By: Laxmi Joshi
The new disability law
India’s new disability law, The Rights of Persons with Disabilities Act, 2016 and the Rights of Persons with Disabilities Rules, 2017 was notified by the Indian Government on 19th April, 2017 and 15th June, 2017 respectively (collectively the “RPD Act”). The RPD Act is in line with the principles of the United Nations Convention on the Rights of Persons with Disabilities and repeals the erstwhile The Rights of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. While the old law was applicable only to the public sector in India, the RPD Act has for the first time brought the private sector into its ambit by providing a statutory framework to ensure equal opportunities are provided to persons with disabilities (“PwD”) in all organisations.
The RPD Act covers PwD suffering from various disabilities, including cerebral palsy, dwarfism, muscular dystrophy, acid attack victims, hard of hearing, speech and language disability, specific learning disabilities, autism spectrum disorders, chronic neurological disorders, Parkinson’s disease, blood disorders such as haemophilia, thalassemia, sickle cell anaemia, etc., and encourages all establishments to develop an amiable work environment for PwD. The RPD Act also prohibits discrimination against PwD on the ground of disability, except where it can be established that the alleged act of discrimination was a proportionate means of achieving a legitimate aim.
While most obligations under the RPD Act are imposed on the public sector, there are some obligations on private establishments as well. The definition of a private establishment under the RPD Act is quite broad and includes a company, firm, cooperative or other society, association, trust, union and factories. While it is not compulsory for private companies to hire PwD under the new law, the private sector has to comply with the following obligations under the RPD Act.
Obligations of private establishments in India
Equal Opportunity Policy: Every entity has to draft an Equal Opportunity Policy (“Policy”) which enumerates the facilities and amenities to be provided to the PwD to enable them to discharge their duties in the entity. This Policy has to be displayed on the entity’s website or at conspicuous places on the premises of the entity.
Additional Compliances: Entities having 20 or more employees have to comply with the following:
Specific Policy inclusions: The Policy should include: i) the facilities and amenities to be provided to PwD to enable them to effectively discharge their duties in the entity; ii) list of suitable posts/roles identified for PwD; iii) manner of selection of PwD for various posts, post-recruitment and pre-promotion training, preference in transfer and posting, special leave, preference in allotment of residential accommodation, if any, and other facilities to be provided to the PwD; and (iv) provisions for assistive devices, barrier-free accessibility and other facilities provided or to be provided to PwD by the entity.
Liaison Officer:A liaison officer has to be appointed to oversee the recruitment of PwD and make the necessary provisions and facilities for such employees.
Maintenance of Records: The entity has to maintain records of the number of PwD employed by it, their date of joining, name, gender, address, nature of their disability, nature of work performed by them and nature of facilities provided to them. Record retention is an important requirement, as the RPD Act empowers concerned authorities to seek records/specific information from an establishment for inspection on demand to ascertain their compliance level with the law. Further, failure to comply with such demand is an offence under the RPD Act and may result in penalty of prescribed fines.
Compliance with Accessibility Norms:Every entity has to comply with the accessibility standards relating to physical environment, transport and information and communication technology as per the standards prescribed in the RPD Act. These include barrier free built environment having elevators/ramps for the benefit of wheelchairs for PwD; ensuring the documents uploaded on the website are in Electronic Publication (ePUB) or Optical Character Reader (OCR) based PDF format. No entity shall be granted permission to build for new construction projects or certification of completion for under-construction buildings, unless it has adhered to the accessibility norms formulated by the Central Government. The existing buildings are required to adhere to these norms within 5 years from the notification of The Rights of Persons with Disabilities Rules, 2017 (i.e., by June 2022). While these compliances are primarily the responsibility of the building developer/owner of the establishment premises, it is important for entities acquiring/leasing out office space in such premises to note the related compliances.
Handling complaints of discrimination: The RPD Act also requires heads of private establishments having 20 or more employees to handle complaints of discrimination received from PwD by either taking necessary action as provided under the RPD Act or informing the complainant in writing as to how the alleged act of discrimination was a proportionate means of achieving a legitimate aim. However, the action to be taken by private establishment for handling such complaint is not prescribed under the RPD Act.
Penalty for non-compliance
Non- compliance of the above mentioned obligations (other than maintenance of records of PwD employees) will amount to an offence under the RPD Act and shall be fined with INR 10,000 for the first contravention and for any subsequent contravention with fine up to INR 50,000, which may be extended to INR 500,000. There is some ambiguity on the authority that would be responsible for implementation of the provisions of RPD Act and monitoring compliances by private establishments as the “appropriate government” (state or central) for private establishments is yet to be ascertained.
While the RPD Act does not obligate private establishments to recruit PwD, it is more on the lines of affirmative action to provide equal opportunities to PwD. The intent of the RPD Act where private establishments are concerned is to voluntarily provide facilities and amenities to ensure a disabled-friendly workplace. From that perspective, the law also requires the local authority to incentivise private establishments having the specified per cent (or more) of PwD with benchmark disability in their workforce.
The Rights of Persons with Disabilities Act, 2016 came into effect on 19th April, 2017, while the Rights of Persons with Disabilities Rules, 2017 became effective from 15th June, 2017. While there is lack of clarity on the implementation timelines for the Policy formulation, in our view, it is advisable for private establishments to take stock of their existing employment policies and required compliances under the new law, formulate suitable hiring and employment policies for PwD (if not already provided for in their employment policies) and ensure compliance of their statutory obligations as soon as possible.
 Ratified by India on 1st October, 2007
 The term “discrimination” in relation to disability is defined under the RPD Act to mean any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation.