The Rights of Persons with Disabilities Act, 2016

Introduction

The Rights of Persons with Disability Act, 2016 received the accent of the President on 27^th of December 2016 and came to be published in the official gazette on 28^th of December 2016. Sec 102 of this Act speaks of repealing the pervious legislation in this regard i.e. The Persons with Disability (Equal Opportunity, Protection of Rights and Full Participation) Act of 1995. The Preamble of this Act clearly says that it aims to up hold the dignity of every person in the society and prevent any kind of discrimination. It speaks about the acceptance of people with any kind of disability and to ensure full participation of such persons and their inclusion in the society. Since India happens to be a signatory of the Convention on the Rights of Persons with Disabilities of the United Nations General Assembly, such a domestic legislation for India was indeed indispensable.

Important Definitions

1. Barrier: It refers to any factor which hampers the full and effective participation of persons with disabilities in the society. It includes cultural, economic, environmental, attitudinal and structural factors.
2. Discrimination: It has been defined in relation to disability as any distinction, exclusion, restriction on the basis of disability for which there is an impairing or nullifying of recognition, enjoyment or exercise on equal basis with others of all human rights and fundamental freedom. It has been said to include discrimination in all forms and denial pf reasonable accommodation.
3. Person with Disability: It has been defined as any person with long term physical, mental, intellectual or sensory impairments which on interacting with barriers hinders effective and equal growth in the society.
4. Person with Benchmark Disability: It refers to a person who has 40% or more of the specified disability has not been defined in measurable terms. . In case such disability has been defined in measurable terms, it is said to include a person with disability.
5. Person with Disability having High Support Needs: It means a person with benchmark disability certified under clause (a) of sub-section (2) of section 58, who needs high support.

Rights and Entitlements

Chapter II of the Rights of Persons with Disabilities Act, 2016 deals with the rights and entitlements for persons with disabilities.

Sec 3 speaks about Equality and Non Discrimination. It states that it is the duty of the Government to ensure that persons with disability enjoy right to equality, and a life of respect and dignity. It mandates the Government to take appropriate steps in this regard. It crucially suggests that discrimination, in any form whatsoever, shall not be done onto any person with disability. In fact it also states that it shall be the duty of the Government to ensure reasonable accommodation to persons with disabilities.

Sec 4 states that the Government and the Local Authorities to take measures to ensure that women and children with disability enjoy equal rights.

Sec 5 allows such persons with disability to the right, to live in the community. It seeks the Government to ensure that such persons with disabilities are not obliged to live in a particular living arrangement. It also states that the Government should provide in-house assistance to such disabled persons along with personal assistance to support a living and other community support services.

The Act seeks to ensure an absolute end to cruelty and inhuman treatment that is rendered to persons with disability. Sec 6 of this Act ask the Government to take measures, to protect people with disability, against torture, cruel, inhuman and degrading treatment. It also prevents persons with disability from being subject to any sort of research without his free and informed consent.

Sec 7 instructs the Government to take measure in order to protect persons with disability from any sort of abuse, violence or exploitation. This section gives all persons and organisations the right to approach the Executive Magistrate in case any incident of inflicting violence on person with disability is noticed. It shall be the duty of the Executive Magistrate to take swift actions once such a complaint is registered with him. It shall be his duty to rescue the victim, provide him with protective custody and provide maintenance to such person with disability.

It also speaks about the duties of a police officer when cases of cruelty against persons with disability are reported. It shall be his duty to let the victim know about his rights to approach the Executive Magistrate for maintenance or the particulars about the nearest organisation that works for the rehabilitation of person with disabilities or even his right to free legal aid.

Section 8 ensures the protection and safety of persons with disability in cases of any risk, armed conflict, humanitarian emergencies or natural disasters. It requires the District, State Disaster Management Authorities as well as the National Disaster Management Authorities to take suitable measures in this regard and maintain a list of persons with disability in every district.

