Showing posts with label Disability Bill 2014. Show all posts
Showing posts with label Disability Bill 2014. Show all posts

Tuesday, March 4, 2014

How do you make a bad law worse - Amba Salelkar & Rijul Kochhar.

Children of a Lesser Law : Yahoo News

How do you make a bad law worse? Enact it by way of Ordinance, three months before elections.

By Rijul Kochhar, Goutham Shivshankar and Amba Salelkar | Yahoo India – Mon 3 Mar, 2014

If there was any silver lining at all to be spotted in the pepper spray clouds of our Parliament’s abominable February session, it was that the Telangana issue precluded hurried passage of the deeply flawed Rights of Persons with Disabilities Bill 2014 (the “RPD Bill”). 

The Bill had been introduced in the Rajya Sabha on February 7, 2014, amidst immediate calls for its referral to a Parliamentary Committee by Members of Parliament. That silver lining is fast fading, however, with news reports now suggesting that the RPD Bill, along with other important anti-graft legislation, may be pushed through by the ordinance route.

This development is deeply disturbing: not only does it eliminate all possibility of any meaningful legislative debate on several contentious provisions of the Bill which will have far-reaching effects for persons with disabilities if enacted, it is also yet another instance of flagrant abuse of the presidential power to promulgate ordinances. Moreover, the promulgation of this deeply flawed version of the RPD Bill keeps intact the lacunae of the version approved by Cabinet and ends up harming all persons currently living with a disability in India.

The Power

Under the constitutional scheme (Article 123), the President is permitted to promulgate ordinances when the Houses of Parliament are not in session, only if he is satisfied that circumstances exist which render it necessary for him to take immediate action. Unlike other acts of the President which are executive in nature, the promulgation of an ordinance is regarded as a legislative act, and will have the same force and effect as an Act of Parliament. Our constitution places constraints on executive power and certain things, such as the imposition of tax, or providing for a procedure for the deprivation of life or personal liberty, may be done only by legislative acts; the power to promulgate ordinances exists in order to enable the government to quickly respond to a situation requiring urgent legislative action when Parliament is not in session. 

This “immediacy” requirement is however only in theory; what happens in practice, is something entirely different, as law scholar Shubhankar Dam notes in his recent book on the subject of ordinances. Historically, the ordinance-making power has been routinely used as a substitute to the legislative process, with no real regard being paid to whether it is the appropriate route to take as a matter of constitutional propriety. Ordinances have even been passed just a few days before a Parliament session is to commence. This trend has, in part, been encouraged by the reluctance of the Indian Supreme Court to effectively rule on the extent to which the President's legislative powers exist, with the exception of D.C. Wadhwa's Case, where the Supreme Court came down hard upon the executive in Bihar for almost taking over the role of the Legislature in making laws, not for a limited period but for years together in disregard of the constitutional limitations, by ordinances which were being re-promulgated. This was held to be clearly contrary to the constitutional scheme. Viewed from the perspective of such historical abuse of the ordinance power, the resort to the ordinance route to enact the RPD Bill is not unusual. 

The Problems

Nonetheless, enactment of ordinances remain hugely problematic for two reasons: firstly, the ordinance-making process is screened from public view. In case of the RPD Bill, which was already controversial for having been changed drastically from original drafts without release to the public, it will not be known whether the proposed amendments by the Ministry for Social Justice and Empowerment, sought to be introduced during the discussion of the Bill, would be included in the ordinance or not, or whether these amendments would face the same fate of the proposed amendments to the Whistleblowers Bill. Even these amendments are far from being satisfactory to civil society beyond the organizations which had proposed them to the Cabinet. 

Secondly, unlike ordinary legislations passed by Parliament, ordinances are by their very nature temporary, unless ratified subsequently by both Houses of Parliament in the immediate next legislative session after promulgation of the ordinance, or re-promulgated. The potential confusion this temporariness may create is perhaps manageable when an ordinance is brought in a space where there is a legislative vacuum. However, the RPD Bill does much more than fill a legislative vacuum – it repeals the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the “1995 Act”) and in the process, dismantles and re-builds from scratch the bulk of the existing framework of rights and protections afforded to persons with disabilities in India. The RPD Bill, if enacted, would be effectively shutting down existing structures and implementing new ones -  ostensibly to give effective realization of the rights of persons with disabilities. The extent of confusion that will be created in an already inaccessible system needs to be therefore considered seriously. 

Enacting penal legislations like anti-graft laws, or even the earlier instance of the inexplicable “rape law” ordinance post the release of the Justice Verma recommendations, are relatively simpler to implement, even when enacted in this manner. They are effectively notifications of substantive law, all to be largely governed under the existing institutional framework of the common Criminal Procedure Code. In the case of specific fields of law, like disability law, which create their own ecosystem of legislation, the procedure that exists is found within the statutes themselves, from the laying down of rules, notifications etc. which are collectively known as delegated legislation. 

