“Harmonizing Discretion with Mandate: A Critical Examination of Rule 15 of RPWD Rules 2017 and its Alignment with the Mandatory Provisions of RPWD Act 2016”

  Topic:- 

“Harmonizing Discretion with Mandate: A Critical Examination of Rule 15 of RPWD Rules 2017 and its Alignment with the Mandatory Provisions of RPWD Act 2016”

 Author:- Vandana Bharti, Department Of Law, Dr. Hari Singh Gour Vishwavidayalaya, Sagar, Madhya Pradesh

This article examines the importance of principle-based accessibility rules and this article is inspired by The Hindu’s editorial  “We need accessibility rules that are based on principles” (January 10, 2025)

To The Point :- 

The Supreme Court of India has made a landmark judgment regarding the Rights of Persons with Disabilities (RPwD) Act, 2016. The court ruled that Rule 15 of the RPwD Rules, 2017, which grants discretionary power to ministers, contradicts the mandatory provisions outlined in Sections 89, 44, 46, 45, and 40 of the RPwD Act, 2016 .

This inconsistency creates a conflict between the discretionary power given to ministers and the legislative intent of the RPwD Act. The court emphasized that accessibility is a fundamental right, not just a convenience, and that there must be non-negotiable rules to ensure accessibility. 

Use of Legal Jargon :- 

The Rights of Persons with Disabilities Act, 2016, was promulgated, to bolster the empowerment of individuals with disabilities, safeguarding their inherent and inalienable right to lead dignified lives, unencumbered by discriminatory practices, and underscored by equitable access to opportunities. This legislation supersedes the 1995 Act, commencing its enforcement on April 19, 2017.

The 1995 Persons with Disabilities Act delineated seven distinct disability categories, encompassing auditory impairments, visual blindness, leprosy-cured conditions, mobility-related disabilities, impaired vision, psychiatric disorders, and cognitive impairments.

Notably, the RPwD Act, 2016, mandates the identification and recognition of disabilities, whereas Rule 15 of the RPwD Rules, 2017, vests discretionary power in the competent authorities, which may potentially undermine the mandatory provisions of the Act. 

The Proof:-

The Supreme Court directed the Union Government to frame mandatory rules,  within three months, emphasizing the need for universal design principles, comprehensive inclusion across disabilities, assistive technology integration, and ongoing stakeholder consultation.

Census data from 2011 reveals that disabled persons account for around 2.21% of India’s population. A significant proportion of these individuals, roughly 7.62%, are concentrated in the early childhood age bracket of 0-6 years.

Abstract:- 

The Rights of Persons with Disabilities Act, 2016, endeavors to empower individuals with disabilities and ensure their inclusive participation in society. Section 3(1) of the rpwd act 2016, This provision safeguards the fundamental rights of individuals with disabilities, ensuring they receive equitable treatment, dignity, and respect, thereby promoting a culture of inclusivity and social justice. 

 India endorsed the United Nations Convention on the Rights of Persons with Disabilities, formally affirming its commitment on October 1, 2007. This milestone paved the way for a comprehensive overhaul of the country’s disability legislation, culminating in the enactment of the Rights of Persons with Disabilities Act in 2016. This legislation marked a significant expansion, increasing the number of recognized disabilities from 7 to 21.

This article undertakes a critical examination of the Act’s provisions and their implementation, highlighting the challenges and opportunities for persons with disabilities in India. However, the enforcement mechanism of Indian law has rendered the Act susceptible to judicial challenge. Notably, Section 40 of the RPwD Act, 2016, mandates the provisions of the Act, whereas Rule 15 of the RPwD Rules, 2017, creates a conflict by vesting discretionary power in ministers, thereby potentially undermining the rights of persons with disabilities. 

Furthermore, the conferment of discretionary power upon ministers may infringe upon the fundamental rights of persons with disabilities, as enshrined in Part III of the Constitution of India, including the Article 14 and the Article 21. The arbitrary exercise of discretionary power may also violate the principles of natural justice and the rule of law. 

This conflict can lead to several challenges included:-

Arbitrary decision-making, Lack of accountability, Inconsistent implementation, Delayed or denied benefits, Erosion of trust, Increased litigation, Undermining the Act’s objectives of the Rpwd act 2016. 

Despite the enactment of the Rights of Persons with Disabilities Act, 2016, persons with disabilities in India continue to face numerous challenges that hinder their empowerment and inclusion in society. One of the primary challenges is the lack of accessibility in public spaces, buildings, and transportation systems, which restricts their mobility and access to essential services. Furthermore, stigma and discrimination against persons with disabilities persist in education, employment, and healthcare, denying them equal opportunities and perpetuating their marginalization. Limited opportunities for education, employment, and social participation also exacerbate the challenges faced by persons with disabilities, making it difficult for them to break the cycle of poverty and exclusion. Additionally, the inadequate implementation of the Act’s provisions, coupled with a lack of awareness and sensitivity among stakeholders, undermines the effectiveness of the legislation, leaving persons with disabilities vulnerable to exploitation and neglect.

