Since the time it came into force more than two months ago, the Rights of Persons with Disabilities Act, 2016 (RPWD Act) has been severely criticised for being a half-hearted attempt at ensuring empowerment of persons with disabilities. What was touted to be a game changer for persons with disabilities, critics of the law have argued, was in fact nothing more than a sloppily drafted litany of many empty promises. However, the recently notified Rights of Persons with Disabilities Rules, 2017 (RPWD Rules) framed by the Ministry of Social Justice and Empowerment (Department of Empowerment of Persons with Disabilities) plug many of the loopholes in the RPWD Act and make it more robust, thereby offering respite to millions of persons with disabilities in India.
RPWD Rules: Hits and misses
In line with the Magna Carta on disability rights, i.e. the United Nations Convention on Rights of Persons with Disabilities (UNCRPD), Chapter III of the RPWD Act sets out detailed provisions on inclusive education. These provisions range from ensuring physical access to buildings to more specific measures such as providing individualised support to meet the individual needs of a person with a disability. In addition, Section 31 of the RPWD Act provides every child with a benchmark disability between the ages of 6-18 years the right to free education in a neighbourhood school, or in a special school, of his/her choice.
By setting out a redressal mechanism for all issues related to education, the Rules breathe life into the provisions of the RPWD Act relating to education.
While the sections of the RPWD Act can be lauded for explicitly acknowledging that a one-size fits-all approach cannot be taken while providing accommodation for persons with disabilities and for recognising the right of a disabled child to study in a mainstream school, they can also be heavily criticised in the same breath for not setting out the enforcement mechanism to achieve these lofty goals.
In other words, without a responsible authority to check misuse and non-compliance, the provisions are nothing more than a "parchment barrier" against the discriminatory treatment of students with disabilities in academic institutions that fail to meet their special needs.
It is heartening to note, therefore, that the RPWD Rules address this concern in a robust fashion.
Rule 7 of the aforesaid rules states that a nodal officer shall be appointed in the District Education Office to deal with all matters relating to admission of children with disabilities and the facilities to be provided to them in schools. By setting out a redressal mechanism for all issues related to education, the Rules breathe life into the provisions of the RPWD Act relating to education.
Another instance where the RPWD Rules tighten the framework of the Act is sub-rule 3(2)(b). Section 3(3) of the RPWD Act states that no person with a disability 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.
Another provision that has the potential to make a transformative impact... relates to digital accessibility. This rule makes it mandatory for all establishments to publish documents in ePUB or Optical Character Recognition (OCR)-based pdf format.
This wide and vaguely carved out exception provides ample opportunities to employers and organisations to wriggle out of their obligations under the RPWD Act under the pretext of achieving a "legitimate aim", a phrase which is undefined. What constitutes a legitimate aim? Could a company deny ramps and/or lift facilities to a single employee on a wheelchair with a legitimate aim of reducing costs of operation and increasing profits? The answer remains unclear. However, sub-rule 3(2)(b) of the RPWD Rules at least puts in a mechanism in place to prevent gross abuse of this exception. The rule requires organisations to spell out reasons for the act/omission. Ergo, if an organisation wants to deny reasonable accommodation to a disabled person under the pretext of attaining a "legitimate aim", it would have to articulate in writing the rationale underpinning its belief that the denial is a proportionate means of attaining a legitimate aim.
Another provision that has the potential to make a transformative impact in improving the quality of life of the disabled relates to digital accessibility. This rule makes it mandatory for all establishments to publish documents in ePUB or Optical Character Recognition (OCR) based pdf format. At a time where private establishments blatantly disregard their duty to make their websites accessible, where government schemes such as the Digital India campaign do not even make a passing reference about digital accessibility for persons with disabilities, and where various governmental departments put up image based notifications and circulars, this rule mandating digital accessibility is a welcome relief to not only disabled persons but also able-bodied persons, who are on the receiving end of unsearchable and badly scanned image pdfs too.
However, just like the RPWD Act, the RPWD Rules fail to accord legal recognition to several progressive pronouncements of the Indian Supreme Court on disability rights.
For instance, in the landmark ruling in Rajeev Kumar Gupta & Others v. Union of India & Others, the Court held that persons with disabilities are entitled to reservation in promotion. However, the RPWD Rules, instead of securing the forward-looking holding in this case on a firm legal footing, merely state that "reservation in promotion shall be in accordance with the instructions issued by the appropriate Government from time to time."
[T]he RPWD Rules do a commendable job of imbuing the skeletal structure of the RPWD Act with strong bones and flesh and ironing out the creases in the legal framework...
Only time will tell if persons with disabilities will bear the brunt of this omission and continue to be denied reservations in promotions. However, all is not lost, as Rule 11 puts to rest any questions on the method of computation of reservation. In the past, persons with disabilities were denied reservation in government jobs as the method of computation of reservation was based on identified posts and not on the total cadre strength. This resulted in a reduction in the number of seats reserved for the disabled. However, in 2013, the judgment of the Hon'ble Supreme Court of India in Union of India v. National Federation for the Blind put to rest any confusion by holding that reservation should be computed by taking into account the vacancies in the entire cadre strength and not just in identified posts. The RPWD Rules mirror this holding and state that the total number of vacancies should be computed in the cadre strength (i.e., by including vacancies arising in identified and non-identified posts).
In sum, it would be no exaggeration to state that the RPWD Rules do a commendable job of imbuing the skeletal structure of the RPWD Act with strong bones and flesh and ironing out the creases in the legal framework governing the rights of the disabled in India. While some may argue that the RPWD Rules don't go far enough in terms of foreclosing all avenues of discrimination against the disabled, such a criticism fails to take note of the sheer size and magnitude of the problems faced by the disabled and the practical challenges that must be surmounted while creating a legal framework that can address all these myriad challenges.
The RPWD Rules, much like the Act, are by no means perfect, but, as we analyse the Rules, let us not allow the perfect to become the enemy of the good.
The authors are members of the disability vertical at IDIA (Increasing Diversity by Increasing Access to Legal Education)