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Opinion on the Pending Question posed in the Explanatory Note to the Working Draft of the Rights of Persons with Disabilities Act and the Memorandum on the Disability Code by Justice A P Shah

December 25, 2010
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Filed under: Disability Code,New Law

Background Facts

  1. The question posed to the Committee in the Explanatory Note to the Working Draft of the Rights of Persons with Disabilities Act dated 20.11.2010 (the “Pending Question”) was as follows –
    “The issue of the induction of the National Trust and the Rehabilitation Council as separate chapters could not be attempted primarily because there was no time left to undertake a coherent and systematic exercise. It may also be noted that as the length of the statute expanded we felt a constraint of space in even incorporating all the provisions of power and accountability in the chapter on the Disability Rights Authority. It may also be noted that all significant authorities in the country have dedicated legislations around them. In this view of the matter the Committee would need to consider whether it would wish to suggest the creation of One Disability Law Code and within which have legislations on: Disability Rights; the Disability Authority; the National Trust; and the Rehabilitation Council. Or whether it would also wish to induct the National Trust and the Rehabilitation Council into this legislation?”
  2. Subsequently the Memorandum on Disability Code (the “Memorandum”) reiterated that the DRA, National Trust and RCI should have their own separate legislations. The reasons given were as follows –(a) Lack of “Time” and “Space” (Para 1, Memorandum)(b) “Coherent Operation” and “Efficient Implementation” of the transitory measures in relation to the Mental Health Act (Para 3, Memorandum)(c) “Efficient implementation” and “protection of interests of most marginalised” (Paras 4, 6 Memorandum)
  3. The Memorandum also explained the idea of a “Disability Law Code” in the following terms (Paras 5 and 6, Memorandum) –
    “It is in the wake of these equally valid concerns that it was suggested that a Disability Code may be formulated which could be a legally accepted and efficient way of bringing convergence along with accommodating difference. The difference between a Code and multiple legislations in a field is that the Code has a common philosophy; common grammar and a concerted effort to ensure that each part fits into a cohesive whole. Thus for example there are number of legislations on children which occupy the field today but they do not make a Children Code because the cohesiveness of philosophy, grammar and the convergence between authorities is absent.
The difference between a Code with multiple legislations and a single comprehensive legislation is that a Code with multiple legislations allows each area to obtain the detailed and dedicated attention it requires. The Companies Act; the Income Tax Act are examples of legislations which are comprehensive but whose very comprehensiveness becomes a barrier to their efficient implementation. A Code with multiple legislations makes it  easier to undertake capacity building and awareness raising of the law and it ensures that the interests of the marginalized groups are not submerged in the bulk of a large legislation.”

Issue

  1. The central issue which has arisen is thus whether the gamut of disabilities laws in the country should be embodied as –
    1. one comprehensive statute incorporating the rights of disabled persons, the provisions for enforcement of such rights, and, the powers and responsibilities of the proposed implementing authorities, i.e. the DRA, the RCI, the National Trust (or their equivalent) under separate chapters/sections in the same legislation; or
    2. a “code” of multiple legislations, each dealing with – the rights of disabled persons, the powers and duties of each relevant implementation authority including the DRA, RCI, the National Trust (or their equivalent), each under a separate legislation.

