Legal Framework: Right to Employment and People with Disabilities in India

Individuals with disabilities are frequently treated with pity. People with disabilities are viewed as unproductive, unable to be trained, and unable to operate tools, devices, and machinery, such as computers. Because of their impairment, they are less efficient and effective in the tasks assigned to them. As a result, people with disabilities have a difficult time finding work, both in the formal job and informal job sectors. They are frequently subjected to disability-based discrimination.

However, we must remember that people with disabilities are human beings with equal rights to work or find work. The right to work is an important component of the right to life and to Right to Dignity. As a result, it is critical to comprehend what international organisations and human rights documents say about right to employment of persons with disabilities.

International Labour Organization (ILO) & People with Disabilities.

The International Labour Organization has been working to promote the right to work and labour standards. “In its 1944 recommendation, it recognised the right to work for people with disabilities, stating that "whatever the origin of disabilities, should be provided with full opportunities for rehabilitation, specialised vocational guidance, training, retraining, and employment on useful work." The recommendation emphasises that people with disabilities should be given equal opportunities, and that open up opportunities would demonstrate that people with disabilities have the ability to work. It is unfair to judge them without giving them the opportunity to work.

“The ILO also passed the Vocational Rehabilitation and Employment (Disabled Person) Convention in 1989. (C159).”

This convention encourages its member countries to adopt new international principles “to ensure equality of opportunity and treatment in all aspects of employment and community integration in both rural and urban areas”. This convention covers all types of disabilities.

It is important to note that article 4 of the convention of the convention is based on the principle of equal treatment for people with and without disabilities. Article 8 also mentions “the establishment and development of vocational rehabilitation and employment services for people with disabilities in rural and remote areas”. Article 9 of the Convention focuses “on the availability of qualified and professional staff for vocational guidance, vocational training, placement, and employment of people with disabilities”.

It is very disappointing to learn that despite being one of the most democratic countries in the world, India has yet to implement ILO Convention 159 after 75 years of independence. In order to further promote labour and employment rights of people with disabilities, the ILO issued a code of practise on managing disability in the workplace in 2001. The code of practise provides employers with very clear guidance in the following areas.

This convention encourages its member countries to adopt new international standards to ensure equality of opportunity and treatment in all aspects of employment and community integration in both rural and urban areas. This convention covers all types of disabilities.

It is important to note that article 4 of the convention is based on the principle of equal treatment for people with and without disabilities. Article 8 also mentions the establishment and development of vocational rehabilitation and employment services for people with disabilities in rural and remote areas. Article 9 places a premium on the availability of qualified and professional personnel for vocational guidance, vocational training, placement, and employment of persons with disabilities.

The code of practise provides employers with very clear guidance in the following areas.

1.Recruitment of people with disabilities 2. Promotion to disabled individuals 3. Retention of people with disabilities 4. Workplace modifications 5. Raising awareness about disability issues, on abilities of people with disabilities 6. Workplace accessibility, and 7. Adaptation to create an inclusive work environment.

In the year 2008, ILO had brought a very important declaration on Social Justice for a fair Globalization of 2008, that declaration again appealed international community to look into disability from new perspective and ensure that people with disabilities receive social justice. This has increased a role of “ILO”, there was demand that “ILO” should provide expertise in the areas; skill development, employment, promotion, non-discrimination. Then after, “ILO” has taken an initative that ensures that continuing improvement of physical accessibility of “ILO” premises, also in its proceedings, websites, publications and reports. “ILO” has also designed an action plan named Disability Inclusion Action Plan 2017, that aims to achieve the following seven results.

1.????? “Enhanced promotion of international standards relevant to persons with disabilities”.

2.????? “Disability perspective in all programming and reporting”.

3.????? “Increased attention to people with disabilities in ILO’s work with constituents and its technical cooperation”.

4.????? “Strengthen knowledge base on disability, accessibility, inclusive work environment”.

5.????? “Disability Inclusive ILO internal practices promoted”.

6.????? “Strengthened strategic cooperation within the UN system”.

7.????? “Communicating internally and externally on disability related issues”.

ILO also has urged Business communities to improve the work places for persons with disabilities, and become inclusive business.

1.????? United Nations and People with Disabilities.

