By Maya Palit

In July 2015, disability activist Nidhi Goyal told the media a hair-raising story about a young woman she had met in Gujarat. The young woman was visually challenged and her father had been secretly giving her birth control pills. Like many others in the country, he was labouring under the misconception that women with disabilities give birth to babies with disabilities, and the greater misconception that a person with disability does not have the right to be a parent. Her story is one of several instances that demonstrate the urgency of having laws in place to protect women with disabilities, who are especially vulnerable to discrimination.

With debates over demonetisation and corruption dominating the Winter Session of the Rajya Sabha, the chances of the Rights of Persons with Disabilities Bill (2014) being discussed by the Upper House were looking slim. That was until Wednesday, when the Bill was passed without discussion with 119 amendments. The Bill will protect approximately 2.68 crore people with disabilities in the country.

The Bill has been praised for bringing in a more nuanced and expansive understanding of disability, as it now recognizes 19 conditions, including autism, Parkinson’s Disease and the impact of acid attack – far more than the seven that were in the first version of the Persons with Disabilities Act (1995). The most significant changes are the revision of the notion of ‘guardianship’, and that penalties have been introduced for violations of the Act. Two decades ago, there were no penal provisions, but now people can be punished with a jail term from six months up to two years, and a fine of between Rs 10,000 and Rs 5 lakh.

Although, the disheartening thing about the Bill is that it hasn’t improved all that much on its clauses about women with disabilities. According to studies carried out by the research institute PRS Legislative, the ‘Penalty for outraging the modesty of a woman’ clause (Clause 105b) in the bill has ended up reducing the minimum penalty for offenders against women with disabilities. The minimum sentence is six months, as opposed to existing laws in the Indian Penal Code that give offenders a minimum sentence of one year. Shockingly, this was not amended in the new version of the Bill.

The Bill has been pretty disappointing on other fronts too. Although Clause 3 acknowledges that ‘special measures’ should be taken to protect the rights of women and children with disabilities, last year women’s rights activists campaigned for the incorporation of a separate sub section that would address the needs of women with disabilities and follow the guidelines set out by the UN Convention on the Rights of Persons with Disabilities.

“The problems with the previous bill include Clause 105f, which stated that the Bill penalized anyone who performed forced sterilization on women with disabilities, but it made an exception for those with severe disabilities – in their cases, a guardian is allowed to consent for the procedure,” said Amba Salelkar, a legal researcher who works with the Equals Centre for Promotion of Social Justice. “This is a negation of women’s consent, and the denial of their full legal capacity is one of the major problems with the Bill. Because of course, women in general have their decision-making powers severely curtailed. The practices that keep impacting women – like the institutionalization of people with disabilities – are not adequately dealt with under the Bill. The Bill is set to regulate establishments and set up guardianship for people with disabilities, but really it gives no credence to how women with disabilities can further exercise their legal capacity and live independently within the community,” she added.

According to the recommendations laid out in a proposed draft (in possession of The Ladies Finger) that was prepared by Salelkar and gender rights activist Nidhi Goyal, “Women and girls with disabilities are often at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation”. This is why they suggested a set of expansive measures, like the implementation of gender-specific programs, encouraging the representation of women with disabilities in decision-making bodies, collecting data on the barriers that prevent women with disabilities from entering education, disseminating information on sexual and reproductive health, and creating short stay facilities that could protect women victims of abuse.

There certainly need to be measures in place that protect women with disabilities from abuse and violence, but the State also has ‘positive obligations’ towards them, like ensuring bathroom facilities for them. And these need to be addressed in the form of tangible changes rather than tokenism.

It appears that the Bill has been watering down, rather than expanding its approach to the issues faced by disabled women. According to Salelkar, the 2011 draft had an entire section devoted to the subject, which was then diluted in 2012 and then even more in the 2014 Act. “A Bill about disability naturally needs to take a multipronged approach when it comes to women with disabilities, because of the double discrimination they face, which is why we campaigned last year for the inclusion of a separate chapter on women with disabilities. It is sad that that has been missed out and that the Bill has been passed without discussion,” she said.

The new Bill has a provision under Clause 13 that allows people to appeal against a district court’s decision about their guardianship. This could prove to be helpful for women who are being treated unfairly by their guardians, an improvement that has left some experts thinking that the useful amendments in the new Bill could have a positive impact on women. “If I were to zoom out and look at the bill in its entirety, I’d say it has come a long way, particularly with the guardianship clause. But the issues that confronted women still stand, like the lower stringency for termination of pregnancy (you require one rather than two medical personnel to confirm that the medical procedure had to be undertaken) and the lower penalties for outrage of a woman’s modesty,” said Nivedita Rao, a legal analyst who works with PRS Legislative.

There seemed to be a lot of quipping amongst MPs in the Rajya Sabha session about disability being hard to interpret, and that everyone in the House suffers from some form of intellectual disability. Perhaps a more useful discussion could have taken place about increasing protection for women with disabilities from sexual harassment and forced sterilization. Who knows, they might even have found the time to incorporate demands for a more expansive section on women into the Bill.

Co-published with Firstpost.