International law, governed by sovereign nations through ratification of conventions, ensures universal core rights for citizens. While general human rights frameworks like the Universal Declaration of Human Rights (UDHR), International Covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR) address equality and non-discrimination, specialised conventions emerge to address specific needs. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) exemplifies this, arising to raise awareness, deter transgressions, and empower beneficiaries with knowledge of their rights.
India’s experience with the UNCRPD illustrates the challenges in translating ratification into implementation. Despite enacting the Rights of Persons with Disabilities Act (RPWD Act) in 2016 to align with UNCRPD obligations, its practical realisation remains elusive seven years later, as evidenced by ongoing judicial proceedings. This blog examines the UNCRPD’s core principles and their importance in promoting disability rights, highlighting the need for proactive executive enforcement. It scrutinises implementation gaps in Indian law and, by analysing these challenges alongside international best practices, proposes solutions to bridge the divide between legislative intent and the practical realisation of UNCRPD obligations in India.
Promises and Pitfalls: India’s Struggle to Fulfill UNCRPD Obligations
India’s ratification of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007 and subsequent enactment of the Rights of Persons with Disabilities (RPWD) Act in 2016 marked significant steps towards protecting the rights of persons with disabilities. However, the implementation of this progressive legislation has been plagued by substantial delays and inadequacies, particularly concerning Articles 33 and 9 of the UNCRPD.
Article 33 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) mandates the establishment of independent mechanisms to promote, protect, and monitor the Convention’s implementation. Specifically, Article 33(2) provides flexibility in compliance, allowing nations to fulfil this obligation “in accordance with their legal and administrative systems.” This provision recognises different countries’ diverse governance structures and legal frameworks, enabling them to implement the Convention in a manner consistent with their national contexts. In response, India’s RPWD Act mandated the creation of key bodies, including Central and State Advisory Boards (Sections 60 and 66), District level committees (Section 72), Chief Commissioner (Section 74), State Commissioners (Section 79), and Special Courts (Section 84). However, as revealed by ongoing judicial proceedings in Seema Girija Lal v Union of India, apart from the Chief Commissioner, these critical bodies remain largely unestablished seven years after the Act’s enactment.
The failure to establish State Commissioners stems from the discretionary language in Section 79, which uses “may” instead of “shall.” Other bodies were not established due to the absence of strict timelines for their formation. While the Chief Commissioner and Department of Empowerment of Persons with Disabilities exist, their powers are merely advisory and limited to petitioning for judicial review. This limitation is further exacerbated by the non-establishment of Special Courts, rendering even these limited powers ineffective.
Consequently, the onus of ensuring compliance has shifted to citizens with disabilities. Despite the law mandating these bodies’ establishment, their absence has resulted in a lack of proactive enforcement to enable persons with disabilities. This situation led to ongoing judicial proceedings, which commenced in January 2023. Despite a series of orders since then, the bodies remain absent, highlighting the systemic failures in implementing the RPWD Act.
India’s prolonged delay in establishing key bodies appears to fall short of the spirit of Article 33, if not its letter. The Committee on Persons with Disabilities has consistently emphasised, through General Comments No. 2, 4, and 7, the critical need for timely and continuous implementation of convention obligations. While the treaty language allows for implementation “in accordance with their legal and administrative systems,” India’s failure to establish an independent mechanism since ratifying the Convention in 2007– and even failing to meet the requirements of its own RPWD Act enacted in 2017 – suggests a departure from both international obligations and national commitments. The effectiveness of Article 33 hinges on the prompt establishment of monitoring frameworks, as delays can significantly impede the Convention’s overall implementation.
Ireland’s implementation of Article 33 provides an instructive contrast. Following its 2018 ratification, Ireland swiftly designated the Irish Human Rights Equality Commission as the independent monitoring mechanism under Article 33(2) through the Assisted Decision-Making (Capacity) (Amendment) Act 2022. This demonstrates how states can utilise existing structures to fulfil UNCRPD obligations promptly, even while respecting the flexibility mentioned in the treaty text. Ireland’s approach underscores that establishing monitoring mechanisms should be a priority after ratification. While India’s approach may not constitute a clear violation of Article 33’s letter, it appears to fall short of its spirit and the evolving implementation standards as demonstrated by countries like Ireland.
Regarding Article 9 of the UNCRPD, which mandates accessibility, India faces additional challenges. The UNCRPD’s General Comment No. 2 emphasises that without accessibility, persons with disabilities cannot participate fully and equally in society. Similar to Article 33, Article 9 allows state parties to devise “appropriate measures” per the nation’s socio-economic realities to ensure accessibility. The flexibility acknowledges the varying levels of development and resources among nations, permitting each country to implement accessibility measures that are feasible and effective within their specific circumstances. However, General Comment No. 2 on Article 9 emphasises an important caveat: while States have discretion in determining appropriate measures, these measures should include “national minimum mandatory standards.” This requirement ensures a baseline level of accessibility across all ratifying countries, regardless of their individual circumstances.
