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law ArticlesRight To Employment Of Disables: A Law Merely On Paper

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Priya Bansal - (IV Yr.)National Law Institute University (Bhopal)

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Introduction
Human rights are the fundamental or basic rights, which should not be taken away by any individual or government. They comprise within its gamut the right to life and liberty, equality, right to freedom of speech and expression and movement, trade, profession or business freedom of movement, thought, conscience and religion, right to work, right to education etc., these rights cover not only civil or political but also economic, social and cultural dimensions. They aim at promoting social progress and better standards of life in larger freedom.

The human rights movement has boldly and categorically shifted the attention of policy makers from the mere provision of charitable services to vigorously protecting their basic right to dignity and self-respect. In the new scenario, the disabled are viewed as individuals with a wide range of abilities and each one of them willing and capable to utilise his/her potential and talents. Society, on the other hand, is seen as the real cause of the misery of people with disabilities since it continues to put numerous barriers as expressed in education, employment, architecture, transport, health and dozens of other activities.
Advances in medical and surgical sciences, breakthroughs in technology, greater understanding of the causes of disability and improved methods of coping with it, increasing consciousness of civil rights and the emergence of people with disabilities displaying skills and knowledge to improve their own lives, are some of the factors which have contributed to the new thinking that the disabled deserve a dignified status in society on the same terms as the non-disabled.

Human rights are a matter of international concern and their advocates and guardians do exercise constructive influence across geographical and cultural boundaries. An increasing number of countries are opting for laws favourable to disabled people. Legislation would make direct/indirect discrimination against the disabled punishable. Legislation establishes a coherent and comprehensive framework for the promotion of just and fair policies and their effective implementation. It creates formal procedures which hasten the process of full and total integration of the disabled in the society. Disabled people are a vast minority group, which has been subjected to direct and indirect discrimination for centuries in most countries of the world, including India.

In a country like India the numbers of the disabled are so large, their problems so complex, available resources so scarce and social attitudes so damaging, it is only legislation which can eventually bring about a substantial change in a uniform manner. Although legislation cannot alone radically change the fabric of a society in a short span of time, it can nevertheless, increase accessibility of the disabled to education and employment, to public buildings and shopping centers, to means of transport and communication. The impact of well-directed legislation in the long run would be profound and liberating.

In order to ensure better protection of human rights of the disabled, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was promulgated during the year 1995 in order to give effect to the proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and pacific Region. Chapter 6 of the Act deals with employment and contains various incidental provisions related thereto. But with the enactment, implementation is equally necessary. This paper deals with the issue implementation and enforcement of this Act.

The relevant laws to the issue are as follows: -
International Law
International Covenant On Economic, Social And Cultural Rights (ICESCR)
The following provisions of the covenants are relevant: -
1) Art.2 - Right to non-discrimination.
2) Art.6 - Right to work.
3) Art.7 - Right to just and favourable conditions of work.
4) Art. 9 - Right to social security.
5) Art.11- Right to adequate standard of living.

Of particular importance in the acquiring of economic security is the ability to engage in gainful employment on the basis of equality with others. Articles 6 and 7 of the ICESCR guarantee the right to work. In addition, these provision need to be read in conjunction with the guarantee of non-discrimination in the enjoyment of rights contained in Art.2 (2). In addition to the ICESCR, there are other important conventions relating to the right of persons with disability to work. These include the ILO Convention on Discrimination in Occupation and Employment 1958 (No. 111), which was ratified by India on 3 June 1960, and the ILO Convention on Vocational Rehabilitation and Employment (Disabled Persons) 1983 (No 159, not ratified by India).
For this purpose general comment No.5 is important and relevant along with the standard rules.

International Covenant On Civil And Political Rights (ICCPR)
The following articles of the covenants are relevant from the point of view of the employment rights of the disabled:
i. Art.6 - Right to life.
ii. Art.7 -Freedom from torture, cruel, inhuman or degrading treatment and punishment.
iii. Art.9 - Right to liberty and security of persons.
iv. Arts. 2, 3, 26 - Right to equality and the right to take part in public affairs.

