The Slow March of Progress: An Overview of the History of Disability Legislation in India

On December 14th, 2016, the Government of India passed the Rights for Persons with Disabilities (RPwD) act, a law which radically expanded the scope of which people with disabilities (PwDs) are empowered and recognized in society, and given opportunities to achieve their potential. Considered a “game changer” when it comes to disability rights, the law provides a framework for defining the rights of the 100 million PwDs in India, who have been historically discriminated against due to societal, economic, and legislative issues. In this article I shall cover the background of this law, the ways in which the law updates and extends previous policy, and the ground reality of how the law is being implemented today.

Precursor to the RPwD Act: Persons with Disability Act

Public accessibility remains a critical challenge that PwDs face. Credit: Honk Kong PHAB Association

Before the RPwD act India’s main legislation concerning PwDs was the Persons with Disability Act, 1995 (PDA). This was the first major law by the Government of India which expressed the rights of PwDs. Much of the law was centered around espousing that PwDs should be given equal opportunities and not denied access to fundamental needs, such as education and employment. This law defined 7 different disability types ranging from “Blindness” to “Mental Illness”. One of the most impactful provisions to come out of this law was a 3 percent reservation for PwDs in government jobs. Though this law was a landmark shift in policy for the government, critics pointed out several flaws and loopholes in the law which made enforcement difficult. The definition of a PwD as a person “suffering from 40% or more disability” was criticized as vague and difficult to implement.[1] Though the PDA prescribes that public buildings and transport be made accessible for PwDs, it does not provide any specific guidelines or timelines for the implementation of these measures. Furthermore, the PDA states that authorities only have to implement such measures “within the limits of their economic capacity and development”. Critics claim that this clause has been exploited by officials to impede progress on implementing the accessibility regulations, and lack of oversight means that there is no verification on whether or not financial burden is a legitimate excuse.[2]

Goals and Provisions of the RPwD Act

In 2007 India signed the United Nations Convention on the Rights of Person with Disabilities (UNCRPD), which “proclaims that disability results from an interaction of impairments with attitudinal and environmental barriers which hinders full and active participation in society on an equal basis”.[3] This convention marked a shift in how disability is viewed, from a medical problem to a societal problem. People with disabilities no longer need to be fixed, instead, the society needs to be changed to adapt to their needs. As a result of signing this convention, India committed to review and modify existing laws in accordance with the UNCRPD. This process eventually resulted in the passing of the RPwD act.

The RPwD act introduced several landmark measures to increase opportunities for PwDs. Credit: Satya Special School

The RPwD act “lays complete emphasis on one’s rights – right to equality and opportunity, right to inherit and own property, right to home and family and reproductive rights among others.”[4] The act explains that it is the government’s responsibility to ensure that PwDs have the right to equality and a life with dignity. To ensure this, the government is tasked with ensuring the PwDs are not discriminated against on the basis of their disability. The act expands on the PDA by increasing the number of disability types recognized from 7 to 21, with disabilities such as sickle cell disease, muscular dystrophy, and autism being included in the scope of the law. The reservation for PwDs in government jobs was increased from 3 percent to 4 percent. Importantly, the RPwD act for the first time brings private companies under the purview of disability legislation by mandating the private employers have equal opportunity policies, providing reasonable accommodations, and preventing discrimination, among other obligations.[5] [6] The RPwD act also provided clearer definitions on previously vague terms, such as discrimination, barrier, and person with disability. Furthermore, it outlined clearer policies around accessibility and set deadlines for implementation. [7]

Challenges with Implementation and Enforcement of the RPwD Act

While the RPwD act is widely proclaimed as a significant step forward in terms of legislation, unfortunately the implementation of the law has been halting during the years following its enactment. Three years after the RPwD act was passed, only 12 states had started to implement the law.[8] Many states have not yet appointed Disability Commissioners and few states have reported the number of equal opportunity policies they have received.[9] Arman Ali, Executive Director of the National Centre for Promotion of Employment for Disabled People (NCPEDP) outlines three main areas in need of improvement: education, accessibility, and healthcare. In education, institutions lack the knowledge of how to accommodate PwD students in the classroom. In accessibility, public infrastructure still isn’t accessible for PwDs, because websites, buildings, transportation, and bathrooms are not built with PwDs in mind. In healthcare, PwDs are often excluded from healthcare coverage and can face discrimination from healthcare professionals, the very people who are tasked with helping them.[10]

