The Rights of Persons with Disabilities Act, 2016, was enacted to bring the law in India in line with the Convention on the Rights of Persons with Disabilities, 2006, to which India is a signatory. The act, which came into force on 28 December 2016, repeals the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
The 2016 act has made advances in several areas, particularly with regard to including the private sector within the regulatory framework. Besides ensuring equality and non-discrimination, the act bestows on disabled people rights of protection and confers reproductive and voting rights. The act also provides for robust implementation by constituting central and state advisory boards and district-level committees and also trials by a special court.
The act categorizes persons with disabilities as: (a) “person with benchmark disability”; (b) “person with disability”; and (c) “person with disability having high support needs”. The appropriate government – defined as either the central or the state government – is mandated to protect persons with disabilities from “being subjected to torture, cruel, inhuman or degrading treatment” and from “all forms of abuse, violence and exploitation”.
To achieve the above, government is to: “(a) take cognizance of incidents of abuse, violence and exploitation and provide legal remedies available against such incidents; (b) prescribe the procedure for its reporting; (c) take steps to rescue, protect and rehabilitate victims of such incidents; and (d) create awareness and make available information among the public.”
Government establishments must ensure that they do not discriminate against disabled people in any matter relating to employment. Governments must also provide insurance schemes for their employees with disabilities.
The 2016 act broadens the definition of “disability” to cover about 21 conditions, compared with about seven under the 1995 act. It also allows the central government to notify any other condition as a disability.
Among other key amendments, the 2016 act defines persons with “benchmark disability” and awards such persons benefits such as reservation in education, employment and other schemes. Government and government-aided educational institutions are mandated to reserve at least 5% of seats for persons with benchmark disability. Every government establishment is to identify posts which can be held by persons with benchmark disability and to reserve 4% of posts for disabled persons, as compared to 3% under the 1995 act.
The “appropriate government” and local authorities are given the power to formulate and implement special schemes and development programmes for persons with benchmark disabilities, so as to provide them with: (a) 5% reservation in allotment of agricultural land and housing in all relevant schemes and development programmes; (b) 5% reservation in all poverty alleviation and various developmental schemes; and (c) 5% reservation in allotment of land on concessional rate, where such land is to be used for specified purposes.
The definition of “establishment” under the 2016 act includes private as well as government entities, whereas the 1995 act covered only the government institutions but many provisions under 2016 act are specifically binding on the government establishments only.
Under the 2016 act, every establishment must: (a) notify an equal opportunity policy; (b) register a copy of the policy with the designated person; (c) maintain records of persons with disabilities, facilities provided, skill development, etc.; (d) comply with the rules prescribed by the central government with regard to building structure accessibility; (e) furnish to such special employment exchange as may be notified by the central government such information as may be prescribed in relation to vacancies for persons with benchmark disability.
The act also introduced provisions for “limited guardianship” of mentally ill persons.
To encourage employers in the private sector, the appropriate government and the local authorities are to provide incentives to employers if at least 5% of their workforce is composed of persons with benchmark disability. In addition, unlike the 1995 act, which had no penal provisions for contravention, the 2016 act provides for fines and imprisonment.
Once the central and state governments notify rules for carrying out the provisions of the 2016 act, there will be more clarity with regard to implementation of the act and its impact on the private establishments. Overall, the act is a step in the right direction and should go a long way in providing the desired benefits to disabled persons.
Cyril Amarchand Mangaldas is India’s largest full-service law firm. Manishi Pathak is a partner at the firm.