Current situation and challenges faced by Person with Disabilities in the private sector after

the enactment of RPWD Act, 2016

“Being disabled should not mean being disqualified from having access to every aspect of life.”
Emma Thompson
The Rights of Persons with Disabilities Act of 2016 (the 'new Act') was a much-needed piece of
legislation. The revised Act went into effect on April 19, 2017. The Rules were also published on
June 15, 2017. (i.e. the date from which it came into force). The Persons with Disabilities (Equal
Opportunity Protection of Rights and Full Participation) Act of 1995 (the "prior Act") is being re-
placed by this new Act.The new Act implements India’s obligations under the United Nations Con-
vention on the Rights of Persons with Disabilities, which was ratified in 2007.This legislation took
the Indian Parliament more than a decade to pass.
Current Situation in the Private Sector
Maintaining workplace diversity is a major priority as well as a significant issue for HR profession-
als.
In 2017, more women and minority groups are projected to be represented at all levels of organisa-
tions. Diversity is a critical weapon in the struggle for talent. People with disabilities must be in-
cluded as part of a company's diversity management strategy. The "Persons with Disabilities" Act
of 1995 provides employment incentives to private-sector employers who employ at least 5% peo-
ple with disabilities. Many businesses in the private sector recognise the necessity of include people
with disabilities in their workforce. PwD staff are included in certain firms' diversity programmes;
some see it as a CSR initiative, while others see it as a way to improve their social image.1
According to publicly traded firms' declarations, people with disabilities make up only 0.46 percent
of their workforce. Furthermore, the percentage of people with disabilities in these companies has
decreased from 0.47 percent last year to 0.47 percent this year.2According to experts, even those
PwDs who are able to find work encounter significant challenges in the workplace. The majority of
offices are still inaccessible and unusable for disabled people. Despite significant advancements in
the fields of accessibility and assistive technology, software, and other technical solutions to make
life easier for the impaired, this remains the case.3

Even while private businesses are excluded from reserving jobs for people with disabilities, the new
Act imposes other requirements on them.

1 Current State of Inclusion of People with Disabilities at Workplaces in India Devpriya Dey.
2 Persons with disabilities form less than 0.5% of staff in India's top firms, Sachin P Mampatta & Amritha
Pillay, Business Standard.
3 Supra.
Employees with disabilities have a right to equality and nondiscrimination.4 The new Act makes it
illegal to discriminate against someone because of their disability unless the prejudice is proven to
be a reasonable way of attaining a legitimate goal.5 The leader of the establishment is in charge of
making sure that this section of the Act isn't abused. An Equal Opportunity Policy (the 'EOP') for
people with disabilities must be prepared and published by businesses. The State Commissioner or
the Central Commissioner must record a copy of the same, and it should have the following things
noted :
i) information on facilities for people with disabilities,
ii) lists of jobs that have been identified as being suitable for people with disabilities,
iii) training, advancement possibilities, accommodation allocation, and supply of assistive devices;
and barrier-free access.
Establishments must establish a liaison officer to oversee the recruitment of people with disabilities
as well as the provision of accommodations for them. The EOP must be notified of the appointment
as well.
Furthermore, businesses must keep documents pertaining to people with impairments.They must
outline:
i)the number of disabled people employed and when they started
ii) the name, gender, and address of the employees,
iii)the type of disability that the employee(s) has,
iv) the nature of the work that the employees do,
v) the sort of facilities that are given to the employees.
If required by appropriate authorities, establishments must furnish records for inspection.The Rules
establish criteria for disabled personnel in terms of the physical environment, transportation, and in-
formation and communication technology. These, too, must be followed by businesses.
Failure to comply with the new Act can result in fines of up to INR 10,000 for the first offence, and
fines of between INR 50,000 and INR five lakhs for consecutive offences.If a business fails to com-
ply, both the business and the individual may be held liable. If it is proven that the offence was
committed with their consent or is related to their negligence, the company's directors, executives,
and managers will be held personally accountable. It is unlawful for an organisation to fail to de-
liver required information, documents, or records. For each offence, the organisation faces a fine of
INR 25,000, plus an additional fine of INR 1,000 for each day of continued failure or refusal.A per-
son who insults or intimidates a disabled person in public with the goal of humiliating the individual
is guilty of the offence under the new Act. This is true of activities taken in the workplace. This is
punishable by a fine and a sentence of six months to five years in prison.
4 Section 3
5 Section 3(3)
Overall, based on the existing situation, the employment prospects for people with disabilities in In-
dia appear bleak. As a result, the key research subject is how to improve the employability of the
unemployed in India. The need to identify the barriers has become a top priority in order to discover
a means to make the PwD usable. As a result, finding a solution is pointless without first determin-
ing what causes unemployment or creates a bottleneck in employment. The majority of employers
who utilise PwD are in the service sector, which points to the need for more research in this area.6

