As you are aware, ever since the Rights of Persons with Disabilities Act 2016 (hereinafter RPwD Act 2016) received the assent of the Hon'ble President of India on 27th December 2016, the Department of Empowerment of Persons with Disabilities [hereinafter DEPWD] had been working overtime on the Rules so as to enforce the Act at the earliest. It may be noted that though the new Act has been notified in the official gazette on 28th Dec 2016, but in order to enforce it, the rules are to be framed and a date needs to be appointed in the official gazette on which the Act will come in to force.
The DEPWD thus constituted committee to suggest draft rules and had put out a draft Rights of Persons with Disabilities Rules 2017 as on 03rd Mar 2017 on its website. This was subsequently amended based on the comments from Ministry of Law and the DEPWD freshly notified the draft RPD Rules 2017 in the Official Gazette dated 10 March 2017 calling for comments from stakeholders within one month.
Observations of CABE, India on the Draft Rules 2017:
- The objective of the new RPwD Act 2016 is to realise the mandate of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which is a challenging task given the state of preparedness in the country. We feel that the draft rules don't indicate that the DEPWD has anticipated the enormous difficulties likely to be faced in implementing various sections of the Act and in the hurry to enforce the Act on 14 April 2017, many crucial sections have been left out in the rule making process.
- The draft rules have been restricted to Section 100 (2) of the Act only and they fail to offer any guidance for proper implementation of many of the important sections of the new RPwD Act.
- We feel that the draft rules contravene the very RPwD Act for which they have been drafted. For instance, while many sections of the Act that are applicable to establishments (both Govt. and private), the rules render them inapplicable to private establishments.
- The draft rules are silent on providing any mechanism from possible misuse of Section 3(3). The current provision in the rule that the person with disability may approach the Chief Commissioner for Persons with Disabilities doesn't inspire confidence that the section 3(3) will not be misused. The chances of misuse are more when the Act itself reduces the powers of the Chief Commissioner as mere recommendatory. This tends to give unfettered powers to the establishment to discriminate by doctoring a legitimate aim. We, believe that the section in present form leaves a person with disability completely unprotected in case he/she is discriminated against on the grounds of disability. There is a need to address this and empower the office of CCPD and also create more checks & balances in the rules when powers under 3(3) are to be used by an establishment.
- The Schedule to the Act describing Specified Disabilities" in the different heads seems to be a blooper with no scientific basis of categorisation.
- The Schedule fails to differentiate 'thalassemia major' from 'thalassemia minor'. Thus it lumps 30 million asymptomatic carriers of thalassemia unnecessarily together with the transfusion-dependent thalassemia as persons with disabilities.
- We believe that the new category of 'acid attack survivors' added in the schedule of 'specified disabilities' in compliance of Supreme Court’s directions is most unscientific and unreasonable for it fails to protect & support those who are burn survivors having similar disabilities as that of acid attach survivors. In short, a person who got burnt due to acid attack will be treated as a disabled, but the one burnt with petrol or kerosene or other chemical will not be treated as disabled in the Act!
- Section 17 of the draft rules, requires the compliance to the Model Building Bye Laws (hereinafter MBBL) of Ministry of Urban Development for accessibility in physical environment. Now, we all know that the MBBL is actually an outdated document as far as accessibility. We already have a better version of the accessibility norms in form of 'Harmonized Guidelines and Space Standards for Barrier Free Built Enviornment Feb 2016' also issued by Ministry of Urban Development. These Harmonised Guidelines are used by the empanelled access auditors use today for conducting access audits under the Accessible India Campaign of the DEPWD. However, after the Bureau of Indian Standards has notified & released the National Building Code of India 2016 on 15 March 2017 with a full-fledged chapter on Accessibility, there is no point on retaining reference to MBBL which will be a regressive step. We strongly recommend that either we move to NBC 2016 for the purposes of accessibility compliance under the RPwDA 2016 or get the MBBL immediately revised to incorporate reference to NBC 2016 and make necessary changes wherever needed.
- Under Section 17, for accessibility of areas other than physical environment, no other document has been updated in light of recent developments in science & technology. Therefore, it is suggested that the rules fix a time limit of 6 months from the date of notification of rules for review of all standards related to accessibility of Public Bus Transport, Rail Coach, Ship vessels, Airport and Aircrafts, telecommuication services, telecasting and radio broadcasting & any other service or facility.
- Section 19(1) should not restrict the authority of making application for disability certificate only to the legal guardian as this would keep those devoid of the facility of disability certificate who are awaiting appointment of legal guardian or family members are not yet appointed their legal guardian. Thus a proviso should be added, "Provided that where a person with disability is unable to make such an application himself being minor, with a severe disability or any other reasons, the application on his behalf may be made by next friend, family member, legal guardian or a registered organization."
- In Section 30 (b) regarding qualifications for Chief Commissioner, should include provison that the candidate should not have a conflict of interest in joining the post of Chief Commissioner. Conflict of interest, if any, must be declared at the time of application and appointment shall be subject such conditions as may be prescribed. Other things being equal, preference shall be given to candidates with disabilities, while considering the appointment of Chief Commissioner.
- There are several cases where people suffer due to wrong diagnosis or incorrect percentage of disability by the assessing officers. Section 20 of the draft rules makes no provision for appeal mechanism which is urgently needed. Also it should be stated clearly that the disability certificate shall be valid across nation for all purposes.
- We fear that, any such move of hurriedly notifying the rules and enforcing the Act will only reduce the limited time frame available to remove difficulties after the enforcement date. (two years available under section 98 of the Act from the date of enforcement). Therefore, it is suggested that the DEPWD should consider notifying such rules that helps enforcement of the complete Act rather than in piecemeal. This would be in the larger interest of the persons with disabilities and will help implement the new Act effectively.