International Day of Disabled Persons – A day to celebrate the Rights of differently abled persons

International Day of Disabled Persons – A day to celebrate the Rights of differently abled persons

December 3, 2019 Compliance Blog 0

The International Day of Persons with Disabilities is celebrated every year on 3rd December to increase public awareness, understanding and acceptance of people with disability and celebrate their achievements and contributions.

This day has been promoted by the United Nations (UN) since 1992 aiming to sensitize people about the problems faced by persons with disabilities and to raise support for their dignity, rights and well-being. Each year the UN assigns themes for celebrating this day. The theme this year is “Promoting the participation of persons with disabilities and their leadership: taking action on the 2030 Development Agenda”.

In line with the UN’s initiative of integrating persons with disabilities in every aspect of political, social, economic and cultural life, India had enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“Persons with Disabilities Act”).

The aim and objective of the Persons with Disabilities Act is as follows:

  1. a) the government to take responsibility for prevention of disabilities, protection of the rights of persons with disabilities, provision of medical care, education, training, employment and rehabilitation of persons with disabilities.
  2. b) the government to create a barrier- free environment for persons with disabilities.
  3. c) the government to remove any discrimination against persons with disabilities in the sharing of development benefits
  4. d) the government to protect persons with disabilities against abuse and exploitation.
  5. e) the government to lay down strategies that will ensure comprehensive programmes and services and equal opportunities for persons with disabilities.
  6. f) the government to make special provisions for including persons with disabilities in mainstream society.
  7. g) the government to establish Co-ordination Committees and Executive Committees at the Central and State levels in order to ensure the full implementation of the provisions under the Act.

From a plain reading, it is evident that the main burden of providing a discrimination-free and healthy living environment for persons with disabilities laid solely with the Government under the Persons with Disabilities Act.

In fact, even the term ‘establishments’ under the Persons with Disabilities Act was defined to only mean a corporation established under a Central, Provincial or State Act, or an authority or body owned or controlled or aided by the Government or a local authority or a Government company, including Government departments. Thus, restricting the requirement of a discrimination-free working environment for persons with disabilities only to the government establishments.

On 13th December, 2006, the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities with the purpose to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Principles for empowerment of persons with disabilities under the UN Convention

 

  1. Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons
  2. Non-discrimination
  • Full and effective participation and inclusion in society
  1. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
  2. Equality of opportunity
  3. Accessibility
  • Equality between men and women
  • Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities

Accordingly, the Government of India, to give effect to the UN Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto, enacted the Rights of Persons with Disabilities Act, 2016 (“new Act”) and the Rights of Persons with Disabilities Rules, 2017, effective 19th April, 2017 and 15th June, 2017 respectively.

The new Act seeks to protect disabled persons from all forms of discrimination, ensure equal opportunity and increase measures for integrating persons with disabilities in the society.

Prior to enactment of this Act, India had different laws to govern the rights of the persons with disablities like the Constitution of India[i], the Persons with Disabilities Act, the Mental Health Act, 1987[ii], the Rehabilitation Council of India Act, 1992 [iii]and the National Trust (for the Welfare of Persons with Autism, Cerebral Palsy, Metal Retardation and Multiple Disabilities) Act, 1999[iv]. Although, these legislations aimed at safeguarding the rights of persons with disabilities, they did not specifically provide for equality of opportunity especially in matters relating to employment.

The new Act, repealing the Persons with Disabilities Act, has brought even private employers and establishments within its purview, thus ensuring equal opportunity of employment for persons with disabilities in all types of organisations. Under the new Act, even private sector organisations are now required to provide for equal opportunities, facilities, benefits and accessible environment for persons with disabilities.

So as an employer, you are required to do as follows:

  • Formulate a ‘Equal Opportunity Policy’ for organisations detailing the measures taken by the organisation in pursuance of ensuring a discrimination-free and healthy working environment for employees with disabilities. The Equal Opportunity Policy must be displayed on the organisation’s website.

