Why 2.68 Crore Indians Are Still Denied Basic Rights Despite An Act Meant To Empower Them

Posted by ScoFoIndia in Disability Rights, Staff Picks
May 3, 2017

“A human being is a magnificent creation of the creator and that magnificence should be exposed in a humane, magnanimous and all-inclusive manner so that all tend to feel that they have their deserved space” – Supreme Court observation in the Pranay Kumar Podder vs State of Tripura and Others case in 2017.

There is potential progress on the horizon, as ‘inclusion’, ‘integration’ (and phrases that define the essences of these words) are being discussed zealously. However, what portends horror is that these are still matters of choice, instead of being brought to practice.

Policy makers say, ‘let’s change the rules’, while activists shout ‘let’s change the mindset’. Politicians say, ‘let’s treat them as divine’, while the courts say ‘let’s be magnanimous’. Civil society says ‘let’s earn favours from god’. All this ‘haggling’ is for the purpose of accepting the ‘other’ – the ‘other’ which is not identified, but is made conspicuous, when people identify themselves as ‘able’, ‘complete’, ‘blessed’, etc.

Though the term hasn’t been convincingly conceptualised, people with disabilities have regretfully become the ‘foil’ that bolsters the design that defines a ‘fully-functional’ human being. Consequently, this has made them second-class citizens in the eyes of the public. Furthermore, their rights and necessities have to be spelt out by invoking sections of rule-books, that are futile when it comes to executing the ideals of ‘equity’, ‘equality’ and ‘justice’.

How far can a booklet of law make a difference? Will rights mean acceptance? How much can a list of provisions do to redeem the rights and the respect of the 2.68 crore persons with disabilities in India?

More importantly, will such an outcry lead to ‘inclusion’ and ‘universality’?

The Rights of Persons with Disabilities Act, 2016 was passed by Indian lawmakers at the end of a forgettable winter session in the Parliament, which was inundated by the torrent of acrimony, post-demonetisation.

However, the Act was cheered by many as it increased the number of identified disabilities from seven to 21, and the employment reservation to not less than 4%. It spoke of inclusive education and penalties for offences against persons with disabilities (PWDs). The Act also specifies provisions for special courts (to speed up the trial of cases of said offences), a national fund and a state fund for persons with disabilities.

The Act has been acknowledged by experts for espousing the progress of Indian people with disabilities, and for its noteworthy shift from a ‘concessional model’ to a ‘social one’. In fact, the inclusion of acid-attack victims and people with learning disabilities, Parkinson’s disease, blood disorders, speech and language disabilities (among others) under its ambit is a perfect example of the inclusive undertone sustained throughout the Act.

The emphases on reasonable accommodation, accessibility, inclusive education, employment security, research and surveys, proactive measures to contain the issue of disability, protection against violence, legal guardianship, rights to appeal, etc. are certainly commendable provisions.

However, even though they look attractive and empowering on paper, they carry ambiguities that can be twisted and distorted to meet selfish interests.

For instance, recurring clauses like ‘within the limit of their economic capacity and development’, ‘without imposing a disproportionate or undue burden’, ‘the extension of time depending on their state of preparedness and other related parameters’, ‘cannot be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim’ all leave ample room for denial of justice.

Consequently, the goal of empowerment may well remain elusive and reliant on the interests of the persons without a disability. Many new appointments and the strengthening of offices, which have been promised in the Act, are also devoid of the aim of providing absolute justice.

There also seems to be no authority that can try an accused or pass a verdict. In cases of violence, the executive magistrate is to be sought. Employment-related discrimination can be reported to a grievance redressal officer, and there is a liaison officer to check on recruitment issues. All these remain under the purview of the chief commissioner.

All the concerns of the people with disabilities haven’t been addressed by the 2016 Act.

Another glaring and minimally-covered area is the magnitude of power exercised by private establishments.

At first glance, the private sector seems to be under the surveillance of the Act. However, except in certain contexts – like barrier-free access at private hospitals and among service-providers, or providing incentives in the case of employment, in which at least 5% of the workforce is made up of or reserved for persons with disabilities and an equal opportunity policy – the Act seems hardly persuasive.

This is evident from the fact that the revised draft rules that came out on March 10, 2017, did not mention the private establishment in the chapter on equal opportunity policy. However, in the original set of rules, that came out on March 3, 2017, an exclusive framework for the private sector had been included.

The authority that the Act wields on the private sector is therefore, highly limited. Similarly, one can disagree with many other provisions of this Act. Some of these debatable provisions are liable to failures, while the others can be countered or overthrown by twisted arguments.

Moreover, it is hardly airtight when it comes to ‘cross-examination’ and thus, can’t be maneuvered easily by a person with disability.

Sure, the Act aims for progress and inclusion. However, it falls severely short on the vision to acknowledge and empower persons with disabilities, so that they can sail through the challenges themselves.

When the bourgeoisie took control of the society – visibly, for the first time in history post the revolutions in the period from 1789 to 1848 – it was believed that they would not only bring about material prosperity, but also reason, human opportunities, enlightenment, science and the arts.

In a nutshell, a world of accelerating material and moral progress was the vision, back then. But what has come of the attempts to fulfill it, since then, is simply ‘survival of the fittest’ – with the ‘fittest’ having connotations ranging from ignorance to moral depravity.

In such a world where opportunities are the ‘charity of the fittest’, ‘vision’ is a strong, and perhaps, an abstract word.

Even if the ‘vision’ is deciphered or fulfilled, it will not disturb the guaranteed social order or threaten the existence of those who created it in the first place. All we can hope for is a future that will be magnanimous.

The article was first published here. It has been published on Youth Ki Awaaz with the author’s permission.

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