Disabilities Bill, a Landmark Achievement

Of the current decade, the people of this country will remember month of December 16 for two reasons: One of a shocking reminder and the other of jubilation. The first pertains to the ghastly and shocking incident of gang-rape of a 16-year-old girl in the national capital four years ago. The second and the most recent one, marks an important date for the physically challenged in the country. It was on this very day that the Lok Sabha, despite frequent disruptions throughout the Winter Session, in a rare display of bipartisan unity, got together to pass the ‘Rights of Persons with Disabilities Bill, 2016’. This was indeed a watershed moment for the disabled lot; for civil right activists, who have been fighting for their cause since decades; and also for the family members and relatives of this invisible section of society, who along with them, were equal recipients of public shame.

It was also an important moment for Prime Minister Narendra Modi, who was present for the occasion in the Lok Sabha. Ever since in power, the Prime Minister, and also his Government, have shown a strong resolve to grant the disabled their due — dignity and empowerment. The Modi Government has been on the forefront to take forward the unfinished agenda of previous Government which, unfortunately can best be defined as mere expression of 'tokenism' due to the lack of a through realisation of their needs. Among the many stellar efforts taken by the present Government, perhaps the most crucial one was the launch of 'Accessible India' campaign in 2015, which is focused on removing societal barriers — it aims to bring about a radical shift in the age-old perception of viewing the disabled as objects of charity, as pity models. Rather, the programme aims at envisioning them in a world where they can function independently.

Alongside, the Prime Minister has also been using his monthly radio programme, 'Mann Ki Baat', to reiterate his thoughts. On one occasion, he suggested to replace the word disabled ("viklang") with that of "divyang" (people equipped with a divine ability), as for the Prime Minister, the disabled have "divine ability". Additionally, the Prime Minister has also been wholeheartedly participating in various events, which includes one on his birthday, where he distributed helping devices to the disabled. Efforts like these have all together galvanised the disability rights movement in our country. The just passed disability Bill will provide for a legislative framework to protect the rights of the disabled and further their cause to give them an equal footing in leading a life of dignity.

But more than that, the focus must be to bring about a change in mindsets; to bring about a radical shift in the way these people are viewed. To be able to bring them at par with the mainstream, it is important that we feel what they feel; we accept their reality as they have done; we associate ourselves with them not as people who deserve pity but as people who are talented and can take the road of success like you and I. Legislations and provisions, will at best, make their life easy, but the real change must start in offices, schools, public space etc.

At the root of the problem is people's mentality which has continued since time immemorial — since the pre-independent era, followed next in the post-independent era and then from the twentieth century to the twenty first century. What has remained common all through is that, from one generation to the other, there has been a succession in the way people perceive the disabled. The latter have been thought of as outcasts, as people different from the mainstream people; and were subjected to biased assumptions, harmful stereotypes; were looked upon as pitiful individuals who were unfit and unable to contribute to the society, or the family; they were ridiculed and for some, they were objects of entertainment. This generation-old stigmatisation resulted in their social and economic marginalisation.

Worst of all, this prejudice was not limited to the disabled person alone; family members too had to face the brunt as they were shamed, scrutinised by neighbours and relatives alike. Besides, financial conditions forced many families to abandon their disabled family member. Some even left their newly-born disabled child in orphanages. Many even attributed their condition to some past sins and believed that the only way they could get rid of their sins is to endure them in this life. Strangely, there also existed an erroneous perception that disability is some sort of a disease that can be cured by paying visits to places of worship. The battle was strictly one of society versus the disabled individual and his family.

Post-independence, there emerged many NGOs which received enormous aid, both from abroad and also from heavyweights in the country, but mostly the visually challenged or the hearing impaired benefitted out of this. Like the oppressed minorities, the disabled too were left in a state of impoverishment. Things gradually started moving for the better in the 1980s, when their developmental role started being explored. Gradually, people started looking into the areas where the disabled could contribute. With advancements in technology, efforts were also made to reduce their suffering through medical advancements — new medicines, equipments were being exploited to make their lives better. However, this progressive attitude was limited to the elite and the literate. What was appalling was the lack of will on the part of successive Governments to bring about a change.

