Rights of Persons with Disabilities Act 2016

The Rights of Persons with Disabilities Act 2016

 

Section 1.  Short title and commencement.

Section 2.  Definitions.

Section 3.  Equality and non-discrimination.

Section 4.  Women and children with disabilities.

Section 5.  Community life.

Section 6.  Protection from cruelty and inhuman treatment.

Section 7.  Protection from abuse, violence and exploitation.

Section 8.  Protection and safety.

Section 9.  Home and family.

Section 10.  Reproductive rights.

Section 11.  Accessibility in voting.

Section 12.  Access to justice.

Section 13.  Legal capacity.

Section 14.  Provision for guardianship.

Section 15.  Designation of authorities to support.

Section 16.  Duty of educational institutions.

Section 17.  Specific measures to promote and facilitate inclusive education.

Section 18.  Adult education.

Section 19.  Vocational training and self-employment.

Section 20.  Non-discrimination in employment.

Section 21.  Equal opportunity policy.

Section 22.  Maintenance of records.

Section 23.  Appointment of Grievance Redressal Officer.

Section 24.  Social security.

Section 25.  Healthcare.

Section 26.  Insurance schemes.

Section 27.  Rehabilitation.

Section 28.  Research and development.

Section 29.  Culture and recreation.

Section 30.  Sporting activities.

Section 31.  Free education for children with benchmark disabilities.

Section 32.  Reservation in higher educational institutions.

Section 33.  Identification of posts for reservation.

Section 34.  Reservation.

Section 35.  Incentives to employers in private sector.

Section 36.  Special employment exchange.

Section 37.  Special schemes and development programmes.

Section 38.  Special provisions for persons with disabilities with high support.

Section 39.  Awareness campaigns.

Section 40.  Accessibility.

Section 41.  Access to transport.

Section 42.  Access to information and communication technology.

Section 43.  Consumer goods.

Section 44.  Mandatory observance of accessibility norms.

Section 45.  Time limit for making existing infrastructure and premises accessible and action for that purpose.

Section 46.  Time limit for accessibility by service providers.

Section 47.  Human resource development.

Section 48.  Social audit.

Section 49.  Competent authority.

Section 50.  Registration.

Section 51.  Application and grant of certificate of registration.

Section 52.  Revocation of registration.

Section 53.  Appeal.

Section 54.  Act not to apply to institutions established or maintained by Central or State Government.

Section 55.  Assistance to registered institutions.

Section 56.  Guidelines for assessment of specified disabilities.

Section 57.  Designation of certifying authorities.

Section 58.  Procedure for certification.

Section 59.  Appeal against a decision of certifying authority.

Section 60.  Constitution of Central Advisory Board on Disability.

Section 61.  Terms and conditions of service of members.

Section 62.  Disqualifications.

Section 63.  Vacation of seats by Members.

Section 64.  Meetings of the Central Advisory Board on disability.

Section 65.  Functions of Central Advisory Board on disability.

Section 66.  State Advisory Board on disability.

Section 67.  Terms and conditions of service of Members.

Section 68.  Disqualification.

Section 69.  Vacation of seats.

Section 70.  Meetings of State Advisory Board on disability.

Section 71.  Functions of State Advisory Board on disability.

Section 72.  District-level Committee on disability.

Section 73.  Vacancies not to invalidate proceedings.

Section 74.  Appointment of Chief Commissioner and Commissioners.

Section 75.  Functions of Chief Commissioner.

Section 76.  Action of appropriate authorities on recommendation of Chief Commissioner.

Section 77.  Powers of Chief Commissioner.

Section 78.  Annual and special reports by Chief Commissioner.

Section 79.  Appointment of State Commissioner in States.

Section 80.  Functions of State Commissioner.

Section 81.  Action by appropriate authorities on recommendation of State Commissioner.

Section 82.  Powers of State Commissioner.

Section 83.  Annual and special reports by State Commissioner.

Section 84.  Special Court.

Section 85.  Special Public Prosecutor.

Section 86.  National Fund for persons with disabilities.

Section 87.  Accounts and audit.

Section 88.  State Fund for persons with disabilities.