Domestic Law
Constitutional Provisions And Human Rights

While the fundamental rights stress on the existing rights, the Directive Principles provide the dynamic movement towards the goal of providing Human Rights for all. Right to employment under Indian Constitution can be considered in the light of relevant provisions of part III and IV of the Constitution and in particular the following:-
# Equality before the law and equal protection of laws within India (Art14).
# Both the expressions equality before law and equal protection of the law have been used in Universal Declaration of Human Rights (Art.7).
# Equality of opportunity in the matters of public employment (Art.16).
# Living wage etc. for workers (Art.43).
# Art.41 directs the State to ensure the people within the limit of it economic capacity and development, right to work, to education and to public assistance in certain cases.

Right To Employment Under The Persons With Disabilities (Equal Opportunity Protection Of Rights And Full Participation) Act, 1995 And Role Of Judiciary
Chapter - VI titled as Employment, Chapter - VII titled as Affirmative Action and Chapter - VIII titled as Non-Discrimination of this Act are relevant for the purposes of grant and protection of Economic Rights of persons with disabilities. Broadly, these chapters have incorporated the following strategy to empower persons with disabilities to enjoy Economic Rights:
a) Section 32 of Chapter V provides that the appropriate government shall identify posts in the establishments which can be reserved for the persons with disabilities and also review at periodical intervals the list of posts identify for its updating.

b) Extension of 3% reservation in favour of persons with disabilities of which 1% each shall be reserved for the persons suffering from blindness or low vision, hearing impairment, loco motor disability or cerebral palsy, in all posts every establishment belonging to appropriate government (both central and state governments) and local authorities (Section 33);

c) Section 36 also provides for carry forward of unfilled vacancies to the succeeding recruitment year and if in the succeeding year also suitable persons with disability is not aware it may be filled by interchange among the three categories. If however there is no person with disability available for the post in that year, the employer shall fill up the vacancies by appointment of a person other than a disabled person.

d) Reservation of vacancies/benefits in poverty alleviation schemes (Section 40);

e) Provision of incentives to employers both in public and private sectors for ensuring that at least 5% of their workforce is composed of persons with disabilities (Section 41);

f) Provision for giving aids and appliances to persons with disabilities by appropriate Government (Section 42);

g) Scheme for preferential allotment of land at concessional rates to persons with disabilities for setting up business/factories etc. (Section 43);

h) Provision of accessibility features on roads to enable free movement of persons with disabilities (Section 45);

i) Provision for making the built environment accessible and useable by persons with disabilities (Section 46);

j) Protection of service of an employee in the government establishment who acquires disability during service (Section 47(i));

k) Non-discrimination in the matter of promotion on the ground of disability (Section 47(ii)).

Section 47 of the provides that no establishment shall dispense with or reduce in rank and employee who acquires a disability during his service.

In Kunal Singh v. Union of India and Anr. , the Apex Court considered the issue as to whether the services of an employee who incurs any disability during such service could be dispensed with one on the ground of such disability. The court was considering the case of the appellant, a constable for 17 years in Special Servive Bureau of Union of India suffering amputation of a leg on account of an injury caused while on the duty. The medical Board had declared him to be permanently incapacitated and therefore appellant was invalidated from service. His petition before the High Court challenging he action of the government and seeking relief by way of alternative duty, which he could discharge, was dismissed by the High Court. Allowing the appeal the Apex Court held that merely because the appellant got invalidity pension is no ground to deny mandatory protection made available under the Act. Once he was found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits and if that was not possible he could be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation. Order affirming the termination of the services was therefore set aside and Union directed to give relief in terms of section 47 of the Act.

Section 47 again came into action in the authority of Union of India (UOI) v. Sanjay Kumar Jain , where the respondent while working in Group-C post of the Railways applied for promotion to Group-B post. He qualified in the written test and was directed to undergo medical examination as per the rules of the Indian Railway Establishment Manual (in short the 'Establishment Manual'). Passing of the medical test is a requirement before the candidate is called for viva voce test. He was considered unfit as he may become visually handicapped in future. The respondent was therefore not called for viva voce test. He challenged before the CAT the order whereby it was indicated that he was not to be called for viva voce test as he had been declared medically unfit. It was held that while considering the case of the respondent sub-sections (1) and (2) of section 47 were not kept in view. Which provide for protection of service of an employee in the government establishment who acquires disability during service and non-discrimination in the matter of promotion on the ground of disability. CAT also took note of the fact that a new paragraph 189A was introduced in the Establishment Manual which clearly laid down that there shall not be discrimination in the matter of promotion merely on the ground of physical disability. When in appeal it was contended that sub-section (2) Section 47 of the Act permits the appropriate Government to exclude by notification any establishment from the provisions of the section. It was said that it only permits the appropriate Government to specify by notification any establishment which may be exempted from the provisions of section 47. The notification can be issued when the appropriate Government having regard to the type of the work carried on in any establishments thinks it appropriate to exempt such establishment. The proviso to sub-section (2) thereof does not operate in the absence of the notification.

