Insulted disabled; non-functional legal framework

Exercising one’s right or freedom of speech and expression every so often creates hatredness aiming insult of a class of people. A former minister of Kerala abused the physically handicapped or differently able persons accusing that the various schemes of reservations and privileges granted to them is one of the major reasons for loss in public sector undertakings. The factual merit of his statement is not a matter for discussion, because, his statement did not contain any data to justify his allegations. But his statement, fully intended to cause insult to a class of people, who are at the mercy of the Government for getting various concessions and exemptions.

In fact, the grant and aid to the disabled person is not a matter for sympathy of Government, but it is their statutory rights coming from the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The physically challenged are our less fortunate brothers. The fate has been cruel to them. It is the duty of the society to ensure that they are extended equal opportunities in all walks of life. The observation of a Full Bench of the Hon’ble High Court of Kerala in Kerala Water Authority’s case is an eye opener to our society, or at least to those politicians, who has ill feelings against the beneficial schemes of disabled.

Section 44 of the Disabilities Act, 1995, provides for special measures to be extended to the disabled community, in the case of public transport system. The Kerala State Transport Corporation is a Public Sector transport undertaking, formed as per Road Transport Corporation Act, 1950 and it is a fully State owned corporation. Obviously, the benefit of concessional travelling benefit to disabled persons in KSRTC owned buses is an outcome of special measures under Section 44 of the Disabilities Act, 1995 and it is not a clemency of the transport employees or their trade union masters.

One of the major shortcomings of the Disabilities Act, 1995 is that there is nothing in the Act to prevent or prosecute the persons who are engaged in public insult of the disabled community.  Section 505 of the Indian Penal Code, is less armed to face such situations. The provisions in Penal Code though mandate stringent action against the persons making statements to create enmity, hatred or ill will between classes; a conviction under the said provisions may not be possible in the given circumstances.

In the year 2009, the Maharashtra Government appointed a Law Commission, presided by D.N. Chowdry and as per the 21^st report of the Maharashtra State Legal Commission, it was recommended that insult on physically disabled persons should be considered as an offence and there should be a provision of punishment. The prevailing Central Act is unequipped to face a situation, as now occurred.  So it is highly desirable to have a stringent provision in the law, while enacting the new law on Rights of Persons with Disabilities. A draft bill was submitted in the year 2011 by a Committee headed by Dr. Sudha Kaul, which also keeps silence on stringent remedial measures on this vital issue, but suggests compulsory social service or fine or both as punitive measures.

Dr. K.P.Pradeep is a practicing lawyer at Kerala High Court.