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Thus any matter of discrimination or denial by public authorities in matters of recruitment,

promotion, benefits that persons with disabilities are entitled to may be brought before the
Commissioners for adjudication and under Section 62 of the PWD Act, , and they can
recommend appropriate action to be taken by the offending body.

The central government and many State governments have enacted rules under the PWD Act
which include rules on the procedure for filing complaints before the Commissioners. The
complainants do not require legal representation during the proceedings, and generally, they
may institute a complaint by submitting complete details of their complaint and facts to the
relevant Commissioner. In accordance with the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Rules, 1996, complaints are
ideally to be disposed of within 3 months from the date of notifying the opposite party.

In the event that any party is not satisfied with the decision of the Chief Commissioner or the
State Commissioner, the said decision can be challenged in a writ petition in the respective
state High Court by the aggrieved party.

The Rights Of Persons With Disability Act, 2016

The Rights of Persons with Disabilities Act, 2016 replaces the erstwhile Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
The law on protection and prohibition of discrimination of the disabled has come into effect
on April 19, 2017. The rules thereunder have been made effective from June 15, 2017. All
establishments (including in the private sector) to notify an Equal Opportunity Policy.
Employers to register the Equal Opportunity Policy with the State Commissioner or Central
Commissioner (as applicable). Establishments (including in the private sector) to inter
alia provide for facilities, benefits and accessible environment for the disabled.

The Rights of Persons with Disabilities Act, 2016 (the “Disabilities Act, 2016”) along with
the Rights of Persons with Disabilities Rules, 2017 (together, the “Disability Law”) has been
enacted by the Indian government.

The new Disability Law gives effect to the principles of the United Nations Convention
on the Rights of Persons with Disabilities12. The Disability Law inter alia seeks to protect

12
Ratified by India in October 2007

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disabled persons from various forms of discrimination, increases measures for effective
participation and inclusion in the society, and ensures equality of opportunity and adequate
accessibility.

Prior to enactment of the Disabilities Act, 2016, the law governing rights of the disabled were
scattered across the Constitution of India 13, the Persons with Disabilities (Equal Opportunity
Protection of Rights and Full Participation) Act, 1995 (“Disabilities Act, 1995”), the Mental
Health Act, 1987, the Rehabilitation Council Act of India and the National Trust (for welfare
of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities) Act,
1999. Although these legislations aimed at safeguarding the rights of persons with
disabilities, these legislations did not specifically provide for equality of
opportunity especially in matters relating to employment.

The Disabilities Act, 2016 has repealed the Disabilities Act, 1995.

KEY FEATURES OF THE DISABILITY LAW

Some of the key features of the Disability Law inter alia include:

1. ‘Disabled persons’ have been categorized as: (i) persons with disability14; (ii) persons
with benchmark disability15 and (iii) persons with disability having high support
needs16.
2. The definition of ‘person with disability’ under the Disabilities Act, 2016 is an
inclusive definition as opposed to the exhaustive definition provided under the
Disabilities Act, 1995 and includes 21 types of disabilities as ‘specified disabilities’.
The Disabilities Act, 1995 covered only 7 types of disabilities.
3. While majority of the obligations under the Disability Law are cast upon the
appropriate government and/or local authorities; certain obligations/duties are also cast
upon establishments (including in the private sector).

13
Enforceable only against the State/ Centre.
14
RPWD Act, section 2(s) “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.
15
RPWD Act, section 2(r) (r) “person with benchmark disability” means a person with not less than forty
percent 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.
16
RPWD Act, section 2(t) (t) “person with disability having high support needs” means a person with
benchmark disability certified under clause (a) of sub-section (2) of section 58 who needs high support;

