Introduction  

According to the World Health Organisation (WHO), about 15% of the global population has a disability, out of which 80% of them live in countries in the South¹. As per our latest Census, the 2011 Census, the number of persons with disability (PWD) in India was approximately 2.21 Crore². The numbers from the Census indicated that disability was significant in our social structure. Therefore, we needed a legislation which would respond to the socio-economic challenges faced by the PWD and create a more inclusive society where individuals with disabilities are integrated into the society rather than being marginalised. Earlier, India followed the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act). But after India ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), it realised the need for a legislation at par with the international convention, thus resulting in the passing of the Rights of Persons with Disabilities Act, 2016 (RPWD Act) which replaced the PWD Act. We will understand the history of the RPWD Act, 2016 along with the changes from the PWD Act and the rights laid down in the 2016 Act, which is the current legislation. 

Understanding The RPWD, 2016 – A Socio- Cultural Perspective  

Until the 1970’s, in India persons with disability were treated as outcasts and they faced injustice all the time. But in contrast to the situation in India, the Western disability rights movement (DRM) gained prominence, primarily because after World War II, many soldiers returned home with several disabilities, thus becoming the initial source of the DRM. Their rights saw some success because they were considered heroes, therefore they were supported by the public immensely.  

In the 1970’s, India had not yet begun to recognise the rights of PWD. Throughout the 1970’s and 1980’s, the DRM remained a struggle between only a couple of individuals and the system. Not everyone fought for their rights out of fear of being treated as outcasts, since even family members of the PWD experienced stigma by association and were looked down upon. Any form of assistance given to the disabled population was seen as charity rather than giving legitimate rights to the PWD. But activists like Baba Amte, began to raise awareness and sensitized people towards the cause of fighting for the rights of PWD.  

1. How did PWD Act, 1995 come into place? 

After being inspired from prominent social activists like Baba Amte, people realised the importance and started joining hands with the DRM. The 1980’s saw a shift from a Welfare model to a Developmental model wherein PWD who were previously treated as recipients of charity were now part of a developmental process. By the end of 1980’s, people focused on the PWD from a medical perspective, by assisting with medical treatments and technical equipment. The United Nations (UN) declared 1982-1993 as The Decade of Disabled Persons³, which prompted India to establish the Rehabilitation Council of India in 1986, followed by the Mental Health Act, 1987.

During the 80’s and 90’s, several NGOs came up and they collectively brought in different ideas and consolidated demands regarding accessibility and rights of the PWD. This was followed with a series of protests and petitions, which resulted in the Government passing the PWD Act, 1995. Through this Act, a PWD category with 3% reservation was made in all government posts. Thus, in 1995, PWD gained recognition and inclusion in education and government sectors.  

2. Current legislation 

On 1st October, 2007, India ratified the UNCRPD, which placed emphasis on dignity and recognised that disability while being an evolving concept, results from “interactions between persons with impairment and the attitudinal and environmental barriers” that impede their participation in society. This focus called for reflection on psychosocial and environmental barriers and the role they play in limiting functioning and disabling folx when working on affirmative action. 

 The RPWD Act, 2016 was passed in alignment with the Convention, and encompasses various spheres – educational, social, economic, legal, political and cultural. The RPWD Act incorporates a rights-based approach – a step up from the previous 1995 Act, which promised reservation, education, rehabilitation programmes etc. for persons with disability, holding a charitable stance.   

The Preamble of the 2016 RPWD Act aims to uphold the dignity of every PWD in the society, prevent any sort of discrimination against them and protect them from discrimination. The Act also includes certain definitions that were not there in the previous Act such as person with benchmark disability, care giver, discrimination and high support.  

Shifts In Legislation: Moving From The Act Of 1995 To The RPWD Act, 2016 

Some of the major shifts from the PWD act, 1995 to the RPWD Act, 2016 are: – 

• Approach applied – The 2016 Act is a medico-social model which incorporates the rights-based approach emphasising dignity and autonomy of PWD as opposed to the 1995 Act which followed only a medical model which rendered the Act more charity based. This shift is seen in the definition of disability, where previously disability was viewed through a medical lens without taking into account any of the social context. In contrast, ‘person with disability’ is defined as “someone with a long-term physical, mental, intellectual, or sensory impairments which, in interaction with  barriers, hinders their effective participation in the society equally with others”⁴. This shift shows that the Act acknowledges that disability is also a social concern influenced by environmental and societal factors and not just an individual medical issue. 

• Change in definition of “mental illness” – Previously mental illness was described as any disorder other than mental retardation⁵. But the definition is now elucidated and the Act defines mental illness as, “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgement, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life”⁶. 

• Disabilities recognised – Previously only 7 disabilities were recognised, but in the 2016 Act, 21 disabilities are recognised and defined, widening the scope of the Act.
• Rights and benefits for benchmark disabilities – Children aged between 6-18 years are given free education. There is a minimum of 5% reservation in government jobs and educational institutions. An age relaxation of 5 years to apply for educational admissions is provided.
• Offences and penalties – The old act did not provide for offences and punishments, but the RPWD Act, 2016 specifies the quantum of punishment as well as the redressal mechanisms available.

Rights Of Persons With Disability  

There are certain rights and entitlements of persons with disability are mentioned in Chapter II of the Act, from section 3 to section 15. With the shift from the PWD Act 1995 to the RPWD Act 2016 there have been several rights which are now recognised by the current Act. The RPWD Act explicitly states’ rights with regard to legal capacity, reproduction, voting, guardianship and justice. The provisions are: – 

• Equality and non-discrimination – Section 3 states every PWD have the right to live with dignity and shall be treated equally in the society. Their disability shall not be a ground for discrimination. 

