By Prasanna Kumar Pincha,
Former Chief Commissioner for Persons with Disabilities,
Govt. of India, New Delhi.
1.. This note examines the question as to whether the Rights of Persons with
Disabilities Act, 2016 seeks to create a parallel and distinctive category of
persons with disabilities in addition to the overarching category of 'Specified
Disabilities' as defined in Section 2[zc]. The definition of persons with
disabilities envisaged in Section 2 [s] of the Act is a case in point; and the
said Section runs as follows: " 'person with disability' means a person with
long term physical, mental, intellectual or sensory impairment which, in
interaction with barriers, hinders his full and effective participation in
society equally with others;".
2.. The schedule to the Act lists out 21 conditions of disabilities together
with their respective definitions, and these have been enumerated under five
broad categories of physical disability, intellectual disability, mental
behaviour, disability due to', and multiple disabilities. These 21
conditions/disabilities are called 'specified disabilities'. Section 99 of the
Act empowers the central Govt. to amend the schedule which means that it can,
if it deems fit add to the number of conditions/disabilities or otherwise
modify the schedule.
The Act further seeks to create a sub-category within the overarching category
of 'specified disabilities' to be known as 'person with benchmark disability'.
Section 2 [r] of the Act says that 'person with benchmark disability' means a
person with not less than forty percent of a specified disability where
specified disability has not been defined in measureable terms and includes a
person with disability where specified disability has been defined in
measurable terms, as certified by the certifying authority.
Under the Act, persons with benchmark disabilities shal also be entitled to
certain benefits such as those of reservation in Govt. jobs, in poverty
alleviation schemes, in preferential allotment of land at concessional rates,
ETC. Thus, these benefits shal not be available under the Act to those persons
who come under the overarching category of 'specified disabilities'; but who do
not qualify as persons with benchmark disabilities. However, the Act will
otherwise apply to such persons as well; or one can say that the Act will apply
to such persons also except as otherwise provided.
3.. To my mind, the intention of the legislature in inserting the generic
definition of 'person with disability' vide Section 2 [s] could not have been
to create a distinctive, separate and parallel category of persons with
disabilities in addition to the overarching category of specified disabilities
on account of the following reasons:
1.. Had it been the intention of the legislature to create a distinctive,
separate and parallel category of persons with disabilities as stated above, it
would also have provided for certification of persons coming under the said
distinctive, separate and parallel category on the lines of Chapter ten of the
Act which provides for certification of specified disabilities. However, the
fact remains that there is no provision of certification of persons with
disabilities which corresponds to the definition of persons with disabilities
vide Section 2 [s].
2.. The very fact that Section 99 empowers the central Govt. to amend the
schedule also goes to show that no such separate or parallel category of
persons with disabilities was intended.
Based on the above, one may ask as to why then the generic definition of
persons with disabilities was at all inserted vide Section 2 [s]? It appears
that the purpose of inserting Section 2 [s] is to highlight the traits commonly
shared by persons who come under the overarching category of 'specified
disabilities'.
In the above view of the matter, the Govt. may like to examine the issue and
consider incorporating the following formulation by an order under Section 98
on removal of difficulties:
"For removal of doubt, it is hereby clarified that the definition of 'person
with disability' contained in Section 2 [s] shall be construed only as
highlighting the traits commonly shared by persons who come under the category
of 'specified disabilities', and not as creating a parallel category of persons
with disabilities separate from the category of 'specified disabilities'.
Vikas Kapoor,
Mobile: (+91) 9891098137, 9013354994
Skype Id: dl_vikas
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