All of the rights which exist under the RPD Bill are to be enforced by various bodies such as the District, State and National Commission for Persons with Disabilities. The constitution of these Commissions depend heavily on the rules to be notified in this regard. It is hard to imagine a circular for applications to these Commissions without rules on terms of service, salaries etc. The procedure for rule making under the RPD Bill requires “previous publication”. For rules which have the mandate of “previous publication”, Chapter 11.2 of the Manual of the Ministry of Parliamentary Affairs explains that the concerned Department must first put out draft rules, place them before the Ministry of Law and Justice, and then publish them for comments. There is thus an elaborate process for these rules, and the concerned Department will have up to six months from the date of closing of comments to finalize them. Bodies appointed for monitoring of the rights of persons with disabilities under the Bill, setting standards with regard to accessibility, etc., are all to be constituted subsequent to the framing of rules, which means that in case of any grievances, there is effectively very little option for redressal under the ordinance. Therefore, with no watchdog, either to enforce provisions or respond to grievances, the question is whether the so called beneficial provisions of the law will come into force at all. At worst however, this would render the ordinance harmless – but this is just the beginning.

The Practice

In the lives of the disabled, the disability certificate is a commanding entity. It is the artefact of government and the state that interprets the experiences of persons dealing with disabilities, translating and transforming those experiences into a public fact. Thus, the disability certificate offers a particular form and definition of disability, with its attendant mathematical percentage, supplanting the shards of experience with bureaucratic rationality and certitude. This transformation of messy lived experience into mathematical and medical certainty, at once also affects that larger lived experience of lives lived with a disability. Given this centrality of certificate to disability—and given the fact that without this certificate, no disability would be publicly recognized by the state—it is surprising that scant attention has been paid to this aspect in the otherwise spirited debate on the merits of the Cabinet approved RPD Bill. 

One important difference between the 1995 Act and the RPD Bill is the inclusion of disabilities which were not recognized under the 1995 Act. The 1995 Act had no definition of disability – instead, it listed blindness, low vision, hearing impairment, leprosy cured, locomotor disability, mental illness and mental retardation, and by implication, multiple disabilities (two or more of the listed impairments). The RPD Bill retains the first 6 categories of impairments, removes “mental retardation”, and includes autism spectrum disorder, cerebral palsy, chronic neurological conditions, deafblindness, multiple sclerosis, hemophilia, intellectual disability, muscular dystrophy, specific learning disability, speech and language disability, thalassemia, sickle cell disease and multiple disabilities as “specified disabilities”.

It is not just the label of the “specified disability” which is of importance. The percentage of the disability becomes crucial – most of the benefits under the Bill which exist, including the increased percentage of reservations in employment and higher education, extend only to persons with the “specified disability” who are certified to have more than 40% of the disability. Persons crossing the 40% threshold are termed as persons with “benchmark disabilities” as certified by the certifying authority under the Bill. These “certifying authorities” are to be notified by the “appropriate Government”, increasing the scope of delegation of legislation to nominate these entities, and uncertainty along with it. 

There are two groups of persons under this proposed ordinance, therefore: those already recognized as persons with disabilities under the 1995 Act, and those who will be recognized as persons with disabilities now. For persons who were earlier certified under the 1995 Act, Section 117 of the RPD Bill states that while the 1995 Act is repealed, anything done or any action taken under the said Act, shall be deemed to have been done or taken under the corresponding provisions of this Act. However, unlike other statutes which repealed earlier statutes which granted certification, for example, the Motor Vehicles Act 1989 (Section 217 (2) (b)), and the Trademarks Act, 1999 (Section 159),  this “repeals and savings clause” does not explicitly and specifically validate certificates issued under the repealed Act. In absence of this express clarification, bureaucracies and offices will demand certificates from such persons as per the ordinance’s requirements, viz., “as certified by the certifying authority”, rather than accept the certificates that persons already legitimately possess through the existing law from 1995. The effect would be that although accrued rights to persons with disabilities under the 1995 Act cannot be taken away from them, they could be asked to produce certificates under the new Act to get any benefits going forward. A change in law without adequate safeguards and protections for those living under the existing law, brings an emergent scenario where existing rights, recognitions and certificates, would lose their traction; they would become useless. 

Spare a thought also for the unique case of the derecognized certification of “mental retardation” - and the complete lack of clarity as to how this situation is to be addressed under a new law.

- The Illusion of Instant Recognition

One of the reasons for the supposed urgency on the part of the UPA government is the extending of benefit of recognition and reservations to the new categories of disabilities. This recognition is nothing but an illusion. For, without the development of medical protocols which emerge out of the rules following the enactment of legislation—the manuals on the basis of which doctors adjudge one’s disability, its severity, and its mathematical percentage, when one goes to claim one’s disability certificate—none of these newly included categories of disabilities can be judged by the “certifying authority”. It took the government 6 years to come up with the appropriate guidelines for evaluation of disabilities after the 1995 Act was enacted, and Rules reflecting this came into being in 2009. The new categories of disabilities that the RPD Bill envisages for inclusion will involve similar debates and discussions, though ones hopes it takes months, rather than years. This ultimately depends upon when the government, which is in the process of being dissolved, will constitute a mechanism to decide this. Rules and medical protocols, which would ensure recognition and the availability of resources by the state, can emerge only when they are nested in context of fixed, stable and non-arbitrary legislation – an Act of Parliament – and that will take time. The ordinance has no resources or time to devise these rules for enforcement of intent or the medical protocols for certification, simply because the life of the ordinance itself is limited.