While working at Enable India my colleagues often spoke about the challenges faced with enforcing the RPwD act. Employers often are unaware of the mandates in the act that are relevant for companies. Furthermore, companies are rarely checked by the government to make sure they are following the law. Much of Enable India’s work with employers is centered around informing them about the law and helping them to become compliant. This can take shape in a variety of ways, from drafting company policies to making an office building more accessible. On the PwD side, obtaining a disability certificate that proves one is a PwD can be difficult. There may not be any doctors nearby who are qualified to issue a disability certificate, and even then, the process for deciding the level of disability is not very standardized. PwDs face a confusing and unclear procedure, where government authorities are often unaware of the guidelines of the law and which disability types are covered.[11] Ultimately, a greater clarity of the law, streamlined processes, and actual enforcement are necessary for the mission of the RPwD act to be fully realized.


References

[1] http://medind.nic.in/daa/t15/i1/daat15i1p195.pdf. Accessed 15 June 2020.

[2] The Failure to Implement the Disabilities Act. http://www.indiatogether.org/health/disability/dact.htm. Accessed 15 June 2020.

[3] Math, Suresh. “The Rights of Persons with Disability Act, 2016: Challenges and Opportunities.” PubMed Central (PMC), 1 Apr. 2019, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6482682/.

[4] “Rights of Persons with Disabilities (RPWD) Act, 2016 | National Centre for Promotion of Employment for Disabled People.” National Centre for Promotion of Employment for Disabled People, https://www.ncpedp.org/RPWDact2016. Accessed 15 June 2020.

[5] “The Rights of Persons with Disabilities Act, 2016 – Extended to Private Employers.” Employment Law Alliance, 11 Dec. 2017, https://www.ela.law/firms/trilegal/articles/the-rights-of-persons-with-disabilities-act-2016-extended-to-private-employers.

[6] Saxena, Abha. Rights for Persons with Disabilities Act 2016 (RPWD16): What It Means for Private Sector Organizations. 19 Sept. 2018, http://www.parityconsulting.in/blog/inclusive-workplaces/rights-for-persons-with-disabilities-act-2016-rpwd16-what-it-means-for-private-sector-organizations/.

[7] Balakrishnan, Abhilash. “The Rights of Persons with Disabilities Act 2016: Mental Health Implications.” PubMed Central (PMC), 1 Apr. 2019, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6436405/.

[8] Service, Express. “‘Odisha, among 12 States, to Notify RPWD Act.’” The New Indian Express, 16 June 2020, https://www.newindianexpress.com/states/odisha/2019/feb/10/odisha-among-12-states-to-notify-rpwd-act-1936901.html.

[9] Deoc. An Assessment of the Rights of Persons with Disabilities (RPWD) Act 2016. 3 Dec. 2018, https://www.deoc.in/view-point/an-assessment-of-the-rights-of-persons-with-disabilities-rpwd-act-2016/.

[10] Ali, Arman. Three Years on, the Implementation of the RPWD Act Remains an Issue. 20 Apr. 2020, https://www.linkedin.com/pulse/three-years-implementation-rpwd-act-remains-issue-arman-ali.

[11] Hamid, Zubeda. “Difficult to Obtain Certificates, Say Persons with Disabilities.” The Hindu, 17 Oct. 2019, https://www.thehindu.com/news/cities/chennai/difficult-to-obtain-certificates-say-persons-with-disabilities/article29719796.ece.

Anant is serving as an American India Foundation (AIF) Clinton Fellow with Enable India in Bangalore, Karnataka. For his Fellowship project, he is building scalable products to support economic independence and dignity for persons with disabilities through online tools and resources for employers, employees, and enablers. Anant graduated in 2018 with a degree in computer science and a minor in statistics. He is interested in exploring the applications of technology in solving large-scale social issues as well as the challenges of implementing them in developing countries. Anant has worked at various technology companies and research labs, and is looking forward to both applying the skills that he has gained as well as honing new skills during the AIF Clinton Fellowship. He is excited about his placement with Enable India, where he will be working to empower people with disabilities. While in India, he hopes to experience parts of the country that he hasn't seen in the past and gain a deeper understanding of its culture and diversity.

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