A CRITICAL ANALYSIS ON THE EMPLOYMENT LAW OF DISABLED INDIVIDUALS IN INDIA BY- ALKA VAISHNAVI
A CRITICAL ANALYSIS ON THE
EMPLOYMENT LAW OF DISABLED INDIVIDUALS IN INDIA
AUTHORED BY- ALKA VAISHNAVI
20191BAL0100
SEC- 04
The guidance, assistance and support received
throughout the writing of this Research Paper have contributed significantly to
this work, to the extent that this paper would not have been possible without
it. I would like to thank my professor and supervisor ASST-PROFESSOR- NEHA
GUPTA, school of law, Presidency university, for her guidance, patience,
encouragement and useful criticism. I thank her for the effort she took to help
me throughout my research, particularly to organize my thoughts in a logical
manner. She helped me disintegrate ideas into the most basic form and then
rebuild them in an organized fashion. I also thank her for all the
encouragement and support which helped me through this pursuit.
It
is critical to comprehend the hurdles to employment that people with
disabilities face. Despite all of the laws and programs, there is still a
sizable community of people with disabilities who are unemployed. The bulk of
individuals who are employed work as farm laborers. It's perplexing why so many
people with disabilities are still out of work. Over time, India has made
strides toward inclusive education, establishing a quota system to assure the
employment of people with disabilities. However, the results are not promising.
As a result, it is critical to comprehend the disparity between policy and
practice.
Keywords: Disabilities,
Labour, Employment, Unemployment, Education
Introduction
Disability can occur as a result of
birth, catastrophic events, or both. It is a medical or mental condition that
limits a person's movement, senses, or activities. Making their lives easier is
a major priority of society and the government. "People with disabilities
are vulnerable because of the many barriers we face: attitudinal, physical, and
financial," Stephen Hawking famously said. Addressing these impediments is
within our grasp, and we have a moral obligation to do so. Most importantly,
removing these impediments will liberate the potential of so many people who
have so much to offer the world.
Governments everywhere can no longer
overlook the hundreds of millions of people with disabilities who are denied
access to health, rehabilitation, support, education, and employment and never
get the chance to shine.”
According to a 2011 census in India,
around 2.68 million people are 'disabled' out of 121 million people, accounting
for 2.21% of the overall population. According to World Health Organization
figures, there are currently more than one billion individuals worldwide with
impairments, with around 200 million of them having severe functional
disability. These people frequently have poor health, limited economic options,
and high rates of poverty. As a result, the actions done by various local
governments and non-governmental organizations to better the lives of
individuals with disabilities through progressive laws and/or policies are
global in scope.
The United Nations Convention on the
Rights of Persons with Disabilities (the "Convention") was adopted on
December 13, 2006, during the 61st session of the United Nations General
Assembly, and went into effect on December 3, 2006. May 2008. The goal of the
Convention is to promote, defend, and ensure that people with disabilities have
access to all human rights and fundamental freedoms, as well as to promote
respect for the specific purpose of their inherent dignity. Persons with
disabilities, according to the Convention, are primarily individuals who have
long-term physical, mental, intellectual, or sensory problems that prohibit
them from participating completely and effectively in society on an equal
footing with others.
The
research posits that India's Employment Scenario of People with Disabilities.
To know more about The Employment Law for Disable
Individulas in India.
To observe Employment in Public/Government sector
To observe Employment in Private sector
Employment regulations for disabled people in India are critical in
establishing the landscape of inclusion and equal chances in the workplace.
This literature review examines significant themes and insights from existing
studies and research on disability employment regulations in India, offering
light on progress made, obstacles encountered, and prospective areas for
development. The Rights of Persons with Disabilities Act, 2016, is a watershed moment
in India's legislative framework for disabled people. Scholars such as Sharma
(2017) and Reddy (2018) emphasize the legislation's comprehensive nature,
emphasizing its role in protecting the rights of disabled individuals
throughout the employment process. Job
reservations, anti-discrimination policies, and an emphasis on reasonable
accommodations are frequently cited as beneficial measures toward fostering an
inclusive workplace.
