LAW NOTE: RIGHTS OF PERSONS WITH DISABILITIES

Introduction: International Provisions

The United Nations Convention on the Right of Persons with Disabilities (UNCRPD), which was ratified by India in October 2007, and which came into effect in May, 2008, under Article 9 casts obligations on the Government for ensuring to PWDs accessibility to:

  1. Information
  2. Physical Environment.
  3. Communication Technology, and
  4. Accessibility to Services as well as emergency services.
  • The principle Act guiding the disability affairs is the “Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.” The Act has been enacted under Article 253 of the Constitution read with item No. 13 of the Union List. It gives effect to the proclamation on the full participation and equality of the persons with disabilities in the Asian & Pacific Region and provides for their education, employment, creation of barrier free environment, social security, etc.
  • The other legislation that too deals with some sort of disabilities is “National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disability Act, 1999”. The Act provides for constitution of the Board of the National Trust, Local Level Committees, Accountability and Monitoring of the Trust. It has provisions for legal guardianship of the four categories of the persons with disabilities and for creation of enabling environment for their as much independent living as possible.
  • In section 2(b) of the PWD Act, 1995, blindness is defined as a condition where a person suffers from any of the following conditions:
  • Total absence of sight; or
  • Visual acuity not exceeding 6160 or 201200 (Snellen) in better eye with correcting lenses; or
  • Limitation of the field of vision subtending an angle of 20 degree or worse;
  • In section 2(i) of the PWD Act, 1995, the ‘disability’ has been defined to mean as:
  1. Blindness, (2) Low vision. (3)Leprosy-cured (4) Hearing impairment (5) Loco motor disability, (6) Mental retardation, (7) Mental illness.
  • In section 2(l) the “Hearing impairment” has been defined to mean as, “the loss of sixty decibels or more in the better year in the conversational range of’ frequencies.”
  • Section 2(t) of the PWD Act defines “Person with disability” as a person suffering from not less than forty per cent. of any disability as certified by a medical authority;
  • Section 2(w) defines rehabilitation as, “Rehabilitation” refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels.
  • Section 25 of the PWED Act, reads as follows:

Within the limits of their economic capacity and development, the appropriate Governments and the local authorities, with a view to preventing the occurrence of disabilities, shall- (a) Undertake or cause to be undertaken surveys, investigations and research concerning the cause of occurrence of disabilities; (b) Promote various methods of preventing disabilities; (c) Screen all the children at least once in a year for the purpose of identifying “at-risk” cases; (d) Provide facilities for training to the staff at the primary health centres; (e) Sponsor or cause to be sponsored awareness campaigns and is disseminated or cause to be disseminated information for general hygiene. Health and sanitation, (f) Take measures for pre-natal, parental and post-natal care of mother and child; (g) Educate the public through the pre-schools, schools, primary health Centres, village level workers and anganwadi workers; (h) Create awareness amongst the masses through television, radio and other mass media on the causes of disabilities and the preventive measures to be adopted;

  • EDUCATION
  • Section 26 of this Act, reads as:

The appropriate Governments and the local authorities shall- (a) Ensure that every child with a disability has access to free education in an appropriate environment till he attains the age of eighteen years; (b) Endeavour to promote the integration of students with disabilities in the normal schools; (c) Promote setting up of special schools in Government and private sector for those in need of special education, in such a manner that children with disabilities living in any part of the country have access to such schools; (d) Endeavour to equip the special schools for children with disabilities with vocational training facilities.

  • Section 27 of this Act, reads as follows:

The appropriate Governments and the local authorities shall by notification make schemes for- (a) Conducting part-time classes in respect of children with disabilities who having completed education up to class fifth and could not continue their studies on a whole-time basis; (b) Conducting special part-time classes for providing functional literacy for children in the age group of sixteen and above; (c) Imparting non-formal education by utilizing the available manpower in rural areas after giving them appropriate orientation; (d) Imparting education through open schools or open universities; (e) Conducting class and discussions through interactive electronic or other media; (f) Providing every child with disability free of cost special books and equipment needed for his education.

  • Section 28 of the PWD Act, reads as follows:

The appropriate Governments shall initiate or cause to be initiated research by official and nongovernmental agencies for the purpose of designing and developing new assistive devices, teaching aids, special teaching materials or such other items as are necessary to give a child with disability equal opportunities in education.

  • Section 30, of the PWD Act reads as follows:

Without prejudice to the foregoing provisions, (be appropriate Governments shall by notification prepare a comprehensive education scheme which shall make Provision for- (a) Transport facilities to the children with disabilities or in the alternative financial incentives to parents or guardians to enable their children with disabilities to attend schools. (b) The removal of architectural barriers from schools. colleges or other institution, imparting vocational and professional training; (c) The supply of books, uniforms and other materials to children with disabilities attending school. (d) The grant of scholarship to students with disabilities. (e) Setting up of appropriate fora for the redressal of grievances of parent, regarding the placement of their children with disabilities; (f) Suitable modification in the examination system to eliminate purely mathematical questions for the benefit of blind students and students with low vision; (g) Restructuring of curriculum for the benefit of children with disabilities; (h) restructuring the curriculum for benefit of students with hearing impairment to facilitate them to take only one language as part of their curriculum.

  • Section 31 of the PWD Act reads as follows:

All educational institutions shall provide or cause to be provided amanuensis to blind students and students with or low vision.

