India’s Rights of Persons with Disabilities Act 2016: An Unfulfilled Promise

by | Jun 24, 2024

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About Bhavya Johari

Bhavya Johari recently completed an undergraduate degree from NALSAR University of Law (Hyderabad, India) and is currently an LLM candidate at the London School of Economics and Political Science. He is interested in the intersection between human rights and criminal law.

India’s enactment of the Rights of Persons with Disabilities (RPWD) Act 2016 was a pivotal step towards aligning its legal framework with the UN Convention on the Rights of Persons with Disabilities (CRPD). Despite the progressive nature of the legislation, its implementation has been marred by delays and non-compliance by many states, leaving the promise of equal dignity and access for persons with disabilities unfulfilled.

The Act expanded the scope of protection for disabled persons, increasing recognised categories of disability from 7 to 21 and redefining them through social, environmental, and relational lenses rather than solely medical terms. This shift represented a move towards a rights-based approach, with the legislation introducing enforceable protections backed by special courts and punitive measures under section 84 and Chapter XVI of the RPWD – in stark contrast with the advisory nature of its predecessor, the Person with Disabilities Act 1995.

The Implementation Gap

Despite the Rights of Persons with Disabilities (RPWD) Act being enacted in 2016, its implementation has faced significant hurdles, as underscored by the Supreme Court’s series of orders in the case Seema Girija Lal v Union of India. The initial court order, issued in January 2023, exposed the glaring gaps in compliance by various states, prompting the apex court to issue successive orders urging the Department of Disabilities, under the Ministry of Social Justice and Empowerment of the Central Government, to coordinate with state governments.

Notwithstanding the Court’s orders, which included deadlines for the Ministry to collaborate with State Governments, the Act’s provisions remain largely unimplemented across many states. The Court had called for the implementation of crucial operational aspects, such as the appointment of State Commissioners [section 79], the establishment Special Courts, the designation of Public Prosecutors [sections 84 and 85], and the formulation of rules [section 101]. However, as evidenced by the recent order in April 2024, continued non-compliance persists.

This raises a crucial question: given that implementation falls squarely within state competence, why have numerous states failed to implement the RPWD Act’s provisions despite seven years since its entry into force and a year of sustained judicial orders?

Lack of Oversight and Enforcement

The failure to effectively implement the RPWD Act 2016 constitutes a grave violation of the fundamental rights of persons with disabilities, including their constitutionally guaranteed right to a life of dignity. This neglect undermines the protections enshrined in Articles 14, 19, and 21 of the Indian Constitution.

A critical barrier is the absence of an effective oversight and enforcement mechanism, mainly due to the insufficient number of State Commissioners for Persons with Disabilities. These executive facilitators, mandated under section 79 of the RPWD Act, are tasked with monitoring implementation, reviewing safeguards, addressing complaints, and liaising with authorities to ensure corrective action. The failure of numerous State Governments to appoint State Commissioners has severely compromised monitoring and accountability at the state level, leaving a vacuum in the Act’s envisioned rights protection framework.

A Chief Commissioner was appointed at a federal level; however, their powers are limited to recommending corrective measures under sections 75 and 77 of RPWD. The scarcity of Special Courts at the state level has further weakened the role of the Chief Commissioner in ensuring compliance. These specialised courts are crucial for adjudicating violations and imposing penalties. Without them, the Chief Commissioner has limited means to deter non-compliance, as their authority extends only to petitioning for judicial review rather than directly adjudicating cases or issuing punitive resolutions. This institutional void has perpetuated the denial of rights and entitlements guaranteed to persons with disabilities under the Act.

Bridging the Implementation Gap

The Supreme Court’s inherent constraints in providing continuous oversight illustrate the need for adopting a new approach: we need to focus on the Indian territorial constitution, which has been regarded as an instance of both cooperative and competitive federalism. Rather than relying solely on judicial intervention, bridging the chasm between the legal rights guaranteed to persons with disabilities and their practical realisation demands leveraging India’s federal structure. While cooperative federalism will enhance collaboration between the states, competitive federalism will spur them to outperform each other, driving progress through healthy rivalry.

To effectively operationalise cooperative federalism, the Union Executive could establish an Inter-State Council by invoking Article 263 of the Indian Constitution. This would facilitate coordination and cooperation between the centre, states, and among states on shared interests until state-level institutions become fully functional, acting as a crucial stopgap. A precedent for such intervention exists in the Central Council of Health and Family Welfare, an Inter-State Council set up under Article 263 to assist the Ministry of Health and Family Welfare. An Inter-State Council could assist the Ministry of Social Justice and Empowerment, particularly the Department of Disabilities, in translating the RPWD Act’s provisions into reality.

Complementing this cooperative approach, competitive federalism can be harnessed through fiscal incentives, tying state funding to achieving implementation objectives regarding the RPWD Act. This strategy mirrors the performance-based fund allocation under the Smart Cities Mission, which fostered competitive federalism among states to demonstrate comprehensive plans for achieving smart city goals. Leveraging Article 282 of the Indian Constitution, which allows the Union to provide grants for public purposes, financial incentives could catalyse state implementation while assisting states in receiving financial support.

In conclusion, bridging the RPWD Act’s implementation gap requires harnessing cooperative and competitive federalism. This dual approach of institutional oversight and fiscal incentives can catalyse a rights-based RPWD Act implementation, reinforcing constitutional guarantees of equality and dignity. Crucially, this intervention would also align India’s framework with Article 33 of the UN Convention on the Rights of Persons with Disabilities, mandating an independent body to safeguard the rights of persons with disabilities.

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