What’s more, the certification process is certainly not easy – cumbersome procedure had ensured that only 22% of persons with disabilities had obtained certificates from 1995 to 2007. Thus, to say that the ordinance would, overnight, include heretofore excluded categories of disabilities is, at best, an overestimation, and at worst, a big cruel lie. And since everything hinges upon the certification of “benchmark disabilities” - reservation in government employment, reservation in higher education, reservation in poverty alleviation schemes, social security, reservation in housing schemes, and even the ability to apply for the grant of “high support” - the ordinance amounts to nothing, and in fact goes a step ahead to disenfranchise those who have rights to these by virtue of existing law and judicial precedent.

Temporary Yet Permanent

The Supreme Court's ruling in Bhupendra Kumar Bose's Case has held that everything done or initiated under an ordinance during the period it is in force remains permanently valid, and is considered legal. Even though the ordinance is itself temporary, actions taken under it would have permanent implications. This precedent is terrifying, because as pointed out time and again, the RPD Bill as it now stands creates a regressive regime, even if it will be in existence for a few months. For the limited period of time, pregnant women with disabilities can be forced to undergo abortions against their will, children can be pulled out of neighbourhood schools and forced to go to special schools, no matter how far they are from their residence, persons with disabilities will face fetters on their exercise of legal capacity, and for the first time, persons with disabilities will be allowed to be discriminated against on the basis of disability as long as it is a proportionate means to a legitimate aim – and it will all be perfectly legal, even if a new government lets the ordinance lapse. 

Reservations in government employment and higher education for persons with disabilities for the coming year would be endangered simply because there is no clarity either on their existing legal status as persons with disabilities, or on the permanence of the law itself. This ambiguity would preclude such persons from all of the avenues of reservations and other benefits—like loans—that the state has on offer, simply because the fate of the legislation and the ordinance itself is uncertain, and there are no rules or protocols to replace what the ordinance will repeal in the 1995 Act. 

Uncertain future

There is no guarantee as to when this nightmare by legislation will end for persons with disabilities. The ruling of the Supreme Court in the D.C. Wadhwa case does allow for re-promulgation in cases where the Legislature may have too much legislative business in a particular session or where the time at the disposal of the Legislature in a particular session is short. Continued re-promulgation of the RPD Bill as an ordinance on such counts is likely, especially if a new government comes to power at the Centre. Disability is not considered to be a political issue, and in that case, there is also the danger of Parliament ratifying the ordinance also without any further debate on the issue. Prior experience with the 1995 Act also suggests that it may be difficult to resolve any flaws in the RPD Bill after its enactment through the amendment process. When the 1995 Act was enacted, a committee was constituted almost immediately to suggest amendments to strengthen the law. The result? None whatsoever – the Act was never amended. The 1995 Act has behind it 20 years of rule-making and judicial precedent, which may all just disappear by the signature of one person behind a closed door. If this is not a violation of the right to life of persons with disabilities, without the due process of law being followed, then what is?

Amba Salelkar is a lawyer working with the Inclusive Planet Centre for Disability Law and Policy, Chennai. Goutham Shivshankar is an Advocate at the Madras High Court. Rijul Kochhar is a Junior Research Fellow in Sociology at the Delhi School of Economics.

Source: in news yahoo dot com

Friday, February 28, 2014

Double Cruelty of Rights of Persons with Disabilities- Rijul Kochhar,

Source: Kafila 

The Double Cruelty of the Rights of Persons With Disabilities bill: Rijul Kochhar