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4. All establishments (including in the private sector) are required to frame and publish an
Equal Opportunity Policy.
5. It prohibits discrimination of persons with disabilities, unless it can be shown that the
act of discrimination was a proportionate means of achieving a legitimate aim.
6. Onus has been placed on the government to facilitate the rights of disabled persons. The
government is required to inter alia, ensure/protect a disabled person’s right to
equality, dignity and respect for his/her integrity equally with others; right to personal
liberty, right not to be discriminated against; right to live in a community; right to
equal protection and safety in situations of risk, armed conflicts, humanitarian
emergencies, natural disasters etc.; accessibility to polling stations and material
relating to electoral processes; right to access any court, tribunal, authority,
commission or body having judicial or quasi-judicial or investigative powers without
discrimination; right to own or inherit property (movable or immovable); right to
manage one’s own financial affairs and access to bank loans, mortgages and other
forms of financial credit; right to barrier-free access to healthcare institutions and
centres; right to have cultural life and to participate in recreational activities and
sporting activities etc.
7. Additional benefits such as right to free education (between the age group of 6 and 18
years), reservation in education, government jobs, allocation of land, poverty
alleviation schemes etc. have been provided for persons with benchmark disabilities.
8. Reservation in vacancies in government establishments17 has been increased from 3%
to 4% for certain persons or classes of persons having benchmark disability.
9. For ensuring speedy trial, special courts are to be constituted in each district to handle
cases concerning violation of rights of persons with disabilities.
10. Enhanced penalties with a monetary penalty extending up to Rs. 500,000 (~USD 7750)
and imprisonment extending up to 5 years.

NEW SET OF COMPLIANCES FOR PRIVATE EMPLOYERS

With the enactment of the Disability Law, private employers shall be required to:

17
The RPWD Act , (k) “Government establishment” 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 in section 2 of the Companies Act, 2013 and includes a Department of the
Government;

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1. Frame an Equal Opportunity Policy: Every establishment shall notify an Equal

Opportunity Policy. Such policy shall be displayed on the employer’s website, failing
which, the same shall be displayed at conspicuous places of the establishment
premises18. A copy of the said policy shall also be registered with the Chief
Commissioner or the State Commissioner, as applicable. The Equal Opportunity Policy
shall contain details of the facilities and amenities that the employer will be providing
to the disabled employees in order to enable them to effectively discharge their duties
in the establishment 19.
2. Appoint a Liaison Officer: Private establishments having more than 20 employees are
required to appoint a liaison officer who shall oversee the recruitment of disabled
persons and make the necessary provisions and facilities for such employees in the
establishment20.
3. Identify Posts/Vacancies for Disabled Persons: Although the Disability Law does not
mandate reservation of the disabled in the private sector, private employers are required
to identify posts/vacancies in the establishment that would be suitable for disabled
persons and include details of the same in the Equal Opportunity Policy of the
establishment.21 Further, private establishments receiving incentives from the
appropriate government may need to ensure that at least 5% of their work force is
comprised of persons having benchmark disabilities.22
4. Prohibit Discrimination: The head of the establishment shall ensure that no disabled
person is discriminated because of his/her disability23, except in cases where such
act/omission is a proportionate means of achieving a legitimate aim 24.
5. Provide Additional Facilities/Benefits: Private establishments shall take efforts to
provide additional facilities to the disabled such as training facilities, assistive devices,
barrier free25 accessibility and formulate additional benefits for the disabled such as
preference in transfer, special leave etc.26

18
Rule 8(2) of the Rights of Persons with Disabilities Rules, 2017
19
Section 21 (2) of the RPWD Act
20
Rule 8(4) of the Rights of Persons with Disabilities Rules, 2017
21
Rule 8(3) (e) of the Rights of Persons with Disabilities Rules, 2017
22
Rule 8(3) (b) of the Rights of Persons with Disabilities Rules, 2017
23
Section 35 of the RPWD Act
24
Rule 3 (1) of the Rights of Persons with Disabilities Rules, 2017
25
Section 3 (3) of the RPWD Act.
26
Section 2 (c) of the RPWD Act defines “barrier” as any factor including communicational, cultural,
economic, environmental, institutional, political, social, attitudinal or structural factors which hamper the full
and effective participation of persons with disabilities in the society.

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6. Revamp Existing Hiring Practices and Policies: Given the above requirements,
employers will now need to revamp their existing hiring practices and modify their HR
policies.
7. Conform with Accessibility Norms: All establishments will need to ensure that the
building plan/ building structure of the establishment and the physical environment,
transport and information and communication technology27 adheres to the accessibility
norms formulated by the government 28. No establishment shall be issued a certificate of
completion or allowed to take occupation of a building unless it has adhered to the
accessibility norms formulated by the Central Government 29.
8. Maintenance of Records30: Every private establishment having 20 or more employees
shall maintain records containing details of the disabled persons who are employed at
the establishment.31

THE HITS

1. With the increase of industries in India, the role of the corporate sector in generating
job opportunities had increased tremendously. For many years now, there has been a
pressing need to create awareness amidst the corporate sector to take active
responsibility in recognizing the abilities of disabled persons and give them equal
opportunities in the job market. By enacting the Disability Law, the Indian Government
has succeeded in promoting equal employment opportunity for the disabled in the
private sector as well, by casting mandatory obligations on private employers.
2. According to the United Nations, around one billion people live with disabilities
globally. Among them, 40 to 80 million live in India 32. Prejudice, coupled with lack of
facilities and opportunities, has often curbed them from leading a normal life. Given the
mandatory requirement to build equal opportunities for the disabled, the above statistics
are likely to reduce in the years to come.
3. The Disability Law aims at addressing the problems faced by the disabled from all
dimensions. It includes not just the economic and social rights of the disabled, but also
includes justiciable rights of the disabled.

