Legal Rights of Persons with Disabilities in India

29 September, 2023

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Introduction

In India, the legal framework for protecting the rights of persons with disabilities has undergone significant transformation over the years. The Rights of Persons with Disabilities Act, 2016 (RPWD Act) is a landmark legislation that aims to promote inclusivity, non-discrimination, and equal opportunities for persons with disabilities. India is a signatory of the United Nations Convention on the Rights of Persons with Disabilities. This Convention imposed a duty on the states, civil society, and private individuals to ensure the protection of the rights of disabled persons. This article provides an in-depth look at the legal rights provided to persons with disabilities in India.

What is disability?

In general, disability refers to a condition or impairment that may limit a person's physical, sensory, intellectual, or mental abilities, leading to difficulties in performing everyday activities. Disabilities can be congenital (present at birth) or acquired due to illness, injury, or other factors. From a medical perspective, disability is often classified into different categories based on the nature and extent of the impairment. The medical model of disability focuses on the individual's physical or mental condition and views disability as a personal deficiency. It emphasizes medical interventions, treatments, and rehabilitation to alleviate or manage the disability.

However, the understanding of disability has evolved beyond the medical model to embrace the social model of disability. The social model recognizes that disability is not solely a result of individual impairments but is also shaped by the societal and environmental barriers that hinder full participation and inclusion. According to this model, disability is seen as a social construct that arises from the interaction between individuals with impairments and an inaccessible or discriminatory environment. In order to remove barriers, promote inclusivity, and empower individuals with disabilities to participate actively in all aspects of life, the rights-based approach is highlighted. In India, the Rights of Persons with Disabilities Act, 2016, reflects this evolving understanding of disability by emphasizing the rights and entitlements of persons with disabilities and promoting their inclusion in society.

As per Section 2(t) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, ‘Person with disability’ is defined as “a person suffering from not less than forty percent of any disability as certified by a medical authority.” and Section 2(s) of the Rights of Persons with Disabilities Act, 2016, defines a ‘Person with disability’ as “a person with long-term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.”

What are the Rights of Persons with Disabilities under the RPWD Act, 2016?

The Rights of Persons with Disabilities (RPWD) Act was commenced in 2016 whereas the enactment of this Act replaced the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. This Act was enacted to “give effect to the United Nations Convention on Rights of Persons with Disabilities and for matters connected therewith or incidental thereto.” This Convention formulates certain principles to empower persons with disabilities including:

“Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
Non-discrimination;
Full and effective participation and inclusion in society;
Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
Equality of opportunity;
Accessibility;
Equality between men and women;
Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.”

In the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, seven conditions of disabilities were identified which include, hearing impairment, blindness, leprosy cured, locomotor disability, low vision, mental illness, and mental retardation. In 2016, this Act was replaced by the Rights of Persons with Disabilities (RPWD) Act which expanded the categories of disabilities from 7 to 21. The added list of disabilities includes dwarfism, acid attack victims, speech and language disabilities, muscular dystrophy, specific learning disabilities, hard of hearing, autism spectrum disorders, blood disorders such as thalassemia, sickle cell anemia, and hemophilia, cerebral palsy, chronic neurological disorders such as Parkinson’s disease and multiple sclerosis, and multiple disabilities. The primary objective of this Act is to ensure that disabled people are able to live a respectful and dignified life. Also, it helps in protecting disabled people from any discrimination and ensures their political, economic, and social participation.

What are the important features of the RPWD Act, 2016?

The Rights of Persons with Disabilities Act, 2016, as a whole, consists of XVII chapters and 102 Sections whereas Chapter I introduces the Act by illustrating the commencement date and important definitions. Section 2 of the RPWD Act, 2016, illustrates various important definitions such as ‘appellate authority’, ‘appropriate government’, ‘competent authority’, ‘discrimination, ‘person with benchmark disability’, ‘person with disability’, and others. Some other important features of the Act are mentioned as follows:

Rights of disabled persons

Chapter II of the Act provides several specific rights and entitlements to persons with disabilities which are listed as follows:

Section 3: Persons with disabilities have the right to equality before the law and equal protection of the law. They are entitled to the same legal protection and remedies as any other person in case of violation of their rights. Also, the Act prohibits discrimination against persons with disabilities in various areas, including employment, education, access to public places, and provision of goods and services. It mandates that no person with a disability shall be denied any right or benefit available to others.
Section 4: It ensures that appropriate measures are taken by the Government and the local authorities to provide equal rights with others to women and children with disabilities.
Section 5: As per this Section, “the persons with disabilities have the right to live in the community.” Also, it ensures that they are not obliged to live in any particular living arrangement and have full access to in-house, residential, and other community support services.
Section 6: It provides protection to persons with disabilities from cruelty, inhuman, torture, or degrading treatment.
Section 7: This Section of the Act ensures protection for persons with disabilities from abuse, violence, and exploitation. It illustrates that the appropriate Government should take measures to protect disabled persons. As per Section 7(2) of the RPWD Act “Any person or registered organization who or which has reason to believe that an act of abuse, violence or exploitation has been, or is being, or is likely to be committed against any person with a disability, may give information about it to the Executive Magistrate within the local limits of whose jurisdiction such incidents occur.”
Section 8: Persons with disabilities should also have equal protection and safety during natural disasters, armed conflict, humanitarian emergencies, and other risks.
Section 9: No child on the grounds of disability should be separated from his or her parents. In case parents are not able to take care of the disabled child then the competent court should send the child to his or her near relations or in exceptional cases to shelter homes run by non-governmental organizations or appropriate government, as mentioned in Section 9(2) of the RPWD Act.
Section 10: As per this Section, persons with disabilities cannot be forced into any medical procedure leading to infertility without his or her consent.
Along with these, persons with disabilities have equal rights to vote and access to justice as per Section 11 and Section 12 of the Act respectively.

