Rights of Persons with Disabilities Act

Background:

Overtime, India’s legal system for safeguarding the Rights of People with Disabilities has experienced substantial change. The historic Rights of Persons with Disabilities Act, 2016 (hereinafter referred as RPWD Act) and consequent announcement of the Rights of Persons with Disabilities Rules, 2017 (hereinafter referred as RPWD Rules) seeks to advance equality of opportunity, non-discrimination, and inclusion for people with Disabilities with the intention of bringing the Indian Legislation in the line with United Nations Convention on the Rights of Persons with Disabilities. Article 253 of Constitution of India states that the Parliament has the power to make any law for the Union of India or a particular state or any union territory for Implementing any international treaty, agreement, or convention or for implementing any decision made at any international forum, conference, organization, or association, pursuant to which the legislation was introduced to the country. The intention behind the enactment of the Rights of Persons with Disabilities Act, 2016 is to make certain that all persons with disabilities can lead their lives with dignity, without discrimination, and with equal opportunities. On a similar note, the Constitution of India illustrates under Article 15(1) & 15(2) that any citizen of India cannot be discriminated on the basis of Caste, Race, Religion, or on the basis of any Disability. Further, this article encapsulates an extensive examination of the legal rights granted to individuals with disabilities in India.

Applicability:

Rights of Persons with Disabilities Act in Establishments:

1. Disabled employees have the right to equality and non-discrimination. The RPWD Act makes it unlawful to discriminate against a person on the grounds of his or her disability unless it can be proved that discrimination is a proportionate means of achieving a legitimate aim. The head of the establishment is responsible for ensuring that this provision of the RPWD Act is not misused (Section 3). Further, if the head of a Government or private establishment with twenty or more employees receives a discrimination complaint based on disability, they shall either take action as per the RPWD Act or provide a written explanation of how the contested action is a fair way to achieve a legitimate goal.
2. (Rule 18) An individual with a designated disability can request a certificate of disability by applying to the Competent Authority as per Form IV (Application for Obtaining Certificate of Disability by Persons with Disabilities). The application can be sent to –
   • a medical Authority or another Competent Authority that is capable of issuing a certificate in the applicant’s district or
   • the relevant Medical Authority in a Government hospital where the person is currently or has previously undergone treatment of their disability.
3. Two current passport-size photos, proof of residency, and an Aadhaar number or Aadhaar enrollment number shall be submitted with the application. An individual holding a certificate issued under Rule 18 has the right to seek facilities, concessions, and benefits available to persons with disabilities through government schemes and those supported by government funding in non-governmental organizations.
4. If a complaint is received from the aggrieved party alleging discrimination based on of disability, the owner of establishment is obliged:
• To act in accordance with the provisions of the RPD Law or
• Inform the injured person in writing as to how the impugned act or omission constitutes a proportionate means of achieving a legitimate aim.

Duties of Employer for Rights of Persons with Disabilities

1. (Section 21 read with Rule 8) Private establishments with twenty or more employees, shall outline an equal opportunity policy for persons with disabilities which has to be displayed on their website or conspicuous places in their premises. A copy shall be registered with the Appropriate Commissioner. It shall contain the following:
   • Details regarding facilities for persons with disabilities;
   • Lists of posts identified for persons with disabilities;
   • Promotions & other opportunities, advance trainings, housing allocation, supply of assistive technology, and barrier-free accessibility.
2. (Section 22 read with Rule 9) Establishments shall maintain records relating to persons with disabilities. They shall record:
   • The number of the employed person with disabilities and the date of initiation of their employment
   • The name, gender, and address of the individuals with a disability
   • The type of disability of such employee
   • The nature of work being performed by the employees
   • The facilities provided to the individuals with disabilities.
   Each establishment is obligated to present the records kept in accordance with these rules for inspection upon request by the authorities designated. Furthermore, establishments shall furnish any necessary information to verify compliance with the provisions when requested.
3. (Rule 15) Every establishment shall adhere to the standards concerning the physical environment, transportation, and information and communication technology issued by respective Ministries and Departments.

UN Convention on the Rights of Persons with Disabilities (hereinafter referred as the “Convention”)

India passed the Rights of Persons with Disabilities Act, 2016 and its implementing Regulations in 2017 to carry out its obligations under the Convention. Article 1 of the Convention has been used to formulate the definition under the Indian legislation. People who are handicapped and remain so for at least 40% of their life (hereinafter known as “people with benchmark disability”) are eligible for specific benefits under the Indian Act. One such perk is that they shall be given priority for employment, with at least 4% of all openings in Indian government establishments falling into specific categories (and 1% in others).

Penalties:

1. The general penalty described for any person who contravenes any provision of the RPWD Act is punishable with a fine which may extend to ten thousand (10000) rupees and for any subsequent contravention with a fine which shall not be less than fifty thousand (50000) rupees but which may extend to five lakh (500000) rupees.
2. If a company is proved to have committed an offence and it is proved that it has been committed with the consent, connivance or neglect of any director or other officer, such officer of the company shall be deemed to be guilty and liable to be charged against and punished accordingly.
3. The RPWD Act further illustrated the offense of committing atrocities i.e., intentionally insults or intimidates, assaults or uses force to any person, voluntarily injures, damages or interferes a disabled person shall be punishable with up to 5 years of imprisonment along with a fine.

Conclusion

The aim of the lawmaker behind the establishment of the RPWD Act is to protect the dignity of every person with a disability in society and restrain any form of discrimination. The intention behind the establishment of the RPWD Act is to make certain the participation and inclusion of person with disability in the society. It also promotes acknowledgment of people which is progressive legislation. The said legislation is focused on establishing rights. The ill-treatment of the disabled person creates an etch in their heart which results in immense psychological and emotional damage. The lawmakers intend to ensure social and economic justice. The rights guaranteed by the RPWD Act and constitution are to secure social justice for disabled people, and the special provisions concerning education and employment guarantee economic justice to disabled people. Furthermore, the establishment of the RPWD Act is alone not sufficient therefore the competent authority/judicial system has to monitor and ensure the implementation of the same.

Disclaimer

The information provided in this article is intended for general informational purposes only and should not be construed as legal advice. The content of this article is not intended to create and receipt of it does not constitute any relationship. Readers should not act upon this information without seeking professional legal counsel.