At the beginning of July 2020, the Ministry of Social Justice and Empowerment invited suggestions to its planned amendment of the Rights of Persons with Disabilities Act, 2016 (“the Act”). The amendment sought to decriminalize offenses under Sections 89, 92(a), and 93 of the Act. Further, a new section (Section 95A) was introduced which modified the current modalities followed when such offenses are committed.

The notification came as a shock to the disabled community and society at large as it tried to interfere with the rights of disabled persons and penal provisions for certain offenses listed under the Act. It is significant to note that before the implementation of the Act, the rights of a disabled person were governed by the Persons with Disabilities Act, 1995 which had a very limited scope as it took into account only 7 types of disabilities as compared to 21 in the current Act. It also did not include penal provisions for offenses against disabled people as it primarily highlighted benefits that disabled persons were entitled to and not their rights per se. The 2016 Act was formulated while keeping India’s international obligations to the United Nations Convention on the Rights of Persons with Disabilities in mind, which India ratified in 2007.

After widespread protests, the Government withdrew the amendment to the Act and restored the status quo. This article seeks to explain the proposed amendment, why it was widely protested, and analyze it upon the touchstone of current jurisprudence.

Section 89 of the Act ensures that there are penalties for those who break provisions of this law. The first infringement entails a maximum fine of ₹10,000, and subsequent contraventions would invite fines of any sum between ₹50,000 and ₹5 lakh.

Section 92(a) lists the punishment for insulting or humiliating a person with a disability in public. It requires imprisonment for a minimum of 6 months, which may extend up to 5 years, and a fine. This is similar to Section 3 of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Section 93 ensures accountability of the relevant authority by mandating a maximum fine of ₹25,000 on the first offense and ₹1,000 for each day after for failure to provide any requisite information under the Act.

It also inserts Section 95A as an amendment to the Act, which states:

(1) Any offence under Section 89, 92(a) and 93, may, either before or after the institution of proceedings, be compounded by the Chief Commissioner for Persons with Disabilities or the State Commissioner for Persons with Disabilities, as the case may be, with the consent of the aggrieved person with disability, by such amount and in such manner as the Central Government may, by notification, specify in this behalf.

(2) Where an offence has been compounded under sub-sections (1), the offender, if in custody, shall be discharged and any proceeding in respect of such offence, shall be dropped.

Essentially, the proposed amendment focuses on diluting and nullifying the existing penal provisions for specific offenses and making them compoundable so that the Chief and State Commissioners for Persons with Disabilities have the right to withdraw cases with the consent of the aggrieved party.

The proposed amendment has received a lot of criticism from the disabled community as well as activists and lawyers. It has been an arduous journey for disabled people since 1995 to get their rights recognized.

Some of the rights that the 2016 Act guarantees are the right to education, the right to employment, and the right to livelihood which includes a 4% reservation in government offices and 5% reservation in educational institutions. The penal provisions which are under review through the proposal are an integral part of these rights as they are deterrents against offenses against disabled persons. These are supposed to be placed at the same pedestal with the strict offenses against Scheduled Castes and Scheduled Tribes (SC/ST) persons under the Prevention of Atrocities Act.

Out of the three sections under review, only section 92(a) which talks about insulting or intimidating a person with a disability in public provides for imprisonment. According to the new proposal, the imprisonment provision will be stricken and the penalty can be adjusted or negotiated by the parties under the supervision of either of the Commissioners.

This directly dilutes and nullifies the essence of existing penal provisions as it makes all the offenses compoundable at the discretion and will of Commissioners with the consent of the aggrieved party. It also attacks the deterrence aspect of the punishment which is considered the backbone of criminal law.

Indirectly, these amendments can render the law less effective and can also provide an opportunity for offenders to ignore and mock a section of society that is already marginalized. A disabled person has to naturally suffer at various stages of life, and this move by the government in the midst of a pandemic tries to snatch away the pride of the community which in turn lowers the belief of disabled people in our country’s legal system.

The UN Convention on Rights of Persons with Disabilities, 2007 (“the convention”) is the most relevant international convention which serves as a guideline for member states to protect the disabled. India ratified the convention upon its opening on October 1st, 2007.  Article 12(4) of the convention spells out in clear terms that it is the duty of member states to provide effective safeguards to these individuals and that measures taken by the states are free from “undue influence.” Thus, making such offenses compoundable also raises a question of whether the already disadvantaged, aggrieved party has withdrawn the complaint under duress.