Giving a wider meaning to the term disability, the Delhi High Court has ruled that a person suffering from heart ailment is entitled to the benefits of the Disabilities Act for the purpose of employment in the government.

In the light of ruling pronounced by the Hon’ble Supreme Court on 23/12/96 in the case of S.S. Tiwari v. Union of India, civil writ petition 585/94, a ceiling of 5% discretionary/out of turn allotment of the total number of vacancies occurring in each type of houses in a year has been fixed. These include allotment of Government accommodation on medical grounds, security grounds as well as functional grounds within this overall ceiling of 5%.

There are other provisions to ensure overall protection of the disables such as CCS (Pension) Rules, 1972, under which Rule 38 provides for grant of invalid pension to a government servant who retire from service on account of any bodily or mental infirmity which permanently incapacitates him form the service.

In accordance with the provision of rule 54(6) of the Pension Rules, if the son or daughter of the government servant is suffering from any disorder of disability as renders him or her unable to earn a living after attaining the age of twenty-five years, the family pension shall be payable to such son or daughter for life. However, in case such son or daughter is one among two or more children of the government servant the family pension shall be initially payable to the minor children in the order of their birth and the younger of them will not be eligible for the family pension unless the elder next above him/her has become illegible for the grant of family pension. Thus minor children have a prior claim for family pension till they attain the age of 25 years and son/daughter suffering from disability, the family pension shall be paid in the order of their birth and the younger will get the family pension only after the elder next above him/her ceases to be eligible.

The CCS (Leave) Rules,1972 under rule 44 provide for special disabilities leave for injury intentionally inflicted. The rule provides that the competent authority may grant special disability leave to a government servant, whether permanent or temporary, who is disabled by injury intentionally inflicted or caused in, or in consequence of the due performance of his official duties or in consequence is of his official position.

How Far The Act Has Been Implemented?
Though the Act has been enacted and judiciary is playing an important role but for the full implementation of every law there has to be social consciousness and awareness in the masses. Example can be taken form the recent news which appeared in ‘Central Chronicle’ where Prime Minister Manmohan Singh has issued orders to reserve 3 per cent of the IAS jobs in CSE 2005-06 for persons with disability. As per the orders, 3 of the 85 posts for IAS this year will now go to persons with disabilities such as low vision or blindness, hearing impairment and cerebral palsy.

The ministries controlling other central services - the Indian Police Service, Indian Foreign Service and Indian Forest Service - have also been told to examine the applicability of the Physical Disability Act, 1995, and reservation of 3 per cent in these services. The orders came after Manmohan Singh approved the appointment of M Satish, a physically challenged candidate who qualified the examination in 2002 to the Indian Revenue Service.

Satish, who secured rank 249 in the examination, had written to Singh after he was denied the IRS for being physically challenged (right hand polio). Like Satish, there are many other physically challenged persons who will now get a chance if they qualify in the examination. "After the Supreme Court's intervention, visually challenged students were allowed to take the exam. But in the past 13 years, no student has got through," said Ravi Arora, Physically Challenged Officer. "As I stay in Delhi, I know that there are no seats. But what about students from Kerala, Jharkhand and Chhattisgarh They think they have failed," added Arora.

Three seats out of 85 IAS vacancies might not seem like much. But considering there are around 800 civil service jobs offered every year, today's decision could go a long way in addressing a major complaint of a large section of Indian society.
The World Social Forum 2004 (WSF), which was held in Mumbai on January 16 to 21st, has had its share of brickbats. Particularly from the 300-odd physically disabled delegates who have repeatedly organised protest rallies to the Media Centre to put their demands forward. The organisers had promised to make proper arrangements for the disabled, but, except for giving us a measly time slot of three hours to present our woes and conditions, they have completely ignored us, says Javed Abidi, executive director of the National Centre for Promotion of Employment for Disabled People.