Section 89.  Punishment for contravention of provisions of Act or rules or regulations made thereunder.

Section 90.  Offences by companies.

Section 91.  Punishment for fraudulently availing any benefit meant for persons with benchmark disabilities.

Section 92.  Punishment for offences of atrocities.

Section 93.  Punishment for failure to furnish information.

Section 94.  Previous sanction of appropriate Government.

Section 95.  Alternative punishments.

Section 96.  Application of other laws not barred.

Section 97.  Protection of action taken in good faith.

Section 98.  Power to remove difficulties.

Section 99.  Power to amend Schedule.

Section 100.  Power of Central Government to make rules.

Section 101.  Power of State Government to make rules.

Section 102.  Repeal and savings.

Schedule 1. THE SCHEDULE

 

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Right to Reservation in Promotions for PwDs:

The Supreme Court of India has recently held that persons with physical disabilities have the right to reservation in promotions also.

• A disabled particular person can avail the advantage of reservation for promotion even when she or he was recruited within the common class or developed the incapacity after gaining employment.

Key Points

• About the Case:
  
  • The case was based on a claim under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
    
    • This Act has been replaced with the Rights of Persons with Disabilities Act 2016.
  • The Kerala Administrative Tribunal rejected the plea of applicant stating that the rule of Recruitment in the State of Kerala, General Rules and other orders issued by the Government under Section 32 of the 1995 Act did not provide for any reservation in promotions.
  • The Kerala High Court set aside the decision of the Kerala Administrative Tribunal.
• Importance of Judgement:
  
  • The 1995 Act recognizes the right to reservation in promotion.
  • Identification of posts for reservation as per Section 32 of the 1995 Act is a prerequisite for appointment; but appointment cannot be frustrated by refusing to identify posts.
  • The absence of provision for reservation in the recruitment rules will not defeat the right of a PwD as such right flows from the legislation.
  • Reservation to promotion can be given to a PwD even if the person was not originally appointed in the PwD quota.
  • Further, the responsibility to provide equal opportunities to disabled persons does not end with giving them reservation at the time of recruitment.
  • Legislative mandate provides for equal opportunity for career progression, including promotion.
    
    • Thus, it would be negation of the legislative mandate if promotion is denied to PwD and such reservation is confined to the initial stage of induction in service.
    • This would in fact result in stagnation of the disabled in a consequential frustration.
• Right of Persons with Disabilities Act 2016:
  
  • It fulfills the obligations to the United National Convention on the Rights of Persons with Disabilities (UNCRPD), to which India is a signatory.
  • Disability has been defined based on an evolving and dynamic concept.
    
    • The types of disabilities have been increased from 7 to 21.
    • The Act added mental illness, autism, spectrum disorder, cerebral palsy, muscular dystrophy, chronic neurological conditions, speech and language disability, thalassemia, hemophilia, sickle cell disease, multiple disabilities including deaf blindness, acid attack victims and Parkinson’s disease which were largely ignored in earlier act.
    • In addition, the Government has been authorized to notify any other category of specified disability.
  • It increases the quantum of reservation for people suffering from disabilities from 3% to 4% in government jobs and from 3% to 5% in higher education institutes.
  • Every child with benchmark disability between the age group of 6 and 18 years shall have the right to free education.
    
    • Government funded educational institutions as well as the government recognized institutions will have to provide inclusive education.
  • Stress has been given to ensure accessibility in public buildings in a prescribed time frame along with the Accessible India Campaign.
  • The Chief Commissioner for Persons with Disabilities and the State Commissioners will act as regulatory bodies and Grievance Redressal agencies, monitoring implementation of the Act.
  • A separate National and State Fund will be created to provide financial support to the persons with disabilities.
• Constitutional Framework for Disabled in India:
  
  • Article 41 of the Directive Principles of State Policy (DPSP) states that State shall make effective provision for securing right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, within the limits of its economic capacity and development.
  • State Subject: The subject of ‘relief of the disabled and unemployable’ is specified in the state list of the Seventh Schedule of the constitution.

Facilities/amenities to the persons with disabilities

Department of Personnel and Training has released several OMs and orders from time to time regarding facilities / amenities for persons with disabilities.