FEBRUARY 28, 2014
Guest Post by Rijul Kochhar
In the lives of the disabled, the disability certificate is a commanding entity. It is the artefact of government and the state that interprets the myriad experiences of persons dealing with disabilities, translating and transforming those experiences into a public fact. Thus, the disability certificate offers a particular form and definition of disability, with its attendant mathematical percentage, supplanting the shards of experience with bureaucratic rationality and certitude. This transformation of messy lived experience into mathematical and medical certainty, at once, also affects that larger lived experience of lives lived with a disability[1].
Given this centrality of the certificate to disability—and given the fact that without this certificate, no disability would be publicly recognized by the state—it is surprising that scant attention has been paid to this aspect in the otherwise spirited debate on the merits of the Rights of Persons With Disabilities (RPWD) bill (version 2013-14)[2]. This is a version of the bill that now stands before a standing committee in Parliament, having been introduced in the Rajya Sabha with perfunctory, overnight amendments[3], to replace the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995[4]. It is also the version[5] about which there is talk of promulgation through an executive ordinance, bypassing parliamentary and public consultation on a vital issue that affects millions of existing disabled persons and persons with disabilities yet to come. We deal here with how the promulgation of this deeply flawed version of the RPWD bill—through the ordinance route—not only keeps intact the lacunae of the version in Parliament[6], but also ends up harming all persons currently living with a disability in India.
To begin with, any ordinance ought to be promulgated in a scenario where it is certain that there is a viable, next-available parliamentary session in which the ordinance would be confirmed as an act of Parliament. This ensures the fundamental quality of any legislative act—a guarantee of the future, a protection against arbitrariness, and a certain measure of legislative and (pursuant to it) bureaucratic stability, till such time as Parliament, again, decides to amend, repeal or replace a legislation. The emergent election scenario in which the RPWD bill finds itself ensures a context that would lend itself to arbitrariness, an unclear future, and instability, as far as this legislation—promulgated as an ordinance—is concerned. The 15th Lok Sabha has finished its last session; unless this current political party wins the next election, there will be a political change at the helm of the executive; any ordinance must be ratified within six months by parliament, or it will cease to exist; a continuity within government usually ensures this ratification, but a change in government would bring about the emergence of a legal scene that is replete with uncertainty, arbitrariness, and instability. Within this scene, individuals would be caught up, and they would not have the existing Persons with Disabilities Act from 1995 to fall back on, nor would they have a clear status about their disability, given the opacity of the emergent RPWD legislation[7]. So, we have a real possibility of having people certified as disabled under the Ordinance who would then be disenfranchised, again, after six months, in practice—in matters of recognition, employment, education or even loans—apropos the uncertain fate of legislation itself.
The Ordinance: A threat to persons already certified as disabled
The promulgation of the Ordinance would jeopardize the status of the existing persons with disabilities. This is because bureaucracies and offices would demand certificates from such persons as per the ordinance’s requirements, rather than accept the certificates that persons already legitimately possess through the existing law from 1995. The Ordinance would repeal this 1995 Act, and in doing so, it does not clearly state what the status of existing disability certificates would be. Bureaucrats, then, would be prone to abuse their powers, arbitrarily accepting or rejecting different classes of documents: elementary ethnographic explorations of bureaucratic work bring this to us again and again, and unless the law or the ordinance clearly moves to protect the status of existing disability certificates—say by making a specific declaration to that effect, pertaining to these documents that are central to people’s lives—then we would have a situation where all persons with disabilities would stand the danger of disenfranchisement, simply because their existing certificates would refused to be accepted by bureaucrats and offices. This is no small consequence; millions of people who possess the disability certificate—as a consequence of an act of parliament from 1995—would find that their legal status is jeopardized by the machinations of an ill-conceived ordinance that does not even enjoy parliamentary legitimacy. Thus, if you are disabled, you could be confronted by a bureaucrat who refuses to accept your existing certificate. Why? Because the proposed ordinance refuses to specify what the status of those documents is, and how they are to be included in a new legislative scenario with is own (and separate) documentation rules—rules that are yet to be formulated. Add to this the work of corruption and high-handedness that we so often witness in governmental offices, and you have a situation where the disabled would be compelled to scramble from pillar to post, from ‘daftars’ to courts, in order to have their existing documentation recognized by a petty bureaucrat. This is a recipe for chaos, and it includes an invitation to corrupt practices by bureaucrats, and desperation for the disabled who are already living with a recognized disability and its attendant documentation. Simply because we have a change in laws, without adequate safeguards and protections for those living under the existing law, we have an emergent scenario where those rights, that recognitions, those certificates, would lose their traction; they would become useless. And persons with disabilities would have to re-appear before the forbidding medical boards for recertification—a prospect that terrorizes any person living with a disability who has experienced the cruelties of the certification process. These cruelties deal not only with the type of invasive medical practice that they confront on their bodies, but they also extend to corrupt practices at hospitals—practices that deny, delay, or circumvent legitimate procedures of certification. Any ethnographic investigation of the experience of disability at medical hospitals in India would highlight this troubling aspect of certification—its invasive nature, its corrupt production, and its uncertain and arbitrary results in the hand of the ‘medical authority’—qualities that are a source of great stress and phenomenal anxiety for disabled persons. People with legitimate certificates would—in all possible ways—wish to avoid a repeat of the cruelties of this process, especially if specific provisions regarding certification in the 1995 law have, heretofore, shielded them[8] from these excesses of certification beyond the necessary-poison of first time certification.
New Categories of Disabilities: False promises of recognition and resources
Any law or ordinance works only because there are bureaucratic rules to enforce them. Given that there is no possibility of a continuation of this Parliament pending election (which is only a couple of months away), if the RPWD bill is promulgated as an ordinance, then these vital rules—that would activate the legislation or ordinance—would not have been formulated. There just isn’t enough time. The 1995 law has behind it 20 years of rule-making and case law, declared variously in office-memoranda and cases dealt with by courts. In the case of this proposed ordinance, however, those rules simply don’t exist. And without these rules—which deal with everything from the protocols guiding certification at hospitals, to reservations in jobs, to accessibility in buildings etc.—nothing would be achieved for the disabled. The RPWD bill envisages extending the benefit of recognition and reservations to 19 categories of disabilities. But this recognition is a lie, a big joke. For, without the development of medical protocols[9]which emerge out of the ‘rules’, following the enactment of legislation—the manuals on the basis of which doctors adjudge one’s disability, its severity, and its mathematical percentage, when one goes to claim one’s disability certificate[10]—none of these newly included categories of disabilities would be possible to be judged by the medical authority. It took the government 6 years, from 1995 till 2001, to come up with the appropriate guidelines for evaluation of five categories of disabilities—mental retardation, Locomotor/ Orthopaedic disability, Visual disability, Speech & Hearing disability, and multiple disabilities. These guidelines form the exhaustive medical protocols which doctors use at hospitals whenever a person with a disability approaches them for the issuance of certification. These guidelines took 6 years to be formulated under various committees operating under the chairmanship of the Director General of Health Services. How many years do we think will it take to devise protocols for the 14 new categories of disabilities that the RPWD bill envisages for inclusion—new categories of disabilities that include autism spectrum disorder; cerebral palsy; ‘chronic neurological conditions’; deafblindness; haemophilia; leprosy-cured persona; low-vision; intellectual disabilities; muscular dystrophy; multiple sclerosis; learning disabilities; speech & language disabilities; thalassemia; and sickle-cell disease? Inclusion is a virtue, but its modalities need to be worked out. And remember, no lofty ideal of disability-inclusion and recognition can be achieved for the disabled, unless these respective medical protocols exist for these specific disabilities—no benefit of reservations, no recognition of one’s disabilities would be possible in practice. Thus, to say that the Ordinance would, overnight, include heretofore excluded categories of disabilities is, at best, an overestimation, and at worst, a big cruel lie. This is because the medical protocols by which the certification of these disabilities would occur, do not yet exist, and would take months, if not years, to be devised. And without certification, one receives no recognition of one’s disability by the state, and consequently, no form of benefit in the form reservations, etc. In the 1995 Act, merely five categories of disabilities took 6 years to have their respective evaluative protocols for certification; now we have an ordinance that promises to do the same for 14 other disabilities, and that too, overnight! This is a lie at the heart of the Ordinance, a lie that is deceiving all the supporters of the Ordinance, and it is a lie that needs to be exposed.
