Resist Attempts to Weaken Penal Provisions that hold entities accountable for violation of RPWD Act.
Put Rights of Marginalized Citizens Before ‘Business Sentiments’
Stop the Patronizing ‘Divyang Politics’! Ensure Accessibility as a Fundamental Right!
5th July, 2020: National Alliance of People’s Movements (NAPM) is outraged at the spree of pernicious changes that the current dispensation is bringing forth to various laws to undermine the hard-won rights of citizens. Even as we deal with Covid and lockdown, we have witnessed problematic provisions being introduced through ‘proposed amendments’ to environment, labour, electricity, transgender rights and many other laws.
As part of its ‘Post-Covid Economy Revival Strategy’, the Central Govt has now hurriedly come up with a proposal to amend the Rights of Persons with Disabilities Act, 2016, (RPwD), a legislation that has a painful history of decades of struggle by lakhs of persons with disabilities across the country. Notably, while the Act itself has not been effectively implemented in the past 4 years, the Government seeks to dilute its provisions since it is ‘impacting business sentiments’ and investments from both domestic and foreign investors! Thus, far from creating an enabling and empowering environment required under the Act, the Modi Govt. is launching a veiled attack on the one of the most marginalised and neglected sections of our society.
We express our outright condemnation of the current move to weaken the penal provisions of the RPwD Act that actually ensures accountability towards the other enabling aspects of the law. It is most unfortunate that the Union Social Justice and Empowerment Ministry (MoSJE), which is charged with the responsibility to strengthen the rights of the marginalized communities has been spear heading some of these retrograde changes! After pushing the deeply objectionable Draft Rules for the ‘Rights of Transgender Persons Act’ during lockdown, the Ministry has now, through the Department of Empowerment of Persons with Disabilities, embarked on this process of amending the RPwD Act!
The proposal put out by the Ministry a couple of days back expresses the need for “De-criminalizing Minor Offences for Improvising Business Sentiment and unclogging Court Processes” and thereby adversely strike at the core of the Act itself. The proposed amendment aims to debilitate the penalty clauses under Sections 89, 92 (a) and 93 of the RPwD Act by making certain offenses ‘compoundable’. The law, as it exists provides for the following penalties:
a) Sec 89: Any person who contravenes any of the provisions of the RPwD Act or Rules, shall for first contravention be punishable with fine upto Rs. 10,000/- and for any subsequent contravention with fine not be less than Rs. 50,000/- and upto Rs. 5 lakhs.
b) Sec 92 (a): Whoever 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 than six months but which may extend to five years and with fine.
c) Sec 93: Whoever, fails to produce any documents or information required as per RPwD shall be punishable with fine upto Rs. 25,000/- in respect of each offence, and in case of continued failure or refusal, with further fine upto Rs. 1,000/- per for each day, of continued failure.
The proposed amendment seeks to introduce a new Sec 95-A which provides that any offence under Sec 89, 92 (a) and 93 may either before or after the institution of proceedings, be ‘compounded’ by the Chief Commissioner for Persons with Disabilities or the State Commissioner for Persons with Disabilities with the consent of the aggrieved person with disability, by such amount and in such manner as the Central Government may, by notification, specify in this behalf. 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.
Activists working on the disability front for long, opine that penal provisions for contravening the provisions of a law enabling a marginalized section must be seen not as an ‘impediment’, but as necessary for robust compliance, leading to an inclusive and equitable society. Diluting these penalties, is akin to legitimizing offensive behaviour against persons with disabilities and making public and work spaces more unsafe and inaccessible for them. The provision against humiliation is already quite restricted, in that, it can be invoked only if such an act happens in a public space. To compromise even on that, is a complete affront on the dignity of lakhs of disabled people.
Be it noted that, for over two decades, the absence of effective penal provisions was one of the reasons for non-implementation of various provisions in the (now repealed) Persons with Disabilities Act, 1995. Further, in the absence of adequate and credible data available with the National Crime Records Bureau (NCRB) regarding actual number of cases registered under the said provisions of RPwD Act and penalties imposed, these amendments are completely preposterous.
It is also understood that while initially the ‘invitation’ to submit comments on these proposed amendments was extended towards end-June, only to 7 organizations mostly in Delhi, the Ministry, responding to criticism, subsequently put up the proposal on its website two days back, ‘seeking public feedback’. However, the deadline ‘to furnish comments’ by 10th July (mere 10 days) is woefully inadequate! Concerns have been expressed that the State Disability Commissioners have not even been informed or taken into confidence about this move. The proposal is also in an inaccessible format of communication i.e. not inclusive of all official and other diverse languages, display of text, Braille, tactile communication, large print, accessible multimedia, written, audio, video, visual displays, sign language, plain-language, human-reader, augmentative and alternative modes and accessible information and communication technology.
Sadly, the Rights of Persons with Disabilities Act, 2016 (RPwD) Act itself has never been effectively implemented as per the United Nations Convention on Rights of Persons with Disabilities, 2006. RPwD Act is a stated commitment of Govt. of India under international law that the provisions of the UN Convention (which it ratified in Oct, 2007) would be complied with in letter and spirit. However, many aspects of the Act including accessibility in all government buildings, full and effective participation and inclusion in society etc, ensuring adequate budgets and setting up the necessary monitoring infrastructure are far from implemented.
‘Ease of doing Business’ should not mean a vile negation of the hard-won rights and dignity of the marginalized. Instead of being a democracy of, by and for the people, the current regime is pushing India to become a land of, by and for corporates and big businesses! By amendments to Sec 89, 92(a) and 93, the Govt. is attempting to take away the limited teeth of the RPwD Act to ensure its compliance. This move is also in violation of the fundamental right to dignity, equality, non-discrimination, free movement and right to life of persons with disabilities under Articles 14,15,19 & 21 of the Constitution.
The Union Ministry of Statistics and Programme Implementation, in a Report of 2018 indicates that persons with disabilities constitute at least at 2.2 percent of our population, which is a huge number. The Govt. cannot bring in amendments in such a cavalier manner that would affect almost 2.68 crore people. If, all the patronizing rhetoric of ‘Divyang’ and Sabka Saath, Sabka Vikas aur Sabka Vishwas’, ends up leaving the disability community more marginalized, it only exposes the utter callousness of this regime.
National Alliance of People’s Movements (NAPM) unequivocally opposes these amendments and calls upon the Govt. of India to listen to the experiences and concerns of disability community and immediately roll back these changes that will have an adverse impact on their well-being.
We demand that no changes to the RPwD Act, 2016 must be made in violation of the UN Convention on RPwD and without wide-ranging, inclusive and accessible consultations with the disability community and its allies, at large. Instead, the 2016 Act must be implemented, as per the framework of the UN Convention.
We stand in solidarity with all persons with disabilities, disability rights organisations and activists in their legitimate struggle against the proposal to dilute and nullify the penal provisions contained in the Rights of Persons with Disabilities Act, 2016.
We call upon all supportive political parties, state governments and other socio-political organizations and unions to take a stand against these highly violative amendments and amplify the voices of the persons with disabilities.
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