disability rights

 disability rights

practical model exists to diminish the institutional reluctance to accommodate persons with disabilities

principle of reasonable accommodations (RA)

1 it is foregrounded in the legal framework through the Rights of Persons with Disabilities (RPwD) Act, 2016. 

2 The Act, in 2.(y), describes RAs  - as those adjustments which ensure that Persons with Disabilities (PwD) are able to exercise their rights equally with others. 

3 These RAs may range from 

• building ramps or 
• 
  
• providing assistive technologies to restructuring job requirements and modifying workplace policies. 

4 However, public and private institutions are exempt

from implementing these RAs if they can prove that such an exercise would cause them disproportionate or “undue burden”.

The reluctance of Indian institutions

The Convention on the Rights of Persons with Disabilities (CRPD) 

charts out an illustrative set of factors which should aid an institution in objectively determining its undue burden.

 However, from a financial standpoint, Indian institutions are still reluctant to bear the costs of complying with such anti-discrimination legislation.

When institutions are made the sole cost-bearers of RAs,

they adopt efficiency-enhancing, utilitarian approaches rather than a welfare-based approach towards PwDs.

Informed by prejudices 

that PwDs are inherently less productive, or that providing RAs is always expensive, institutions tend to use the defence of undue burden for reasons of expediency more than for reasons of actual hardship. 

The Constitution of India puts the state under a positive obligation 

to create conditions wherein individuals can effectively exercise their right to equality. 

Since the rights of PwDs directly depend on how accessible institutions are to them, the state is bound to create positive ecosystems which not only mandate but also encourage institutions to accommodate PwDs.

A model that can be implemented

three  steps 

First  RAs are cheap priced  

a state can do so by sensitising institutions about the fact that a majority of the requested RAs are cheap priced 

Second, by giving targeted incentives 

to such institutions for providing RAs such as deductions, subsidies or tax credits. And, 

third, by sharing the costs of RAs 

with those remaining institutions that demonstrate actual hardship in providing RAs due to a true shortfall in their resources. 

This incentive and cost-sharing model and some initiative  

1 this will not only redress disadvantage and stigma against PwDs but also develop a policy response that increases PwD participation in institutional ecosystems and also accommodates their differences.

2 This model is also practically implementable. It can be operationalised by using the provisions in the RPwD Act.

 3 Section 86 of the Act highlights for funds  

Its corpus, inter alia, includes substantial 

• contributions from banks and
• 
  
•  financial institutions in pursuance of the judgment of the Supreme Court of India in Indian Banks’ Association, Bombay vs M/s Devkala Consultancy Service. 

3 Rule 42 of the RPwD Rules, 2017

supplements this provision by mandating that the corpus should be used to implement the objectives of the RPwD Act.

However, despite these provisions, the corpus of the National Fund still remains underutilised. 

Ensuring a welfare approach

Whenever RAs are requested

 institutions should first assess their resource deficit which precludes them from procuring the said RAs. 

This inquiry should be undertaken in light of the incentives such as tax credits or expense deductions that may have already been provided to them. Institutions can then submit a request to the National Fund’s governing body to compensate them for the shortfall.

Borrowing from the standards under the Americans with Disabilities Act, 1990, the National Fund’s governing body can also require them to state in their request, their overall financial resources, access to external funding and the lack of alternative and efficacious RAs in the market which could be procured at a lesser cost. This can eliminate any deliberate cost avoidance by institutions. 

fact-finding inquiry 

Upon receiving such a request, the designated authority under the National Fund can conduct a fact-finding inquiry to assess the veracity of the resource-deficit claims. 

 National Fund’s governing body

can consult the Office of Chief Commissioner for Persons with Disabilities to assess the proportionality of the requested RAs as contemplated under the CRPD before sanctioning funds to make up for the shortfall. 

With these approaches, the Incentive and Cost-Sharing Model can achieve a three-fold objective.

 It can diminish the reluctance of erring institutions to accommodate PwDs; provide the prospects of positive market outcomes to new and upcoming institutions and, concurrently, ensure that institutions satisfy a uniform legal threshold of ‘undue burden’ before they can be allowed to avoid the costs of providing RAs.

source the hindu