The Criminal Justice Architecture
Under RPWD Act 2016
The RPWD Act 2016
represents a paradigm shift from the erstwhile Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995. Chapter
XVI of the Act (Sections 89-95) creates a comprehensive penal framework that criminalizes
various forms of discrimination, atrocities, and violations against persons
with disabilities, transforming what were once civil wrongs into cognizable
criminal offences.
Section 92: The Crown Jewel of
Criminal Protection
Section 92:
Punishment for Offences of Atrocities emerges as the most significant penal
provision under the RPWD Act, creating six distinct categories of criminal
offences specifically targeting the vulnerabilities of persons with
disabilities.
The Six-Fold Criminal Shield
1. Intentional Insult or
Intimidation [Section 92(a)]
The provision criminalizes
intentional insult or intimidation with intent to humiliate a person with
disability in any place within public view. This provision recognizes that
dignity is not merely a moral concept but a legal right enforceable through criminal
law.
2. Assault or Use of Force
[Section 92(b)]
This encompasses assaulting
or using force against any person with disability with intent to dishonour them
or outrage the modesty of a woman with disability. The provision acknowledges
the heightened vulnerability of persons with disabilities to physical violence
and sexual offences.
3. Denial of Food or
Fluids [Section 92(c)]
The Act criminalizes having
actual charge or control over a person with disability and voluntarily or
knowingly denying food or fluids. This provision addresses the grave concern of
neglect and abandonment, particularly in institutional settings.
4. Sexual Exploitation
[Section 92(d)]
Being in a position to
dominate the will of a child or woman with disability and using that position
to exploit her sexually constitutes a criminal offence. This provision
recognizes the power dynamics that make persons with disabilities particularly
vulnerable to sexual exploitation.
5. Injury to Limbs or
Senses [Section 92(e)]
Voluntarily injuring,
damaging or interfering with the use of any limb or sense or any supporting
device of a person with disability is criminalized. This provision protects not
only the physical integrity but also the assistive devices that enable independence.
6. Unauthorized Medical
Termination of Pregnancy [Section 92(f)]
The provision criminalizes
performing, conducting or directing any medical procedure on a woman with
disability which leads to termination of pregnancy without her express consent,
except in severe cases with proper medical opinion and guardian consent.
The Penal Consequences:
Deterrence Through Punishment
All offences
under Section 92 carry a punishment of imprisonment for a term which shall
not be less than six months but which may extend to five years and with fine.
The mandatory minimum sentence of six months reflects the legislative intent to
create a strong deterrent against atrocities on persons with disabilities.
Classification of Offences: The
Procedural Framework
According to
Ministry of Home Affairs guidelines, offences under Section 92 are
cognizable, non-bailable and triable by a Magistrate of First Class. This
classification has significant procedural implications:
•
Cognizable Nature: Police can arrest
without warrant
•
Non-bailable Character: Accused cannot
claim bail as a matter of right
•
Triability: Creates jurisdictional
questions regarding trial court
The Broader Penal Canvas: Other
Criminal Provisions
Section 89: Contravention of
Provisions
The Act creates a
graduated punishment system for violations: - First contravention: Fine
up to ₹10,000 - Subsequent contravention: Fine not less than ₹50,000 but
may extend to ₹5 lakh
Section 91: Fraudulent Availment
of Benefits
Fraudulent
availment of benefits meant for persons with benchmark disabilities attracts
imprisonment up to two years or fine up to ₹1 lakh or both, addressing the
misuse of disability benefits.
Section 93: Failure to Furnish
Information
Non-compliance
with information requirements attracts fine up to ₹25,000, with continuing
violation penalty of ₹1,000 per day.
Section 94: Prior Sanction
Requirement
The Act requires
previous sanction of appropriate Government before taking cognizance of
offences committed by government employees, creating a safeguard against
frivolous prosecutions.
