Section 13 states that the appropriate government shall ensure that persons with disabilities enjoy equal legal rights on an equal basis with others in all aspects of life and have the right to equal recognition everywhere as any other person before the law. 

Appointment of Limited Guardian: 

Section 14 states that if any designated authority finds that a person with disability, who had been provided adequate and appropriate support, is unable to take legally binding decisions, then he may be provided further support of a limited guardian to take legally binding decisions on his behalf in consultation with such person, in such manner, as may be prescribed by the state government. The notified court or authority may grant total support to the person with disability and in case of limited guardianship is granted repeatedly, the decision regarding the support to be provided shall be reviewed by the court or the designated authority to determine the nature and manner of support to be provided. 

Persons with disabilities require high support: 

Section 15 of the Act states that the appropriate government shall designate one or more authorities to mobilize the community and create social awareness to support persons with disabilities in the exercise of their legal capacity. The authorities so designated shall take measures for setting up suitable support arrangements to enable persons with disabilities living in institutions and those with high support needs to exercise their legal capacity.

EDUCATIONAL RIGHTS OF PERSONS WITH DISABILITIES

The RPwD Act, in Section 16, requires the appropriate government and the local authorities to ensure that all educational institutions funded or recognised by them provide inclusive education to the children with disabilities.

Responsibilities of mainstream schools to ensure inclusive education:

• Admit children with disabilities without discrimination; 

• Provide education and opportunities for sports and recreation activities equally with others; 

• Make buildings, campuses and various facilities accessible; 

• Provide reasonable accommodation according to the individual’s requirements; 

• Provide necessary support individualised or otherwise in environments that maximise academic and social development consistent with the goal of full inclusion; 

• Ensure that education to persons who are blind or deaf or both is imparted in the most appropriate language, mode or means of communication; 

• Detect specific learning disabilities in children at the earliest and take suitable pedagogical and other measures to overcome them; 

• Monitor participation, progress in terms of attainment levels and completion of education in respect of every student with disability; 

• Provide transportation facilities to children with disabilities and also the attendant of the children with disabilities having high support needs.

Measures will be undertaken by the government to make inclusive education a reality:

Section 17 of the RPwD Act requires the Government and local authorities to: 

• Conduct a survey of school-going children in every five years to identify children with disabilities, ascertaining their special needs and the extent to which these are being met: Provided that the first survey shall be conducted within a period of two years from the date of commencement of this Act; • Establish adequate number of teacher training institutions; 

• Train and employ teachers, including teachers with disability who are qualified in sign language and Braille, and also teachers trained in teaching children with intellectual disability; 

• Train professionals and staff to support inclusive education at all levels of school education; 

• Establish adequate number of resource centres to support educational institutions at all levels of school education; 

• Promote the use of appropriate augmentative and alternative modes, including means and formats of communication, Braille and sign language to supplement the use of one’s speech to fulfil the daily communication needs of persons with speech, communication or language disabilities and enable them to participate and contribute to their community and society; 

• Provide books, other learning materials and appropriate assistive devices to students with benchmark disabilities free of cost up to the age of 18 years; 

• Provide scholarships in appropriate cases to students with benchmark disability; 

• Make suitable modifications in the curriculum and examination system to meet the needs of students with disabilities such as extra time for completion of examination paper, facility of scribe or amanuensis, exemption from second and third language courses; 

• Promote research to improve learning.

PROVISIONS FOR SKILL DEVELOPMENT AND EMPLOYMENT

Government is required to frame schemes for skill development and employment of persons with disabilities: 

Section 19 of the RPwD Act requires the appropriate government to formulate schemes and programmes, including provision of loans at concessional rates, to facilitate and support the employment of persons with disabilities, especially for their vocational training and self-employment. 

The scheme and programmes are to provide for the following: 

• Inclusion of persons with disabilities in all mainstream formal and non-formal vocational and skills training schemes and programmes with adequate provisions of support and facilities; 

• Exclusive skill training programmes will be devised for those with developmental, intellectual, multiple disabilities and autism with active links with the market; 

• Maintenance of disaggregated data on the progress made in the skill training and self-employment; 

• Loans at concessional rates, including that of microcredit; 

• Marketing of products made by persons with disabilities.

Persons with disabilities to have protection against discrimination in employment: 

Section 20 states that no government establishment shall discriminate against any person with disability in any matter relating to employment, provided that the appropriate government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section. 

Persons with disabilities cannot be denied promotions on the grounds of disability: 

Section 20 states that no promotion shall be denied to a person merely on the ground of disability. 