United Nation introduced first document on Human Rights known as Universal Declaration on Human Rights in the year 1948. This was the first time that recognizes “everyone has the right to work, to free choice of employment, to just and favourable conditions of work and protection against employment”.? This clearly indicates that people should not be discriminated on any grounds such as race, ethnicity, sex, language, colors and disability.? Right to work is indispensable, indivisible, and integral right of Right to Life, and Right to live with dignity. Hence, people with disabilities have equal right to life and live with dignity.

Further, article 8 of International Covenant on Civil and Political Rights; Article 5 of International Convention on the Elimination of All forms of discrimination against women. Convention on Social, Economic, Culture Rights.? There was no disability specific reference in the convention and covenants of United Nations, as a result that the State Parties may not have taken appropriate measures to address rights of persons with disabilities and specifically employment related rights.

United Nations become proactive on disability related issues, in the year 1976 the General Assembly declared 1981 as the International Year of Disabled (IYDP). This was the turning moment in the disability sector. This may be the first time International Community come together and committed for development of people with disabilities. The theme of IYDP was “full participation and equality defined as the right of persons with disabilities to take part fully in the life and development of their societies, they enjoy living conditions equal to their other citizens and have equal share in improved conditions resulting from socio-economic development”. This celebration of decade played very significant role in awareness raising among State Govts, in societies, NGOs working for people with disabilities got a recognition and boost. The major learning of IYDP was that image of persons with disabilities largely depend on societal attitude, and attitude is a major barrier in creating opportunities and for participation, inclusion of persons with disabilities.

The decade was very successful that resulted in the establishment of international day of disabled person by the UN general assembly, now 3rd December every year as International day for the person with disabilities with different themes highlighting empowerment and development of people with disabilities. Another development was happened that first global network of representatives’ organisations of person with disabilities. This has motivated to from other regional, National and local organisations for person with disabilities. The clear and long message was conveyed for all developmental work, appealing for inclusive of person with disabilities. “nothing about us without us” This clearly indicates that people with disabilities are as agents and beneficiaries of all development work. This was the beginning of people recognizing of rights & participation of people with disabilities in the societies.

In the Year 1993 UN General Assembly adopted the standard rules on equalization of opportunities for person with disabilities, and special rapporteur on disabilities to the commission for social development on implementation of the standard rules.

In the year 1993, the world conference on Human Rights was organized that had recognised that human rights and freedoms granted to all in the society that includes people with disabilities, hence discrimination against them is a violation of human rights. However, core human rights treaties were not specific in addressing specific barriers, needs, concerns of people with disabilities. Therefore, the Socio, Education and Economic status of people with disabilities is low in compare to people with disabilities.

The World NGO summit on disability in Beijing was held in the year of person with disabilities was adopted the members of working group, consisting of 27 states & representatives from Major International Disabled Persons organization.

This working group took into account all contributions from regional and International Organizations human rights and disability institutions. The Group presented a first draft Before AdHoc committee. The draft covered equality, non-discrimination the right to work, social, civil, political and cultural rights. The committee also addressed disability specific issues e.g. accessibility, legal capacity, Independent living , social security and mainstreaming,

The convection and its optional protocol were both adopted by the general assembly in december 2006.

The united nations declaration “ in right of Person with Disabilities was enacted in May 2008” This was considered as other human rights treaties.

This convection has established Two mechanism:

1.????? The Committee on Rights of Disabilities.

2.????? Conference of Stated Parties.

The committee was part of human rights treats that monitor progress of implementation of UNCRPD and its optional protocol.

The conference of states parties is very unique mechanism, Gives Platform to exchange views, ideas, good Practices lessons learnt while implementing convection also guides to improve policies and programmes provides practical solutions to the barriers faced by the people with disabilities.

The UNCRPD is a bench mark document which ensures equal enjoyment of human rights and fundamental freedoms by people with disabilities on the other hands, International human rights treat provide very comprehensive framework, tools to strengthen legislation policies and inclusive planning. Key highlights of Articles covered in UNCRPD on employment & inclusive of people with disabilities.

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Right to Employment & People with Disabilities in India.

The Indian Constitution acknowledges importance of Right work and Right to employment. “Article 39 of Directive principal’s mandates to the state to ensure, “that citizens, men, and women equally, have the right to an adequate means to livelihood, equal pay for both men and women”. In additional to this article 41 requires that the “State shall, within the limits of its economic capacity and development make effective provision for securing just and human conditions of work”. These all two provisions are applicable to all citizens of India, including people with disabilities. People with disabilities should be provided human conditions, disability appropriate work environment. The Govt of India has enacted various legislation to ensure right to employment.

