Analysing the thresholds in the new Disability Act

This article by Satyam Tandon aims to shed light on the challenges the thresholds in the new Disability Act 2016 are susceptible to.

I. Introduction

The role of a good drafter is to create a body of law that is clear in its applicability and thresholds; caters to the current issues and puts forth a practical solution to them. But beyond that, a good drafter must also pre-empt future problems and have certain guidelines on how to navigate them.

This must be executed in a way that the balance between a utopian legislation and a practically enforceable legislation is maintained. Therefore, the legislature set out on a mission to make a clear, fair, and pragmatic legislation, by drafting the Right of Persons with Disabilities Act, 2016 (hereinafter referred to as the “2016 Act”); which repealed the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the “1995 Act”). While the current drafting is brilliant and incisive in its approach, this article aims to shed light on the challenges the thresholds in the new Disability Act are susceptible to.

II. Relevant Rules

1. Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

With regards to the 1995 Act, namely section 2(i) and section 2(t) are relevant. The same are mentioned below: –

“2 (i) Disability means- (I) Blindness; (ii) Low vision; (iii) Leprosy-cured; (iv) Hearing impairment; (v) Locomotor disability; (vi) Mental retardation; (vii) Mental illness;

2 (t) Person with disability means a person suffering from not less than forty per cent of any disability as certified by a medical authority;”

The benefit under section 47(1) of the 1995 Act is only extended to people falling under section 2(i), as is evident from usage of the word ‘disability’ and not the word ‘person with disability’. It is mentioned below: –

47. (1) No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service.

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits.

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

2. Right of Persons with Disabilities Act, 2016

Under the 2016 Act, the following provisions are relevant: –

2 (r) “person with benchmark disability” means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;

2 (s) “person with disability” means 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;

2 (t) “person with disability having high support needs” means a person with benchmark disability certified under clause (a) of sub-section (2) of section 58 who needs high support;

In the 2016 Act, people falling under section 2(s) are accorded the benefit under section 20. It is mentioned below: –

20. Non-discrimination in employment.–

(1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section.

(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.

(3) No promotion shall be denied to a person merely on the ground of disability.

(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:

Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(5) The appropriate Government may frame policies for posting and transfer of employees with disabilities.

III. Analysis

While the 1995 Act was not very proactive in its protection, it was at least clear with regards to its scope. It identified people with a specific disability and afforded them a kind of protection; and for the other category of people, identified as people with more than 40% disability, it afforded them a different kind of protection. However, the 2016 Act came and changed the course of the same. While the 2016 Act, even prima facie, looks confusing; there is more to it that meets the eye.

In addition to the thresholds established by the abovementioned provisions, the legislature sought to make the threshold ambiguous so that the judiciary could give benefits to those people, who actually merited the same. It was to be verified by a case to case basis, thus requiring the need for a vague threshold. The same was done via the below mentioned provisions: –

(c) “barrier” means any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disabilities in society;

(zc) “specified disability” means the disabilities as specified in the Schedule;

The effect of the abovementioned provisions is that one may be falling under section 2(s), but unless they can show their inability to fully and effectively participate in society, they are not granted the benefit of section 20. Thereby, taking away the entire scheme of the 1995 Act, wherein, merely showcasing a notified disability under 2(i) would entitle people to benefits of section 47. This argument was precisely accepted in the case of W.P.(C) 3478/2017 of the Delhi High Court. Herein, it was held in the case of a girl with a congenital defect who had only one kidney that: –

1. A plain reading of the aforesaid definition indicates that for a person to qualify as ‘a person with disability‘, he should suffer a disability – long term physical, mental, intellectual or sensory impairment – which presents an impediment in his full and effective participation in society equally with others.
2. The words “in interaction with barriers” in parenthesis are also of material significance. The word ‘barrier’ is defined under Section 2(c) of the 2016 Act as under:- “(c) “barrier” means any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disabilities in society;”
3. The impairment referred to in Section 2(s) of the 2016 Act – that is, long term physical, mental, intellectual or sensory impairment – is further qualified with the words ‘in interaction with barriers’. It is thus expressly made clear that such disability is one, which in interaction with any of the factors (such as communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural) as indicated in Section 2(c) of the 2016 Act) obstructs the person with the disability to fully and effective participate in the society.”

In view of the same, the benefit of section 20 was not granted to her as being able to fully and effectively participate in society was held to be a hindrance for not getting benefits. While the drafting as explained above, is admirably done; the onus is now on the judges to accord benefits only to people who merit the same. The threshold then becomes a double-edged sword because the drafting is such that conforming to the vague standard becomes an arbitrary exercise of power by the judge as it is easy to allot benefits to a person who does not merit it.

IV. Conclusion

By creating the abovementioned threshold, the legislature has vested a lot of confidence in the judiciary to allot benefits to only deserving people and not everybody. However, the drafting is such that it may prove to be a weapon for the usage of arbitrary power. Therefore, it is submitted that section 2(c) and 2(s) shall have to pass the test of time to showcase whether they are misused or used correctly to give litigants undue benefits or due benefits. Now, the ball is literally and figuratively in the court, of the Hon’ble Court to justify the confidence of the legislature.

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