Only 1% of disabled people are able to find jobs. This, despite the fact that the government has set up 28 employment exchanges to source employment avenues for the disabled. Moreover, the 3% reservation of jobs in the government sector is only for Class III and IV jobs. The discrimination was recently reflected in the case of two youngsters who qualified for the Indian Administrative Services but were given the option of the Indian Information Services (which is several notches lower) because they were victims of polio. There are too many factors related to disability which need to be investigated. For example, the government of Maharashtra is yet to appoint a full-time disability commissioner although the Law of Disability, passed in 1995.
According to a shadow report on disability, released recently, the office of Chief Commissioner for Persons with Disability, who is responsible for coordinating and monitoring work in this field, and the utilisation of funds by the central government, has been vacant for over nine months. The Disability Act, that promises equal opportunities to the disabled, provides for three per cent job reservations for disabled people. However, the shadow report reveals that, for the past four years, the annual reports of the Chief Commissioner for Persons with Disabilities, the Ministry of Social Justice and Empowerment and the Ministry of Labour do not provide any information on the implementation status of the three per cent reservation in government jobs.

Stressing that the government’s reports are mostly sketchy and seldom updated, the shadow report cites the example of the Ministry of Labour that placed 3,500 disabled people in government jobs in 2001 and carried the information in its 2003-04 annual report.
All the reservations for jobs and seats in educational institutions are for the SC/ST category, because they serve as a potential vote bank. Although there are reservations for disabled people no ministry seems to take them seriously, says Javed Abidi. "Politicians ignore us because they do not see the disabled as a potential vote bank." Says Abidi, organizer of India's Disabled Rights Group, which is demanding the country's political parties pay more attention to the rights of people with disabilities.

In September 2004, the National Centre for Promotion of Employment for Disabled People (NCPEDP) released data from a survey they conducted, painting a terribly dismal picture. Only 119 universities all over the country answered the survey and they have a total of 1,635 disabled students. Other statistics are just as discouraging. In the 96 colleges that participated, there are 679 students and in the 89 schools, there are 382 students. Significantly, several reputed institutions did not even bother answering the survey.

Vocational training institutes that are equipped for disabled students are also few in number. In 2003, there were 157 industrial training centers run by the government in Karnataka; of these, the number that can accommodate disabled people, particularly those with severe disabilities, are not many.

Education is a must but what are the employment options available to disabled people? The Act stipulates 3 percent reservation in government jobs but no such rule is applicable to the private sector. In 1999, a survey conducted by the NCPEDP found that the average employment rate of disabled people in the private sector was 0.28 percent and 0.54 percent in the public sector. Subsequently, the NCPEDP started working with various industrial associations in the country; the CII has responded positively, setting up a special cell and working towards integrating disabled people in the mainstream.

In 1977, the government reserved 3 per cent of "identified jobs" in the C and D categories in the government and the public sector. However, only about a lakh of disabled people have been employed since the setting up of the Special Employment Exchange in 1951. According to the National Sample Survey of 1991, at least seven million employable disabled people were waiting for jobs. As many as 13 States and Union Territories do not have Special Employment Exchanges. An NCPEDP survey of the top hundred corporate houses in the country in 1999 revealed that disabled employees represented only 0.4 per cent of the workforce (0.54 per cent in the public sector, 0.28 per cent in the private sector and 0.05 per cent in multinational companies).
However, there are several aspects of daily life that still need to be looked into not just by the Act but also suo motu by individuals and organisations. For example, the Act includes all government buildings and public places in its gamut. But what about apartment blocks which are constructed by private firms? This can be said to be one of the shortcomings of the Act, that these buildings are left out of the Act.

The Failure To Implement: A Comparative Assessment Of The Persons With Disabilities Act 1995 With The Americans With Disabilities Act 1990
A developing society has to be sensitive to the needs of the disabled. Cognitive adjustments can change the way disabled people function, the attitudes they encounter. "The Persons with Disabilities Act, 1995"(PWD) is the Indian attempt to bring about change but due to lack of implementation, it has not made much difference. "The Americans with Disabilities Act, 1990" (ADA) in the USA, within 10 years of legislation has made a substantial difference to the quality of life for the disabled. In this article, I compare the PWD with the ADA and offer suggestions on how the PWD can be better implemented.