It was in the 1990s, when the country was undergoing significant economic reforms that campaigns for their recognition began. There were a few voices which advocated for the need of a comprehensive legislation, with special emphasis on their social and economic rights. And the final breakthrough came in 1995, with the passage of the ‘Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995’. This Act focused on granting more rights to the disabled and set in motion a slew of provisions. It had two goals. First, to endorse and ensure equality and full participation of persons with disabilities. Second, to protect and promote their economic and social rights. Under its ambit were seven sectors of disability. With a rights-based approach, the Act sought to guarantee education, employment, affirmative action against those found discriminating, barrier free access in public places, institutions for persons with severe disabilities.

In a pragmatic shift and a move that was laudable, the then UPA Government, in 2007, in order to strengthen the case of the disabled, decided to bind the fate of the disabled legally with an international legislation. India signed the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which is a human rights treaty to address the plight of persons with disabilities globally. This Convention recognises persons with disabilities as "subjects having human rights and fundamental freedoms" and "not as objects needing mere medical care and social protection". The Convention further spells out that "disability is an evolving concept" and that "persons with disabilities are a part of human diversity and humanity".

Disability, according to this international treaty, "results from interaction of impairments with barriers which prevents one’s participation in society on an equal basis with others". The purpose of this Convention is to protect, promote and ensure to persons with disabilities the full and effective enjoyment of all human rights and fundamental freedoms on an equal basis with others and also to promote respect for their inherent dignity.

The UNCRPD required the signatories to make appropriate changes in their law and policy, to give effect to rights of the disabled persons. Having ratified this deal, it was obligatory for India to harmonise its laws in accordance with the Convention. However, contrary to the spirit with which the UPA Government signed the deal, it failed to keep pace with the legislation. Due to lack of sustained engagement on the part of the Government, coupled with expediency, the provisions of the Convention remained on paper only.

Three years later, what came as bout of shock for the UPA was sharp criticism from disability groups for failing to enact a comprehensive Bill, as accomplished in the provisions of the UN Convention. To address the discontent that had been rising, when the Government found itself served with a fait-accompli, it framed the Rights of Persons with Disabilities Bill in 2010 and the Ministry of Social Justice and Empowerment constituted an expert committee under Sudha Kaul. The committee submitted its report in 2011, suggesting a total of 105 amendments to the 1995 Act. However, the draft Bill failed to commensurate with the scale of the challenge. It came as much disappointment to the lot and was unanimously rejected by the disabled people and activists who felt that the amended law was based on a ‘charity’ model.

Various attempts were made by the then government to bring the Bill in line with the 21st century understanding of the rights of persons with disabilities as captured UNCRPD ratified by India. There had been three versions of the Bill - all were termed as hackneyed versions of the previous ones. The first was the one the committee proposed in 2011, after consultations with persons with disabilities and their organisations across the country; second was notified by the Ministry of Social Justice and Empowerment in 2012, which was in parts opposed to by several stakeholders; and the third was the RPD Bill of 2013 which too was rejected. In fact, all versions of the Bill brought the entire disability lobby together, as they were constantly appalled at the turn of events. Each time, the recommendations and amendments were not satisfactory.

The Government was caught in between. On the one hand, there were certain members from the civil society who subsequently rejected all versions of the Bill, terming it as a "retrogressive piece of legislation" and withdrew it as the provisions of the draft Bill were not satisfactory. On the other hand, there was another group of activists which wanted the law to be passed at the earliest as it was after a long wait that they could at least see light at the end of the tunnel. The disabled suffering had reached such a stage that this lot of people were ready to compromise with whatever little the Government could do.

