Digital accessibility in the Rights of Persons With Disabilities Act 2016
The Rights of Persons with Disabilities (RPD) Act, which was passed in December 2016, seeks to give effect to the rights and obligations enshrined in the United Nations Convention on the Rights of Persons with disabilities, which India signed and ratified nearly a decade ago.
The Act has several important and noteworthy aspects which will have a great impact on inclusion for Indians with disabilities. The new legislation recognises that accessibility is critical for inclusion and that it is a cross-sectoral issue to be implemented by different stakeholders across different government departments and ministries and agencies.
The terms access or accessibility appear 48 times in the document while dealing with judicial, political, cultural, economic, educational, housing, institutional, employment-related, health and infrastructural reform and access to art.
The new Act has expanded the ambit of conditions it recognizes to 19 conditions, as opposed to the 7 disabilities that were recognized under the 1995 legislation. Further the Bill contains a provision allowing the Central Government to notify any other additional condition as a disability. It extends to the whole of India except Jammu and Kashmir.
A really important development under this Act is that it requires mandatory conformance to accessibility standards and recognises that reasonable accommodation and universal design are critical for facilitating access in an equitable manner and creating an accessible framework for India going forward.
Where the previous Act required governments to make facilities accessible to the extent that it was possible within their economic limits, thus having provided an exit option for most state governments to avoid compliance, the new Act makes it amply clear that accessibility is a must and includes the private sector, private service providers and private establishments within its ambit for compliance with the Act. The Act also understands public services and public buildings as those which are used by the public at large, including those services and buildings which belong to private sector and not as merely those which are government owned.
Another important development is the fact that the Act clearly mandates that accessibility includes both environmental and information technology accessibility (ICT accessibility). The following section highlights some of the provisions relevant in this regard.
Section 2(c) lays down that barriers include “communicational, cultural, economic, environmental, institutional, political, social or structural factors which hampers the full and effective participation of persons with disabilities in society;
Section 2(f) defines communication to include languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology.
Section 2(y) defines reasonable accommodation as “necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others;
Section 2(ze) defines universal design as “the design of products, environments, programmes and services to be usable by all people to the greatest extent possible, without the need for adaptation or specialised design and as being applicable to assistive devices including advanced technologies for particular group of persons with disabilities.
Section 2(h) identifies failure to provide reasonable accommodation as a form of discrimination.
Section 2(n) defines information and communication technology as including “all services and innovations relating to information and communication, including telecom services, web based services, electronic and print services, digital and virtual services;
Section 2(v) defines “private establishment” as referring to “a company, firm, cooperative or other society, associations, trust, agency, institution, organisation, union, factory or such other establishment as the appropriate Government may, by notification, specify;
Section 40 requires the Central Government to formulate standards with advice from the Chief Commissioner in the areas of “physical environment, transportation, information and communications, including appropriate technologies and systems, and other facilities and services provided to the public in urban and rural areas;
Section 41 requires the appropriate government to take suitable measures for provision of facilities at different transport locations like bus stops, ticketing counters etc., provision of access to all modes of transport, accessible roads and development of appropriate schemes to promote mobility.
Section 42 requires the appropriate government to ensure that all content in audio, print and electronic formats are accessible, that there is access to electronic media for all by providing audio descriptions, sign language and close captioning and that daily use electronic goods are available in universal design.
Section 43 requires the appropriate Government to “take measures to promote development, production and distribution of universally designed consumer products and accessories for general use for persons with disabilities;
Section 45 requires all public buildings to be made accessible within 5 years of notification of rules and the formulation of an action plan based on prioritisation, with special focus on essential services, to be implemented.
Section 46 requires all service providers, whether government or private, to make their services accessible within 2 years of notification of rules formulated in this regard by the Central Government under section 40.
Section 47 requires the appropriate government to take measures for creating human resource for the purpose of this Act by providing mandatory training on disability for Panchayati Raj members, legislators, administrators, police officials, judges and lawyers, as well as include accessibility and disability as a component for all schools, colleges and other courses, initiate capacity building programmes for family members, care givers etc and ensure independence training for persons with disabilities and conduct training programmes for sports teachers.
The Act provides for the setting up of a Central Advisory Board and State advisory Boards to carry out the functions of policy making, evaluation and monitoring and facilitating implementation of the Act. The Act provides further for the appointment of a Chief Commissioner for persons with disabilities who will be aided by two additional commissioners, one of whom at least must be a person with a disability. Every proceeding before a chief commissioner will be a judicial proceeding and Chief Commissioner will have the same powers as those vested with a civil court while trying a case under this Act.
The Act makes provision for the earmarking of special courts for speedy trial of offences under the Act at district level. These are to be done with the permission of the Chief Justice of the High Court. The Act identifies different authorities who are to be notified/ approached in case of offences of different nature.
Section 89 provides for punishment for first contravention as fine which may extend to ten thousand rupees and for any subsequent contravention with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees.
Section 90 holds employees of companies which are guilty of offences also individually liable unless they can prove that the offence took place without their knowledge or despite their best precautions.
Section 93 lists offences which are punishable with imprisonment of 6 months-5 years and a fine.
Mandatory inclusion of accessibility has specifically been provided for in several other domains such as accessible voting and elections (section 11), access to emergency services (section 8), education (section 16), employment, sports and arts.
Section 8 requires the National Disaster Management Authority and the State disaster management authorities to take measures to include persons with disabilities in their disaster management activities and for reconstruction activities to include accessibility requirements of persons with disabilities.
Section 11 requires the Election Commission of India and the State Election Commissions to ensure “that all polling stations are accessible to persons with disabilities and all materials related to the electoral process to be easily understandable by and accessible to them;
Section 12 requires the appropriate Government to ensure that persons with disabilities are able to “exercise the right to access any court, tribunal, authority, commission or any other body having judicial or quasi-judicial or investigative powers without discrimination on the basis of disability;
It also requires the “appropriate government” and the State and National Legal Service Authorities to make their schemes and facilities accessible by observing principles of reasonable accommodation. Further, this section significantly requires the Government to ensure that all its public documents are in accessible formats.
Chapter III , Section 16 dealing with education also provides for provision of materials in means, modes and formats as required by students with disabilities and reasonable accommodation. This applies to all educational institutions funded or recognised by the Government, which includes private institutions.
Section 17 discusses the measures that local authorities must take in order to improve education for the disabled. Apart from specialized teacher training institutes and scholarships, it requires that teaching methods, curriculum and mode of communication be adapted to the needs of persons to make it accessible to them. Education here, also refers to adult education.
The Act also deals with vocational training, skill building and measures to promote employment for persons with disabilities.
Section 29 talks about making art accessible to persons with disabilities, redesigning courses in cultural and arts subjects to enable participation and access for persons with disabilities, developing technology, assistive devices and equipment to facilitate access and inclusion for persons with disabilities in recreational activities. Similar provisions have been made for sporting activities under Section 30.
Hence, the Act recognises that accessibility, both digital and environmental is an overarching requirement for persons with disabilities to be able to enjoy their rights and freedoms on par with others. There is a lot of ground to be covered for India to reach the level envisaged by this Act and it requires the concerted efforts of multiple stakeholders.
