UPSC EDITORIAL ANALYSIS : Reasonable accommodations and disability rights
Kartavya Desk Staff
Source: The Hindu
Prelims: Current events of national importance(Different social service Schemes, abala, sabala, All India Women’s Conference, NFHS, Rights of persons with disabilities act.,2016, digital India, census 2011 etc )
Mains GS Paper II & III: Social empowerment, development and management of social sectors/services etc.
ARTICLE HIGHLIGHTS
• The principle of reasonable accommodations (RA) is foregrounded in the legal framework through the Rights of Persons with Disabilities (RPwD) Act, 2016
INSIGHTS ON THE ISSUE
Context
Disability:
• It is an umbrella term, covering impairments, activity limitations, and participation restrictions.
• An impairment is a problem in body function or structure;
• An activity limitation is a difficulty encountered by an individual in executing a task or action
• A participation restriction is a problem experienced by an individual in involvement in life situations.
Constitutional Frameworks for Disabled in India
• Article 41 of the Directive Principles of State Policy (DPSP) states that State shall make effective provision for securing right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, within the limits of its economic capacity and development.
• The subject of ‘relief of the disabled and unemployable’ is specified in the state list of the Seventh Schedule of the constitution.
Reasonable accommodation(RA):
• In 2.(y) of RPwD Act 2016 RAs as those adjustments which ensure that Persons with Disabilities (PwD) are able to exercise their rights equally with others.
• RAs may range from building ramps or providing assistive technologies to restructuring job requirements and modifying workplace policies.
• 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”.
#### Issues with Indian institutions:
#### ● Financial standpoint: Indian institutions are reluctant to bear the costs of complying with such anti-discrimination legislation.
#### ● 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 defense of undue burden for reasons of expediency more than for reasons of actual hardship.
#### ○ This compromises the rights of PwDs and makes them the subject of a cost-benefit analysis.
#### Need for standard institutions:
#### ● Setting a uniform legal standard to determine undue burden becomes imperative in order to prevent misuse.
#### ○ Compliance with this standard can only thrive in an ecosystem where institutions realize that in addition to fulfilling the legal mandate
#### ○ An investment in RAs can generate tangible business benefits for them.
#### ● 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
#### ○ It mandate and encourage institutions to accommodate PwDs
#### Model that can be implemented:
#### ● A state can sensitize institutions about the fact that a majority of the requested RAs can be procured at inexpensive prices.
#### ● Giving targeted incentives to such institutions for providing RAs such as deductions, subsidies or tax credits.
#### ● 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.
#### ● Incentive and cost-sharing models will redress disadvantage and stigma against PwDs.
#### ○ It will develop a policy response that increases PwD participation in institutional ecosystems and accommodates their differences.
#### ○ This model is practically implementable.
#### ○ It can be operationalised by using the provisions in the RPwD Act.
#### ● Section 86 of the Act highlights the creation of a National Fund for PwDs.
#### ○ 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.
#### ○ Rule 42 of the RPwD Rules, 2017, mandates that the corpus should be used to implement the objectives of the RPwD Act.
#### ● The corpus of the National Fund still remains underutilized.
#### ○ Ensure a continuous flow of funds towards the National Fund while optimally utilizing the funds already available therein.
#### ○ Design the National Fund as a separate line item in every annual budget and framing the following rules for the disbursement of its corpus.
Way Forward
• Whenever RAs are requested, institutions should first assess their resource deficit which precludes them from procuring the said RAs.
• 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 submit a request to the National Fund’s governing body to compensate them for the shortfall.
• Institutions can 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 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. 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.
• 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.
• 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. This safeguard will ensure that any proportionality analysis of an RA is guided by a welfare rather than a utilitarian approach. 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 Ensure that institutions satisfy a uniform legal threshold of ‘undue burden’ before they can be allowed to avoid the costs of providing RAs.
• This safeguard will ensure that any proportionality analysis of an RA is guided by a welfare rather than a utilitarian approach.
• 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
• Ensure that institutions satisfy a uniform legal threshold of ‘undue burden’ before they can be allowed to avoid the costs of providing RAs.
QUESTION FOR PRACTICE
The Rights of Persons with Disabilities Act, 2016 remains only a legal document without intense sensitisation of government functionaries and citizens regarding disability. Comment.(UPSC 2022)(200 WORDS, 10 MARKS)