Can Burn Survivors be covered under The Rights of Persons with Disabilities Act, 2016?
The need for rights for disabled people was recognised a decade after the independence of the nation. Various NGO’s and organisations joined hands to take ahead the disability rights movement. After significant protests and petitions the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (or PWD Act) was passed by the government. It had no mention of the acid attack survivors or the burn victim.
The disabled people demanded more reservation and inclusion of other forms of disabilities in the law and hence in 2012, the government came up with a disability bill. The Rights of Persons with Disabilities Bill, 2016 was passed by both houses of parliament and got the assent of the President on 28thDecember, 2016.
Most noted feature of the new act along with widening the ambit of disabilities, is the inclusion of acid attack victims as disabled people. It is noteworthy, that despite the best efforts of the legislature, the 2016 Act has failed to give due recognition to burn survivors whereas by including the acid attacks victims it has given protection to the sub sect of the burn survivors. In order to cover the burn survivors under the act, the legal provisions will have to be analysed.
The Act under Section 2 (zc) defines ‘specified disabilities’ as:
“means the disabilities as specified in the Schedule;”
The Schedule of the Act, under Item 1. A (e) defines ‘acid attack victims’ as follows:
“1.Physical disability.—A.Locomotor disability (a person's inability to execute distinctive activities associated with movement of self and objects resulting from affliction of musculoskeletal or nervous system or both), including—
(e) "acid attack victims" means a person disfigured due to violent assaults by throwing of acid or similar corrosive substance.”
Other specified disabilities as listed in such Schedule include:
“1. B. Visual Impairment-
(a) blindness : means a condition where a person has any of the following conditions, after best corrections-
- Total absence of sight; or
- Visual acuity less than 3/60 or less than 10/200 (Snellen) in the better eye with best possible corrections; or
- Limitation of the field of vision subtending an angle of less than 10 degree.
(b) low vision means a condition where a person has any of the following conditions, namely:-
- Visual activity not exceeding 6/18 or less than 20/60 upto 3/60 or upto 10/200 (Snellen) in the better eye with best possible corrections; or
Limitation of the field of vision subtending an angle of less than 40 degree up to 10 degree.
- Hearing impairment—
(a) "deaf" means persons having 70 DB hearing loss in speech frequencies
in both ears;
(b) "hard of hearing" means person having 60 DB to 70 DB hearing loss in speech frequencies in both ears;
- Intellectual disability, a condition characterised by significant limitation both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behaviour which covers a range of every day, social and practical skills, including—
(a) "specific learning disabilities" means a heterogeneous group of conditions wherein there is a deficit in processing language, spoken or written, that may manifest itself as a difficulty to comprehend, speak, read, write, spell, or to do mathematical calculations and includes such conditions as perceptual disabilities, dyslexia, dysgraphia, dyscalculia, dyspraxia and developmental aphasia;
(b) "autism spectrum disorder" means a neuro-developmental condition typically appearing in the first three years of life that significantly affects a person's ability to communicate, understand relationships and relate to others, and is frequently associated with unusal or stereotypical rituals or behaviours.
- Mental behaviour—"mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub-normality of intelligence.
The objective of the law is to cover all the people with disabilities, after the infamous case of Laxmi v. Union of India, there was much hue and cry on whether acid attack survivors should also be covered under the blanket of “disability”. The Supreme Court in Parivartan Kendra & anr. v. UOI made another passing remark directing all the States and Union Territories to consider the plight of such victims and take appropriate steps with regard to inclusion of their names under the disability list. The efforts of the NGO’s, the judgements of Supreme Court and the media attention played an important role in the inclusion of acid attack victims in the law. Meanwhile, burn survivors were ignored and left out, despite of facing similar consequences including disfigurement.
The nature of injuries sustained by burn survivors are similar to the injuries sustained by acid attack victims although the nature of substance is different. It must be noted that the effect of acid or other corrosive substance on human body is “burn”, but all the burns are not caused by acid or corrosive substances, and hence just adding acid attack victims instead of burn survivors is picking and choosing from a pile of similar things.
Burn Victims are not covered under Item 1. A (e) of the Schedule of the Act
The Schedule of the Act talks about acid attack victims under its Item 1. A (e) and defines them as:
“(e) "acid attack victims" means a person disfigured due to violent assaults by throwing of acidorsimilar corrosive substance.”