Sections 9 and 10 majorly deal with home and family rights. Sec 9 prevents the separation of any child with disability, from his parents except by an order of the court and necessary relocation to any family member, community member or any governmental or private run home. Sec 10, deals with the providing of information to persons with disability, relating to reproduction and family planning. It also states that no medical process which leads to loss of fertility to be conducted on such person without informed consent.

Sections 11 to 13 deal with the rights, available to persons with disability, which are promised to every citizen of this country by the Constitution itself. Sec 11 states that it is the duty of the Election Commissions to ensure that the electoral process is understandable and accessible to them. Section 12 reflects the duty of the appropriate Government to make the legal process accessible for such persons with disability and to ensure suitable measure to render justice to such persons especially the ones requiring high support.

Section 13 deals with legal capacity of such persons with disability.  It states that the appropriate Government shall have the duty to ensure that the persons with disabilities enjoy legal capacity equally like any other person and has the right to equal recognition.

Provisions relating to Education

Chapter III of the Right of Persons with Disabilities Act, 2016 speaks about provisions relating to education of children with disabilities as well as duties of educational institutions.

Sec 16 specifically deal with the duties of educational institutes.  It states that the State shall endeavour to:

1. To admit children with disability without any discrimination and provide equal opportunities to them with regards to education, sports and recreational;
2. Make buildings , campus and other facility accessible to children with disability;
3. To provide specific supports to such children in order to maximise academic and social development;
4. To make arrangements for students who are deaf or blind or both;
5. To provide for transportation facilities to children with high support needs.

Sec 17 of this Act, deals with measures to facilitate inclusive education. It makes the following provisions:

1. To make surveys from time to time to assess if special needs of children are being catered to;
2. To establish schools for children with disability and to train teachers to teach such students;
3. To provide books and other assistive educational tools to students;
4. To provide for scholarships to motivate such children;
5. To promote research to improve both teaching and learning skills.

Skill Development and Employment

Chapter IV speaks on topics relating to skill development, vocational trainings and self-employment schemes. The aim of this chapter is to allow people with disabilities to make a living for themselves as well as to be accepted for jobs without such discrimination, where such a disability would not be a barrier.

Sec 19 of the Act specifically talks about the duty of the Government to formulate schemes and programmes for vocational training and self-employment and also provide loans at concessional rates in this regard.

Sec 19 (2) speaks about some types of schemes which have been spoke about in sec 19(1). They are as follows:

1. Inclusion of person with disability in vocational and skill development programmes;
2. To ensure adequate support and facilities to avail specific training for such persons;
3. Loans at concessional rates including microcredit;
4. Marketing products made by such persons with disabilities;
5. Maintenance of data about progress made in these skill development programmes.

  Sec 20 to sec 23 prevents discrimination against persons with disability in matters relating to acquiring employment or in the course of employment.

Sec 20 states that no discrimination shall be made against persons with disability in matters relating to employment and also ensure reasonable accommodation and a barrier free conducive working environment to them. If the profile of the job does not suit such a person with disability, he shall be shifted to some other post with equal pay and benefits. Such an arrangement can function till the time there is an appropriate post for him or till his superannuation.

Sec 22 speaks about maintaining of record of such persons with disability in employment exchanges. Sec 23 speaks about the appointment of a Grievance Redressal Officer for every Government Establishment to address complaints regarding non-compliance of provisions u/s 20.

Social Security, Health, Rehabilitation and Recreation

Section 24 states that within limits of economic capacity, the government shall formulate schemes and programmes to ensure adequate standard of living for people with disability. Sub section 3 talks about a variety of schemes in this regard such as:

1. Community Centres having good safety, sanitation and healthcare services;
2. Facilities for persons including children with disability who have no family or homes;
3. Support persons with disability during any natural disaster;
4. Support women with disability to make a livelihood and to support her children;
5. Ensuring safe drinking water and proper sanitation facilities especially in slum areas;
6. Comprehensive Insurance Schemes with such persons with disability etc.