Despite legislative provisions, Kumar (2019) and Patel et al. (2020)
report difficulties in effectively implementing employment rules for disabled
individuals. Barriers to successful integration of disabled individuals into
the workforce include attitudinal biases, a lack of understanding among
employers, and insufficient infrastructure support. These difficulties
highlight the importance of targeted interventions and public awareness
initiatives.
Gupta
and Singh's (2021) research investigates the impact of inclusive employment
policies on business culture. According to the report, organizations that
actively hire disabled people not only comply with legal demands but also
contribute to a positive work atmosphere. Inclusion efforts have been shown to
improve overall employee happiness and develop a sense of social responsibility,
harmonizing with broader corporate social responsibility objectives.
Technological
advancements have a crucial role in facilitating the employment of impaired
people. Mehra et al. (2018) and Desai (2020) do research on the impact of
assistive technologies and digital accessibility on the employment of impaired
people. The findings emphasize the significance of technology adjustments in
removing barriers and creating a level playing field in the workplace. A new
line of inquiry focuses on business strategies and best practices for
developing inclusive employment policy. Khan et al.'s (2022) research reveals
effective case studies of businesses that have gone above and beyond regulatory
compliance to actively build an inclusive work environment. These case studies
offer significant insights for other companies looking to improve their
inclusiveness efforts.
Research methodology
This
study follows a doctrinal research approach, commonly referred to as
traditional research, which encompasses analytical and descriptive methods.
Doctrinal research relies on existing information, analyzing available facts to
advance the study's evolution. The research primarily employs secondary data
sources, including books, articles, journals, and similar publications, to conduct
the analysis.
The Disability Act, 1995
It
was groundbreaking for more than one reason. The Act expressly recognized the
importance of economic empowerment for people with disabilities and included
many provisions to that end. Some of the key points were as follows:
·
Section 32: Identification
of posts that can be reserved for people with disabilities - "Appropriate
Governments shall identify posts in establishments that can be reserved for people
with disabilities; at periodical intervals not exceeding three years, review
the list of posts identified and update the list taking into account
technological developments."
·
Section 33: Reservation
of Posts- -"Every appropriate Government shall appoint in every
establishment a percentage of vacancies not less than three percent for persons
or classes of persons with disabilities, one percent of which shall be reserved
for persons suffering from disabilities."
a)
blindness or low vision
b)
hearing impairment
c)
locomotor disability or cerebral palsy,
in the post identified for each disability.
·
Section 40: Vacancies to be reserved in poverty-relief
programs - "The appropriate Governments and local authorities shall
reserve not less than 3% of all poverty-relief schemes for the benefit of
persons with disabilities."[1]
·
Section 41: Employers will be given incentives to
ensure that 5% of their workforce is made up of people with disabilities. -
"The appropriate Governments and the local authorities shall, within the
limits of their economic capacity and development, provide incentives to
employers both in public and private sectors to ensure that at least five per
cent. of their work force is composed of persons with disabilities."
·
Section 47: 1)
No establishment shall dispense with, or reduce in rank, an employee who
acquires a disability during his service.
2) No
promotion shall be denied to a person merely on the ground of his disability.
The Act also includes provisions for
non-discrimination, relaxations, affirmative action, accessibility, and other
provisions. The disability sector has long advocated for expanding job
reservation to persons with intellectual impairment, autism, multiple
disabilities, and mental illness, which the New Bill on Disability includes.
Despite a three percent reservation for employment, disability rights
organizations had to fight the authorities over and again to seek the inclusion
of individuals with disabilities in the workforce. There was frequently
confusion in the government sector over the meaning of various sections, for
which disability rights groups had to knock on the doors of the judiciary, and
in some cases, the Prime Minister. Fortunately, in the majority of situations,
the outcome was favorable. Consider this: When two disabled people who were
qualified on merit for the Indian Administrative Service (IAS) were demoted to
the Indian Information Service (IIS), NCPEDP and the Disabled Rights Group
(DRG) launched a campaign against the blatant discrimination, prompting the
then-Prime Minister to intervene and resolve the issue. As a result, more
services, including high-level positions such as IAS, IPS, and IFS, became
available to people with disabilities. Another issue involving 3% reservation,
which the administration easily interpreted as "3% of the identified
jobs," was resolved as a consequence of a Public Interest Litigation (PIL)
filed in the Delhi High Court. The Delhi High Court ordered that 3% of the
"total strength" of employees in every Government establishment must
be paid overtime.
