The directive for the States to make provisions for securing the right to work for Persons with Disabilities (PwDs) is enshrined in Article 41 of the Constitution of India.In line with this, section 41 of the now repealed Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provided incentives to employers in both public and private sectors to ensure that at least 5% of their work force is composed of PwDs. Section 35 of the Rights of Persons with Disabilities Act, 2016 further incentivized the private sector to ensure that at least 5% of their work force is made up of PwDs.
Schemes promoting participation of PwDs in the Private Sector
In this context, the Ministry of Social Justice and Empowerment, enacted the scheme for employers employing PwDs in the Private Sector in 2008. In addition, the National Policy for Persons with Disabilities, which was adopted in 2006 also laid down measures to provide incentives and tax exemptions etc., encouraging employment of PwDs in private sector.
Corporate Social Responsibility
Expanding the scope of the obligation on the private sector to incentivise the employment of PwDs, the development of vocational skills among PwDs as part of Corporate Social Responsibility (CSR) initiatives has been promoted. However, Section ii of Schedule VII of the Companies Act adopts a narrow perspective on promoting PwDs’ employment in the private sector. While the provision does not directly mandate PwDs’ employment, it encourages the private sector to foster skills that could enhance PwDs‘ job prospects in the market. This approach confines the private sector’s obligation without effectively strengthening the creation of reasonable accommodations and viable opportunities to facilitate their transition into the workforce.
ESG and Disability
In the recent past, private sector in India has been actively bringing PwD employees to the forefront under the folds of the Diversity and Inclusion subset of ESG. Incorporating inclusivity into the business from a disability perspective is crucial to sustain diversity and weave innovative decision-making processes in the system.
Gaps in Implementation
Given that the government and the private sector have taken multiple strides to assimilate PwDs into the private sector workforce, glaring gaps still persist in the implementation of such laws and policies. As per the 2011 census, 2.68 crore were classified as PwDs which was 2.21% of the total population at the time. While the classification on the basis of gender, type of disability, education, etc. is provided, the statistics do not chart a clear picture on the division of PwDs employed in formal and informal sectors. This gap becomes glaring when the percentage of target population for the enforcement of the schemes and laws remain uncertain. In the given context, the decision of the government to not include disability related question in the sixth round of National Family Health Survey exacerbates this ambiguity.
It is worth noting that although Section 21 of the 2016 Act mandates organizations to implement equal opportunity policies, schemes aimed at enhancing private sector employment fail to address the inclusion of reasonable accommodations. An equal opportunity policy without the creation of reasonable accommodations at such organisations would defy the purpose of fostering diversity in terms of disability in the workforce.
Being one of the first signatories of the UNCRPD, India has walked many miles to address the rights of its PwDs population. However, an effective implementation of the law to advance and strengthen the participation of PwDs in the private sector, must call for a comprehensive body of legal and regulatory provisions that work in tandem with each other.
In Article 41 of the Constitution of India states that:
“State shall make effective provision for securing the 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.”
Between 1993-2002 the Economic and Social Commission for Asian and Pacific Region held a meeting pertaining to the “Asian and Pacific Decade of the Disabled Persons” in Beijing. During this meeting, a proclamation was adopted to ensure the full participation and equality of people with disabilities. India was one of the signatories to this proclamation.
Pursuant to the abovementioned proclamation, the Coordination and Executive Committees of India introduced the Bill specifically for the persons with disability, addressing their right to education, employment and vocational training, reservations in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc.
Thereafter, for the effective implementation of the Bill various appointments on various posts were done at both Central and State level. Subsequently in 1996 the bill was passed by both the houses of the Parliament and further received the assent of the President and implemented as Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
In 2014, the Rights of Persons with Disabilities Bill was introduced by standing committee in Rajya Sabha and further passed by both the houses and received assent of the President, replacing the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Provisions for Disabled Quotas in the Private Sector
According to Section 35 [1]of the Rights of Persons with Disabilities, 2016 states that
the appropriate government and the local authorities to, within the limit of their economic capacity and development, provide incentives to the employer in the private sector to ensure that at least 5% of their workforce is composed of persons with the benchmark disability.
It can be concluded that in the private sector there are designated quotas of at least 5% of their workforce, composed of people with disabilities of 40% or more. The Indian government provides disability certificates to people deemed to have disabilities of more than 40%, which allows them to avail of certain benefits and concessions in private sector for the disabled individuals.
Can disabled quotas be used interchangeably across the globe?
No, disabled quotas cannot be used interchangeably across the globe. The implementation and essentials of disability quotas vary significantly from one country to another country, depending upon every country’s laws, regulations towards disability. Some countries have mandated quotas like India does, while others rely on voluntary measures or have different approaches to promoting employment for disabled persons. Consequently, the applicability and effectiveness of such quotas are specific to various subjects and tailored to each country’s unique legal and social framework.
[1]https://www.indiacode.nic.in/bitstream/123456789/15939/1/the_rights_of_persons_with_disabilities_act%2C_2016.pdf