No matter what the Ordinance may claim or declare, without the formulation of rules and protocols for the production of disability certificates—rules and protocols that take years to be formulated—no new categories of disabilities would receive certification, and consequently, none will either receive recognition, or the seductive charms of things like reservations. For this recognition to be effectively carried out, and for provisions like reservation to be made available at all, we need a legislation that offers guarantee, stability, and rational actions. Ordinances, by virtue of their fixed lives, offer none of this, and in the context of the RPWD bill, where there is no further scope for parliament to convene, there is certainty that a vacuum would emerge after the ordinance lapses. Thus, no new categories would have received certification, and the benefits of recognition and reservations, for the Ordinance has no scope for devising medical protocols for the evaluation of these new categories of disabilities. And a step further, existing disabled persons, with recognized disabilities, would once again be at the mercy of bureaucrats who may choose to accept or reject their legitimate documents and certificates. They would, once again, be disenfranchised.
There are many monstrosities that the RPWD bill (version 2013-14) is haunted by. These pertain, variously, to the abortion of foetuses without the expecting-disabled woman’s consent; doubts about the extension of the Right to Education to children with ‘benchmark disabilities’, given anon obstante clause within the RPWD bill; the questionable provenance of full legal capacity for disabled individuals, along with doubts about plenary, as against limited, guardianship; the dangerous suggestion that parents or children may be separated from one another and families broken on the basis of disability; the dilution of full political participation; the ridiculous suggestion—in a time of increasing privatization of enterprises and services—that accessibility ought to be provided only by ‘establishments’ (read, government-run enterprises); the contravention of the Supreme Court’s judgment against the ongoing practice of ‘identification of posts’ for reservations, as against reservation regardless of the post; and the horrifying clause under section 3(3) of the RPWD draft that there shall be no discrimination against persons with disabilities solely on the basis of their disabilities, “unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim” (which basically invites the institutionalization of discrimination, by allowing persons and entities to get away with discriminating practices under one pretext or another, leaving the disabled individual to seek redressal, for every small act of another’s commissions and omissions, from the courts or the non-existent disability rights commission). These problems, in a word, are extensive. And they are catastrophic to substantive disability rights in the country. These have been discussed[11] in detail, elsewhere[12], and they point to the absolute disregard[13] for the United Nations Conventions on the Rights of Persons with Disabilities (UNCRPD), 2008, the international treaty that India ratified, and that has mandated an overhaul of the 1995 Act in the first place. As NALSAR has declared, in its contrast of the RPWD draft with the consultative version of the draft formulated in 2011 by the Sudha Kaul Committee, “Overall, the trend is that all rights and entitlements have been reduced to mere declarations of ‘the appropriate government shall’, with very little detailing of what the appropriate government shall, in fact, do”[14].
The Ordinance Way: Problems, Perplexities, Solutions
Passing an ordinance in a scenario where the 15th Lok Sabha has no possibility of being convened, again, to transform that executive action into legislation has its own ethical dilemmas, its own issues of impropriety, which get exacerbated when one considers the fact that a bill is being passed as an ordinance while it resides with a standing committee of the house for much-needed consultation, and when there are no pressing urgencies that demand the promulgation of the bill as an ordinance. Passing the RPWD bill 2014 as an ordinance would not only recuperate the horrors of the draft bill, a bill that is now before a standing committee of parliament for the exorcism—through consultation—of those horrors. The bill, as Ordinance, would also endanger the legal status of existing and recognized persons with disabilities, because it does not specify what the fate of their disability certificates (procured under the aegis of the 1995 act and its 20-odd years worth of engendered rules and case-law[15]) will be. Consequently, they will be at the mercy of the wanton actions of bureaucrats, variously situated in numerous situations across the country. Avenues of employment and education for those disabled persons would be endangered simply because there is no clarity either on their existing legal status, or their future legal status, as disabled persons. Would they be given jobs or admissions on the basis of a law that is absent, and an Ordinance—functioning without the activating rules—that is limited by time to a mere six months? This ambiguity of present and future status, under the sign of the Ordinance, would preclude such persons from all of the avenues of reservations and other benefits—like loans—that the state has on offer, simply because the fate of the legislation and the ordinance itself is uncertain, and there are no rules or protocols to replace what the Ordinance will repeal in the 1995 Act.
The Ordinance repeals without replacing; it makes declarations but has no rules or medical protocols to enforce those declarations; it takes away everything from the penumbra of the 1995 Act, including case-law, progressive and hard-fought office-memoranda, and very crucially, the heretofore-unambiguous legal status of existing disability certificates that are not sought to be given express protection under the new legal dispensation; therein lies the cruel rub for millions of recognized disabled persons in this country, and this cruelty (of the non-recognition of their legitimate documents) is to be witnessed at the level of the petty-bureaucrat and the office: contexts in which the law, any law, is activated as practice. Finally, the ordinance would do nothing for the newly-included categories of disabilities because it does not have the time or the resources—given the looming elections—to specify what the medical protocols are, by use of which these new categories of disabilities, and persons occupying those categories, ought to be certified. Those rules and medical protocols, which would ensure recognition and the availability of resources by the state—can emerge only when they are nested in context of fixed, stable and non-arbitrary legislation—an act of parliament—and that will take time. The ordinance has no resources or time to devise these rules for enforcement of intent or the medical protocols for certification, simply because the life of the ordinance itself is limited. And as we know, in contemporary India, without certification, one’s disability has no scope of recognition by the state, and one has no hope of partaking of benefits such as reservations, a fact recently agreed to by the union government[16]. That recognition and these benefits, under the seductive (but ultimately illusory promises of the Ordinance) would remain just that—an illusion that is alsocruel.
Given the effective end of the 15th Lok Sabha—there are no more sessions—what needs to be donefirst is the work of elections. From there, the RPWD bill, currently before a Standing Committee, would emerge, and hopefully, with some of its damaging provisions suitably contained through consultations with all stakeholders. After a consultative passage of the RPWD bill—something that only the next Lok Sabha can do—we would have the evolution of the requisite rules for the activation of the new legislation. This will allow for adequate time, for the generation of medical protocols that would allow for the certification of all 19 categories of disabilities that the new law seeks to recognize, and for the protection of already certified disabilities. Only will those rules, those protocols, and their consequent use in certification, allow for substantive recognition and availability of resources to disabled persons in India. And it is hoped, sincerely, that this new certification-regime will already recognize the legal and legitimate status of existing disability certificate and their possessors. These are people and bureaucratic artefacts that are a legacy of the 1995 Act. Our legal and official status—as legitimate, document-bearing citizens of India who happen to be disabled—ought to be expressly safeguarded under an emergent, consultative law, not a capricious ordinance.
(With thanks to Amba Salelkar, for inputs)
Rijul Kochhar is a Junior Research Fellow in Sociology at the Delhi School of Economics. He has, recently, submitted an MPhil dissertation, titled “The Analytics of Disability: Bodies, Documents, and the Order of the State”. He also lives with a disability.