Furthermore, in another judgment
decided in 2014, the Supreme Court determined that the 3% quota for impaired
candidates applies not just to appointments but also to departmental
promotions. The Supreme Court ruled that the Centre, States, and Union
Territories were required to adopt reservation provisions for this class in
matters of appointment, selection, direct recruitment, deputation, and
promotions. There are also international obligations owing to which the country
cannot afford to ignore the employment situation of people with disability.[2]In 2007, the Indian government
ratified the Convention on the Rights of Persons with Disabilities (CRPD). The
Convention requires member countries to promote, defend, and ensure that all
individuals with disabilities have full and equal enjoyment of all human rights
and basic freedoms, as well as to encourage respect for their inherent dignity.
This involves promoting job and professional progression possibilities for
people with disabilities in the labor market without discrimination.
Article 27 of the CRPD requires
States Parties to recognize the right of people with disabilities to work on an
equal basis with others; this includes the right to earn a living through work
freely chosen or accepted in a labor market and work environment that is open,
inclusive, and accessible to people with disabilities. And that States Parties
shall take appropriate steps, including via legislation, to guarantee and
promote the realization of the right to work, including for persons who acquire
a disability while working. With the ratification of the CRPD, all of our laws,
policies, and programs must be reviewed in light of the letter and spirit of
its provisions. Equal opportunity, non-discrimination, and reasonable
accommodations for people with disabilities should be incorporated into all
programs. As we move forward, the emphasis should be on enforcing the CRPD
mandates in both the public and private sectors. Furthermore, in September
2015, the United Nations member countries, including India, adopted the
Sustainable Development Goals, in which world leaders committed to "leave
no one behind" in development and decided to eradicate world poverty and
attain full employment by 2030. Among the 17 objectives are:
a) Goal 1: By
2030, eradicate extreme poverty for all people everywhere.
b) Goal 8: By
2030, achieve full and productive employment and decent work for all women and
men, including for young people and persons with disabilities, and equal pay
for work of equal value.
If the government intends to
accomplish complete poverty eradication and full employment by 2030, it cannot
afford to leave a sizable proportion of people with disabilities behind. The
time has come for a systematic transformation to incorporate persons with
disabilities in the nation's vision and programs.
There are several gaps in the
implementation of various initiatives that necessitate immediate attention. A
deliberate effort is necessary to identify and close these gaps. The many
hurdles to employment must be addressed, and targeted actions must be
implemented.
Employment in the Public /Government
Sector
One of the most significant
accomplishments of the Disability Act of 1995 was the expansion of job
prospects in Grade A and Grade B positions. Prior to the Act's passage, only
employment of Grade C and D were available to people with impairments. However,
the implementation falls short of expectations. NCPEDP performed an independent
assessment of the "Top 100" enterprises in India, which included
public sector companies, in 1999 to better understand the employment situation
for individuals with disabilities. The report emphasized the terrible rate of
employment in several areas. According to the report, people with disabilities
make up 0.54% of the workforce in public-sector organizations. According to a
World Bank report from 2006-07, "People with Disabilities in India: From
Commitments to Outcomes," disabled people held only 0.37% of all roles in
Ministries and Departments and 0.44% of all posts in public sector firms.
Though the most recent data is not available, other indications such as those
listed below show that the representation of individuals with disabilities is
much below the necessary 3%.[3]
1. According to some estimates, there
are more than 15,000 reserved employment opportunities in the government and
public sector for people with disabilities that have yet to be filled.
2. The number of people with impairments
placed by Employment Exchanges has progressively declined over the years. It
was 4,200 in 1999, 3700 in 2008, and barely 2100 in 2012, despite the fact that
the overall number of non-disabled people placed by the Exchanges climbed from
1,77,700 in 2000 to 3,04,900 in 2008, and 4,27,600 in 2012.
Backlog vacancy removal in mission
mode There is a significant backlog of designated positions for people with
impairments. Various estimates put the number of empty positions around
15,0006. The disability sector has filed many contempt petitions in response to
the government's slow pace in filling vacancies. The Department of Personnel
Training (DoPT) has promised the Supreme Court that all open positions will be
filled by February 2016. There is an urgent need for action to guarantee that
these backlog positions are filled in a timely way. On a quarterly basis, this
should be monitored at the highest level to guarantee that the backlog is
completely cleared.