1. Identification of jobs - Each Ministry/Department of the Government of India, their attached and subordinate offices, Central Public Sector Enterprises, Cantonment Boards etc should identify the types of jobs which could be easily performed by them specially for Group B, C and D posts where the number of jobs are more. Such persons should preferably be posted to perform such identified jobs and they be allowed to continue performing such jobs, as far as possible. If the concerned PWD officer could perform all the jobs as people without disability or could perform several types of jobs efficiently, no effort should be made to instruct them to certain types of jobs only.
2. Post recruitment and Pre - promotion training - Induction training programme for the persons with disabilities should be imparted together with the other employees. Job specific post-recruitment as well as pre-promotion training programmes are required to be organised for the persons with disabilities.
3. Providing aids/assistive devices - should assist the persons with disabilities by providing them high tech/latest technology led assistive devices (including low vision aids, hearing aids with battery), special furniture, wheel chairs (motorised if required by the employee), software scanners, computer and other hardware, etc. in accordance with their requirement, which would improve their efficiency.
4. Accessibility and barrier free environment at work place - In addition to the guidelines for modification in all public buildings including Government offices to provide easy accessibility and barrier free environment for PWDs as per the provisions of the PWD Act, all Government offices should take special steps to provide barrier free and accessible work stations to PWD employees, access from main building entrance to their work stations and access to common utility areas such as Toilets, canteens etc.
5. Preference in Govt. accommodation -  The Directorate of Estates may give preference to the persons with disabilities for providing them accessible accommodation near their place of posting and they may be preferred for allotment of ground floor accommodation.
6. Special Casual Leave - A provision of Special Casual Leave for 4 days in a calendar year has been made for the employees of Central Government with disabilities for specific requirements relating to disabilities of the official. Further, there is also a provision of 10 days Special Casual Leave in a calendar year subject to exigencies of work for the differently abled Central Government employees with disabilities for participating in Conference/Seminars/Trainings/Workshop related to disability and development to be specified by Ministry of Social Justice & Empowerment.
7. Preference in transfer/posting -  As far as possible, the persons with disabilities may be exempted from the rotational transfer policy/transfer and be allowed to continue in the same job, where they would have achieved the desired performance. Further, preference in place of posting at the time of transfer/promotion may be given to the persons with disability subject to the administrative constraints.

Concessions offered

1. Disabled person who are otherwise qualified to hold clerical posts and who are certified as being unable to type by the Medical Board or a Civil Surgeon where there is no such board, have been exempted from typing qualification.
2. Disabled persons have been granted relaxation in upper age limit up to 10 years for appointment to the clerical and subordinate cadre posts.
3. Disabled persons are exempted from payment of application and examination fee prescribed for the recruitment of clerical posts and other cadres in Public Sector Banks and Financial Institutions.
4. Disabled persons are not to be subjected to the usual medical examination by the appointing authorities but their physical fitness should be decided on the basis of the report of the Medical Boards attached to the Special Employment Exchanges for the Physically Handicapped for their recruitment to group ‘C’ and ‘D’ posts. The appointing authorities and the Medical Boards have to view the cases of persons with disabilities with utmost sympathy while considering them for appointment. Further Group ‘C’ and ‘D’ employees found medically unfit for the post he is holding and from which he is proposed to be discharged or has been discharged may, wherever practicable, be considered for another identical equivalent post for which he may be found suitable against direct recruitment quota without insisting on the condition of appointment through the employment exchange.
5. Guidelines for conducting written examination for Persons with Disabilities has been issued. To get the details, click here.
6. For assisting the disabled persons in undertaking self-employment ventures and other productive activities, loans are given by the nationalized banks by charging an interest of 5% per annum under Differential Rate of Interest scheme. To get the details, click here.
7. Ministry of Petroleum and Natural Gas has reserved seven and half percent of all types of dealership/agencies of the Public Sector Oil Companies, for disabled persons. Similarly, the Ministry has also reserved seven and half percent dealership/agencies for Defence personal who permanently and severely disabled either in war or in military action during peacetime.
8. A Government employee, who is also a care giver of disabled child has been exempted from the routine exercise of transfer/rotational transfer subject to the administrative constraints.