‘Informed by prejudices that Persons with Disabilities are inherently less productive, or that providing reasonable accommodations is always expensive, institutions tend to use the defence of undue burden for reasons of expediency more than for reasons of actual hardship’
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The principle of reasonable accommodations (RA) is foregrounded in the legal framework through the Rights of Persons with Disabilities (RPwD) Act, 2016. 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. These RAs may range from building ramps or providing assistive technologies to restructuring job requirements and modifying workplace policies. 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”.
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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. The reason is not far to see.
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. This directly compromises the rights of PwDs and makes them the subject of a cost-benefit analysis. Thus, setting a uniform legal standard to determine undue burden becomes imperative in order to prevent misuse. However, compliance with this standard can only thrive in an ecosystem where institutions realise that in addition to fulfilling the legal mandate, an investment in RAs can also 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 which not only mandate but also encourage institutions to accommodate PwDs.
A model that can be implemented
First, a state can do so by sensitising institutions about the fact that a majority of the requested RAs can be procured at inexpensive prices. 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 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.
This model is also 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, 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. Further, its scope remains severely restricted and its coverage remains capped at dismally low amounts. This roadblock can be addressed by ensuring a continuous flow of funds towards the National Fund while also optimally utilising the funds already available therein. The state can do so by designating the National Fund as a separate line item in every annual budget and framing the following rules for the disbursement of its corpus.
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. 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. Subsequently, the 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.
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.
Tanishk Goyal is an advocate at the Allahabad High Court, a former law clerk of the Supreme Court of India and an incoming LL.M candidate at Harvard Law School
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