United protests forced the government to withdraw the proposal to decriminalise ‘minor offences’ within a week. But, the campaign for disability rights needs to be intensified.
Coming from a nondescript village in rural Chhattisgarh, poverty and destitution forced Shakeel, who is in his early 20s, to migrate to Delhi. Though not having much of an education, he was ecstatic when in December 2016, the Rights of Persons with Disabilities Act (RPD Act) was passed in Parliament.
As a child afflicted by polio early in life, Shakeel was subjected to ridicule and abuse because of his impaired mobility. Not that he would have actually lodged a case against anyone who abused him, but the sheer sense of empowerment that flowed from penal provisions contained in the RPD Act was a big relief for people like him. Tears rolled down his cheeks, when in a meeting that he attended, we shared details of the newly passed law that said anybody insulting the disabled could be jailed.
This provision flowed from Section 92 (a) of the Act which laid down that whosoever, “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 the six months but which may extend to five years and with fine”.
For the first time, after facing centuries of stigma, insult, humiliation and discrimination, the disabled in the country had a law that had equality and non-discrimination as its guiding principles. This was to give effect to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which India ratified in 2007.
The new law, unlike its earlier version — the PwD Act — of 1995, had teeth in the form of penal provisions. For crores of disabled persons in India, tampering with this particular section of the law amounted to blasphemy.
And this is exactly what the Narendra Modi government sought to do in the name of “decriminalising” “minor offences”.
This backfired. What followed was a wave of protests on various platforms that had the potential to damage the government’s image. Faced with unprecedented unity and resolve displayed by the disabled community, represented by their organisations and activists, the government buckled and declared that “Keeping in view the overall sentiments of the majority stakeholders, the department is now of the considered view that going ahead with the proposed amendment for the compounding of offences may not be in the interests of persons with disabilities…… and not to pursue the proposed amendment to the RPwD Act, 2016”.
The government withdrew the proposal within a week of it being floated, as it had totally miscalculated the amount of backlash it would generate.
So, what exactly was this proposal?
The story goes like this. On July 1, the Department for Empowerment for Persons with Disabilities sent invites to seven select organisations, seeking their response to its proposal to amend the penal provisions in the RPD Act.
This selective manner of choosing representatives of the disability sector was challenged by the National Platform for the Rights of the Disabled (NPRD). While the Act recognises 21 conditions of disability, representatives of only three were invited, besides two cross-disability NGOs.
The non-representative character apart, the manner in which the government sought to go about pushing its proposal, was met with disapproval, discomfort and suspicion. The NPRD initiated a statement opposing the amendments which was endorsed by 467 disability rights groups, activists and people. Hundreds of individual petitions were also sent to the department, apart from articles and social media campaigns, opposing the amendments.
Incidentally, a day prior to that, on June 30, a video was shared extensively on social media of a disabled woman employee being brutally beaten up by her superior in Andhra Pradesh Tourism’s office at Nellore. After an uproar, the accused official was arrested and suspended, but Section 92 (a) of the RPD Act was not invoked. This is not an isolated instance. Police are either unaware of the provisions of the Act or refuse to invoke these even when the complainant demands.
In March 2019, dozens of people responding to the NPRD’s call went to police stations to register complaints against no less a person than Prime Minister Modi, who, during the ‘Smart India Hackathon 2019’, had sought to make fun of those with dyslexia. That none of these were converted into FIRs is a telling commentary on our criminal justice system. But the disabled had a weapon in their hands, which they presumed they could use even against people occupying high offices if they erred. It was this weapon they were sought to be disarmed of.
The proposed amendments also sought to dilute Section 89 of the Act which provides for punishment for “any person who contravenes any of the provisions of this Act, or of any rule made thereunder”, and section 93 which provides for a fine “which may extend to twenty-five thousand” for failure “to produce any book, account or other document…….which under the Act….. it is duty bound to produce…”.
All these offences were sought to be made “compoundable” by the Commissioner of Disabilities, either at the Centre or the States. Compounding would imply settling the case. And when that happens, as per the proposed amendment, the offender is discharged and no offence is deemed to have been committed.
The female employee who was beaten up by her superior in the AP Tourism office at Nellore could have been coerced to consent to compounding the offence had the amendment gone through. It could have been done effortlessly given her multiple vulnerabilities. She was a woman, a woman with disability, and on top of it, on contract employment. With various hierarchies in place, one can very well imagine what would have happened.
Under the plea of decriminalising “minor offences”, the very nature of the RPD Act was sought to be drastically altered. It is the lack of penal provisions, in the first place, that contributed in no small measure to non-compliance of the now repealed Persons with Disabilities Act, 1995 (PwD Act). The attempt was to defang the current RPD Act and condemn it to the same fate.
Had the amendment gone through, it would have been a pitiable state. Offences were to be compounded by the Disability Commissioners. This, when many states have not yet appointed state commissioners. The post has been lying vacant since over two years at the Centre, too. Currently, such cases are to be tried before special courts at the district level. The insensitivity is compounded by the fact that many states are yet to frame rules, even three years after the Act coming into force, despite the Act setting a six-month deadline.
While the argument peddled for such dilution is that it would encourage an “investor-friendly” climate, it fails in justifying the categorisation of some offences as “minor”. By no stretch of imagination can offences listed under the Sections that were proposed to be amended, be considered “minor”. It also makes a fictitious claim that “given the nature of pendency in Courts at all levels and the time taken for resolution of disputes, legislative matters are required to be considered to restore thrust in doing business”. Data, or the lack of it, however, belies the government’s claim.
Surprisingly, the RPD Act was not among the 37 legislations for which industry lobby, Confederation of Indian Industry, sought amendments in February this year. They were mainly in the realm of finance. For at least 19 of these, the government has come up with proposals for amendments. And in all of these, the same rubric of “decriminalisation” of “minor” offences has been used to serve the purpose of removing “deterrents” that “impact investments”. How a social protection legislation falls in this category, is intriguing. In fact, worldwide, best practices are being encouraged for inclusion.
Lastly, had the government displayed the same zeal in implementing the recommendations made by the UN Committee on the Rights of Persons with Disabilities, things would have been different. The UN Committee had in September 2019 recommended, among other things, amending the Indian “Constitution to explicitly prohibit disability-based discrimination and repeal section 3.3 of the Rights of Persons with Disabilities Act 2016….”. The reference to the Indian Constitution was to Article 15(1) and 16(2), which, while specifying other grounds on which discrimination is prohibited, does not include disability. Section 3(3) of the RPD Act is a controversial clause which legitimises disability-based discrimination.
‘Ease of doing business’ or providing an investor friendly climate cannot be done at the cost of depriving and negating the hard-won rights of the marginalised, which these amendments sought to do. And these proposals are being made when the disabled are fighting for their very survival in a pandemic situation and the impact of an unplanned lockdown that saw large sections losing their sources of livelihood, with hundreds queuing up before “hunger centres” in Delhi.
For the time being, the proposal has been defeated in the face of stiff resistance. But, this is also a warning that we have to be on our guard. The need of the hour is unity among all sections of the marginalised to defeat such manoeuvres. It is time, therefore, to step up the campaign to amend the RPD Act to get rid of its weaknesses, as also for implementation of various provisions in the Act.
The writer is General Secretary, National Platform for the Rights of the Disabled. The views are personal.