  • EMPLOYMENT

Section 33 of the PWD Act reads as follows:

Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from- (i) Blindness or low vision; (ii) Bearing impairment; (iii) Loco motor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

  • There is a Supreme Court decision of 2014 in this regard related to section 33 of this Act, which makes it mandatory for the Government to reserve 3 % of seats in Government employments for persons with disabilities. The relevant link of the ‘Live Law News Report’ is:

http://www.livelaw.in/sc-upholds-mandatory-3-quota-disabled-government-jobs/

  • Section 34 of the PWD Act, lays down as follows:

Where in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if ;r the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no parson with disability available for the post in that Year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government.

  • Section 39 of the PWD reads as follows:

All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seat for persons with disabilities.

  • Section 40 of this Act reads as follows:

The appropriate Governments and local authorities shall reserve not less than three per cent in all poverty alleviation schemes for the benefit of persons with disabilities.

  • AFFIRMATIVE ACTION – Chapter 7.
  • Section 42 of the PWD Act reads as:

The appropriate Governments shall by notification make schemes to provide aids and appliances to persons with disabilities.

  • Section 43 of the PWD Act reads as:

The appropriate Governments and local authorities shall by notification frame schemes in favour of persons with disabilities, for the preferential allotment of land at concession] rates for- (a) House; (b) Setting up business; (c) Setting up of special recreation centres; (d) Establishment of special schools; (e) Establishment of research centres; (f) Establishment of factories by entrepreneurs with disabilities.

  • Section 44, of the PWD Act, reads as follows:

Establishments in the transport sector shall, within the limits of their economic capacity and development for the benefit of persons with disabilities, take special measures to- (a) Adapt rail compartments, buses. Vessels and aircrafts in such a way as to permit easy access to such persons; (b) Adapt toilets in rail compartments, vessels, aircrafts and waiting rooms in such a way as to permit the wheel chair users to use them conveniently.

  • Section 47, of the PWD Act, reads as follows:
  1. (1) No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service. Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
  • Section 47(2) of the PWD Act, reads as follows:

No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

  • Institution For Persons With Severe DisabilitiesChapter 11
  • Section 56, of the PWD Act reads as follows:

The appropriate Government may establish and maintain institutions for persons with severe disabilities at such places as it thinks fit. As per section 56(4) a “person with severe disability” means a person with eighty percent or more of one or more disabilities.

  • SOCIAL SECURITY – Chapter 13.
  • As per section 66(1) of the PWD Act, “The appropriate Governments and the local authorities shall within the limits of their economic capacity and development undertake or cause to be undertaken rehabilitation of all persons with disabilities.”
  • As per section 68 of the PWD Act, “The appropriate Governments shall within the limits of their economic capacity and development shall by notification frame a scheme for payment of an unemployment allowance to persons with disabilities registered with the Special Employment Exchange for more than two years and who could not he placed in any gainful occupation.
  • MISCELLANEOUS: CHAPTER XIV.
  • Section 72 of the PWD Act reads as:

The provisions of this Act, or the rules made there under shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued there under, enacted or issued for the benefit of persons with disabilities.

  • Some Important Points related to Disability.
  • According to census 2011, there are 2.68 Crore Persons with Disability (PwDs) in India (1.50 crore male and 1.18 crore female PwDs)
  • About 1.34 crores persons with disabilities are in the employable age of 15 to 59 years. About 99 lakh persons with disabilities in the employable age group are non-workers or are marginal workers.
  • Persons with disabilities are among the poorest in the population
  • It was decided in the discussions held during the presentation made by the Department of Persons with Disabilities to Hon’ble Prime Minister on 24.10.2014 that the Department will collaborate with Skill Development Mission to work out new skill development initiatives for people with disability.
  • Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India is the nodal department that administers the PwD Act, and facilitates the process of development, integration and empowerment, of PwDs and oversees the implementation of the Act.
  • The scheme for implementation of the PWD Act 1995, was encoded in the Ninth Five Year Plan of the Ministry of Social Justice and Empowerment.
  • The concerned Ministry has come up with a scheme named, “Scheme for implementation of Persons with Disabilities Act (SIPDA). The main objective of the scheme is to assist various implementing agencies to take steps with a multi sectoral collaborative approach towards effective implementation of the various provisions of the PWD Act.
  • Department of Empowerment of Persons with Disabilities (DEPwD), Ministry of Social Justice & Empowerment has conceptualised the“Accessible India Campaign (Sugamya Bharat Abhiyan)”as a nation-wide flagship campaign for achieving universal accessibility that will enable persons with disabilities to gain access for equal opportunity and live independently and participate fully in all aspects of life in an inclusive society. The campaign targets at enhancing the accessibility of built environment, transport system and Information & communication eco-System.

End notes:

http://www.disabilityaffairs.gov.in/content/

http://www.disabilityaffairs.gov.in/upload/uploadfiles/files/SIPDA%20Scheme(1).pdf

http://www.disabilityaffairs.gov.in/content/accessible_india.php

http://www.disabilityaffairs.gov.in/upload/uploadfiles/files/HandbookonAirTravelSensatisationSamarthyam.pdf

http://www.disabilityaffairs.gov.in/upload/uploadfiles/files/Harmonised%20guidelinesd%20released%20on%2023rd%20March%202016_compressed.pdf

http://www.disabilityaffairs.gov.in/content/page/statutory-bodies.php

http://www.ccdisabilities.nic.in/

https://www.nalsar.ac.in/disability/

Rohit Kumar, 5th Year, BA LLB, School of LAW , KIIT University

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