India wants to dilute its Disabilities Act – to enable ease of doing business

Abhishek Annica, 33, is a prolific writer, poet and a research scholar at Ambedkar University. Last year, he decided to move into a flat on his own in East Delhi. What would have otherwise been a simple commercial transaction became extremely complicated because Annica lives with a locomotor disability.

He was rejected by at least half a dozen landlords before he figured out why this was happening. A common question they had all asked was “Will your parents live with you?”. Was this because they felt a disabled person is not capable to pay his rent? Or did they feel that looking after him would become their responsibility? He will never know.

What he does know is that these houses became unavailable as soon as the landlord learnt that the potential tenant is a single, disabled man.

As Persons with Disabilities, we face discrimination on a daily basis. It starts at home where sending a us to school and later college is not considered a worthy investment of time and money. It magnifies when educational institutions find reasons to not grant admissions to us as they might not want to take on the responsibility.

This discrimination continues through adult life. Our families often overlooks us in matters of marriage. Companies find flimsy excuses to not hire us despite qualifications as we are not considered an optimal return on investment. Or just that they don’t want a “surprise” later.

However, it’s the small instances of discrimination that hurt the most. It’s when someone skips us in the queue at the local grocery, when a restaurant denies us entry or cars honk away when we’re limping or trudging along the road.

It was in the wake of such daily discrimination that the passage of the Rights of Persons with Disabilities Act in December 2016 was a watershed moment for India’s disability sector. For the first time in India’s history, the disabled had legal rights against discrimination. Under Section 89 of the Act:

“Any person who contravenes any of the provisions of this Act, or of any rule made thereunder shall for first contravention be punishable with fine which may extend to ten thousand rupees and for any subsequent contravention with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees”.

As per Section 92:

“…intentionally insults or intimidates with intent to humiliate a person with disability in any place within public view” is “punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”

Proposed amendment

In late June 2020, the Ministry of Social Justice and Empowerment wrote to seven selected NGOs, stating the need to dilute the discrimination clauses through a letter titled Decriminalisation of Minor Offences For Improving Business Sentiment And Unclogging Court Processes – Amendment in RPwD Act, 2016. It appeared on the Ministry’s website later with a time of 10 days for feedback.

The letter stated that “decriminalisation of minor offences is one of the thrust areas of the government. The risk of imprisonment for actions or omissions that aren’t necessarily fraudulent or the outcome of malafide intent is a big hurdle in attracting investments. The ensuing uncertainty in legal processes and the time taken for resolution in the courts hurts ease of doing business. Criminal penalties including imprisonment for minor offences act as deterrents, and this is perceived as one of the major reasons impacting business sentiment and hindering investments both from domestic and foreign investors.”

It then proposes a Section 95A as an amendment to the Act stating:

“(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.”

What these amendments basically mean is that the Chief or State Commissioners have the right to withdraw cases with the consent of the aggrieved party.

No one in their right mind wants a case lingering in courts in a country like India. India needs to regain investor confidence and I appreciate the efforts of the Finance Ministry in decriminalising the act of doing business. An entrepreneur cannot live in fear of imprisonment every day for violating the smallest of acts. We, in the disability sector, cannot look at industry as our enemy.

Why it does not work

However, it’s interesting to note that industry didn’t even ask for this amendment. In February, the Confederation of Indian Industry came up with a list of 37 Acts that need to be decriminalised to take the economy forward and the Rights of Persons with Disabilities Act was not even on this list. That’s exactly why this proposed amendment by the Ministry of Social Justice and Empowerment has come unexpected.

Discrimination is subjective. It is difficult to prove. Persons with Disabilities face discrimination daily. It is obvious that most individuals would only bother to act and take the legal route when no other option remains. However, if the ministry did feel that some cases need to have the option of being compounded or settled out of court, it would have been better to come up with written definitions of what kind of cases can be compounded and what kind of cases can’t.

Instead, the proposed amendment all cases under the discretion of commissioners and judges to be compounded. As an analogy, a pickpocket can settle a case outside court but should a rapist or murderer be allowed to? Can both even be looked at from the same lens?

As Disability activists, we are often critical of what governments do. Many of us were critical of the term “divyang”, coined by the government to refer to Persons with Disabilities. Others were unhappy with the Rights of Persons with Disabilities Act 2016. The launch of the Accessible India Campaign was celebrated by everyone in the sector – it’s a different story that it failed to deliver on its promises.

However, the one thing that one couldn’t take away from this government was the intent to create change for Persons with Disabilities. The messaging with this amendment, unfortunately, is clear: the courts are too busy and they don’t have time for the disabled.

Nipun Malhotra is CEO, Nipman Foundation and Founder, Wheels For Life. His Twitter handle is @nipunmalhotra.