On July 1, the Department of Empowerment of Persons with Disabilities under the Ministry of Social Justice and Empowerment put out on its website a proposal to amend certain provisions of the Right to Persons with Disabilities Act, 2016 (RPWD Act), and invited public comments for the same.
To realize the aspirations of the United Nations Convention on the Rights of Persons with Disabilities, India enacted a robust legislation namely RPWD Act in 2016, replacing the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Not even four years since the enforcement of the Act, the Central government has come up with a drastic proposal to amend certain penal provisions of the Act. The objective of the government is to decriminalize minor offences, but it entails undoubtedly several other major repercussions.
Before diving into the analysis of the proposed amendment, it would be pertinent to have a glimpse of current provisions. The proposed amendment attempts to review Sections 89, 92(a) and 93 of the RPWD Act.
Section 89 provides that any person who violates any mandate of this Act or the Rules made thereunder shall be imposed fine upto ten thousand rupees for the first violation and for continuous violation, "not less than fifty thousand rupees but may extend to five lakh rupees",
Under Section 92(a), intentionally insulting or threatening with intent to humiliate a person with disabilities in public places is made punishable with imprisonment for a term which "shall not be less than six months but which may extend to five years and with fine".
As per Section 93, whoever fails to provide any account/documents/information on demand by any authority under the Act shall be punishable with fine which may extend to twenty-five thousand rupees in respect of each offence. Continued failure or refusal will invite a fine which may extend to one thousand rupees for each day.
The government has proposed the idea to insert a new Section 95A under the Act to dilute above given all the three sections which is reproduced below:
"95A. (1) any offence under Section 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, as the case may be, 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.
(2) Where an offence has been compounded under sub-sections (1), the offender, if in custody, shall be discharged and any proceeding in respect of such offence, shall be dropped."
In other words, the offences provided under Section 89, 92(a) and 93 would be made compoundable. The offender and aggrieved party can settle the dispute under the supervision of Chief Commissioner for Persons with Disabilities or State Commissioners for Persons with Disabilities as the case may be, and the offender would be discharged from custody and any other liabilities.
The title of the proposal 'Decriminalization of Minor Offences for Improving Business Sentiment and Unclogging Court Processes' is self-explanatory. In the aftermath of the COVID-19 crisis, the endeavour of the government is to revive the economy at any cost. The aim of the government is to decriminalize minor offences to promote ease of doing business and attract investments both from domestic and foreign investors. In essence, these are the main reasons for the government to propose this amendment:
To pave the way for the ease of doing business
To unclog the court system and prisons
Attract investors to remove the obstacles created due to the deterrent effect of petty offences
Speedy disposal of cases for minor violation without involving serious offence
To ensure proper implementation of the RPWD Act.
The proposed amendment has infused the seeds of apprehension in the minds of disability rights activists and other stakeholders. There is no official data to substantiate the claims that these provisions are becoming or will become an impediment in the path of reviving the economy. It appears that in the garb of economic revival, the government wants to dilute the effectiveness of the Act, as the reasons given for the proposed amendment do not seem logically tenable.
The promotion of ease of doing business is not a cogent justification for diluting these provisions, as many foreign countries have more robust laws than our country where persons with disabilities can easily sue companies or organizations for non-compliance of accessibility requirements. All the companies and investors do not see such laws as obstacles in economic growth in those countries. Therefore, many disability rights activists and civil society organizations have vehemently criticized this proposed amendment and labelled it a pro-corporate move.
The fact is that owing to lack of awareness and resources, very minuscule number of persons with disabilities and their issues attract the attention of the courts. Consequently, there is no urgency to amend the Act as it would certainly not help to unclog the court system and prisons. NCRB does not collect disability-specific data, hence there are no records to delineate the misuse as well as over-use of laws by persons with disabilities.
Furthermore, any such amendment under Section 89 would have several repercussions, as the ambit of the said section is very wide. Section 93, which mandates disclosure of information, plays a vital role to track the implementation status of various provisions of the Act in different institutions and establishments. Additionally, Section 92(a), which prohibits intentional humiliation of persons with disabilities, involves an essential component of the right to live with dignity. Therefore, the government should not interfere with the teeth of these provisions.
It is evident that Section 92(a) contains a similar provision to what is seen under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In the case of Subhash Kashinath Mahajan v. The State of Maharashtra, the Supreme Court diluted certain provisions of the SC/ST Act contending that they could be misused. The cCntral government itself came forward and overturned the judgment by enacting The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018. On the same line of argument, diluting the provisions of the RPWD Act would adversely impact the rights of persons with disabilities.
Besides, making these offences compoundable would be very problematic for persons with disabilities. Needless to say, they are the most vulnerable and marginalized community and it would be very easy for strong institutions/individuals to push them on the table of settlement by hook or by crook.
Moreover, Section 97 of the RPWD Act provides that any complaint cannot be made against the office of the Commissioner for anything done in good faith under the Act or Rules. Thus, if the persons with disabilities would be pressurized to give consent for settlement, they would be left with no redressal.
As a matter of fact, till this date, there are many states which have not framed and implemented the rules on the functioning of the disability commissioners. In this backdrop, entrusting this task with them would certainly turn the idea of access to justice into crisis of justice for persons with disabilities in general, and women with disabilities in particular.
Also, it is discomforting that the proposed amendment provides that the Centre would notify the amount or manner for the compoundable offences. Disability rights activists contend they do not want to leave such major things to the whims and fancies of the governments, as everyone is aware of their lackadaisical attitude with regard to the issues of persons with disabilities.
It is to be noted that in September 2019, the UN Committee on CRPD recommended India to amend certain sections and insert comprehensive provisions for establishing a more robust redressal mechanism under the Act. But, instead of making the Act more effective and comprehensive, these proposed amendments would further weaken the disability rights regime.
In 2016, India enacted the ‘rights based’ disability law, taking a shift from the charity-cum-welfare model. The proposed amendment has the potential to dilute the effectiveness of the Act. The previous 1995 Act had many lacunae, specifically the lack of stringent provisions that rendered it mostly ineffective.
Disability rights activists and other stakeholders should vociferously criticize this proposal and urge the government to drop it. Decriminalizing minor offences related to solely financial matters is a plausible move of the government. But, the said proposal does not involve only pecuniary interest.
It is to be noted that the Act contains several provisions that oblige the Central government as well as the state governments to perform certain tasks related to accessibility requirements within a stipulated time framework. However, barely any progress can be traced in this regard, even after several judicial interventions. Instead of making such unnecessary amendments, the government should endeavour to ensure the proper implementation of the Act. The need of the hour is to earnestly advise the government not to render the RPWD Act another example of tokenism for the persons with disabilities.
The author is a third year student at Law Faculty of Law, Jamia Millia Islamia.