Section 40 of the RPWD Act empowered the Central Government to establish accessibility standards. However, the resulting Rights of Persons with Disabilities Rules, 2017 (RPD) refer to facilitative guidelines rather than enunciating mandatory minimum standards. Specifically, Rule 15 of the RPD Rules mentions “standards” to be complied with, referring to the Harmonized Guidelines and Space Standards for Barrier-Free Built Environment for Persons with Disabilities and Elderly Persons (HG Report). In its 2016 and 2021 versions, the HG report lists standards as a self-regulating reference rather than mandating adherence. This approach is ultra vires to the RPWD Act, as the delegated legislation transcends the legislative intent to formulate enforceable rules, not facilitative guidelines.
This subversion has allowed non-compliance with Section 45, which stipulated achieving accessibility standards within five years. The lack of mandatory minimum standards has resulted in widespread non-compliance, as evidenced by the State of the Judiciary report, which clearly shows how legal accessibility remains far-fetched for persons with disabilities.
India’s reliance on purely facilitative guidelines, rather than minimum mandatory standards, is a clear infraction of the UNCRPD’s underlying aims, leaving persons with disabilities struggling to realise their rights in a disabled reality. The UN has acknowledged this situation in concluding observations on India’s compliance with the UNCRPD, underscoring the urgent need for comprehensive reform and effective implementation of the RPWD Act, as a practical implementation of accessibility standards is crucial for realising the rights enshrined in the UNCRPD.
Proposed Solutions: What Lies Ahead?
To bridge the implementation gaps and fulfil its UNCRPD obligations, India must shift the responsibility from individuals with disabilities to the government in providing rights and a conducive environment. This necessitates amendments to the RPWD Act to align with UNCRPD obligations, particularly Articles 33 and 9.
To comply with Article 33, Section 79 of the RPWD Act should be amended to mandate the establishment of state commissioners within a strict timeline of three months, replacing the current discretionary language. This decentralisation is crucial for effectively reaching all corners of India’s vast and diverse territory, spanning 28 states, and ensuring grassroots participatory governance, an essential aspect of Article 33. Similarly, other critical operational elements, such as State Advisory Boards, District Level Committees, and Special Courts, should be established within the stipulated three-month timeframe by amending their corresponding provisions.
To ensure compliance from State Governments and overcome their current lack of intention, as evidenced by their ignorance of Supreme Court directives, Parliament could establish a temporary National Disability Rights Enforcement Tribunal. This tribunal can investigate and impose penalties on state governments for non-compliance if they fail to establish the requisite executive bodies per the stipulated timeframe. Hence, it will create the necessary deterrence for expedited implementation of the RPWD Act’s provisions. The tribunal can cease to exist once the requisite bodies have been established. This approach is not unprecedented, as tribunals like the National Green Tribunal have been established to instil deterrence in State governments to seek compliance.
Establishing these independent proactive enforcement executive bodies will pave the way from ratification to realisation, shifting the onus to the executive to proactively ensure rights for persons with disabilities rather than requiring individuals to struggle independently to seek an essential socio-economic-physical conducive environment. For instance, the United States (U.S.), through its disability rights section of the Civil Rights Division of the Department of Justice, proactively seeks compliance from private parties and state executive bodies to ensure accessibility and independence for persons with disabilities.
Addressing Article 9’s accessibility requirements necessitates amending Rule 15 of the RPD Rules to stipulate mandatory minimum accessibility standards rather than relying on facilitative guidelines. Parliament, leveraging Article 253 of the Constitution of India, can redraft Rule 15 to this end, giving teeth to Section 45 of the RPWD Act, which stipulated compliance with accessibility standards within five years of the Act’s inception. The American Disability Act Standards for Accessible Design, initially adopted in 1991 with a revised version in 2010, which prescribes minimum accessibility standards, could serve as a reference. Having the minimum prescribed standards can then be supplemented with the existing HG Report guidelines, which could provide flexibility above and beyond the minimum standards on a case-by-case basis.
However, to improve legal accessibility in the interim, a Virtual Disability Rights Complaint Portal (VDRC) should be established, compliant with Web Content Accessibility Guidelines (WCAG). The WCAG 2.1 guidelines by the World Wide Web Consortium (W3C) will ensure the portal’s accessibility to persons with disabilities. This will enable persons with disabilities to file complaints virtually, which would then be directed to relevant state commissioners for action. An amendment to the RPWD Act should mandate the establishment of this portal within six months and stipulate the duty of State Commissioners to monitor and act upon complaints within 30 days of receipt. This will ensure improved accessibility to justice for persons with disabilities, in line with Article 9 of UNCRPD, by creating a standardised, trackable system for complaint filing and resolution.
Conclusion
The proposed solutions provide a comprehensive strategy to implement the RPWD Act and meet India’s UNCRPD commitments. By creating proactive enforcement mechanisms and enhancing accessibility standards, India can move beyond ratification to practically realising disability rights. This approach, aligning with international best practices like the U.S. and Ireland model, would ensure active protection and promotion of rights for persons with disabilities.
The upcoming scheduled hearing, initially listed for August 23, 2024, remains yet to be heard. It presents a crucial opportunity for the Apex Court to direct Parliament to revitalise the current dormant regime and align it with UNCRPD obligations. While respecting the doctrine of separation of powers, this judicial intervention can catalyse legislative action to address the implementation gaps. By prompting Parliament to enact the necessary amendments, the court can ensure that the changes are initiated through proper legislative channels, thereby creating a robust framework for protecting and advancing the rights of persons with disabilities in India.