This article is authored by Aditi Kotecha, a 2nd year law student at Hidayatullah National Law University, Raipur.
The world lives on the principles of “Survival of the fittest” and “Charity by the fittest”, where the connotations of the word “fittest” keeps varying and are also very subjective. While this fact is true, the world also lives by a very basic human right and that is the Right to Equality. Better written on papers than implemented by people, the right still remains very under-observed when it comes to the rights of persons with disabilities.
Recently the Supreme Court passed a very progressive judgment recognising and fulfilling the needs of Persons with Disability (will be referred as PwD hereon) citizens. In Vikash Kumar vs. The Union Public Service Commission[i], the Court held that a person suffering from dysgraphia or which is commonly known as the writer’s cramp is entitled to a scribe in the Civil Service Examination. The Court pointed out the fundamental fallacy in the Rights of Persons with Disabilities Act, 2016 (will be referred as RPwD hereon). It said that the requirement of 40% or more of any specific disability to be provided with a scribe should be done away with as it is against the true objective of this Act. It opined that a reasonable accommodation should be granted by the state in order to uphold the principle of equality. And the equality over here does not only mean eliminating unequal practices but also bringing in the positive rights.
This judgment has increased the paradigm of rights given to PwD candidates and gave a better and comprehensive interpretation of the RPwD Act. The RPwD Act, 2016 was passed by the government of India in compliance with the terms of United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). This Act also widened the ambit of Persons with Disabilities Act, 1955, which had 7 categories of disabilities. This Act comprises of 21 categories of disabilities. It is praised for its inclusive approach and provisions, but the success of any Act actually depends upon its proper implementation and other proactive measures taken by the respective state as well as the central government. While the Act is appreciated as it tried and filled lots of gaps that were present in the previous Act, it also has some lacunas which needs immediate attention of the government in order to make its provisions more accurate.
The term ‘disability’ is very wide and hard to comprehend. According to the World Health Organization (WHO), there are six domains of for the proper functioning of life. They are cognition, mobility, self-care, getting along, life activities and participation. These domains make the assessment of disability a bit simpler and generic. Disability itself is not a health problem, but is considered as a complex phenomenon. It depends upon the features of a person and how they are different from the features of general society. Due to the diverse nature of ‘disabilities’, their treatment and needs are very different. But the basic requirements remains same for all of them and could be fulfilled by proper care.
Physical disabilities are seen and can be addressed by giving certain rights and privileges. Issues come when the disability is hard to recognise, like in the case of mental disabilities, or persons with specific learning disabilities. Most of the scholars have questions regarding these two disabilities and the vague and incomplete interpretation given to them in the Act.
When we see Specific Learning Disability (SLD), it in generic terms means the gap that exists between the actual learning and capability of learning a child has. The Act does not provide any scale to measure such disability. Thus the stance becomes very shaky, almost leaving no specific remedy for the persons with such problems and their lives relies on the discretion of the courts.
Another under-looked category remains ‘mental disability’. The term may look very simple, but its implications could be very far reaching. Persons with Mental Illness stand last in the line when it comes to recognition and grant of rights. The diagnosis of any mental illness is not specific and takes ample amount of time. But there is a need to develop an assessment scale for these type of disabilities in order to give due rights to the people suffering from it. Though the Act provides that disability certificates can be issued for all mental illness, there is again a classification in certifying temporary and permanent illness. The temporary certificate is valid for 5 years and the patient is observed for about 6 months, while the permanent certificate is for lifelong. There have also been certain instances when these certificates were not honoured. Another drawback is that the information regarding certificates is not quite widespread.
There are several other ambiguities seen in the Act, like when it comes to the rights of Children with Disabilities. The Act is silent about providing scribes and extra time to students with disabilities and leaves it on the institution, which provides them unchecked advantage to determine the accommodation they want to give and this promotes inequality. The Act also omits any inclusion of adaptive technologies under its ambit, which is specifically provided in UNCRPD.
A report shows that in India the total representation of PwD category employees remains under 1% as of 2019. The numbers are triggering, even when the government has passed a law specifically for their benefit and betterment. The gap further widens when we see specific representation of men and women. The reasons of this gap may include lack of accessibility, proper skills and discrimination. When we talk about accessibility, the basic infrastructure of offices still lack facilities for PwD people, be it in their restrooms or their entrances. The job vacancies are not advertised for PwD people. They do not have access to proper transport, study material or research material. Over all, the environment created by the common people is not inclusive at all to accommodate them in the normal chores.
When we talk about skills, half of the PwD population in India is uneducated and unskilled. The cycle goes back again to their access to the education system. There was a mandate of RPwD Act which said that specific curriculum for the children with disabilities has to be designed, but this hasn’t been fulfilled yet.
In a study by the Trust for Retailers and Retail Associates of India (TRRAIN) (2019) in association with the HSBC, it came out that the inclusion of PwDs in the mainstream retail business could add up to 5-7% GDP (Gross Domestic Product) growth. The report also brought out that the productivity of a PwD worker is 1.5 times more than a normal worker. This is because they are more focused, sincere and dedicated towards their work. Also, most of the retail shops do not include any specific criteria or qualification for their jobs, so the employment of PwD candidates should not pose any difficulty. The report brings out a very undiscovered and under-valued subject related to the PwD candidates about their employability. This proves that the sole division and discrimination they face is because of common people’s biasness and pre-conceived notions.
According to a 2011 census, 2.21% of India’s population i.e., about 2.68 crore (now it is around 10 crores) people belong to PwD category. The Act has several provisions which are being misused by the states for their own benefit and the life of these 2.68 crore people is at stake, when it comes to implementation of this Act. The loop holes present in the wordings of this Act should be identified by the government and removed. Earlier the government also came out with a suggestion to exclude minor punishments given under the RPwD Act. This proposal was criticized by the public and no changes have been made yet.
The government should keep in mind that the acts and legislations passed by them may become the foundation of someone’s life. The more vague and scattered they make it, the more it endangers the lives of the people dependent on it. The Act was a major step towards recognising the rights of PwD candidates and to bring them in the mainstream. But the problem won’t be fixed until and unless the society as a whole try to treat them equally. They should feel a sense of belonging in the society, and this won’t be done by the government. This is our task to bring them in the mainstream and make them comfortable.
[i]Vikash Kumar v. Union Public Service Commission and others, 2021 SCC OnLine SC 84