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"(PDA)
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 PDA with the ADA and offer suggestions on
how the PDA 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 Institutionalised 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 PDA vis-a-vis the ADA::
Conclusion: PDA 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 (1999) I SSC 467
should lead the way to more litigation for enforcement of the rights of
Laila T. Ollapally
The ADA has clear and specific guidelines for implementation with
effective dates, deadlines, alternate arrangements, temporary relief's
etc. The PDA is yet to be provided with these features.
To demonstrate: 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. In some
cases, Para transit (an alternate arrangement) is provided as
complementary to the existing system. When effective dates for
implementation are far into the future or cause undue financial burden,
the statute has prescribed temporary arrangements.
Section 44 of the PDA 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-
In India the authorities concerned are yet to prescribe and ensure
implementation of specifications for 'accessibility'. Despite the
statutory provision, even after 5 years we have failed to take any
concrete steps towards its implementation. The term 'within the limits of
their economic capacity and development' is used as a defense to negate
the right granted by the statute. A proactive approach can 'within the
limits of economic capacity and development' provide some 'accessibility'
to the disabled in India. 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.
- 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
"ADA Watch" is an effective watchdog system to monitor the
implementation of the statute. The watchdog system under the PDA is not
"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 PDA 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.
- ADA requires compliance with affirmative action programs by all
agencies that receive federal assistance. PDA 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 PDA, 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. Procedures and technicalities should not be a deterrent to
achieving these rights. The participation of the private sector in the
affirmative action programs should be encouraged and even enforced,
through incentives like tax reliefs, government contracts and moral
persuasion. The disabled should be actively involved in planning, lobbying
and campaigning. Helen Keller was blind and she was the guiding light in
helping the visually impaired.
- ADA constantly ensures that the disabled are a group "who know what
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
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.
- ADA has a strong research agenda. Research under the PDA is
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 PDA 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.
This article on India Together is republished from "Success & ABILITY",
India's cross-disability magazine, with permission from Ability
Foundation, Chennai, India. Interested parties may email