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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 Prasanna Pincha

December 31, 2010
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Filed under: Disability Code,Legal Capacity,New Law,Press

A brief note

This brief note contains my reflections against the backdrop of an on-going debate on whether there should be only one comprehensive legislation or one common/comprehensive legislations and other specific legislations on disability rights. The signed opinion of Justice A P Shah retired Chief Justice of the Delhi High Court is the recent contribution on the issue.

I make the following submission with utmost humility drawing upon my experiential expertise of disability as well as my professional legal knowledge especially in disability related laws.

I firstly wish to point out that the proposed new law is still on the anvil; it is work in progress, and it will be quite a while before the Govt. zeros in on a draft. At this moment, we have before us only a working draft which needs to be improved, modified, fine-tuned and finalized before it is submitted to the Government for consideration and necessary action. The Government, as we all know has its own processes and procedures for going ahead with the matter. Thus, while there is absolutely no reason for panic, animosity or agitation, there is ample scope, space and time for constructive feedback and interactive dialogue to get the law we all desire.

Secondly, a conjunctive reading of the consensus paper, the explanatory note, and the working draft put together by the legal consultant to the new law committee should leave one thoroughly convinced that the said legal consultant has, inter alia, put forth a set of suggestions in respect of certain seemingly contentious and sensitive matters following meticulous and in-depth examination of the Committee’s deliberations and also of some voices from the civil society. For example, I view the suggestion to consider accepting the principle of one code with multiple laws as a well intentioned brilliant attempt to forge a meeting ground between those who favour the idea of a comprehensive mother legislation with additional need-based specific laws and those who desire one law.

Thirdly on the matter of the signed opinion of Justice Shah, I wish to inform that diversity and difference of opinions amongst judges and lawyers is quite the rule. Consequently whilst Justice Shah’s opinion has provided another angle to the issue, it is in no way the final word on the matter. There would be other judges, lawyers who would adopt a different view of the matter. Besides, it is necessary to understand that when, for example, someone approaches an expert for an opinion on a given matter, the expert would be guided in formulating the opinion depending upon the manner in which the problem is presented to him or her by the person seeking the opinion of the expert. Consequently, it would not be surprising if the same person who has purportedly expressed an opinion comes out with a different and modified version of his opinion after listening to a different point of view. There is nothing in the opinion of Justice Shah which shows that he had heard the views of both sides that is those who favour one common law along with additional and specific laws, and those who desire only one law under all circumstances.

Fifthly, the mandate of the new law Committee is to put together a draft of a new law to replace the existing Persons with Disabilities Act. Although, the term “comprehensive” does not figure in the relevant notification which contains the terms of reference of the committee, the members of the committee interpreted the terms of reference to mean that they were to develop a comprehensive legislation; and yet came up with various and variant interpretations of the term “comprehensive”. While a number of committee members saw comprehensive to mean that they need to come up with an elaborate piece of legislation covering all rights of all persons with disabilities, a few of them felt that they need to develop a draft merging all the existing four disability specific legislations. It is for this reason that a working draft covering all rights of all persons with disabilities has been put together without either seeking to merge the existing legislations into one or suggesting repeal of any existing legislation.

In the light of the aforesaid context, I wish to respond as follows to the signed opinion of Justice A.P. Shah:

Firstly, I fully agree that legally, it matters little whether there is one Act with 100 Sections; or 100 Acts with one Section each as long as it is enacted in accordance with the provisions of our Constitution. I also agree that there is no difference between a “Code” and an “Act” in terms of their legal impact. However, It seems that the legal consultant to the new law Committee introduced this idea to forge a meeting ground between two competing/conflicting demands, and to hammer home the inescapable need for complete coherence. This suggestion by the legal consultant needs to be understood and interpreted keeping in view the aforestated perspective and context.

It therefore follows from the above that the proposed new law or laws as the case may be, will need to be developed keeping in mind the following:

  1. need to address commonalities such as those relating to impairment-based discrimination;
  2. the need for focused protection and support for the more marginalized groups amongst persons with disabilities;
  3. The need for introduction and addressal of the diversity angle within and among persons with disabilities.
  4. User-friendliness of a statute.
  5. clarity of the statute which serves to avoid chaos and confusion and promotes expeditious and effective implementation.

Judged from the above parameters, I am personally convinced that we need to continue with arrangement of a common law and additional and specific laws to additionally address the issues/concerns of more marginalized groups amongst persons with disabilities. Of course, all these laws have to be made UNCRPD consonant. The principle is simple: common law to address commonalities; specific laws to address specificities.

On the question of volume it has been stated that since we have some voluminous statutes, or for that matter, some other countries also have voluminous statutes, the Disability Act can also be voluminous. Voluminous statutes are okay if and when they are inevitable. The existence of some voluminous Acts or Codes is not a reasoned justification for having some more. If prior existence is the only reason then it can well be argued that since there are a mber of smaller statutes, so we should have smaller statutes. This does not lead us anywhere. Our effort should be aimed at doing that which best serves the interests of all persons with disabilities.

The signed opinion of Justice Shah explicitly refers to the Indian Penal Code as one example of a voluminous statute. The Indian Penal Code is a substantive common law on crimes; but even the presence of this statute has not prevented the enactment of legislations of a specific nature apart from the Indian Penal Code. One such example is the Prevention of Food Adulteration Act. These general and special legislations continue because each kind fulfils a particular role whereby one cannot replace the other. It cannot for example be claimed that all the laws on crime, or on women’s rights, or on labour should be clubbed into one huge statute respectively. It may be pertinent to point out that an effort do so for labour laws failed miserably even though the task was led by one of the leading specialist on labour law in the country. As regards the Equality and Non Discrimination Act in UK it needs to be remembered that the particular Act covers all excluded groups and does not confine itself to persons with disabilities. Is India ready for such a comprehensive legislation? The point is that each country has to make laws in relation to its needs and requirements.

Now some thought on dedicated statutes for authorities. There is no denying the fact that we have some authorities created under a dedicated statute while others form part of a larger statute. Since the Disability Rights Authority as per the working draft of the new law has been conceived as one with elaborate mandate and a comprehensive structure, it may be appropriate that it is set up under a separate statute. It goes without saying that the said Authority is to have rules for enforcement as well as rules for its own governance. Consequently the said authority meets the criteria mentioned in Justice Shah signed opinion to deserve a dedicated statute. If the proposed Disability Rights Authority is established as a part of the larger statute, then a number of its rules of governance may need to be formulated by the executive. If created through a dedicated legislation these norms of governance could be enacted in the legislation itself. The extent to which we wish to protect this statutory authority from executive interference could signally influence the answer to this question. Moreover, giving the said authority statutory status under a dedicated statute will factually accords it higher visibility and stature.

The idea should not be to encourage the creation of a scattered web of legislations as indicated in Justice Shah signed opinion but to facilitate creation of a chain of harmonious legislations coherent with the UNCRPD. I see the current working draft as a draft of a common/comprehensive law. This common law provides the unifying policy and principles which provide guidance when other laws or specific measures were adopted.

In view of the above, I humbly urge upon all concerned to do the following:

  1. Please keep the best interests of all persons with disabilities in mind.
  2. Evolve a consensus on the substance first. The structure can perhaps be taken care of a little later by a panel of experts which the Govt. may be pleased to set up following receipt by it of the Committee’s report together with the finalized draft. The said proposed panel of experts may include, among others, legal experts and also persons with disabilities having at least some basic understanding of the related laws, ETC.
  3. Respect the Committee’s mandate and the time-frame.

Prasanna Kumar Pincha.

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