[15] Amba Salelkar lists some of these “landmark rulings – on the reproductive rights of women with intellectual disabilities (Suchita Srivastava vs. Chandigarh Administration, 2009), interpretation of the 3% reservation rule in Government Sector Jobs (Union of India vs. National Federation for the Blind, 2013), and political participation (Disabled Rights Group vs. Chief Election Commissioner, 2007) being examples at the Supreme Court level”. There are other judgments at the level of lower courts, including some judgments pertaining to accessibility, education and reservations delivered by the Delhi High Court.

Wednesday, February 26, 2014

Ordinance Route to push Disability Bill 2014 is against the Constitution

Dear Colleagues,

If we believe the news making headlines in today's newspapers, that the Congress leadership is trying to push the flawed disability bill of 2014 through promulgation of an ordinance - a backdoor entry, this is a disturbing trend  and must be desisted.

Firstly, without repealing the existing Act of 1995 the government - which is days away from the Declaration of fresh Elections for 16th Lok Sabha- they can not enforce this ordinance to benefit people even if brought in haste like this. Keeping in mind that even today, there are some states that do not have full time Disability Commissioners, over 50% persons with disabilities do not have disability certificates as admitted by the Minister himself in the parliament- do those who are supporting this bill claiming to be representing disabilities not covered in the present Act believe that all institutions promised in the ordinance would be constituted within 6-7 months and start to function to give them relief....?

If they believe so... they are grossly mistaken. And then, this ordinance will die its natural death, if the next government doesn't favour it.  Conventionally, it is the next government that should decide the fate of such pending bills which couldn't be passed by the parliament. At least I am sure that the present dispensation is not going to come back.... for the voter is now more aware! 

I strongly feel that ideally since the bill has been referred to the standing committee, we should await a better consensus bill. An ordinance will create huge confusion and will work counter productive for the existing rights available under the Act of 1995.  If the pressing needs of the disabilities not covered under the existing act are so overpowering, then the only prudent option  available in such a scenario is to bring in an ordinance improving the existing Act of 1995 to add the disabilities and extend the benefit to those who remain unrepresented. The existing Act had held the forte for close to two decades and a strong case law has been developed which shouldn't be lost sight of.  

