The Government’s Motive behind amending the PwDA

On Wednesday, 1st July,2020, the Department of Empowerment of Persons with Disabilities, under the Ministry of Social Justice and Empowerment, issued a notice proposing the Amendment of the Right of Persons with Disabilities (RPwD) Act, 2016.
It proposed the amendment to decriminalise “minor offences for improving business sentiment and unclogging court processes’’.

Activists have urged the government not to go ahead with the proposed amendments as it will nullify the small achievements gained over the years.
The Shillong Times reported that, “In a joint statement, around 125 disability rights organisations, civil society organisations and activists said they unequivocally register their strong protest against the proposal to “dilute and nullify” penal provisions contained in the Rights of Persons with Disabilities Act, 2016.”

The notification issued on Wednesday, stated that the decriminalisation of minor offences will alleviate the risk of imprisonment for actions which do not necessarily have “mala fide intent”.
It also claimed that the risk of jail is a deal breaker for both domestic and foreign investors – which is unwarranted in the post COVID 19 world, in order to revive the economy.

Even after protests, the Ministry is awaiting feedback within 10 days.

The Department’s director, and author of the notification, KVS Rao said, ”The government has undertaken the process of reviewing existing laws, many of which were devised by the British under the Indian Penal Code and had never been reviewed – such as IPC Section 377, which criminalises homosexuality. The Home Ministry has asked many ministries to take a relook at these laws. When this (RPwD) Act was formulated, many IPC Sections were added mechanically, without the consideration of reformulating to keep abreast with the times.
But the notification is simply a call for feedback and observations from the community. The intent is not to harm the community in any way or to pass an amendment which may be detrimental to the rights of disabled persons.”

Rao further stated that the department is considering reducing the penalty or punishments, for offences that are classified as severe but seem ‘minor’ to the ministry.

Disability activists on the other hand argue that the 2016 Act was the result of years of struggle, and came into force after India became a signatory to and ratified the UN Convention on Rights of Persons with Disabilities (UNCRPD) in 2007.

Dr. Satendra Singh, a Disability Rights Defender, argues that it has been just 3 years since the implementation of PwDA 2016 and rather than acting on the concluding observations of UN CRPD committee, the government is bringing out Penal Provisions Amendment in a pandemic with a 10 day deadline, that will basically dilute the act.

Akhil Paul, a member of the drafting committee for the PwDA, and the founder of Sense International (a charity working with the deaf and blind people of India), says that he can’t support this amendment as it is against the protection of rights of PwD.
He further states,” (Government) shouldn’t be diluting disability rights law for ‘business sentiment and unclogging court processes’

Disability activists have emphasised the fact that softening the penalties will only make public and work spaces unsafe for them.

Section 92 (a) of the Act provides a penalty of imprisonment when a person ‘intentionally insults or intimidates with intent to humiliate a person with disability in any place within public view’.

Vaishnavi Jayakumar from the Disability Rights Alliance, compared the above section with The Scheduled Castes and Tribes (Prevention of Atrocities) Act and further asked if the government would be able to do away with that.

Jayakumar further said that when a legislation concerns the right of an individual, the proposal should ideally be published in several regional languages widely and people should be given enough time to comment and provide feedback. The proposal has been published in English and ten days have been given for public feedback.

Murganantham Linguswamy, an advocate at the Madras High Court and a disability rights activist argued, “The government is trying to create a conducive business environment at the cost of an individual’s dignity – which is a fundamental right”.
He further stated that the National Crime Record Bureau has not published any statistics regarding offences against the disabled and hence changing legislation without reliable data would be arbitrary.

Since the lived experiences of PWDs cannot be understood by the able-bodied, consulting stakeholders is a critical step while framing inclusive policies. Even the method of notifying the amendment was problematic. In the name of stakeholder involvement, only 7 disability rights organizations.

But this wouldn’t be the first time this year that the government would prioritise economic stability over human rights. In May 2020, the Uttar Pradesh government suspended labor laws for three years, in an attempt to lure more investors in the State.

But now the State is not only denying the PWDs their right to a fair hearing but threatening years of progress that made PwDA 2016 possible.

They are not only patronizing ‘Divyang Politics’ but also are putting ‘Business Sentiments’ before the rights of marginalized communities.
This is not only immoral, but also goes against the Socialist nature of our constitution, which is embedded in our Preamble.

In the end, all we have to ask is this, Is India a Socialist State which will protect the rights of its citizens, or is it just a Capitalist Country masquerading as a Socialist one ?