RIGHTS OF PERSONS WITH BENCHMARK DISABILITIES

“Person with benchmark disability” means a person with not less than forty per cent of a specified disability, where specified disability has not been defined in measurable terms, and includes a person with disability, where specified disability has been defined in measurable terms, as certified by the certifying authority. The Schedule of Specified Disabilities enumerates the following disabilities:

1. PHYSICAL DISABILITY 

A. Locomotor disability: 

• Leprosy cured person 

• Cerebral palsy 

• Dwarfism 

• Muscular dystrophy 

• Acid attack victim 

B. Visual impairment: 

• Blindness 

• Low vision 

C. Hearing impairment: 

• Deaf 

• Hard of hearing

D. Speech and language disability 

2. INTELLECTUAL DISABILITY 

A. Specific Learning Disabilities 

B. Autism Spectrum Disorder 

3. MENTAL BEHAVIOUR 

A. Mental Illness 

4. Disability caused due to 

A. Chronic neurological conditions: 

• Multiple Sclerosis 

• Parkinson’s Disease 

B. Blood disorder: 

• Haemophilia 

• Thalassemia 

• Sickle Cell Disease

5. MULTIPLE DISABILITIES

SCHEMES FOR THE WELFARE OF PERSONS WITH DISABILITY

Scheme of Assistance to Disabled Persons for Purchase/ Fitting of Aids/ Appliances Scheme (ADIP Scheme) 

ADIP scheme is a scheme of Assistance to Disabled Persons for Purchase/Fitting of Aids/Appliances. Its main objective is to assist the needy persons with disabilities in procuring durable, sophisticated and scientifically manufactured, modern, standard aids and appliances that can promote their physical, social and psychological rehabilitation, by reducing the effects of disabilities and enhance their economic potential. The aids and appliances that are supplied under the scheme must have due certification. A person with disabilities fulfilling the following conditions would be eligible for assistance under ADIP scheme.

• An Indian citizen of any age. 

• Holds a 40% Disability Certificate.

• Has a monthly income from all sources not exceeding Rs 20,000/- per month. 

• In case of dependents, income of parents/guardians should not exceed Rs 20,000/- per month. 

• Who have not received assistance during the last 3 years for the same purpose from any source. However, for children below 12 years of age, this limit would be 1 year. 

Aids/appliances which do not cost more than Rs. 10,000/ - are covered under the Scheme for a single disability. However, in the case of Students with Disabilities (SwDs), students beyond IX class, the limit would be raised to Rs.12,000/. In the case of multiple disabilities, the limit will apply to individual items separately in case more than one aid/appliance is required.

Scholarships for Students with Disability 

There are scholarships provided for SwDs under the Scheme of National Scholarships for Persons with Disabilities. Every year, 500 new scholarships are awarded for pursuing post-matric professional and technical courses of duration more than one year. However, for students with cerebral palsy, mental retardation, multiple disabilities and profound or severe hearing impairment, scholarship is awarded for pursuing studies from Class IX. Students with 40% or more disability, whose monthly family income does not exceed Rs. 15,000, are eligible for scholarship. A scholarship of Rs. 700/- per month to day-scholars and Rs. 1,000/- per month to hostellers is provided to the students pursuing Graduate and Post Graduate level technical or professional courses. A scholarship of Rs. 400/- per month to day-scholars and Rs. 700/- per month to hostellers is provided for pursuing diploma and certificate level professional courses. In addition to the scholarship, the students are reimbursed the course fee of upto Rs. 10,000/- per year. 

Facilities for voters with disabilities 

Voters having one among the 21 disabilities as mentioned by the Rights of Persons with Disabilities Act 2016 are termed as voters with disabilities. In addition, if a person who has reduced mobility and/ or motor function and/or physical coordination due to age, temporary ailment, pregnancy and other disease, and needs to be facilitated to get registered and to vote are termed as electors/ voters with reduced mobility and physical functions. 

An eligible person with disability or reduced mobility/ physical functions can get enrolled in electoral roll by filling Form 6 inclusive of information about one’s disability online at www.nvsp.in and uploading the necessary documents. One can also enrol at voter enrolment centres or the offices of Electoral Registration Officers/ Assistant Electoral Registration Officers, which will be accessible for persons with disabilities and reduced mobility/ physical functions, by filling Form 6 in two copies which are available free of cost at such centres/ offices and annexing copies of the relevant documents. In case of any assistance/ facilitation of communication required in filling the form, the same would be provided at both offices. The forms can also be sent by post to Electoral Registration Officer/ Assistant Electoral Registration Officer.

