COMPARATIVE ANALYSIS BETWEEN INDIA AND THE EU OF THE JURISPRUDENCE ON DISABILITY VIS A VIS NON-DISCRIMINATION. BY - ATULYA SINHA
COMPARATIVE ANALYSIS BETWEEN INDIA
AND THE EU OF THE JURISPRUDENCE ON DISABILITY VIS A VIS NON-DISCRIMINATION.
AUTHORED BY
- ATULYA SINHA
Introduction
In recent years, there has been a global emphasis on
empowering individuals. Several governments have made equality and equal
chances for all individuals their main priorities. This pattern hasn't been as
evident in the daily lives of people with disabilities. People with
disabilities have always existed, similar to other minority groups that have
encountered prejudice, separation, and discrimination in society. Disability at
work, in long-standing reality, has been disregarded as an issue by lawmakers
everywhere in the world. However, a growing understanding of rights for
disabled people and challenges has started to come into existence.
We can say that it is very difficult for a disabled
individual to participate in specific economic endeavours due to the type and
intensity of their impairment, which can separate them from people belonging to
other minority groups, including people of different races. Despite this fact,
a significant number of disabled people are capable of engaging with the
general public the same as normal people, and it is very important for the
world to highlight the skills of these people rather than focusing on their
disabilities. There are several explanations that depict the marginalization
and prejudice experienced by people dealing with disabilities. For instance, in
the workplace, discrimination and malice on the part of both managers and
workers might be the basis for it. This clarifies the fact that the stereotype
of impaired people's talents is a more reasonable explanation. Moreover, we can
further focus on the perceptions and views of society, which tell us that the
sense of discomfort that physically fit people experience while interacting
with the disabled provides an expression of indifference and unfamiliarity
rather than explicit discrimination. The section of disabled people requires
equal chances and opportunities and should not be treated as a means of charity
for reaching maximum achievement and success. This needs to be acknowledged by
society.[1]
Laws pertaining to non-discrimination and disability in the
European Union
After the racial equality directive, a second set of
legislation was adopted by the European community, which is the employment
equality directive of 2000 based on Article 13 EC (Treaty on European Union).
In contrast to the Racial Equality Directive and the Sex Discrimination
Directives, the Employment Equality Directive aimed at banning discrimination
on the basis of a variety of factors, such as age, gender identity, religion or
belief, and disability. However, this directive lacks clarification on the
specific extent of the legislation concerning disabilities and fails to provide
an explanation of disability, which is consistent with the generic perspective
adopted by community non-discrimination directives.
The two situations involving disability under the Directive
that were initially referred to the European Court of Justice are a result of
the national courts' inability to resolve the issue of who gets protection from
discrimination on the basis of disability within the Directive. Additionally,
studies conducted by the European Network of Legal Professionals concerning the
sectors of non-discrimination at the time show that various member nations have
defined the same category of people differently when it comes to their national
legal rights against discrimination based on disability, which has resulted in
various measures of safeguarding across the European Union.
Furthermore, it is essential to keep in mind the fact that the
Employment Equality Directive guarantees the implementation of adequate
arrangements for people with disabilities. Corporations are required to provide
reasonable accommodations or make reasonable modifications that satisfy the
requirements of people with disabilities, so that will make sure that these
individuals do not become an unreasonable burden on other employees. Article 5
of the Directive complies with current national disability employment
non-discrimination laws that acknowledge the importance of dealing with
workplace policies and other obstacles that hinder or eliminate disabled
people, with the goal of guaranteeing equal opportunities for all. In the
context of the ability of member states to execute the Directive, Article 5
appears to be the most difficult aspect. Also, there is misunderstanding about
what constitutes a "disproportionate burden" and
"reasonableness" in relation to adequate modifications. Consequently,
the enactment of this article has presented challenges for many member nations.
An examination of national laws indicates a range of solutions and approaches
to implementing the need to provide adequate accommodations.
Guidelines for Rehabilitation and disability in the
European Union
According to Article 7(1) of the Employment Equality
Directive, member states can preserve or implement specific actions to avoid or
make up for difficulties associated with any of the reasons mentioned by the
Directive without violating the objective of fair treatment. Furthermore, the
Directive's Article 7(2) offers greater safeguards for beneficial and positive
behaviour with regard to individuals with disabilities. It declares that when
it comes to people with disabilities, the rule of equal treatment is not a
substitute for the rights of member states in order to uphold or enact laws
protecting the well-being of employees at work or to take other actions
targeted at establishing or preserving policies or resources that preserve or
facilitate their acceptance into the workforce.