The government
should not limit its efforts to employment reservations. It is critical that
the government works to create a barrier-free employment environment for people
with disabilities. Among the measures proposed for this purpose are:
·
Prioritize access audits of all current
workplaces, including offices and factories, owned, operated, managed, or
outsourced by government or public sector undertakings under the Accessible
India initiative. Create a policy and enforcement system to ensure that no
workplace premise is built that is inaccessible or has barriers.
·
Introduce a scheme for fair
accommodation/adjustment with a dedicated budget in each Department/Office.
Create a policy that is relevant to each Ministry/Department/Office for
providing Reasonable Accommodation/Adjustment for people with disabilities
(applicants and workers).
·
Establish a Disability Labour Cell
within the Ministry of Labour and Employment to implement and monitor all
programs affecting people with disabilities within the Ministry.
·
Introduce positions such as sign
language interpreters, career counselors, job coaches, and auditors for
physical and website access in government agencies, municipalities, and so on.
·
Identify human resource needs and
conduct short and long-term trainings - Specific trainings for placement
officials, trainers in VRCs/ITIs, etc., computer trainers, counselors, access
auditors, officers in charge of income generating and poverty alleviation
schemes, etc.[4]
[5]Creating
an inclusive and a barrier-free work environment
The government
should not limit its efforts to employment reservations. It is critical that
the government works to create a barrier-free employment environment for people
with disabilities. Some of the measures proposed are as follows:
·
Prioritize access audits of all current workplaces,
including offices and factories, owned, operated, managed, or outsourced by
government or public sector undertakings under the Accessible India initiative.
Create a policy and enforcement system to ensure that no workplace premise is
built that is inaccessible or has barriers.
·
Introduce a scheme for reasonable
accommodation/adjustment with a particular budget in each Department/Office for
the same. Create a policy for providing Reasonable Accommodation/Adjustment for
people with disabilities (applicants and workers) that is applicable to each
Ministry/Department/Office.
·
Establish a Disability Labour Cell in the Ministry of
Labour and Employment to implement and monitor all disability-related
activities in the Ministry.
·
Introduce positions such as sign language
interpreters, career counselors, job coaches, and auditors for physical and website
access in government agencies, municipalities, and so on.
·
Identify human resource needs and conduct trainings
(short and long term) - Specific trainings for placement officials, trainers in
VRCs/ITIs, etc., computer trainers, counselors, access auditors, officers in
charge of income generating and poverty alleviation schemes, etc.
Employment in the Private Sector
In the last two decades or more,
employment in the private sector has grown at a rising rate. However, the
representation of people with disabilities in the private sector workforce is
very low. The same impartial survey of "Top 100" enterprises in India
conducted by NCPEDP in 1999 (mentioned above) revealed a terrible rate of
employment across many sectors. The commercial and multinational sectors
portrayed a bleak picture, with only 0.28% and 0.05% of their whole work force
being disabled, respectively. A more recent survey conducted for NASSCOM in
2013 by Cyber Media Research Ltd. to assess the employment scenario of persons
with disabilities in the IT - BPM Industry indicated that the ratio of
employees with disabilities compared to total employees was only 0.36%! There
is no cross-industry data that is comparable. The business sector was only
referenced in Clause 41 of The Disability Act, which required the government to
announce incentives to promote employment of individuals with disabilities in
both the public and private sectors. Until 2007, this clause existed solely on
paper. During the Eleventh Plan, a Central Sector Scheme of giving one lakh
jobs per year to persons with disabilities was announced in the Union Budget
2007-08.
