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Abstract new legislation began in 2010 to

Abstract

 The RPwD Act, 2016 is
an attempt to bring the domestic disability legislation in line with the United
Nations Conventions on the Rights of Persons with Disabilities (UNCRPD).
After India signed and approved the
UNCRPD in 2007, the process of
enacting a new legislation began in 2010 to make it compliant with the UNCRPD.
After series of consultation meetings and drafting process, the Rights of Persons
with Disabilities Act, 2016 (RPwD Act, 2016) was passed by both the houses of
the Parliament. The UNCRPD is a visionary document
which, inter alia, is alive to the emerging trends of globalization,
liberalization, and privatization with the result that services to public are
getting transferred to the private sector. This explains why the private sector
has emerged as a major player in the scheme of things. This also explains why
the UNCRPD enjoins it upon the private entities to make services which are open
or provided to the public, accessible to persons with disabilities. The present
paper is an attempt to elaborate the role of private sector in RPwD Act, 2016.______

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 Key Words: – UNCRPD, RPwD Act, 2016, Private
Sector

INTRODUCTION

The previous legislation was
the Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995. This law was inadequate as it treated disability
as a medical model. The United Nations Conventions on the Rights of Persons
with Disabilities (UNCRPD) is more holistic. After India signed and approved
the UNCRPD in 2007, the process of enacting a new legislation in place of the
Persons with Disabilities Act, 1995 (PWD Act, 1995) began in 2010 to make it
compliant with the UNCRPD. After series of consultation meetings and drafting
process, the Rights of PwD Act, 2016 (RPwD Act, 2016) was passed by both the
houses of the Parliament. It was notified on 28th December, 2016
after receiving the presidential assent.

Where the previous Act required governments to make facilities
accessible to the extent that it was possible within their economic limits,
thus having provided an exit option for most state governments to avoid
compliance, the new Act makes it amply clear that accessibility is a must and
includes the private sector, private service providers and private
establishments within its ambit for compliance with the Act. The Act also
understands public services and public buildings as those which are used by the
public at large, including those services and buildings which belong to private
sector and not as merely those which are government owned.

At
first 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 on
10th March, 2017, did not mention the private
establishment in the chapter on equal opportunity policy. However, in the
original set of rules, that came out on 3th March, 2017, an exclusive framework for the
private sector had been included.

The UNCRPD is a
visionary document which, inter alia, is alive to the emerging trends of
globalization, liberalization and privatization with the result that services
to public are getting transferred to the private sector. This explains why the
private sector has emerged as a major player in the scheme of things. This also
explains why the UNCRPD enjoins it upon the private entities to make services
which are open or provided to the public, accessible to persons with
disabilities.

PROVISIONS
IN THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016

The
RPwD Act, 2016 is an attempt to bring the domestic disability legislation in
line with the UNCRPD. Thus it has provisions that are   rights based
rather than on the charity or social model of disability. It has elaborate
definitions 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 Employment
Exchange (Section 2(zb)). Chapter II are Rights and Entitlements and include
the right to equality and non-discrimination, (Section 4) rights against
exploitation and abuse (Section 7), access to justice (Section 12) etc. Section
5 makes specific provisions for women and children with disabilities. Special
provisions have been made in Section 24(3) (d) for schemes for livelihood for
women.

The RPwD Act unlike
its previous counterpart does not define disabilities and limit the number of
disabilities, The RPwD Act has followed the UNCRPD and defines a person with
disability (in Section 2(s) as a person with long term physical, mental,
intellectual or sensory impairment which, in interaction with barriers, hinders
his full and effective participation in society equally with others. A person
with benchmark disability (for whom there are specific provisions and
concessions in work and employment) is a person with disability who has 40% or
more of a specified disability.

While the PwD Act listed out only
seven disabilities, the RPwD Act has a Schedule with 21 disabilities including
dwarfism and acid attack victims. There is also a residuary category in Entry
Six which enables the Central Government to include other categories of
disabilities. Apart from retaining job reservations (the percentage of which
have increased) in the public, the RPwD Act of 2016 has other provisions that
are noteworthy.

ROLE OF PRIVATE SECTOR IN
RPwD ACT, 2016

Going by the
provisions of the Act, the private sector has a significant role and
obligation, particularly, in the matter of ensuring accessibility to persons
with disabilities. It also has a role in the matter of employment of persons
with disabilities. Section 35 of the RPwD Act stipulates that the
appropriate government shall incentivize private entities to ensure that five
per cent of their total workforce comprises of persons with disabilities.