GRIEVANCE REDRESSAL AND SPECIAL COURTS

CHIEF COMMISSIONER OF PERSONS WITH DISABILITIESNODAL GRIEVANCE REDRESSAL AUTHORITY 

The Chief Commissioner for Persons with Disabilities is the nodal authority to address the grievances and issues of persons with disabilities. Section 74 of the RPwD Act requires the appointment of a Chief Commissioner for Persons with Disabilities and two Commissioners to assist the Chief Commissioner, of which one Commissioner shall be a person with disability. Further, the Chief Commissioner shall be assisted by an advisory committee comprising of not more than 11 members drawn from the experts from different disabilities

OFFENCES AND PENALTIES

PENALTIES PRESCRIBED FOR OFFENCES COMMITTED UNDER THE ACT 

• For the first contravention of provisions or rules under the Act, a fine up to Rs 10,000, and for subsequent contravention, a fine of Rs 50,000 up to Rs 5 lakh. 

• If a company commits an offence and is proved that the offence has been committed with the consent, connivance or neglect by any director or other officer, such officer of the company shall be deemed to be guilty and liable to be proceeded against and punished accordingly. 

• For fraudulently availing benefits meant for persons with benchmark disabilities, imprisonment up to two years or with fine up to Rs 1 lakh or with both. 

• For insulting, intimidating, humiliating a person with disability within public view; assaulting or using force with intent to dishonour or outrage the modesty of a woman with disability; denying food or fluids; sexually exploiting; injuring, damaging or interfering with the use of any limb or sense or any supporting device; performing, conducting or directing any medical procedures which leads to termination of pregnancy without her express consent, or that of a guardian and without the opinion of a registered medical practitioner; imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. 

• For will fully failing to produce any book, account or other documents or failing to furnish any statement, information or particulars, punishment with fine up to Rs. 25,000 for each offence, and in case of continued failure or refusal, with further fine up to Rs. 1,000 for each day after the date of the original order imposing the punishment of fine.

75 years of Independence: Disability should no longer be an afterthought

The journey of 75 years of India’s independence is one filled with struggles, achievements, learnings and realisations. On this momentous occasion of Azadi ka Amrit Mahotsav, it is worth revisiting the advances in legislation on disability rights over the years and determining new ideas and strategies to achieve an inclusive nation when India celebrates its 100th year of independence.

India has one of the world’s highest concentrations of people with disabilities. They are subjected to the direst forms of poverty, and the most severe expressions of social exclusion. These realities are reflected in the Preamble to the Sustainable Development Goals (SDG), which acknowledges that more than 80% of people with disabilities in India live in poverty. The discourse around disability rights in India began with the United Nations declaring 1981 as the International Year of Disabled Persons and further 1983-1992 was called the United Nations Decade of Disabled Persons. In 1993, Late Mr Javed Abidi founded the Disabled Rights Group (DRG) – India’s first platform for a cross-disability advocacy group. DRG, a political lobby group on the rights of persons with disabilities, has led several successful advocacy campaigns leading to the onset of India’s Disability Rights Movement. Some notable resultants of successful campaigns by DRG are the promulgation of India’s Disability Act 1995, the inclusion of disability in the 2001 and 2011 Census, inclusion of people with disabilities and disability experts in relevant steering committees of 12th Five-Year Planning, and more. With the adoption of the Persons with Disabilities Act, 1995, for the first time acts of discrimination against disabled people were enlisted and provision to seek remedy for the same was provided to the disabled persons.

2006 was another year of significant relevance to the disability movement as the UN Convention on the Rights of Persons with Disabilities (UNCRPD), 2006 was adopted to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. It recognised disability as an evolving concept – a critical aspect that needs to be considered during any and every discussion around disability. India is a signatory of the UNCRPD and ratified the same in 2007.

The discourse around disability began shifting from an ‘object to a ‘subject’ approach. With the adoption of a rights-based approach, disability was now being viewed as a rights issue and no longer as a welfare or charity issue. To create a barrier-free environment for independent, safe and dignified living of Persons with Disabilities, the Accessible India Campaign was launched by the Department of Empowerment of Persons with Disabilities under the Ministry of Social Justice & Empowerment. When in 2016, the historic Rights for Persons with Disabilities Act, 2016 was passed – India got itself one of the most comprehensive and robust laws globally that protected the rights of disabled communities. The RPWD Act, 2016 increased the quota for disability reservation in higher educational institutions from 3% to 5% and in government jobs from 3% to 4%, for a more inclusive society. Accessibility has now become a right for disabled people. This human rights or social model focuses on disability as an interaction between a person and their environment, thereby highlighting the role of society and various institutions – government and private – in combating the stigma attached to people with disabilities.

