the Rights of Persons with Disabilities Rules, 2017

 

Vikash Kumar vs Union Public Service Commission

The Rights of Persons with Disabilities Rules, 2017

Rights of Persons with Disabilities Act 2016: A paradigm-shift G.1 A statutory manifestation of a constitutional commitment 32 Part III of our Constitution does not explicitly include persons with disabilities within its protective fold. However, much like their able-bodied counterparts, the golden triangle of Articles 14, 19 and 21 applies with full force and vigour to the disabled. The RPwD Act 2016 seeks to operationalize and give concrete shape to the promise of full and equal citizenship held out by the Constitution to the disabled and to execute its ethos of inclusion and acceptance. 33 The fundamental postulate upon which the RPwD Act 2016 is based is the principle of equality and non-discrimination. Section 3 casts an affirmative obligation on the government to ensure that persons with disabilities enjoy (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally PART G with others. Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and non-discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability. Section 3 is a statutory recognition of the constitutional rights embodied in Articles 14, 19 and 21 among other provisions of Part III of the Constitution. By recognizing a statutory right and entitlement on the part of persons who are disabled, Section 3 seeks to implement and facilitate the fulfillment of the constitutional rights of persons with disabilities. 34 There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability. This Court in its judgment in Jeeja Ghosh v. Union of India 11, noted that a key component of equality is the principle of reasonable differentiation and specific measures must be undertaken, recognizing the different needs of persons with disabilities, to pave the way for substantive equality. Justice A K Sikri stated in the above judgement:

“40. In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation.

For example, when public facilities and services are set on (2016) 7 SCC 761

PART G standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.” (emphasis supplied) 35 The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. The concept of reasonable accommodation is developed in section (H) below. For the present, suffice it to say that, for a person with disability, the constitutionally guaranteed fundamental rights to equality, the six freedoms and the right to life under Article 21 will ring hollow if they are not given this additional support that helps make these rights real and meaningful for them. Reasonable accommodation is the instrumentality – are an obligation as a society – to enable the disabled to enjoy the constitutional guarantee of equality and non- discrimination. In this context, it would be apposite to remember Justice R M Lodha’s (as he then was) observation in Justice Sunanda Bhandare Foundation v. Union of India 12, where he stated:

“9…In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic…” (2018) 2 SCC 397

PART G G.2 Scheme of the 2016 Act 36 The RPwD Act 2016 was a landmark legislation which repealed the 1995 Act and brought Indian legislation on disability in line with the United Nations Convention on the Rights of Persons with Disabilities 13. Under the old regime, disability was simply characterized as a medical condition devoid of any understanding of how disability is produced by social structures that cater to able-bodied persons and hamper and deny equal participation of persons with disabilities in the society. Section 2 (t) of the 1995 Act defined a “person with disability” in the following terms:

“(t) "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority” The RPwD Act 2016 has a more inclusive definition of “persons with disability” evidencing a shift from a stigmatizing medical model of disability under the 1995 Act to a social model of disability which recognizes that it is the societal and physical constraint that are at the heart of exclusion of persons with disabilities from full and effective participation in society. Section 2(s) of the RPwD Act 2016 [which we have analyzed in paras 26-28 above] provides:

“(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” “UNCRPD”

PART G A barrier is defined under Section 2(c) of the RPwD Act 2016 in the following terms:

“(c) "barrier" means any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disabilities in society;” Under the 1995 Act, only seven kinds of disabilities were recognized. Section 2(i) listed the following disabilities:

“(i) "disability" means--

(i) blindness;

(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability;

(vi) mental retardation;

(vii) mental illness” The RPwD Act, 2016 now recognizes 21 “specified disabilities” and enables the Central Government to add further categories of disability. The 2016 Act also makes special provisions for persons with benchmark disability under Chapter VI and VII of the Act. A person with benchmark disability is defined under Section 2(r) of the 2016 Act [analyzed in para 25 above] as:

“(r) "person with benchmark disability" means a person with not less than forty per cent. 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.”

