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Basic Primer on the Persons with Disabilities

Source: www.anevagi.comAuthor: c.bikramPublished on: August 21, 2014

Basic Primer on the Personswith Disabilities (Equal

Opportunities, Protection of

Rights And Full

Participation) Act, 1995

The Persons with Disabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995 (all short the Act) is an affirmative action legislation aimed atleveling the field of opportunities for persons with disabilities as defined in the Act vis--visthose that do not suffer from disabilities. As observed by the Hon'ble Supreme Court of Indiain Kunal Singh v. Union of India[2], the need for a comprehensive legislation forsafeguarding the rights of persons with disabilities, for enabling them to enjoy equalopportunities and to help them to fully participate in national life was felt for a long time, andthe 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 andPacific Decade of Disabled Persons 1993 2002, convened by the Economic and SocialCommission 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 FullParticipation and Equality of People with Disabilities in the Asian and Pacific Region and, asa signatory, the need was felt in India to enact a suitable legislation to provide for severalfactors 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 thedisabled 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, hearingimpairment, locomotor disability, mental retardation, mental illness. Most of the aforesaidterms 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 StateAct, or an authority or a body owned or controlled or aided by the Government or a localauthority 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 compliancewith the Act lies only with the Government and State entities. In the humble opinion of theAuthor, this would mean that entities that come within the definition and meaning of State

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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 notreceiving substantial funding from the Government, etc. However, on account of the wordsmeans a corporation established by or under a Central, Provincial or State Act in thedefinition of establishment, there has been some speculation that the Act is meant to allinclusive 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 withstatutory 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 heldas under:

We agree that the socio-economic legislations should be interpreted liberally. It is also truethat Courts should adopt different yardsticks and measures for interpreting socio-economicstatutes, as compared to penal statutes, and taxing statutes. But a caveat. The courts cannotobviously 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 againstthe provisions of the statute itself or against any constitutional limitations. In this case, thereis a clear indication in the statute, that the benefit is intended to be restricted to a particularclass of employees, that is employees of enumerated establishments (which fall within thescope of state under Article 12). Express limitations placed by the socio-economic statutecan not be ignored, so as to include in its application, those who are clearly excluded by suchstatute itself. We should not lose sight of the fact that the words "corporation established byor under a Central, Provincial or State Act" is a term used in several enactments, intended toconvey a standard meaning. It is not a term which has any special significance or meaning inthe 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-statutorycompanies. Any interpretation of the said term, to include private sector, will not onlyamount to overruling the clear enunciation in Dhanoa[3] which has held the field for nearlythree decades, but more importantly lead to the erasure of the distinction maintained in theConstitution between statutory corporations which are state and non-statutory bodies andcorporations, for purposes of enforcement of fundamental rights. The interpretation put forth

by the employee would make employees of all companies, public servants, amenable topunishment under the provisions of Indian Penal Code and Prevention of Corruption Act andwould also result in all non-statutory companies and private sector companies being includedin 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 forthe following:

Application for and issue of disability certificates The composition and procedure of certain bodies under the Act such as the CentralCoordination Committee, the Central Executive Committee

Eligibility and certain service conditions of the Chief Commissioner for persons withdisabilities

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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 socialintegration of persons with disabilities into the fabric of society.In the humble opinion of theAuthor, the Act itself is broad enough to have far reaching and positive consequencestowards 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 andeffective 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 forpersons with disabilities to employment exchanges, provide that the same must beimplemented 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 theprovisions of the Act surely imply immediate implementation for the most part, but withriders such as that the Appropriate Government and local authorities must take variousactions 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, 1995must ultimately be ensured through democratic means. Executive inaction on the part of theGovernments and local authorities have often and effectively been dealt with by our judicialsystem, with the Supreme Court of India and the High Courts of the States often forcing theExecutive to take urgent and immediate steps to implement laws. While definite progress hasno doubt been made in this manner towards implementing the Act, there are indeed miles togo before the collective conscience of society can sleep in peace, secure in the knowledgethat 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

Theauthorcanbereachedat:c.bikram@legalserviceindia.com

This article has been AwardedCertificate of Excellence for OriginalLegal Research work by our Penal ofJudges