In order to
understand the role of the private sector on accessibility which is fairly
comprehensive, it would be in the fitness of things to suggest that the
accessibility related provision contained in Sections 40 to 46 of the
Act be read together with some relevant definitions given in Section 2
such as those of ‘establishment’, ‘private establishment’, ‘public building’,
‘public facilities and services’, ‘reasonable accommodation’, and ‘universal
design’, etc.

Without getting into
the legal semantics, one may safely say that the role and obligations of both
the appropriate government and the private sector extends to the physical environment
including all kinds of infrastructure, transport, information and communication
technology including all technologies and systems, public services and
facilities, consumer goods, etc. They are under a legal obligation to comply
with and incorporate accessibility features in accordance with the
accessibility standards and guidelines to be notified by the central government
in consultation with the Chief Commissioner for Persons with Disabilities under
Section 40 of the Act.

Here, it would be
quite in context for us to remember that there are many privately owned public
buildings such as shopping malls; similarly, many transport
establishments/companies of different description meant for the public are
owned by private individuals. So on and so forth.

The definitions of
‘private establishment’, ‘public building’, and ‘public facilities and
services’, etc. are so all-embracing that they probably exclude only private
property meant for private use and enjoyment only and personal services from
their purview.

The Act also, inter
alia, prescribes time-limit for mandatory observance of accessibility rules.

Sections 41 to 46 are reproduced below verbatim in
this context:

41. (1) The appropriate Government shall
take suitable measures to provide,—

(a) Facilities for
persons with disabilities at bus stops, railway stations and airports
conforming to the accessibility standards relating to parking spaces, toilets,
ticketing counters and ticketing machines;

(b) Access to all
modes of transport that conform the design standards, including retrofitting
old modes of transport, wherever technically feasible and safe for persons with
disabilities, economically viable and without entailing major structural
changes in design;

(c) Accessible roads
to address mobility necessary for persons with disabilities.

(2) The appropriate Government shall
develop schemes programmes to promote the personal mobility of persons with
disabilities at affordable cost to provide for,—

(a) Incentives and
concessions;

(b) Retrofitting of
vehicles; and

(c) Personal mobility
assistance

42. The appropriate
Government shall take measures
to ensure that,—

(i) All contents
available in audio, print and electronic media are in accessible format;

(ii) Persons with
disabilities have access to electronic media by providing audio description,
sign language interpretation and close captioning;

(iii) Electronic
goods and equipment which are meant for everyday use are available in universal
design

43. The appropriate Government
shall take measures to promote development, production and distribution of
universally designed consumer products and accessories for general use for
persons with disabilities.

44. (1) No establishment shall be
granted permission to build any structure if the building plan does not adhere
to the rules formulated by the Central Government under section 40.

(2) No establishment shall be issued
a certificate of completion or allowed to take occupation of a building unless
it has adhered to the rules formulated by the Central Government.

45. (1) All existing public buildings
shall be made accessible in accordance with the rules formulated by the Central
Government within a period not exceeding five years from the date of
notification of such rules;

Provided that the
Central Government may grant extension of time to the States on a case to case
basis for adherence to this provision depending on their state of preparedness
and other related parameters;

(2) The appropriate Government and
the local authorities shall formulate and publish an action plan based on
prioritization, for providing accessibility in all their buildings and spaces
providing essential services such as all primary health centres, civil
hospitals, schools, railway stations and bus stops.

46. The service providers whether
Government or private shall provide services in accordance with the rules on
accessibility formulated by the Central Government under section 40
within a period of two years from the date of notification of such rules:

Provided that the
Central Government in consultation with the Chief Commissioner may grant
extension of time for providing certain category of services in accordance with
the said rules.

Here, for
example, one notices explicit reference to private service providers in Section
46. Likewise, one also notices reference to establishment’ in Section 44
and to ‘public buildings’ in Section 45.

CONCLUDING
REMARKS

From the above, it
follows by necessary implication that both the government and the private
sector which includes the corporate and business houses,
non-governmental/voluntary organizations, trusts, associations, etc., must work
in tandem to make the provisions of this progressive piece of legislation a
living reality on ground. The Act has several important and noteworthy aspects
which will have a great impact on inclusion for Indians with disabilities. The
new legislation recognises that accessibility is critical for inclusion and
that it is a cross-sectoral issue to be implemented by different stakeholders
across different government departments and ministries and agencies.

 

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