PART G It is clear from the scheme of the RPwD Act, 2016 that “person with disability” and “person with benchmark disability” are treated as separate categories of individuals having different rights and protections. A third category of individuals “persons with disability having high support needs” has also been defined under the RPwD Act 2016.

The general principle of reasonable accommodation did not find a place in the 1995 Act. The provision for taking aid of a scribe was limited to blind students or students with low vision in educational institutions. Section 31 of the 1995 Act provided:

“All educational institutions shall provide or cause to be provided amanuensis to blind students and students with or low vision.” The principle of reasonable accommodation has found a more expansive manifestation in the RPwD Act 2016. Section 3 of the RPwD Act 2016 goes beyond a formal guarantee of non-discrimination by casting affirmative duties and obligations on government to protect the rights recognized in Section 3 by taking steps to utilize the capacity of persons with disabilities “by providing appropriate environment”. Among the obligations which are cast on the government is the duty to take necessary steps to ensure reasonable accommodation for persons with disabilities. The concept of reasonable accommodation in Section 2(y) incorporates making “necessary and appropriate modification and adjustments” so long as they do not impose a disproportionate or undue burden in a particular case to ensure to persons with disability the PART G enjoyment or exercise of rights equally with others.” Equality, non-discrimination and dignity are the essence of the protective ambit of the RPwD Act 2016.

38 While most of the obligations under the RPwD Act 2016 are cast upon the government or local authorities, the Act and rules made under it have also imposed certain obligations on the private sector. The role of the private sector in the market has increased manifold since the advent of liberalisation in India. The RPwD Act 2016 recognizes that with the burgeoning role of the private sector in generating employment in India, an active responsibility has to be cast upon private employers to create an inclusive workforce by providing persons with disabilities equal opportunities in the job market. However, the guarantee of equal opportunity must be accompanied by the provision of reasonable accommodation. The Rules framed under the RPwD Act2016 stipulate that private establishments shall not discriminate against persons with disability on the ground of disability. 14 It is to be noted that the definition of discrimination under Section 2(h) of the RPwD Act, 2016 includes denial of reasonable accommodation. Private employers are mandated to frame an equal opportunity policy 15. Equal opportunity policies for establishments having more than 20 employees are required to include provisions relating to (i) appointment of liaison officers in establishments to look after the recruitment of persons with disabilities and provisions of facilities and amenities for such employees 16; (ii) identification of posts/vacancies for disabled persons 17; (iii) provision of additional facilities and benefits such as training facilities, assistive devices, barrier free accessibility, Rule 3 (1) of the Rights of Persons with Disabilities Rules, 2017 Section 21 of the RPwD Act, 2016 read with Rule 8 of the Rights of Persons with Disabilities Rules, 2017 Rule 8(3) (e) of the Rights of Persons with Disabilities Rules, 2017 Rule 8(3) (b) of the Rights of Persons with Disabilities Rules, 2017

PART G preference in transfer and promotion, allotment of residential accommodation and special leave 18. The RPwD Act 2016 further provides that private establishments have to conform with accessibility norms stipulated by the government with respect to building plans 19. The RPwD Act 2016 also provides that 5 % of the workforce of establishments receiving incentives from the appropriate government would be comprised of persons having benchmark disability20. This Court in Union of India v. National Federation of the Blind 21 has recognized that employment opportunities play an instrumental role in empowering persons with disabilities. Justice P. Sathasivam (as he then was) observed:

Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They are denied the right to make a useful contribution to their own lives and to the lives of their families and community.” It is imperative that not only the government but also the private sector takes proactive steps for the implementation of the RPwD Act 2016.

The RPwD Act 2016 is fundamentally premised on the recognition that there are many ways to be, none more ‘normal’ or ‘better’ than the other. It seeks to provide the disabled a sense of comfort and empowerment in their difference.

 

 

 

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Note: This is not the complete judgment. Consists of only relevant portion of the original judgment.

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