In the USA, the rights of an individual with disability are protected by "The Americans with Disabilities Act, 1990" along with The Air Carriers Act, Civil Rights of Institutionalized Persons Act, Individuals with Disabilities Education Act, Rehabilitation Act and Architectural Barriers Act. The equivalent legislation in India is "The Persons with Disabilities Act, 1995". The salient features of the statutes of both countries are similar and seek to provide for education, employment, affirmative action, full participation, non-discrimination, research and manpower development. While USA has successfully implemented the legislation during the past decade, India has painfully dragged its feet.

Failure In Implementation Of The Pwd Vis-A-Vis The Ada::
1. The ADA has clear and specific guidelines for implementation with effective dates, deadlines, alternate arrangements, temporary relief's etc. The PWD is yet to be provided with these features.

ADA lays down the requirements for 'accessibility' under the different provisions and even the manner of compliance. The failure to comply is termed 'discrimination'. For example, in the transport sector, one coach per train is required to be set aside for the disabled. Purchase of new buses or trains or vehicles after the effective dates prescribed in the statute are to be ADA compliant and the deadlines for compliance of every organisation providing public transport is prescribed.

Section 44 of the PWD states: "Establishments in the transport sector shall, within the limits of their economic capacity and development for the benefit of persons with disabilities, take special measures to-
# Adapt rail compartments, buses, vessels and aircraft in such a way as to permit easy access to such persons.
# Adapt toilets in rail compartments, vessels, aircraft and waiting rooms in such a way as to permit the wheel chair users to use them conveniently. In India the authorities concerned are yet to prescribe and ensure implementation of specifications for 'accessibility'. The term 'within the limits of their economic capacity and development' is used as a defense to negate the right granted by the statute. Certain provisions of the ADA have the 'undue financial burden limitation'. But in such cases, the authorities concerned have to demonstrate to the satisfaction of the concerned authorities, extent to which the financial burden is imposed on the public entity, provide public participation by holding public hearings, provide an opportunity for public comment and consult with individuals with disabilities in preparing its plans for providing alternate arrangements.

2. "ADA Watch" is an effective watchdog system to monitor the implementation of the statute. The watchdog system under the PWD is not effective. "ADA Watch" has been operational since 1992. It reviews and evaluates on an ongoing basis, the effectiveness of all policies, programs and activities concerning individuals with disabilities. By January 1993, one year after instituting the 'ADA Watch' they received 4200 complaints regarding discrimination. Advocacy groups are formed and formal suits are being constantly instituted in the courts. To cite a few examples of change made due to complaints made to ADA Watch - TV stations agreed to provide sign language interpreters for all programs they produced about elections. Disabled in Action Inc. sued a Philadelphia restaurant for not removing a small step that prevented access into the restaurant for wheel chair users. Thousands of others join the list.

under the PWD the Chief Commissioner and Commissioners for Persons with Disabilities are envisaged to be the watchdog bodies with the powers of a civil court. However very few facilities have been provided to these offices and they thus remain ineffective.

3. ADA requires compliance with affirmative action programs by all agencies that receive federal assistance. PWD must initiate and sustain affirmative action programs.

Under the ADA, government contracts include a clause saying that the contractor agrees to take affirmative action. The contractor must prepare and maintain affirmative action programs. If the authorities determine that the above provision has been violated, they may impose a variety of sanctions including canceling, terminating or suspending the contract or debarring the contractor from future contracts.

Under section 39 of the PWD, all government educational institutions and institutions receiving aid from the government shall reserve not less than 3% seats for persons with disabilities. Under section 42, Aids and Appliances are to be provided to the disabled. Under section 43, there should be preferential allotment of land to the disabled. However there is no pressure for compliance with any of these affirmative action programs and much needs to be done. Education and Aids and Appliances are fundamental rights, most precious to the disabled and should be ensured at all cost.

