The Constitution of India secures to citizens including disabled, right of justice, freedom of speech & expression, worship, equal status & opportunity. Article 15(1) & 15(2) of the Constitution states that the state & government cannot discriminate against any citizen of India including disabled people on the basis of caste, race, religion or on the basis of any disability. According to 2011 census in India 2.68 Crores persons are disabled (8 types of disability) which constitute 2.21% of the total population of India. Majority are present in the rural areas i.e. 69%. In order to protect the PWDs from alienation various legislation were enacted even though it was seen that the legislations were lacking short in the present times as various disabilities were not listed in the legislations so, the RPWD Act, 2016 was legislated.
Analysis of the Act
The RPWD Act, 2016 attempts to bring the domestic disability legislation in line with the CRPD. The Act was enacted on 28th December 2016, came into force on 19 April 2017. The Act defines disability on the basis of its dynamic & evolving concept rather than limiting the disability unlike the PWD Act, 1995 which it replaced. Thus, the Act has provisions that are rights based rather than the charity or social model of disability.
The Act has elaborated definitions of concepts like barriers (Section 2 (c)), discrimination (Section 2 (h)), Government establishment (Section 2(k)), Private establishment (Section 2(v)), reasonable accommodation (Section 2(y)) and Special Employment Exchange (Section 2(zb)). Chapter II of the RPWD Act, 2016 deals with the Rights & Entitlements, include the right to equality and non-discrimination (Section 4), rights against exploitation and abuse (Section 7), access to justice (Section 12) etc. Section 5 of the Act makes specific provisions for the women and children with disabilities. A Special provisions have been made in Section 24(3)(d) of the Act which includes schemes for the livelihood for women for the upbringing of their children.
The RPWD Act unlike the PWD Act, 1995 does not define disabilities and limit the number of disabilities & increased the list of disabilities from 7 to 21. The RPWD Act follows the rules of CRPD & defines a person with disability (Section 2(s)) as an individual with long term physical, mental, intellectual or sensory impairment which in interaction with barrier hinders his complete and effective participation in society equally with others. A person with benchmark disability (for whom there are specific provisions and concessions in work and employment provided by the Act) is a person with disability who has 40% or more of a specified disability.
Other features of the RPWD Act, 2016
- The term establishment by the Act includes a private establishment as mentioned by Section 2(i). Government Establishment is defined in Section 2(k) which means a corporation established by or under a Central Act or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined by section 2 of the Companies Act, 2013 and includes a Department of the Government. Private establishment according to Section 2(v) of the Act means and includes company, firm, cooperative or other society, associations, agency, institution, organization, union, factory etc., as the appropriate Government may, by notification or notice, specify this clearly means that the disability legislation applies with equal force to private establishments.
- A public building includes a place of employment of the person. This would go long way thus, benefiting the lives of persons with disabilities easier as these buildings would have to be accessible to persons with disabilities.
- Reasonable Accommodations has been defined & government employers have to provide reasonable accommodation vide Section 20(2) of the Act. Reasonable Accommodation is defined in the same manner as in the rules of CRPD.
- There shall be no discrimination in employment by the Government for PWDs i.e. Section 20(1). Such a clear provision did not existed in the PWD Act, 1995.
- There shall be an Equal Opportunity Policy for every establishment vide Section 21 of the Act. Section 22 mandates maintenance of records and Section 23 has made provision for the appointment of a Grievance Redressal Officer (GRO) to address issues regarding problems in these matters.
- Vocational Training and Self-Employment have been given a push in Section 19 such that the appropriate Government shall formulate schemes & programmes including provision of loans at concessional rates to support & facilitate the employment of persons with disability.
- Provision for Social Security has been made under Section 24 of the Act. Under the PWD Act, 1995 no such provision was present.
- The provision retained from the PWD Act, 1995. Termination or reduction of rank in service of an employee who has acquired a disability is not possible.
- There is a horizontal reservation provided by the Act of 4% of government jobs and incentive based reservation of jobs in the private sector. The percentage of reservation has gone up by 1%.
- Section 35 of the Act provides incentives to the private sector for employing persons with disabilities. The private sector is under obligation to employ 5% of its workforce consisting of persons with disabilities.
- The Provisions have been made for the setting up of special employment exchanges under Section 37 of the Act.
- Chapter XIII of the Act states that Special Courts & Public Prosecutor shall be provided by the State Governments with Concurrence of the CJ of the High Court vide Section 84 & 85 of the Act.
Citing of RPWD Act, 2016 by Judiciary
In the case of Vikas v. State of Maharashtra, the Petitioner was a driver of Maharashtra State Road Transport Corporation (MSRTC) & the respondent no. 3 issued order directing petitioner routine check-up. In the check-up it was diagnosed that the petitioner had Colour Vision Defect (Colour Blindness) thus, terminating his services by MSRTC. The petitioner filed a writ petition pleading that the order of his services termination is the violation of Article 14, 15 & 21 of Constitution & ultra vires to the provision of Section 20 of RPWD Act, 2016. The question before Court was is the petitioner fit to continue his duties with MSRTC with colour blindness. The Court held that the disability viz. Colour Blindness was acquired during the course of his service thus he is entitled to an alternate job as “Reasonable Accommodation” of the provision of Section 20 of RPWD Act, 2016. Court also added as the petitioner services were terminated between the 2018, since then the petitioner is unemployment & nor did they receive any wages or compensation. MSRTC was directed to pay back wages to the petitioner from the date there terms of service was terminated.
In the case of Ebrahim M. M., petitioner attained serious disability during the course of his service & on account of injuries suffered he is entitled to be retained on light duty under Sec. 20 of RPWD Act, 2016 a writ petition was filed by the petitioner with pleading in prayer to issue a writ against the respondent to grant the petitioner equal posting of a conductor in compliance to the Act, 2016. The Court said the writ petition was disposed of but it was ordered accordingly by the Court directing the respondent, within two week on receipt of the judgment the option of petitioner shall be considered sympathetically & due accommodation shall be provided to the petitioner under Sec. 20(2) of the Act, 2016.
In V. Suresh case, the petitioner while working as a Conductor acquired Coronary Artery Disease (CAD) which disabled him to resume his service as conductor. The petitioner contended to seek assignment of light duty under same pay scale on ground of Sec 20(4) of RPWD Act, 2016 as he acquired the disability during the employment. The Court took reference of the Case of Sajimon K.B., that held that such protection under Sec 20(4) of the Act, 2016 is to be granted & the Corporation cannot contract out of the Statutory Right of the employee thus, stating the petitioner is entitled to be assigned on light duty with protection of pay scale & service benefits.
The taboo relating to Disability is still very much prevalent in our country, people still treat them as an object of pity and sympathy and treat them as third-class citizens and considers them as a liability which makes the person with disability vulnerable to discrimination like harassment, bullying, mental torture and isolating etc. Therefore, this Act can prove to be a turning point for the PWDs & change the mentality of the society towards disabled persons.
This article is written by Ajay Kataria, from Dr. B.R. Ambedkar National Law University, Sonepat, Haryana.
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