After several committees and drafts later, the Rights of Persons with Disabilities Bill, 2014, was finally introduced in the Rajya Sabha with a total of 199 amendments. But this did not cut ice either as the wrangling continued. An overwhelming majority in the disability sector felt that it was a watered down version of the provisions of UN Convention. They, therefore, demanded it to be sent to the Standing Committee. By the time the Standing Committee submitted its report the UPA was out of power and, the report was submitted to the new Government in May 2015, which addressed various concerns that the disability sector had flagged in their recommendations.

At a time when most people in the disability sector had virtually given up hope, especially due to the inability of Parliament to function, the passage of the Rights of Persons with Disabilities Bill, 2016, set a few heart strings twanging. The mood among the disabled was one of celebration as they rang temple bells in celebration. That the Bill recognises 21 disablities, almost three times more than that of the 1995 Act, is a proof of the expansiveness of the Bill. This was important because traditionally, disability has been associated with only three groups of people - the orthopedically disabled, the blind, and the deaf. Other disability groups like people with intellectual disabilities, people with psychosocial disorders, those affected by leprosy, and even those with cerebral palsy or autism were deemed to be suffering from some kind of a disease and hence did not receive the entitlements. The Bill will, hence, reduce the gap between the haves and the have-nots.

Another crucial area addressed by the new Bill is one of reservations for the disabled in Government appointments, offices and educational institutions, which has seen a rise from three per cent to four per cent. Ever wondered, how many of us have had a colleague in an organisation or may be a classmate by our side who is visually challenged or physically differently-abled, autistic or dyslexic? Perhaps, the numbers will be bleak. Most organisations and even schools have a long way to go. The idea is not just to recruit them just for the sake of showing progressiveness, but diversity needs to be embedded in genetic coding. It has to do with changing our mindset. It is important that we respect diversity. We need to respect difference and move beyond traditional thinking. Organisations can do this by creating an environment of a shared language and values so that diverse people can communicate and exchange ideas with each other.

The World Bank estimates that 15 per cent of the world’s population is affected by one disability or another. Exclusion of disabled persons from the labour market leads to an annual loss of approximately three per cent to seven per cent of the gross domestic product. According to Census 2011, India is home to 26.8 million people with disabilities and that too is a huge underestimation.

The Bill is one of its kind because it is for the first time that there will be a separate Indian disability legislation for women and children as vulnerable groups amongst persons with disabilities. The Bill lays down that “appropriate Governments shall within the limit of its economic capacity and development formulate necessary schemes and programmes to safeguard and promote the right of persons with disabilities for adequate standard of living to enable them to live independently or in the community”. It also says that “the quantum of assistance to the persons with disabilities under such schemes and programmes shall be at least 25 per cent higher than the similar schemes applicable to others”.

Along with the many amendments, there have been dilutions too. The provision for a jail term for those found discriminating, has been done away with. Instead, there will be a fine up to Rs. 10,000 for the first infringement and for any subsequent flouting the fine is not “less than Rs. 50,000, which may extend to five lakh rupees”.

Another dilution has been with regard to the provision for reservation in employment. While the original Bill provided for a five per cent reservation in offices, it has now been reduced to four per cent. Many voices have been raised against this provision, but we must not forget about the dwindling employment opportunities in Government and public sectors. Moreover, many public sector institutions are now being privatised; Governments have started outsourcing employees; and contracts is the new norm. Expectations from the private sector are now high as unemployment among the disabled, according to a report published by the Niti Ayog in January 2016, as pegged at 66 per cent. Though the Bill does not specify about reservations in private sector, it does talk about offering incentives to the private sector for employing persons with disabilities.

The new Bill is a reflection of the aspirations of the stakeholders and the disabled. It will be too early to comment on the success/failure of the legislation but hopes are high. The challenge now, not only for the Government, but also the people, lies in effective propagation of the provisions of the law. Effective implementation must go hand-in-hand in creating the will for inclusion in civil society so that change is seen as necessary and not just a legal requirement.

(The writer is Assistant Editor, The Pioneer)