Sec 25 ensures to such persons with disabilities, barrier free access to free of cost healthcare on priority basis. It speaks of measures like training of staff, screening of children and sponsoring awareness campaigns etc. to achieve this objective. Sec 27 states that the appropriate Government shall, within its limits of economic capacity, make schemes for rehabilitation of such persons with disability. They may provide financial aids to such persons to further the cause of rehabilitation. Sec 28 encourages the Government to initiate research in order to devise ways to rehabilitate such persons. Sec 29 and 30 seeks to ensure that persons with disability have a good social life by way of organising cultural events, recreational activities and sport competitions and ensuring participation of persons with disability.

Special Provisions for Persons with Benchmark Disability regarding Employment

Sec 31 speaks about the right to free education for children with benchmark disability between the age of six to eighteen years in a school or special school of their choice. Sec 32 states that Government Institutions of higher education and other higher education institutions receiving aid from the Government shall reserve 5% or more seats for persons with benchmark disability and also ensure upper-age relaxation for them.  Sec 33 instructs the Government, to identify posts that can be held by persons with benchmark disability, with the help of an expert committee.

Sec 34 states that the appropriate Government shall ensure that at least 4% of the working strength of every Government Establishment is constituted by persons with benchmark disabilities such as:

1. Blindness and low vision;
2. Deaf and Hard of Hearing; and
3. Loco motor Disability including cerebral palsy, leprosy (cured) dwarfism, acid attack victims and muscular dystrophy.

 Also, 1% of the total strength of persons with benchmark disability shall be comprised of:

1. Autism, Intellectual Disability, Specific Learning Disability and Mental Illness;
2. Persons having multiple disabilities mentioned from clauses ‘a’ to ‘d’ of Sec 34(1).

Sec 35 speaks of the appropriate Government providing incentives to private employers who ensure 5% of their workforce is comprised of people with benchmark disability.

Sec 36 speaks about the establishment of special employment exchanges that keep a track of post and vacancies for persons with disability.

Sec 37 states that the appropriate Government shall make schemes in favour of persons with benchmark disability by ensuring 5% reservation for allotment of agricultural land, housing related schemes, poverty alleviation and various other developmental schemes. Women find an express mention about getting priority regarding provisions under this section.

Special Provisions for Persons with Disabilities with High Support Needs

The provisions u/s 38 deal specifically with People with Disabilities with High Support Needs. It states that any person with benchmark disability, who considers himself in need of high support or any person or an organisation, can approach the appropriate Government requesting to provide high support. There shall be an Assessment Board to assess such requests for high support and provide support in accordance to the guidelines of the appropriate Government.

Duties and Responsibilities of Appropriate Government

Enlisted below are the various duties and responsibilities that this Act seeks to confer on the appropriate Government.

1. The appropriate Government shall conduct, encourage, support and promote awareness campaigns and sensitisation programmes to ensure rights of persons with disability. Such programmes shall aim to recognise merits and abilities of persons with disability provide orientation and sensitisation at schools, colleges and workplace (Sec 39);
2. That the appropriate Government shall ensure availability of transport for persons with disability. This would include access to public transport and allowing retrofitting modifications to promote personal mobility among persons with disability (Sec 40);
3. That access to information is made available to persons with disability in all forms i.e. audio, print, electronic media etc.
4. That the appropriate Government shall take measure to promote the production and distribution of consumer products specially made for persons with disability (Sec 43);
5. Ensuring that all structures of Central Government shall be made accessible to persons having disability within stipulated time of 5yrs (Sec 45);
6. Finally to impart training to people of all walks of life such as doctors, lawyers, judges, teachers etc. about the specific needs and to develop respect for their needs.

Institutions for Persons with Disability

Chapter IX of the Act specifically deals with the procedure involving registration of institutions made especially for persons with disabilities. It states that no institution for persons with disability shall be valid without obtaining the Certificate of Registration from the Competent Authority that is established by the State Governments. Grant to such an application for obtaining Certificate of Registration, shall be given, only if the institution adheres to the provisions under this Act. Sec 53 speaks of the provision of appeal in case any person is aggrieved with the decision of the Authority to refuse grant of Certificate of Registration of revoking of the same.