• Women and children with disability – Section 4 states that the Government and local authorities must ensure that women and children with disabilities are able to enjoy their rights equally with others.

• Right to live in a community – Section 5 states that a person having disability, that does necessarily need to be hospitalised or put in any rehabilitation centre. The person has all the right to live in the community.
• Protection from cruelty and inhuman treatment – Section 6 provides that having a disability does not to give the right to torture or treat the person with disability any differently. All persons have the right to be protected from cruelty and inhuman treatment. 
• Protection from abuse, violence and exploitation – Section 7 provides protection from abuse, violence and exploitation. If there are any instances of abuse, violence or exploitation against persons with disability, a complaint can be filed with any executive magistrate or judicial magistrate, and free legal aid has to be provided to the person. This is a mandate under section 7  
• Protection and safety – Section 8 of the Act provides for equal protection and safety when any situation of risk, armed conflict, natural disasters or humanitarian emergencies arises. Recent example of the implementation of this section would be during COVID-19. The Central Government formed the ‘Comprehensive Disability inclusive guidelines for protection and safety of persons with disabilities during COVID 19’. According to the guidelines, the State Governments are instructed to follow general action points, these include not applying lockdown restrictions to care givers, ensuring that information is accessible (through braille, sign language), providing training to the emergency service providers on how to treat PWD and provide them the treatment that they require and so on.
• Home and Family – Section 9 states that disability shall not act as a ground for separation of a child from his or her parents unless it is an order given by a competent Court and it is needed to be done keeping in mind the best interests of the child. This applies both ways, in cases where the child has a disability and in cases where either or both the parents have a disability. 

• Reproductive rights – Section 10 prevents a PWD to be subjected to any medical procedure which results in infertility or in any way harms their ability to reproduce, without their free and informed consent. 
• Accessibility in Voting – Section 11 makes sure that the PWD have access to all the polling stations and the technology used and the entire electoral process is easily understandable by the person. Therefore, the Election Commission of India ensures that the polling stations are all disability friendly. 
• Access to Justice – This is discussed under Section 12. Access to justice would include access to the Court, providing necessary equipment in the Court. The Government shall make sure that all public documents are available in an accessible manner. Everything required for a Court proceeding, such as, storing, filing, the documents, the evidence, recording of the testimonies, arguments or even the opinions given by persons with disability shall be recorded in a manner preferred to them, in terms of the preferred language and the means of communication. There are certain mandates in the Court such as wheelchairs must be made available and documents must be available in Braille for the people with blindness. 
• Legal Capacity – Section 13 states disability cannot be used as a reason to restrict a person’s right to own or inherit any form of property, control their financial affairs or have access to bank loans, mortgages and other forms of financial credit. Every person with a disability has a right to enjoy his or her legal capacity at par with others, without any hindrance. 
• Guardianship – Section 14 talks about guardianship which is divided into limited and total guardianship. Limited guardianship is where a joint decision system is followed. It’s limited to a specific period, decision or situation. It operates in accordance with the will of the person with disability. In most cases limited guardianship is provided. Total guardianship is where limited guardianship is granted repeatedly and can be given only in cases where a person has severe disability, for instance, severe mental retardation, and is unable to make decisions on their own. 
• Educational rights – Section 16 requires the appropriate government and local authorities to ensure that educational institutions that are funded or recognised by them must provide inclusive education to the children with disabilities.

Conclusion  

The article gives the readers a brief of the historical aspect of the Act and of certain rights and entitlements provided by the RPWD Act 2016. After the ratification of the UN Convention on Disability Rights, our country has progressed by making few major shifts from the 1995 Act to the 2016 Act. Now the rights-based approach is the aim and purpose of the Act. The Act has been made more inclusive by addressing a greater number of disabilities, providing redressal mechanisms and stringent penalties for offences committed against PWD and improving the accessibility factor across various sectors.  

While the enactment of the RPWD Act, 2016 marks a significant step towards societal growth, it becomes imperative to see to the implementation of the Act in various sectors, which would result in a healthy and inclusive society for everyone to live in. In our next article, we will explore the role of diversity, equity, inclusion and belonging (DEIB) from an organisations’ perspective, providing the compliance measures and the consequences of non-compliance of the same. 

FAQs:

Written by: Kanika Shenoy, Reviewed by Deeksha Rai and Rosanna Rodrigues 

Source:

¹ World Health Organization, Global Report on Health Equity for Persons with Disabilities. World Health Organization, “Disability”. 

² Office of the Registrar General & Census Commissioner, India, Measurement of Disability through Census: National Experiences: INDIA (2011), available at CENSUS OF INDIA 2011 DATA ON DISABILITY 

³ United Nations| Dept. of economic and social affairs, available at History of United Nations and Persons with Disabilities – United Nations Decade of Disabled Persons: 1983 – 1992 | United Nations Enable 

⁴ Persons with disabilities Act, 1995, No. 1 of 1996, S.2(s). “Person with disability” 

⁵ Persons with disabilities Act, 1995, No. 1 of 1996, S.2(q). “Mental illness” 

⁶ Rights of Persons with disabilities Act, No. 49 of 2016, S.(zc), “Specified disability” as mentioned in the Schedule.