A Critical Evaluation of the Employment Law of Disabled Individuals in India. What Policies Should Be Integrated to Enhance Its Efficiency?
This Blog is written by Rithu from Ramaiah college of law, Bangalore. Edited by Ravikiran Shukre.
Disability can be by birth or due to some tragic events or by birth. It is a physical or mental condition that restricts a person’s movement, senses or activities. Facilitating their lives is an important concern of society and the government. Stephan Hawking once said “people with disabilities are vulnerable because of the many barriers we face: attitudinal, physical, and financial. Addressing these barriers is within our reach and we have a moral duty to do so. But most important, addressing these barriers will unlock the potential of so many people with so much to contribute to the world. Governments everywhere can no longer overlook the hundreds of millions of people with disabilities who are denied access to health, rehabilitation, support, education, and employment and never get the chance to shine.”
According to a census conducted in 2011, in India, about 2.68 Cr persons are ‘disabled’ out of the 121 Cr population which is 2.21% of the total population. According to data from the World Health Organization, there are currently more than one billion people with disabilities in the world, and around 200 million of them have severe functional disabilities. These people often have poor health, low educational attainment, limited economic opportunities, and high rates of poverty. Therefore, the measures taken by different local governments and non-governmental organizations to improve the lives of people with disabilities through progressive laws and/or policies are closely related to all corners of the world. The United Nations Convention on the Rights of Persons with Disabilities (the “Convention”) was adopted during the 61st session of the United Nations General Assembly on December 13, 2006, and entered into force on December 3, 2006. May 2008. The objective of the Convention is to promote, protect and guarantee that persons with disabilities enjoy all human rights and fundamental freedoms, and to promote respect for the exact purpose of their inherent dignity. According to the Convention, persons with disabilities are essentially those who have suffered long-term physical, mental, intellectual or sensory defects, which prevent them from participating fully and effectively in society on an equal basis with others.
NATIONAL POLICY FOR PERSONS WITH DISABILITIES
The National Policy for Persons with Disabilities (2006) recognizes that Persons with Disabilities are a valuable human resource for the country and seeks to create an environment that protects their rights, equal opportunities and full participation in society. To facilitate the national objective, there is a need for collection, compilation and analysis of data on disability. The constitution of India applies to every legal Indian citizen whether they are healthy or disabled. The Indian government reserves 3% of vacancies for disabled citizens. 1% each for the people suffering from:
• Hearing Impairment
• Blindness or Low Vision
• A suitable Scheme shall be formulated for
• The training and welfare of persons with disabilities
• Regulating the employment
• The relaxation of the upper age limit
• Health and Safety measures and creation of a non- handicapping, environment in places where persons with disabilities are employed
• Locomotor Disabilities & Cerebral Palsy
Government Educational Institutions and other Educational Institutions that receive a grant from the Government shall reserve at least 3% seats for the exact purpose of the people with disabilities. No employee should be demoted if they become disabled during service, instead, they can be moved to another post with the same pay and condition. Promotions can’t be denied because of impairment. In interference of its duty under the UN Convention on the Rights of Persons with Disabilities, India enacted the Rights of Persons with Disabilities Act, 2016 (the “New Act”) and the rules thereunder (the “Rules”) in 2017. The new law replaces the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995 (the ‘previous Act’), which covers only seven types of persons with disabilities. The new law covers more than 15 disabilities, including dwarfism, acidosis victims, intellectual disabilities, and specific learning disabilities. It defines “disabled people” as people with long-term physical, mental, intellectual or sensory disabilities. These disabilities interact with obstacles and prevent them from fully and effectively participating in society on an equal footing with others. This definition of the new law is formulated using the text in Article 1 of the Convention. Under the New Act, a person with at least 40% of a disability (referred to as “persons with benchmark disability”) is entitled to certain benefits. One of the benefits is that at least 4% (1% in some other categories) of the total number of vacant positions in specific categories in Indian government agencies should be reserved for the exact purpose of your employment.
Although Indian private institutions can be exempted from retaining jobs for the disabled, the new law requires them to comply with certain obligations. The term “private organization” has been broadly defined to include enterprises, companies, factories, or any other organization. This will include the presence of India in foreign companies, whether it is a liaison office, branch, subsidiary or joint venture. The new law stipulates that it is illegal for companies to discriminate against someone for the particular reason of their disability unless it can be proven that the discrimination involved is a means commensurate with the legitimate goal. These rules require the “person in charge” of the agency to be responsible for ensuring that this provision of the new law is not abused to harm the interests of people with disabilities. New Bill requires companies to prepare and publish an equal opportunity policy (“EOP”) for people with disabilities. A copy must be filed with the State Commissioner or the Central Commissioner. The EOP must specifically include: (a) Detailed information on the facilities provided for persons with disabilities; (b) A list of positions determined for these persons; (c) Training, promotion, allocation of accommodation and provision of assistance equipment for said people, and Details of access without barriers. Additionally, these agencies must appoint a liaison officer who is responsible for recruiting people with disabilities, including regulations and facilities for disabled employees. Said appointments will be notified in the EOP. In addition, companies must keep records related to the disabled, which list the following:
• number of disabled employees and their employment start date;
• the name, gender and address of the disabled employee;
• the employee’s type of disability is State the nature of the work performed by the employee; and
• the type of facilities provided to employees with disabilities.
Furthermore, companies are obliged to produce the aforementioned records for inspection when required by the relevant authorities. The rule provides for compliance with the physical environment, transportation, and ICT standards applicable to employees with disabilities. The rule also provides procedures for handling complaints related to discrimination. Complaints about the exploitation of the disabled can be made to the Executive Director and the local police. Violation of any provision of the new law will incur fines and penalties, and in some cases will make the directors and senior management of the company personally liable. The new bill stipulates a fine of Rs. 10,000 / is a fine between the first violation and Rs. 50,000 / y rupee. 500,000 / is a tracking violation. If the company commits the infringement, both the entity and those responsible for the business of the company will be liable. If the directors, officers and managers of the company determine that the violation is due to their consent or due to their negligence, they will be personally liable. Failure to provide the required information, documents or records (as required by Law) is an illegal act under the new Law. The fine provided by the organization for each of those offences is Rs. 25,000 /. Depending on the circumstances, for each day of such non-compliance or refusal, an additional fine of Rs 1,000 will be imposed. The law also establishes criminal liability for anyone who insults or intimidates a disabled person in the public eye and intends to humiliate them. This also applies to such behaviour in the workplace. The penalties for such crimes are imprisonment and fines ranging from 6 months to 5 years. Prosecutions for crimes under the new law can be heard by a local court, which must notify the state government of each district as a “special court.
While there are laws relating to persons with disabilities that have come into force, the question of their effective application is the most concerning one. The empowerment of the aforementioned groups of people should not only broaden the availability of human resources available in the country but also create a sense of equality in employment among people from different strata of society. Private companies must comply with their obligations under the laws and regulations, not only to avoid and protect themselves from unnecessary lawsuits and accusations but also to maintain the reputation of their entities in the business sector. Compared with companies that are negligent in their duties in such circumstances, companies that adopt proactive policies for the recruitment of all types of personnel have a greater chance of obtaining an advantage in the market.