What are the key concerns affecting persons with disabilities in India?

Persons with disabilities in India face numerous challenges that hinder their full participation in society. One of the primary concerns is discrimination, which perpetuates the stigma surrounding disabilities. This stigma is exacerbated by a lack of understanding about the rights of persons with disabilities, making it difficult for them to achieve their full potential.

The health sector also poses significant challenges. Many disabilities can be prevented with proper medical care, nutrition, and safety measures. However, inadequate healthcare facilities, lack of awareness, and insufficient medical attention contribute to the prevalence of disabilities.

In the education sector, persons with disabilities face barriers to inclusive education. The scarcity of special schools, accessible educational materials, and trained teachers hinders their ability to receive quality education. Similarly, in the employment sector, despite their capabilities, persons with disabilities have lower employment rates compared to the general population.

The political landscape remains largely out of reach for individuals with disabilities due to several significant hurdles. Inaccessible voting systems, inadequate data on disabled voters, and obstacles to participating in party politics all contribute to the marginalization of this group, leading to disenfranchisement and exclusion from the democratic process.

Lastly, the implementation of laws and initiatives aimed at empowering persons with disabilities remains inadequate. Despite the government’s efforts, such as the Accessible India Campaign and the Rights of Persons with Disabilities Act, many buildings and public spaces remain inaccessible, and reserved positions in government jobs and education institutions remain vacant.

What Should be the Way Forward?  

1. Early Intervention and Screening: Implementing comprehensive newborn screening programs, such as Kerala’s Comprehensive Newborn Screening (CNS) program, can facilitate early identification and intervention for infants with disabilities.

2. Community-Based Rehabilitation (CBR) Approach: Adopting the CBR approach can empower persons with disabilities to maximize their physical and mental abilities, access regular services and opportunities, and achieve full integration within their communities.

3. Public Awareness and Education: Launching social campaigns and leveraging media platforms can help dispel stigma and promote positive representations of persons with disabilities. For instance, films like Taare Zameen Par and Barfi have contributed to changing attitudes towards disability.

4. Inclusive Education: Promoting inclusive education by transitioning students from special schools to mainstream educational institutions can foster inclusiveness and social integration. This can be achieved by providing adequate support services, accessible infrastructure, and trained educators.

5. Collaboration and Partnerships: Fostering partnerships between the union government, state governments, and civil society organizations can facilitate the development of comprehensive disability policies and programs. For example, the union government can provide fiscal support to state governments for strengthening healthcare infrastructure and services.

6. Accessible Healthcare: Ensuring access to quality and accessible healthcare services, particularly in rural areas, can prevent disabilities and promote early intervention. This can be achieved by increasing the availability of healthcare professionals, improving healthcare infrastructure, and providing accessible medical facilities.

7. Disability-Sensitive Urban Planning: Incorporating disability-sensitive design principles in urban planning can promote accessibility and inclusivity in public spaces, transportation systems, and buildings.

8. Technology-Enabled Solutions: Leveraging technology can improve access to education, employment, healthcare, and other services for persons with disabilities. For instance, the development of accessible digital platforms, assistive technologies, and e-learning resources can promote inclusivity and empowerment.

9. Data-Driven Policy Making: Collecting and analyzing data on disability can inform policy decisions, ensure effective resource allocation, and promote evidence-based programming.

10. Empowering Persons with Disabilities: Empowering persons with disabilities through capacity-building programs, self-help groups, and advocacy initiatives can promote self-reliance, confidence, and social inclusion.

If an individual with a disability encounters non-compliance or infringement of the provisions under the Rights of Persons with Disabilities Act, they can pursue the following courses of action:

1. Submission of Representation: File a formal complaint with the relevant government authority or establishment, highlighting the deprivation or violation of their rights.

2. Seeking Assistance from the Commissioner of Disabilities: If the initial complaint yields no response or an inadequate solution, the individual can approach the Commissioner of Disabilities for support and guidance.

3. Judicial Intervention: File a Writ Petition under Article 226 of the Constitution of India with the concerned High Court, seeking redressal for the violation of their rights.

4. Supreme Court Intervention for Constitutional Violations: In cases where a constitutional right of national importance is infringed, the individual can file a Writ Petition under Article 32 directly with the Supreme Court of India.

Case Laws:- 

Case Title:  Rajive Raturi Vs. Union of India & Ors.

Case No: Writ Petition (C) No. 243 of 2005

Date of Judgement: 08 Nov 2024

The judgment was delivered by a three-member bench headed by Chief Justice Dr. Dhananjaya Y. Chandrachud, accompanied by Hon’ble Justices JB Pardiwala and Manoj Misra.