Meanwhile let the Standing Committee do its work in partnership with the disability sector and let them bring in a consensus bill through democratic means. Will the Congress listen to the viable option or do they just want RaGa to play super government to score some brownie points?

Here is the writeup by Dr. Dhanda in Indian Express

February 24, 2014 11:38 pm

Amita Dhanda
Government should use the ordinance route, not to push the 2014 disabilities bill, but to make the 1995 act more inclusive.

In the realm of disability rights, the events of the last month have been controversial. The government obtained cabinet approval for the Rights of Persons with Disabilities Bill, 2014, which does not meet the standards prescribed under the UN Convention on the Rights of Persons with Disabilities (CRPD), as it reinforces popular stereotypes instead of challenging  them, and permits discrimination rather than prohibiting it.

It also moves backwards on questions of autonomy, choice and liberty. Due to these regressive features, segments of the disability sector have criticised the bill. The bill’s supporters pointed to its inclusion of 13 new impairments and the enhanced percentage of job reservation. Since the losses were outweighing the gains and many provisions required fixing, the chairperson of the Rajya Sabha referred the bill for consideration by a House committee — the most appropriate solution.

The dust had barely settled on this decision before another controversy engulfed the disability rights legislation. There are rumours that the government is planning to enact the bill as an ordinance. Two questions are being raised: one, can the government enact the bill through an ordinance after referring it to a House committee? And two, should the government take this route?

Under Article 123 of the Constitution, the president has the power to make law through ordinances, provided that first, both Houses are not in session and second, the president is satisfied that circumstances exist which render it necessary that immediate action should be taken. Insofar as the two Houses are not in session, the first condition is satisfied. However, the second condition is not met. The bill was sent to a House committee because it needed more work. It was only introduced in the House and sent to the committee, and no urgency to enact the bill was expressed or shown.

Any effort now to enact the bill as an ordinance, after it has been referred to the House committee, would, in light of the Supreme Court’s ruling in D.C. Wadhwa vs State of Bihar, be seen as a colourable exercise of power and a fraud on the Constitution. On a plain reading of the Constitution and by relying on judicial decisions, it can be stated that the president cannot enact the bill by promulgating an ordinance.

It is also important to ask whether the government should enact the bill by using an ordinance. While considering this question, we should appreciate that disability rights is not an unoccupied field. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 already controls the area. If the new bill is promulgated as an ordinance, it cannot become operable unless the act of 1995 is repealed. The act of 1995 has empowered a series of individual bodies and authorities to implement the statute.

All these entities would become dysfunctional if it is repealed. But there would be no time to establish and render functional new authorities, because an ordinance can be operable for a maximum of seven and a half months without obtaining parliamentary approval. Going the ordinance route would not benefit the freshly included impairments, but would create an enforcement vacuum even for the disabilities already included in the 1995 act. Enacting the disabilities bill through the ordinance route would usher confusion and chaos, and could cause all disabilities to lose legislative protection.

With the bill referred to the House committee, the newly included disabilities are at a special disadvantage. Since 1999, when a committee set up to suggest amendments to the 1995 act highlighted the need for inclusion, the battle has been on to recognise excluded impairments. The disabilities included in the 1995 act await the passage of the new law while continuing to obtain the benefits and entitlements provided earlier. But the disabilities not so included get nothing.

It is important that all disabilities are similarly positioned so that they can work on the passage of a robust CRPD-consonant legislation. This is a situation of inequity which needs to be remedied. Since the two Houses are not in session and the enactment of the new law will necessarily take some time, the government should use its power under Article 123 to amend the 1995 act to include the new impairments that would have obtained inclusion if the new bill were passed. At the same time, the inadequacies of the new bill should be rectified by the House committee. By adopting this policy of activism and restraint, the government could do right by all sections of the disability community.

The writer is professor and head, Centre for Disability Studies, NALSAR, Hyderabad.

Tuesday, February 18, 2014

Can bad law be good: Faizan Mustafa

17 Feb 2014

The vision is to have a society where all categories  of  disabled  persons  are valued and respected as equal citizens and partners in the development and progress of  society and they are no longer looked upon either as burdens or  liabilities  or  targets  for  pity  and charity


Why is NALSAR University of Law, the country’s best law school, opposing the Disability Bill introduced a few days back in the Rajya Sabha?  Can the latest amendments rectify the defects in the Bill? What can be done to help  persons with disability at this stage?  These are some of the questions which call for objective and critical analysis.

The 2006 United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)  makes the progressive and bold assertion that the disabled have the right to recognition as persons. They have full legal capacity on an equal basis with fellow human beings. Thus the Convention makes a fundamental shift from the  “incompetence model” of the disability law to the “universal capacity model”. The Convention challenges the irrational connection between impairment and incompetence.