Challenges
On a daily basis, a person with a handicap is likely to face several obstacles. These impediments
aren't just physical impediments. Attitude, communication, policy, programmatic, social, transporta-
tion, and physical hurdles are some of the most typically reported impediments to a person with
such a disease being included and fully participating in society.7 These are some of the challenges
that the Act has tried to mitigate and provide resolutions on. While this new legislation act does mit-
igate certain problems which were previously not addressed but it still has certain flaws.

The new Act and Rules contain certain ambiguous provisions. Private companies, for example, are
not obligated to hire people with disabilities, but section 35 of the Act requires the competent gov-
ernment to provide incentives to private sector employers to ensure that at least 5% of their work-
force is made up of people with disabilities. The term 'ensure' is incongruent with the fact that pri-
vate enterprises are not required to hire people with disabilities, much less set aside 5% of their jobs
for them. To date, no such incentives have been announced as a result of the new Act, the Rules, or
any subsequent circular issued by the Central or State governments.
The 'head of the establishment' is responsible for ensuring that people with disabilities do not lose
their rights and benefits under the new Rules. While the term 'head' is not specified in the new Act,
the managing director or Chief Executive Officer would be the 'head' under general interpretation
(CEO). This is similar to the 1948 Factories Act's idea of 'occupier.' Compliance is the responsibil-
ity of the CEO (or a designated director) under that Act. This has resulted in severe civil and crimi-
nal penalties for that person, sometimes due to events beyond their control.
When enacting corporation liability legislation, Parliament should have considered allowing private
enterprises more autonomy. They should have given them the authority to choose the officials in
charge of upholding the legal stipulations. The firm's leader does not always have to be held ac-
countable for illegal activities within the organisation, especially if he or she is not directly respon-

6 Ibid, Note 1.
7 CDC. (2019).”Disability barriers to Inclusion”. Retrieved from https://www.cdc.gov/ncbddd/disabilityand-
health/disability-barriers.html
sible. Taking care of this problem would also assist India achieve its professional aim of "ease of
doing business in India.”
Despite the fact that a law exists to protect people with disabilities, the question of its effective im-
plementation remains the most pressing worry. The empowerment of the aforementioned group of
people will not only increase the availability of human resources in the country, but will also foster
a sense of equality in terms of work among people of various social strata.Private companies must
comply with the provisions of the Act and Rules not only to avoid and protect themselves from un-
welcome litigation and charges, but also to maintain the corporate reputations of their businesses.
When compared to those who ignore their responsibilities in such situations, a company with proac-
tive policies pertaining to the employment of all classes of people will have a better chance of sur-
viving in the market.8
Another source of concern for private businesses is the severity of the new Act's sanctions. These
expose private company directors and senior officials to legal liability for even small infractions.
These have the potential to be abused in a variety of situations.

Furthermore, the portions imposing fines are rather broad in their wording. Even minor or uninten-
tional lapses can result in fines. This might put private businesses at risk of government authorities
using coercion and harassment against them.The imposition of criminal culpability for actions of
"insult" or "intimidation" that are punishable by jail is harsh and prone to abuse. Because the terms
"insult" and "intimidate" are not defined, this clause could be abused.

8 Obligations of private companies towards persons with disabilities, K Sumanth Gowda.