Health Issues Homepage The failure to implement A comparative assessment of the Persons with Disabilities Act 1995 with The Americans with Disabilities Act 1990 May 2002: 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:: 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- 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'. 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. "ADA Watch" is an effective watchdog system to monitor the implementation of the statute. The watchdog system under the PDA 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 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 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. ADA has a strong research agenda. Research under the PDA 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 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. 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 the disabled. Laila T. Ollapally May 2002 This article on India Together is republished from "Success & ABILITY", India's cross-disability magazine, with permission from Ability Foundation, Chennai, India. 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