On June 30, a disabled woman contractually employed requested the deputy manager at the Andhra Pradesh Tourism department, to wear a mask. Infuriated in response, he started pulling her by her hair and threw her down on the floor, after which he started beating her with an iron rod. This incident happened in Nellore. The CCTV footage of this incident soon became viral and the police arrested the man. However, the sections under which he was charged were from generic laws and punishment clauses of the Rights Of Persons With Disabilities Act were not invoked. It may or may not have been a purposeful omission – because very few police officers or lawyers know about the provisions of the disability law which was passed in 2016 and subsequently, became instrumental in 2017. The truth is, very few disabled persons in India have proper information about the Disabilities Act, especially if they are insulted or faced with attacks.
So, it came as a shock to the quite marginalised disabled community of India, when the Department of Disability Affairs published a notice proposing amendment to the penalty clauses of the Disabilities Act under the title – “Decriminalisation of Minor Offences For Improving Business Sentiment And Unclogging Court Processes – Amendment in RPwD Act, 2016”
To state that charges on the basis of the Disabilities Act are clogging or hampering court processes can be termed as the biggest joke of the decade. In reality, that only a miniscule number of court cases invoke the disability law has been a matter of several significant discussions and debates within the disability groups. So, what becomes obvious is, that “improving business sentiment” or to help the corporate sector is the ulterior motive behind proposing the amendments. It will be interesting to note that the Disabilities Act is not the only law that the current government seeks to amend for the same reasons. In fact, in the first half of June, the finance ministry proposed the decriminalization in as many 19 laws, including Negotiable Instruments Act, LIC Act, PFRDA Act, RBI Act, Banking Regulation Act, and Chit Funds Act with the purpose of improving business sentiments.
Naturally, disabled people and the disability activists of India are furious. They fought for very long to get the Disabilities Act passed in 2016. In 1995, India’s now redundant disability law – namely Persons with Disabilities Act was enacted. Very soon, disabled people realised its toothlessness as there was no penal provisions in same. For example, it mandated that all public buildings should be barrier-free, but did not mention the punishment that will be awarded to the defaulters. There was a long history of attempts to amend the PwD Act of 1995. However, after India ratified Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007, the Indian disability movement demanded a totally new law instead of amending the old one. This demand gave birth to the current law. Many of the disability activists were relieved that now they have a disability law which contains punishment clauses for violation. Apart from changes in definition of disability, inclusion of newer categories of disabilities, the punishment clauses became the highlight of the Disabilities Act, 2016.
And in the midst of the pandemic, when disabled people are among the most vulnerable, the government wants to amend these very provisions of this Disabilities Act that provided some sense of “empowerment” to the community.
There are various reasons to condemn the suggested amendment to the Disabilities Act. The Disabilities Act is a special law that was enacted based on UNCRPD that India ratified. So diluting any articles in this law means India is failing to fulfill its international obligations. The amendment notification says that it aims to decriminalise minor offences. But it does not say which offences under this law will be categorised under “minor” offences. The Disabilities Act lists out many offences, which includes –
a) Intentionally insults or intimidates with intent to humiliate a person with disability in any place within public view;
b) Assaults or uses force on any person with disability with intent to dishonour him or outrage the modesty of a woman with disability;
c) Having the actual charge or control over a person with disability voluntarily or knowingly denies food or fluids to him or her;
d) Being in a position to dominate the will of a child or woman with disability and uses that position to exploit her sexually;
It is important to note here that like the Nellore case mentioned at the onset, since its passage the Disabilities Act has not been invoked in a single case of sexual assault on children or women with disabilities. Rape or sexual assaults are booked under POCSO or CLAA of 2013 – both of which have substantive disability specific clauses. But if penalty clauses are diluted, how will a person with disability demand justice if someone intentionally insults them in a public place? I have personally seen many disabled people from rural Bengal’s face light up when I read out this clause of the Disabilities Act to them. Majority of them have never heard about United Nations, but for them, this one clause is a reason to believe that they too can live a life with dignity, especially given how public spaces are arenas of several tangible forms of discrimination that the disabled community face in India.
From a feminist point of view, a major area of concern is the following clause in the existing Disabilities Act that makes the following a punishable offence – “Conducts or directs any medical procedure to be performed on a woman with disability which leads to or is likely to lead to termination of pregnancy without her express consent except in cases where medical procedure for termination of pregnancy is done in severe cases of disability and with the opinion of a registered medical practitioner and also with the consent of the guardian of the woman with disability, 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.”
As it is this clause of the Disabilities Act was debatable, given how it gives power to the “guardian” of a disabled woman to take decisions about her reproductive rights. Now, with the proposal of Section 95A as an amendment to the Disabilities Act that states the Chief or the State Commissioners for Persons with Disabilities have the right to compound the cases, or withdraw the cases with the consent of the aggrieved parties. This will further throttle the voice of a disabled woman. Even though the amendment to the Disabilities Act says that the petitioner’s consent will be sought, will a disabled woman get a chance to talk against her own family member if hysterectomy is forced on her?
It is important to emphasise here that these changes are not being proposed keeping in mind the interests of the disabled people, it is, rather, pro-corporate and pro-business. NASSCOM stated in December 2019 that merely the persons with disability constitute a meagre 0.6-1 percent of India’s IT sector. The Confederation of Indian Industry listed 37 laws that should be amended in India for ease of business and the Disabilities Act was not in that list. It is not clear which company found it difficult to do business in India due to the Disabilities Act. The Indian government’s apathy towards one of the most vulnerable groups in the country, especially in a pandemic-stricken state when the community needs more state support, is now evident with the amendments proposed to the Disabilities Act.
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