The Equal Opportunity Policy must detail the following:

  • facility and amenity to be provided to the persons with disabilities to enable them to effectively discharge their duties in the establishment;
  • list of posts identified suitable for persons with disabilities in the establishment;
  • the manner of selection of persons with disabilities for various posts, post-recruitment and pre-promotion training, preference in transfer and posting, special leave, preference in allotment of residential accommodation if any, and other facilities;
  • provisions for assistive devices, barrier-free accessibility and other provisions for persons with disabilities; appointment of liaison officer by the establishment to look after the recruitment of persons with disabilities and provisions of facilities and amenities for such employees.
  • Ensure that there is no discrimination among employees on the grounds of disability
  • Ensure that no employee is deprived of his or her personal liberty on the ground of disability
  • Occupy buildings easily accessible for persons with disabilities and must adhere to the ‘harmonised guidelines and space standards for barrier free built environment for persons with disability and elderly persons’ issued by the Government. Some of the general requirements are
  • Adequate space should be allocated for persons using mobility devices, e.g. wheelchairs, crutches and walkers, white cane etc. as well as those walking with the assistance of other persons
  1. All signage and notice boards must be so designed as to be easily readable by all, including persons having any visual impairment. They must confirm with following
  2. The smallest letter should not be less than 15 mm.
  3. Map and information panels along pathways should be placed at a height between 900 mm and 1800 mm
  • They must be within the vision zone of 900 – 1800 mm
  • Audio visual signage must be provided, which can play a recorded message when touched or activated by a person’s movement or presence
  • All entry and exit ways must be of such height as to be easily accessible by all, including persons with disabilities, to allow easy access for the following:
  1. The average height of a standing person is generally less than 2000mm
  2. The average height of a person seated on a wheelchair is generally less than 1200mm
  • All controls, switches, door handles etc. should be at such height as to be easily accessible by all, including persons with disabilities, as follows:
  1. Height of controls from floor level             : 400 – 1200mm
  2. Height for switches (power)                                                 : 400 – 500 mm
  3. Height for switches (light)             : 900 –1200 mm
  4. Height of doors handles             : 900 – 1000 mm
  5. Opening controls for windows                                          : 900 – 1000 mm
  6. Space required under the counter for wheelchair footrest : 350mm deep
  • Doorways must adhere to the following requirements so as to be easily accessible for all, including persons with disabilities:
  1. Latch approach doorways space  : 1250mm
  2. front approach doorways space  : 600 mm
  3. width of entrance/ exit door : 900 mm
  • Reserved parking spaces must be ensured for persons with disabilities within 30m of accessible entrances
  • Floor surface should be stable, firm, level and slip-resistant and preferably matt finish and should not have any projections, drops, or unexpected variation in level. Carpets must be securely fixed to the floor.
  • For people with low vision, lines of brightly coloured tape may be placed on the floor surface to assist mobility in poorly lighted areas
  • Bathroom (toilets/washroom) doors should swing out/ should be two way opening type so that the person inside does not fall against the door and block it. In case there is not much space available, consideration should be given to the use of sliding or folding doors, which are easier to operate and require less wheelchair manoeuvring space.
  • Handrails must be provided at stairways for ease of movement of persons with disabilities
  • Ramps must be provided for easy movement of persons using wheelchairs
  • Proper lifts, accessible to and usable by Persons with Disabilities at all levels, must be provided. The lifts should be wie enough to allow easy manoeuvrability of wheelchair users. The call button of the lift should be place within easy access of persons with disabilities so that no obstruction is placed to prevent a wheelchair user from reaching the call button

v.   Maintain proper records in relation to their employees with disablements showing:

  1. name, gender and address of persons with disabilities
  2. nature of disability
  3. nature of work being rendered by such employed person with disability
  4. kind of facilities being provided to such persons with disabilities

Such records must be open to inspection by persons authorised by the Government at reasonable hours

It is interesting to note in this regard that any contravention of the responsibilities under the Act would attract a penalty which may extend to Rs. 10000 in the first instance. Moreover, any subsequent contravention would attract a fine not less than Rs. 50000 but which may extend to Rs.500000.

Another important point of difference between the new Act and the Persons with Disabilities Act is that under the old Persons with Disabilities Act ‘disability’ is defined to mean only the following:

(i)Blindness; (ii) Low vision; (iii) Leprosy-cured; (iv) Hearing impairment; (v) Loco motor disability; (vi) Mental retardation; (vii) Mental illness;

However, under the new Act, the following three categories have been introduced, thus widening the scope of the meaning of ‘disabilities’ and bringing a wider range of persons with disabilities within its scope:

  • “person with benchmark disability” means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority
  • “person with disability” means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others
  • “person with disability having high support needs” means a person with benchmark disability certified under clause (a) of sub-section (2) of Section 58 [v]of the new Act who needs high support

Therefore, now not only persons with some specified disabilities like blindness, hearing impairment etc., but any person, who qualifies as a person with disabilities under any of the above 3 categories, will be eligible for equal treatment and opportunity under the Act.

