Abstract new legislation began in 2010 to
Abstract The RPwD Act, 2016 isan attempt to bring the domestic disability legislation in line with the UnitedNations Conventions on the Rights of Persons with Disabilities (UNCRPD).After India signed and approved theUNCRPD in 2007, the process ofenacting a new legislation began in 2010 to make it compliant with the UNCRPD.After series of consultation meetings and drafting process, the Rights of Personswith Disabilities Act, 2016 (RPwD Act, 2016) was passed by both the houses ofthe Parliament. The UNCRPD is a visionary documentwhich, inter alia, is alive to the emerging trends of globalization,liberalization, and privatization with the result that services to public aregetting transferred to the private sector. This explains why the private sectorhas emerged as a major player in the scheme of things. This also explains whythe UNCRPD enjoins it upon the private entities to make services which are openor provided to the public, accessible to persons with disabilities. The presentpaper is an attempt to elaborate the role of private sector in RPwD Act, 2016.______ Key Words: – UNCRPD, RPwD Act, 2016, PrivateSectorINTRODUCTIONThe previous legislation wasthe Persons with Disabilities (Equal Opportunities, Protection of Rights andFull Participation) Act, 1995.
This law was inadequate as it treated disabilityas a medical model. The United Nations Conventions on the Rights of Personswith Disabilities (UNCRPD) is more holistic. After India signed and approvedthe UNCRPD in 2007, the process of enacting a new legislation in place of thePersons with Disabilities Act, 1995 (PWD Act, 1995) began in 2010 to make itcompliant with the UNCRPD. After series of consultation meetings and draftingprocess, the Rights of PwD Act, 2016 (RPwD Act, 2016) was passed by both thehouses of the Parliament. It was notified on 28th December, 2016after receiving the presidential assent. Where the previous Act required governments to make facilitiesaccessible to the extent that it was possible within their economic limits,thus having provided an exit option for most state governments to avoidcompliance, the new Act makes it amply clear that accessibility is a must andincludes the private sector, private service providers and privateestablishments within its ambit for compliance with the Act. The Act alsounderstands public services and public buildings as those which are used by thepublic at large, including those services and buildings which belong to privatesector and not as merely those which are government owned.
Atfirst glance, the private sector seems to be under the surveillance of the Act.This is evident from the fact that the revised draft rules that came out on10th March, 2017, did not mention the privateestablishment in the chapter on equal opportunity policy. However, in theoriginal set of rules, that came out on 3th March, 2017, an exclusive framework for theprivate sector had been included.The UNCRPD is avisionary document which, inter alia, is alive to the emerging trends ofglobalization, liberalization and privatization with the result that servicesto public are getting transferred to the private sector. This explains why theprivate sector has emerged as a major player in the scheme of things.
This alsoexplains why the UNCRPD enjoins it upon the private entities to make serviceswhich are open or provided to the public, accessible to persons withdisabilities. PROVISIONSIN THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016TheRPwD Act, 2016 is an attempt to bring the domestic disability legislation inline with the UNCRPD. Thus it has provisions that are rights basedrather than on the charity or social model of disability. It has elaboratedefinitions of concepts like barriers, (Section 2 (c)), discrimination,(Section 2 (h)). Government establishment (Section 2(k)), Private establishment(Section 2(v)), reasonable accommodation (Section 2(y)) and Special EmploymentExchange (Section 2(zb)). Chapter II are Rights and Entitlements and includethe right to equality and non-discrimination, (Section 4) rights againstexploitation and abuse (Section 7), access to justice (Section 12) etc. Section5 makes specific provisions for women and children with disabilities. Specialprovisions have been made in Section 24(3) (d) for schemes for livelihood forwomen.
The RPwD Act unlikeits previous counterpart does not define disabilities and limit the number ofdisabilities, The RPwD Act has followed the UNCRPD and defines a person withdisability (in Section 2(s) as a person with long term physical, mental,intellectual or sensory impairment which, in interaction with barriers, hindershis full and effective participation in society equally with others. A personwith benchmark disability (for whom there are specific provisions andconcessions in work and employment) is a person with disability who has 40% ormore of a specified disability.While the PwD Act listed out onlyseven disabilities, the RPwD Act has a Schedule with 21 disabilities includingdwarfism and acid attack victims. There is also a residuary category in EntrySix which enables the Central Government to include other categories ofdisabilities. Apart from retaining job reservations (the percentage of whichhave increased) in the public, the RPwD Act of 2016 has other provisions thatare noteworthy.
