How Mohammed Waris (and others like him) could benefit from the new disability law in India

Following India’s glittering performance at the 2016 Paralympics (when disabled athletes won four medals, including two golds – our best since 1968), one could be fooled into thinking that Indians had finally begun to see the disabled as actual people. After all, if the success of Dangal and the Phogat sisters could convince Rohtak to celebrate its daughters, then surely, the triumphs of Deepa Malik and Devendra Jhajharia should be enough to shake Indians of their contempt and pity for the disabled.

But nearly a month after the Rights of Persons with Disabilities Bill 2016, was passed in the Lok Sabha and made into an Act, disabled people continue to fight lonely and uphill battles for dignity. On January 11, Dr Rishi Raj Bhatti, a disabled, newly-appointed Public Relations Officer of the Delhi Development Authority, was removed from his post and sent back to his old department. Before Bhatti even had the chance to begin his new job, senior officials had decided that Bhatti would not be able to keep up with the demands of his new position – which required “extensive outdoor duties and strenuous physical activities”.

Bhatti challenged the contention, and protests by disability rights groups followed. Wary of the bad press, the DDA asked Bhatti was asked to rejoin, with the rider that he should return to service only if he felt “confident” he would be able discharge the duties of his post, akin to implying that they, in fact, were not. Since then, the DDA has sent Bhatti yet another letter of apology. Thus far, Bhatti has refused to rejoin.

In the government services, where arguably, social and legislative change should begin, stories like Bhatti’s are common. Though the civil services were officially opened for the disabled in 2005, the bureaucracy constantly blocked several disabled civil service aspirants under one pretext or another. In 2006, the National Platform for the Rights of the Disabled took up the cases of a batch of nine civil services aspirants, who even after clearing the exams and getting favourable orders from courts, were denied induction. It took two years, after making a representation to then Prime Minister Manmohan Singh, for seven of them to get inducted. Ira Singhal, who topped the civil services exams in 2014 and became the first disabled woman to top the exam in the general category, had been denied a posting in 2010, when she first cleared the exam.

This is frequently the case for people with disabilities – legal and professional success is stymied by a lack of social awareness. A paradigm shift was brought into the discourse on disability in 2007, when the United Nations Convention on Rights of Persons with Disabilities was adopted. India was one of the first countries to sign and ratify the treaty, but it took seven long years for a Bill compliant with the UNCRPD to be introduced, and nearly three more years for it to be passed.

One of the major concerns raised with the new Act, passed in December 2016, was with regard to Clause 3(3) which states: “No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is appropriate to achieve a legitimate aim.”

This clause gives unfettered power to the implementing authorities like the DDA to discriminate against persons with disabilities, like Bhatti, on the pretext of serving a legitimate aim, whatever that may refer to.

The RPD Act provides for punishment for this type of discrimination – a first offence merits a fine up to Rs 10,000 and any subsequent contravention, a fine “which shall not be less than fifty thousand rupees, but which may extend to five lakh”. But this is a dilution. The original clause in the Bill was much more stringent, with provision for imprisonment for a term of up to six months, with a fine of Rs 10,000 on first contravention and up to two years and fine of up to Rs 5 lakh for subsequent contraventions. Another dilution in the Act has been with regard to the provision for reservation in employment. The original Bill provided for 5%, but it has now been reduced to 4%. The provision to form a National Commission and State Commission for persons with disabilities – bodies which were to be grievance redress mechanisms – has also been discarded.

Despite these shortcomings, the Act is important for the disabled in India. It makes specific provisions for social security, health, rehabilitation and recreation, which is an improvement, given that affirmative action for the disabled until now has only referred to reservations (apart from a dole erroneously called pension), with a few concessions thrown in.

Naming disabilities

It has been over three months since Manish Gera applied for a disability certificate for his son Parth, at GB Pant Hospital in Delhi. The process for nursery admissions has already begun, and Gera is unable to apply to schools under the disadvantaged category, for lack of such a certificate. Parth’s speech is impaired and he has mobility issues. The Regional Centre of the National Institute of Mental Health, Delhi, which originally referred Gera to the hospital, had said that Parth has a 50% disability with mild developmental delay. However, doctors at GB Pant Hospital have declined to issue a disability certificate to the child. Gera has sought the intervention of the Medical Superintendent, and is waiting for his son’s fate to be revealed.