Article 35 of the convention requires member states to submit reports to the Committee on Rights of Persons with Disabilities (“the committee”) which oversees the steps taken by member states to fulfill their obligations under the convention. India filed its first report in 2015 which was taken up by the committee in 2019.  The committee pointed out the Act specifically, raising doubts about the implementation of the provisions and redressal mechanisms at a victim’s disposal once an offense has been committed against them. It also stressed on providing the disabled with faster and more accessible remedies. Therefore, at a time when the committee has scrutinized the government’s steps and suggested reforms, it is not appropriate for the government to bring forth such an amendment that is contrary to its international obligations.

The amendment has been presented by the government under the title of “Decriminalization of Minor Offences for Improving Business Sentiment and Unclogging Court Processes.” The government is trying to bring in the new amendment under the garb of improving business sentiment and unclogging court processes but in reality, these two reasons have no proper justification attached to them.

It is critical to note here that there have been very few First Information Reports (FIRs) under the sections in question and no one has gone to prison under section 92(a) since the Act came into force in 2017. Therefore, there is no accumulation of cases filed by disabled people that the government needs to unclog.

In February, the Confederation of Indian Industry came up with a list of 37 Acts that need to be decriminalized to take the economy forward, and the Rights of Persons with Disabilities Act was not even on this list. This clearly indicates that such an amendment in the Act is not necessary from an economic point of view. Improving the ease of doing business for providing a friendly environment to domestic as well as foreign investors can never come at the cost of the rights of disabled people. Also, it is difficult to understand as to how this Act could ever prove to be a hurdle for companies in running an efficient and smooth business without a plausible explanation from the lawmakers.

France has enacted a law that makes it mandatory for companies with at least 20 employees to have disabled persons to account for 6% of the workforce. Companies that do not meet the quota will have to enter into a “bargaining agreement” favoring such workers or contribute to a disabled worker’s government fund. Such policies are found in various other European countries such as Austria and Germany.

Another system followed widely is the US model whereby only companies with at least 7% of disabled people in their workforce are permitted to apply for federal contracts. Both France and the US rank high in the Ease of Doing Business rankings released by the World Bank in 2020.

These reports show that curtailing the rights of disabled people is not an effective measure to boost a country’s rank in such indexes. Furthermore, a report by the World Economic Forum says that companies that have an inclusive hiring policy towards disabled people are outperforming their peers and achieving higher shareholder returns annually. Thus, business is in fact boosted once companies embrace disability inclusion instead of viewing them as roadblocks.

In its present form, the amendment seems to have a more pro-corporate approach rather than protecting the interests of a vulnerable group. The government has been proactive lately in trying to improve its ease of doing business ranks. Towards this end, it has sought to modify existing laws to create a cushion for prospective business owners from facing avoidable prosecution. This decision has prompted the amendment in question. We would now suggest a few changes to the existing policy to satisfy the best interests of all stakeholders.

With regard to the Act, the government has made the offenses compoundable in order to protect employers from facing prosecution. A major concern with the action is whether or not the victim has been protected from duress. To allay such fears, a caveat can be added whereby the withdrawal of such complaints is investigated by the respective Commissioner under Section 74 and 80 of the Act, as the case may be.

To protect the interests of employers and business owners, the concept of independent liability can be introduced that is imposed upon the offender if found guilty upon investigation. This principle can serve multiple purposes, including bringing the actual perpetrator to justice and protecting the employer/owner who, in reality, may not have anything to do with the offense. Sensitization and awareness drives can be made mandatory to further reduce such offenses. It has to be understood that the legislation is merely a deterrent and does not fit the mold of imposing punishments on business owners. The government has rightly repealed the amendment much to the relief of all members of the society.

Tarun Katariya is a third-semester student pursuing a B.A. LL.B (Hons.) from the National Law University in Jodhpur, India.

Rashmin Kansal is a third-semester student pursuing a B.A. LL.B (Hons.) from the National Law University in Jodhpur, India.

Suggested citation: Tarun Katariya and Rashmin Kansal, The Conflict Between Ease of Doing Business and Disability Rights in India, JURIST – Student Commentary, August 18, 2020, https://www.jurist.org/commentary/2020/08/katariya-kansal-business-disability-amendment/.

This article was prepared for publication by Timothy Miller, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org