Transcript

In India, we have mainstream legislations and disability specific legislations.

All the mainstream legislations like Right to Education Act or Constitution or whatever, these are applicable to the people with disabilities as well.

But to protect the rights of persons with disabilities because they don’t get them, we have disability specific legislation.

These are four: the main mother act, I should say, is the Rights of Persons With Disabilities Act 2016.

We have the Mental Healthcare Act, 2017.

We have Rehabilitation Council of India Act, then we have National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act.

The Rights of Persons With Disabilities Act is the key legislation which is disability specific, it protects, it provides for the rights of persons with disabilities although these rights are already there in the constitution elsewhere.

Rehabilitation Council of India Act, which is there to regulate the profession, whether it is special education or any therapy, the education and training of those professionals to ensure that the people with disabilities get the quality services.

The Mental Healthcare Act is specifically meant for people with mental illness to protect their interest because they’re more vulnerable.

Then, the National Trust Act is for protecting the rights of persons with Autism, Cerebral Palsy, Intellectual Disability and Multiple Disabilities.

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The provisions of Rights of Persons With Disabilities, it’s a very comprehensive legislation in our country and we’re very lucky to have it.

It is covering the entire spectrum of Rights of Persons With Disabilities, be it health, education, employment, skill development; providence of the grievance redressal, implementation, everything, penalties.

It defines persons with disabilities at 3 levels: One is the person with disability, irrespective of the percentage; on the basis of disability, the person cannot be discriminated against.

Another is benchmark disability, that is 40% or more.

And those who have this level of disability are entitled to reservations, many financial benefits and other things.

And the third one is persons with High Support Needs who will be entitled to receive high support from the concerned authorities if it is recommended.

Key provisions of the Rights of Persons With Disabilities are it has all the provisions which are mandatory except only four sections.

Mandatory means, these provisions are self-effectuating.

The concerned authorities cannot say we cannot implement it because there are no specific instructions, because there are no rules.

The highlight of this act is that it clearly provides for the dignity, inclusion and the non - discrimination against people with disabilities.

So, what are these four? Could you mention one or two which are mandatory?

Yeah.

These four sections relate to the provision of say, social security, but even in that social security provision of 25% extra for people with disabilities is mandatory.

Similarly. how much the Government will spend on giving grants to the NGO sector for rehabilitation purposes or how much it will provide and what scheme will it have for giving incentives to private sector to encourage employment of people with disabilities, these are the things which are not mandatory, these are dependent on the availability of funds or economic development of the state or the country.

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The Act provides for 4% reservation for persons with disabilities in the government departments, central as well as state.

The 4% reservation of vacancies is not for all the 21 disabilities.

It is 1% for locomotor disabilities which cover six categories, then 1% for visually impaired people, that is blindness and low vision, 1 % for hearing impairment and 1% for intellectual disability, learning disabilities, say autism, and multiple disabilities.

For the private sector, there is no mandate for reservation.

For the private sector the Equal Opportunity Policy is the key to ensure that the people with disabilities do not get any discriminatory treatment in the matter of getting employment in the private sector.

So, that is applicable and mandatory across sectors.

And they have to register the Equal Opportunity Policy with the State commissioner or the Chief Commissioner and display it in their office or on the website.

Another very important thing is that every employer, every establishment, has to provide for reasonable accommodations.

Reasonable accommodations means creating an environment for people with disabilities to be able to work, to be able to perform at the workplace.

So that’s very important because a large number of people with disabilities are not able to continue their work or go to the workplace because of inaccessible space or whatever discrimination and all this, that’s one.

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As far as the reservation in education is concerned, it is 5% reservation of seats for persons with disabilities, that is all disabilities, in higher education, which means beyond 12th standard.

This reservation is applicable to only people who have benchmark disabilities which means 40% or more.

Then, the next important thing in the act is the National Fund for persons with disabilities and the State Fund for persons with disabilities - you can’t implement certain things unless you have the funds - so, to ensure that the provision is there, we need to create that fund.

Central Govt. has created that fund but how that fund is being utilized, how much has been utilized, somebody has to ask for that information, somebody has to audit and incidentally there is a provision in this act itself for social audit.

So all these things are the responsibility of the civil society as well.