Item 1.A e of the Schedule covers two categories: the specific category being “a person disfigured due to violent assaults by throwing of acid” and a general category “a person disfigured due to violent assaults by similar corrosive substance”.
It has to be kept in mind that burn injuries cause coresion of the skin and flesh, yet this does not always happen by acid attack. What the law covers is “a person disfigured due to violent assaults by similar corrosive substance” the specific category being “a person disfigured due to violent assaults by throwing of acid” and such specific category being followed by a general category “a person disfigured due to violent assaults by similar corrosive substance”.
While burn injuries can be caused with corrosive substances such as petrol or kerosene, these substances are not akin to acid. The question then becomes: can burn injuries be covered by the expression“similar corrosive substance The answer is in the negative The words “ other similar substance have to be read with the words “acid”. The statutory rule of interpretation of ejusdem generis means that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. It is essential for application of ejusdim generis rule that enumerated things before the general words must constitute a category or a genus or a family which admits a number of species or members. It is requisite that there must be a distinct genus which must comprise more than one species. However, mention of a single species does not constitute a genus.
Applying the said principle of interpretation, the burn victims cannot be covered along with acid attack victims:
Though disfigured due to the burns, the cause of burn need not be specifically “acid”. With regard to burnt survivors of dowry cases, kerosene or gasoline is mostly used to burn the women. Kerosene, Gasoline as well as petrol, are neither acidic nor basic in nature. They do not iodise when tried to be mixed with water. They are highly flammable liquids used as fuels. The only connection they share with acid is the effect on human body, if thrown on it, i.e. disfiguration. However, the treatment for the disfiguration in case of acid attack is different from the treatment in case of burns. Both the substances are also not corrosive in their scientific nature.
Burn survivors can be covered under the definition of “persons with benchmark disabilities” under Section 2(r) of the Act, and can be provided with benefits enumerated in Chapter VI of the Act that is titled as “SPECIAL PROVISIONS FOR PERSONS WITH BENCHMARK DISABIILITES”.
Section 2(r) of the Act, covers two categories of persons with disability. They are:
- Persons who have not less than 40% of a specified disability where the disability has not been defined in measurable terms (for example in case of acid attack victims)
- Persons who area ‘person with disability’ where specified disability has been defined in measurable terms, meaning they have a disability which is a measurable specified disability.(Example – hearing impairment, visual impairment) as certified by the certifying authority.
For burn survivors to be covered, they either have to fall category a or category b. However, such persons are required to get a certificate from the authorised certifying authority as prescribed under the Act. Particularly, Chapter X of the Act titled as “CERTIFICATION OF SPECIFIED DISABILITIES” talks about certification, where Section 58 (1) states that:
“Any person with specified disability, may apply, in such a manner as prescribed by the central government, to a certifying authority having jurisdiction, for issuing of certificate with disability.”
Reading Section 2(r) and Section 58of the Act together, it seems that all persons with disabilities are required to apply to the certifying authority, whereas the benchmark of 40% will only have to be crossed by people suffering from specified disabilities which cannot be measured. It must be pointed out that there are ways to measure medical burns. Usually they fall under:
- First degree – Less severe (would not cross the 40% benchmark)
- Second degree
- Third degree – severe burns (would cross the 40% benchmark)
Another way of covering the victims of burn injuries is by invoking the Item 6 of the Schedule 1 of the Act, where the Central Government has been given power to notify, disabilities if they are not covered by the specified disabilities.
In order to cover burn survivors under ‘persons with benchmark disabilities’ under Section 2(r) of the Act it has to be shown that due to burns, they have suffered from category b specific disabilities listed in Schedule 1 of the Act:
- Blindness, or
- Hearing Impairment, or
- Visual Impairment, or
- Intellectual disability, or
- Mental Illness
(Intellectual Disability and Mental Illness can be caused due to the psychological after effects of burning injuries)
The terminology used by the legislature excludes the victims of dowry burns, which are often burned by petrol or kerosene, both not being corrosive or acidic in nature. Using the work “acid” has restricted the scope of granting rights to the survivors of other kinds of burns. The question of accidental burns by acid itself has also been left unanswered since the act uses the work “attack”. A more appropriate term could have been survivors of Chemical Burns.
The burn survivors can only be covered if they, because of the burn injuries bear another specified disability.
The Invisible Lawyers Team