27
Rule 8 (3) sub-clauses (c) and (d) of the Rights of Persons with Disabilities Rules, 2017
28
Rule 15 (1) of the Rights of Persons with Disabilities Rules, 2017.
29
Section 44 (1) of the RPWD Act.
30
Section 44 (2) of the RPWD Act.
31
Section 22 of the RPWD Act.
32
Rule 9 of the Rights of Persons with Disabilities Rules, 2017.

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4. Social attitudes and stigma have been a major reason for limiting the opportunities of
the disabled whether it be in their social and economic life or even within their own
families. Despite the magnitude of the issue, awareness on disability issues have been
lacking. To that extent, the government’s initiative to conduct, encourage, support and
promote awareness campaigns and sensitisation programmes is a remarkable step.
5. The Disability Law is a sign that the government is making a move towards a more
inclusive and progressive society, where persons would not be limited by their
disabilities. This would ensure that employment standards in India are brought in line
with international standards.

AND THE MISSES

1. While the initiative taken by the government in recognizing the needs of the disabled is
commendable, there is inadequate clarity on various aspects under the Disability Law,
which the government may need to clarify in due course. For instance, the Disability
Law requires employers (including in the private sector) to include in their Equal
Opportunity Policy, details such as special leaves, accommodation facility etc. that
shall be provided to the disabled persons working at the establishment. However,
Disability Law does not clarify (a) the quantum of special leaves that need to be
provided nor does it mention the purpose(s) for which such leaves may be availed; (b)
the standards for accommodation facility etc.
2. The Disability Law does not provide a transition framework or a timeline for ensuring
compliance under the Disabilities Act, 2016.
3. The obligations cast upon private establishments under the Disability Law such as
providing training to the disabled, assistive devices, ensuring accessibility norms etc.
would entail additional costs for employers. While government establishments should
be able to accommodate these additional costs, the Disability Law does not provide for
any incentives to private establishments to enabling them to set- off the costs incurred.
4. Although there is no reservation quota in the private sector, the Disability Law states
that ‘The appropriate Government and the local authorities shall, within the limit of
their economic capacity and development, provide incentives to employers in the
private sector to ensure that at least five per cent of their work force is composed of
persons with benchmark disability’. The way the law has been crafted, it is unclear
whether it would be mandatory for private sector employers receiving incentives from

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the government to ensure that 5% of their workforce is comprised of persons having

benchmark disabilities.
5. Although the Disability Law prohibits employers from discriminating against the
disabled, the law does not provide for an effective and robust grievance redressal
mechanism.
6. The Disability Law places majority of the onus on the Government to either formulate
rules or schemes for the disabled to ensure protection of the disabled. Therefore, in
effect, the success of the statute will largely depend on the proactive measures taken by
the Government.

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Chapter 4: International Perspective

The Convention On The Rights of Persons With Disabilities:

The Convention on the Rights of Disabilities is an international human rights treaty of the
United Nations intended to protect the Rights and dignity of persons with disabilities. Parties
to the convention are required to promote, protect and ensure the full enjoyment of human
rights by persons with disabilities and ensure that they enjoy full equality under the law.

In the charter of the United Nations it is proclaimed that the inherent dignity and worth and
the equal and inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world. Similarly, the United Nations, in the universal
declaration of human rights and in the International covenants on Economic, Social and
cultural rights. It is supposed that the convention would make a significant contribution to
redressing the profound social disadvantage of persons with disabilities and promote their
participation in the civil, political, economic, and social and cultural spheres with equal
opportunities, in both developing and developed countries. The convention on the Rights of
Persons with disabilities deals with matters such as, general principles on the basis of which
the rights of the disabled persons are to be promoted and protected, the obligations that have
been undertaken by the State parties to adopt measures. The protocol has been added to the
present convention authorizing the Committee on the Peron with Disabilities to receive and
consider communications from or on behalf of individuals or groups of individuals, who
claim to be victims of a violation by a State party of the provisions of the present convention.

