Guarded Gifts

India, being a signatory to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) enacted The Right to Persons with Disabilities Act, 2016 (RPWD) as a need for a right-based, medico-social law was felt. The rampant diversity in the country showed that lack of access to resources and education, poverty, unemployment, homelessness and abuse are also among the causes of late recovery from mental disorders[i]. While government establishments have reserved seats for the differently-abled, nothing has been done to make them feel included. Innumerable guidelines issued for the protection of people with disabilities (PWDs) have ended up discriminating them. This shocking statistic shows that we need to cease herding cats and resort to meticulous methods like providing incentives to establishments that have reserved seats for PWDs.

RPWD, 2016

Under RPWD, 2016, the terms "disability" and "mental illness" have been defined keeping the social and environmental aspects in mind, for a broader and more-inclusive understanding expression of the word. In lines with the Mental Healthcare Act, 2017, the term "mental retardation" has been replaced by ID to reduce the stigma associated with it. These can be observed as steady steps towards success. The Act has also brought forth the right to legal capacity, the right to own or inherit property, the right to control financial affairs, and the right to have access to financial credit and voting services[ii]. All public places are to be made user-friendly and understandable to them. The law has gone to the extent of granting them the power to make legally-binding decisions with the help of a legal guardian and also the discretion to change their guardians if required. As per the PWD Amendment Rules, 2009, a family member is also eligible to apply for a disability certificate[iii].

The provisions mentioned above portray a dynamic shift from a charity-based to a right-based model of the Act. The duty to take care and cater to the needs of PWDs has been bestowed upon the family. As per the latest law, a person with disability, an NGO or another person on his/her behalf can apply to a medical authority if the need for special support is felt. With respect to reservations, not only has the per cent increased, but with that subject-matter of reservation has been expanded to include agricultural land, housing, property, institutions and schemes[iv]. Some of the other schemes of the Act were to set up special schools to inculcate inclusiveness of PWDs. With all the Sections in place, the differently-abled can beat one's brains out, and this manifests the famous lines from Flowers for Algernon, "I'm like a man born blind who has been given a chance to see light."

COVID-19

The access to essential entities can get denied while their freedom of movement is restricted, especially when PWDs are depended on others. At such difficult times of COVID-19, when the whole country has gone into a strict, long lockdown, the current situation can work against PWDs. Moreover, an unfathomable portion of the population still discriminate them, and this, in turn, aggravates their mental health. If the society they live in subjects them to prejudice, it is going to worsen their plight. WHO has come up with guidelines to break barriers for PWDs, so that they have access to essential goods and services, testing and medication. An inspiring instance can be drawn from Canada, where prior testing guidelines for PWDs and the need to address their difficulties during such unprecedented times have been discussed. This is something out of the blue, and the step stands out to show that States should prioritise the health and well-being of PWDs like Canada did.

CHALLENGES

The objectives of the legislation are crystal clear, but the implementation of RPWD, 2016 can seem far-fetched. Only with the proactive participation of the State can the provisions be put to place. Although the discretion to make a legally-binding decision stays with the PWD, the extent to which this can be manifested needs to be laid down. When does the power shift from the person with a disability to their legal guardian? This question needs to have a clearer picture with definite answers. Additionally, the assessment and giving out of disability certificate seems to have become tedious with the RPWD, 2016 as it hasn't been decentralised.

The amendments have brought in some exceptional changes, but only the execution will decide the fate of progress. One other gray area to be dealt with is the per cent of reservation and how effectively it would work. Is the percentage of reserved seats enough, considering the new Act has recognised new mental disorders? Is it also not necessary to specify categories and sub-categories under reservation? If the differently-abled children go to the same schools as others, what methods of teaching are the teachers going to adopt to make it easy for them to follow? If, in government establishments, flexible working hours are granted to the PWDs, how would they cope up with the workload? And if, they are given lesser work compared to their colleagues, aren't they going to be made to feel like they are less worthy? Will reservation alone prove fruitful, and if yes, how can "isolation" in the name of "giving special consideration" be justified? Rules and regulations need to laid down answering these questions, so as to make these dreams a reality.

SUGGESTIONS

With respect to RPWD, 2016, the changing mental health conditions of PWDs need to be given recognition, since they are capable of making decisions on their own when they are of "sound mind"[v]. The new legislation has amended and added a new list of mental disorders to the old Act, but the cap of reservations hasn't been increased to cater to that. The legislature must see through this to keep the Act alive and kicking. With the establishment of special schools and colleges for PWDs and reserving seats for them in institutions, comes the responsibility of the State to incentivise the system. This is to abrogate any hesitation or bias that may arise at a later point of time. Further, there is also a need to determine the inclusion criteria in educational institutions and government establishments as the requirements of one specific group of people need not match with others. For example, the needs of a people with dyslexia and dysgraphia might vary (Both of which have been recognised as learning disabilities). When provisions for reservations are being made for PWDs, economic criteria could also be given significant consideration since it plays a major role in competition and sustenance.

As in King Rat, "A trap is only a trap if you don't know about it. If you know about it, it's a challenge" (China Miéville). Surprisingly, some states like New Zealand have taken meaningful measures like providing relevant information related to COVID-19, even in sign language. New Zealand has perfectly pulled off a stride, as smart as a whip and it has set an example for others to follow. This is an awakening step in the time of lockdown in recognising the needs of PWDs. PWDs, being one of the most vulnerable sections of the society, require special care and attention during such times, so that they are not marginalised. What is more important is to ensure that they are not denied access to the essential facilities. As a welcoming step, India's venture of issuing a helpline number for PWDs is commendable. Although there are stones unturned, nothing is unachievable.

CONCLUSION

With the recommendations mentioned above, the challenges can be tackled even though it is a time-consuming process. While RWPD, 2016 has come out with bold and driven provisions, the questions posed needs to be answered for its execution. The mental health implications with respect to the Act must be given as much importance as any other Section of the Act. Numerous mental disorders have been added to RPWD, 2016, but it needs to be more comprehensive as there are more mental disorders to be recognised. By addressing all the drawbacks of the Act, an environment, as healthy as can be, shall no longer be a utopia!

ENDNOTES

[i] National Mental Health Survey of India, 2015-2016 Prevalence, Patterns and Outcomes, Supported by Ministry of Health and Family Welfare, Government of India, and Implemented by National Institute of Mental Health and Neurosciences (NIMHANS). Bengaluru: In Collaboration with Partner Institutions; 2015-2016. [ii] The Rights of Persons with Disabilities Act, 2016, Gazette of India (Extra-Ordinary); 28 December. 2016. [Last accessed on 2020 Aug 28]. Available from: https://www.disabilityaffairs.gov.in/uploaad/uploadfiles/files/RPWD/ACT/2016.pdf . [iii] The Amended Rules for Persons with Disabilities. Available from: https://ayjnihh.nic.in/Amended_PWDRules1996_ accessible.pdf. [Last accessed on 2020 Aug 29.

[iv] Supra, note 2. [v] World Health Organization. WHO-Disability Assessment Schedule II. Geneva: World Health Organization; 1988.

ABOUT THE AUTHOR

This blog has been authored by TS Sneha, who is a 2nd Year B.A., LL.B. (Hons.) student at National University of Advanced Legal Studies, Kochi.

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