RPwD Act – 2016 India

1.Rights of Persons with Disability Act, 2016

The Act has been enacted under Article 253 of the Constitution read with item No. 13 of the Union List (WORD – -1 ) . It gives effect to the proclamation on the full participation and equality of the persons with disabilities in the Asian & Pacific Region and provides for their education, employment, creation of barrier free environment, social security, etc. The implementation of the Act requires a multi-sectoral collaborative approach by the appropriate governments, including various Central Ministries/Departments, States/Union Territories, local bodies.

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Salient Features of the Rights of Persons with Disabilities Act, 2016

In the RPWD Act, 2016, the list has been expanded from 7 to 21 conditions and it now also includes cerebral palsy, dwarfism, muscular dystrophy, acid attack victims, hard of hearing, speech and language disability, specific learning disabilities, autism spectrum disorders, chronic neurological disorders such as multiple sclerosis and Parkinson’s disease, blood disorders such as haemophilia, thalassemia, and sickle cell anaemia, and multiple disabilities. The nomenclature mental retardation is replaced by intellectual disability which is defined as “a condition characterized by significant limitation both in intellectual functioning (reasoning, learning, problem-solving) and in adaptive behavior which covers a range of every day social and practical skills including specific learning disabilities and autism spectrum disorders.” The Act provides an elaborate definition of mental illness which is “a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behavior, and capacity to recognize reality or ability to meet the ordinary demands of life but does not include retardation which is a condition of arrested or incomplete development of mind of a person, especially characterized by subnormality of intelligence.” Persons with benchmark disabilities are defined as those with at least 40% of any of the above disability. PWD having high support needs are those who are certified as such under section 58(2) of the Act.

The RPWD Act, 2016 provides that “the appropriate Government shall ensure that the PWD enjoy the right to equality, life with dignity, and respect for his or her own integrity equally with others.” The Government is to take steps to utilize the capacity of the PWD by providing appropriate environment. It is also stipulated in the section 3 that no PWD shall 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 and no person shall be deprived of his personal liberty only on the ground of disability. Living in the community for PWD is to be ensured and steps are to be taken by the Government to ensure reasonable accommodation for them. Special measures are to be taken to ensure women and children with disabilities enjoy rights equally with others. Measures are to be taken to protect the PWD from being subjected to cruelty, inhuman, and degrading treatments and from all forms of abuse, violence, and exploitation. For conducting any research, free and informed consent from the PWD as well as a prior permission from a Committee for Research on Disability to be constituted in the prescribed manner. Under section 7(2) of the Act, any person or registered organization, who or which has reason to believe that an act of abuse, violence, or exploitation has been, is being or likely to be committed against any PWD, may give information to the local Executive Magistrate who shall take immediate steps to stop or prevent its occurrence and pass appropriate order to protect the PWD. Police officers, who receive a complaint or otherwise come to know of violence, abuse, or exploitation, shall inform the aggrieved PWD of his right to approach the Executive Magistrate. The police officer shall also inform about particulars of nearest organization working for the rehabilitation of the PWD, right to free legal aid, and right to file complaint under the provisions of this Act or any other law dealing with such offence.

Equal protection and safety in situ ations of risk, armed conflict, humanitarian emergencies, and natural disasters are to be provided to PWD. Children with disability are not to be separated from parents except on the order of a competent court and information about reproductive rights and family planning to the PWD is to be ensured. Accessibility in voting and access to justice without discrimination to the PWD are to be ensured. Public documents are to be made available in accessible formats.

It is to be ensured that all PWD enjoy legal capacity on an equal basis with others in all aspects of life and has the right to equal recognition everywhere as any other person before the law and have the right, equally with others, to own and inherit movable and immovable property as well as control their financial affairs (Sec 13). It is also provided that a PWD with benchmark disability who consider himself to be in need of high support, he/she or any other person or organization in his behalf may apply to the authority appointed by the Government for the same and the authority shall take steps to provide support accordingly (Sec 38). However, the PWD would have the right to alter, modify, or dismantle the support system and in case of conflict of interest, the supporting person would withdraw from providing the support [sec 13(4&5)]. It has been provided in the section 14 of the Act that a District Court or any designated authority, as notified by the State Government, finds that a person with disability, who had been provided adequate and appropriate support but is unable to take legally binding decisions, may be provided further support of a limited guardian to take legally binding decisions on his behalf in consultation with such person, in such manner, as may be prescribed by the State Government. It is also provided that the District Court or the designated authority, as the case may be, may grant total support to the person with disability requiring such support or where the limited guardianship is to be granted repeatedly. In these cases the decision regarding the support to be provided shall be reviewed by the Court or the designated authority, as the case may be, to determine the nature and manner of support to be provided. Limited guardianship has been explained to mean a system of joint decision which operates on mutual understanding and trust between the guardian and the person with disability, which shall be limited to a specific period and for specific decision and situation and shall operate in accordance to the will of the person with disability. It is also provided that on and from commencement of the Act, every guardian appointed under any other law for time being in force shall be deemed to function as a limited guardian.

The Bill provides for the access to inclusive education, vocational training, and self-employment of disabled persons without discrimination and buildings, campuses, and various facilities are to be made accessible to the PWD and their special needs are to be addressed. Necessary schemes and programs to safeguard and promote the PWD for living in the community are to be launched by the Government. Appropriate healthcare measures, insurance schemes, and rehabilitation programs for the PWD are also to be undertaken by the Government. Cultural life, recreation, and sporting activities are also to be taken care of. All Government institutions of higher education and those getting aid from the Government are required to reserve at least 5% of seats for persons with benchmark disabilities. Four percent reservation for persons with benchmark disabilities is to be provided in posts of all Government establishments with differential quotas for different forms of disabilities. Incentives to employer in private sector are to be given who provide 5% reservation for persons with benchmark disability. Special employment exchanges for the PWD are to be set up. Awareness and sensitization programs are to be conducted and promoted regarding the PWD. Standards of accessibility in physical environment, different modes of transports, public building and areas are to be laid down which are to be observed mandatorily and a 5-year time limit is provided to make existing public building accessible. Access to information and communication technology is to be ensured. The Central and State Advisory Boards on disability are to be constituted to perform various functions assigned under the Act. District level Committees are also to be constituted by the State Government. Chief Commissioner and two Commissioners for PWD are to be appointed by the Central Government at the central level for the purposes of the Act. Similarly, State Commissioners for PWD are to be appointed by the State Governments. National Funds for PWD and State Funds for PWD are to be constituted at the central and state levels respectively by the appropriate Governments. Contraventions of the provisions of the Act have been made punishable by a fine of an amount up to ten thousand for first contravention and fifty thousand extendable up to five lakhs for subsequent contraventions. Atrocities on PWD have been made punishable with imprisonment of 6 months extendable to 5 years and with fine. Fraudulently availing of the benefits meant for PWD has also been made punishable.