Coherence between employment for disabled people and the
Employment Equality Directive is another possibly challenging problem. There
are quotas in several EU member states, in fact, quotas are considered an
essential component of disability hiring strategies in nations like Germany and
France. The minimum standard set by the European Court of Justice (ECJ) in
Kalanke, which included challenging a favourable engagement policy that aimed
at women, was not applicable to such programs. Under those circumstances, the
Court effectively disallowed gender-based employment quotas.[2]
Protection of rights for disabled people under the UN
Convention on the rights of persons with disabilities
Despite their significant contributions to European
civilization, people with disabilities frequently encounter difficulties that
restrict them from engaging with everyday life and enjoying equal treatment.
Eliminating the barriers preventing the 80 million persons with disabilities
who live in the EU from fully and effectively participating is necessary to
realize the fundamental EU principles of respect, independence, fairness, and
engagement.
The European Union's Convention of Fundamental Rights
forbids discrimination based on a person's disability and acknowledges the
right of those who have disabilities to receive benefits that would guarantee
freedom, economic and professional acceptance, and engagement in society as a
whole. Therefore, the rights of disabled people are safeguarded by the UN
Convention on the Rights of Persons with Disabilities (CRPD).
Decisions held by the European Court of Justice with
respect to different aspects of disability
The court was directed to consider who should be classified
as disabled for the objectives of the Employment Equality Directive pertaining
to the requirements of the Directive's disability.
Here, we can take reference to a case, Chacon Navas vs.
Eurest Colectividades (2006) C-13/05, [2006] IRLR 706,
[2007] All ER (EC) 59, where Ms. Chacon Navas was unable to work for her
Spanish employer, Eurest Colectividades foe, due to her illness. After a
particular period of absence from work, she was fired, and she opposed the
decision by contending that it was violative of the Employment Equality
Directive. However, the national court addressed a pair of inquiries to the ECJ
and ruled that the proceeding would not take place further. The court
ultimately questioned whether or not the Directive's ban on discrimination based
on disability also protected an employee who had been fired for no other reason
than that she was ill. In addition, the court inquired as to whether illness
might be included in the broad range of justified reasons included by the
directive or not.
In response, the ECJ clarified what was meant to be
considered a disability for the intent of the Directive and found that illness
could not be included in the group of protected categories in order to bring it
under the jurisdiction of the directive.[3]
Structure of the Indian Constitution against discrimination
on the basis of disability
The Indian constitution assures the right to equality,
freedom of expression, including belief, faith, and thought, equality on the
basis of social standing, opportunity, and the promotion of brotherhood to all
the lawful citizens of India, regardless of their level of disability, be it
mental or physical. Article 14 of the Indian Constitution ensures that no
individual shall be deprived of equal treatment before the law protecting the
rights of the underprivileged segments of the community. Articles of the Indian
Constitution that are essential and give legal protection to everyone,
including the disabled, are Article 15(1), since it forbids the authorities
from treating any Indian citizen as disabled or discriminating against them on
the basis of their religion, race, caste, sex, or place of birth. Article 15(2)
plays an important role here since it explicitly mentions that people with
disabilities should not be treated as vulnerable groups and denied the rights
that are given to a normal person. There should not be any limitations for
disabled people with regard to their ability to visit public places or with
regard to the usage of resources that are either entirely or partially funded
by government agencies or intended for public enjoyment. According to Article
17, considering any individual as untouchable, including the disabled, will be
considered an offense as per the law. Every person, including the disabled, is
guaranteed the right to life and liberty, which is assured by Article 21. Human
trafficking of people, including the disabled, is forbidden, and acts of forced
labor such as begging are also deemed illegal and are subject to legal
penalties as per Article 23. Everyone has the right to education, even those
with disabilities. No citizen shall be excluded from enrolling in any
government-owned school or from obtaining financial assistance as per Article
29(2). Lastly, every person suffering from a disability is guaranteed the right
to move to court and exercise the rights assured by Article 32 of the Indian
Constitution.
Acts pertaining to disability in India
The Rehabilitation Council of India Act 1992 aims to
control competent instruction in rehabilitation and provides the foundation for
a Central Rehabilitation Record. The Rehabilitation Council of India Act was
enacted by the parliament and implemented in 1993, with the objective of
providing the council with legislative authority so it could execute its functions
efficiently. However, there was an amendment in the act by which the
supplementary duty of fostering research was given to the council. Here, the
council's primary responsibilities involve recognizing the credentials awarded
to rehabilitation specialists by Indian universities and confirming the
validity of credentials from organizations located outside India.
The Persons with Disabilities Act of 1995 protects the
rights and entitlements of disabled people. In addition to other rights and
entitlements, this act offers 3% reservations for disabled individuals who are
blind or have low eyesight, suffer from hearing loss, or have neurological
disorders in government educational institutions, administrative positions, and
reduction of poverty schemes. The legislation's precise goals involve
preventing and identifying disabilities promptly. When it comes to education,
more than 3% of seats are reserved for impaired students in all government-run
educational facilities. When it comes to employment, it offers a 3% reserve
policy; any handicapped positions that remain unfilled after a period of three
years will be transferred over and replaced by an unaffected individual.