Despite all legal measures in place, persons with disabilities continue to face discrimination on an everyday basis. This is caused by the gap in implementation of the said schemes and policies. The lack of awareness around the rights of disabled people is a reflection of our society’s deep-rooted beliefs and stereotypes regarding disability. Lack of accessibility to education, health, livelihood and opportunities to participate in society remain the major barriers that limit them from interacting in the social sphere, thus, forcing them to be excluded from the mainstream development paradigm. Levels, nature and types of disabilities differ and so do the needs of every disabled individual.

Disability is almost always largely absent from data & statistics and monitoring mechanisms. The invisibility of persons with disabilities in the mainstream development narrative has ‘resulted in development interventions unintentionally leaving out persons with disabilities. Policymakers and practitioners tend to leave out persons with disabilities due to the unavailability of data. Getting an accurate count of the disabled population has always been difficult and it may be about to get even harder. In theory, the Census offers an opportunity to obtain fair and accurate data that can help deliver services to people who need them, irrespective of their disabilities. The digitisation of the Census of 2021, however, undermines this vision. The move toward a digital version of the census leaves people with disabilities in India at significant risk of being uncounted.

Recently, with incidences of ill-treatment of disabled people in public spaces being covered in news, concerted initiatives to empower them by providing equal opportunities, adopting universal design to make services and products accessible to all, there definitely is a hopeful opportunity for persons with disability to participate in and lead the discussions concerning them. It’s time for all stakeholders to take initiative and lead by example in adopting disabled-friendly measures in thought and action. By rightly demanding their seat at the table, people with disabilities can change the narratives regarding them and contribute toward building an accessible and inclusive India – the vision of India@100 that can only be achieved through collective resolve and determination.

UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (UNCRPD), 2006

The Convention was adopted by UN General Assembly on December 13, 2006 and opened for signing by the State Parties on March 30, 2007. Adoption of the Convention has really imparted empowerment to Persons with Disabilities across the globe to demand their rights and make State, private and civil society agencies accountable for enjoying their rights.

2. India is one of the few first countries which ratified the Convention. Consequent upon signing the Convention on March 30, 2007, India  ratified the Convention on 01.10.2007. The Convention has come into force from May 3, 2008. The Convention places the following three important obligations on each State Party: -

a) Implementation of the provisions of the Convention;

b) Harmonization of the country laws with the Convention and

c) Preparation of a Country Report.

3. Taking concrete measures for effective implementation of the Convention, all the concerned Central Ministries were requested to implement the provisions of the Convention as might be applicable to each of them. Similarly, all the Chief Ministers of States and Administrators of UTs were also requested to examine different provisions/obligations under the Convention as might relate to them and to take effective steps for their early implementation. The State Governments/UT Administrators were also asked to furnish a status report in this regard so that the same could be utilized towards preparing the Country Report. Rigorous monitoring and follow-up was being done in this regard so as to fulfill obligations of the Convention. India’s First Country Report was submitted to UN Committee on Rights of Persons in November, 2015.

Research and Development

The Department of Empowerment of Persons with Disabilities has launched a new Central sector scheme on “Research on disability related technology, products and issues‟. In January, 2015 with the objective to promote research of service models and programmes on the basis of life cycle needs, holistic development of the individuals and their families and creating an enabling environment for the empowerment of the persons with disabilities and promote research in prevention and prevalence of disability and the application of science & technology for the development of indigenous, appropriate aids and appliances.

The scheme has 2 components

(i) Research and Development of assistive technology and product development devices; and

(ii) Scheme for study/research/survey/internship and periodical collection of data related to disability. 

The State Governments, the national institutes under the Department have been requested to submit their proposal in accordance with the scheme. Until 2017-18 the scheme was implemented as a standalone scheme of the Department. From the year 2018-19 it has become part of the umbrella scheme SIPDA.

2. The Department has developed guidelines for grant of financial assistance for R&D projects under SIPDA.

3. During the year 2015-16, 22 proposals were received in the first phase out of which 4 proposals were approved by the Dept. However, only 2 agencies namely M/s Vision Foundation and AMU subsequently signed requisite agreement to undertake the project submitted by them. Accordingly, and amount of Rs. 4.80 lakhs has been released to these agencies. In the 2nd phase out of 13 proposals received in the dept. 6 proposals have been approved by the Steering Committee with a total; cost of about Rs. 99 lakhs.  An amount of Rs. 40 lakhs will be released during the year 2015-16 for entrusting these 6 projects to the concerned agencies towards first instalment.

Source Reference:

1. https://timesofindia.indiatimes.com/

2. https://disabilityaffairs.gov.in/

3. https://nhrc.nic.in/

4. https://en.wikipedia.org/

5. http://www.ccdisabilities.nic.in/

Written by 

Naveen Pratap 

2nd Year LLB Student, 

Prof. Rajendra Singh (Rajju Bhaiya) University, 

Prayagraj