The court’s decision was prompted by a Public Interest Litigation (PIL) filed by Rajive Raturi, a person with visual impairment, in 2005. The PIL sought directions to ensure meaningful access to public spaces for PWDs. The Court has given the Union of India (UOI) three months to make necessary corrections to Rule 15 in consultation with stakeholders. This correction aims to transform the guidelines into mandatory standards, ensuring that public places and services are accessible to persons with disabilities. The Supreme Court of India has rendered a seminal judgment in the Rajive Raturi case, declaring that the Sectoral Accessibility Guidelines under Rule 15 are ultra vires the Rights of Persons with Disabilities (RPWD) Act, 2016, insofar as they are merely recommendatory in nature. The Court held that Rule 15 of the Rights of Persons With Disabilities Rules, 2017, in its present form, contravenes the provisions and legislative intent of the RPWD Act by failing to provide mandatory guidelines on accessibility, thereby rendering it ultra vires the parent Act .

Indian Constitution’s Approach To Disability Rights:-

The Indian Constitution serves as a robust foundation for the protection and promotion of disability rights, emphasizing equality, inclusivity, and dignity. Although the Constitution does not explicitly mention disability as a ground for discrimination, its underlying ethos advocates for the rights of persons with disabilities. The Preamble’s commitment to social, economic, and political justice sets the tone for a rights-based approach to disability.

 Article 14 guarantees equality before the law, while Article 15 prohibits discrimination on various grounds, with judicial interpretations extending this protection to persons with disabilities. 

Article 21 ensures the protection of life and personal liberty, with the Supreme Court expansively interpreting this to include the right to live with dignity, encompassing the rights of persons with disabilities to equal opportunities and respect. 

The judiciary has been instrumental in championing disability rights through seminal verdicts, such as Jeeja Ghosh & Others v. Union of India, which underscored the importance of upholding dignity and autonomy for individuals with disabilities. 

The Rights of Persons with Disabilities Act, 2016, draws its spirit from the constitutional mandate, recognizing the need for legal mechanisms to protect disability rights. Affirmative action, reservation in education and employment, and creating an enabling environment are crucial steps toward inclusivity. However, challenges persist, including lack of awareness, inadequate infrastructure, and social stigma. Civil society, advocacy groups, and technological advancements are essential in bridging the gap between constitutional promises and the lived reality of persons with disabilities

Conclusion:-

In conclusion, the Indian Constitution’s framework for equality and justice has been instrumental in advancing disability rights, thanks to the judiciary’s interpretations. Honourable supreme Court ruling in Rajive Raturi v. Union of India marks a significant milestone, mandating accessibility standards and promoting inclusivity. The Court struck down Rule 15 for its discretionary nature, prompting the government to establish minimum mandatory standards within a three-month timeframe. The judiciary emphasized the necessity for a principled, inclusive approach, accompanied by clear, actionable guidelines for accessibility. Furthermore, the Court underscored the importance of social audits and a phased implementation strategy, setting a February 2024 deadline for the introduction of new guidelines aimed at achieving universal accessibility. As we strive for a more inclusive society, effective implementation of laws and policies will be crucial. For more insights on this topic, you may want to explore further online.

FAQ:- 

 Q: What is the definition of a person with disability?

A person with a disability is defined as someone who has long-term physical, mental, intellectual, or sensory impairment, which may hinder their full and effective participation in society on an equal basis with others.

Q: What are the various types of disabilities recognized under the RPwD Act, 2016?

The RPwD Act, 2016, covers 21 disabilities, including blindness, low vision, leprosy-cured persons, hearing impairment, locomotor disability, dwarfism, intellectual disability, mental illness, autism spectrum disorder, cerebral palsy, muscular dystrophy, and multiple sclerosis.

Q: What are the key challenges faced by persons with disabilities in India?

Persons with disabilities in India face numerous challenges, including lack of accessibility in public spaces, stigma and discrimination in education and employment, limited opportunities for education and employment, and inadequate implementation of disability laws and policies.

Q: What was the main concern in the case of Rajive Raturi v. Union of India (2024)?

The main issue in the case was the validity of Rule 15 of the RPwD Rules, 2017, which granted discretionary power to ministers, contradicting the mandatory provisions of the RPwD Act, 2016.

Q: What was the Supreme Court’s decision in the case of Jeeja Ghosh & Others v. Union of India?

The Supreme Court held that the rights of persons with disabilities, including their right to dignity and autonomy, must be protected and promoted.

Q: How does the Indian Constitution protect the rights of persons with disabilities?

 The Indian Constitution protects the rights of persons with disabilities through Articles 14, 15, and 21, which guarantee equality, non-discrimination, and the right to life and personal liberty.

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