There are various strategies that provide instruction and
social security, including lowering the minimum age restriction, regulating
work, and enacting laws regarding safety and health in order to guarantee that
people with disabilities are employed. Here, equal treatment also focuses on
the factual preferential distribution of land for specific purposes by
government entities.[4]
Rights of persons with
Disabilities Act, 2016
This act was passed in 2016 and was implemented on
April 19, 2017. It provided persons with disabilities equal rights and
protection in the eyes of the law, the same as a normal individual. This act
guarantees that every disabled person has the opportunity to lead a peaceful
life without any sort of bias and enjoy equal chances to succeed in life. India
has also signed UNCRPD (the Convention on the Rights of Persons with Disabilities)
with the United Nations, which integrates the rights guaranteed to disabled
people by the UN.
The legislation acknowledges a number of disability
groups and offers equal treatment and development initiatives. It ensures that
they are entitled to equality, respect, and dignity and requires the
establishment of an atmosphere that supports their full abilities. The act
places a major priority on the availability of appropriate facilities,
including enjoyment of public areas and modes of transportation.
In addition, the act supports the creation of laws
and initiatives that advance the financial and social welfare of people with
disabilities, as well as safeguards against aggression, assault, and extortion.
Additionally, it creates procedures for the implementation of the act's
privileges and the dispute resolution process, which helps to create a fairer
and more accepting community in India for people with disabilities.
Under the 2016 Rights of Persons with Disabilities
Act, government organizations are required to reserve a minimum of 4% of all
available positions for individuals with qualifying disabilities. It promotes
the growth of educational practices and highlights the offering of free
schooling for children with disabilities up to the age of 18. The statute also
emphasizes how important it is for people with disabilities to have access to
technology and adequate medical treatment. Furthermore, it encourages them to
engage in social and intellectual initiatives that will create a more welcoming
and accessible atmosphere for their overall growth and assimilation into the
general public.
The Act promotes the appointment of State
Representatives and a Chief Commissioner for Persons with Disabilities to
oversee the application of the laws and protections granted to individuals with
disabilities. It places a strong emphasis on encouraging scientific research
for the benefit of people with disabilities, involving the creation of new
technologies and aids for people with disabilities. Additionally, the Act
compels the business industry to initiate action in order to facilitate the
successful reintegration of people with disabilities into working life.
Overall, the act seeks to encourage a more diverse and sensitive mind-set
within society at large and increase knowledge of the rights of people with
disabilities by providing them with efficient assistance.[5]
Benefits and programmes for people with disabilities
The Indian government has decided to take the lead in
creating the best arrangements available to guarantee that people with
disabilities can participate fully. It has implemented several assistance
programs, plans, modifications, and resources for informative, professional,
and financial recovery within this area. They have created programs regarding
allowance for the schooling of children, a plan of coordinated schooling for
children with disabilities, assisting those with impairments in terms of
finances, providing them with travel subsidies, communications regarding
employment opportunities, concessions for conveyance, accommodations, and
family pensions for children with disabilities.
Conclusion
In conclusion, the Employment Equality Directive and the
subsequent rulings of the European Court of Justice demonstrate the European
Union's dedication to eliminating discrimination and safeguarding the rights of
persons with disabilities. Considering the obstacles to execution and
understanding, the EU regulation places a strong emphasis on the need to
promote equal treatment and make adequate modifications for people with
disabilities in places of employment. The UN Convention on the Rights of
Persons with Disabilities offers greater scope for safeguarding the rights of
the disabled people, and the European Union works on establishing an inclusive
atmosphere that respects the basic rights and dignity of individuals with
disabilities.
On the other hand, the provisions of the Indian
Constitution and the legislative acts related to disability demonstrate the
nation's dedication to defending the rights and advancing the welfare of
disabled people. Notably, the Persons with Disabilities Act of 1995, the
Rehabilitation Council of India Act, and the Rights of Persons with
Disabilities Act, 2016, overall highlight the importance of providing broad assistance,
social inclusion, and equal chances for people with disabilities in a variety
of contexts, such as social assistance, work, and educational opportunities.
The Indian government strives to promote the active engagement and
comprehensive growth of people with disabilities by implementing various
support programs and initiatives. This is done in an effort to create an
atmosphere that is both accessible and encouraging for the general well-being
of these people.
[1]
Harme-Truter, Disability:
Discrimination and Equal Opportunities: a Comparative Labour Law Study, (first
published 1998, ProQuest Dissertations)