ROLE OF PRIVATE SECTOR INRPwD ACT, 2016Going by theprovisions of the Act, the private sector has a significant role andobligation, particularly, in the matter of ensuring accessibility to personswith disabilities. It also has a role in the matter of employment of personswith disabilities. Section 35 of the RPwD Act stipulates that theappropriate government shall incentivize private entities to ensure that fiveper cent of their total workforce comprises of persons with disabilities. In order tounderstand the role of the private sector on accessibility which is fairlycomprehensive, it would be in the fitness of things to suggest that theaccessibility related provision contained in Sections 40 to 46 of theAct be read together with some relevant definitions given in Section 2such as those of ‘establishment’, ‘private establishment’, ‘public building’,’public facilities and services’, ‘reasonable accommodation’, and ‘universaldesign’, etc. Without getting intothe legal semantics, one may safely say that the role and obligations of boththe appropriate government and the private sector extends to the physical environmentincluding all kinds of infrastructure, transport, information and communicationtechnology including all technologies and systems, public services andfacilities, consumer goods, etc.
They are under a legal obligation to complywith and incorporate accessibility features in accordance with theaccessibility standards and guidelines to be notified by the central governmentin consultation with the Chief Commissioner for Persons with Disabilities underSection 40 of the Act. Here, it would bequite in context for us to remember that there are many privately owned publicbuildings such as shopping malls; similarly, many transportestablishments/companies of different description meant for the public areowned by private individuals. So on and so forth. The definitions of’private establishment’, ‘public building’, and ‘public facilities andservices’, etc. are so all-embracing that they probably exclude only privateproperty meant for private use and enjoyment only and personal services fromtheir purview.
The Act also, interalia, prescribes time-limit for mandatory observance of accessibility rules.Sections 41 to 46 are reproduced below verbatim inthis context:41. (1) The appropriate Government shalltake suitable measures to provide,—(a) Facilities forpersons with disabilities at bus stops, railway stations and airportsconforming to the accessibility standards relating to parking spaces, toilets,ticketing counters and ticketing machines;(b) Access to allmodes of transport that conform the design standards, including retrofittingold modes of transport, wherever technically feasible and safe for persons withdisabilities, economically viable and without entailing major structuralchanges in design;(c) Accessible roadsto address mobility necessary for persons with disabilities.(2) The appropriate Government shalldevelop schemes programmes to promote the personal mobility of persons withdisabilities at affordable cost to provide for,— (a) Incentives andconcessions;(b) Retrofitting ofvehicles; and(c) Personal mobilityassistance42.
The appropriateGovernment shall take measuresto ensure that,—(i) All contentsavailable in audio, print and electronic media are in accessible format;(ii) Persons withdisabilities have access to electronic media by providing audio description,sign language interpretation and close captioning;(iii) Electronicgoods and equipment which are meant for everyday use are available in universaldesign43. The appropriate Governmentshall take measures to promote development, production and distribution ofuniversally designed consumer products and accessories for general use forpersons with disabilities.44. (1) No establishment shall begranted permission to build any structure if the building plan does not adhereto the rules formulated by the Central Government under section 40.(2) No establishment shall be issueda certificate of completion or allowed to take occupation of a building unlessit has adhered to the rules formulated by the Central Government.45.
(1) All existing public buildingsshall be made accessible in accordance with the rules formulated by the CentralGovernment within a period not exceeding five years from the date ofnotification of such rules;Provided that theCentral Government may grant extension of time to the States on a case to casebasis for adherence to this provision depending on their state of preparednessand other related parameters;(2) The appropriate Government andthe local authorities shall formulate and publish an action plan based onprioritization, for providing accessibility in all their buildings and spacesproviding essential services such as all primary health centres, civilhospitals, schools, railway stations and bus stops.46. The service providers whetherGovernment or private shall provide services in accordance with the rules onaccessibility formulated by the Central Government under section 40within a period of two years from the date of notification of such rules:Provided that theCentral Government in consultation with the Chief Commissioner may grantextension of time for providing certain category of services in accordance withthe said rules. Here, forexample, one notices explicit reference to private service providers in Section46. Likewise, one also notices reference to establishment’ in Section 44and to ‘public buildings’ in Section 45. CONCLUDINGREMARKSFrom the above, itfollows by necessary implication that both the government and the privatesector which includes the corporate and business houses,non-governmental/voluntary organizations, trusts, associations, etc.
, must workin tandem to make the provisions of this progressive piece of legislation aliving reality on ground. The Act has several important and noteworthy aspectswhich will have a great impact on inclusion for Indians with disabilities. Thenew legislation recognises that accessibility is critical for inclusion andthat it is a cross-sectoral issue to be implemented by different stakeholdersacross different government departments and ministries and agencies.