4. ADA constantly ensures that the disabled are a group "who know what to do when discriminated against". By 1992, within 2 years of ADA in the USA, approximately 2 million pamphlets or information pieces on the rights of the disabled were mailed out.
Information on the rights of the disabled should be disseminated through assistance manuals, question answer booklets, media campaigns etc. Every disabled person and his family should be armed with a manual (preferably approved by the concerned government authority) listing their rights. They should know their rights as they encounter day to day situations at the railway stations, post offices, cinema theatres, and libraries and as they seek admission to educational institutions or seek employment. Each time they encounter discrimination, there should be agencies assisting them and taking up the issue for them.

5. ADA has a strong research agenda. Research under the PWD is inadequate. ADA requires studies to be done on an ongoing basis by the office of Technology Assessment and National Council on Disability. The access needs, all forms of boarding options, cost effective methods are all being constantly studies. Thousands of projects are continuously taken up aimed at improving the conditions of the disabled.

Chapter IX of the PWD deals with research and manpower development. The Chief Commissioner and Commissioners are required to submit reports to the Central Government and the respective state governments. However research is hardly done and reports are never submitted. A strong research agenda is required to study the ways and means of better realizing the rights of the disabled. The reports bring in more accountability.

Conclusion
PWD can be an effective statute if there is better implementation. Guidelines should be formulated and implemented. All efforts must be made to disseminate information on the rights of the disabled. Pressure groups and advocacy groups should actively work towards the implementation. The voice of the disabled is weak and society has to come out stronger. The participation of the disabled is imperative to the movement. The success in Javed Abidi v. Union of India should lead the way to more litigation for enforcement of the rights of the disabled.

In this case the concession which was already being granted by the Indian Airlines to the persons suffering from blindness was also extended to those suffering from the locomotors disability to the extent of 80% and above (complying with S.2(i)) for traveling by air within the country at the same rate as has been given to those suffering from blindness on their furnishing the necessary certificate from the Chief District Medical Officer. The petitioner also made a specific grievance in the alleging the lack of facilities like providing aisle chair and ambulant by the Indian Airlines which according to the petitioner is a social obligation of the Airlines and the said Airlines must provide these minimum facilities to permit easy excess to the disabled persons particularly those who are ortho-paedically impaired and suffer from locomotors disability. The Indian Airlines in course of the hearing of this Writ Petition indicated the steps taken by it in relation to providing of aisle chair in the aircraft and providing ambulift at different airports and satisfied the Court by filing the affidavits in relation to the same.

Despite growing universal awareness of the rights of people with disabilities, bold political decisions and practical actions taken in several countries, including India, in the form of the enactment of appropriate laws, the plight of most disabled people remains serious. Their situation is "the silent emergency" of our times because they are prevented from participating in the mainstream activities of society.

To counter with this situation and to protect their right to employment, new employment opportunities should be identified and created in formal and non-formal sectors, including the cooperatives and self-employment schemes. As well as appropriate training and low-interest loans should be provided to persons with disabilities to start and manage their own businesses. Sufficient attention must be paid to the assessment and training to those born with disabilities as well as to those who have recently acquired a disability and thereafter providing suitable job opportunities to them.

Conveniently-located production centers should be set up to provide economically active disabled people jobs and make sure that they are given jobs equivalent to their qualifications. Advertisements offering job opportunities must be worded with special care to include disabled candidates, and employers should make sure that there is no discrimination exercised against them at workplace.

The current quota requirements for disabled workers must be honored by employers and those fulfilling these must be provided with inducements and subsidies by the government and those ignoring it must be discouraged with adequate disincentives. Government, with the help of NGOs and private sectors, can provide specialized help and sustained support to all employers in the recruitment, training, morale building and career development of disabled workers as well as job orientation to disabled employment seekers.

The real danger now is that those who had been vigorously demanding its enactment might become complacent and think that the job has been done. The Act must be implemented in schools and colleges, in factories and workplaces, in transport and shopping centers. People with disabilities, and those who care for them, must ensure that discrimination is outlawed and barriers are removed as much from the physical environment as from the attitudes of ordinary people. The real battle for the right to full citizenship and active participation of disabled people is ahead. The Act is comprehensive but must be enforced with sincerity and determination.

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The  author can be reached at :
priyabansal@legalserviceindia.com lawyers Phone9300510303

 

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