Education

Chapter III of the RPWD Act provides detailed information about the educational rights given to persons with disabilities. The Act guarantees the right to free and compulsory education for children with disabilities between the ages of 6 and 18. It mandates that inclusive education should be provided in regular schools or special schools, as per the choice of the child and their parents. Section 16 of the RPWD Act illustrates the ‘Duty of education institutions’ in providing compulsory education to disabled children. It states that “The appropriate Government and the local authorities shall endeavor that all educational institutions funded or recognized by them provide inclusive education to the children with disabilities and towards that end shall—

admit them without discrimination and provide education and opportunities for sports and recreation activities equally with others;
make building, campus, and various facilities accessible;
provide reasonable accommodation according to the individual's requirements;
provide necessary support individualized or otherwise in environments that maximize academic and social development consistent with the goal of full inclusion;
ensure that the education of persons who are blind or deaf or both is imparted in the most appropriate languages and modes and means of communication;
detect specific learning disabilities in children at the earliest and take suitable pedagogical and other measures to overcome them;
monitor participation, progress in terms of attainment levels, and completion of education in respect of every student with a disability;
provide transportation facilities to the children with disabilities and also the attendant of the children with disabilities having high support needs.”

Along with this, Section 17 of the Act ensures that children with a ‘benchmark disability’ (person with not less than 40% of a specified disability) are entitled to free learning materials until the age of 18 years. Apart from this, it has been mentioned in Section 32 of the Act that every higher educational institution should reserve seats not less than 5% for persons with benchmark disabilities.

Persons with disabilities: Skill Development and Employment

The Act promotes equal employment opportunities for persons with disabilities. Section 21 ensures that equal opportunity policies are followed by every establishment. It requires the government, as well as the private sector establishments, to reserve not less than 4% of the total vacancies for persons with benchmark disabilities, as per Section 34 of the Act. It also prohibits discrimination during recruitment, promotion, and conditions of service as Section 20 of the Act states that “No Government establishment shall discriminate against any person with disability in any matter relating to employment.”

Social Security and Health of persons with disabilities

The RPWD Act, Section 24, mandates the government to formulate welfare schemes and programs to provide social security to persons with disabilities. It includes provisions for healthcare, rehabilitation, and assistive devices, ensuring their well-being and quality of life. In this context, Section 25 of the Act states that to provide free healthcare, and barrier-free access in all parts of private as well as Government hospitals to persons with disabilities, the appropriate Government and local authorities should take necessary measures. Moreover, rehabilitation programs are required to be organized for all persons with disabilities. Section 27 states that “The appropriate Government and the local authorities shall within their economic capacity and development, undertake or cause to be undertaken services and programs of rehabilitation, particularly in the areas of health, education, and employment for all persons with disabilities.”

Offences and Penalties

The Act includes provisions related to offenses and penalties for non-compliance with its provisions. Here are some key offenses and penalties outlined in the Act:

Section 89: If any person contravenes the provisions of the RPWD Act, he/she will be punished with a fine which may extend to 10,000 rupees for the first contravention whereas, for the second contravention, he/she will be punished with a fine not less than 50,000 rupees but which may extend to 5,00,000 rupees.
Section 91: This Section of the Act deals with ‘punishment for fraudulently availing any benefit meant for persons with benchmark disabilities’. If anyone avails any benefit given to persons with benchmark disabilities is punished with imprisonment for a term extending to two years or with a fine extending to 1,00,000 rupees or with both.
Section 92: It deals with offenses related to the abuse and exploitation of persons with disabilities, including physical abuse, sexual abuse, and emotional abuse. Perpetrators found guilty of such offenses can face imprisonment for a term which is not less than six months but which may extend to five years and a fine.
Section 93: Any person who fails to furnish information is punished under this Act with a fine extending to 25,000 rupees.
Section 94: As per this Section, “No Court shall take cognizance of an offence alleged to have been committed by an employee of the appropriate Government under this Chapter, except with the previous sanction of the appropriate Government or a complaint is filed by an officer authorized by it in this behalf.”

Some other provisions of the RPWD Act, 2016 include:

The Act recognizes the right of persons with disabilities to enjoy legal capacity on an equal basis with others. It provides for the appointment of a limited guardian, if necessary, to support decision-making based on the will and preferences of the person with disabilities under Section 14.
Section 23 of the RPWD Act, 2016 deals with grievance redressal appointments. It establishes mechanisms for grievance redressal, including the appointment of the Chief Commissioner and State Commissioners for Persons with Disabilities. These authorities are responsible for safeguarding the rights of persons with disabilities and addressing complaints related to violations of the Act.
Section 32 of the Act provides for the establishment of the Chief Commissioner and State Commissioners for Persons with Disabilities, who are responsible for safeguarding the rights of persons with disabilities
Section 38 of the Act provides ‘Special Provisions for persons with disabilities with high support’.
The Act recognizes the right of persons with disabilities to have barrier-free access to physical infrastructure, transportation, and information and communication technology. It emphasizes the need to make public spaces, buildings, transport, and communication systems accessible for persons with disabilities. Section 40 of the Act states “The Central Government shall, in consultation with the Chief Commissioner, formulate rules for persons with disabilities laying down the standards of accessibility for the physical environment, transportation, information and communications, including appropriate technologies and systems, and other facilities and services provided to the public in urban and rural areas.”
Section 60 of the Act deals with the Constitution of the Central Advisory Board on Disability as well as provides a list of members involved in the Central Advisory Board.
Section 84 of the Act states that “For the purpose of providing speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district, a Court of Session to be a Special Court to try the offences under this Act.”