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Published : August 21, 2014 | Author : c.bikram
Category : Human Rights laws | Total Views : 2075 | Rating :

  
c.bikram
I am a lawyer working out of Pune, Maharashtra, India. I am currently a Partner in Abhay Nevagi & Associates, Advocates.
 

Basic Primer on the Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (all short the ‘Act’) is an affirmative action legislation aimed at leveling the field of opportunities for persons with disabilities as defined in the Act vis-à-vis those that do not suffer from disabilities. As observed by the Hon'ble Supreme Court of India in Kunal Singh v. Union of India[2], the need for a comprehensive legislation for safeguarding the rights of persons with disabilities, for enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time, and the Act provides some sort of succor to the disabled persons.

The ideological foundations of the Act were laid in the Meeting to Launch the Asian and Pacific Decade of Disabled Persons 1993 – 2002, convened by the Economic and Social Commission for Asia and Pacific held at Beijing on 1st to 5th December 1992. The participants in the said Meeting, including India, signed the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region and, as a signatory, the need was felt in India to enact a suitable legislation to provide for several factors discussed in the aforementioned Meeting. Thus, the Act came to be passed in 1995.

The Act aims to provide education, employment opportunities and social security to the disabled in India. The Act also places a large impetus on medical treatment, research, prevention and early detection of disabilities and manpower development.

 ‘Disability’ has been defined to mean blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation, mental illness. Most of the aforesaid terms have also been separately defined in the Act.

The applicability of the Act is restricted to establishments as defined in Section 2(k) thereof. The said definition reads as under –
“establishment” means a corporation established by or under a Central, Provincial 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 617 of the Companies Act, 1956 (1 of 1956) and includes Department of a Government.

A prima facie glance at the above definition suggests that the responsibility of compliance with the Act lies only with the Government and State entities. In the humble opinion of the Author, this would mean that entities that come within the definition and meaning of State under Article 12 of the Constitution of India may come within the purview of the Act. This would necessarily exclude private entities not performing any statutory functions, or not receiving substantial funding from the Government, etc.  However, on account of the words “means a corporation established by or under a Central, Provincial or State Act” in the definition of ‘establishment’, there has been some speculation that the Act is meant to all inclusive and involves non-state entities such as companies under the Companies Act, 1956, cooperative societies, etc. by virtue of such entities being established in consonance with statutory provisions. The issue appears to have been settled by the Hon'ble Supreme Court in the matter of Dalco Engineering Private Ltd. v. Shree SatishPrabhakarPadhye and Ors. [Civil Appeal Nos. 1858 & 1886 of 2007, decided on 31.03.2010].

While observing by way of an example that a `company' is incorporated and registered under, and is not established under, the Companies Act, a 3-Judge Bench in the aforesaid case held as under:
“We agree that the socio-economic legislations should be interpreted liberally. It is also true that Courts should adopt different yardsticks and measures for interpreting socio-economic statutes, as compared to penal statutes, and taxing statutes. But a caveat. The courts cannot obviously expand the application of a provision in a socio-economic legislation by judicial interpretation, to levels unintended by the legislature, or in a manner which militates against the provisions of the statute itself or against any constitutional limitations. In this case, there is a clear indication in the statute, that the benefit is intended to be restricted to a particular class of employees, that is employees of enumerated establishments (which fall within the scope of ‘state’ under Article 12). Express limitations placed by the socio-economic statute can not be ignored, so as to include in its application, those who are clearly excluded by such statute itself. We should not lose sight of the fact that the words "corporation established by or under a Central, Provincial or State Act" is a term used in several enactments, intended to convey a standard meaning. It is not a term which has any special significance or meaning in the context of the Disabilities Act or any other socio-economic legislations. It is a term used in various enactments, to refer to statutory corporations as contrasted from non-statutory companies. Any interpretation of the said term, to include private sector, will not only amount to overruling the clear enunciation in Dhanoa[3] which has held the field for nearly three decades, but more importantly lead to the erasure of the distinction maintained in the Constitution between statutory corporations which are ‘state’ and non-statutory bodies and corporations, for purposes of enforcement of fundamental rights. The interpretation put forth by the employee would make employees of all companies, public servants, amenable to punishment under the provisions of Indian Penal Code and Prevention of Corruption Act; and would also result in all non-statutory companies and private sector companies being included in the definition of ‘State’ thereby requiring them to comply with the requirements of non- discrimination, equality in employment, reservations etc.”
 
The Act also seeks to punish persons taking fraudulent advantage of its beneficial provisions. To avail, or to attempt to avail, any benefit of the Act fraudulently can invite criminal prosecution. The punishment prescribed is imprisonment for upto two years or a fine upto Rs. 20,000/-, or both.

The Central & State Governments have been empowered to make Rules under the Act. The Central Government has already made Rules in 1996 for implementing various provisions of the Act. Broadly the Rules framed by the Central Government provide for the following:

·        Application for and issue of disability certificates
·        The composition and procedure of certain bodies under the Act such as the Central Coordination Committee, the Central Executive Committee
·        Eligibility and certain service conditions of the Chief Commissioner for persons with disabilities
·        Various Forms prescribed under various provisions of the Act and Rules.
 
Naysayers have often lamented that the Act is insufficient in achieving the purpose of social integration of persons with disabilities into the fabric of society.In the humble opinion of the Author, the Act itself is broad enough to have far reaching and positive consequences towards achieving this laudable goal. The strength of the Act must lie in its implementation, which has regrettably been wanting. An important reason for failure or delay in uniform and effective implementation of the Act in India no doubt is that there is no deadline for its implementation. Certain provisions, such furnishing of returns by employers of vacancies for persons with disabilities to employment exchanges, provide that the same must be implemented from such date as may be specified by notification. However, for the most part, the Act enjoins upon the Appropriate Government and local authorities to implement the provisions of the Act without specifying time-lines for the same. The phraseology of the provisions of the Act surely imply immediate implementation for the most part, but with riders such as that the Appropriate Government and local authorities must take various actions under the Act “within the limits of their economic capacity and development”.

Like in the case of most other social legislations in India, the implementation of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 must ultimately be ensured through democratic means. Executive inaction on the part of the Governments and local authorities have often and effectively been dealt with by our judicial system, with the Supreme Court of India and the High Courts of the States often forcing the Executive to take urgent and immediate steps to implement laws. While definite progress has no doubt been made in this manner towards implementing the Act, there are indeed miles to go before the collective conscience of society can sleep in peace, secure in the knowledge that those amongst us with disabilities are no longer the victims of apathy.
*******************
[1] This Note is a brief overview of the Act named above and is not intended to give any legal advice regarding the same. The Note reflects the views of the Author only. 
[2] AIR 2003 SC 1623: (2003) 4 SCC 524
[3]S.S. Dhanoa v. Municipal Corporation, Delhi 1981 (3) SCC 431

The  author can be reached at: c.bikram@legalserviceindia.com

Writing award This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges



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