Declaration On The Rights of Disabled Persons:

The Declaration of the Rights of Disabled persons was a declaration of the General Assembly
of the United Nations made on 9 Dec 1975. It is the 3447th resolution made by the Assembly.

The disabled person shall enjoy all rights contained in this declaration without distinction or
discrimination. The disabled persons have inherent rights to respect for their human dignity
and irrespective of the origin, nature and seriousness of their handicaps and disabilities, have
same Fundamental Rights. Disabled persons have the same civil and political rights as other
human beings. Disabled persons are entitled to the measures designed to enable them to
become as self-reliant as possible. Disabled persons have the right to economic and social

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security, including the right, according to their capabilities, to secure and retain employment
or to engage in a useful, productive and remunerative occupation and to join trade unions.
Disabled persons have the right to live with their families or with foster parents and to
participate in all social, creative or recreational activities. Disabled persons shall be protected
against all exploitation and treatment of a discriminatory, abusive or degrading nature.

Provisions of the Declaration include:

1) The definition of " disabled person" as anyone who cannot ensure the necessities of a
normal individual and or social life as a result of deficiency in physical or mental capabilities.
2) A non discrimination clause applying the Rights to all disabled persons regardless of " race
, colour, sex, language, religion, political or other opinions , national or social origin , state of
wealth, birth " or other situation
3) Anna statement regarding disabled persons right to respect for their human dignity.

International Human Rights: UN Charter:

The charter of the United Nations of 1945 is the foundational treaty of the United Nations, an
intergovernmental organization. Article 55 says that With a view to the creation of conditions
of stability and well being which are necessary for the peaceful and friendly relations among
nations based on respect for the principle of equal rights and self determination of people's,
the United Nations s shall promote:

a. Higher standard of living , full employment and conditions of economic and social
progress and development;
b. solutions of international economic, social, health, and related problems and international
cultural and educational cooperation
c. Universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion.

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Chapter 5 Judicial Approach Towards The Disabled By The Supreme Court

The judiciary has kept a significantly softer approach towards the disabled/differently abled.
The judiciary has been acting as the guardian of the rights of disabled and has always granted
all the rights to the disabled as has been granted to any normal human being like right against
discrimination, however positive restrictions may be imposed. Some of the recent landmark
judgements reflecting the same can be seen below:

 In Jared Abiding v. Union of India33 the supreme Court bearing in mind the discomfort
and harassment suffering by a person of locomotor so disability would face while
travelling by train particularly to far off places issued directions to the Indian Airlines
to grant persons suffering from locomotor so disability to the extent of 80%.
 In National Federation of blind v. UPSC34 the Supreme Court held that, UPSC may be
directed to allow blind persons for appearing the examinations for Indian administrative
and allied Services.
 In Government of NCT of Delhi v. Bharath Lalmeena35 The Delhi High court held that
people with disabilities can be appointed as physical education teachers provided they
have passed the qualifying examination undergone the requisite training.
 All Kerala Parents Association of the Hearing Impaired v. State of Kerala36
“The Supreme Court held that Section 39 deals with the reservation of seats for
persons with disabilities in government educational institutions as well as
educational institutions receiving aid from the government, and necessarily
therefore the provision thereof must be complied with.”

 V. Surendra Mohan v. State of Tamil Nadu 37

“A judicial officer in a State has to possess reasonable limit of the faculties of

hearing, sight and speech in order to hear cases and write judgments and, therefore,
stipulating a limit of 50% disability in hearing impairment or visual impairment as a
condition to be eligible for the post is a legitimate restriction i.e. fair, logical and
reasonable.”

33
(2008) 7 SCC 312
34
(2013) 3 SCC 411
35
(2001) 3 SCC 313
36
2002 (7) SCALE 198
37
(2019) SCCOnline SC 53

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Conclusion
Disability refers to the disadvantage or restrictions of activity caused by the way society is
organised which takes little or no account if people who have physical, sensory or mental
impairments. Disability is an unfortunate part of human life which can effect not only the
natural way of a living but also despair component strength and power. The Government
needs to launch more social security schemes for disabled sections and generate more
employment opportunities for them. Several schemes and benefits conference on the disabled
persons has come up as relief and has successfully served to provide equal opportunities to
the disabled section.

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