As an incentive, the government pays
the employer's contribution to the Employees Provident Fund and Employees State
Insurance for the first three years of employment of persons with disabilities
with monthly wages of up to Rs. 25,000/- per month under the Scheme. According
to the response received for the RTI filed by NCPEDP, the number of
beneficiaries under the Scheme by Employees State Insurance Corporation was
only 457 as of 28th February 2011 and 186 by Employee Provident Fund
Organization as of 30th December 2010. Clearly, the Scheme did not produce the
expected results. It's also worth noting that, in the last decade or so, the
private sector has begun actively hiring persons with impairments. It is
certainly far from the ideal situation of equitable involvement of people with
disabilities in the sector. Certain service industries, such as information
technology (IT), retail, and hospitality, have been aggressive in recruiting
large people with disabilities. Few significant organizations, such as Wipro,
Mphasis, and IBM, hire people from various disability groups to undertake a
variety of tasks. Organizations such as EMC and SAP offer internship chances to
those with significant support needs such as autism, deaf-blindness, multiple
disabilities, and so on. Companies like Lemon Tree and JW Marriott have hired
people with various disabilities, including those with intellectual disability.
Companies such as Sun-ITES, Lemon Tree Hotels, and Vindhya e-infomedia
distinguish themselves as having a considerable (10%+) workforce comprised of
people with disabilities.[6]The
above spree for inclusion, on the other hand, is best classified as an outlier.
The endeavor has been limited to a few organizations and has primarily focused
on metropolitan locations such as Bengaluru, Pune, Delhi NCR, Mumbai, and
others. Many multinational corporations have disability policies in place in
their home countries, yet there often flagrant neglect in India. While many
businesses invest in CSR, gender diversity, and the environment, disability
remains an overlooked topic. Many private-sector organizations have been
uninterested in recruiting people with impairments. The manufacturing sector,
which contributes significantly to the nation's GDP and creates significant
jobs, has not been proactive in hiring people with disabilities. Confederation
of Indian Industry (CII), Federation of Indian Chambers of Commerce and
Industry (FICCI), Associated Chambers of Commerce & Industry of India
(ASSOCHAM), National Association of Software and Services Companies (NASSCOM),
and PHD Chamber of Commerce & Industry (PHDCCI) have also been ineffective
in pressuring their member organizations to hire people with disabilities. All
of these chambers/associations have done programs specifically for people with
disabilities, such as job fairs, workshops, and trainings. The effect has been
minor. These apex entities have failed to include disability into their work;
their infrastructure, websites, policies, and programs, including affirmative
action and skill development initiatives, are mainly inaccessible to people
with disabilities. The reality is that chambers/associations have been unable
to persuade their member corporations to implement a non-discrimination policy
toward people with disabilities. People with disabilities continue to face
discrimination - offices and public places (including showrooms, etc.) remain
inaccessible; people with disabilities are not even called for interviews if
they mention disability on their resume; students with disabilities are
excluded from campus placements; some are rejected after medical tests because
of their disability; and many face harassment in their day-to-day functioning
and during promotions. There is no mechanism for monitoring or remedy. Some of
the actions that can be made to ameliorate the situation are as follows:
·
The sector must establish a zero tolerance policy for
any form of handicap discrimination (direct or indirect). Companies must
implement a strict non-discrimination policy and have a documented ombudsman
system with an impartial disability expert member on the redressal board. There
should also be a redressal board established by industry associations such as
CII, NASSCOM, and others to resolve any escalated complaints of handicap
discrimination.
·
The business sector must likewise move away from the
idea of just recruiting persons with specific sorts of disabilities for
specific positions. They should abandon their experimental and exclusive
approach in favor of fostering a more inclusive work atmosphere.
·
The government should implement a tax rebate/incentive
plan to support workplace accommodations/adjustments (such as assistive
technologies, devices, personal attendants, job coach wages, transportation,
salary reimbursement, on-the-job training, and so on).
·
The government should include an eligibility
requirement in its procurement policy requiring enterprises that apply for
Government Orders/Contracts to have done significant work in the field of
disability inclusion. All tender applications should include a part requiring
applicants to detail their work in recruiting people with disabilities.[7]
·
The Bill on the Rights of Persons with Disabilities
should include provisions for private sector organizations, such as NGOs and
educational institutions, to ensure nondiscrimination, reasonable
accommodation, and accessibility. It could include clear implementation
guidelines, such as requiring all organizations to have a stated Equal
Opportunity Policy, including a supplier diversity policy; affirmative action
for people with disabilities and an Implementation Plan; establishing a Council
at the highest level to address issues of discrimination/harassment within the
organization; and establishing a clear reporting mechanism. Entrepreneurship,
Self-Employment, and Micro Enterprise Development For many people in India,
self-employment has been a significant choice.[8]
Conclusion
Even
after 68 years of freedom, 20 years of The Disability Act, and eight years of
ratification of the CRPD, the talent, talents, and potential of individuals
with disabilities remain largely untapped, underutilized, and underdeveloped.
