Rights of Persons with Disabilities Act
Rights of Persons with Disabilities Act - A well meaning legislation albeit with complex terms, anomalies and aggressive penal provisions
The Rights of Persons with Disabilities Act (“the Act”) is undoubtedly a welcome and much awaited enactment. The genesis of the Act lies in the UN Convention for persons with disabilities and the Act seeks to fulfill India’s obligations under this International treaty. Curiously, it has taken the Indian Parliament more than a decade to enact this legislation and the Rules thereunder (“the Rules”) were notified only recently. However, like they say better late than never.
Highlights of the Act and Rules
Legal Obligations of Private Establishments
As mentioned above, private establishments are exempt from making job reservations for persons with disabilities. Nevertheless, every private establishment is required to observe the following statutory obligations:
Penal provisions under the Act
The Act stipulates a monetary fine of Rs 10,000 for the first contravention and for subsequent violations, fines of not less than Rs 50,000 but which may extend to Rs 5 lakhs. If the contravention is committed by a company, both the entity as well as the person responsible for the conduct of the business of the company would be deemed to be guilty of the offence and liable to punishment under the Act. Directors, officers and managers of a company would also be exposed to penal provisions under the Act if it is established that the offence was committed with their consent or is otherwise attributable to their negligence.
Failure by a company to furnish information, documents or records (as required under the provisions of the Act) has also been made an offence. The monetary fine provided for such contraventions is Rs. 25,000 in respect of each offence with an additional fine of Rs.1000 for each day of continuing failure or refusal, as the case may be.
The Act also imposes criminal liability on anyone who insults or intimidates, within public view, a disabled person with the intention of humiliating such person. This would also apply to such actions within a workplace. The punishment provided for such an offence is imprisonment for a term between 6 months to 5 years and fine. In my opinion, this provision is capable of misuse as the terms “insult” and “intimidate” are not defined and open to a very wide interpretation.
Anomalies and infirmities
Certain provisions of the Act or the Rules are inconsistent with others and also confusing. For instance, while there is no statutory obligation under the Act for private companies to hire persons with disabilities, Section 35 refers to the appropriate Government providing incentives to employers in the private sector to ensure that at least 5% of their workforce comprises of persons suffering from disabilities. Use of the term “ensure” is incongruous with the fact that it is not mandatory for private companies to hire persons with disabilities much less reserve 5% of the jobs for such purpose. Further, the confusion is compounded by the fact that no such incentives have been notified till date under the Act, the Rules or any subsequent circular published by the Central Government or the State Government.
The Rules cast the responsibility on the “head of the establishment” for ensuring that persons with disabilities are not denied their due rights and benefits. While the term “head” has not been defined under the Act, by general rules of interpretation, it would imply the managing director or the Chief Executive Officer (“CEO”) of the company. This is akin to the definition of “occupier” under the Factories Act by virtue of which the CEO or one of the designated directors is responsible for compliance with all rules and regulations under the Factories Act. Experience has repeatedly taught us how this has proved to be highly onerous to the head or the CEO of Indian Companies who are often fastened with grave civil and criminal liabilities for violations or incidents which are not attributable to them and they have no personal control over. While legislating such enactments, Parliament should provide flexibility - at least toprivate companies to determine which officers should be made and held responsible for complying with statutory obligations. The head of the organization need not be placed in the firing line for breaches and contraventions he is not responsible for. Such laws are also in contradistinction to India’s professional goal of ‘ease of doing business in India’.
Another cause of concern for private companies are the extremely harsh and oppressive penalties stipulated in the Act. Such provisions expose directors and senior officers of private companies to legal liabilities for even innocuous and inadvertent breaches - capable of gross misuse by junior level Government officers who are authorized under the Act. The sections dealing with monetary penalties under the Act are also very widely worded and fines get triggered for the most routine and inadvertent lapses. This could make private companies vulnerable to coercion and harassment at the hands of the Government officials. Providing criminal liability and imprisonment for acts of ‘insult’ or intimidation is also overly harsh and severe and prone to abuse. The Act and the Rules in their present form tend to stoke resurrection of the ‘Inspector Raj’ and deviate from the Modi Government’s philosophy of “Minimum Government and Maximum Governance”. While upholding the legal rights and interests of disabled persons, the legislature could have chosen a path more persuasive rather than the punitive.
While private companies and establishments are exempt from the legal obligation of hiring persons with disabilities, numerous statutory duties and responsibilities are cast upon them – preparation and publication of an Equal Opportunity Policy being just one of the many. Since the specter of fines and penalties on companies and liabilities on directors and senior officers loom large under the Act, Indian branches and subsidiaries of foreign companies (which tend to be more vulnerable to harassment at the hands of local authorities) would be well advised to expeditiously adopt and implement all necessary steps and measures to ensure complete and meticulous compliance with the provisions of the Act and the Rules framed thereunder.
The information contained in the articles in this publication is correct to the best of our knowledge and belief at the time of writing. The articles are intended to provide a general guide to the subject-matter and should not be treated as a substitute for specific professional advice for any particular course of action as the information may not necessarily suit your specific business and operational requirements. It is to your advantage to seek legal advice for your specific situation.
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