Certification of Specified Disabilities

According to Sec 56 of Chapter X of this Act, the Central Government shall notify the guidelines for the purpose of assessing the extent of specified disability in a person.  It shall be the duty of the appropriate Government to designate certifying authorities in this regard. Any person may approach the certifying authority for issuing the Certificate of Disability in such a manner, as may be prescribed by the Central Government.

Central and State Boards on Disability

Chapter XI speaks about the establishment of a Central Advisory Board and State Advisory Board on disability for advising the Central and the State Governments on framing policy decisions with respect to persons with disability. It further specifies the constituent members, their terms and conditions of service, disqualifications of members of this Board, and the functions that the Board is expected to perform.  Sec 72 speaks about the establishment of a District Level Committee on Disability to perform function regarding persons with disability at the district level.

Chief Commissioners and State Commissioners for Persons with Disability

Chapter XII speaks about the appointment of a Chief Commissioner and a State Commissioner look into matters of laws relating to persons with disability, inquire or suo moto take up matters of discrimination against such persons and monitor the implementation of the Act along with promoting awareness about the rights of people with disabilities. It states that an Annual Report shall be submitted by both the Chief Commissioner and the State Commissioners on matters relating to persons with disability, which are of prime importance. Powers of both the Chief Commissioner and the State Commissioners shall be equivalent to that of a civil court vested under The Code of Civil Procedure, 1908.

Special Courts  

Sec 84 and 85 of Chapter XIII states that the State Government with the advice of the Chief Justice of the High Court shall specify for each district, a Court of Sessions which will act as the Special Court to try offences under this Act. For such Special Courts, the State Government may appoint a Public Prosecutor.

National Fund for Persons With Disabilities 

There shall be a Fund to be called National Fund for persons with disabilities u/s 86. This includes sums grants, gifts, donation, benefactions, bequests or transfers and sums received grants-in-aid.

State Fund for Persons with Disabilities

That a Fund called State Fund for persons with disabilities shall be created by the State Government. The State Fund for persons with disabilities shall be utilised and managed in the manner prescribed by the State Government.

Offences and Penalties

Chapter XVI deals with offences and penalties for punishment for contravention of provisions of this Act or rules and regulations made thereunder. It provides that for first contravention shall be punishable with fine that extends to ten thousand rupees and subsequent contravention shall be punished with fine not less than fifty thousand and up to five lakhs.

For any offence committed by a company, the person in charge, responsible for the conduct of the business of the company, shall be punishable according to the provisions of the Act.

Acts whereby any person:-

1. Intentionally insults or intimidates with intent to humiliate a person with disability in any place within public view;
2. Assaults or uses force to any person with disability with the intent to dishonour him or outrage the modesty of any woman;
3. Having actual charge or control over a person with disability voluntarily or knowingly denies food or fluids to him;
4. Being in a position to dominate the will of a child or a woman with disability and uses that position to exploit her sexually;
5. Voluntarily injures, damages or interferes with the use of any limb or sense or any supporting device of a person with disability;

is punishable with imprisonment not less than six months which may extend up to five years and fine.

Areas of Concern

There are certain areas within this legislation that has created dissatisfaction among members of the community namely ‘persons with disability’. Some of those concerned areas are as follow:-

1. It has been largely believed that this Act is insufficient as far as “reservations” for persons with disability is concerned;
2. Some people have raised questions about the ‘loose language’ that has been used in provisions relating to discrimination and guardianship;
3. Also, in spite of the number of disabilities covered under this Act has been increased to 21 against the previous Act of 1995, yet many disabilities are yet to be covered under the ambit of this Act.

Conclusion

For persons with disability, such a piece of legislation happens to be a boon and no less. This Act deals with issues relating to the rights of persons with disabilities comprehensively. It also mandates the Government to perform its duties in the most diligent manner and make schemes and programmes towards the welfare of the community. Only time can tell, as to how far such a legislation shall penetrate the idea of belonging and acceptability, in the minds of Indian masses, about persons with disability. But this Act certainly is a step in that direction.