Persons with disabilities have lower education and employment rates than
non-disabled people. Though it has been clearly proven that disability is a
development and human rights issue, this mindset has yet to permeate many of
the country's decision makers and implementers, both in the public and
commercial sectors.
Many
facets of the country's growth continue to exclude people with disabilities. It
is either forgotten or introduced as a last-minute addition.
As
a result, people aged 17 with disabilities continue to be excluded. As we move
closer to 2030, it is critical that persons with disabilities are not left
behind. It is critical to view people with disabilities as human resources who
can contribute to and participate in nation building.
This
investigation brought to light a number of important topics. We discovered a
significant lack of tolerance for difference and prejudice in the workplace. We
also discovered that accessibility and reasonable accommodation are obstacles
for employees with impairments, particularly those working in the private
formal and informal economies. Surprisingly, players in the public sector, such
as banks, had little to no difficulty with accessibility. Female disabled
people appear to face more hostile discrimination than male disabled people.
Income security and job security have also emerged as major concerns.
According
to Census 2011, there were 26,810,557 people with disabilities in India.
Women
account for around 44% of this total. Between 2001 and 2011, the country's
disabled population climbed by 22.4%. In 2011, the number of people with
disabilities increased to 26.8 million, with 15 million men and 11.8 million
women. There are more disabled people in rural areas than in metropolitan
areas. As a result, the time has come to promote a higher quality of life, full
engagement, and inclusion of individuals with disabilities as an untapped pool
of laborers who can significantly contribute to the economy and labor market.
There
is some progress. As evidenced by the preceding decisions, and particularly by
the Supreme Court's decision in Union of India v. National Federation of the
Blind in October 2013, judicial opinions appear to be shifting in a positive
direction. We also have faith in the introduction of the RPD Act, 2016. Now we
must wait and watch what happens, as well as continue to monitor its
implementation and impact.
References
·
“Disabled Population up by 22.4% in
2001-2011”, The Times of India, December 29,2013.
·
Anuradha Mohit, Meera Pillai and Pratiti
Rungta: Rights of the Disabled, New Delhi: National Human Rights Commission,
2006.
·
Disability Manual, India: New Delhi:
National Human Rights Commission, First Revised Edition, 2011.
·
Mahendra P. Singh [Ed.]: V N Shukla’s
Constitution of India, Lucknow: Eastern Book Company, 12th Edition, 2012.
·
Rumi Ahmed: Employment Security for
Persons with Disability in India – A Critical Legal Understanding Social Action
Vol. 63, October-December 2013.
·
People with disabilities in India: From
Commitments to Outcomes, World Bank: Human Development Unit, South Asia Region,
2007.
·
Universal's Encyclopaedia of Important
Central Acts and Rules (20 Volumes), Vol.16, Delhi Universal Law Publishing
Company Private Limited, 2005 (rp.)
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Universal's Encyclopaedia of Important
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Company Private Limited, 2005 (rp.),
[1]http://indianexpress.com/article/india/india-others/3-quota-must-for-disabled-in-all-govt-jobsincluding-ias-supreme-court/
[3] As shared by Mr. Basavaraju, GRAM
at a conference organized by DNA and CII on Employment in Bangalore, 2015
[4] Ranjita Dawn: Challenges in the
Employment of Disabled Persons, Economic and Political Weekly, September 8,
2012, Vol. XLVII, No. 36, pp. 20-22, at p. 20
[5] http://www.dnis.org/Employment.pdf
[6] Website of NREGA,
http://mnregaweb4.nic.in/netnrega/all_lvl_details_dashboard_new.aspx
[7] Employment in Bangalore, 2015
Numbers do not matter in case of PwD living in rural
areas, Study by GRAM, http://graam.org.in/numbers-do-not-matter-case-pwd-living-rural-areas
[8] National Federation for the Blind
v. State of Maharashtra, 2005 (1) Bom CR 740 (Bom HC)
Tami Taniang v.
State of Arunachal Pradesh, PIL No. 11 of 2007 (Gua HC)