It is also prudent to note that besides the Rights of Persons with Disabilities Rules, 2017, currently in India, many States have also issued their state-specific laws for governing the rights of Persons with Disabilities.

Although, Section 101 of the Act required State Governments to make rules for carrying out the provisions of the Act within 6 months from the date of commencement of the Act i.e. by 19th October, 2017, there are still many States which have not issued any such rules to protect the rights of persons with disabilities in their respective states; while for some the rules are still in draft stage.

Some of the states with enforced or draft rules are as follows:

State Rules Status
Assam Rights of the Persons with Disabilities (Assam) Rules, 2018 Draft
Bihar Bihar Rights of Persons with Disabilities Rules, 2017 Effective
Meghalaya Meghalaya Rights of Persons with Disabilities Rules, 2017 Effective
Telangana Telangana State Rights of Persons with Disabilities Rules, 2018 Effective
Jammu and Kashmir Jammu and Kashmir Rights of Persons with Disabilities Act, 2018 Effective
Karnataka Karnataka State Rights of Persons with Disabilities Rules, 2019 Effective
Mizoram Mizoram Rights of Persons with Disabilities Rules, 2017 Effective
Odisha Odisha Rights of Persons with Disabilities Rules, 2018 Effective
Rajasthan Rajasthan Rights of Persons with Disabilities Rules, 2017 Draft
Sikkim Sikkim Rights of Persons with Disabilities Rules, 2017 Effective
Tamil Nadu Tamil Nadu Rights of Persons with Disabilities Rules, 2018 Effective
Uttar Pradesh Uttar Pradesh Rights of Persons with Disabilities Rules, 2017 Draft
Uttarakhand Uttarakhand Rights of Persons with Disabilities Rules, 2018 Effective
West Bengal West Bengal Rights of Persons with Disabilities Rules, 2017 Draft

Also, some of the State Governments have issued various schemes, policies etc. for upholding the rights of persons with disabilities. Some of them are as follows:

States Schemes/Policies
Gujarat Gujarat State Scheme for Persons with Disabilities by Director Social Defence-Handicapped Welfare

 

Chandigarh Pension Scheme for Disabled Persons
Jharkhand Government Order increasing the age limit for employment in Government posts
Maharashtra Maharashtra State Policy for Persons with Disabilities
Manipur Scheme for Scholarships for disable persons for education such as academic/technical/professional/vocational training
Tripura Guidelines and Modalities for Effecting Reservation for the Persons with Benchmark Disabilities for recruitment in the posts and services of the State Government

Hence, as an employer, it is prudent for you to connect with your Human Resource department to check whether your state has any specific Rules to govern the rights and employment of your employees with any kind of disablement.

As a conclusion, we would like to attract your attention to the fact that under the new Act, you have a two-fold responsibility: as a normal citizen and as an employer.

While as a good citizen it would be your responsibility to help the integration of your fellow citizens with disabilities in all aspects of the society by helping in creating a healthy and abuse-free environment, as an employer also you now have an added responsibility to ensure a discrimination-free, abuse-free and a conducive and healthy working environment for your employees with disablement.

On this International Day of Persons with Disabilities, the best way to celebrate is to ensure that no discrimination is done with any employee on ground of disablement and implement an equal opportunity policy in your establishment, thus protecting the rights and dignity of each of your employees with disability and helping them become financially independent

Author: Madhura Bagchi, Senior Legal Associate, Legal Operations

[i] (I) Article 14 guarantees equality for all its citizens before law and equal protection of law a

(II) Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, place of birth or any of them

(III) Article 16 guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State

[ii] Mental Health Act, 1987 (repealed) ensured that persons with mental illness receive proper treatment and are protected from abuse and prevented from committing abuse

[iii] The Act regulates the training policies and programmes in the field of rehabilitation of people with disabilities

[iv] The Act aims to enable and empower persons with disability to live as independently and as fully as possible within and as close to the community to which they live and strengthen facilities to provide support to persons with disability

[v] Section 58 of the Rights of Persons with Disabilities Act, 2016

Procedure for certification:

(1) Any person with specified disability, may apply, in such manner as may be prescribed by the Central Government, to a certifying authority having jurisdiction, for issuing of a certificate of disability.

(2) On receipt of an application under sub-section (1), the certifying authority shall assess the disability of the concerned person in accordance with relevant guidelines notified under section 56, and shall, after such assessment, as the case may be, —

(a) issue a certificate of disability to such person, in such form as may be prescribed by the Central Government;

(b) inform him in writing that he has no specified disability.

(3) The certificate of disability issued under this section shall be valid across the country.

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