The celebratory mood that followed the passage of the Rights of Persons with Disabilities Bill (RPD) in an otherwise washed-out winter session of Parliament has now turned sombre. The framing of rules, indispensable for the implementation of the RPD Act, has already run into trouble. The Department of Empowerment of Persons with Disabilities, in its hurry to meet a self-set deadline of April 14, committed a procedural lapse by notifying the draft rules even before the Act had come into force. This lapse was rectified with the Act being brought into force from April 19, followed by notifying the draft rules once again on April 21. Prior to this, two drafts were uploaded on the department’s site dated March 3 and March 10, 2017.
The procedural lapses apart, there seems to be a deliberate attempt to circumvent the implementation of the RPD Act in its entirety. While there is just one rule for a chapter as important as “Education”, no rules have been proposed for many chapters, including crucial ones dealing with “Social Security, Health, Rehabilitation and Recreation”.
Paradoxically, like last time (the 1995 Act), the department proposes to follow this up with a policy for the implementation of the Act. This is placing the cart before the horse — ideally, a policy should precede legislation and not vice versa.
What is intriguing is that many provisions contained in the draft rules of March 3 were missing in the version put out on March 10. Of these, the most concerning was the removal of the private sector from the rules, including under the “equal opportunity policy”. It is only after protests that the private sector was brought within its ambit in the latest gazette notification on April 21. The original Bill did not include the private sector within the definition of “establishment”. This was introduced as an official amendment only under pressure from disability rights activists.
Writing in this paper on December 20, 2016, after the passage of the Act, I had pointed out that “A major concern with regard to the Bill was clause 3(3) which states, ‘No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is appropriate to achieve a legitimate aim’.” There is an apprehension that this clause gives unfettered power to the authorities to discriminate, on the pretext of serving a “legitimate aim”. Minister Thawar Chand Gehlot’s assurance in the Rajya Sabha that provisions will be made in the rules to ensure that this clause is not misused has not been adequately addressed.
A discriminatory attitude like the one faced by Rishi Raj Bhati will continue unhindered if rules are not framed properly. About a month after the RPD Act was legislated, Bhati, a disabled, newly-appointed Public Relations Officer of the Delhi Development Authority, was removed from his post and sent back to his old department.
Even before he could take charge, senior officials had decided that Bhati would not be able to keep up with the demands of his new position. After protests, Bhati was asked to rejoin, with the rider that he should return to service only if he felt “confident” he would be able to discharge the duties of his post. Bhati refused to join.
The latest version of the draft rules even while assuring that the provisions of the section are “not misused” by the head of an establishment to “deny any right and benefit to persons with disabilities covered under the Act” will not prevent such unpleasant incidents. Strangely, the burden of establishing whether the aim was “legitimate” or not rests on the affected party, not the authority concerned.
This apart, the committee constituted to oversee the framing of the central rules had just three representatives from the disability sector. Unfortunately, there has been no representation from any of the newly recognised disabilities in such an important committee. With 14 conditions now being newly added to the existing seven, the canvas has become much wider. Under-representation apart, the committee had just two sittings.
If the RPD Act, 2016 has to become a reality in letter and spirit, then processes such as rule-framing have to be carried out more thoroughly and collectively, with the involvement of its primary beneficiaries, and not just as a means of tokenism. Saner sense should prevail and the department should desist from coming out with half-baked rules. As we had cautioned earlier, a tough battle lies ahead for getting this law implemented.