The Rights of Persons with Disabilities Act, 2016 came into force on 27th December 2016 to give effect to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). This Act defines three types of persons with disabilities. They are as follows: –
Section 2 (r) of the Act provides that a “person with benchmark disability” is a person with at least forty percent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. Section 2 (s) says that a “person with disability” is a person with long-term physical, mental, intellectual, or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society. Section 2(t) provides that a “person with disability having high support needs” includes a person with benchmark disability who needs intensive support, physical, psychological for carrying out daily activities, to take independent and informed decision to access facilities and participating in all areas of life.
Chapter II of this Act deals with the rights of persons with all kinds of disabilities under the Act: –
- Section 3 puts an obligation on the government to ensure that the persons with disabilities enjoy the right to equality, life with dignity, and respect for his or her integrity. It also must take steps to utilize the capacity of persons with disabilities by providing an appropriate environment. This section prohibits discrimination of a person on the ground of disability unless the impugned act or omission is a legitimate means of achieving a logical aim. Similarly, no person can be deprived of his or her personal liberty on the ground of disability. For example, a person cannot be unlawfully detained for questioning on the ground of disability. It also puts an onus on the government to take all the necessary steps, make adjustments, etc. to ensure that all disabled people can exercise their rights equally like others.
- Special provisions have been made for women and children with disabilities. Section 4 provides that it is the responsibility of the government to ensure that women and children with disabilities enjoy their rights equally with others. And they should have the right to freely express their views on all matters affecting them and should be provided with appropriate support keeping in view their age and disability. This right is also recognized by Article 7 of UNCRPD.
- Due to lack of accessibility, health care, and equal opportunities, disabled persons find it difficult to make it independently. This is why Section 5 provides that the persons with disabilities shall have the right to live in the community and the appropriate Government has a duty to ensure the same. Article 19 of the conventions duly recognizes this right.
- Section 6 provides protection to persons with disabilities from torture, cruel, inhuman, and degrading treatment. It says that no person can be subjected to research without obtaining his/her free and informed consent obtained through accessible modes, means, and formats of communication and the prior permission of a Committee for Research on Disability.
- Persons with Disabilities have been a victim of abuse and violence for so long that Section 7 says that the appropriate Government shall take measures to protect such persons from all forms of abuse, violence, and exploitation and for the same the government should take cognizance of such incidents, provide protection against, take steps for avoiding them and create awareness among the public. Article 16 of the convention recognizes their right of Freedom from exploitation, violence, and abuse.
The aggrieved person or any registered organization may give information about it to the Executive Magistrate within the local limits of whose jurisdiction such incidents occur. The Executive Magistrate on receipt of such information should then take immediate steps to stop or prevent its occurrence or pass such order as he deems fit for the protection of such person with a disability.
This Act also puts the onus on the police officials to take action in case they receive a complaint or come to know of such a situation. Such police officials must inform the aggrieved person of his or her right to apply for protection and the particulars of the Executive Magistrate having jurisdiction to provide assistance. The officials also have to inform the particulars of the nearest organization or institution working for the rehabilitation of persons with disabilities, the right to free legal aid, and the right to file a complaint under the provisions of this Act or any other law dealing with such offence.
- Section 8 provides that the persons with disabilities shall have equal protection and safety in situations of risk, armed conflict, humanitarian emergencies, and natural disasters. The National Disaster Management Authority and the State Disaster Management Authority should take appropriate measures to ensure the inclusion of persons with disabilities in its disaster management activities for the safety and protection of persons with disabilities.
The District Disaster Management Authority should maintain a record of details of persons with disabilities in the district and take suitable measures to inform such persons of any situations of risk to enhance disaster preparedness.
The authorities engaged in reconstruction activities subsequent to any situation of risk, armed conflict or natural disasters should undertake such activities, in consultation with the concerned State Commissioner, in accordance with the accessibility requirements of persons with disabilities.