The Special Court Architecture: Section 84 Revolution
Constitutional Mandate for
Special Courts
Section 84
of the RPWD Act mandates the establishment of Special Courts, stating: “For
the purpose of providing speedy trial, the State Government shall, with the
concurrence of the Chief Justice of the High Court, by notification, specify
for each district, a Court of Session to be a Special Court to try the offences
under this Act.”
This provision
represents a legislative recognition that ordinary criminal justice machinery
may be inadequate to handle the specialized nature of disability-related
offences.
The Special Prosecutor Framework
Section 85
complements the Special Court system by requiring appointment of Special Public
Prosecutors with at least seven years of practice, ensuring specialized
prosecution expertise.
Jurisdictional Complexities: The
Trial Procedure Conundrum
The Sentencing Power Paradox
A critical legal issue
emerges from the intersection of various provisions:
•
Section 92 RPWD Act: Punishment extends
to 5 years
•
Section 23(2) BNSS: Magistrate First
Class can sentence only up to 3 years
•
MHA Guidelines: State offences are
triable by Magistrate First Class
This creates an apparent
contradiction requiring judicial interpretation.
The Resolution: Special Court
Framework
The contradiction
is resolved through Section 84, which designates Sessions Courts as Special
Courts for trying RPWD Act offences. The procedure follows this sequence:
1.
Magistrate takes cognizance on police
report
2.
Commitment to Special Court under Section
232 BNSS
3.
Trial by Special Court (Sessions Court)
with specialized prosecutor
Direct Cognizance Question: The
Legal Answer
Sessions
Courts cannot take direct cognizance of RPWD Act offences. Despite Section
84 creating Special Courts, it does not expressly empower Sessions Courts to
bypass magistrate cognizance. The commitment procedure remains mandatory under
Section 232 BNSS.
Implementation Status: From Law
to Reality
State-wise Implementation
Various states have moved to
implement the Special Court mandate:
•
Delhi: Designated Additional Sessions
Judge-02 in each district as Special Court (2019)
•
Madhya Pradesh: Issued notifications for
Special Courts
•
National Directive: Supreme Court in 2017
directed all states/UTs to establish Special Courts
Where Special Courts remain
undesignated, regular Sessions Courts exercise jurisdiction after proper
commitment.
The Commitment Procedure:
Bridging Magistrate and Sessions Court
Section 232 BNSS Framework
When a Magistrate receives a
charge sheet for Section 92 offences, the commitment procedure under Section
232 BNSS requires:
1.
Compliance with Sections 230-231 BNSS
(preliminary proceedings)
2.
Remand of accused to custody (subject to
bail)
3.
Transmission of record and evidence to
Sessions Court
4.
Notification to Public Prosecutor
5.
Completion within 90 days (extendable to
180 days)
Limitations of Magistrate’s Role
During commitment
proceedings, the Magistrate’s role is administrative and limited. The
Magistrate cannot probe into merits or discharge the accused if facts disclose
a Sessions triable offence.
Contemporary Relevance and Future
Directions
Integration with New Criminal Laws
With the implementation
of Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, the RPWD Act’s penal
provisions must be read harmoniously with the new procedural framework while
maintaining their specialized character.
Challenges in Implementation
1.
Lack of awareness among investigating
agencies about RPWD Act provisions
2.
Inadequate training of police and
judicial officers
3.
Delayed establishment of Special Courts
in many states
4.
Coordination issues between disability
welfare departments and criminal justice system
Conclusion: Towards Inclusive
Criminal Justice
The RPWD Act
2016’s criminal justice framework represents a legislative masterpiece that
transforms disability rights from mere welfare concerns to enforceable criminal
law protections. The Act’s penal provisions, anchored by Section 92’s
comprehensive offence categories and supported by the Special Court
architecture under Section 84, create a robust shield against atrocities on
persons with disabilities.
However, the true
test of this legislative framework lies not in its textual elegance but in its
implementation reality. The establishment of Special Courts, training of
specialized prosecutors, and creation of disability-sensitive investigation
procedures remain critical for translating the Act’s vision into ground
reality.
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