Employees State Insurance Act 1948

The companies are given choice for registration under employee’s state insurance act 1948 for those workers earning less than Rs 21000/- per month. Under this Act, employees state insurance corporates provide compensation to the workers in case disability is acquired due to injury at work place. It also “ensures compensation for temporary disability, the rate payable is not less than 70% of daily wages”. In the case of permanent are to periodical payments are to be, made for life. The ESIC funds can also use for rehabilitation and reemployment of workers. It also ensures employment of workers in the case of disability.

“Employees compensations act 1923 ensures protection to the employees if any disability acquired the work to related injuries, however it does not ensure right to employment to the workers who acquire disability.”

“Employee’s compensation act 1923 ensures protection to the employees if any disability acquired due to work related injuries. However, it does not ensure right to employment to the workers who acquires disability.”

·???????? “The amount of compensation depends on nature and extent of injury”.

·???????? “Age of the worker at time of accident”

·???????? “Wages of the worker at the time of accident”

This is only for those employees who acquires disability. It does not ensure equal opportunity, equal pay for work to the people with disabilities. The limitation of this act that it doesn’t ensure job guarantee or reservation for person with disabilities like other worker section of society.

In additional to this there was no specific law for people with disabilities that protect and promote rights of people with disabilities in India.? Indian Govt also actively participated in the celebration of decade for person with disabilities. The Govt of India brought a special act not only to promote and protect the rights of persons with disability but to ensure their equal participation and equal opportunities to be given to their equal opportunities to be given to the person with disabilities act was the first legal framework that had recognized rights of person with disabilities specifically.

Persons with Disabilities Act 1995

This act was very instructional in improving educational status, and employment status. This was the first time seven disabilities were legally defined and identified. “The PwD Act 1995”, recognized “Right to Education” directed to the state Govt to provide free and compulsory education to the children with disabilities in appropriate environment till of 18 years of age.”

Moreover, 3% seats were reserved for people with disabilities in Govt institutes, and Govt grant in aid institutes. To promote job opportunities, there was 3% reservation for person with disabilities in Govt jobs. To protect the job, the provisions were made in the act for acquired disability during the job.

“The PWD ACT 1995”, was trend setter in disability right movement in India. The people with disabilities have started claiming their rights for education, employment, and accessibility. The socio-economic-education status of people with disabilities have been improved.? The PwD Act 1995 has many limitations and other disabilities were not included. Many important areas as were not covered.

Most importantly it was not in line with UNCRPD. The Govt of India has taken bold initiative in protecting rights of person with disabilities to fulfil its commitment given at international by signing an UNCRPD in 2001. The govt of India has enacted a new act “Rights of Person with disabilities act 2016.” And was notified in the year 2017.

Rights of Persons with Disabilities Act 2016

The new RoPwd Act 2016 is more comprehensive covering 21 disabilities, provision for women and children with disabilities specifically legal guardianship. And accessibility, inclusive education, empowerment and skin development of person with disabilities.

The Chapter 4 of rights of person with disability act covers provision related to skill development and employment of person with disabilities. Section 29 highlights on skill development, Vocational Training, Micro credit Facilities, and Loan support to people with disabilities.

Section 20 of right of person with disability act talks about, non-discrimination in employment. Furthermore, section 20.2 gives rights to person with disability for reasonable accommodation and barrier free, conducive environment. The act is not only limited to person with disabilities who have congenital disability but it safe guards’ rights of person who doesn’t have disability, but acquired disability during the job hours.

Section 23, Section 24, ensures that there is no govt establishment to distances with or reduce in the rank and employee in acquired disability, there should not be any denial for promotion underground of disability. In addition to this, Section 21 (1) directs every establishment to notify and register equal opportunity.

As prescribed by the central government it also talks about 4% reservation of total vacancies in cedar strength in each group of post in government jobs.

Conclusion:

The UNCRPD and ROPWD Act 2016 have mandated for Right to work and accessible, inclusive work environment for people with disability in government jobs however, the act is not clear for private employers for creating inclusive work environment but the time has come to utilise potential skills knowledge of person with disability by creating appropriate job opportunities, making adaptation in work design devices, equipment, providing special software and more importantly changing the mind set of colleagues, contractor and other key stakeholders.? Now, Inclusive work environment will respect the diversity and promote brand value of the organization.