The UNCRPD also guaranteed the right of participation and effective consultation to persons with disabilities. The Government of India implemented this obligation in letter and spirit when it launched the most extensive pre-legislative process, by first establishing a government-civil society committee to prepare a working draft with inputs from all relevant stakeholders, translating the draft into 14 languages and obtaining public opinion on it by travelling across the country.  This widely consulted Rights of Persons with Disabilities Bill was submitted to the Ministry of Social Justice and Empowerment, Government of India, in June 2011. The ministry worked on this draft and came out with its version in 2012. Both the 2011 and 2012 Bills were placed on the ministry’s official website. In the face of this elaborate process of consultation, when cabinet approval was obtained on the current Bill in December 2013, it was presumed that the cabinet had approved the same drafts on which civil society and persons with disability were consulted. This belief was belied. The Rights of Persons with Disabilities Bill 2014 has little or no relationship with the Bill of 2011. People and institutions like NALSAR, which had been closely involved with the 2011 consultative process, feel betrayed  and hugely disappointed. A  government, which had started the legal reform process by creating due space for the right to participation of persons with disabilities, just lost its way.

The outrage of the leakage was soon substituted by the pragmatism of  experienced realities. A number of disability rights groups tried to retrieve the situation by stringing together a group of amendments which they contended would salvage the Bill and enable the enactment of a long delayed legislation. Since the amendments were circulated to members of Parliament on 8 February 2014, it is important to consider whether the inadequacies found in the 2014 Bill are fully addressed by the proposed amendments. A large number of persons with disabilities are unable to obtain their just due not so much because of their impairments but because of the prejudicial attitudes of people. It is these prejudicial attitudes which form barriers to their participation. Disability is social not physical. The medical model is an outdated concept. It is for this reason that raising of awareness was included as one of the critical obligations of state parties in the UNCRPD.  To arouse awareness,  the Bill of 2014 needed to unequivocally state that no person with disability shall be discriminated against on the basis of disability. The Bill does not, unlike the UNCRPD, spell out what constitutes such  a discrimination and furthermore, allows the discrimination of persons with disabilities if required for a legitimate purpose, provided that proportionate means are employed. Thus a piece of legislation, intended to afford protection against discrimination, itself permits discrimination and this permission has not been withdrawn or amended by the amendment.

In the manner of discrimination, the Bill allows the deprivation of liberty of persons with disabilities provided  there are additional reasons for doing so. What is prohibited is discrimination “only on the ground of disability.” A person with disability, who is a vagrant or destitute or considered to be dangerous, could be deprived of liberty because the requirement of equality operates only if liberty is deprived on the basis of disability. The multiplicity of standards again come to the fore when the Bill allows abortions on women with severe disability… without their consent. The wide scope of the power can be seen from the fact that the Bill does not define a woman with severe disability. This is in spite of the Supreme Court’s  decision on accepting the right of a mentally challenged woman to sustain  her pregnancy. While the apex court had acknowledged the importance of exercise of choice by the persons with disabilities in matters concerning their life, the Bill proposes to turn the clock back.

The Bill makes the inviolable and non-derogable rights, such as liberty and equality, negotiable; at another remove,  it fails to adopt principles which are required to obtain the full inclusion of all persons with disabilities. The Bill makes the matter of lifting the legal disqualifications which subsist in existing laws against persons with intellectual, psycho-social and development disabilities a matter of enforcement by the appropriate government. If the government fulfils its enforcement duties then persons with disabilities can enjoy the legal capacity on an equal basis with others. If it fails, then persons with disabilities can continue to be denied the right to enter into contracts, manage  their own properties, marry according to their choice or the right to sue a negligent service provider.

These negotiable formulations are all the more problematic in the light of the fact that the enforcement authorities established by the Bill have been primarily accorded mere “persuasive powers.” The rights guaranteed under the Bill are formulated in disputable terms. Courts are generally inaccessible to persons with disabilities and the authorities who are closer to them can provide little relief in most situations. If the commonly used aphorism in relation to rights is employed in this situation, then it can be said there are no rights as there are no remedies.  Such inadequacies of form and substance, which are only illustrative in nature, led NALSAR University of Law, to disassociate itself from the 2014 Bill. However, when the university examined the case of those who were supporting the Bill, we realised that the collapse of the Bill would hit those with disabilities that are not included in the 1995 Act.    Such persons can obtain the benefit of disability certificate, or pension, or travel concessions only if they are considered persons with disabilities. Since the 2014 Bill included them, they were willing to ignore  the glaring inadequacies of the Bill, consoling themselves with the thought that there is no such thing as “perfect law”.

A realistic acknowledgement of legal imperfection is acceptable; however, to accept a bad law considering it to be good, if not perfect, is undesirable. The new Bill will apply to all  forms of disabilities ~  “old and new”. The  “new disabilities”, so-called, in order to obtain inclusion are inadvertently submitting to a discriminatory regime. The only way out is to include by legislative amendment or promulgation of Ordinance all the disabilities which were going to be included in the 2014 Bill and extend to them all the benefits which are presently extended to disabilities included in the 1995 Act. Such an amendment would create a level playing field between all disabilities and enable all groups to uncompromisingly demand their just due.

We want to have a society which is truly inclusive and egalitarian, where every individual including persons with disabilities have equal opportunities. The vision is to have a society where all categories of disabled persons are valued and respected as equal citizens and partners in the development and progress of  society and they are no longer looked upon either as burdens or liabilities or targets for pity and charity.

The writer is Vice-Chancellor of the NALSAR University of Law, Hyderabad

Source: The Statesman