Geeta Kashyap, a paraplegic wheelchair-user, also had to appeal to the Medical Superintendent when she applied for a revision in the percentage assessed on her disability certificate. Kashyap, who travels by herself, had to sit on a virtual dharna for hours at the hospital to even submit her appeal. Finally, the 40% on her certificate was corrected – Kashyap had an 85% disability.

A disability certificate is essential, because it serves as a basic and is often the only document for any entitlement for someone who is disabled. Until now, a person who was both deaf and blind could not procure a certificate that showed them as deaf-blind, a universally acknowledged form of disability, because deaf-blindess was not recognised as a disability under the Indian law – a person could only be certified as either deaf or blind.

According to the 2015-’16 Annual Report of the Department of Empowerment of Persons with Disabilities, only 49.5% of the disabled population identified by the 2011 census, were issued certificates of disability, as of August 31, 2015. Of course, possessing a certificate by itself does not ensure entitlement, as Mohammed Waris, 35, learnt. Migrating from Madhubhani in Bihar, Waris was astounded to find that the certificate he had been issued by local authorities was not valid in Delhi.

The present Act lists 21 conditions, including deaf-blindness, as disabilities. In fact, the task before certifying authorities is enormous – conditions like haemophilia, multiple sclerosis, autism, thalassaemia, Parkinson’s disease, sickle cell disease, dwarfism and acid attack victims have now all been recognised as forms of disability. The Act also empowers the government to notify any other condition as a disability in future.

Waris is happy that he, and others like him, will no longer have to procure multiple documents not just when they migrate, but for other services as well – the RPD Act provides that henceforth such certificates will be valid across the country. This provides the legal backing for a universally valid card for the disabled. The card, a longstanding demand, will be rolled out soon, initially starting with 10 states.

Another major change the Act is set to introduce is that television programmes, including those aired by private channels, will now have to make provisions for sign language interpretation or same-language captioning (popularly called sub-titling), as is the norm in Western countries. This is a boon for the deaf and those hard of hearing, for whom TV programmes have little to offer otherwise (apart from relaying dialogues, these sub-titles also convey other sounds that move the narrative, for example the sound of a bomb blast, the shutting of a door, or running water).

The Act also mandates audio descriptions for all that is broadcast on electronic media, which would mean all that happens on a screen which cannot be seen by a visually impaired person, will be described as it happens or appears, like the description of a vehicle, its passengers and interiors. Both captioning and audio description are technologies that can easily be adapted in the Indian context with slight tweaks and will be welcomed by the disabled population in the country.

The gender issue

While the 1995 Act law did not have any gender component, in its preamble, the RPD Act speaks of equality between men and women. It specifically states that support will be provided by the State to disabled women in procuring livelihood as well as raising children. It mentions that priority will be given to women in different poverty alleviation schemes as well as agricultural land and housing schemes. However, in the absence of segregated data, we have no idea of the exact number of women that are recipients of a disability pension.

Several campaigns in the past have highlighted the need to separately address specific issues regarding sexual assaults on women with disabilities. In fact, campaigners appeared before the Justice Verma Committee, which was constituted to look into the amendments of criminal laws dealing with sexual assaults. As a result, the amendments introduced to the criminal law now categorises sexual assault on a woman with disabilities as “aggravated sexual assault”.

Over and above what the criminal laws mandate, the RPD Act now provides for punishment with imprisonment for a term of not less than six months, for any person who assaults or uses force to outrage the modesty of a woman with disability.

Thus far, the law and policies with regard to the reproductive rights of persons with disabilities have been vague. Several cases have been reported of hysterectomies conducted within homes or institutions housing the disabled, the most infamous being the Shirur home in Pune, in 1994, where 11 women with psychosocial disabilities were subjected to hysterectomies.

Some years ago, the West Bengal Human Rights Commission had received a petition from a father, seeking permission to sterilise his daughter with an intellectual disabilty, on the grounds that her disability made her vulnerable to sexual abuse and unwanted pregnancies. The Commisison contended that this was an ethical issue and not a legal one.

The RPD Act prohibits such procedures without the express consent of the woman concerned. Overall, the new Act has greatly advanced from the 1995 Act and includes a rights-based perspective. The battle now is for its implementation and the going promises to be tough.

The authors work with the National Platform for the Rights of the Disabled.