Then when you file, as I said, about the complaints, anybody can file a complaint, not necessarily on a piece of paper, they can email and you and I can take up those issues with the State Commissioner or Chief Commissioner for persons with disabilities.

It will be a great service to the sector to protect the rights of persons with disabilities in our country.
And I tell you, our Rights of Persons with Disabilities Act in India is one of the best and I have written a case study on it, in harmonization of the domestic laws on disability, with this UNCRPD which is being published or in fact it has been published by UNS?

The biggest challenge, and more important rather, is to get those provisions implemented.

I am saying het those implemented because the duty bearers who are supposed to implement it do not do that on their own.

We all in the society, or we all are the stakeholders for implementing this, for ensuring that the people with disabilities get their rights.

So let us come together, let us work together, let us do the advocacy of the kind that is required in our country and see that provisions of this act are implemented and we become part of this journey to ensure that the people with disabilities get their right, get included in the society in true sense of the term.

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The Rights of Persons with Disabilities has a very good mechanism for monitoring and for grievance redress of people with disabilities.

At the center, we have a chief commissioner for people with disabilities, with two commissioners and in the state we have State Commissioners in every state.

Their primary role is to redress the grievance of persons with disabilities; any violation of the act or any non-implementation.

Any person, any person with disability, or anybody on behalf of a person with disability can file a complaint, can file an email to Chief Commissioner for persons with disabilities if the issue pertains to a Central Govt. Department.

If it pertains to a State Government Department, then to State Commissioner for persons with disabilities.

They have the power of the Civil Court.

They can summon, they can hold hearings, they can pass orders, they can give their recommendations.

And a very important thing in the Rights of Persons with Disabilities Act is that whether Chief Commissioner or the State Commissioner, if gives a direction or a recommendation, that must be implemented by the concerned authorities within 3 months and if they feel it is not possible to implement, they have to inform the Chief commissioner or the State Commissioner, as the case may be, within 3 months.

If they don’t, then they attract the penalty that is available in the Act.

Another very important provision in the Act is about the designation of special courses for persons with disabilities.

You see, the State Commissioner or the Chief Commissioner have a limited power of recommending.

If they don’t recommend it, then what next?

There is a provision for penalties but then if somebody doesn’t, then the state Commissioner or the Chief Commissioner cannot penalize, or cannot put a person behind bars, so for that there is a special court that will try.

That provision is there and if every state does it and some people take it, say state commissioners can take the issue to a special court, try some people, penalize them, this will set an example.

In order to be able to deliver on ground the chief commissioner and state commissioner of persons with disabilities need to be strengthened in our country.

They face a lot of challenges.

One is, how they can implement the powers, how they can use the powers that have been given in the act.

They do not have enough staff, they do not have enough funds, they do not have enough expertise, unless they have that expertise, unless they are strengthened in terms of finances, in terms of human resource, in terms of expertise and most importantly the chief commissioner and state commissioner have to be real professionals and passionate about their work.

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The penalty for any violation, non-implementation by any individual or any company is minimum Rs. 10,000 (Rupees Ten Thousand), for repetition it is Rs. 50,000 (Rupees Fifty Thousand) and it can go up to 5 lakhs.

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In Delhi, I passed an order after consulting the experts across the country on engagement or employment of special educators in a variety of areas, say intellectual disability, autism, hearing impairment, visual impairment, so on and so forth.

That every state and the central government must create posts of those special educators and train the mainstream teachers on how to teach children with varied disabilities, not one disability.

And unless they create the post they can’t.

And having one or two special educators in a block or in a school cannot help.

If you have to ensure the fundamental right to inclusive education and free and compulsory education to every child then you have to take care of the needs of every child who may have any disability.

You may have children with one disability in your school, you may have children with ten disabilities in your school, your teachers, your teaching-learning material must take care of it.

So unless you do those things - And that order was taken as a base by honorable Supreme Court and the supreme Court has passed an order in 2021 that it is applicable not only to Delhi government, Delhi schools, but across the country.

That is what I had also recommended to the Ministry of Education that they should take it up with all the states.

That is one, and another is on accessibility.

I said unless you create accessibility, whether it is school, whether it is road, transport, whatever, you cannot ensure any right to persons with disabilities in the true sense of the term.

So on that I had taken a number of issues, some of it on my own without waiting for people to complain.