Opinion

  1. The Constitution of India evisages a legislative instrument only by way of a “Bill” which becomes an “Act” of Parliament. Although some legislations have been titled as Codes (for instance the Indian Penal Code, 1860; the Civil Procedure Code, 1908; the Criminal Procedure Code, 1973; and the proposed Direct Taxes Code), in legal terms each statute is an “Act”. It appears that the phrase “Disabilities Code” as used in the Pending Question and the Memorandum is a colloquial expression to refer to the set of legislations (as outlined in Para 5(b) above) having “a common philosophy and grammar”, in contrast to having a comprehensive statute covering the gamut of disabilities law.
  2. The Pending Question and the Memorandum suggests that a “Code” with multiple legislations (at Para 5(b) above) is preferable to a comprehensive legislation. Here, it is important to understand that theoretically it makes no difference whether there is, for instance, 1 Act with 100 Sections, or 100 Acts with 1 Section each. Each word present in an Act is law made by Parliament and is equally binding. There are however certain practical benefits of consolidation which have been discussed later (at Para 9 below).
  1. Given the above, let us look to the reasons cited (at Paras 2 and 3 above) for a preference of multiple legislations over one comprehensive legislation – 
    1. Inadequate time – this is an issue of a practical constraint and is something that has to be worked out within the Committee. I would just state that even if the proposal for a “Code” with multiple legislations is taken up by the Committee, the rights of disabled persons will not be fully realised till each relevant legislation comprising the “Code” is enacted and/or amended. Timing wise, therefore, it would seem to make no difference which of the two proposals (a comprehensive statute or a code) is adopted by the Committee. 
    2. Inadequate space – length of the law is not a legal constraint to enactment of a law by Parliament. An Act may contain only 1 section or may contain 1,000 sections – the latter will be as much the law of the land as the former. There are several enactments which are voluminous such as the Indian Penal Code, 1860 (511 Sections), the Criminal Procedure Code, 1973 (484 Sections) etc. and these have stood the test of time without any serious concerns about their length.
    3. All significant authorities have dedicated legislations – it is true that most authorities are created by way of dedicated legislations. Usually, however, these legislations spell out not just the rules regarding the constitution and working of the authority, but also the rules that they are supposed to enforce. Thus, for instance, the Competition Commission established under the Competition Act, 2002 contains not just the rules governing the constitution and working of the Commission, but also the rules that it is supposed to enforce. Examples may also be given of the SEBI Act, 1992 (constituting the SEBI); the Companies Act, 1956 (constituting the CLB and NCLT); the Income Tax Act, 1961 (constituting the Income Tax Tribunals) each of which contains both the substantive rules for enforcement and the rules governing constitution of the authorities. Given this, having a separate statute containing the rights of disabled persons, and different statutes creating the relevant authorities, would be uncommon.
    4. “Coherent Operation” and “Efficient Implementation” of the transitory measures – transitory measures are usually required to ensure a smooth transition from the old law to the new. Examples may be given of the “repeal and savings provision” that exists in statutes which repeal an earlier law. Even the Mental Health Act, 1987 contains a “repeal and savings clause” in S. 98, as it repeals the earlier Indian Lunacy Act, 1912 and Luncacy Act, 1977. Even if the present law which seeks a complete reversal of the philosophy of “mental capacity” poses a more delicate situation than the Mental Health Act, 1987, the transitory measures can be accommodated within a separate chapter as part of the comprehensive legislation, rather than having it as a separate Act. 
    5. “Efficient implementation” and “protection of interests of most marginalised” – this concern is definitely important and must be kept in mind when drafting the law. It however goes to the substance of the proposed legislation, and not to its arrangement. One can have inelegantly drafted separate legislations which do not adequately protect the interests of the most marginalised, while one can have a neatly drafted consolidated legislation which has the opposite effect. The size of the legislation cannot be equated with efficiency in its operation. For instance, the Equality Act, 2010 in the UK has 218 Sections, is over 250 pages long and covers the entire spectrum of anti-discrimination law including disabilities discrimination. It is elegantly drafted, with related provisions bunched together in neatly organised chapters and is widely seen as a step up from the earlier set of different legislations that existed in this field.
  1. There appears to be merit in favouring a comprehensive statute, over a “code” of multiple legislations. The existence of multiple legislations is more likely to create a scattered web of enactments making the law inaccessible and confusing. In a field as critical as disabilities law, such a situation must be avoided at all costs. Creating inter-linkages between multiple legislations and dealing with the hierarchy of authorities are also likely to become increasingly difficult if there exist unconsolidated multiple legislations. Issues of conflicts between different authorities are best resolved under a single comprehensive statute rather than having multiple legislations. In this context, I would agree with the words of the Scottish Law Commission1 which has aptly summed up the purpose of a consolidating enactment –
  2. Consolidation involves the bringing together of several statutes in an area of law into one Act. Consolidation does not change the law. It is a way of tidying up the statute book and making it easier for people to access legislation. Instead of having to look up several Acts covering a number of years on a particular matter, the user has to look up only one Act. The result is to make it much easier and less time consuming for the user.”

Justice Ajit Prakash Shah
23.12.2010

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