- Certain special rights for children with disabilities have been created by this Act. Section 9 provides that no child with a disability shall be separated from his or her parents on the ground of disability except on an order of the competent court, if required, in the best interest of the child. In case the parents are unable to take care of a child with a disability, the competent court should place such a child with his or her near relations, and failing that, within the community in a family setting or in exceptional cases, in a shelter home run by the appropriate Government or non-governmental organization. Article 23 of the convention is a corollary to this right.
- Section 10 provides that the appropriate Government should make sure that persons with disabilities have access to appropriate information regarding reproductive and family planning and no person with a disability shall be subject to any medical procedure which leads to infertility without his or her free and informed consent. Article 23 of the convention is a corollary to this right.
- Section 11 says that the Election Commission of India and the State Election Commissions shall ensure that all polling stations are accessible to persons with disabilities and all materials related to the electoral process are easily understandable by and accessible to them. Article 29 of the convention is a corollary to this right.
- Section 12 deals with a person with a disability’s access to justice. And for this purpose, the section provides that the appropriate Government shall ensure that such persons can exercise the right to access any court, tribunal, authority, commission, or any other body having judicial or quasi-judicial or investigative powers, without discrimination on the basis of disability. They should put in place suitable support measures for persons with disabilities especially those living outside the family and those disabled requiring high support for exercising legal rights.
This section also provides that the National Legal Services Authority and the State Legal Services Authorities shall make provisions including reasonable accommodation to ensure that persons with disabilities have access to any scheme, programme, facility, or service offered by them equally with others.
The government should ensure that all their public documents are in accessible formats; the filing departments, registry, or any other office of records are supplied with the necessary equipment to enable filing, storing, and referring to the documents and evidence in accessible formats and make available all necessary facilities and equipment to facilitate the recording of testimonies, arguments or opinion given by persons with disabilities in their preferred language and means of communication.
- Section 13 provides that the persons with disabilities have the right to own or inherit property, movable or immovable, control their financial affairs and have access to bank loans, mortgages, and other forms of financial credit. They enjoy legal capacity on an equal basis with others in all aspects of life and have the right to equal recognition everywhere as any other person before the law. A person with a disability may alter, modify or dismantle any support arrangement and seek the support of another. Provided that such a thing shall be prospective in nature and shall not nullify any previous transactions done by a person with disability with the previous support arrangement.
- Section 14 provides that if a district court or any designated authority finds that a person with disability, who had been provided adequate and appropriate support but is unable to take legally binding decisions, maybe provided further support of a limited guardian to take legally binding decisions on his behalf in consultation with such person. If a person requires total support or a limited guardian repeatedly, such a decision shall be reviewed by the Court or the designated authority to determine the nature and manner of support to be provided. If a person with a disability is aggrieved by the decision of the designated authority appointing a legal guardian, he/she may prefer an appeal to such appellate authority, as may be notified by the State Government for the purpose.
- Section 15 provides that the appropriate Government shall designate one or more authorities to mobilize the community and create social awareness to support persons with disabilities in the exercise of their legal capacity and also take measures for setting up suitable support arrangements to exercise legal capacity by persons with disabilities living in institutions and those with high support needs and any other measures as may be required.
In National Federation of The Blind and Ors. v. State of Rajasthan and Ors., the High Court of Rajasthan held that “In the case of visually impaired candidates, “reasonable accommodation” means that to attempt the examination, a proper scribe should be provided to the candidate who has a visual disability or impairment. Furthermore, Examiner or State authority has to provide reasonable time for the scribe to meet the candidate before the examination, to familiarize himself or herself to some extent and also other aspects relating to the conduct of the examination.”
- Ministry of Law and Justice. Government of India. The Rights Of Persons With Disabilities Act, 2016. http://legislative.gov.in/sites/default/files/A2016-49_1.pdf
- Department of Economic and Social Affairs Disability. United Nations. https://www.un.org/disabilities/documents/convention/convoptprot-e.pdf
– Esha Shah, Paralegal – POSH at Work